Amendments to National Marine Sanctuary Regulations, 5997-6024 [2013-00937]

Download as PDF Vol. 78 Monday, No. 18 January 28, 2013 Part III Department of Commerce tkelley on DSK3SPTVN1PROD with National Oceanic and Atmospheric Administration 15 CFR Part 922 Amendments to National Marine Sanctuary Regulations; Proposed Rule VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28JAP2.SGM 28JAP2 5998 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Word, Excel, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Meredith Walz, NOAA Office of National Marine Sanctuaries, 1305 EastWest Highway, 11th floor, Silver Spring, MD 20910, (301) 713–3125. SUPPLEMENTARY INFORMATION: DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 070726416–2682–02] RIN 0648–AV85 Electronic Access Amendments to National Marine Sanctuary Regulations This Federal Register document is also accessible via the Internet at https:// www.access.gpo.gov/su-docs/aces/ aces140.html. Office of National Marine Sanctuaries (ONMS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Proposed rule; request for public comments. AGENCY: The National Oceanic and Atmospheric Administration (NOAA) proposes to amend the program regulations of the national marine sanctuaries. This rule would update and reorganize the existing regulations, eliminate redundancies across sanctuaries, eliminate outmoded regulations, adopt standard boundary descriptions, and consolidate general and permitting procedures. DATES: Comments on this proposed rule must be received no later than March 29, 2013. ADDRESSES: You may submit comments, identified by NOAA–NOS–2011–0120, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NOS-20110120, click the ‘‘Comment Now!’’ icon, complete the required fields and enter or attach your comments. • Mail: Meredith Walz, Office of National Marine Sanctuaries, 1305 EastWest Highway, 11th floor, Silver Spring, MD 20910. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, will not be considered by NOAA. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NOAA will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft tkelley on DSK3SPTVN1PROD with SUMMARY: VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 I. Background In 1972, Congress passed the Marine Protection, Research, and Sanctuaries Act, which, among other things, establishes the National Marine Sanctuary System (System). Title III of that Act—now also called the National Marine Sanctuaries Act (NMSA)— provides a mechanism for the Secretary of Commerce (Secretary) to designate and manage, as national marine sanctuaries, areas of the marine environment that are of special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities (16 U.S.C. 1431 et seq.). Since the NMSA was passed, thirteen national marine sanctuaries have been designated. Dayto-day management of the System has been delegated by the Secretary to NOAA’s Office of National Marine Sanctuaries (ONMS). Regulations implementing the NMSA and each sanctuary are codified in Title 15 Part 922 of the Code of Federal Regulations (CFR). Part 922 includes ‘‘general’’ regulations applicable to all sanctuaries and ‘‘site-specific’’ regulations that relate to each individual sanctuary. As these sanctuaries have evolved and additional sanctuaries were included in the System, both the general and sitespecific regulations have understandably changed and expanded. In certain instances, however, the evolution and expansion of the System has resulted in regulations that are redundant, inconsistent, outdated or conflicting. This rule would update both the general and site-specific regulations, making them more uniform, concise, organized, and understandable. By doing so, it is not the intent of the ONMS to alter the regulations in such a manner that would substantively change existing uses of the sanctuaries or prohibit otherwise permitted activities in the sanctuaries. In addition, on January 18, 2011, the President issued Executive Order 13563, ‘‘Improving Regulation and Regulatory PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Review.’’ Under this executive order, the President directed all agencies to, among other things, conduct retrospective analysis of existing significant regulations and modify, repeal, or streamline (as deemed appropriate) any regulations that may be outmoded, ineffective, insufficient or excessively burdensome. This rulemaking is part of NOAA’s effort to carry out the President’s directive. II. Summary of the Proposed Amendments This rulemaking proposes to take the following six actions: • Consolidate regulations applicable to all sanctuaries into appropriate subparts. • Eliminate general requirements that are either outmoded or merely duplicative of existing statutory requirements. • Amend procedures for identifying and evaluating marine sites for possible national marine sanctuaries designation. • Adopt standard boundary descriptions. • Harmonize and consolidate definitions that are common to all sanctuaries. Similar definitions now found in site-specific regulations would be moved into the general requirements subpart. Where necessary, definitions will be revised to result in a single, uniform definition. • Reorganize, update, and consolidate the permitting regulations into a single subpart. • Make other conforming and administrative changes. Because the proposed changes are numerous and nuanced, NOAA is reprinting the majority of part 922 as it would read if adopted as proposed (excluding appendices and tables). NOAA is also concurrently in the scoping process to amend the regulations for several national marine sanctuaries (Florida Keys NMS, Thunder Bay NMS, Hawaiian Islands Humpback Whale NMS, and Monitor NMS) as part of separate rulemaking processes. Those proposals may be undertaken as part of the sanctuaries’ management plan review processes and are independent of the action described in this proposed rule. If necessary, NOAA will later harmonize the regulations for those national marine sanctuaries with any final rule associated with this action. NOAA proposes to revise the following sections of the regulations of subparts A through R of 15 CFR part 922 with this proposed action. E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules A. General Regulations tkelley on DSK3SPTVN1PROD with B. 1. Reorganize and Amend Subparts A Through E NOAA proposes to consolidate existing subparts A (General), B (Site Evaluation List) and sections 922.40 through 922.47 of subpart E (Regulations of General Applicability) into a new subpart A (General and Regulations of General Applicability). Consistent with the purpose of this rule, moving these subparts organizes provisions applicable to all sanctuaries into a single subpart. 2. Amend National Marine Sanctuaries Identification, Evaluation, and Designation Regulations NOAA proposes to modify the existing subpart B, section 922.10, pertaining to the Site Evaluation List (SEL), and move it to section 922.12. The SEL was established to be a list of marine sites of special national significance from which future national marine sanctuaries can be chosen. NOAA deactivated the SEL in 1995 to focus limited resources on improving management of existing sanctuaries (a decision based in part on the rapid expansion of the National Marine Sanctuary System from 1989–1994). Since 1995, only one sanctuary, Thunder Bay National Marine Sanctuary, has been added to the National Marine Sanctuary System. The ability to review new sites is necessary for NOAA to fulfill its statutory mandate to identify, designate and protect our Nation’s special marine areas. In this rulemaking, NOAA proposes to provide an additional method in which sites would be identified and considered active candidates. NOAA does not intend to reactivate the SEL through this rulemaking. Rather, NOAA would continue to work with the National Ocean Council and other stakeholders to further identify ways to better improve the effectiveness of the SEL. Specifically, the SEL would no longer be the exclusive method for NOAA to evaluate potential new sanctuaries. NOAA proposes to delete paragraph 922.10(c) to remove the requirement for sites to be selected from the SEL in order to be identified as an activate candidate. The proposed change would enhance the opportunity for public involvement in nominating sites for consideration as a national marine sanctuary. Rather than solely selecting potential sites from a periodically updated list, the public would be able to petition NOAA as the need arises or as more and better scientific information is known about a particular area. This proposed action is consistent with a VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 history of NOAA making the designation of sanctuaries (and the revisions to their management plans and regulations) an increasingly open and transparent process. This regulatory change also establishes a system of public participation and open exchange of information and ideas. NOAA also proposes to modify subparagraph (d) which would become subparagraph (c), by removing references to sites being selected from the SEL and section 922.21. This is necessary as existing section 922.21 would be eliminated by this action. The existing section 922.21, subpart C (Designation of National Marine Sanctuaries) reiterates the process for selecting and designating new national marine sanctuaries already spelled out in the NMSA. NOAA believes there is no need for this redundancy in regulations and thus proposes to remove section 922.21. NOAA also proposes to eliminate the remaining sections and reserve most of subpart C (Designation of National Marine Sanctuaries). The existing subpart C simply restate provisions contained in the NMSA, which establish guidelines, standards, and procedures that must be followed to designate a national marine sanctuary. The existing section 922.22(b) would be the only regulation retained from the existing subpart C. Section 922.22(b) currently governs issuance of fishing regulations. NOAA proposes to amend and move the existing 922.22(b) to the newly amended section 922.3. Under that regulation, the Regional Fishery Management Councils would be provided additional time to respond to the Secretary’s request for draft sanctuary fishing regulations. Specifically, the deadline would be extended from the current 120 days to a proposed 180 days. This extension would allow for at least two council meetings to convene before a response is due to the Secretary. NOAA believes this provides a more realistic timeframe for Regional Fishery Management Councils to meet, vote, and develop regulations on proposed actions. NOAA requests comments on the proposed fishing regulations. NOAA also proposes to eliminate subpart D (Management Plan Development and Implementation) because it is redundant with the NMSA. The NMSA generally provides the instruction and authority to develop management plans, conduct and promote research, monitoring, education, enforcement, and emergency contingencies. As discussed later in this preamble, rather than reserving the subpart, subpart D would be renamed and refocused on permitting procedures. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 5999 3. Use of the Term ‘‘Submerged Lands’’ NOAA proposes to revise references in the site-specific regulations from ‘‘seabed’’ to ‘‘submerged lands’’, where appropriate. This proposed change is a technical amendment, made solely for the purpose of updating the language to align with the terms of designation for many of the sanctuaries that now use the term ‘‘submerged lands’’ (Channel Islands NMS, Gulf of the Farallones NMS, Gray’s Reef NMS, Cordell Bank NMS, and Monterey Bay NMS). This change in terminology results from a change in the term of art used more commonly today than when the original sanctuary regulations were written. In addition, in converting site descriptions in the past, NOAA has stated that these technical changes to the regulations (i.e. replacing the term ‘‘seabed’’ with ‘‘submerged lands’’) was justified in order to be consistent with the NMSA. NOAA continues to believe this is the case, and doing so in this action is consistent with the purposes of this regulatory action. However, there are four sites (Flower Garden Banks NMS, Stellwagen Bank NMS, Hawaiian Islands Humpback Whale NMS, and Florida Keys NMS), whose terms of designation do not yet provide authority to regulate activities that would affect ‘‘submerged lands’’ of sanctuaries. NOAA plans to update the terms of designation in the future in a separate rulemaking action. In the interim, for those four sites, NOAA proposes to update the regulatory language to ‘‘seabed or submerged lands’’ so that the language can evolve with the updating of the terms of designation. This technical change should not result in any impacts, as NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98–498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). C. Boundary Descriptions NOAA proposes to adopt a uniform standard for describing the overall area of each sanctuary. The area for each individual sanctuary was originally calculated using varying spatial techniques. As a result, there are inconsistencies among the sanctuaries in the description of the areal estimate. Currently, six sanctuaries (Channel Islands NMS, Gulf of Farallones NMS, Gray’s Reef NMS, Cordell Bank NMS, Monterey Bay NMS, and Stellwagen Bank NMS) describe their sanctuary areas in square nautical miles; three E:\FR\FM\28JAP2.SGM 28JAP2 tkelley on DSK3SPTVN1PROD with 6000 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules sanctuaries (Flower Garden Banks NMS, Olympic Coast NMS, and the Florida Keys NMS) provide the areal estimate in a combination of square nautical miles and square kilometers; Thunder Bay NMS provides the estimate in square miles and square kilometers; Monitor NMS provides the estimate in miles; National Marine Sanctuary of American Samoa provides it in acres and square miles; and no areal estimate is given for Hawaiian Islands Humpback Whale NMS. To address these inconsistencies, NOAA proposes to describe the area of each sanctuary in square nautical miles, abbreviated as ‘‘nmi2 ’’. This means that the areal estimate for Gulf of the Farallones NMS, Gray’s Reef NMS, Cordell Bank NMS, Monterey Bay NMS, and Olympic Coast NMS, would not be changed, but the descriptor will change from nmi to nmi2. In addition, NOAA has recalculated the areal estimates for each sanctuary using consistent, system-wide areal estimation techniques and technology, resulting in an improved estimate of the size of the sanctuaries. There is no change to the boundaries of the sanctuaries. This technical correction does not affect physical, biological, or socioeconomic resources because it does not alter the sanctuary’s original size or boundaries. Sanctuary area was originally calculated at the time of designation using widely varying spatial techniques. The sanctuaries whose areal estimates are revised are: Monitor NMS, Channel Islands NMS, National Marine Sanctuary of American Samoa, Florida Keys NMS, Flower Garden Banks NMS, Stellwagen Bank NMS, and Thunder Bay NMS. Additionally, the Hawaiian Islands Humpback Whale NMS boundary size is estimated for the first time. This proposal would make the areal estimates uniform throughout the System. The proposed change is a technical amendment, made solely for the purpose eliminating inconsistencies and adopting a uniform standard. The geographic coordinates associated with the boundaries of each sanctuary would also be updated. Currently, three sanctuaries list the geographic coordinates in degrees, minutes, and seconds (e.g., ‘‘35°00′23″ N latitude and 75°24′32″ W longitude’’), five sanctuaries list the geographic coordinates in degrees and decimal minutes (e.g., ‘‘35°14.50’’ N latitude and ‘‘75°32.45’’ W’’ longitude), and another five sanctuaries list the geographic coordinates as decimal degrees (e.g., ‘‘31.362732; -80.921200’’). NOAA proposes to convert the geographic coordinates to decimal degrees as calculated using the North American Datum of 1983. The conversion would VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 also include updates to geographic coordinates for special zones of sanctuaries. NOAA believes standardizing the horizontal datum for all sites would lessen confusion arising from the current use of different datum among the various sites, reduce the risk of human error resulting from selfcalculations performed by visitors to or those traversing the sanctuary, and it would make the geographic coordinates easier for navigators to write, plot, and read. The shape, size, and location of the actual boundaries would not change. The proposed changes to the geographic coordinates will not appear in the regulatory text of this proposed rule. Rather, corresponding tables containing the proposed updated geographic coordinates can be viewed and downloaded from https:// sanctuaries.noaa.gov/library/ aslldocs.html. Copies of the tables are also available upon request at the address listed in the ADDRESSES section of this proposed rule. NOAA encourages all interested persons to review and submit public comments regarding the proposed conversion. The final rule would contain the actual conversion tables. D. Definitions 1. Definitions for Terms That Apply System-Wide NOAA proposes to revise the section that contains definitions of system-wide terms by: (1) Eliminating a term; (2) adding new terms; (3) updating some existing definitions, (4) consolidating redundant terms from the site-specific regulations; and (5) moving some sitespecific terms to the general regulations. Section 922.3 (which would be renumbered as 922.11) would be expanded to include seventeen (17) additional terms and corresponding definitions. While many existing sitespecific sanctuary regulations (subparts F through R) have distinct terms and corresponding definitions, several terms have identical or nearly identical definitions, and other terms have disparate definitions. To ensure consistent interpretation of like terms throughout the System, NOAA proposes to make several updates to definitions, as described below. a. Eliminated Term NOAA proposes to delete the term ‘‘fish wastes’’ from the general definitions because it is not used in any of the program regulations. b. New Terms NOAA proposes to define the terms ‘‘abandoning’’ and ‘‘effective date’’ in PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 the general definitions section because those terms are used throughout the program regulations but are not defined. In addition, NOAA proposes to add the term ‘‘Washington Coast treaty tribe’’ to the general definitions in section 922.11. The term was suggested as a result of consultation with the Olympic Coast NMS management plan review process. The new definition would specifically refer to any of the four tribes currently identified in the existing Olympic Coast NMS regulations and would be defined as ‘‘the Hoh, Makah, or Quileute Indian Tribes or the Quinault Indian Nation.’’ c. Terms Moved Without Change The following terms and corresponding definitions would be moved to section 922.11 without change: ‘‘clean’’, ‘‘cruise ship’’, ‘‘federal project’’, ‘‘lawful fishing’’, ‘‘lightering’’, ‘‘marine’’, ‘‘mineral’’, ‘‘National historic landmark’’, ‘‘oceangoing ship’’, ‘‘shunt’’, ‘‘State’’, and ‘‘subsistence use’’. d. Amended Definitions of Existing Terms NOAA proposes to amend the definitions of some existing terms in the general definitions section 922.11. The office reference would be updated for the definition of ‘‘Director’’, and the definitions, including statutory references, are clarified for the terms ‘‘exclusive economic zone’’, ‘‘national marine sanctuary’’, and ‘‘regional fishery management council’’. NOAA also proposes to modify the following terms to address issues and limitations identified since NOAA first promulgated the regulations: ‘‘benthic community’’, ‘‘conventional hook and line gear’’, ‘‘cultural resource’’, ‘‘historical resource’’, ‘‘Indian tribe’’, ‘‘injure’’, ‘‘person’’, ‘‘sanctuary quality’’, ‘‘sanctuary resource’’, ‘‘take or taking,’’ ’’tropical fish,’’ and ‘‘vessel.’’ ‘‘Benthic community’’ would be updated by adding ‘‘sea/ocean/lake’’ before ‘‘bottom’’ to reflect the appropriate descriptive term, depending on the sanctuary. ‘‘Conventional hook and line gear’’ would be updated by removing the phrase ‘‘from aboard a vessel or’’ from the definition, and replacing the descriptor ‘‘hind- or electrically operated, hand-held or mounted’’ with ‘‘hand, electrically, or hydraulically operated, regardless of whether mounted’’, and replacing the descriptor ‘‘fishing apparatus’’ with ‘‘fishing gear’’. These proposed changes would make the definition conform to common fishing practices (e.g., conventional hook and line fishing may occur from shore, from a bridge, etc.), and simplify E:\FR\FM\28JAP2.SGM 28JAP2 tkelley on DSK3SPTVN1PROD with Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules language describing the various fishing gear and methods. The spelling error would also be corrected. In addition, the definition would be revised to replace the term ‘‘bottom longline’’ with ‘‘longline’’. This proposed change would eliminate the word ‘‘bottom’’ from the definition. Currently the term ‘‘conventional hook and line gear’’ is used only in prohibitions of the Flower Garden Banks NMS (section 922.122(a)(7)–(10)) as an exception to the take of certain sanctuary resources. This change would clarify that the prohibition applies to all types of longlines in Flower Garden Banks NMS, and not just bottom longlines. NOAA notes that the existing definition of ‘‘conventional hook and line gear’’ applies only to ‘‘fishing gear * * * composed of a single line terminated by a combination of sinkers and hooks or lures * * * ’’ Since longline is a single line fitted with a series of offshoot lines along its entire length, it does not fit within the definition of ‘‘conventional hook and line gear’’. By removing the word ‘‘bottom’’ from the definition, NOAA hopes to eliminate confusion. This proposed change would impact only the prohibitions of Flower Garden Banks NMS and make it consistent with current fishing practices at that site. ‘‘Commercial fishing’’ would be modified to include the phrase ‘‘including any attempt to engage in such activity.’’ The proposed modification is intended to clarify that the term ‘‘commercial fishing’’ does not only apply to activity that results in the sale or trade of fish, shellfish, algae or corals, but also applies to ‘‘any attempt’’ to sell or trade fish, shellfish, algae or corals for profit. NOAA strongly believes the proposed modification would make the definition of ‘‘commercial fishing’’ consistent with current interpretation under other statutes. The terms ‘‘cultural resources’’ and ‘‘historical resource’’ would be modified by including the phrase, ‘‘but not limited to’’. In addition, for ‘‘historical resource’’, the term ‘‘cultural resources’’ is added to the list of examples. This update is intended to clarify that the examples of various resources listed in the regulations are not exhaustive, nor are they exclusive. The statutory citation for the National Historic Preservation Act is incorporated by reference in order to prevent delays associated with updating NOAA regulations should changes occur to the statute in the future. The term ‘‘fish’’ would be updated with the current language used in the Florida Keys NMS regulations at 922.162, which is consistent with the VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 definition of ‘‘fish’’ contained in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). The applicable statutory reference is also inserted so that the source of the regulatory definition may be easily identified. The term ‘‘harmful matter’’ would be modified by adding a period at the end of ‘‘Sanctuary resources or qualities.’’ The phrase ‘‘including but not limited to’’ is replaced with ‘‘Such substances or combination of substances may include, but is not limited to’’. The purposes of the two above mentioned changes are to improve readability and promote greater understanding. The term ‘‘Indian tribe’’ found in the Olympic Coast NMS and Thunder Bay NMS regulations would be moved to the system-wide regulation, and would mirror the definition currently used in Executive Order 13175. Updating this definition does not result in any change from a management perspective with regard to either existing sanctuary. The purpose is to bring the definition in line with the updated language as required by Presidential directive. NOAA proposes to update the definition of ‘‘injure’’ and clarify that the term encompasses short or long term adverse changes to any chemical, biological, or physical attribute, or viability of a ‘‘sanctuary resource’’; it would not be limited to acts that cause the loss or destruction of sanctuary resources. The proposed revision would also clarify that injury may be caused either directly or indirectly and that injury includes ‘‘the impairment of a sanctuary resource service’’. A resource service is a function performed by a sanctuary resource for the benefit of another sanctuary resource or the public (e.g., seagrass providing habitat and food for fish or a coral reef providing recreational opportunities for members of the public who enjoy snorkeling). This is consistent with current and past practices in handling cases where resources have been damaged, destroyed, or impaired. Adding the phrase, ‘‘or the impairment of a sanctuary resource’’ therefore does not change the types of cases or expand the pool of potential violations that are likely to be issued using this definition, because these damages typically do both; cause damage and impact the viability of the sanctuary resource and law enforcement officers already treat these cases consistently. Thus, the change reflects common practice in determining and assessing injuries under the NMSA and is, therefore, intended only as clarification. NOAA proposes to update ‘‘sanctuary quality’’ and ‘‘sanctuary resource’’ by PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 6001 adding clarifying text (e.g. ‘‘national marine’’ inserted before ‘‘sanctuary’’), and in the case of sanctuary resource, the definition would complement that found in the NMSA and would include ‘‘maritime heritage, cultural, archeological, and scientific’’ resources. NOAA would also update the definitions by replacing ‘‘the substratum of the area of the Sanctuary’’ with ‘‘waters of the sanctuary, the submerged lands of the sanctuary’’. The term ‘‘seabirds’’ would be replaced with ‘‘birds’’. This is to account for the fact that, as with most migratory creatures, birds may transit through the sanctuary during the course of their life span. When birds—seabirds, migratory birds, or water fowl—transit through the sanctuary they become part of the sanctuary resources that fall under the protection of NOAA consistent with the NMSA. NOAA also proposes to incorporate the phrase, ‘‘or parts or products thereof’’ after ‘‘any living or non-living resource of a national marine sanctuary * * *’’ This was added to ensure that protected resources are not dismembered and removed. It does not change the intent of the original protections, but when the original regulations were written, it was not common to include the term of art ‘‘or parts thereof’’ in protective language, as is commonly the case today. ‘‘Tropical fish’’ would be updated by replacing the phrase ‘‘for aquaria purposes’’ with ‘‘in the aquarium trade’’. The proposed change makes grammatical correction and updates the terminology to ‘‘aquarium trade’’, which is currently used. This revised definition of ‘‘tropical fish’’, however, would not apply to the Florida Keys NMS. NOAA intends to continue to maintain a site-specific definition of ‘‘tropical fish’’ in the Florida Keys NMS. The state has managed a fishery for marine life species, including ‘‘tropical fish’’ for many years. NOAA has recognized this in Florida Keys NMS site-specific regulations and has historically maintained a separate definition of ‘‘tropical fish’’ for the Florida Keys NMS. Section 922.162 incorporates the Florida Administrative Code, and would be modified consistent with the Florida Marine Life rule. The proposed definition would read: ‘‘Tropical fish means any species included in 68B–42 of the Florida Administrative Code, or any part thereof.’’ ‘‘Vessel’’ would be modified to add at the end of the definition additional nonexhaustive list of examples taken from the Florida Keys NMS definition (e.g. ‘‘the term would include, but would not be limited to * * *’’). This clarification E:\FR\FM\28JAP2.SGM 28JAP2 6002 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules would be useful for law enforcement purposes by providing additional guidance, but does not substantively change the original meaning of the term, which lacked additional examples. e. Consolidated Terms for Definitions That Varied NOAA proposes to adopt a single definition for the following three terms, and consolidate them into section 922.11: ‘‘[stowed and] not available for immediate use’’, ‘‘motorized personal watercraft (MPWC)’’, and ‘‘traditional fishing’’. Currently, there are two definitions for the term ‘‘stowed and not available for immediate use’’ and a separate definition for ‘‘not available for immediate use’’. There are also four different definitions, each, for the terms ‘‘motorized personal watercraft’’ and ‘‘traditional fishing’’. Stowed and Not Available for Immediate Use There are two nearly identical definitions of the term, ‘‘stowed and not available for immediate use’’ and a separate definition for ‘‘not available for immediate use’’ that apply to three sites (Channel Islands NMS, Florida Keys NMS, and Gray’s Reef NMS). The operational part of each definition is identical, but the illustrations of what constitutes fishing gear being stowed and not available for immediate use differ among the various sites. The definition for Channel Islands NMS is the most comprehensive and is being proposed for all three sites with a slight clarification that the term applies to fishing gear. This proposed action would not change in meaning or application of the term for law enforcement purposes. The term, ‘‘stowed and not available for immediate use’’ would be defined as follows: tkelley on DSK3SPTVN1PROD with Stowed and not available for immediate use means fishing gear not readily accessible for immediate use, e.g., by being fishing gear 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). Motorized Personal Watercraft (MPWC) NOAA proposes to adopt a definition for MPWC very similar to the current Monterey Bay NMS definition. The proposed definition slightly differs from Monterey Bay regulatory definition in two respects. First, the proposed definition has been enumerated in order to clearly show that NOAA has adopted an integrated three-part definition. Second, the design characteristics have been clarified in part 1 of the definition in order to better identify the vessels of VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 concern to NOAA. The proposed definition would read as follows: Motorized personal watercraft (MPWC) means (1) any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the motor of the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel hull; (2) any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard’s Maximum Capacities Marking for Load Capacity regulation found at 33 CFR Parts 181 and 183, except submarines; or (3) any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive. NOAA proposes to adopt this definition of MPWC for all sanctuaries because it is the most comprehensive and rigorous of the various definitions used for other sanctuaries. This definition captures key elements of the operational definition adopted by Channel Islands NMS, Gulf of the Farallones NMS, and the Florida Keys NMS. However, it differs from those other sanctuary definitions by omitting reference to particular hull design, length, or propulsion system which could be rendered obsolete and ineffective over time due to the rapidly evolving MPWC design changes. Rather, the definition is progressive and is intended to cover a full range of existing (e.g., Kawasaki Corporation’s Jet Ski line, jet bikes, hovercraft, air boats, and race boats) and future motorized personal watercraft that could create conflicts with other sanctuary users and pose a threat to sanctuary resources and qualities. The threat arises because the design features of MPWC (e.g., small size, shallow draft, instant thrust, and ‘‘quick reflex’’) increase the craft’s maneuverability and allow riders to operate nearshore and access shallow water areas and water areas adjacent to rocky shores, reefs, and remote beaches that would commonly pose a hazard to conventional craft operating at comparable speeds. These areas are also often used by marine mammals and sea birds as breeding, nursing, or resting areas. The marine mammals and sea birds are often either unable to avoid these craft or are frequently alarmed enough to significantly modify their behavior such as cessation of feeding or abandonment of young. MPWC also tend to operate in traditional surfing locations and have historically created conflicts with other users. Of the various definitions, the Monterey Bay NMS regulatory definition best identifies the various vessels of concern to NOAA while avoiding an excessively complicated and lengthy definition for PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 MPWC. NOAA’s rationale and authority for adopting the Monterey Bay National Marine Sanctuary’s is further explained in 73 FR 70488, 70499–70501, Nov. 20, 2008 and is hereby incorporated in this notice. NOAA believes the proposed definition contains an element of flexibility so that should one prong become obsolete by design innovation, the remaining two prongs would still apply and preserve the protection intended by the regulations. Additionally, because the proposed definition is consistent with the definition applied in national parks, NOAA does not foresee enforcement problems in sanctuaries located adjacent to areas managed by the National Park Service. NOAA also believes the proposed definition would allow for improved enforcement at other sites throughout the System, as it has in Monterey Bay NMS. NOAA has prepared an environmental assessment in conjunction with this proposed change. Traditional Fishing There are three different definitions of the term ‘‘traditional fishing,’’ adopted by Florida Keys NMS, Stellwagen Bank NMS, and Thunder Bay NMS. The only difference among these regulations is the historical reference point. Some definitions refer to the effective date of Sanctuary designation, whereas others refer to fishing activities specifically identified in the environmental impact statement and management plan for the sanctuary. To avoid confusion, NOAA proposes to consolidate the existing definitions. In formulating a single definition of ‘‘traditional fishing’’, NOAA recognizes that Florida Keys NMS coordinates with the State of Florida in the enforcement of prohibited activities and must also implement the Florida Administrative Code among other competing interests. Therefore, it is important to distinguish activities that were customarily conducted prior to the designation of any sanctuary, and those that were contemplated in the original designation and environmental documents of the designation. NOAA believes this distinction would be important for all sanctuaries, and not just Florida Keys NMS. Thus, NOAA proposes to adopt the Florida Keys NMS definition for ‘‘traditional fishing’’ for all sanctuaries using this term, modified as follows: Traditional fishing means those commercial or recreational activities that were customarily conducted within the Sanctuary before its designation, as identified in the Sanctuary’s original final environmental impact statement and E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules management plan. For Thunder Bay National Marine Sanctuary and Underwater Preserve, traditional fishing means those commercial, recreational, and subsistence fishing activities that were customarily conducted within the sanctuary prior to its designation. NOAA also recognizes that subsistence fishing may occur at other sites such as Olympic Coast NMS and National Marine Sanctuary of American Samoa, however, we believe that these activities are already covered by the existing definition of subsistence use. Thus, we do not believe the proposed changes alter any previously held rights in these areas or alter fishing regulations in any manner. f. Consolidated Terms With Identical or Nearly Identical Definitions In addition to the consolidated definitions above, NOAA has identified other minor differences in a few other definitions that we propose to consolidate in the system-wide regulations. NOAA proposes minor changes to the following four definitions: Deserting The term ‘‘deserting’’ would be moved from Monterey Bay and Gulf of the Farallones national marine sanctuaries regulations to the new definition section at 922.11, and amended to include the following descriptors, ‘‘wrecked, junked, or in a substantially dismantled condition.’’ These descriptors are intended to provide guidance to law enforcement in applying the regulations, and assist the public in better understanding the regulations. The term is currently used only in the prohibition for these two sites. While adding the descriptors ‘‘wrecked, junked, or in a substantially dismantled condition’’ could be interpreted to expand the universe of activities that constitute deserting a vessel, NOAA’s intent is to provide additional guidance to persons that may identify with these terms in addition to the existing examples of ‘‘aground or adrift.’’ tkelley on DSK3SPTVN1PROD with Graywater NOAA proposes to incorporate into the sanctuary program regulations the definition of ‘‘graywater’’ established under section 312 of the Federal Water Pollution Control Act (FWPCA, 33 U.S.C. 1322 et seq.). Section 312 (a)(11) of the FWPCA defines ‘‘graywater’’ to include galley, bath and shower water. Many site specific regulations already prohibit the discharge of galley, bath and shower water. Therefore, NOAA believes it improves the definition to VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 explicitly refer to the FWPCA, which is the statutory source of the definition. Seagrass ‘‘Seagrass’’ would be modified only by consolidating all the examples, without change, from the sanctuaries that list them following the definition. Take or Taking The definition of ‘‘Take or taking’’ would be reformatted and updated. NOAA proposes to keep the second half of the existing definition intact with some modifications. Specifically, the types of resources protected would not be limited by the regulations. Currently, the definition of ‘‘take or taking’’ refers to the protection of marine mammals, sea turtles, and seabirds. The regulations were never intended to only protect these three classes of sanctuary resources. The three classes of sanctuary resources have been replaced with the broader term ‘‘sanctuary resources’’. This proposed change is intended to clarify that any living or non-living resource of a national marine sanctuary is protected as contemplated by the NMSA. The proposed definition would also incorporate by reference the Endangered Species Act (16 U.S.C. 1531 et seq. (ESA)), the Marine Mammal Protection Act, as amended (16 U.S.C. 1361 et seq. (MMPA)) and the Migratory Bird Treaty Act, as amended (16 U.S.C. 703 et seq. (MBTA)). Eight sanctuaries (Channel Islands NMS, Gulf of the Farallones NMS, Cordell Bank NMS, Monterey Bay NMS, Stellwagen Bank NMS, Olympic Coast NMS, Florida Keys NMS, and Hawaiian islands humpback Whale NMS) currently incorporate these statutes in their site-specific regulations. As such, the proposed change serves as a consolidation of those regulations. Instead of crafting a separate definition of ‘‘take or taking’’ with respect to the sanctuary System, NOAA believes it would be most helpful for enforcement personnel to apply a consistent interpretation of the three statutes. Law enforcement would be the best and most well versed on any changes that occur to these definitions over time. By incorporating these statutes into the national definition by reference, NOAA would avoid unnecessary delays in making the statutory updates to ONMS regulations. g. Other Terms That Would Remain in Site-Specific Regulations There are several sites that will retain some site-specific terms, such as the Florida Keys NMS and Olympic Coast NMS, as mentioned above. NOAA also notes that the newly adopted definition of ‘‘live rock’’ in the NMS of American PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 6003 Samoa will also be separate and distinct from a long-standing definition of ‘‘live rock’’ in the Florida Keys NMS. NOAA intends to continue to maintain a sitespecific definition of ‘‘live rock’’ in the NMS of American Samoa. This is because the definition used in that site incorporates both the American Samoan code (which specifically includes basalt rock under Title 24, Chapter 9), and also adopts the term from the Western Pacific Regional Fisheries Management Council’s Coral reef Ecosystems Fishery Management Plan (69 FR 8336, Feb. 24, 2004). Similarly, the Florida Keys NMS definition is derived from the FNMSPA. For these reasons, NOAA will recognize and maintain a separate definition for this term in both the NMS of American Samoa and in the Florida Keys NMS. D. Permitting Regulations 1. Background NOAA proposes to update and consolidate its sanctuary permitting procedures and requirements, which would be set forth in a new section named ‘‘Subpart D—National Marine Sanctuary Permitting.’’ Currently, ONMS permit review criteria and procedures are located in several different parts of the regulations: 922.48 National Marine Sanctuary permits— application procedures and issuance criteria; 922.49 Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity; 922.50 Appeals of administrative action; and in subparts F through R in sanctuary-specific regulations. In general, the proposed rule would consolidate permitting regulations, and update and clarify ONMS permitting authority. Specifically, the proposed action would: a. Consolidate and amend general permit types (922.30); b. Add a new section on the issuance of special use permits (922.31); c. Clarify application requirements and procedures (922.32); d. Consolidate and amend permit review criteria (922.33); e. Clarify permit amendment procedures (922.34); f. Add a new section on the imposition of special use permit fees (922.35); g. Clarify authorizations authority (922.36); and h. Update and amend the appeals processes (922.37). The proposed rule would: eliminate redundancy, thereby significantly shortening site-specific permitting regulations; make permitting criteria E:\FR\FM\28JAP2.SGM 28JAP2 6004 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with and procedures uniform across sites, to the extent appropriate; resolve unnecessary inconsistencies; and update and clarify regulations. 2. General Permit Categories ONMS has three ways by which it may authorize otherwise prohibited activities: general permits, special use permits, and authorizations. General permits are divided into several categories that correspond with the primary purpose of the proposed activity. NOAA proposes to consolidate all general permit categories into one section (922.30) and provide a single description of each permit category. NOAA proposes to eliminate some sitespecific general permit categories that can adequately be addressed in one or more of the general permit categories. NOAA also proposes to move some sitespecific general permit categories into this consolidated section. Most sanctuary regulations have at least three categories of general permits: (1) Management; (2) education; and (3) research. However, the language describing these categories is not consistent among the sites. NOAA proposes to make these three general permit categories applicable to all sanctuaries, consolidate these categories into a single section, and provide a single description of each permit category. System-wide, this change will slightly expand the activities eligible for a permit. All sanctuary regulations currently allow the issuance of a general permit for research. Monitor National Marine Sanctuary (Monitor NMS) does not currently allow the issuance of general permits for education and management, so these would be new activities for Monitor NMS. Other categories of general permits at some sanctuaries include: salvage associated with an air or marine casualty or of a historic shipwreck; restoration of natural habitats, populations, or ecological processes; and response to the imminent risk of a sanctuary resource injury. These activities will be considered under a category determined appropriate for the proposed action (e.g., management or research). Sanctuary general permits for management are commonly used for activities that further the management or resource protection objectives identified at a particular site. Thus, proposed restoration and incident response activities would typically qualify for a general permit for management. Historic shipwreck salvage may qualify for a general permit for research or management depending on the specific proposed action. Salvage associated with an air or marine VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 casualty would likely qualify for a general permit for management. Thus, the activity of salvage would continue to qualify for a general permit, although it would no longer be a separate category of general permit. In addition, some sanctuaries have site-specific categories of general permits. Four site-specific categories of general permits would be moved to this section, but would only apply to the specified sanctuary. The four sitespecific general permit categories which will be moved into the general permit section are: jade removal in Monterey Bay NMS; tribal self-determination in Olympic Coast NMS; maritime heritage in Florida Keys NMS; and otherwise furthering the purposes of the Florida Keys NMS. It should be noted that the tribal self-determination permit category for Olympic Coast NMS is specific to activities that promote or enhance treaty right activities. Activities necessary for the exercise of treaty rights are exempt from Olympic Coast NMS regulatory prohibitions, and thus do not require a permit. 3. Review Criteria NOAA proposes to consolidate and amend permit review factors or criteria. All sanctuaries with permitting authority currently have a list of factors or criteria that the Director must consider in determining whether to issue a permit. The list of factors or criteria considered by the Director is not consistent across all sites, nor is the regulatory text for the same factor consistent. Additionally, when determining eligibility for a permit, sanctuaries vary as to whether sitespecific factors or criteria must be met or simply considered. To achieve greater consistency, NOAA proposes a single list of nine review criteria. Eight criteria would be applicable to all sanctuaries, while one would be unique to Olympic Coast NMS (the activity as proposed shall not adversely affect Washington Coast treaty tribes). NOAA would make the review criteria affirmative findings that must be met before the Director may issue a permit. This approach is consistent with the approach taken under the existing regulations for Florida Keys and Gray’s Reef NMS. This approach is also consistent with the common practice employed by the Director at the other sites within the system. The Olympic Coast NMS site-specific permitting regulations presently include a permit review criterion that the Director must consider the impacts on tribes in the evaluation of permit applications. In order to retain the intent while changing the criterion into PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 an affirmative finding consistent with the other general permit criteria, NOAA proposes to modify the criterion to require that proposed permit activities shall not adversely affect Washington Coast treaty tribes. NOAA also proposes to eliminate sitespecific impact thresholds for permit issuance. In addition to review factors or criteria, four sites (National Marine Sanctuary of American Samoa, Monterey Bay, Stellwagen Bank and Olympic Coast national marine sanctuaries) have a regulatory impact threshold that must be satisfied for a permit to be issued. Of these sanctuaries, only Monterey Bay and Stellwagen Bank have the same impact threshold. The three different types of impact thresholds do not provide clear and well-defined limits, as was originally intended. Without clear limits, the determination as to whether an action meets or exceeds a threshold can be murky. NOAA believes that this defeats the purpose for which thresholds were originally established. These site-specific impact thresholds would be eliminated in favor of the new review criteria stated as affirmative findings. The review criteria specific to the acceptable level of impact to sanctuary resources and qualities would be: ‘‘the expected end value of the activity to the furtherance of the national marine sanctuary goals and purposes must outweigh any potential adverse impacts on sanctuary resources and qualities.’’ NOAA believes that establishing a consistent set of regulatory review criteria written as affirmative findings and eliminating site-specific impact caps would enable better management practices across the System. In theory, permit reviewers for nine sites would now be required to make affirmative findings, rather than being allowed merely to consider the review criteria. However, in practice, this would not be new. The four sites with impact thresholds are among the nine that will now have affirmative findings included as part of their permit issuance procedures. 4. Appeals NOAA proposes to amend the administrative process for appealing sanctuary permit decisions. First, NOAA proposes that only permit applicants and permittees would be allowed to file an administrative appeal of a permit decision. Currently, ‘‘any interested party’’ can appeal permitting decisions for Monitor, Channel Islands, Gulf of the Farallones, Gray’s Reef, National Marine Sanctuary of American Samoa, and Cordell Bank national E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with marine sanctuaries. For the six other sanctuaries with permitting authority, only permit applicants and permittees can appeal. NOAA has researched the history of the regulations governing administrative appeal of permitting decisions and there appears to be no identifiable reason for this inconsistency. Moreover, NOAA is unaware of any appeal that has ever been filed by a person other than a permittee or applicant. The lack of a broader appeal base has never been contested in the other six sanctuaries that limit the appeal pool only to applicants and permittees. For all the reasons set forth above, to eliminate inconsistencies, and to make this regulation apply more uniformly, NOAA proposes to restrict the potential appellants to permittees and permit applicants under a new section 922.37 and make the regulations applicable to all sites. NOAA also proposes to eliminate the requirement that the Assistant Administrator (AA) hold an informal hearing for administrative appeals for the Monitor NMS. All other sanctuary regulations provide the AA with discretion to determine whether an informal hearing is necessary. This level of discretion would now be extended to the AA with regard to the Monitor NMS. 5. Special Use Permits and Fees NOAA proposes to add a new section to the system-wide permit regulations that addresses the authority of the Secretary of Commerce (delegated to the ONMS Director) to issue special use permits (SUPs) as established by Section 310 of the NMSA. Although all sanctuaries currently have authority to issue SUPs, the only sanctuary that currently has regulations that specifically provide for them is the Florida Keys NMS. NOAA proposes to use the existing Florida Keys NMS regulations (922.166(d)) as a basis for the new system-wide regulation. SUPs can be used to authorize the conduct of specific activities in a sanctuary if such authorization is necessary (1) to establish conditions of access to and use of any sanctuary resource or (2) to promote public use and understanding of a sanctuary resource. Examples of activities that qualify for a SUP include continued presence of submarine cables beneath or on the seabed of a sanctuary, disposal of cremated human remains in a sanctuary, and commercial operation of aircraft below the minimum altitude in restricted zones of a sanctuary. Other VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 activities that qualify for a SUP are set forth in the Federal Register (71 FR 4898; Jan 30, 2006). Categories of SUPs may also be changed through public notice. The NMSA allows the assessment and collection of fees for the conduct of any activity under a SUP. Fees would be addressed in the new section 922.35 of these regulations. The fees collected could be used to recover the administrative costs of issuing the permit, the cost of implementing the permit, and the fair market value of the use of sanctuary resources. 6. Application Requirements and Amendment Procedures NOAA proposes to make minor clarifications to the section on application requirements and procedures. These requirements are for the most part unchanged, with the exception of revising the section to read more clearly. The proposed changes would clarify that the Director may refuse to further consider an incomplete application. Applications are deemed incomplete if an applicant fails to submit required or requested information, pay outstanding penalties, or comply with any permit previously issued to the applicant. In addition, the language in new section 922.34 governing permit amendments has been revised to clarify that NOAA does not issue ‘‘renewal’’ permits, but has a longstanding practice of ‘‘amending’’ the expiration dates of existing permits. While NOAA is not proposing to set a deadline for submission of amendments before permit expiration, we generally recognize that a reasonable time frame to conduct adequate review would be 30 days prior to the date of expiration, with some exceptions, such as when an environmental assessment or environmental impact statement would be required or when the scope of the proposed action or its impacts are significantly different from the original proposal. 7. Authorizations ONMS regulations currently at 922.49 provide the Director with authority to allow an otherwise prohibited activity ‘‘if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization.’’ This form of approval has become known as an ‘‘authorization’’ and is used by six sanctuaries: Flower Garden Banks, Monterey Bay, Stellwagen Bank, Olympic Coast, Florida Keys, and PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 6005 Thunder Bay. For the most part, these are sites that significantly overlap state waters or other federal agencies’ jurisdictions, or that have a significant amount of coastline adjacent to the site. Given this, these sites frequently host activities that require multiple state or federal permits. The authorization process was intended to streamline regulatory requirements by reducing the need for multiple permits. NOAA proposes to remove unclear and outdated language from section 922.49, revise the language, and renumber the regulation as section 922.36. NOAA is also proposing to require that the Director consider the review criteria at 922.33(a)(1)–(7) in evaluating authorization requests. It is already common practice to use the permit review criteria as guidance in deciding whether to issue authorizations. The regulations at 922.36(c)(2) would make the consideration of the permit review criteria by the Director mandatory. In addition, section 922.36(c)(3)(iii) would clarify that the Director has authority to issue an authorization containing mandatory terms and conditions. E. Other Conforming and Administrative Changes —Under 922.163(f), outdated references would be removed —Under 922.166, references are proposed to be updated from ‘‘historical’’ to ‘‘maritime heritage’’ resources, and a correction is made to appropriately update the state of Florida and Florida Keys NMS ‘‘Submerged Cultural Resource (SCR)’’ programmatic agreement to simply, Programmatic Agreement, or ‘‘PA’’ —Address corrections are made for several permitting sections, as sanctuary offices have changed or moved (for Stellwagen Banks NMS, Olympic Coast NMS, and Florida Keys NMS). —922.194 is no longer applicable, and therefore NOAA proposes to remove the text and reserve the section. As an aid to the reader in understanding the proposed changes, we include the following table of specific changes: Note: The revised geographic coordinates discussed in this notice can be viewed and downloaded from https:// sanctuaries.noaa.gov/library/alldocs.html, or obtained upon request at the address listed in the ADDRESSES section of this proposed rule. E:\FR\FM\28JAP2.SGM 28JAP2 6006 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Current regulations Proposed change Subpart A ............................................................ Sec. 922.1 ........................................................... Revised to include amended text from consolidated from the existing Subparts A, D and E–R. Revised to include amended text consolidated from the existing sections 922.1, 922.4; and subpart E, section 922.40. Revised. Renumbered 922.11 and revised to add some terms from the site-specific regulations (F–R), delete some outmoded terms, rename some terms, and amend the definition of some terms. Consolidated into newly amended subpart A. Renumbered Sec. 922.1 and revised. Reserved. Consolidated into newly amended subpart A. Renumbered Sec. 922.12 and revised. Reserved. Removed. Sec. 922.2 ........................................................... Sec. 922.3 ........................................................... Sec. 922.4 ........................................................... Subpart B ............................................................ Sec. 922.10 ......................................................... Subpart C ............................................................ Sec. 922.20, 922.21, 922.23, 922.24, and 922.25. Sec. 922.22 ......................................................... Subpart D ............................................................ Sec. 922.30 and 922.31 ..................................... Subpart E ............................................................ Sec. 922.40 ......................................................... Sec. 922.41 ......................................................... Sec. 922.42 ......................................................... Sec. 922.43 ......................................................... Sec. 922.44 ......................................................... Sec. 922.45 ......................................................... Sec. 922.46 ......................................................... Sec. 922.47 ......................................................... Sec. 922.48 through 922.50 ............................... Subpart F ............................................................ Sec. 922.60 ......................................................... Sec. 922.62 ......................................................... Subpart G ........................................................... Sec. 922.70 ......................................................... Sec. 922.71 ......................................................... Sec. 922.74 ......................................................... Subpart H ............................................................ Sec. 922.80 ......................................................... Sec. 922.81 ......................................................... Sec. 922.82 ......................................................... Sec. 922.83 ......................................................... Subpart I ............................................................. Sec. 922.90 ......................................................... Sec. 922.91 ......................................................... Sec. 922.92 ......................................................... Sec. 922.93 ......................................................... Subpart J ............................................................ Sec. 922.101 ....................................................... Sec. 922.102 ....................................................... Sec. 922.103 ....................................................... Sec. 922.107 ....................................................... tkelley on DSK3SPTVN1PROD with Subpart K ............................................................ Sec. 922.110 ....................................................... Sec. 922.111 ....................................................... Sec. 922.112 ....................................................... Sec. 922.113 ....................................................... Subpart L ............................................................ Sec. 922.120 ....................................................... Sec. 922.121 ....................................................... Sec. 922.122 ....................................................... VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 Removed paragraph (a). Paragraph (b) consolidated into newly amended subpart A. Renumbered Sec. 922.3 and revised. Revised and Renamed ‘‘Subpart D—National Marine Sanctuary Permits’’. Removed. Reserved. Consolidated into newly amended subpart A. Renumbered Sec. 922.1 and revised. Consolidated into newly amended subpart A. Renumbered Sec. 922.4. No other changes made to text. Consolidated into newly amended subpart A. Renumbered Sec. 922.5 and revised. Consolidated into newly amended subpart A. Renumbered Sec. 922.6. No other changes made. Consolidated into newly amended subpart A. Renumbered Sec. 922.7 and internal cross references updated. No other changes made. Consolidated into newly amended subpart A. Renumbered Sec. 922.8 and revised. Consolidated into newly amended subpart A. Renumbered Sec. 922.9. Paragraph (a) consolidated into newly amended subpart A. Renumbered Sec. 922.10. Paragraph B removed. Consolidated into newly amended subpart D. Renumbered Sec. 922.30 through 922.37 and revised. Retained. Revised areal estimate and geographic coordinates. Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Updated abbreviation of areal estimate. Reserved. Entire section revised and consolidated into newly amended subpart A, Sec. 922.11. Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Updated abbreviation of areal estimate. Revised and consolidated terms into newly amended subpart A, Sec. 922.11 consistent with proposed changes. No changes made to terms retained in this section. Updated internal cross reference in paragraph (c). Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Updated abbreviation of areal estimate. Revised and consolidated terms into newly amended subpart A, Sec. 922.11 consistent with proposed changes. No changes made to terms retained in this section. Updated internal cross reference in paragraph (a). Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Revised areal estimate and geographic coordinates. Revised and consolidated terms into newly amended subpart A, Sec. 922.11 consistent with proposed changes. No changes made to terms retained in this section. Update internal cross reference in paragraph (e) Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Updated abbreviation of areal estimate. Reserved. Entire section consolidated into newly amended subpart A, Sec. 922.11. Updated internal cross reference in paragraph (b). Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Revised areal estimate. Revised consistent with proposed changes. Paragraph (a)(4) updated by adding ‘‘seabed or submerged lands’’. Paragraph (a)(7) revised by replacing ‘‘bottom longlines’’ with ‘‘longlines’’. Updated internal cross reference in paragraphs (f), (g) and (h) to conform to proposed changes. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules 6007 Current regulations Proposed change Sec. 922.123 ....................................................... Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Address updated. Revised geographic coordinates. Retained. Updated abbreviation of areal estimate. Revised and consolidated terms into newly amended subpart A, Sec. 922.11 consistent with proposed changes. The abbreviation of the areal estimate for Davidson Seamount Management Zone has been updated to conform to proposed changes. No changes made to terms retained in this section. Updated internal cross reference in paragraphs (d), (e) and (f) to conform to proposed changes. Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Retained. Updated abbreviation of areal estimate, and revised geographic coordinates. Revised and consolidated terms into newly amended subpart A, Sec. 922.11 consistent with proposed changes. Updated cross reference in term retained in this section. Paragraph (a)(3) updated by adding ‘‘seabed or submerged lands’’. Updated internal cross reference in paragraphs (d), (e) and (f) to conform to proposed changes. Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Address updated. Revised geographic coordinates. Retained. Revised areal estimate. Revised and consolidated terms into newly amended subpart A, Sec. 922.11 consistent with proposed changes. No changes made to terms retained in this section. Paragraph (a)(3) updated by adding ‘‘seabed or submerged lands’’. Updated internal cross reference in paragraphs (e), (g) and (h) to conform to proposed changes. Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. Address updated. Revised geographic coordinates. Retained. Revised areal estimate. Revised and consolidated into Subpart A, Sec. 922.11 to conform to proposed changes. One administrative change is made to a single term retained in this section. Paragraph (a)(3) updated by adding ‘‘seabed or submerged lands’’. Updated internal cross reference in paragraphs (b), (c) and (f) to conform to proposed changes. Removed outdated reference in paragraph (f) which provided an exception for discharge of sewage. Updated internal cross reference in paragraph (e)(1)(iii). Revised and consolidated into newly amended subpart D. The remaining language updated by replacing ‘‘historical’’ with ‘‘maritime heritage’’ resources and ‘‘Submerged Cultural Resource (SCR) programmatic agreement is replaced with ‘‘Programmatic Agreement’’ or ‘‘PA’’. Updated contact phone number. Revised geographic coordinates. Appendix A ......................................................... Subpart M ........................................................... Sec. 922.130 ....................................................... Sec. 922.131 ....................................................... Sec. 922.132 ....................................................... Sec. 922.133 ....................................................... Subpart N ............................................................ Sec. 922.140 ....................................................... Sec. 922.141 ....................................................... Sec. 922.142 ....................................................... Sec. 922.143 ....................................................... Appendix A ......................................................... Subpart O ........................................................... Sec. 922.150 ....................................................... Sec. 922.151 ....................................................... Sec. 922.152 ....................................................... Sec. 922.153 ....................................................... Appendix A ......................................................... Subpart P ............................................................ Sec. 922.161 ....................................................... Sec. 922.162 ....................................................... Sec. 922.163 ....................................................... Sec. 922.164 ....................................................... Sec. 922.166 ....................................................... Sec. 922.167 ....................................................... Appendix I, II, IV through VII .............................. Subpart Q Sec. 922.181 ....................................................... Sec. 922.182 ....................................................... Appendix A ......................................................... Subpart R Sec. 922.190 ....................................................... Sec. 922.191 ....................................................... Sec. 922.194 ....................................................... Sec. 922.195 ....................................................... tkelley on DSK3SPTVN1PROD with III. Request for Comments NOAA requests comments on this proposed rule. In particular, NOAA seeks to determine whether the proposed changes effectively streamline or otherwise improve the regulations and requests input on the preliminary questions listed below. These questions are not intended to be exhaustive. You may raise other issues or make suggestions unrelated to these questions if you believe it would help NOAA develop better regulations. In addition, VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 Areal estimate provided. Revised definition of ‘‘Alteration of the seabed’’. Updated internal cross reference in paragraphs (b). Revised geographic coordinates. Revised areal estimate. Definition of ‘‘traditional fishing’’ removed and consolidated into Subpart A, Sec. 922.11 to conform to proposed changes. No changes made to terms retained in this section. Removed/Reserved. Revised and consolidated into newly amended subpart D. The remaining language updated to conform to proposed changes. NOAA invites you to provide comments on how to make the regulations easier to understand. (1) Has NOAA identified those sections of the regulations that can and should be changed, streamlined, consolidated, or removed? (2) Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulations easier to understand? (3) Are there additional regulations beyond those that NOAA proposes to PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 change in this action that have become unnecessary and could be amended or withdrawn without impairing NOAA’s sanctuary regulatory program? (4) Are there additional regulations within the sanctuary program regulations that NOAA has not identified in this document as proposed changes, and that have become outdated? If so, how can they be modernized to better accomplish their regulatory objectives? E:\FR\FM\28JAP2.SGM 28JAP2 6008 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules (5) Has NOAA efficaciously identified and made proposed amendments to the regulations to improve effectiveness? Are there additional regulations that are still necessary, but that have not operated as well as expected such that a modified, stronger, or slightly different approach is justified? (6) Are there regulations that are working well that can be expanded or used as a model to fill gaps in sanctuary regulatory programs? (7) Are the requirements in the regulations clearly stated? Do the regulations contain technical language or jargon that is not clear? IV. Classification A. National Environmental Policy Act This proposed rule contains both technical and substantive changes to ONMS regulations. None of the proposed changes are expected to have significant environmental impacts as defined in the regulations implementing the National Environmental Policy Act. However, NOAA is preparing a draft environmental assessment to analyze the potential environmental impacts of this proposed rulemaking and will make that analysis available for public comment. Copies will be made available at the address and Web site listed in the ADDRESSES section of this proposed rule. Responses to comments received on this proposed rule will be published in the final environmental assessment and preamble to the final rule. B. Executive Orders 12866 and 13563 This proposed rule has been determined to not be significant within the meaning of Executive Order 12866. Further, this initiative is part of NOAA’s effort to carry out the President’s directive under Executive Order 13563 for retrospective regulatory review. tkelley on DSK3SPTVN1PROD with C. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule was developed after consultation and collaboration with representatives from the Makah, Hoh, and Quileute Indian Tribes and the Quinault Indian Nation through their membership on the Olympic Coast Intergovernmental Policy Council (IPC) and the Olympic Coast NMS Advisory Council. NOAA has represented to the IPC that this regulatory action will not significantly change existing regulations, and may actually improve tribal input on permitting actions conducted in or adjacent to the Olympic Coast NMS. The IPC and tribal government representatives on the Olympic Coast NMS Advisory Council VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 were active participants in a more significant rulemaking conducted in association with the management plan review and regulatory update to the Olympic Coast NMS regulations. The language that NOAA adopted, through extensive public participation and government to government consultation with the tribes, has been fully incorporated without change in the regulatory language reflected within this rule. The new changes proposed include adding a defined term ‘‘Washington Coast treaty tribe’’, moving the tribal self-determination permit category to the national permitting regulations, modifying a permit review criterion to require that permitted activities shall not have an adverse effect on Washington Coast treaty tribes, and adding the consideration of all permit review criteria (including the effect of the activity on tribes) to the authorizations procedures. NOAA proposes to add the term ‘‘Washington Coast treaty tribe’’ to the general definitions in section 922.11. The term was suggested as a result of consultation with the Olympic Coast NMS management plan review process, and therefore it is not anticipated there will be any objection to this new term. The new definition would specifically refer to any of the four tribes currently identified in the existing Olympic Coast NMS regulations and would be defined as ‘‘the Hoh, Makah, or Quileute Indian Tribes or the Quinault Indian Nation.’’ For Olympic Coast NMS specifically, permits that further tribal selfdetermination are retained, without change from the recent regulatory process. NOAA proposes, however, to move them to the new permitting section under subpart D, without change. The permit category would continue to read: ‘‘promote or enhance tribal self-determination, tribal government functions, the exercise of treaty rights or the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of a tribal member.’’ The permit review consideration of the impacts of permitted activities on tribes would now require permit reviewers to report an affirmative finding that permitted activities would not adversely affect Washington Coast treaty tribes. This increases protection of the Washington Coast treaty tribes when compared to existing regulations that requires permit reviewers to only ‘‘consider’’ impacts to tribes. NOAA also proposes to eliminate the Olympic Coast NMS site-specific impact threshold, which establishes that PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 permitted activities must not ‘‘substantially injure’’ sanctuary resources and qualities. The impact threshold is replaced by nine (9) affirmative findings as discussed in the preamble to this proposed rule (section II.D.3., above). Among the proposed affirmative findings, however, ONMS finds that the Olympic Coast NMS unique finding of ‘‘will not substantially injure’’ would be adequately captured in the findings that the activity must be (1) conducted in manner compatible with the primary objective of resource protection, (4) the end value to the goals and objectives of the sanctuary outweighs potential adverse impacts, and (9) the activity does not adversely affect Washington Coast treaty tribes. As stated above, NOAA believes the removal of the Olympic Coast NMS ‘‘substantial injury’’ affirmative finding has a negligible overall impact to permit reviews as the threshold is rendered unnecessary by the list of nine review criteria written as affirmative findings. NOAA believes that this change should pose no overall impact to tribal interests with regard to permitting activities. NOAA believes the proposed changes to the authorization review criteria increase protections for tribal interests. Currently the regulations do not require a permit reviewer to consider tribal interests when issuing an authorization. With the proposed change, tribal protections are increased to a mandatory consideration of whether activity adversely affects Washington Coast treaty tribes. Therefore, the proposed action would further increase protections for tribal consideration and protection for authorizations. Last, and unrelated to the Olympic Coast NMS or Washington Coast treaty tribes, NOAA proposes to consolidate the definitions for the term ‘‘traditional fishing’’. While the definition should not impact Olympic Coast tribes, we note in the preamble discussion that the revised definition incorporates the terms ‘‘subsistence fishing’’ that is currently used in the Thunder Bay NMS regulations. We also note that we recognize subsistence fishing may occur at other sites such as Olympic Coast NMS and National Marine Sanctuary of American Samoa. However, we believe that these activities are already covered by the existing definition of subsistence use. Therefore we do not believe the proposed changes alter any previous rights held in these areas or alter fishing regulations in any manner. D. Executive Order 13132: Federalism Assessment NOAA has concluded this regulatory action does not have federalism E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132. tkelley on DSK3SPTVN1PROD with E. Paperwork Reduction Act This proposed rule does not create any new or revisions to the existing information collection requirement that was approved by OMB (OMB Control Number 0648–0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. (PRA). Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. F. Regulatory Flexibility Act The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is that the proposed changes are predominantly administrative in nature and generally would not alter substantive legal obligations for the regulated community. Specifically: • Moving current sections of the regulations to different subparts and revising text as proposed by this rule would not substantively change the effect or impact of the regulations; • Making the technical corrections to citations and obsolete sections of the regulations as proposed by this rule would not substantively change the effect or impact of the regulations; • Amending the definitions of ‘‘stowed and not available for immediate use’’ and ‘‘traditional fishing’’ to be uniform among the sanctuaries does not impact small entities because the proposed definitions are identical or substantially similar to the definitions currently used for managing sanctuary resources under ONMS regulations. Clarifying and codifying these definitions does not change the obligations of small business operators significantly because in sanctuaries where these activities occur regularly, the current definitions are identical or substantially similar to the proposed definitions. Thus, amending the definitions to standardize them among the various sanctuaries is not expected to substantially alter the legal obligations of small businesses; • Amending the term ‘‘motorized personal watercraft’’ would reconcile VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 several definitions to create one uniform definition for all sanctuaries. The revision is intended make the term more clearly understood and reduce ambiguity for law enforcement purposes. This regulatory change is not expected to affect small businesses because they are already complying with existing restrictions on MPWC use, and the proposed definition does not impose new or substantially alter restrictions in any sanctuary where motorized personal watercraft activity is currently regulated; • Amending and consolidating the permitting regulations from many sitespecific regulations to a single subpart does not substantively change the requirements to apply for permits, nor does it change the burden on applicants who wish to apply for permits. Therefore, these changes should not alter the current operations of small businesses, and may actually improve ease of applying for permits by removing inconsistencies between the sanctuaries. The only substantive change in the permitting sections is the proposal to change the appeal section to limit the pool of appellants of a permit decision, as discussed in section II.D.4 of the preamble to this proposed rule. NOAA has researched the history of this regulation and to date it has remained unutilized in the six sanctuaries that have a broad appellant pool of ‘‘any interested party.’’ NOAA does not anticipate that limiting the appellant pool would impact small businesses, and NOAA believes the change would provide consistency within the regulations across all sanctuaries. Small businesses that apply for permits may actually benefit from this proposed change because it improves transparency and predictability for applicants. Therefore, these changes should not impact the current operations of small business operators, and may improve ease of applying for permits by removing inconsistencies and confusion that might otherwise occur. Because the proposed changes are predominantly administrative in nature, they do not generally alter the rights and responsibilities of the regulated community. The one proposed substantive change is not expected to have a significant impact on a substantial number of small business entities because it is eliminating a provision that has never been used previously. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 6009 List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Amendments, Appeals, Appellant, Application requirements, Authorizations, Definitions, Designation, Environmental protection, Marine resources, Motorized personal watercraft, Natural resources, Permitting, Permit procedures, Prohibited activities, Special use permit, Stowed and not available for immediate use, Resources, Research, Traditional fishing, Water resources. David M. Kennedy, Assistant Administrator for Ocean Services and Coastal Zone Management. Accordingly, for the reasons set forth above, NOAA proposes to amend 15 CFR part 922 as follows: PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS 1. The authority citation for part 922 continues to read as follows: ■ Authority: 16 U.S.C. 1431 et seq. 2. Revise part 922 Subpart A to read as follows: ■ Subpart A—General and Regulations of General Applicability Sec. 922.1 Purposes and applicability of the regulations. 922.2 Mission, goal, and special policies. 922.3 Issuance of regulations for fishing. 922.4 Boundaries. 922.5 Allowed activities. 922.6 Prohibited or otherwise regulated activities. 922.7 Emergency regulations. 922.8 Penalties. 922.9 Response costs and damages. 922.10 Pre-existing authorizations or rights and certifications of pre-existing authorizations or rights. 922.11 Definitions. 922.12 Site Evaluation List (SEL). Subpart A—General and Regulations of General Applicability § 922.1 Purposes and applicability of the regulations. (a) The purposes of this part are: (1) To implement title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (16 U.S.C. 1431 et seq., also known as the National Marine Sanctuaries Act (NMSA or Act)); and (2) To implement the designations of the national marine sanctuaries, for which site specific regulations appear in subparts F through R, by regulating activities affecting them, consistent with their respective terms of designation, in order to protect, restore, preserve and manage and thereby ensure the health, E:\FR\FM\28JAP2.SGM 28JAP2 6010 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules integrity and continued availability of the conservation, recreational, ecological, historical, scientific, educational, cultural, archeological and aesthetic resources and qualities of these areas. (b) The regulations of this part are binding on any person subject to the jurisdiction of the United States. Designation of a national marine sanctuary beyond the U.S. territorial sea does not constitute any claim to territorial jurisdiction on the part of the United States. The regulations of this part 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 of this part shall apply to a person who is not a citizen, national, or resident alien of the United States, unless in accordance with: (1) Generally recognized principles of international law; (2) An agreement between the United States and the foreign state of which the person is a citizen; or (3) An agreement between the United States and the flag state of the foreign vessel, if the person is a crew member of the vessel. (c) Unless noted otherwise, the regulations in Subparts A and D apply to all national marine sanctuaries immediately upon designation. tkelley on DSK3SPTVN1PROD with § 922.2 Mission, goal, and special policies. (a) In accordance with the standards set forth in the Act, the mission of the Office of National Marine Sanctuaries (Office) is to identify, designate, protect, restore, and manage areas of the marine environment of special national, and in some cases international, significance due to their conservation, recreational, ecological, historical, scientific, educational, cultural, archeological, or aesthetic resources and qualities. (b) The goal of the Office is to carry out the mission in a manner consistent with the purposes and policies of the Act (16 U.S.C. 1431(b)); (c) Management efforts will be coordinated to the extent practicable with other countries managing marine protected areas; (d) Program regulations, policies, standards, guidelines, and procedures under the Act concerning the identification, evaluation, registration, and treatment of historical resources shall be consistent, to the extent practicable, with the declared national policy for the protection and preservation of these resources as stated in the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., the VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 Archeological and Historical Preservation Act of 1974, 16 U.S.C. 469 et seq., and the Archeological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory protection and preservation planning policy extended to historical resources on land shall be extended, to the extent practicable, to historical resources in the marine environment within the boundaries of designated national marine sanctuaries. The management of historical resources under the authority of the Act shall be consistent, to the extent practicable, with the Federal archeological program by consulting the Uniform Regulations, ARPA (43 CFR part 7) and other relevant Federal regulations. The Secretary of the Interior’s Standards and Guidelines for Archeology may also be consulted for guidance. These guidelines are available from the Office of Ocean and Coastal Resource Management or from the Office at (301) 713–3125. § 922.5 § 922.3 Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all such activities are subject to immediate temporary regulation, including prohibition. The provisions of this section do not apply to the Cordell Bank, Florida Keys, Hawaiian Islands Humpback Whale, and Thunder Bay National Marine Sanctuaries. See §§ 922.112(d), 922.165, 922.185, and 922.196, respectively, for the authority to issue emergency regulations with respect to those sanctuaries. Issuance of regulations for fishing. If a proposed Sanctuary includes waters within the exclusive economic zone, the Secretary shall notify the appropriate Regional Fishery Management Council(s). The appropriate Regional Fishery Management Council, shall have one hundred and eighty (180) days from the date of such notification to make recommendations and, if appropriate, prepare draft fishing regulations for the area within the exclusive economic zone and submit them to the Secretary. In preparing its recommendations and draft regulations, the Council(s) shall use as guidance the national standards of section 301(a) of the MagnusonStevens Act (16 U.S.C. 1851) to the extent that they are consistent and compatible with the goals and objectives of the proposed Sanctuary designation. Any fishing activities not proposed for regulation under section 304(a)(5) of the Act may be listed in the draft Sanctuary designation document as being subject to regulation, without following the procedures specified in section 304(a)(5) of the Act. If the Secretary subsequently determines that regulation of fishing is necessary, then NOAA will follow the procedures specified in section 304(a)(5) of the Act. § 922.4 The boundary for each of the thirteen National Marine Sanctuaries covered by this part is described in subparts F through R, respectively. PO 00000 Frm 00014 Fmt 4701 § 922.6 Prohibited or otherwise regulated activities. Subparts F through R set forth sitespecific regulations applicable to the activities specified therein. § 922.7 § 922.8 Sfmt 4702 Emergency regulations. Penalties. (a) Each violation of the NMSA or Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA), any regulation in this part or any permit issued pursuant thereto, is subject to a civil penalty. Each day of a continuing violation constitutes a separate violation. (b) Regulations setting forth the procedures governing administrative proceedings for assessment of civil penalties, permit sanctions and denials for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR part 904. § 922.9 Boundaries. Allowed activities. All activities (e.g., fishing, boating, diving, research, education) may be conducted unless prohibited or otherwise regulated in Subparts F through R, subject to any emergency regulations promulgated pursuant to §§ 922.6, 922.112(d), 922.165, 922.186, or 922.196, subject to all prohibitions, regulations, restrictions, and conditions validly imposed by any Federal, State, tribal, or local authority of competent jurisdiction, including, but not limited to, Federal, Tribal, and State fishery management authorities, and subject to the provisions of section 312 of the NMSA. The Director may only directly regulate fishing activities pursuant to the procedure set forth in section 304(a)(5) of the NMSA. Response costs and damages. Under section 312 of the Act, any person who destroys, causes the loss of, or injures any Sanctuary resource is liable to the United States for response costs and damages resulting from such E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules destruction, loss, or injury, and any vessel used to destroy, cause the loss of, or injure any Sanctuary resource is liable in rem to the United States for response costs and damages resulting from such destruction, loss, or injury. § 922.10 Pre-existing authorizations or rights and certifications of pre-existing authorizations or rights. Leases, permits, licenses, or rights of subsistence use or access in existence on the date of designation of any National Marine Sanctuary may not be terminated by the Director. The Director may, however, regulate the exercise of such leases, permits, licenses, or rights consistent with the purposes for which the Sanctuary was designated. tkelley on DSK3SPTVN1PROD with § 922.11 Definitions. The following definitions shall apply to this part, unless modified by the definitions for a specific subpart or regulation: Abandoning means leaving without intent to remove any structure, material, or other matter on or in the seabed or submerged lands of a Sanctuary. For Thunder Bay National Marine Sanctuary and Underwater Preserve, abandoning means leaving without intent to remove any structure, material or other matter on the lake bottom associated with underwater cultural resources. Act or NMSA means Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known as the National Marine Sanctuaries Act. Active Candidate means a site selected by the Secretary for further consideration for possible designation as a National Marine Sanctuary. Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Management, National Oceanic and Atmospheric Administration (NOAA) or designee. Attract or attracting means the conduct of any activity that lures or may lure any animal by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers). Benthic community means the assemblage of organisms, substrate, and structural formations found at or near the sea/ocean/lake bottom that is periodically or permanently covered by water. Clean means not containing detectable levels of harmful matter. Commercial fishing means any activity that results in the sale or trade for intended profit of fish, shellfish, VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 algae, or corals, including any attempt to engage in such activity. Conventional hook and line gear means any fishing gear composed of a single line terminated by a combination of sinkers and hooks or lures and spooled upon a reel that may be hand, electrically, or hydraulically operated, regardless of whether mounted. This term does not include longlines. Cruise ship means any vessel with 250 or more passenger berths for hire. Cultural resources means any historical or cultural feature, including, but not limited to, archaeological sites, historic structures, shipwrecks, and artifacts. Deserting means leaving a vessel aground, adrift, wrecked, junked, or in substantially dismantled condition without notification to the Director of the vessel going aground or becoming adrift, wrecked, junked, or substantially dismantled within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification, after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts, or when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel’s condition being reported to authorities; or leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner. Director means, except where otherwise specified, the Director of the Office of National Marine Sanctuaries or designee. Effective date means the date of final regulations described and published in the Federal Register. For regulations governing the proposed designation of a new sanctuary or revising terms of designation, effective date means the 45th day of continuous session of Congress following submission of the sanctuary designation documents. Exclusive economic zone means the zone established by Proclamation Numbered 5030, dated March 10, 1983, and as defined in the Magnuson-Stevens Act, as amended 16 U.S.C. 1801 et seq. Federal project means any water resources development project conducted by the United States Army Corps of Engineers, or operating under a permit or other authorization issued by the Corps of Engineers and authorized by Federal law. Fish means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds, as defined PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 6011 in the Magnuson-Stevens Act, as amended, 16 U.S.C. 1801 et seq. Graywater means graywater as defined by section 312 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1322. 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. Such substances or combination of substances may include, but is not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4. Historical resource means any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events. Historical resources include, but are not limited to, ‘‘cultural resources,’’ ‘‘submerged cultural resources,’’ and also include ‘‘historical properties,’’ as defined in the National Historic Preservation Act, as amended, 16 U.S.C. 470 et seq., and its implementing regulations, as amended. Indian tribe means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a. Injure means to change adversely, either in the short or long term, a chemical, biological or physical attribute, or the viability, of a sanctuary resource or the impairment of a sanctuary resource service. This includes, but is not limited to, acts that cause the loss or destruction of a sanctuary resource. Introduced species means any species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystems of 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. Lawful fishing means fishing authorized by a tribal, State or Federal entity with jurisdiction over the activity. Lightering means at-sea transfer of a petroleum-based products, materials, or other matter from vessel to vessel. E:\FR\FM\28JAP2.SGM 28JAP2 tkelley on DSK3SPTVN1PROD with 6012 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Marine means those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands over which the United States exercises jurisdiction, including the exclusive economic zone, consistent with international law. Mineral means clay, stone, sand, gravel, metalliferous ore, nonmetalliferous ore, or any other solid material or other matter of commercial value. Motorized personal watercraft (MPWC) means (1) any vessel, propelled by machinery that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the motor of the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel hull; (2) any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard’s Maximum Capacities Marking for Load Capacity regulation found at 33 CFR Parts 181 and 183, except submarines; or (3) any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive. National historic landmark means a district, site, building, structure or object designated as such by the Secretary of the Interior under the National Historic Landmarks Program (36 CFR part 65). National Marine Sanctuary or Sanctuary means an area of the marine environment of special national significance designated as such by the National Oceanic and Atmospheric Administration (NOAA) pursuant to the Act or by Congress pursuant to legislation. Oceangoing ship means any private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships. Person means any private individual, partnership, corporation or other entity; or any officer, employee, agent, department, agency or instrumentality of the Federal government, of any State or local unit of government, or of any foreign government. Regional Fishery Management Council means any fishery council established under the MagnusonStevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. Sanctuary quality means any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of a national marine sanctuary, including, but not limited to, water quality, sediment quality, and air quality. VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 Sanctuary resource means any living or non-living resource of a national marine sanctuary, or the parts or products thereof, that contributes to the conservation, recreational, ecological, historical, educational, cultural, archeological, scientific, or aesthetic value of the national marine sanctuary, including, but not limited to, waters of the sanctuary, the submerged lands of the sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, birds, sea turtles and other marine reptiles, marine mammals, and maritime heritage, cultural, archeological, and historical resources. For Thunder Bay National Marine Sanctuary and Underwater Preserve, Sanctuary resource means an underwater cultural resource as defined at § 922.191. Seagrass means any species of marine angiosperms (flowering plants) that inhabits a portion of the seabed in a national marine sanctuary. Those species include, but are not limited to: Zostera asiatica, Zostera marina; Thalassia testudinum (turtle grass); Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass); Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima. Secretary means the Secretary of the United States Department of Commerce, or designee. Shunt means to discharge expended drilling cuttings and fluids near the ocean seafloor. Site Evaluation List (SEL) means a list of selected natural and historical resource sites selected by the Secretary as qualifying for further evaluation for possible designation as National Marine Sanctuaries. State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, the United States Virgin Islands, Guam, and any other commonwealth, territory, or possession of the United States. Stowed and not available for immediate use means fishing gear not readily accessible for immediate use, e.g., by being fishing gear 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). Subsistence use means the customary and traditional use by rural residents of areas near or in the marine environment for direct personal or family PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles; and for barter, if for food or non-edible items other than money, if the exchange is of a limited and noncommercial nature. Take or taking means: (1) Take or taking as that term is defined in section 3(19) of the Endangered Species Act of 1973, as amended, 16 U.S.C. 1532(19) (ESA), for any sanctuary resource listed as either endangered or threatened under the ESA; (2) Take or taking as that term is defined in section 3(13) of the Marine Mammal Protection Act of 1972, as amended,16 U.S.C. 1362(13) (MMPA), for any sanctuary resource defined as a marine mammal by the (MMPA, 16 U.S.C. 1362(6)); (3) To conduct an activity prohibited by section 703 of the Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703 (MBTA), for any sanctuary resource that is in some manner protected by the MBTA, as amended; or (4) To harass, harm, disturb, pursue, hunt, shoot, wound, kill, trap, capture, injure, or collect, or attempt to harass, harm, disturb, pursue, hunt, shoot, wound, kill, trap, capture, injure, or collect any other sanctuary resources not subject to paragraphs (1), (2), or (3) of this definition. This includes, but is not limited to, collection of any dead or injured sanctuary resource, or any part thereof; or restraint or detainment of any sanctuary resource, no matter how temporarily; or to operate a vessel or aircraft or conduct any other act that results in the disturbance or molestation of any sanctuary resource. Traditional fishing means those commercial, recreational, or subsistence fishing activities that were customarily conducted within the Sanctuary before its designation, as identified in the original final environmental impact statement and management plan for the Sanctuary. Tropical fish means any fish of minimal sport and food value, usually brightly colored, often used in the aquarium trade, and that lives in a direct relationship with live bottom communities. Vessel means a watercraft of any description capable of being used as a means of transportation in or on the waters of a Sanctuary. The term includes but is not limited to, motorized and non-motorized watercraft, personal watercraft, airboats, and float planes while maneuvering on the water, capable of being used as a means of transportation in or on the waters of the Sanctuary. For purposes of this part, the E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules terms ‘‘vessel,’’ ‘‘watercraft,’’ and ‘‘boat’’ have the same meaning. Washington Coast treaty tribe means the Hoh, Makah, or Quilete Indian Tribes or the Quinault Indian Nation. § 922.12 Site Evaluation List (SEL) (a) The Site Evaluation List (SEL) was established as a comprehensive list of marine sites with high natural resource values and with historical qualities of special national significance that are highly qualified for further evaluation for possible designation as National Marine Sanctuaries. (b) The SEL is currently inactive. Criteria for inclusion of marine sites on a revised SEL will be issued, with public notice and opportunity to comment, when the Director determines that the SEL should be reactivated. (c) Placement of a site on the SEL, or selection of a site as an active candidate for designation, by itself shall not subject the site to any regulatory control under the Act. Such controls may only be imposed after designation. ■ 3. Remove and reserve part 922 subpart B: Subpart B—[RESERVED] 4. Remove and reserve part 922 subpart C. ■ Subpart C—[RESERVED] 5. Revise part 922 Subpart D to read as follows: ■ Subpart D—National Marine Sanctuary Permitting Sec. 922.30 National Marine Sanctuary general permits. 922.31 National Marine Sanctuary special use permits. 922.32 Application requirements and procedures. 922.33 Review procedures and evaluation. 922.34 Permit amendments, including renewals. 922.35 Special Use permit fees. 922.36 National Marine Sanctuary authorizations. 922.37 Appeals of permitting decisions. Subpart D—National Marine Sanctuary Permitting tkelley on DSK3SPTVN1PROD with § 922.30 National Marine Sanctuary general permits. (a) Authority to issue general permits. The Director may allow a person to conduct an activity that would otherwise be prohibited by this part, through issuance of a general permit, provided the applicant complies with: (1) The provisions of this subpart; and (2) The permit procedures and criteria for all national marine sanctuaries in which the proposed activity is to take VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 place in accordance with relevant site specific regulations appearing in subparts F through R. (b) Sanctuary general permit categories. The Director may issue a sanctuary general permit under this subpart, subject to such terms and conditions as he or she deems appropriate, if the Director finds that the proposed activity falls within one of the following categories: (1) Research—activities that constitute scientific research on or scientific monitoring of national marine sanctuary resources or qualities; (2) Education—activities that enhance public awareness, understanding, or appreciation of a national marine sanctuary or national marine sanctuary resources or qualities; (3) Management—activities that assist in managing a national marine sanctuary; (4) Jade removal—the removal of loose jade from the Jade Cove area within the Monterey Bay National Marine Sanctuary that cannot be collected under paragraphs (a)(1)(ii) and (iii) of 15 CFR § 922.132; (5) Tribal self-determination— activities conducted by a Washington Coast treaty tribe and/or its designee as certified by the governing body of the tribe to promote or enhance tribal selfdetermination, tribal government functions, the exercise of treaty rights, the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of tribal members; (6) Maritime heritage—survey and inventory, research and recovery, or deaccession/transfer of Florida Keys National Marine Sanctuary maritime heritage resources performed in accordance with all requirements of the Programmatic Agreement for management of historical resources in the Florida Keys National Marine Sanctuary and section 922.166 of this part; and (7) Further FKNMS purposes— activities that further the purposes of the Florida Keys National Marine Sanctuary, including those that facilitate multiple use of the sanctuary to the extent compatible with the primary objective of resource protection. § 922.31 National Marine Sanctuary special use permits. (a) In general. A person may conduct any commercial or concession-type activity, if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, manner, terms and conditions of, a special use permit issued under this section. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 6013 (b) Authority to issue. The Director, at his or her discretion, may issue a special use permit in accordance with this subpart and section 310 of the Act (16 U.S.C. 1441). (c) Public notice. The Director will not issue a special use permit for any category of activity unless the Director has published a notice in the Federal Register that such category of activity is subject to the requirements of section 310 of the Act. (d) Fees. The Director may assess and collect fees for the conduct of any activity authorized by a special use permit issued pursuant to this section. The fee will be assessed in accordance with section 922.35. No special use permit may be effective until all assessed fees are paid, unless otherwise provided by the Director by a fee schedule set forth as a permit condition. § 922.32 Application requirements and procedures. (a) Submitting applications. Permit applications must be submitted by mail or electronic mail to the address listed in the subpart for the relevant national marine sanctuary. Applicants proposing to conduct an activity in more than one national marine sanctuary should send the application to each NOAA office for the relevant national marine sanctuaries in which the activity is proposed. (b) Application requirements. All applications for a permit under this section must include the following information: (1) A detailed description of the proposed activity including: (i) A timetable for completion of the activity; (ii) A detailed description of the proposed location for the activity; and (iii) The equipment, personnel and methodology to be employed; (2) The qualifications and experience of all personnel; (3) The financial resources available to the applicant to conduct and complete the proposed activity and comply with any terms and conditions deemed necessary; (4) A statement as to why it is necessary to conduct the activity within a national marine sanctuary; (5) A description of the potential impacts of the activity, if any, on sanctuary resources and qualities; (6) A description of the benefits the conduct of the activity would have for the national marine sanctuary or national marine sanctuary system; (7) Copies of all other required licenses, permits, approvals, or other authorizations; and (8) Such other information as the Director may request or is specified in the relevant subpart. E:\FR\FM\28JAP2.SGM 28JAP2 6014 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules (c) Additional information. Upon receipt of an application, and as part of the evaluation of the permit application, the Director may: (1) Request such additional information as he or she deems necessary to act on the application; (2) Require a site visit; and (3) Seek the views of any persons, within or outside the Federal government. (d) Time limit for submitting additional information. Unless otherwise specified in writing by the Director, any information requested by the Director under paragraph (c) of this section must be received by the Director within 30 days of the postmark date of the request or, if email, the date of the email. Failure to provide such additional information may be deemed by the Director to constitute withdrawal of the permit application. (e) Incomplete applications. The Director may consider an application incomplete, and therefore may refuse to further consider the application, if the applicant: (1) Has failed to submit any of the information required under paragraph (b); (2) Has failed to submit any of the information requested by the Director under paragraph (c) of this section; (3) Has failed to pay any outstanding penalties that resulted from a violation of this part; or (4) Has failed to fully comply with a permit issued pursuant to this subpart. tkelley on DSK3SPTVN1PROD with § 922.33 Review procedures and evaluation. (a) Review criteria. The Director shall not issue a permit under this subpart, unless he or she also finds that: (1) The proposed activity will be conducted in a manner compatible with the primary objective of protection of national marine sanctuary resources and qualities, taking into account the following factors: (i) The extent to which the conduct of the activity may diminish or enhance national marine sanctuary resources and qualities; and (ii) Any indirect, secondary or cumulative effects of the activity. (2) It is necessary to conduct the proposed activity within the national marine sanctuary to achieve its stated purpose; (3) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity’s stated purpose and eliminate, minimize, or mitigate adverse effects on sanctuary resources and qualities as much as possible; (4) The duration of the proposed activity and its effects are no longer than VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 necessary to achieve the activity’s stated purpose; (5) The expected end value of the activity to the furtherance of national marine sanctuary goals and purposes outweighs any potential adverse impacts on sanctuary resources and qualities from the conduct of the activity; (6) The applicant is professionally qualified to conduct and complete the proposed activity; (7) The applicant has adequate financial resources available to conduct and complete the proposed activity and terms and conditions of the permit; and (8) There are no other factors that would make the issuance of a permit for the activity inappropriate. (9) For the Olympic Coast National Marine Sanctuary, the activity as proposed does not adversely affect any Washington Coast treaty tribe. (b) Permit terms and conditions. The Director, at his or her discretion, may subject a permit issued under this subpart to such terms and conditions as he or she deems appropriate. (c) Permit actions. The Director may amend, suspend, or revoke a permit issued pursuant to this part for good cause. Procedures governing permit sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904. (d) Application denials. The Director may deny a permit application, in whole or in part, if it is determined that: (1) The proposed activity does not meet the review criteria specified in this subpart; (2) The permittee or applicant has acted in violation of the terms and conditions of a permit issued under this subpart or the relevant subpart for the national marine sanctuary; (3) The permittee or applicant has acted in violation of the regulations set forth in this subpart; or (4) For other good cause. (e) Communication of actions and denials. Any action taken by the Director under paragraphs (c) and (d) of this section shall be communicated in writing to the permittee or applicant and shall set forth the reason(s) for the action taken. § 922.34 Permit amendments, including renewals. (a) Request for amendments. Any person who has been issued a permit under this part (a permittee) may request to amend the permit at any time while that permit is valid. For purposes of this section, a permit time extension (renewal) is treated as a permit amendment. A request for permit amendment must be submitted to the PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 same NOAA offices as the original permit and include sufficient information to describe the requested amendment and any additional supporting information. (b) Review of amendment requests. After receiving the permittee’s request for amendment, the Director will: (1) Review all reports submitted by the permittee as required by the permit terms and conditions; and (2) Request such additional information as may be necessary to evaluate the request. (c) Denial of amendment requests. The Director may deny a permit amendment request upon finding: (1) The amendment does not meet the review criteria under this subpart and the relevant subpart for all national marine sanctuaries in which the proposed activity is to take place; (2) The permittee has been found to have violated the permit or these regulations; (3) The activity has resulted in unforeseen adverse impacts to Sanctuary resources or qualities; or (4) For other good cause. § 922.35 Special Use Permit fees. (a) Authority to assess fees. The Director may assess a fee for the conduct of any activity authorized under a special use permit issued under § 922.31. (b) Components of permit fees. A fee assessed under this section may include: (1) All costs incurred, or expected to be incurred, in reviewing and processing the permit application, including, but not limited to, costs for: (i) Number of personnel; (ii) Personnel hours; (iii) Equipment; (iv) Environmental analyses or assessments; (v) Copying; and (vi) Overhead directly related to reviewing and processing the permit application; (2) All costs incurred, or expected to be incurred, as a direct result of the conduct of the activity for which the permit is being issued, including, but not limited to: (i) The cost of monitoring the conduct both during the activity and after the activity is completed in order to assess the impacts to sanctuary resources and qualities; (ii) The use of an official NOAA observer, including travel and expenses and personnel hours; and (iii) Overhead costs directly related to the permitted activity; and (3) An amount which represents the fair market value of the use of the sanctuary resource. E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with § 922.36 National Marine Sanctuary authorizations. (a) Authority to issue authorizations. The Director may authorize a person to conduct an activity otherwise prohibited by subparts L through P, or subpart R, if such activity is specifically allowed by any valid federal, state, or local lease, permit, license, approval, or other authorization (hereafter called ‘‘agency approval’’), provided the applicant complies with the provisions of this section. Such an authorization by ONMS is hereafter referred to as an ‘‘ONMS authorization.’’ (b) Authorization notification to the Director (1) Notification requirement. An applicant must notify the Director in writing of the request for an ONMS authorization of an agency approval. The Director may treat an amendment, renewal, or extension of such an agency approval as constituting a new agency approval for purposes of this section. (i) Notification must occur within fifteen days of the date of filing of the application for the agency approval. (ii) Notification must be sent to the Director, Office of National Marine Sanctuaries, to the attention of the relevant Sanctuary Superintendent(s) at the address specified in subparts L through P, or subpart R, as appropriate. (iii) A copy of the application for the agency approval must accompany the notification. (2) Director’s response to notification. The Director shall respond in writing to the applicant of his or her pending review of the request for an ONMS authorization. c) Authorization review procedures and evaluation. (1) Additional information. The Director may request additional information from the applicant as the Director deems reasonably necessary to determine whether to issue an ONMS authorization and what terms and conditions are reasonably necessary to protect sanctuary resources and qualities. (i) The information requested must be received by the Director within 45 days of the postmark date of the request. (ii) The Director may seek the views of any persons on the application. (2) Review criteria. The Director shall consider the review criteria in § 922.33(a)(1)–(9) when deciding whether to issue an ONMS authorization. (3) Director’s response. The Director shall respond in writing to the applicant of his or her decision as to whether to authorize the agency approval. (i) The Director may decline to issue an ONMS authorization and shall VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 provide the reason(s) therefor. If the Director declines to issue an ONMS authorization, the activity remains prohibited in the sanctuary. (ii) The Director may issue an ONMS authorization with no additional terms and conditions. (iii) The Director may issue an ONMS authorization containing terms and conditions deemed reasonably necessary to protect sanctuary resources and qualities. The ONMS authorization terms and conditions are enforceable by NOAA. If the applicant does not comply with the ONMS authorization terms and conditions, the ONMS authorization is invalid, and the failure to comply constitutes a violation of the NMSA and these regulations, which may result in enforcement action and assessment of penalties. (d) Authorization actions. The Director may amend, suspend, or revoke an ONMS authorization issued pursuant to this part for good cause. Procedures governing ONMS sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904. (e) Communication of actions and denials. Any action taken by the Director under paragraphs (c) and (d) of this section to deny, amend, suspend, or revoke an ONMS authorization shall be communicated in writing to the permittee or applicant and shall set forth the reason(s) for the action taken. (f) Time limits. Any time limit prescribed in or established under this § 922.36 may be extended by the Director for good cause. (g) Authorization appeals. In accordance with the provisions of § 922.37, the applicant may appeal to the Assistant Administrator: (1) Any denial, amendment, suspension, or revocation by the Director of the issuance of an ONMS authorization; or (2) Any term or condition imposed by the Director. § 922.37 Appeals of permitting decisions. (a) Potential appellants. The following persons may appeal an action listed in paragraph (b) of this section (hereinafter referred to as ‘‘appellant’’): (1) An applicant for, or a holder of, a National Marine Sanctuary permit issued pursuant to section 922.30; (2) An applicant for, or a holder of, a special use permit issued pursuant to section 310 of the Act and section 922.31; (3) An applicant for, or a holder of, an ONMS authorization of an agency approval issued by any Federal, State, or local authority of competent jurisdiction pursuant to section 922.36; and (4) A person requesting certification of an existing lease, permit, license, or PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 6015 right of subsistence use or access under section 922.9. (b) Actions that may be appealed. An appellant may appeal the following actions to the Assistant Administrator: (1) The denial, conditioning, amendment, suspension, or revocation by the Director of a general permit pursuant to section 922.30, special use permit pursuant to section 310 of the Act and section 922.31, or an ONMS authorization issued pursuant to section 922.36; or (2) The conditioning, amendment, suspension, or revocation of a certification under section 922.9. (c) Appeal requirements. Appeals must be made in writing to the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA, 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910 and must: (1) State the action(s) by the Director being appealed; (2) State the reason(s) for the appeal; and (3) Be received within 30 days of the appellant’s receipt of notice of the action by the Director. (d) Appeal procedures. (1) The Assistant Administrator may request the appellant submit such information as the Assistant Administrator deems necessary in order to render a decision on the appeal. The information requested must be received by the Assistant Administrator within 45 days of the postmark date of the request. (2) The Assistant Administrator may seek the views of any other persons when deciding an appeal. (3) The Assistant Administrator may hold an informal hearing. If an informal hearing is held: (i) The Assistant Administrator may designate an officer before whom the hearing shall be held; (ii) The hearing officer shall give notice in the Federal Register of the time, place and subject matter of the hearing; (iii) The appellant and Director may appear personally or by counsel at the hearing and submit such material and present such arguments as deemed appropriate by the hearing officer; and (iv) The hearing officer shall recommend a decision in writing to the Assistant Administrator within 60 days after the record for the hearing closes. (e) Deciding an appeal. (1) The Assistant Administrator shall decide the appeal using the same regulatory criteria as for the initial decision and shall base the appeal decision on the record before the Director and any information submitted at the Assistant Administrator’s request E:\FR\FM\28JAP2.SGM 28JAP2 6016 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules pursuant to paragraphs (d)(1) or (d)(2) of this section, regarding the appeal, and, if a hearing has been held, on the record before the hearing officer and the hearing officer’s recommended decision. (2) The Assistant Administrator shall notify the appellant of the final decision and the reason(s) therefor in writing. (3) The Assistant Administrator’s decision shall constitute final agency action for purposes of the Administrative Procedure Act. (f) Authority to extend time limits. Any time limit prescribed in or established under this section other than the 30-day limit for filing an appeal pursuant to subsection (c)(4) of this section may be extended by the Assistant Administrator for good cause. ■ 6. Remove and reserve part 922 Subpart E. Subpart E— [RESERVED] Subpart F—Monitor National Marine Sanctuary ■ 7. Revise § 922.60 to read as follows: § 922.60 Boundary. tkelley on DSK3SPTVN1PROD with Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.61 if such activity is specifically authorized by and conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subpart D of this part. (b) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Monitor National Marine Sanctuary, c/o The Mariners’ Museum, 100 Museum Drive, Newport News, VA 23606. (c) In addition to the requirements of subpart D of this part, the Director may not issue a permit under this section unless the Director also finds that the extent to which the conduct of the proposed activity may diminish the value of the Monitor as a source of historic, cultural, aesthetic and/or maritime information is appropriate in relation to goals of the proposed activity. (d) In considering any application submitted pursuant to this section, the VerDate Mar<15>2010 18:35 Jan 25, 2013 Subpart G—Channel Islands National Marine Sanctuary ■ 9. Revise § 922.70 to read as follows: § 922.70 Jkt 229001 Boundary. The Channel Islands National Marine Sanctuary (Sanctuary) consists of an area of approximately 1,128 square nautical miles (nmi2) of coastal and ocean waters, and the submerged lands thereunder, off the southern coast of California. The Sanctuary boundary begins at the Mean High Water Line of and extends seaward to a distance of approximately six nmi from the following islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands). The seaward boundary coordinates are listed in appendix A to this subpart. ■ 10. Remove and reserve § 922.71. § 922.71 The Monitor National Marine Sanctuary (Sanctuary) consists of a vertical water column in the Atlantic Ocean an estimated 0.593 square nautical miles (nmi2) extending from the surface to the seabed, the center of which is at N 35.00639 degrees W 75.40889 degrees. * * * * * ■ 8. Revise § 922.62 to read as follows: § 922.62 Director shall seek and consider the views of the Advisory Council on Historic Preservation. [Reserved] 11. Revise § 922.72(c) to read as follows: ■ § 922.72 Prohibited or otherwise regulated activities—Sanctuary wide. * * * * * (c) The prohibitions in paragraphs (a)(3) through (a)(10), (a)(12), and (a)(13) of this section and in § 922.73 do not apply to any activity specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to subpart D of this part and 922.74. * * * * * ■ 12. Revise § 922.74 to read as follows: § 922.74 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.72 or § 922.73 if the activity is specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a permit issued under this section and subpart D of this part. (b) Permit applications should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. Subpart H—Gulf of the Farallones National Marine Sanctuary ■ 13. Revise § 922.80 to read as follows: PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 § 922.80 Boundary. The Gulf of the Farallones National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 966 square nautical miles (nmi2) of coastal and ocean waters, and submerged lands thereunder, surrounding the Farallon Islands (and Noonday Rock) off the northern coast of California. The northernmost extent of the Sanctuary boundary is a geodetic line extending westward from Bodega Head approximately 6 nmi to the northern boundary of the Cordell Bank National Marine Sanctuary (CBNMS). The Sanctuary boundary then turns southward to a point approximately 6 nmi off Point Reyes, California, where it then turns westward again out towards the 1,000-fathom isobath. The Sanctuary boundary then extends in a southerly direction adjacent to the 1,000-fathom isobath until it intersects the northern extent of the Monterey Bay National Marine Sanctuary (MBNMS). The Sanctuary boundary then follows the MBNMS boundary eastward and northward until it intersects the Mean High Water Line at Rocky Point, California. The Sanctuary boundary then follows the MHWL north until it intersects the Point Reyes National Seashore (PRNS) boundary. The Sanctuary boundary then approximates the PRNS boundary, as established at the time of designation of the Sanctuary, to the intersection of the PRNS boundary and the MHWL in Tomales Bay. The Sanctuary boundary then follows the MHWL up Tomales Bay and Lagunitas Creek to the Route 1 Bridge where the Sanctuary boundary crosses the Lagunitas Creek and follows the MHWL until it intersects its northernmost extent near Bodega Head. The Sanctuary boundary includes Bolinas Lagoon, Estero de San Antonio (to the tide gate at Valley Ford Franklin School Road) and Estero Americano (to the bridge at Valley Ford Estero Road), as well as Bodega Bay, but not Bodega Harbor. Where the Sanctuary boundary crosses a waterway, the Sanctuary boundary excludes these waterways shoreward of the Sanctuary boundary line delineated by the coordinates provided. The precise seaward boundary coordinates are listed in appendix A to this subpart. ■ 14. Revise § 922.81 to read as follows: § 922.81 Definitions. In addition to those definitions found at § 922.11, the following definitions apply to this subpart: Areas of Special Biological Significance (ASBS) are those areas designated by California’s State Water Resources Control Board as requiring E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules protection of species or biological communities to the extent that alteration of natural water quality is undesirable. ASBS are a subset of State Water Quality Protection Areas established pursuant to California Public Resources Code section 36700 et seq. Routine maintenance means customary and standard procedures for maintaining docks or piers. ■ 15. Revise § 922.82 paragraph (c) to read as follows: § 922.82 Prohibited or otherwise regulated activities. * * * * * (c) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property, or the environment, or except as may be permitted by the Director in accordance with subpart D of this part and § 922.83. * * * * * ■ 16. Revise § 922.83 to read as follows: § 922.83 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.82 if the activity is specifically authorized by and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued under this section and subpart D of this part. (b) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Gulf of the Farallones National Marine Sanctuary, 991 Marine Dr., The Presidio, San Francisco, CA 94129. Subpart I—Gray’s Reef National Marine Sanctuary ■ 17. Revise § 922.90 to read as follows: § 922.90 Boundary. tkelley on DSK3SPTVN1PROD with The Gray’s Reef National Marine Sanctuary (Sanctuary) consists of approximately 16.68 square nautical miles (nmi2) of ocean waters and the submerged lands thereunder, off the coast of Georgia. The Sanctuary boundary includes all waters and submerged lands within the geodetic lines connecting the following coordinates: 18:35 Jan 25, 2013 Jkt 229001 § 922.91 Definitions. In addition to those definitions found at § 922.11, the following definitions apply to this subpart: Handline means fishing gear that is set and pulled by hand and consists of one vertical line to which may be attached leader lines with hooks. Rod and reel means a rod and reel unit that is not attached to a vessel, or, if attached, is readily removable, from which a line and attached hook(s) are deployed. The line is payed out from and retrieved on the reel manually or electrically. ■ 19. Amend § 922.92 by revising paragraph (a) as follows: § 922.92 Prohibited or otherwise regulated activities. (a) Except as may be necessary for national defense (subject to the terms and conditions of Article 5, Section 2 of the Designation Document) or to respond to an emergency threatening life, property, or the environment, or except as may be permitted by the Director in accordance with subpart D of this part and § 922.93, the following activities are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: * * * * * ■ 20. Revise § 922.93 to read as follows: § 922.93 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.92(a)(1) through (11) if the activity is specifically authorized by and conducted in accordance within the scope, purpose, terms and conditions of a permit issued under this section and subpart D of this part. (b) Applications for such permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Gray’s Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411. Subpart J—National Marine Sanctuary of American Samoa 21. Revise § 922.101 to read as follows: ■ Datum: NAD83 Geographic Coordinate System (1) N 31.362732 degrees W 80.921200 degrees (2) N 31.421064 degrees W 80.921201 degrees (3) N 31.421064 degrees W 80.828145 degrees (4) N 31.362732 degrees W 80.828145 degrees VerDate Mar<15>2010 ■ (5) N 31.362732 degrees W 80.921200 degrees 18. Revise § 922.91 to read as follows: § 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 6017 of American Samoa Boundary Coordinates. (a) Fagatele Bay Unit. The Fagatele Bay unit is approximately a 0.189 square nautical miles (nmi2) 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 (MHHW) 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 (S 14.36527 degrees, W 170.76932 degrees) and Steps Point (S 14.37291 degrees, W 170.76056 degrees) from the point at which it intersects the mean high high water line seaward. * * * * * ■ 22. Revise § 922.102 to read as follows: § 922.102 Definitions. In addition to those definitions found at § 922.11, the following definitions apply to this subpart: 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. ■ 23. Revise § 922.103 paragraph (e) to read as follows: § 922.103 Prohibited or otherwise regulated activities—Sanctuary-wide. * * * * * (e) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 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 subpart D of this part and § 922.107. ■ 24. Revise § 922.107 to read as follows: (a) Any person in possession of a valid permit issued by the Director, in consultation with the ASDOC, in accordance with this section and subpart D of the part may conduct an activity otherwise prohibited by § 922.103, § 922.104, and § 922.105 in the Sanctuary. (b) Permit applications shall be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, American Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 96799. Subpart K—Cordell Bank National Marine Sanctuary 25. Revise § 922.110 to read as follows: ■ E:\FR\FM\28JAP2.SGM 28JAP2 6018 § 922.110 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Boundary. The Cordell Bank National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 399 square nautical miles (nmi2) of ocean waters, and submerged lands thereunder, off the northern coast of California approximately 50 miles west-northwest of San Francisco, California. The Sanctuary boundary extends westward (approximately 250 degrees) from the northwestern most point of the Gulf of the Farallones National Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of Cordell Bank. The Sanctuary boundary then generally follows this isobath in a southerly direction to the western-most point of the GFNMS boundary. The Sanctuary boundary then follows the GFNMS boundary again to the northwestern corner of the GFNMS. The exact boundary coordinates are listed in appendix A to this subpart. ■ 26. Remove and reserve § 922.111. § 922.111 [Reserved] 27. Amend § 922.112 by revising paragraph (b) as follows: ■ § 922.112 Prohibited or otherwise regulated activities. * * * * * (b) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property or the environment, or except as may be permitted by the Director in accordance with subpart D of this part and § 922.113. * * * * * ■ 28. Revise § 922.113 to read as follows: § 922.113 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.112 if the activity is specifically authorized by and conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subpart D of this part. (b) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950. Subpart L—Flower Garden Banks National Marine Sanctuary 29. Revise § 922.120 to read as follows: tkelley on DSK3SPTVN1PROD with ■ § 922.120 Boundary. The Flower Garden Banks National Marine Sanctuary (the Sanctuary) consists of three separate areas of ocean VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 waters over and surrounding the East and West Flower Garden Banks and Stetson Bank, and the submerged lands thereunder including the Banks, in the northwestern Gulf of Mexico. The area designated at the East Bank is located approximately 120 nautical miles (nmi) south-southwest of Cameron, Louisiana, and encompasses 19.20 square nautical miles (nmi2). The area designated at the West Bank is located approximately 110 nmi southeast of Galveston, Texas, and encompasses 22.61 nmi2. The area designated at Stetson Bank is located approximately 70 nmi southeast of Galveston, Texas, and encompasses 0.64 nmi2. The three areas encompass a total of 42.45 nmi2. The boundary coordinates for each area are listed in appendix A to this subpart. ■ 30. Revise § 922.121 to read as follows: § 922.121 Definitions. In addition to those definitions found at § 922.11, the following definition applies to this subpart: No-activity zone means the geographic areas delineated by the Department of the Interior in stipulations described in Notice to Lessees No. 2009–G39, ‘‘BiologicallySensitive Underwater Features and Areas’’ for topographic features of the Central and Western Gulf of Mexico. The precise description of these areas around the East and West Flower Garden Banks are provided in appendix B of this subpart; the no-activity zone around Stetson Bank is defined as the 52 meter isobath. These particular aliquot part descriptions for the East and West Flower Garden Banks, and the 52 meter isobath around Stetson Bank, define the geographic scope of the ‘‘noactivity zones’’ for purposes of the regulations in this subpart. ■ 31. Amend § 922.122 by revising paragraphs (a)(4), (a)(7), (f) and (h) to read as follows: § 922.122 Prohibited or otherwise regulated activities. (a) * * * (4) Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the submerged lands of the Sanctuary. * * * * * (7) Injuring, catching, harvesting, collecting or feeding, or attempting to injure, catch, harvest, collect or feed, any fish within the Sanctuary by use of longlines, traps, nets, bottom trawls or any other gear, device, equipment or PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 means except by use of conventional hook and line gear. * * * * * (f) The prohibitions in paragraphs (a)(2) through (10) of this section do not apply to any activity specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit or ONMS authorization issued pursuant to subpart D of this part and § 922.123 or a Special Use permit issued pursuant to section 310 of the Act. * * * * * (h) Notwithstanding paragraphs (f) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit under subpart D of this part and § 922.123 or a Special Use permit under section 10 of the Act authorizing, or otherwise approve, the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone. Any leases, permits, approvals, or other authorizations authorizing the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone and issued after the January 18, 1994 shall be invalid. ■ 32. Revise § 922.123 to read as follows: § 922.123 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.122(a)(2) through (10) if such activity is specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a permit issued under this section and subpart D of this part. (b) Applications for such permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 77551. Subpart M—Monterey Bay National Marine Sanctuary 33. Revise § 922.130 to read as follows: ■ § 922.130 Boundary. The Monterey Bay National Marine Sanctuary (Sanctuary) consists of two separate areas. (a) The first area consists of an area of approximately 4016 square nautical miles (nmi2) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in appendix A except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in appendix A to this subpart. (b) The Davidson Seamount Management Zone is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi (nmi2) of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in appendix F to this subpart. ■ 34. Revise § 922.131 to read as follows: tkelley on DSK3SPTVN1PROD with § 922.131 Definitions. In addition to those definitions found at 15 CFR 922.11, the following definitions apply to this subpart: Davidson Seamount Management Zone means the area bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, and consists of approximately 585 square nautical miles (nmi2) of ocean waters and the submerged lands thereunder. The VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 shoreward boundary of this portion of the Sanctuary is located approximately 65 nautical miles (nmi) off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in appendix F to this subpart. Hand tool means a hand-held implement, utilized for the collection of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36 inches in length and has no moving parts (e.g., dive knife, pry bar, or abalone iron). Pneumatic, mechanical, electrical, hydraulic, or explosive tools are, therefore, examples of what does not meet this definition. ■ 35. Amend § 922.132 by revising paragraphs (d) and (f) to read as follows: § 922.132 Prohibited or otherwise regulated activities. * * * * * (d) The prohibitions in paragraph (a)(1) of this section as it pertains to jade collection in the Sanctuary, and paragraphs (a)(2) through (11) and (a)(13) of this section, do not apply to any activity specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit or ONMS authorization issued pursuant to subpart D of this part and 922.133 or a Special Use permit issued pursuant to section 310 of the Act. * * * * * (f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a National Marine Sanctuary permit or ONMS authorization under subpart D of this part and 922.133 or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: the exploration for, development, or production of oil, gas, or minerals within the Sanctuary, except for the collection of jade pursuant to paragraph (a)(1) of this section; the discharge of primary-treated sewage within the Sanctuary (except by certification, pursuant to 15 CFR 922.47, of valid authorizations in existence on January 1, 1993 and issued by other authorities of competent jurisdiction); or the disposal of dredged material within the Sanctuary other than at sites authorized by EPA (in consultation with COE) before January 1, 1993. Any purported authorizations issued by other authorities within the Sanctuary shall be invalid. * * * * * ■ 36. Revise § 922.133 to read as follows: PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 § 922.133 6019 Permit procedures. Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940. Subpart N—Stellwagen Bank National Marine Sanctuary 37. Revise § 922.140 to read as follows: ■ § 922.140 Boundary. (a) The Stellwagen Bank National Marine Sanctuary (Sanctuary) consists of an area of approximately 639 square nautical miles (nmi2) of Federal marine waters and the submerged lands thereunder, over and around Stellwagen Bank and other submerged features off the coast of Massachusetts. The boundary encompasses the entirety of Stellwagen Bank; Tillies Bank, to the northeast of Stellwagen Bank; and portions of Jeffreys Ledge, to the north of Stellwagen Bank. (b) The Sanctuary boundary is identified by the following coordinates, indicating the most northeast, southeast, southwest, west-northwest, and northnorthwest points: N 42.76662 degrees W 70.21716 degrees (NE) ; N 42.09320 degrees W 70.03559 degrees (SE); N 42.12914 degrees W 70.47096 degrees (SW); N 42.5482 degrees W 70.59788 degrees (WNW); and N 42.65113 degrees W 70.50314 degrees (NNW). The western border is formed by a straight line connecting the most southwest and the west-northwest points of the Sanctuary. At the most west-northwest point, the Sanctuary border follows a line contiguous with the three-mile jurisdictional boundary of Massachusetts to the most northnorthwest point. From this point, the northern border is formed by a straight line connecting the most northnorthwest point and the most northeast point. The eastern border is formed by a straight line connecting the most northeast and the most southeast points of the Sanctuary. The southern border follows a straight line between the most southwest point and a point located at N 42.11516 degrees W–70.27853 degrees. From that point, the southern border then continues in a west-to-east direction along a line contiguous with the three-mile jurisdictional boundary of Massachusetts until reaching the most southeast point of the Sanctuary. The boundary coordinates are listed in appendix A to this subpart. ■ 38. Revise § 922.141 to read as follows: E:\FR\FM\28JAP2.SGM 28JAP2 6020 § 922.141 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Definitions. In addition to those definitions found at § 922.11, the following definitions apply to this subpart: Industrial material means mineral, as defined in § 922.10. ■ 39. Amend § 922.142 by revising paragraphs (a)(3), (d) and (f) to read as follows: § 922.142 Prohibited or otherwise regulated activities: (a) * * * (3) Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the submerged lands of the Sanctuary, except as an incidental result of: * * * * * (d) The prohibitions in paragraphs (a) (1) and (3) through (7) of this section do not apply to any activity specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to subpart D of this part and § 922.143 or a Special Use permit issued pursuant to section 310 of the Act. * * * * * (f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a permit under subpart D of this part and § 922.143, or under section 310 of the act, authorizing, or otherwise approving, the exploration for, development or production of industrial materials within the Sanctuary, or the disposal of dredged materials within the Sanctuary (except by a certification, pursuant to § 922.47, of valid authorizations in existence on November 4, 1992) and any leases, licenses, permits, approvals or other authorizations authorizing the exploration for, development or production of industrial materials in the Sanctuary issued by other authorities after November 4, 1992, shall be invalid. ■ 40. Revise § 922.143 to read as follows: tkelley on DSK3SPTVN1PROD with § 922.143 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.142 (a) (1) and (3) through (7) if conducted under and in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subpart D of this part. (b) Applications for such permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road, Scituate, MA 02066. VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 Subpart O—Olympic Coast National Marine Sanctuary 41. Revise § 922.150(a) to read as follows: ■ § 922.150 Boundary. (a) The Olympic Coast National Marine Sanctuary (Sanctuary) consists of an area of approximately 2408 square nautical miles (nmi2) of coastal and ocean waters, and the submerged lands thereunder, off the central and northern coast of the State of Washington. * * * * * ■ 42. Revise § 922.151 to read as follows: § 922.151 Definitions. In addition to those definitions found at § 922.11, the following definitions apply to this subpart: Indian reservation means a tract of land set aside by the Federal Government for use by a Federally recognized American Indian tribe and includes, but is not limited to, the Makah, Quileute, Hoh and Quinault Reservations. Treaty means a formal agreement between the United States Government and an Indian tribe. ■ 43. Amend § 922.152 by revising paragraphs (a)(4), (e) and (h) to read as follows: § 922.152 Prohibited or otherwise regulated activities: (a) * * * (4) Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the submerged lands of the Sanctuary, except as an incidental result of: * * * * * (e) The prohibitions in paragraphs (a) (2) through (7) of this section do not apply to any activity specifically authorized by and conducted under and in accordance with the scope, purpose, terms and conditions of a National Marine Sanctuary permit or an ONMS authorization issued pursuant to subpart D of this part and § 922.153 or a Special Use permit issued pursuant to section 310 of the Act. * * * * * (h) Notwithstanding paragraphs (e) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit or ONMS authorization under subpart D of this part and § 922.153 or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: The exploration for, development or production of oil, gas or minerals within PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 the Sanctuary; the discharge of primarytreated sewage within the Sanctuary (except by certification, pursuant to § 922.47, of valid authorizations in existence on July 22, 1994 and issued by other authorities of competent jurisdiction); the disposal of dredged material within the Sanctuary other than in connection with beach nourishment projects related to the Quillayute River Navigation Project; or bombing activities within the Sanctuary. Any purported authorizations issued by other authorities after July 22, 1994 for any of these activities within the Sanctuary shall be invalid. ■ 44. Revise § 922.153 to read as follows: § 922.153 Permit procedures. (a) A person may conduct an activity prohibited by § 922.152 (a) (2) through (7) if conducted in accordance with the scope, purpose, terms and conditions of a permit or ONMS authorization issued under this section and subpart D of this part. (b) Applications for such permits or ONMS authorizations should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Olympic Coast National Marine Sanctuary, 115 E. Railroad Ave., Suite 301, Port Angeles, WA 98362. (c) The Director shall obtain the express written consent of the governing body of an Indian tribe prior to issuing a permit, if the proposed activity involves or affects resources of cultural or historical significance to the tribe. (d) Removal or attempted removal of any Indian cultural resource or artifact may only occur with the express written consent of the governing body of the tribe or tribes to which such resource or artifact pertains, and certification by the Director that such activities occur in a manner that minimizes damage to the biological and archeological resources. Prior to permitting entry onto a significant cultural site designated by a tribal governing body, the Director shall require the express written consent of the governing body of the tribe or tribes to which such cultural site pertains. (e) Where the issuance or denial of a permit is requested by the governing body of a Washington Coast treaty tribe, the Director shall consider and protect the interests of the tribe to the fullest extent practicable in keeping with the purposes of the Sanctuary and his or her fiduciary duties to the tribe. Subpart P—Florida Keys National Marine Sanctuary 45. Revise § 922.161 to read as follows: ■ E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules § 922.161 Boundary. The Sanctuary consists of an area of approximately 2872 square nautical miles (nmi2) of coastal and ocean waters, and the submerged lands thereunder, surrounding the Florida Keys in Florida. Appendix I to this subpart sets forth the precise Sanctuary boundary. ■ 46. Revise § 922.162 to read as follows: tkelley on DSK3SPTVN1PROD with § 922.162 Definitions. (a) The following definitions apply to the Florida Keys National Marine Sanctuary regulations. To the extent that a definition appears in § 922.11 and this section, the definition in this section governs. Acts means the Florida Keys National Marine Sanctuary and Protection Act, as amended, (FKNMSPA) (Pub. L. 101– 605), and the National Marine Sanctuaries Act, as amended (NMSA), also known as Title III of the Marine Protection, Research, and Sanctuaries Act, as amended, (MPRSA) (16 U.S.C. 1431 et seq.). Adverse effect means any factor, force, or action that independently or cumulatively damages, diminishes, degrades, impairs, destroys, or otherwise harms any Sanctuary resource, as defined in section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or any of the qualities, values, or purposes for which the Sanctuary is designated. Airboat means a vessel operated by means of a motor driven propeller that pushes air for momentum. Areas To Be Avoided means the areas in which vessel operations are prohibited pursuant to section 6(a)(1) of the FKNMSPA (see § 922.164(a)). Appendix VII to this subpart sets forth the geographic coordinates of these areas, including any modifications thereto made in accordance with section 6(a)(3) of the FKNMSPA. Closed means all entry or use is prohibited. Coral means but is not limited to the corals of the Class Hydrozoa (stinging and hydrocorals); Class Anthozoa, Subclass Hexacorallia, Order Scleractinia (stony corals); Class Anthozoa, Subclass Ceriantipatharia, Order Antipatharia (black corals); and Class Anthozoa, Subclass Ocotocorallia, Order Gorgonacea, species Gorgonia ventalina and Gorgonia flabellum (sea fans). Coral area means marine habitat where coral growth abounds including patch reefs, outer bank reefs, deepwater banks, and hardbottoms. VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 Coral reefs means the hard bottoms, deep-water banks, patch reefs, and outer bank reefs. Ecological Reserve means an area of the Sanctuary consisting of contiguous, diverse habitats, within which uses are subject to conditions, restrictions and prohibitions, including access restrictions, intended to minimize human influences, to provide natural spawning, nursery, and permanent residence areas for the replenishment and genetic protection of marine life, and also to protect and preserve natural assemblages of habitats and species within areas representing a broad diversity of resources and habitats found within the Sanctuary. Appendix IV to this subpart sets forth the geographic coordinates of these areas. Existing Management Area means an area of the Sanctuary that is within or is a resource management area established by NOAA or by another Federal authority of competent jurisdiction as of the effective date of these regulations where protections above and beyond those provided by Sanctuary-wide prohibitions and restrictions are needed to adequately protect resources. Appendix II to this subpart sets forth the geographic coordinates of these areas. Exotic species means a species of plant, invertebrate, fish, amphibian, reptile or mammal whose natural zoogeographic range would not have included the waters of the Atlantic Ocean, Caribbean, or Gulf of Mexico without passive or active introduction to such area through anthropogenic means. Fishing means: (1) The catching, taking, or harvesting of fish; the attempted catching, taking, or harvesting of fish; any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or any operation at sea in support of, or in preparation for, any activity described in this subparagraph (1). (2) Such term does not include any scientific research activity which is conducted by a scientific research vessel. Hardbottom means a submerged marine community comprised of organisms attached to exposed solid rock substrate. Hardbottom is the substrate to which corals may attach but does not include the corals themselves. Idle speed only/no-wake means a speed at which a boat is operated that is no greater than 4 knots or does not produce a wake. Idle speed only/no-wake zone means a portion of the Sanctuary where the speed at which a boat is operated may PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 6021 be no greater than 4 knots or may not produce a wake. Length overall (LOA) or length means, as used in § 922.167 with respect to a vessel, the horizontal distance, rounded to the nearest foot (with 0.5 feet and above rounded upward), between the foremost part of the stem and the aftermost part of the stern, excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments. Live rock means any living marine organism or an assemblage thereof attached to a hard substrate, including dead coral or rock but not individual mollusk shells (e.g., scallops, clams, oysters). Living marine organisms associated with hard bottoms, banks, reefs, and live rock may include, but are not limited to: sea anemones (Phylum Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera); tube worms (Phylum Annelida), including fan worms, feather duster worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts (Phylum Chordata); and marine algae, including Mermaid’s fan and cups (Udotea spp.), corraline algae, green feather, green grape algae (Caulerpa spp.) and watercress (Halimeda spp.). Marine life species means any species of fish, invertebrate, or plant included insubsection (2), (3) or (4) of Rule 68B– 42.001, Florida Administrative Code, or any part thereof. Military activity means an activity conducted by the Department of Defense with or without participation by foreign forces, other than civil engineering and other civil works projects conducted by the U.S. Army Corps of Engineers. No-access buffer zone means a portion of the Sanctuary where vessels are prohibited from entering regardless of the method of propulsion. No motor zone means an area of the Sanctuary where the use of internal combustion motors is prohibited. A vessel with an internal combustion motor may access a no motor zone only through the use of a push pole, paddle, sail, electric motor or similar means of operation but is prohibited from using its internal combustion motor. Officially marked channel means a channel marked by Federal, State of Florida, or Monroe County officials of competent jurisdiction with navigational aids except for channels marked idle speed only/no wake. Prop dredging means the use of a vessel’s propulsion wash to dredge or otherwise alter the seabed of the Sanctuary. Prop dredging includes, but is not limited to, the use of propulsion wash deflectors or similar means of dredging or otherwise altering the E:\FR\FM\28JAP2.SGM 28JAP2 tkelley on DSK3SPTVN1PROD with 6022 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules seabed of the Sanctuary. Prop dredging does not include the disturbance to bottom sediments resulting from normal vessel propulsion. Prop scarring means the injury to seagrasses or other immobile organisms attached to the seabed of the Sanctuary caused by operation of a vessel in a manner that allows its propeller or other running gear, or any part thereof, to cause such injury (e.g., cutting seagrass rhizomes). Prop scarring does not include minor disturbances to bottom sediments or seagrass blades resulting from normal vessel propulsion. Residential shoreline means any manmade or natural: (1) Shoreline, (2) Canal mouth, (3) Basin, or (4) Cove adjacent to any residential land use district, including improved subdivision, suburban residential or suburban residential limited, sparsely settled, urban residential, and urban residential mobile home under the Monroe County land development regulations. Sanctuary means the Florida Keys National Marine Sanctuary. Sanctuary Preservation Area means an area of the Sanctuary that encompasses a discrete, biologically important area, within which uses are subject to conditions, restrictions and prohibitions, including access restrictions, to avoid concentrations of uses that could result in significant declines in species populations or habitat, to reduce conflicts between uses, to protect areas that are critical for sustaining important marine species or habitats, or to provide opportunities for scientific research. Appendix V to this subpart sets forth the geographic coordinates of these areas. Sanctuary wildlife means any species of fauna, including avifauna, that occupy or utilize the submerged resources of the Sanctuary as nursery areas, feeding grounds, nesting sites, shelter, or other habitat during any portion of their life cycles. Special-use Area means an area of the Sanctuary set aside for scientific research and educational purposes, recovery or restoration of Sanctuary resources, monitoring, to prevent use or user conflicts, to facilitate access and use, or to promote public use and understanding of Sanctuary resources. Appendix VI to this subpart sets forth the geographic coordinates of these areas. Stem means the foremost part of a vessel, consisting of a section of timber or fiberglass, or cast, forged, or rolled metal, to which the sides of the vessel are united at the fore end, with the VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 lower end united to the keel, and with the bowsprit, if one is present, resting on the upper end. Stern means the aftermost part of the vessel. Tank vessel means any vessel that is constructed or adapted to carry, or that carries, oil or hazardous material in bulk as cargo or cargo residue, and that— (1) Is a United States flag vessel; (2) Operates on the navigable waters of the United States; or (3) Transfers oil or hazardous material in a port or place subject to the jurisdiction of the United States [46 U.S.C. 2101]. Tropical fish means any species included in 68B–42 of the Florida Administrative Code, or any part thereof. Wildlife Management Area means an area of the Sanctuary established for the management, protection, and preservation of Sanctuary wildlife resources, including such an area established for the protection and preservation of endangered or threatened species or their habitats, within which access is restricted to minimize disturbances to Sanctuary wildlife; to ensure protection and preservation consistent with the Sanctuary designation and other applicable law governing the protection and preservation of wildlife resources in the Sanctuary. Appendix III to this subpart lists these areas and their access restrictions. (b) Other terms appearing in the regulations in this part are defined at 15 CFR 922.11, and/or in the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16 U.S.C. 1431 et seq. ■ 47. Amend § 922.163 by revising paragraphs (a)(3), (b), (c) and (f) to read as follows: § 922.163 Prohibited activities— Sanctuary-wide. (a) * * * (3) Alteration of, or construction on, the seabed. Drilling into, dredging, or otherwise altering the seabed of the Sanctuary, or engaging in propdredging; or constructing, placing or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary, except as an incidental result of: * * * * * (b) Notwithstanding the prohibitions in this section and in § 922.164, and any access and use restrictions imposed pursuant thereto, a person may conduct an activity specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 issued pursuant to § 922.166 and this subpart D of this part. (c) Notwithstanding the prohibitions in this section and in § 922.164, and any access and use restrictions imposed pursuant thereto, a person may conduct an activity specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the effective date of these regulations, provided that the applicant complies with § 922.36, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems reasonably necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in existence on the effective date of these regulations constitute authorizations issued after the effective date of these regulations. * * * * * (f) Notwithstanding paragraph (b) of this section and paragraph (a) of § 922.168, in no event may the Director issue a permit under § 922.166 and subpart D of this part, authorizing, or otherwise approving, the exploration for, leasing, development, or production of minerals or hydrocarbons within the Sanctuary, the disposal of dredged material within the Sanctuary other than in connection with beach renourishment or Sanctuary restoration projects, or the discharge of untreated or primary treated sewage, and any purported authorizations issued by other authorities after the effective date of these regulations for any of these activities within the Sanctuary shall be invalid. * * * * * ■ 48. Amend § 922.164 by revising paragraph (e)(1)(iii) to read as follows: § 922.164 Additional activity regulations by Sanctuary area. * * * * * (e) * * * (1) * * * (iii) ‘‘Research-only area’’ to provide for scientific research or education relating to protection and management, through the issuance of a Sanctuary General permit for research pursuant to § 922.166 of these regulations and subpart D of this part; and * * * * * ■ 49. Revise § 922.166 to read as follows: E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with § 922.166 Permits other than for access to the Tortugas Ecological Reserve— application procedures. (a) A person may conduct an activity otherwise prohibited by §§ 922.163 or 922.164, other than an activity involving the survey/inventory, research/recovery, or deaccession/transfer of Sanctuary maritime heritage resources, if the activity is specifically allowed by and conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subpart D of this part. (b) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 33037. (c) For activities proposed to be conducted within any of the areas described in § 922.164 (b)–(e), the Director shall not issue a permit unless he or she further finds that such activities will further and are consistent with the purposes for which such area was established, as described in §§ 922.162 and 922.164 and in the management plan for the Sanctuary. (d) National Marine Sanctuary Survey/Inventory of Maritime Heritage Resources Permit. (1) A person may conduct an activity otherwise prohibited by §§ 922.163 or 922.164 involving the survey/inventory of Sanctuary maritime heritage resources if the activity is specifically allowed by and conducted in accordance with the scope, purpose, terms and conditions of a Survey/ Inventory of Historical Resources permit issued under this paragraph (c). If a survey/inventory activity will involve test excavations or removal of artifacts or materials for evaluative purposes, a Survey/Inventory of Maritime Heritage Resources permit is required. Persons who have demonstrated their professional abilities under a Survey/ Inventory permit will be given preference over other persons in consideration of the issuance of a Research/Recovery permit. While a Survey/Inventory permit does not grant any rights with regards to areas subject to pre-existing rights of access which are still valid, once a permit is issued for an area, other survey/inventory permits will not be issued for the same area during the period for which the permit is valid. (2) The Director, at his or her discretion, may issue a Survey/ Inventory permit under this paragraph (b), subject to such terms and conditions as he or she deems appropriate, if the Director finds that such activity: VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 (i) Satisfies the requirements for a permit issued under subpart D; (ii) Either will be non-intrusive, not include any excavation, removal, or recovery of historical resources, and not result in destruction of, loss of, or injury to Sanctuary resources or qualities, or if intrusive, will involve no more than the minimum manual alteration of the seabed and/or the removal of artifacts or other material necessary for evaluative purposes and will cause no significant adverse impacts on Sanctuary resources or qualities; and (iii) That such activity will be conducted in accordance with all requirements of the Programmatic Agreement for the Management of Maritime Heritage Resources in the Florida Keys National Marine Sanctuary among NOAA, the Advisory Council on Historic Preservation, and the State of Florida (hereinafter Programmatic Agreement (PA), and that such permit issuance is in accordance with such PA. Copies of the PA may also be examined at, and obtained from, https:// floridakeys.noaa.gov or from the Florida Keys National Marine Sanctuary Office, P.O. Box 1083, Key Largo, FL 33037. (e) National Marine Sanctuary Research/Recovery of Sanctuary Maritime Heritage Resources Permit. (1) A person may conduct any activity prohibited by §§ 922.163 or 922.164 involving the research/recovery of Sanctuary historical resources if such activity is specifically authorized by and is conducted in accordance with the scope, purpose, terms and conditions of a Research/Recovery of Maritime Heritage Resources permit issued under this paragraph (c). (2) The Director, at his or her discretion, may issue a Research/ Recovery of Historical Resources permit, under this paragraph (c), and subject to such terms and conditions as he or she deems appropriate, if the Director finds that: (i) Such activity satisfies the requirements for a permit issued under section 922.33; (ii) The recovery of the resource is in the public interest as described in the PA; (iii) Recovery of the resource is part of research to preserve historic information for public use; and (iv) Recovery of the resource is necessary or appropriate to protect the resource, preserve historical information, and/or further the policies and purposes of the NMSA and the FKNMSPA, and that such permit issuance is in accordance with, and that the activity will be conducted in accordance with, all requirements of the PA. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 6023 (3) Any permit authorizing the research/recovery of Maritime Heritage resources shall be subject to the following terms and conditions: (i) A professional archaeologist shall be in charge of planning, field recovery operations, and research analysis. (ii) An agreement with a conservation laboratory shall be in place before field recovery operations are begun, and an approved nautical conservator shall be in charge of planning, conducting, and supervising the conservation of any artifacts and other materials recovered. (iii) A curation agreement with a museum or facility for curation, public access and periodic public display, and maintenance of the recovered historical resources shall be in place before commencing field operations (such agreement for the curation and display of recovered maritime heritage resources may provide for the release of public artifacts for deaccession/transfer if such deaccession/transfer is consistent with preservation, research, education, or other purposes of the designation and management of the Sanctuary. Deaccession/transfer of maritime heritage resources requires a Special-use permit issued pursuant to paragraph (d) and such deaccession/transfer shall be executed in accordance with the requirements of the PA). (iv) The site’s archaeological information is fully documented, including measured drawings, site maps drawn to professional standards, and photographic records. ■ 50. Amend § 922.167 by revising paragraph (b)(1) to read as follows: § 922.167 Permits for access to the Tortugas Ecological Reserve. * * * * * (b)(1) Access permits must be requested at least 72 hours but no longer than one month before the date the permit is desired to be effective. Access permits do not require written applications or the payment of any fee. Permits may be requested via telephone or radio by contacting FKNMS at the following number: Key West office: telephone: (305) 292– 0311 * * * * * Subpart Q—Hawaiian Islands Humpback Whale National Marine Sanctuary 51. Revise § 922.181(a) to read as follows: ■ § 922.181 Boundary. (a) Except for excluded areas described in paragraph (b) of this section, the Hawaiian Islands Humpback Whale National Marine E:\FR\FM\28JAP2.SGM 28JAP2 6024 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules Sanctuary encompasses approximately 1,032 square nautical miles (nmi2), and consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the shoreline, cutting across the mouths of rivers and streams: * * * * * ■ 52. Amend § 922.182 by revising the definition for ‘‘Alteration of the seabed’’ to read as follows: § 922.182 Definitions. * * * * * Alteration of the seabed means drilling into, dredging, or otherwise altering a natural physical characteristic of the seabed of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary. * * * * * (b) Other terms appearing in the regulations in this subpart are defined at 15 CFR 922.11, and/or in the Marine Protection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq. Subpart R—Thunder Bay Bank National Marine Sanctuary and Underwater Preserve 53. Revise § 922.190 to read as follows: ■ § 922.190 Boundary. The Thunder Bay National Marine Sanctuary and Underwater Preserve (Sanctuary) consists of an area of approximately 338 square nautical miles (nmi2) of waters of Lake Huron and the submerged lands thereunder, over, around, and under the underwater cultural resources in Thunder Bay. The boundary forms an approximately rectangular area by extending along the ordinary high water mark between the northern and southern boundaries of Alpena County, cutting across the mouths of rivers and streams, and lakeward from those points along latitude lines to longitude 83 degrees west. The coordinates of the boundary are set forth in appendix A to this Subpart. ■ 54. Amend § 922.191 by removing the definition for ‘‘traditional fishing.’’ ■ 55. Remove and reserve § 922.194. § 922.194 [Reserved]. 56. Revise § 922.195 to read as follows: § 922.195 Permit procedures. (a) A person may conduct an activity otherwise prohibited by § 922.193 (a)(1) through (3), if the activity is specifically authorized by and conducted in accordance with the scope, purpose, tkelley on DSK3SPTVN1PROD with ■ VerDate Mar<15>2010 18:35 Jan 25, 2013 Jkt 229001 terms and conditions of a State Permit provided that: (1) The State Archaeologist certifies to NOAA that the activity authorized under the State Permit will be conducted consistent with the Programmatic Agreement, in which case such State Permit shall be deemed to have met the requirements of subpart D of this part; or (2) In the case where the State Archaeologist does not certify that the activity to be authorized under a State Permit will be conducted consistent with the Programmatic Agreement, the person complies with the requirements of subpart D of this part. (b) In instances where the conduct of an activity is prohibited by § 922.193 (a)(1) through (3) of this subpart is not addressed under a State or other Federal lease, license, permit or other authorization, a person may conduct such activity if it is specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a permit issued pursuant to subpart D of this part and the Programmatic Agreement. (c) A permit for recovery of an underwater cultural resource may be issued if: (1) The proposed activity satisfies the requirements for permits described under paragraphs (a) through (b) of this section and section 922.33; (2) The recovery of the underwater cultural resource is in the public interest; (3) Recovery of the underwater cultural resource is part of research to preserve historic information for public use; and (4) Recovery of the underwater cultural resource is necessary or appropriate to protect the resource, preserve historical information, or further the policies of the Sanctuary. (d) A person shall file an application for a permit with the Michigan Department of Environmental Quality, Land and Water Management Division, P.O. Box 30458, Lansing, MI 48909– 7958. The application shall contain all of the following information: (1) The name and address of the applicant; (2) Research plan that describes in detail the specific research objectives and previous work done at the site. An archaeological survey must be conducted on a site before an archaeological permit allowing excavation can be issued; (3) Description of significant previous work in the area of interest, how the proposed effort would enhance or contribute to improving the state of knowledge, why the proposed effort PO 00000 Frm 00028 Fmt 4701 Sfmt 9990 should be performed in the Sanctuary, and its potential benefits to the Sanctuary; (4) An operational plan that describes the tasks required to accomplish the project’s objectives and the professional qualifications of those conducting and supervising those tasks (see § 922.195(e)(9) of this section). The plan must provide adequate description of methods to be used for excavation, recovery and the storage of artifacts and related materials on site, and describe the rationale for selecting the proposed methods over any alternative methods; (5) Archaeological recording, including site maps, feature maps, scaled photographs, and field notes; (6) An excavation plan describing the excavation, recovery and handling of artifacts; (7)(i) A conservation plan documenting: (A) The conservation facility’s equipment; (B) Ventilation temperature and humidity control; and (C) Storage space. (ii) Documentation of intended conservation methods and processes must also be included; (8) A curation and display plan for the curation of the conserved artifacts to ensure the maintenance and safety of the artifacts in keeping with the Sanctuary’s federal stewardship responsibilities under the Federal Archaeology Program (36 CFR part 79, Curation of Federally-Owned and Administered Archaeological Collections); and (9) Documentation of the professional standards of an archaeologist supervising the archaeological recovery of historical artifacts. The minimum professional qualifications in archaeology are a graduate degree in archaeology, anthropology, or closely related field plus: (i) At least one year of full-time professional experience or equivalent specialized training in archeological research, administration or management; (ii) At least four months of supervised field and analytic experience in general North American archaeology; (iii) Demonstrated ability to carry research to completion; and (iv) At least one year of full-time professional experience at a supervisory level in the study of archeological resources in the underwater environment. [FR Doc. 2013–00937 Filed 1–25–13; 8:45 am] BILLING CODE 3510–NK–P E:\FR\FM\28JAP2.SGM 28JAP2

Agencies

[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Proposed Rules]
[Pages 5997-6024]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00937]

[[Page 5997]]

Vol. 78

Monday,

No. 18

January 28, 2013

Part III

Department of Commerce

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National Oceanic and Atmospheric Administration

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15 CFR Part 922

Amendments to National Marine Sanctuary Regulations; Proposed Rule

Federal Register / Vol. 78 , No. 18 / Monday, January 28, 2013 /
Proposed Rules

[[Page 5998]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 070726416-2682-02]
RIN 0648-AV85

Amendments to National Marine Sanctuary Regulations

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

ACTION: Proposed rule; request for public comments.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
proposes to amend the program regulations of the national marine
sanctuaries. This rule would update and reorganize the existing
regulations, eliminate redundancies across sanctuaries, eliminate
outmoded regulations, adopt standard boundary descriptions, and
consolidate general and permitting procedures.

DATES: Comments on this proposed rule must be received no later than
March 29, 2013.

ADDRESSES: You may submit comments, identified by NOAA-NOS-2011-0120,
by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NOS-2011-0120, click the ``Comment Now!'' icon,
complete the required fields and enter or attach your comments.
Mail: Meredith Walz, Office of National Marine
Sanctuaries, 1305 East-West Highway, 11th floor, Silver Spring, MD
20910.
Comments sent by any other method, to any other address or
individual, or received after the end of the comment period, will not
be considered by NOAA. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NOAA will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Electronic Access

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

I. Background

In 1972, Congress passed the Marine Protection, Research, and
Sanctuaries Act, which, among other things, establishes the National
Marine Sanctuary System (System). Title III of that Act--now also
called the National Marine Sanctuaries Act (NMSA)--provides a mechanism
for the Secretary of Commerce (Secretary) to designate and manage, as
national marine sanctuaries, areas of the marine environment that are
of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archeological, educational, or esthetic qualities (16 U.S.C. 1431 et
seq.). Since the NMSA was passed, thirteen national marine sanctuaries
have been designated. Day-to-day management of the System has been
delegated by the Secretary to NOAA's Office of National Marine
Sanctuaries (ONMS). Regulations implementing the NMSA and each
sanctuary are codified in Title 15 Part 922 of the Code of Federal
Regulations (CFR). Part 922 includes ``general'' regulations applicable
to all sanctuaries and ``site-specific'' regulations that relate to
each individual sanctuary.
As these sanctuaries have evolved and additional sanctuaries were
included in the System, both the general and site-specific regulations
have understandably changed and expanded. In certain instances,
however, the evolution and expansion of the System has resulted in
regulations that are redundant, inconsistent, outdated or conflicting.
This rule would update both the general and site-specific regulations,
making them more uniform, concise, organized, and understandable. By
doing so, it is not the intent of the ONMS to alter the regulations in
such a manner that would substantively change existing uses of the
sanctuaries or prohibit otherwise permitted activities in the
sanctuaries.
In addition, on January 18, 2011, the President issued Executive
Order 13563, ``Improving Regulation and Regulatory Review.'' Under this
executive order, the President directed all agencies to, among other
things, conduct retrospective analysis of existing significant
regulations and modify, repeal, or streamline (as deemed appropriate)
any regulations that may be outmoded, ineffective, insufficient or
excessively burdensome. This rulemaking is part of NOAA's effort to
carry out the President's directive.

II. Summary of the Proposed Amendments

This rulemaking proposes to take the following six actions:
Consolidate regulations applicable to all sanctuaries into
appropriate subparts.
Eliminate general requirements that are either outmoded or
merely duplicative of existing statutory requirements.
Amend procedures for identifying and evaluating marine
sites for possible national marine sanctuaries designation.
Adopt standard boundary descriptions.
Harmonize and consolidate definitions that are common to
all sanctuaries. Similar definitions now found in site-specific
regulations would be moved into the general requirements subpart. Where
necessary, definitions will be revised to result in a single, uniform
definition.
Reorganize, update, and consolidate the permitting
regulations into a single subpart.
Make other conforming and administrative changes.
Because the proposed changes are numerous and nuanced, NOAA is re-
printing the majority of part 922 as it would read if adopted as
proposed (excluding appendices and tables).
NOAA is also concurrently in the scoping process to amend the
regulations for several national marine sanctuaries (Florida Keys NMS,
Thunder Bay NMS, Hawaiian Islands Humpback Whale NMS, and Monitor NMS)
as part of separate rulemaking processes. Those proposals may be
undertaken as part of the sanctuaries' management plan review processes
and are independent of the action described in this proposed rule. If
necessary, NOAA will later harmonize the regulations for those national
marine sanctuaries with any final rule associated with this action.
NOAA proposes to revise the following sections of the regulations
of subparts A through R of 15 CFR part 922 with this proposed action.

[[Page 5999]]

A. General Regulations

B. 1. Reorganize and Amend Subparts A Through E
NOAA proposes to consolidate existing subparts A (General), B (Site
Evaluation List) and sections 922.40 through 922.47 of subpart E
(Regulations of General Applicability) into a new subpart A (General
and Regulations of General Applicability). Consistent with the purpose
of this rule, moving these subparts organizes provisions applicable to
all sanctuaries into a single subpart.
2. Amend National Marine Sanctuaries Identification, Evaluation, and
Designation Regulations
NOAA proposes to modify the existing subpart B, section 922.10,
pertaining to the Site Evaluation List (SEL), and move it to section
922.12. The SEL was established to be a list of marine sites of special
national significance from which future national marine sanctuaries can
be chosen. NOAA deactivated the SEL in 1995 to focus limited resources
on improving management of existing sanctuaries (a decision based in
part on the rapid expansion of the National Marine Sanctuary System
from 1989-1994). Since 1995, only one sanctuary, Thunder Bay National
Marine Sanctuary, has been added to the National Marine Sanctuary
System. The ability to review new sites is necessary for NOAA to
fulfill its statutory mandate to identify, designate and protect our
Nation's special marine areas. In this rulemaking, NOAA proposes to
provide an additional method in which sites would be identified and
considered active candidates. NOAA does not intend to reactivate the
SEL through this rulemaking. Rather, NOAA would continue to work with
the National Ocean Council and other stakeholders to further identify
ways to better improve the effectiveness of the SEL. Specifically, the
SEL would no longer be the exclusive method for NOAA to evaluate
potential new sanctuaries. NOAA proposes to delete paragraph 922.10(c)
to remove the requirement for sites to be selected from the SEL in
order to be identified as an activate candidate. The proposed change
would enhance the opportunity for public involvement in nominating
sites for consideration as a national marine sanctuary. Rather than
solely selecting potential sites from a periodically updated list, the
public would be able to petition NOAA as the need arises or as more and
better scientific information is known about a particular area. This
proposed action is consistent with a history of NOAA making the
designation of sanctuaries (and the revisions to their management plans
and regulations) an increasingly open and transparent process. This
regulatory change also establishes a system of public participation and
open exchange of information and ideas.
NOAA also proposes to modify subparagraph (d) which would become
subparagraph (c), by removing references to sites being selected from
the SEL and section 922.21. This is necessary as existing section
922.21 would be eliminated by this action. The existing section 922.21,
subpart C (Designation of National Marine Sanctuaries) reiterates the
process for selecting and designating new national marine sanctuaries
already spelled out in the NMSA. NOAA believes there is no need for
this redundancy in regulations and thus proposes to remove section
922.21.
NOAA also proposes to eliminate the remaining sections and reserve
most of subpart C (Designation of National Marine Sanctuaries). The
existing subpart C simply restate provisions contained in the NMSA,
which establish guidelines, standards, and procedures that must be
followed to designate a national marine sanctuary. The existing section
922.22(b) would be the only regulation retained from the existing
subpart C. Section 922.22(b) currently governs issuance of fishing
regulations. NOAA proposes to amend and move the existing 922.22(b) to
the newly amended section 922.3. Under that regulation, the Regional
Fishery Management Councils would be provided additional time to
respond to the Secretary's request for draft sanctuary fishing
regulations. Specifically, the deadline would be extended from the
current 120 days to a proposed 180 days. This extension would allow for
at least two council meetings to convene before a response is due to
the Secretary. NOAA believes this provides a more realistic timeframe
for Regional Fishery Management Councils to meet, vote, and develop
regulations on proposed actions. NOAA requests comments on the proposed
fishing regulations.
NOAA also proposes to eliminate subpart D (Management Plan
Development and Implementation) because it is redundant with the NMSA.
The NMSA generally provides the instruction and authority to develop
management plans, conduct and promote research, monitoring, education,
enforcement, and emergency contingencies. As discussed later in this
preamble, rather than reserving the subpart, subpart D would be renamed
and refocused on permitting procedures.
3. Use of the Term ``Submerged Lands''
NOAA proposes to revise references in the site-specific regulations
from ``seabed'' to ``submerged lands'', where appropriate. This
proposed change is a technical amendment, made solely for the purpose
of updating the language to align with the terms of designation for
many of the sanctuaries that now use the term ``submerged lands''
(Channel Islands NMS, Gulf of the Farallones NMS, Gray's Reef NMS,
Cordell Bank NMS, and Monterey Bay NMS). This change in terminology
results from a change in the term of art used more commonly today than
when the original sanctuary regulations were written. In addition, in
converting site descriptions in the past, NOAA has stated that these
technical changes to the regulations (i.e. replacing the term
``seabed'' with ``submerged lands'') was justified in order to be
consistent with the NMSA. NOAA continues to believe this is the case,
and doing so in this action is consistent with the purposes of this
regulatory action.
However, there are four sites (Flower Garden Banks NMS, Stellwagen
Bank NMS, Hawaiian Islands Humpback Whale NMS, and Florida Keys NMS),
whose terms of designation do not yet provide authority to regulate
activities that would affect ``submerged lands'' of sanctuaries. NOAA
plans to update the terms of designation in the future in a separate
rulemaking action. In the interim, for those four sites, NOAA proposes
to update the regulatory language to ``seabed or submerged lands'' so
that the language can evolve with the updating of the terms of
designation. This technical change should not result in any impacts, as
NOAA has consistently interpreted its authority under the NMSA as
extending to submerged lands, and amendments to the NMSA in 1984 (Pub.
L. 98-498) clarified that submerged lands may be designated by the
Secretary of Commerce as part of a national marine sanctuary (16 U.S.C.
1432(3)).

C. Boundary Descriptions

NOAA proposes to adopt a uniform standard for describing the
overall area of each sanctuary. The area for each individual sanctuary
was originally calculated using varying spatial techniques. As a
result, there are inconsistencies among the sanctuaries in the
description of the areal estimate. Currently, six sanctuaries (Channel
Islands NMS, Gulf of Farallones NMS, Gray's Reef NMS, Cordell Bank NMS,
Monterey Bay NMS, and Stellwagen Bank NMS) describe their sanctuary
areas in square nautical miles; three

[[Page 6000]]

sanctuaries (Flower Garden Banks NMS, Olympic Coast NMS, and the
Florida Keys NMS) provide the areal estimate in a combination of square
nautical miles and square kilometers; Thunder Bay NMS provides the
estimate in square miles and square kilometers; Monitor NMS provides
the estimate in miles; National Marine Sanctuary of American Samoa
provides it in acres and square miles; and no areal estimate is given
for Hawaiian Islands Humpback Whale NMS. To address these
inconsistencies, NOAA proposes to describe the area of each sanctuary
in square nautical miles, abbreviated as ``nmi\2\ ''. This means that
the areal estimate for Gulf of the Farallones NMS, Gray's Reef NMS,
Cordell Bank NMS, Monterey Bay NMS, and Olympic Coast NMS, would not be
changed, but the descriptor will change from nmi to nmi\2\.
In addition, NOAA has recalculated the areal estimates for each
sanctuary using consistent, system-wide areal estimation techniques and
technology, resulting in an improved estimate of the size of the
sanctuaries. There is no change to the boundaries of the sanctuaries.
This technical correction does not affect physical, biological, or
socioeconomic resources because it does not alter the sanctuary's
original size or boundaries. Sanctuary area was originally calculated
at the time of designation using widely varying spatial techniques. The
sanctuaries whose areal estimates are revised are: Monitor NMS, Channel
Islands NMS, National Marine Sanctuary of American Samoa, Florida Keys
NMS, Flower Garden Banks NMS, Stellwagen Bank NMS, and Thunder Bay NMS.
Additionally, the Hawaiian Islands Humpback Whale NMS boundary size is
estimated for the first time. This proposal would make the areal
estimates uniform throughout the System. The proposed change is a
technical amendment, made solely for the purpose eliminating
inconsistencies and adopting a uniform standard.
The geographic coordinates associated with the boundaries of each
sanctuary would also be updated. Currently, three sanctuaries list the
geographic coordinates in degrees, minutes, and seconds (e.g.,
``35[deg]00'23'' N latitude and 75[deg]24'32'' W longitude''), five
sanctuaries list the geographic coordinates in degrees and decimal
minutes (e.g., ``35[deg]14.50'' N latitude and ``75[deg]32.45'' W''
longitude), and another five sanctuaries list the geographic
coordinates as decimal degrees (e.g., ``31.362732; -80.921200''). NOAA
proposes to convert the geographic coordinates to decimal degrees as
calculated using the North American Datum of 1983. The conversion would
also include updates to geographic coordinates for special zones of
sanctuaries. NOAA believes standardizing the horizontal datum for all
sites would lessen confusion arising from the current use of different
datum among the various sites, reduce the risk of human error resulting
from self-calculations performed by visitors to or those traversing the
sanctuary, and it would make the geographic coordinates easier for
navigators to write, plot, and read. The shape, size, and location of
the actual boundaries would not change.
The proposed changes to the geographic coordinates will not appear
in the regulatory text of this proposed rule. Rather, corresponding
tables containing the proposed updated geographic coordinates can be
viewed and downloaded from https://sanctuaries.noaa.gov/library/aslldocs.html. Copies of the tables are also available upon request at
the address listed in the ADDRESSES section of this proposed rule. NOAA
encourages all interested persons to review and submit public comments
regarding the proposed conversion. The final rule would contain the
actual conversion tables.

D. Definitions

1. Definitions for Terms That Apply System-Wide
NOAA proposes to revise the section that contains definitions of
system-wide terms by: (1) Eliminating a term; (2) adding new terms; (3)
updating some existing definitions, (4) consolidating redundant terms
from the site-specific regulations; and (5) moving some site-specific
terms to the general regulations. Section 922.3 (which would be
renumbered as 922.11) would be expanded to include seventeen (17)
additional terms and corresponding definitions. While many existing
site-specific sanctuary regulations (subparts F through R) have
distinct terms and corresponding definitions, several terms have
identical or nearly identical definitions, and other terms have
disparate definitions. To ensure consistent interpretation of like
terms throughout the System, NOAA proposes to make several updates to
definitions, as described below.
a. Eliminated Term
NOAA proposes to delete the term ``fish wastes'' from the general
definitions because it is not used in any of the program regulations.
b. New Terms
NOAA proposes to define the terms ``abandoning'' and ``effective
date'' in the general definitions section because those terms are used
throughout the program regulations but are not defined.
In addition, NOAA proposes to add the term ``Washington Coast
treaty tribe'' to the general definitions in section 922.11. The term
was suggested as a result of consultation with the Olympic Coast NMS
management plan review process. The new definition would specifically
refer to any of the four tribes currently identified in the existing
Olympic Coast NMS regulations and would be defined as ``the Hoh, Makah,
or Quileute Indian Tribes or the Quinault Indian Nation.''
c. Terms Moved Without Change
The following terms and corresponding definitions would be moved to
section 922.11 without change: ``clean'', ``cruise ship'', ``federal
project'', ``lawful fishing'', ``lightering'', ``marine'', ``mineral'',
``National historic landmark'', ``oceangoing ship'', ``shunt'',
``State'', and ``subsistence use''.
d. Amended Definitions of Existing Terms
NOAA proposes to amend the definitions of some existing terms in
the general definitions section 922.11.
The office reference would be updated for the definition of
``Director'', and the definitions, including statutory references, are
clarified for the terms ``exclusive economic zone'', ``national marine
sanctuary'', and ``regional fishery management council''.
NOAA also proposes to modify the following terms to address issues
and limitations identified since NOAA first promulgated the
regulations: ``benthic community'', ``conventional hook and line
gear'', ``cultural resource'', ``historical resource'', ``Indian
tribe'', ``injure'', ``person'', ``sanctuary quality'', ``sanctuary
resource'', ``take or taking,'' ''tropical fish,'' and ``vessel.''
``Benthic community'' would be updated by adding ``sea/ocean/lake''
before ``bottom'' to reflect the appropriate descriptive term,
depending on the sanctuary.
``Conventional hook and line gear'' would be updated by removing
the phrase ``from aboard a vessel or'' from the definition, and
replacing the descriptor ``hind- or electrically operated, hand-held or
mounted'' with ``hand, electrically, or hydraulically operated,
regardless of whether mounted'', and replacing the descriptor ``fishing
apparatus'' with ``fishing gear''. These proposed changes would make
the definition conform to common fishing practices (e.g., conventional
hook and line fishing may occur from shore, from a bridge, etc.), and
simplify

[[Page 6001]]

language describing the various fishing gear and methods. The spelling
error would also be corrected. In addition, the definition would be
revised to replace the term ``bottom longline'' with ``longline''. This
proposed change would eliminate the word ``bottom'' from the
definition. Currently the term ``conventional hook and line gear'' is
used only in prohibitions of the Flower Garden Banks NMS (section
922.122(a)(7)-(10)) as an exception to the take of certain sanctuary
resources. This change would clarify that the prohibition applies to
all types of longlines in Flower Garden Banks NMS, and not just bottom
longlines. NOAA notes that the existing definition of ``conventional
hook and line gear'' applies only to ``fishing gear * * * composed of a
single line terminated by a combination of sinkers and hooks or lures *
* * '' Since longline is a single line fitted with a series of offshoot
lines along its entire length, it does not fit within the definition of
``conventional hook and line gear''. By removing the word ``bottom''
from the definition, NOAA hopes to eliminate confusion. This proposed
change would impact only the prohibitions of Flower Garden Banks NMS
and make it consistent with current fishing practices at that site.
``Commercial fishing'' would be modified to include the phrase
``including any attempt to engage in such activity.'' The proposed
modification is intended to clarify that the term ``commercial
fishing'' does not only apply to activity that results in the sale or
trade of fish, shellfish, algae or corals, but also applies to ``any
attempt'' to sell or trade fish, shellfish, algae or corals for profit.
NOAA strongly believes the proposed modification would make the
definition of ``commercial fishing'' consistent with current
interpretation under other statutes.
The terms ``cultural resources'' and ``historical resource'' would
be modified by including the phrase, ``but not limited to''. In
addition, for ``historical resource'', the term ``cultural resources''
is added to the list of examples. This update is intended to clarify
that the examples of various resources listed in the regulations are
not exhaustive, nor are they exclusive. The statutory citation for the
National Historic Preservation Act is incorporated by reference in
order to prevent delays associated with updating NOAA regulations
should changes occur to the statute in the future.
The term ``fish'' would be updated with the current language used
in the Florida Keys NMS regulations at 922.162, which is consistent
with the definition of ``fish'' contained in the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). The
applicable statutory reference is also inserted so that the source of
the regulatory definition may be easily identified.
The term ``harmful matter'' would be modified by adding a period at
the end of ``Sanctuary resources or qualities.'' The phrase ``including
but not limited to'' is replaced with ``Such substances or combination
of substances may include, but is not limited to''. The purposes of the
two above mentioned changes are to improve readability and promote
greater understanding.
The term ``Indian tribe'' found in the Olympic Coast NMS and
Thunder Bay NMS regulations would be moved to the system-wide
regulation, and would mirror the definition currently used in Executive
Order 13175. Updating this definition does not result in any change
from a management perspective with regard to either existing sanctuary.
The purpose is to bring the definition in line with the updated
language as required by Presidential directive.
NOAA proposes to update the definition of ``injure'' and clarify
that the term encompasses short or long term adverse changes to any
chemical, biological, or physical attribute, or viability of a
``sanctuary resource''; it would not be limited to acts that cause the
loss or destruction of sanctuary resources. The proposed revision would
also clarify that injury may be caused either directly or indirectly
and that injury includes ``the impairment of a sanctuary resource
service''. A resource service is a function performed by a sanctuary
resource for the benefit of another sanctuary resource or the public
(e.g., seagrass providing habitat and food for fish or a coral reef
providing recreational opportunities for members of the public who
enjoy snorkeling). This is consistent with current and past practices
in handling cases where resources have been damaged, destroyed, or
impaired. Adding the phrase, ``or the impairment of a sanctuary
resource'' therefore does not change the types of cases or expand the
pool of potential violations that are likely to be issued using this
definition, because these damages typically do both; cause damage and
impact the viability of the sanctuary resource and law enforcement
officers already treat these cases consistently. Thus, the change
reflects common practice in determining and assessing injuries under
the NMSA and is, therefore, intended only as clarification.
NOAA proposes to update ``sanctuary quality'' and ``sanctuary
resource'' by adding clarifying text (e.g. ``national marine'' inserted
before ``sanctuary''), and in the case of sanctuary resource, the
definition would complement that found in the NMSA and would include
``maritime heritage, cultural, archeological, and scientific''
resources. NOAA would also update the definitions by replacing ``the
substratum of the area of the Sanctuary'' with ``waters of the
sanctuary, the submerged lands of the sanctuary''. The term
``seabirds'' would be replaced with ``birds''. This is to account for
the fact that, as with most migratory creatures, birds may transit
through the sanctuary during the course of their life span. When
birds--seabirds, migratory birds, or water fowl--transit through the
sanctuary they become part of the sanctuary resources that fall under
the protection of NOAA consistent with the NMSA. NOAA also proposes to
incorporate the phrase, ``or parts or products thereof'' after ``any
living or non-living resource of a national marine sanctuary * * *''
This was added to ensure that protected resources are not dismembered
and removed. It does not change the intent of the original protections,
but when the original regulations were written, it was not common to
include the term of art ``or parts thereof'' in protective language, as
is commonly the case today.
``Tropical fish'' would be updated by replacing the phrase ``for
aquaria purposes'' with ``in the aquarium trade''. The proposed change
makes grammatical correction and updates the terminology to ``aquarium
trade'', which is currently used.
This revised definition of ``tropical fish'', however, would not
apply to the Florida Keys NMS. NOAA intends to continue to maintain a
site-specific definition of ``tropical fish'' in the Florida Keys NMS.
The state has managed a fishery for marine life species, including
``tropical fish'' for many years. NOAA has recognized this in Florida
Keys NMS site-specific regulations and has historically maintained a
separate definition of ``tropical fish'' for the Florida Keys NMS.
Section 922.162 incorporates the Florida Administrative Code, and would
be modified consistent with the Florida Marine Life rule. The proposed
definition would read: ``Tropical fish means any species included in
68B-42 of the Florida Administrative Code, or any part thereof.''
``Vessel'' would be modified to add at the end of the definition
additional non-exhaustive list of examples taken from the Florida Keys
NMS definition (e.g. ``the term would include, but would not be limited
to * * *''). This clarification

[[Page 6002]]

would be useful for law enforcement purposes by providing additional
guidance, but does not substantively change the original meaning of the
term, which lacked additional examples.
e. Consolidated Terms for Definitions That Varied
NOAA proposes to adopt a single definition for the following three
terms, and consolidate them into section 922.11: ``[stowed and] not
available for immediate use'', ``motorized personal watercraft
(MPWC)'', and ``traditional fishing''. Currently, there are two
definitions for the term ``stowed and not available for immediate use''
and a separate definition for ``not available for immediate use''.
There are also four different definitions, each, for the terms
``motorized personal watercraft'' and ``traditional fishing''.
Stowed and Not Available for Immediate Use
There are two nearly identical definitions of the term, ``stowed
and not available for immediate use'' and a separate definition for
``not available for immediate use'' that apply to three sites (Channel
Islands NMS, Florida Keys NMS, and Gray's Reef NMS). The operational
part of each definition is identical, but the illustrations of what
constitutes fishing gear being stowed and not available for immediate
use differ among the various sites. The definition for Channel Islands
NMS is the most comprehensive and is being proposed for all three sites
with a slight clarification that the term applies to fishing gear. This
proposed action would not change in meaning or application of the term
for law enforcement purposes. The term, ``stowed and not available for
immediate use'' would be defined as follows:

Stowed and not available for immediate use means fishing gear
not readily accessible for immediate use, e.g., by being fishing
gear 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).
Motorized Personal Watercraft (MPWC)
NOAA proposes to adopt a definition for MPWC very similar to the
current Monterey Bay NMS definition. The proposed definition slightly
differs from Monterey Bay regulatory definition in two respects. First,
the proposed definition has been enumerated in order to clearly show
that NOAA has adopted an integrated three-part definition. Second, the
design characteristics have been clarified in part 1 of the definition
in order to better identify the vessels of concern to NOAA. The
proposed definition would read as follows:

Motorized personal watercraft (MPWC) means (1) any vessel,
propelled by machinery, that is designed to be operated by standing,
sitting, or kneeling on, astride, or behind the motor of the vessel,
in contrast to the conventional manner, where the operator stands or
sits inside the vessel hull; (2) any vessel less than 20 feet in
length overall as manufactured and propelled by machinery and that
has been exempted from compliance with the U.S. Coast Guard's
Maximum Capacities Marking for Load Capacity regulation found at 33
CFR Parts 181 and 183, except submarines; or (3) any other vessel
that is less than 20 feet in length overall as manufactured, and is
propelled by a water jet pump or drive.

NOAA proposes to adopt this definition of MPWC for all sanctuaries
because it is the most comprehensive and rigorous of the various
definitions used for other sanctuaries. This definition captures key
elements of the operational definition adopted by Channel Islands NMS,
Gulf of the Farallones NMS, and the Florida Keys NMS. However, it
differs from those other sanctuary definitions by omitting reference to
particular hull design, length, or propulsion system which could be
rendered obsolete and ineffective over time due to the rapidly evolving
MPWC design changes. Rather, the definition is progressive and is
intended to cover a full range of existing (e.g., Kawasaki
Corporation's Jet Ski line, jet bikes, hovercraft, air boats, and race
boats) and future motorized personal watercraft that could create
conflicts with other sanctuary users and pose a threat to sanctuary
resources and qualities. The threat arises because the design features
of MPWC (e.g., small size, shallow draft, instant thrust, and ``quick
reflex'') increase the craft's maneuverability and allow riders to
operate nearshore and access shallow water areas and water areas
adjacent to rocky shores, reefs, and remote beaches that would commonly
pose a hazard to conventional craft operating at comparable speeds.
These areas are also often used by marine mammals and sea birds as
breeding, nursing, or resting areas. The marine mammals and sea birds
are often either unable to avoid these craft or are frequently alarmed
enough to significantly modify their behavior such as cessation of
feeding or abandonment of young. MPWC also tend to operate in
traditional surfing locations and have historically created conflicts
with other users. Of the various definitions, the Monterey Bay NMS
regulatory definition best identifies the various vessels of concern to
NOAA while avoiding an excessively complicated and lengthy definition
for MPWC. NOAA's rationale and authority for adopting the Monterey Bay
National Marine Sanctuary's is further explained in 73 FR 70488, 70499-
70501, Nov. 20, 2008 and is hereby incorporated in this notice.
NOAA believes the proposed definition contains an element of
flexibility so that should one prong become obsolete by design
innovation, the remaining two prongs would still apply and preserve the
protection intended by the regulations. Additionally, because the
proposed definition is consistent with the definition applied in
national parks, NOAA does not foresee enforcement problems in
sanctuaries located adjacent to areas managed by the National Park
Service. NOAA also believes the proposed definition would allow for
improved enforcement at other sites throughout the System, as it has in
Monterey Bay NMS. NOAA has prepared an environmental assessment in
conjunction with this proposed change.
Traditional Fishing
There are three different definitions of the term ``traditional
fishing,'' adopted by Florida Keys NMS, Stellwagen Bank NMS, and
Thunder Bay NMS. The only difference among these regulations is the
historical reference point. Some definitions refer to the effective
date of Sanctuary designation, whereas others refer to fishing
activities specifically identified in the environmental impact
statement and management plan for the sanctuary. To avoid confusion,
NOAA proposes to consolidate the existing definitions.
In formulating a single definition of ``traditional fishing'', NOAA
recognizes that Florida Keys NMS coordinates with the State of Florida
in the enforcement of prohibited activities and must also implement the
Florida Administrative Code among other competing interests. Therefore,
it is important to distinguish activities that were customarily
conducted prior to the designation of any sanctuary, and those that
were contemplated in the original designation and environmental
documents of the designation. NOAA believes this distinction would be
important for all sanctuaries, and not just Florida Keys NMS. Thus,
NOAA proposes to adopt the Florida Keys NMS definition for
``traditional fishing'' for all sanctuaries using this term, modified
as follows:

Traditional fishing means those commercial or recreational
activities that were customarily conducted within the Sanctuary
before its designation, as identified in the Sanctuary's original
final environmental impact statement and

[[Page 6003]]

management plan. For Thunder Bay National Marine Sanctuary and
Underwater Preserve, traditional fishing means those commercial,
recreational, and subsistence fishing activities that were
customarily conducted within the sanctuary prior to its designation.

NOAA also recognizes that subsistence fishing may occur at other
sites such as Olympic Coast NMS and National Marine Sanctuary of
American Samoa, however, we believe that these activities are already
covered by the existing definition of subsistence use. Thus, we do not
believe the proposed changes alter any previously held rights in these
areas or alter fishing regulations in any manner.
f. Consolidated Terms With Identical or Nearly Identical Definitions
In addition to the consolidated definitions above, NOAA has
identified other minor differences in a few other definitions that we
propose to consolidate in the system-wide regulations. NOAA proposes
minor changes to the following four definitions:
Deserting
The term ``deserting'' would be moved from Monterey Bay and Gulf of
the Farallones national marine sanctuaries regulations to the new
definition section at 922.11, and amended to include the following
descriptors, ``wrecked, junked, or in a substantially dismantled
condition.'' These descriptors are intended to provide guidance to law
enforcement in applying the regulations, and assist the public in
better understanding the regulations. The term is currently used only
in the prohibition for these two sites. While adding the descriptors
``wrecked, junked, or in a substantially dismantled condition'' could
be interpreted to expand the universe of activities that constitute
deserting a vessel, NOAA's intent is to provide additional guidance to
persons that may identify with these terms in addition to the existing
examples of ``aground or adrift.''
Graywater
NOAA proposes to incorporate into the sanctuary program regulations
the definition of ``graywater'' established under section 312 of the
Federal Water Pollution Control Act (FWPCA, 33 U.S.C. 1322 et seq.).
Section 312 (a)(11) of the FWPCA defines ``graywater'' to include
galley, bath and shower water. Many site specific regulations already
prohibit the discharge of galley, bath and shower water. Therefore,
NOAA believes it improves the definition to explicitly refer to the
FWPCA, which is the statutory source of the definition.
Seagrass
``Seagrass'' would be modified only by consolidating all the
examples, without change, from the sanctuaries that list them following
the definition.
Take or Taking
The definition of ``Take or taking'' would be reformatted and
updated. NOAA proposes to keep the second half of the existing
definition intact with some modifications. Specifically, the types of
resources protected would not be limited by the regulations. Currently,
the definition of ``take or taking'' refers to the protection of marine
mammals, sea turtles, and seabirds. The regulations were never intended
to only protect these three classes of sanctuary resources. The three
classes of sanctuary resources have been replaced with the broader term
``sanctuary resources''. This proposed change is intended to clarify
that any living or non-living resource of a national marine sanctuary
is protected as contemplated by the NMSA. The proposed definition would
also incorporate by reference the Endangered Species Act (16 U.S.C.
1531 et seq. (ESA)), the Marine Mammal Protection Act, as amended (16
U.S.C. 1361 et seq. (MMPA)) and the Migratory Bird Treaty Act, as
amended (16 U.S.C. 703 et seq. (MBTA)). Eight sanctuaries (Channel
Islands NMS, Gulf of the Farallones NMS, Cordell Bank NMS, Monterey Bay
NMS, Stellwagen Bank NMS, Olympic Coast NMS, Florida Keys NMS, and
Hawaiian islands humpback Whale NMS) currently incorporate these
statutes in their site-specific regulations. As such, the proposed
change serves as a consolidation of those regulations. Instead of
crafting a separate definition of ``take or taking'' with respect to
the sanctuary System, NOAA believes it would be most helpful for
enforcement personnel to apply a consistent interpretation of the three
statutes. Law enforcement would be the best and most well versed on any
changes that occur to these definitions over time. By incorporating
these statutes into the national definition by reference, NOAA would
avoid unnecessary delays in making the statutory updates to ONMS
regulations.
g. Other Terms That Would Remain in Site-Specific Regulations
There are several sites that will retain some site-specific terms,
such as the Florida Keys NMS and Olympic Coast NMS, as mentioned above.
NOAA also notes that the newly adopted definition of ``live rock'' in
the NMS of American Samoa will also be separate and distinct from a
long-standing definition of ``live rock'' in the Florida Keys NMS. NOAA
intends to continue to maintain a site-specific definition of ``live
rock'' in the NMS of American Samoa. This is because the definition
used in that site incorporates both the American Samoan code (which
specifically includes basalt rock under Title 24, Chapter 9), and also
adopts the term from the Western Pacific Regional Fisheries Management
Council's Coral reef Ecosystems Fishery Management Plan (69 FR 8336,
Feb. 24, 2004). Similarly, the Florida Keys NMS definition is derived
from the FNMSPA. For these reasons, NOAA will recognize and maintain a
separate definition for this term in both the NMS of American Samoa and
in the Florida Keys NMS.

D. Permitting Regulations

1. Background
NOAA proposes to update and consolidate its sanctuary permitting
procedures and requirements, which would be set forth in a new section
named ``Subpart D--National Marine Sanctuary Permitting.'' Currently,
ONMS permit review criteria and procedures are located in several
different parts of the regulations: 922.48 National Marine Sanctuary
permits--application procedures and issuance criteria; 922.49
Notification and review of applications for leases, licenses, permits,
approvals, or other authorizations to conduct a prohibited activity;
922.50 Appeals of administrative action; and in subparts F through R in
sanctuary-specific regulations.
In general, the proposed rule would consolidate permitting
regulations, and update and clarify ONMS permitting authority.
Specifically, the proposed action would:
a. Consolidate and amend general permit types (922.30);
b. Add a new section on the issuance of special use permits
(922.31);
c. Clarify application requirements and procedures (922.32);
d. Consolidate and amend permit review criteria (922.33);
e. Clarify permit amendment procedures (922.34);
f. Add a new section on the imposition of special use permit fees
(922.35);
g. Clarify authorizations authority (922.36); and
h. Update and amend the appeals processes (922.37).
The proposed rule would: eliminate redundancy, thereby
significantly shortening site-specific permitting regulations; make
permitting criteria

[[Page 6004]]

and procedures uniform across sites, to the extent appropriate; resolve
unnecessary inconsistencies; and update and clarify regulations.
2. General Permit Categories
ONMS has three ways by which it may authorize otherwise prohibited
activities: general permits, special use permits, and authorizations.
General permits are divided into several categories that correspond
with the primary purpose of the proposed activity. NOAA proposes to
consolidate all general permit categories into one section (922.30) and
provide a single description of each permit category. NOAA proposes to
eliminate some site-specific general permit categories that can
adequately be addressed in one or more of the general permit
categories. NOAA also proposes to move some site-specific general
permit categories into this consolidated section.
Most sanctuary regulations have at least three categories of
general permits: (1) Management; (2) education; and (3) research.
However, the language describing these categories is not consistent
among the sites. NOAA proposes to make these three general permit
categories applicable to all sanctuaries, consolidate these categories
into a single section, and provide a single description of each permit
category. System-wide, this change will slightly expand the activities
eligible for a permit. All sanctuary regulations currently allow the
issuance of a general permit for research. Monitor National Marine
Sanctuary (Monitor NMS) does not currently allow the issuance of
general permits for education and management, so these would be new
activities for Monitor NMS.
Other categories of general permits at some sanctuaries include:
salvage associated with an air or marine casualty or of a historic
shipwreck; restoration of natural habitats, populations, or ecological
processes; and response to the imminent risk of a sanctuary resource
injury. These activities will be considered under a category determined
appropriate for the proposed action (e.g., management or research).
Sanctuary general permits for management are commonly used for
activities that further the management or resource protection
objectives identified at a particular site. Thus, proposed restoration
and incident response activities would typically qualify for a general
permit for management. Historic shipwreck salvage may qualify for a
general permit for research or management depending on the specific
proposed action. Salvage associated with an air or marine casualty
would likely qualify for a general permit for management. Thus, the
activity of salvage would continue to qualify for a general permit,
although it would no longer be a separate category of general permit.
In addition, some sanctuaries have site-specific categories of
general permits. Four site-specific categories of general permits would
be moved to this section, but would only apply to the specified
sanctuary. The four site-specific general permit categories which will
be moved into the general permit section are: jade removal in Monterey
Bay NMS; tribal self-determination in Olympic Coast NMS; maritime
heritage in Florida Keys NMS; and otherwise furthering the purposes of
the Florida Keys NMS. It should be noted that the tribal self-
determination permit category for Olympic Coast NMS is specific to
activities that promote or enhance treaty right activities. Activities
necessary for the exercise of treaty rights are exempt from Olympic
Coast NMS regulatory prohibitions, and thus do not require a permit.
3. Review Criteria
NOAA proposes to consolidate and amend permit review factors or
criteria. All sanctuaries with permitting authority currently have a
list of factors or criteria that the Director must consider in
determining whether to issue a permit. The list of factors or criteria
considered by the Director is not consistent across all sites, nor is
the regulatory text for the same factor consistent. Additionally, when
determining eligibility for a permit, sanctuaries vary as to whether
site-specific factors or criteria must be met or simply considered.
To achieve greater consistency, NOAA proposes a single list of nine
review criteria. Eight criteria would be applicable to all sanctuaries,
while one would be unique to Olympic Coast NMS (the activity as
proposed shall not adversely affect Washington Coast treaty tribes).
NOAA would make the review criteria affirmative findings that must be
met before the Director may issue a permit. This approach is consistent
with the approach taken under the existing regulations for Florida Keys
and Gray's Reef NMS. This approach is also consistent with the common
practice employed by the Director at the other sites within the system.
The Olympic Coast NMS site-specific permitting regulations
presently include a permit review criterion that the Director must
consider the impacts on tribes in the evaluation of permit
applications. In order to retain the intent while changing the
criterion into an affirmative finding consistent with the other general
permit criteria, NOAA proposes to modify the criterion to require that
proposed permit activities shall not adversely affect Washington Coast
treaty tribes.
NOAA also proposes to eliminate site-specific impact thresholds for
permit issuance. In addition to review factors or criteria, four sites
(National Marine Sanctuary of American Samoa, Monterey Bay, Stellwagen
Bank and Olympic Coast national marine sanctuaries) have a regulatory
impact threshold that must be satisfied for a permit to be issued. Of
these sanctuaries, only Monterey Bay and Stellwagen Bank have the same
impact threshold. The three different types of impact thresholds do not
provide clear and well-defined limits, as was originally intended.
Without clear limits, the determination as to whether an action meets
or exceeds a threshold can be murky. NOAA believes that this defeats
the purpose for which thresholds were originally established. These
site-specific impact thresholds would be eliminated in favor of the new
review criteria stated as affirmative findings. The review criteria
specific to the acceptable level of impact to sanctuary resources and
qualities would be: ``the expected end value of the activity to the
furtherance of the national marine sanctuary goals and purposes must
outweigh any potential adverse impacts on sanctuary resources and
qualities.''
NOAA believes that establishing a consistent set of regulatory
review criteria written as affirmative findings and eliminating site-
specific impact caps would enable better management practices across
the System. In theory, permit reviewers for nine sites would now be
required to make affirmative findings, rather than being allowed merely
to consider the review criteria. However, in practice, this would not
be new. The four sites with impact thresholds are among the nine that
will now have affirmative findings included as part of their permit
issuance procedures.
4. Appeals
NOAA proposes to amend the administrative process for appealing
sanctuary permit decisions. First, NOAA proposes that only permit
applicants and permittees would be allowed to file an administrative
appeal of a permit decision. Currently, ``any interested party'' can
appeal permitting decisions for Monitor, Channel Islands, Gulf of the
Farallones, Gray's Reef, National Marine Sanctuary of American Samoa,
and Cordell Bank national

[[Page 6005]]

marine sanctuaries. For the six other sanctuaries with permitting
authority, only permit applicants and permittees can appeal. NOAA has
researched the history of the regulations governing administrative
appeal of permitting decisions and there appears to be no identifiable
reason for this inconsistency. Moreover, NOAA is unaware of any appeal
that has ever been filed by a person other than a permittee or
applicant. The lack of a broader appeal base has never been contested
in the other six sanctuaries that limit the appeal pool only to
applicants and permittees. For all the reasons set forth above, to
eliminate inconsistencies, and to make this regulation apply more
uniformly, NOAA proposes to restrict the potential appellants to
permittees and permit applicants under a new section 922.37 and make
the regulations applicable to all sites.
NOAA also proposes to eliminate the requirement that the Assistant
Administrator (AA) hold an informal hearing for administrative appeals
for the Monitor NMS. All other sanctuary regulations provide the AA
with discretion to determine whether an informal hearing is necessary.
This level of discretion would now be extended to the AA with regard to
the Monitor NMS.
5. Special Use Permits and Fees
NOAA proposes to add a new section to the system-wide permit
regulations that addresses the authority of the Secretary of Commerce
(delegated to the ONMS Director) to issue special use permits (SUPs) as
established by Section 310 of the NMSA. Although all sanctuaries
currently have authority to issue SUPs, the only sanctuary that
currently has regulations that specifically provide for them is the
Florida Keys NMS. NOAA proposes to use the existing Florida Keys NMS
regulations (922.166(d)) as a basis for the new system-wide regulation.
SUPs can be used to authorize the conduct of specific activities in
a sanctuary if such authorization is necessary (1) to establish
conditions of access to and use of any sanctuary resource or (2) to
promote public use and understanding of a sanctuary resource. Examples
of activities that qualify for a SUP include continued presence of
submarine cables beneath or on the seabed of a sanctuary, disposal of
cremated human remains in a sanctuary, and commercial operation of
aircraft below the minimum altitude in restricted zones of a sanctuary.
Other activities that qualify for a SUP are set forth in the Federal
Register (71 FR 4898; Jan 30, 2006). Categories of SUPs may also be
changed through public notice.
The NMSA allows the assessment and collection of fees for the
conduct of any activity under a SUP. Fees would be addressed in the new
section 922.35 of these regulations. The fees collected could be used
to recover the administrative costs of issuing the permit, the cost of
implementing the permit, and the fair market value of the use of
sanctuary resources.
6. Application Requirements and Amendment Procedures
NOAA proposes to make minor clarifications to the section on
application requirements and procedures. These requirements are for the
most part unchanged, with the exception of revising the section to read
more clearly. The proposed changes would clarify that the Director may
refuse to further consider an incomplete application. Applications are
deemed incomplete if an applicant fails to submit required or requested
information, pay outstanding penalties, or comply with any permit
previously issued to the applicant. In addition, the language in new
section 922.34 governing permit amendments has been revised to clarify
that NOAA does not issue ``renewal'' permits, but has a longstanding
practice of ``amending'' the expiration dates of existing permits.
While NOAA is not proposing to set a deadline for submission of
amendments before permit expiration, we generally recognize that a
reasonable time frame to conduct adequate review would be 30 days prior
to the date of expiration, with some exceptions, such as when an
environmental assessment or environmental impact statement would be
required or when the scope of the proposed action or its impacts are
significantly different from the original proposal.
7. Authorizations
ONMS regulations currently at 922.49 provide the Director with
authority to allow an otherwise prohibited activity ``if such activity
is specifically authorized by any valid Federal, State, or local lease,
permit, license, approval, or other authorization.'' This form of
approval has become known as an ``authorization'' and is used by six
sanctuaries: Flower Garden Banks, Monterey Bay, Stellwagen Bank,
Olympic Coast, Florida Keys, and Thunder Bay. For the most part, these
are sites that significantly overlap state waters or other federal
agencies' jurisdictions, or that have a significant amount of coastline
adjacent to the site. Given this, these sites frequently host
activities that require multiple state or federal permits. The
authorization process was intended to streamline regulatory
requirements by reducing the need for multiple permits.
NOAA proposes to remove unclear and outdated language from section
922.49, revise the language, and renumber the regulation as section
922.36. NOAA is also proposing to require that the Director consider
the review criteria at 922.33(a)(1)-(7) in evaluating authorization
requests. It is already common practice to use the permit review
criteria as guidance in deciding whether to issue authorizations. The
regulations at 922.36(c)(2) would make the consideration of the permit
review criteria by the Director mandatory. In addition, section
922.36(c)(3)(iii) would clarify that the Director has authority to
issue an authorization containing mandatory terms and conditions.

E. Other Conforming and Administrative Changes

--Under 922.163(f), outdated references would be removed
--Under 922.166, references are proposed to be updated from
``historical'' to ``maritime heritage'' resources, and a correction is
made to appropriately update the state of Florida and Florida Keys NMS
``Submerged Cultural Resource (SCR)'' programmatic agreement to simply,
Programmatic Agreement, or ``PA''
--Address corrections are made for several permitting sections, as
sanctuary offices have changed or moved (for Stellwagen Banks NMS,
Olympic Coast NMS, and Florida Keys NMS).
--922.194 is no longer applicable, and therefore NOAA proposes to
remove the text and reserve the section.

As an aid to the reader in understanding the proposed changes, we
include the following table of specific changes:

Note: The revised geographic coordinates discussed in this
notice can be viewed and downloaded from https://sanctuaries.noaa.gov/library/alldocs.html, or obtained upon request
at the address listed in the ADDRESSES section of this proposed
rule.

[[Page 6006]]

------------------------------------------------------------------------
Current regulations Proposed change
------------------------------------------------------------------------
Subpart A.................... Revised to include amended text from
consolidated from the existing Subparts
A, D and E-R.
Sec. 922.1................... Revised to include amended text
consolidated from the existing sections
922.1, 922.4; and subpart E, section
922.40.
Sec. 922.2................... Revised.
Sec. 922.3................... Renumbered 922.11 and revised to add some
terms from the site-specific regulations
(F-R), delete some outmoded terms,
rename some terms, and amend the
definition of some terms.
Sec. 922.4................... Consolidated into newly amended subpart
A. Renumbered Sec. 922.1 and revised.
Subpart B.................... Reserved.
Sec. 922.10.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.12 and revised.
Subpart C.................... Reserved.
Sec. 922.20, 922.21, 922.23, Removed.
922.24, and 922.25.
Sec. 922.22.................. Removed paragraph (a). Paragraph (b)
consolidated into newly amended subpart
A. Renumbered Sec. 922.3 and revised.
Subpart D.................... Revised and Renamed ``Subpart D--National
Marine Sanctuary Permits''.
Sec. 922.30 and 922.31....... Removed.
Subpart E.................... Reserved.
Sec. 922.40.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.1 and revised.
Sec. 922.41.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.4. No other
changes made to text.
Sec. 922.42.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.5 and revised.
Sec. 922.43.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.6. No other
changes made.
Sec. 922.44.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.7 and internal
cross references updated. No other
changes made.
Sec. 922.45.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.8 and revised.
Sec. 922.46.................. Consolidated into newly amended subpart
A. Renumbered Sec. 922.9.
Sec. 922.47.................. Paragraph (a) consolidated into newly
amended subpart A. Renumbered Sec.
922.10. Paragraph B removed.
Sec. 922.48 through 922.50... Consolidated into newly amended subpart
D. Renumbered Sec. 922.30 through 922.37
and revised.
Subpart F.................... Retained.
Sec. 922.60.................. Revised areal estimate and geographic
coordinates.
Sec. 922.62.................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart G.................... Retained.
Sec. 922.70.................. Updated abbreviation of areal estimate.
Sec. 922.71.................. Reserved. Entire section revised and
consolidated into newly amended subpart
A, Sec. 922.11.
Sec. 922.74.................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart H.................... Retained.
Sec. 922.80.................. Updated abbreviation of areal estimate.
Sec. 922.81.................. Revised and consolidated terms into newly
amended subpart A, Sec. 922.11
consistent with proposed changes. No
changes made to terms retained in this
section.
Sec. 922.82.................. Updated internal cross reference in
paragraph (c).
Sec. 922.83.................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart I.................... Retained.
Sec. 922.90.................. Updated abbreviation of areal estimate.
Sec. 922.91.................. Revised and consolidated terms into newly
amended subpart A, Sec. 922.11
consistent with proposed changes. No
changes made to terms retained in this
section.
Sec. 922.92.................. Updated internal cross reference in
paragraph (a).
Sec. 922.93.................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart J.................... Retained.
Sec. 922.101................. Revised areal estimate and geographic
coordinates.
Sec. 922.102................. Revised and consolidated terms into newly
amended subpart A, Sec. 922.11
consistent with proposed changes. No
changes made to terms retained in this
section.
Sec. 922.103................. Update internal cross reference in
paragraph (e)
Sec. 922.107................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart K.................... Retained.
Sec. 922.110................. Updated abbreviation of areal estimate.
Sec. 922.111................. Reserved. Entire section consolidated
into newly amended subpart A, Sec.
922.11.
Sec. 922.112................. Updated internal cross reference in
paragraph (b).
Sec. 922.113................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart L.................... Retained.
Sec. 922.120................. Revised areal estimate.
Sec. 922.121................. Revised consistent with proposed changes.
Sec. 922.122................. Paragraph (a)(4) updated by adding
``seabed or submerged lands''. Paragraph
(a)(7) revised by replacing ``bottom
longlines'' with ``longlines''. Updated
internal cross reference in paragraphs
(f), (g) and (h) to conform to proposed
changes.

[[Page 6007]]

Sec. 922.123................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes. Address updated.
Appendix A................... Revised geographic coordinates.
Subpart M.................... Retained.
Sec. 922.130................. Updated abbreviation of areal estimate.
Sec. 922.131................. Revised and consolidated terms into newly
amended subpart A, Sec. 922.11
consistent with proposed changes. The
abbreviation of the areal estimate for
Davidson Seamount Management Zone has
been updated to conform to proposed
changes. No changes made to terms
retained in this section.
Sec. 922.132................. Updated internal cross reference in
paragraphs (d), (e) and (f) to conform
to proposed changes.
Sec. 922.133................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
Subpart N.................... Retained.
Sec. 922.140................. Updated abbreviation of areal estimate,
and revised geographic coordinates.
Sec. 922.141................. Revised and consolidated terms into newly
amended subpart A, Sec. 922.11
consistent with proposed changes.
Updated cross reference in term retained
in this section.
Sec. 922.142................. Paragraph (a)(3) updated by adding
``seabed or submerged lands''. Updated
internal cross reference in paragraphs
(d), (e) and (f) to conform to proposed
changes.
Sec. 922.143................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes. Address updated.
Appendix A................... Revised geographic coordinates.
Subpart O.................... Retained.
Sec. 922.150................. Revised areal estimate.
Sec. 922.151................. Revised and consolidated terms into newly
amended subpart A, Sec. 922.11
consistent with proposed changes. No
changes made to terms retained in this
section.
Sec. 922.152................. Paragraph (a)(3) updated by adding
``seabed or submerged lands''. Updated
internal cross reference in paragraphs
(e), (g) and (h) to conform to proposed
changes.
Sec. 922.153................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes. Address updated.
Appendix A................... Revised geographic coordinates.
Subpart P.................... Retained.
Sec. 922.161................. Revised areal estimate.
Sec. 922.162................. Revised and consolidated into Subpart A,
Sec. 922.11 to conform to proposed
changes. One administrative change is
made to a single term retained in this
section.
Sec. 922.163................. Paragraph (a)(3) updated by adding
``seabed or submerged lands''. Updated
internal cross reference in paragraphs
(b), (c) and (f) to conform to proposed
changes. Removed outdated reference in
paragraph (f) which provided an
exception for discharge of sewage.
Sec. 922.164................. Updated internal cross reference in
paragraph (e)(1)(iii).
Sec. 922.166................. Revised and consolidated into newly
amended subpart D. The remaining
language updated by replacing
``historical'' with ``maritime
heritage'' resources and ``Submerged
Cultural Resource (SCR) programmatic
agreement is replaced with
``Programmatic Agreement'' or ``PA''.
Sec. 922.167................. Updated contact phone number.
Appendix I, II, IV through Revised geographic coordinates.
VII.
Subpart Q .........................................
Sec. 922.181................. Areal estimate provided.
Sec. 922.182................. Revised definition of ``Alteration of the
seabed''. Updated internal cross
reference in paragraphs (b).
Appendix A................... Revised geographic coordinates.
Subpart R .........................................
Sec. 922.190................. Revised areal estimate.
Sec. 922.191................. Definition of ``traditional fishing''
removed and consolidated into Subpart A,
Sec. 922.11 to conform to proposed
changes. No changes made to terms
retained in this section.
Sec. 922.194................. Removed/Reserved.
Sec. 922.195................. Revised and consolidated into newly
amended subpart D. The remaining
language updated to conform to proposed
changes.
------------------------------------------------------------------------

III. Request for Comments

NOAA requests comments on this proposed rule. In particular, NOAA
seeks to determine whether the proposed changes effectively streamline
or otherwise improve the regulations and requests input on the
preliminary questions listed below. These questions are not intended to
be exhaustive. You may raise other issues or make suggestions unrelated
to these questions if you believe it would help NOAA develop better
regulations. In addition, NOAA invites you to provide comments on how
to make the regulations easier to understand.
(1) Has NOAA identified those sections of the regulations that can
and should be changed, streamlined, consolidated, or removed?
(2) Would a different format (grouping and order of sections, use
of headings, paragraphing) make the regulations easier to understand?
(3) Are there additional regulations beyond those that NOAA
proposes to change in this action that have become unnecessary and
could be amended or withdrawn without impairing NOAA's sanctuary
regulatory program?
(4) Are there additional regulations within the sanctuary program
regulations that NOAA has not identified in this document as proposed
changes, and that have become outdated? If so, how can they be
modernized to better accomplish their regulatory objectives?

[[Page 6008]]

(5) Has NOAA efficaciously identified and made proposed amendments
to the regulations to improve effectiveness? Are there additional
regulations that are still necessary, but that have not operated as
well as expected such that a modified, stronger, or slightly different
approach is justified?
(6) Are there regulations that are working well that can be
expanded or used as a model to fill gaps in sanctuary regulatory
programs?
(7) Are the requirements in the regulations clearly stated? Do the
regulations contain technical language or jargon that is not clear?

IV. Classification

A. National Environmental Policy Act

This proposed rule contains both technical and substantive changes
to ONMS regulations. None of the proposed changes are expected to have
significant environmental impacts as defined in the regulations
implementing the National Environmental Policy Act. However, NOAA is
preparing a draft environmental assessment to analyze the potential
environmental impacts of this proposed rulemaking and will make that
analysis available for public comment. Copies will be made available at
the address and Web site listed in the ADDRESSES section of this
proposed rule. Responses to comments received on this proposed rule
will be published in the final environmental assessment and preamble to
the final rule.

B. Executive Orders 12866 and 13563

This proposed rule has been determined to not be significant within
the meaning of Executive Order 12866. Further, this initiative is part
of NOAA's effort to carry out the President's directive under Executive
Order 13563 for retrospective regulatory review.

C. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This proposed rule was developed after consultation and
collaboration with representatives from the Makah, Hoh, and Quileute
Indian Tribes and the Quinault Indian Nation through their membership
on the Olympic Coast Intergovernmental Policy Council (IPC) and the
Olympic Coast NMS Advisory Council. NOAA has represented to the IPC
that this regulatory action will not significantly change existing
regulations, and may actually improve tribal input on permitting
actions conducted in or adjacent to the Olympic Coast NMS. The IPC and
tribal government representatives on the Olympic Coast NMS Advisory
Council were active participants in a more significant rulemaking
conducted in association with the management plan review and regulatory
update to the Olympic Coast NMS regulations. The language that NOAA
adopted, through extensive public participation and government to
government consultation with the tribes, has been fully incorporated
without change in the regulatory language reflected within this rule.
The new changes proposed include adding a defined term ``Washington
Coast treaty tribe'', moving the tribal self-determination permit
category to the national permitting regulations, modifying a permit
review criterion to require that permitted activities shall not have an
adverse effect on Washington Coast treaty tribes, and adding the
consideration of all permit review criteria (including the effect of
the activity on tribes) to the authorizations procedures.
NOAA proposes to add the term ``Washington Coast treaty tribe'' to
the general definitions in section 922.11. The term was suggested as a
result of consultation with the Olympic Coast NMS management plan
review process, and therefore it is not anticipated there will be any
objection to this new term. The new definition would specifically refer
to any of the four tribes currently identified in the existing Olympic
Coast NMS regulations and would be defined as ``the Hoh, Makah, or
Quileute Indian Tribes or the Quinault Indian Nation.''
For Olympic Coast NMS specifically, permits that further tribal
self-determination are retained, without change from the recent
regulatory process. NOAA proposes, however, to move them to the new
permitting section under subpart D, without change. The permit category
would continue to read: ``promote or enhance tribal self-determination,
tribal government functions, the exercise of treaty rights or the
economic development of the tribe, subsistence, ceremonial and
spiritual activities, or the education or training of a tribal
member.''
The permit review consideration of the impacts of permitted
activities on tribes would now require permit reviewers to report an
affirmative finding that permitted activities would not adversely
affect Washington Coast treaty tribes. This increases protection of the
Washington Coast treaty tribes when compared to existing regulations
that requires permit reviewers to only ``consider'' impacts to tribes.
NOAA also proposes to eliminate the Olympic Coast NMS site-specific
impact threshold, which establishes that permitted activities must not
``substantially injure'' sanctuary resources and qualities. The impact
threshold is replaced by nine (9) affirmative findings as discussed in
the preamble to this proposed rule (section II.D.3., above). Among the
proposed affirmative findings, however, ONMS finds that the Olympic
Coast NMS unique finding of ``will not substantially injure'' would be
adequately captured in the findings that the activity must be (1)
conducted in manner compatible with the primary objective of resource
protection, (4) the end value to the goals and objectives of the
sanctuary outweighs potential adverse impacts, and (9) the activity
does not adversely affect Washington Coast treaty tribes. As stated
above, NOAA believes the removal of the Olympic Coast NMS ``substantial
injury'' affirmative finding has a negligible overall impact to permit
reviews as the threshold is rendered unnecessary by the list of nine
review criteria written as affirmative findings. NOAA believes that
this change should pose no overall impact to tribal interests with
regard to permitting activities.
NOAA believes the proposed changes to the authorization review
criteria increase protections for tribal interests. Currently the
regulations do not require a permit reviewer to consider tribal
interests when issuing an authorization. With the proposed change,
tribal protections are increased to a mandatory consideration of
whether activity adversely affects Washington Coast treaty tribes.
Therefore, the proposed action would further increase protections for
tribal consideration and protection for authorizations.
Last, and unrelated to the Olympic Coast NMS or Washington Coast
treaty tribes, NOAA proposes to consolidate the definitions for the
term ``traditional fishing''. While the definition should not impact
Olympic Coast tribes, we note in the preamble discussion that the
revised definition incorporates the terms ``subsistence fishing'' that
is currently used in the Thunder Bay NMS regulations. We also note that
we recognize subsistence fishing may occur at other sites such as
Olympic Coast NMS and National Marine Sanctuary of American Samoa.
However, we believe that these activities are already covered by the
existing definition of subsistence use. Therefore we do not believe the
proposed changes alter any previous rights held in these areas or alter
fishing regulations in any manner.

D. Executive Order 13132: Federalism Assessment

NOAA has concluded this regulatory action does not have federalism

[[Page 6009]]

implications sufficient to warrant preparation of a federalism
assessment under Executive Order 13132.

E. Paperwork Reduction Act

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

F. Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. The factual basis for this certification is that the proposed
changes are predominantly administrative in nature and generally would
not alter substantive legal obligations for the regulated community.
Specifically:
Moving current sections of the regulations to different
subparts and revising text as proposed by this rule would not
substantively change the effect or impact of the regulations;
Making the technical corrections to citations and obsolete
sections of the regulations as proposed by this rule would not
substantively change the effect or impact of the regulations;
Amending the definitions of ``stowed and not available for
immediate use'' and ``traditional fishing'' to be uniform among the
sanctuaries does not impact small entities because the proposed
definitions are identical or substantially similar to the definitions
currently used for managing sanctuary resources under ONMS regulations.
Clarifying and codifying these definitions does not change the
obligations of small business operators significantly because in
sanctuaries where these activities occur regularly, the current
definitions are identical or substantially similar to the proposed
definitions. Thus, amending the definitions to standardize them among
the various sanctuaries is not expected to substantially alter the
legal obligations of small businesses;
Amending the term ``motorized personal watercraft'' would
reconcile several definitions to create one uniform definition for all
sanctuaries. The revision is intended make the term more clearly
understood and reduce ambiguity for law enforcement purposes. This
regulatory change is not expected to affect small businesses because
they are already complying with existing restrictions on MPWC use, and
the proposed definition does not impose new or substantially alter
restrictions in any sanctuary where motorized personal watercraft
activity is currently regulated;
Amending and consolidating the permitting regulations from
many site-specific regulations to a single subpart does not
substantively change the requirements to apply for permits, nor does it
change the burden on applicants who wish to apply for permits.
Therefore, these changes should not alter the current operations of
small businesses, and may actually improve ease of applying for permits
by removing inconsistencies between the sanctuaries. The only
substantive change in the permitting sections is the proposal to change
the appeal section to limit the pool of appellants of a permit
decision, as discussed in section II.D.4 of the preamble to this
proposed rule. NOAA has researched the history of this regulation and
to date it has remained unutilized in the six sanctuaries that have a
broad appellant pool of ``any interested party.'' NOAA does not
anticipate that limiting the appellant pool would impact small
businesses, and NOAA believes the change would provide consistency
within the regulations across all sanctuaries. Small businesses that
apply for permits may actually benefit from this proposed change
because it improves transparency and predictability for applicants.
Therefore, these changes should not impact the current operations of
small business operators, and may improve ease of applying for permits
by removing inconsistencies and confusion that might otherwise occur.

Because the proposed changes are predominantly administrative in
nature, they do not generally alter the rights and responsibilities of
the regulated community. The one proposed substantive change is not
expected to have a significant impact on a substantial number of small
business entities because it is eliminating a provision that has never
been used previously. As a result, an initial regulatory flexibility
analysis is not required and none has been prepared.

List of Subjects in 15 CFR Part 922

Administrative practice and procedure, Amendments, Appeals,
Appellant, Application requirements, Authorizations, Definitions,
Designation, Environmental protection, Marine resources, Motorized
personal watercraft, Natural resources, Permitting, Permit procedures,
Prohibited activities, Special use permit, Stowed and not available for
immediate use, Resources, Research, Traditional fishing, Water
resources.

David M. Kennedy,
Assistant Administrator for Ocean Services and Coastal Zone Management.
Accordingly, for the reasons set forth above, NOAA proposes to
amend 15 CFR part 922 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 part 922 Subpart A to read as follows:
Subpart A--General and Regulations of General Applicability
Sec.
922.1 Purposes and applicability of the regulations.
922.2 Mission, goal, and special policies.
922.3 Issuance of regulations for fishing.
922.4 Boundaries.
922.5 Allowed activities.
922.6 Prohibited or otherwise regulated activities.
922.7 Emergency regulations.
922.8 Penalties.
922.9 Response costs and damages.
922.10 Pre-existing authorizations or rights and certifications of
pre-existing authorizations or rights.
922.11 Definitions.
922.12 Site Evaluation List (SEL).

Subpart A--General and Regulations of General Applicability

Sec. 922.1 Purposes and applicability of the regulations.

(a) The purposes of this part are:
(1) To implement title III of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended (16 U.S.C. 1431 et seq., also known
as the National Marine Sanctuaries Act (NMSA or Act)); and
(2) To implement the designations of the national marine
sanctuaries, for which site specific regulations appear in subparts F
through R, by regulating activities affecting them, consistent with
their respective terms of designation, in order to protect, restore,
preserve and manage and thereby ensure the health,

[[Page 6010]]

integrity and continued availability of the conservation, recreational,
ecological, historical, scientific, educational, cultural,
archeological and aesthetic resources and qualities of these areas.
(b) The regulations of this part are binding on any person subject
to the jurisdiction of the United States. Designation of a national
marine sanctuary beyond the U.S. territorial sea does not constitute
any claim to territorial jurisdiction on the part of the United States.
The regulations of this part 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 of this part shall apply to a person
who is not a citizen, national, or resident alien of the United States,
unless in accordance with:
(1) Generally recognized principles of international law;
(2) An agreement between the United States and the foreign state of
which the person is a citizen; or
(3) An agreement between the United States and the flag state of
the foreign vessel, if the person is a crew member of the vessel.
(c) Unless noted otherwise, the regulations in Subparts A and D
apply to all national marine sanctuaries immediately upon designation.

Sec. 922.2 Mission, goal, and special policies.

(a) In accordance with the standards set forth in the Act, the
mission of the Office of National Marine Sanctuaries (Office) is to
identify, designate, protect, restore, and manage areas of the marine
environment of special national, and in some cases international,
significance due to their conservation, recreational, ecological,
historical, scientific, educational, cultural, archeological, or
aesthetic resources and qualities.
(b) The goal of the Office is to carry out the mission in a manner
consistent with the purposes and policies of the Act (16 U.S.C.
1431(b));
(c) Management efforts will be coordinated to the extent
practicable with other countries managing marine protected areas;
(d) Program regulations, policies, standards, guidelines, and
procedures under the Act concerning the identification, evaluation,
registration, and treatment of historical resources shall be
consistent, to the extent practicable, with the declared national
policy for the protection and preservation of these resources as stated
in the National Historic Preservation Act of 1966, 16 U.S.C. 470 et
seq., the Archeological and Historical Preservation Act of 1974, 16
U.S.C. 469 et seq., and the Archeological Resources Protection Act of
1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory
protection and preservation planning policy extended to historical
resources on land shall be extended, to the extent practicable, to
historical resources in the marine environment within the boundaries of
designated national marine sanctuaries. The management of historical
resources under the authority of the Act shall be consistent, to the
extent practicable, with the Federal archeological program by
consulting the Uniform Regulations, ARPA (43 CFR part 7) and other
relevant Federal regulations. The Secretary of the Interior's Standards
and Guidelines for Archeology may also be consulted for guidance. These
guidelines are available from the Office of Ocean and Coastal Resource
Management or from the Office at (301) 713-3125.

Sec. 922.3 Issuance of regulations for fishing.

If a proposed Sanctuary includes waters within the exclusive
economic zone, the Secretary shall notify the appropriate Regional
Fishery Management Council(s). The appropriate Regional Fishery
Management Council, shall have one hundred and eighty (180) days from
the date of such notification to make recommendations and, if
appropriate, prepare draft fishing regulations for the area within the
exclusive economic zone and submit them to the Secretary. In preparing
its recommendations and draft regulations, the Council(s) shall use as
guidance the national standards of section 301(a) of the Magnuson-
Stevens Act (16 U.S.C. 1851) to the extent that they are consistent and
compatible with the goals and objectives of the proposed Sanctuary
designation. Any fishing activities not proposed for regulation under
section 304(a)(5) of the Act may be listed in the draft Sanctuary
designation document as being subject to regulation, without following
the procedures specified in section 304(a)(5) of the Act. If the
Secretary subsequently determines that regulation of fishing is
necessary, then NOAA will follow the procedures specified in section
304(a)(5) of the Act.

Sec. 922.4 Boundaries.

The boundary for each of the thirteen National Marine Sanctuaries
covered by this part is described in subparts F through R,
respectively.

Sec. 922.5 Allowed activities.

All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
Subparts F through R, subject to any emergency regulations promulgated
pursuant to Sec. Sec. 922.6, 922.112(d), 922.165, 922.186, or 922.196,
subject to all prohibitions, regulations, restrictions, and conditions
validly imposed by any Federal, State, tribal, or local authority of
competent jurisdiction, including, but not limited to, Federal, Tribal,
and State fishery management authorities, and subject to the provisions
of section 312 of the NMSA. The Director may only directly regulate
fishing activities pursuant to the procedure set forth in section
304(a)(5) of the NMSA.

Sec. 922.6 Prohibited or otherwise regulated activities.

Subparts F through R set forth site-specific regulations applicable
to the activities specified therein.

Sec. 922.7 Emergency regulations.

Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss, or injury, any and all such activities
are subject to immediate temporary regulation, including prohibition.
The provisions of this section do not apply to the Cordell Bank,
Florida Keys, Hawaiian Islands Humpback Whale, and Thunder Bay National
Marine Sanctuaries. See Sec. Sec. 922.112(d), 922.165, 922.185, and
922.196, respectively, for the authority to issue emergency regulations
with respect to those sanctuaries.

Sec. 922.8 Penalties.

(a) Each violation of the NMSA or Florida Keys National Marine
Sanctuary and Protection Act (FKNMSPA), any regulation in this part or
any permit issued pursuant thereto, is subject to a civil penalty. Each
day of a continuing violation constitutes a separate violation.
(b) Regulations setting forth the procedures governing
administrative proceedings for assessment of civil penalties, permit
sanctions and denials for enforcement reasons, issuance and use of
written warnings, and release or forfeiture of seized property appear
at 15 CFR part 904.

Sec. 922.9 Response costs and damages.

Under section 312 of the Act, any person who destroys, causes the
loss of, or injures any Sanctuary resource is liable to the United
States for response costs and damages resulting from such

[[Page 6011]]

destruction, loss, or injury, and any vessel used to destroy, cause the
loss of, or injure any Sanctuary resource is liable in rem to the
United States for response costs and damages resulting from such
destruction, loss, or injury.

Sec. 922.10 Pre-existing authorizations or rights and certifications
of pre-existing authorizations or rights.

Leases, permits, licenses, or rights of subsistence use or access
in existence on the date of designation of any National Marine
Sanctuary may not be terminated by the Director. The Director may,
however, regulate the exercise of such leases, permits, licenses, or
rights consistent with the purposes for which the Sanctuary was
designated.

Sec. 922.11 Definitions.

The following definitions shall apply to this part, unless modified
by the definitions for a specific subpart or regulation:
Abandoning means leaving without intent to remove any structure,
material, or other matter on or in the seabed or submerged lands of a
Sanctuary. For Thunder Bay National Marine Sanctuary and Underwater
Preserve, abandoning means leaving without intent to remove any
structure, material or other matter on the lake bottom associated with
underwater cultural resources.
Act or NMSA means Title III of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known
as the National Marine Sanctuaries Act.
Active Candidate means a site selected by the Secretary for further
consideration for possible designation as a National Marine Sanctuary.
Assistant Administrator means the Assistant Administrator for Ocean
Services and Coastal Management, National Oceanic and Atmospheric
Administration (NOAA) or designee.
Attract or attracting means the conduct of any activity that lures
or may lure any animal by using food, bait, chum, dyes, decoys (e.g.,
surfboards or body boards used as decoys), acoustics or any other
means, except the mere presence of human beings (e.g., swimmers,
divers, boaters, kayakers, surfers).
Benthic community means the assemblage of organisms, substrate, and
structural formations found at or near the sea/ocean/lake bottom that
is periodically or permanently covered by water.
Clean means not containing detectable levels of harmful matter.
Commercial fishing means any activity that results in the sale or
trade for intended profit of fish, shellfish, algae, or corals,
including any attempt to engage in such activity.
Conventional hook and line gear means any fishing gear composed of
a single line terminated by a combination of sinkers and hooks or lures
and spooled upon a reel that may be hand, electrically, or
hydraulically operated, regardless of whether mounted. This term does
not include longlines.
Cruise ship means any vessel with 250 or more passenger berths for
hire.
Cultural resources means any historical or cultural feature,
including, but not limited to, archaeological sites, historic
structures, shipwrecks, and artifacts.
Deserting means leaving a vessel aground, adrift, wrecked, junked,
or in substantially dismantled condition without notification to the
Director of the vessel going aground or becoming adrift, wrecked,
junked, or substantially dismantled within 12 hours of its discovery
and developing and presenting to the Director a preliminary salvage
plan within 24 hours of such notification, after expressing or
otherwise manifesting intention not to undertake or to cease salvage
efforts, or when the owner/operator cannot after reasonable efforts by
the Director be reached within 12 hours of the vessel's condition being
reported to authorities; or leaving a vessel at anchor when its
condition creates potential for a grounding, discharge, or deposit and
the owner/operator fails to secure the vessel in a timely manner.
Director means, except where otherwise specified, the Director of
the Office of National Marine Sanctuaries or designee.
Effective date means the date of final regulations described and
published in the Federal Register. For regulations governing the
proposed designation of a new sanctuary or revising terms of
designation, effective date means the 45th day of continuous session of
Congress following submission of the sanctuary designation documents.
Exclusive economic zone means the zone established by Proclamation
Numbered 5030, dated March 10, 1983, and as defined in the Magnuson-
Stevens Act, as amended 16 U.S.C. 1801 et seq.
Federal project means any water resources development project
conducted by the United States Army Corps of Engineers, or operating
under a permit or other authorization issued by the Corps of Engineers
and authorized by Federal law.
Fish means finfish, mollusks, crustaceans, and all other forms of
marine animal and plant life other than marine mammals and birds, as
defined in the Magnuson-Stevens Act, as amended, 16 U.S.C. 1801 et seq.
Graywater means graywater as defined by section 312 of the Federal
Water Pollution Control Act, as amended, 33 U.S.C. 1322.
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. Such substances or combination of
substances may include, but is not limited to: fishing nets, fishing
line, hooks, fuel, oil, and those contaminants (regardless of quantity)
listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive
Environmental Response, Compensation and Liability Act at 40 CFR 302.4.
Historical resource means any resource possessing historical,
cultural, archaeological or paleontological significance, including
sites, contextual information, structures, districts, and objects
significantly associated with or representative of earlier people,
cultures, maritime heritage, and human activities and events.
Historical resources include, but are not limited to, ``cultural
resources,'' ``submerged cultural resources,'' and also include
``historical properties,'' as defined in the National Historic
Preservation Act, as amended, 16 U.S.C. 470 et seq., and its
implementing regulations, as amended.
Indian tribe means an Indian or Alaska Native tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
Injure means to change adversely, either in the short or long term,
a chemical, biological or physical attribute, or the viability, of a
sanctuary resource or the impairment of a sanctuary resource service.
This includes, but is not limited to, acts that cause the loss or
destruction of a sanctuary resource.
Introduced species means any species (including, but not limited
to, any of its biological matter capable of propagation) that is non-
native to the ecosystems of 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.
Lawful fishing means fishing authorized by a tribal, State or
Federal entity with jurisdiction over the activity.
Lightering means at-sea transfer of a petroleum-based products,
materials, or other matter from vessel to vessel.

[[Page 6012]]

Marine means those areas of coastal and ocean waters, the Great
Lakes and their connecting waters, and submerged lands over which the
United States exercises jurisdiction, including the exclusive economic
zone, consistent with international law.
Mineral means clay, stone, sand, gravel, metalliferous ore, non-
metalliferous ore, or any other solid material or other matter of
commercial value.
Motorized personal watercraft (MPWC) means (1) any vessel,
propelled by machinery that is designed to be operated by standing,
sitting, or kneeling on, astride, or behind the motor of the vessel, in
contrast to the conventional manner, where the operator stands or sits
inside the vessel hull; (2) any vessel less than 20 feet in length
overall as manufactured and propelled by machinery and that has been
exempted from compliance with the U.S. Coast Guard's Maximum Capacities
Marking for Load Capacity regulation found at 33 CFR Parts 181 and 183,
except submarines; or (3) any other vessel that is less than 20 feet in
length overall as manufactured, and is propelled by a water jet pump or
drive.
National historic landmark means a district, site, building,
structure or object designated as such by the Secretary of the Interior
under the National Historic Landmarks Program (36 CFR part 65).
National Marine Sanctuary or Sanctuary means an area of the marine
environment of special national significance designated as such by the
National Oceanic and Atmospheric Administration (NOAA) pursuant to the
Act or by Congress pursuant to legislation.
Oceangoing ship means any private, commercial, government, or
military vessel of 300 gross registered tons or more, not including
cruise ships.
Person means any private individual, partnership, corporation or
other entity; or any officer, employee, agent, department, agency or
instrumentality of the Federal government, of any State or local unit
of government, or of any foreign government.
Regional Fishery Management Council means any fishery council
established under the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801 et seq.
Sanctuary quality means any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of
which is essential to the ecological health of a national marine
sanctuary, including, but not limited to, water quality, sediment
quality, and air quality.
Sanctuary resource means any living or non-living resource of a
national marine sanctuary, or the parts or products thereof, that
contributes to the conservation, recreational, ecological, historical,
educational, cultural, archeological, scientific, or aesthetic value of
the national marine sanctuary, including, but not limited to, waters of
the sanctuary, the submerged lands of the sanctuary, other submerged
features and the surrounding seabed, carbonate rock, corals and other
bottom formations, coralline algae and other marine plants and algae,
marine invertebrates, brine-seep biota, phytoplankton, zooplankton,
fish, birds, sea turtles and other marine reptiles, marine mammals, and
maritime heritage, cultural, archeological, and historical resources.
For Thunder Bay National Marine Sanctuary and Underwater Preserve,
Sanctuary resource means an underwater cultural resource as defined at
Sec. 922.191.
Seagrass means any species of marine angiosperms (flowering plants)
that inhabits a portion of the seabed in a national marine sanctuary.
Those species include, but are not limited to: Zostera asiatica,
Zostera marina; Thalassia testudinum (turtle grass); Syringodium
filiforme (manatee grass); Halodule wrightii (shoal grass); Halophila
decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.
Secretary means the Secretary of the United States Department of
Commerce, or designee.
Shunt means to discharge expended drilling cuttings and fluids near
the ocean seafloor.
Site Evaluation List (SEL) means a list of selected natural and
historical resource sites selected by the Secretary as qualifying for
further evaluation for possible designation as National Marine
Sanctuaries.
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, American Samoa, the United States Virgin Islands,
Guam, and any other commonwealth, territory, or possession of the
United States.
Stowed and not available for immediate use means fishing gear not
readily accessible for immediate use, e.g., by being fishing gear
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).
Subsistence use means the customary and traditional use by rural
residents of areas near or in the marine environment for direct
personal or family consumption as food, shelter, fuel, clothing, tools,
or transportation; for the making and selling of handicraft articles;
and for barter, if for food or non-edible items other than money, if
the exchange is of a limited and non-commercial nature.
Take or taking means:
(1) Take or taking as that term is defined in section 3(19) of the
Endangered Species Act of 1973, as amended, 16 U.S.C. 1532(19) (ESA),
for any sanctuary resource listed as either endangered or threatened
under the ESA;
(2) Take or taking as that term is defined in section 3(13) of the
Marine Mammal Protection Act of 1972, as amended,16 U.S.C. 1362(13)
(MMPA), for any sanctuary resource defined as a marine mammal by the
(MMPA, 16 U.S.C. 1362(6));
(3) To conduct an activity prohibited by section 703 of the
Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703 (MBTA),
for any sanctuary resource that is in some manner protected by the
MBTA, as amended; or
(4) To harass, harm, disturb, pursue, hunt, shoot, wound, kill,
trap, capture, injure, or collect, or attempt to harass, harm, disturb,
pursue, hunt, shoot, wound, kill, trap, capture, injure, or collect any
other sanctuary resources not subject to paragraphs (1), (2), or (3) of
this definition. This includes, but is not limited to, collection of
any dead or injured sanctuary resource, or any part thereof; or
restraint or detainment of any sanctuary resource, no matter how
temporarily; or to operate a vessel or aircraft or conduct any other
act that results in the disturbance or molestation of any sanctuary
resource.
Traditional fishing means those commercial, recreational, or
subsistence fishing activities that were customarily conducted within
the Sanctuary before its designation, as identified in the original
final environmental impact statement and management plan for the
Sanctuary.
Tropical fish means any fish of minimal sport and food value,
usually brightly colored, often used in the aquarium trade, and that
lives in a direct relationship with live bottom communities.
Vessel means a watercraft of any description capable of being used
as a means of transportation in or on the waters of a Sanctuary. The
term includes but is not limited to, motorized and non-motorized
watercraft, personal watercraft, airboats, and float planes while
maneuvering on the water, capable of being used as a means of
transportation in or on the waters of the Sanctuary. For purposes of
this part, the

[[Page 6013]]

terms ``vessel,'' ``watercraft,'' and ``boat'' have the same meaning.
Washington Coast treaty tribe means the Hoh, Makah, or Quilete
Indian Tribes or the Quinault Indian Nation.

Sec. 922.12 Site Evaluation List (SEL)

(a) The Site Evaluation List (SEL) was established as a
comprehensive list of marine sites with high natural resource values
and with historical qualities of special national significance that are
highly qualified for further evaluation for possible designation as
National Marine Sanctuaries.
(b) The SEL is currently inactive. Criteria for inclusion of marine
sites on a revised SEL will be issued, with public notice and
opportunity to comment, when the Director determines that the SEL
should be reactivated.
(c) Placement of a site on the SEL, or selection of a site as an
active candidate for designation, by itself shall not subject the site
to any regulatory control under the Act. Such controls may only be
imposed after designation.
0
3. Remove and reserve part 922 subpart B:

Subpart B--[RESERVED]

0
4. Remove and reserve part 922 subpart C.

Subpart C--[RESERVED]

0
5. Revise part 922 Subpart D to read as follows:
Subpart D--National Marine Sanctuary Permitting
Sec.
922.30 National Marine Sanctuary general permits.
922.31 National Marine Sanctuary special use permits.
922.32 Application requirements and procedures.
922.33 Review procedures and evaluation.
922.34 Permit amendments, including renewals.
922.35 Special Use permit fees.
922.36 National Marine Sanctuary authorizations.
922.37 Appeals of permitting decisions.

Subpart D--National Marine Sanctuary Permitting

Sec. 922.30 National Marine Sanctuary general permits.

(a) Authority to issue general permits. The Director may allow a
person to conduct an activity that would otherwise be prohibited by
this part, through issuance of a general permit, provided the applicant
complies with:
(1) The provisions of this subpart; and
(2) The permit procedures and criteria for all national marine
sanctuaries in which the proposed activity is to take place in
accordance with relevant site specific regulations appearing in
subparts F through R.
(b) Sanctuary general permit categories. The Director may issue a
sanctuary general permit under this subpart, subject to such terms and
conditions as he or she deems appropriate, if the Director finds that
the proposed activity falls within one of the following categories:
(1) Research--activities that constitute scientific research on or
scientific monitoring of national marine sanctuary resources or
qualities;
(2) Education--activities that enhance public awareness,
understanding, or appreciation of a national marine sanctuary or
national marine sanctuary resources or qualities;
(3) Management--activities that assist in managing a national
marine sanctuary;
(4) Jade removal--the removal of loose jade from the Jade Cove area
within the Monterey Bay National Marine Sanctuary that cannot be
collected under paragraphs (a)(1)(ii) and (iii) of 15 CFR Sec.
922.132;
(5) Tribal self-determination--activities conducted by a Washington
Coast treaty tribe and/or its designee as certified by the governing
body of the tribe to promote or enhance tribal self-determination,
tribal government functions, the exercise of treaty rights, the
economic development of the tribe, subsistence, ceremonial and
spiritual activities, or the education or training of tribal members;
(6) Maritime heritage--survey and inventory, research and recovery,
or deaccession/transfer of Florida Keys National Marine Sanctuary
maritime heritage resources performed in accordance with all
requirements of the Programmatic Agreement for management of historical
resources in the Florida Keys National Marine Sanctuary and section
922.166 of this part; and
(7) Further FKNMS purposes--activities that further the purposes of
the Florida Keys National Marine Sanctuary, including those that
facilitate multiple use of the sanctuary to the extent compatible with
the primary objective of resource protection.

Sec. 922.31 National Marine Sanctuary special use permits.

(a) In general. A person may conduct any commercial or concession-
type activity, if such activity is specifically authorized by, and is
conducted in accordance with the scope, purpose, manner, terms and
conditions of, a special use permit issued under this section.
(b) Authority to issue. The Director, at his or her discretion, may
issue a special use permit in accordance with this subpart and section
310 of the Act (16 U.S.C. 1441).
(c) Public notice. The Director will not issue a special use permit
for any category of activity unless the Director has published a notice
in the Federal Register that such category of activity is subject to
the requirements of section 310 of the Act.
(d) Fees. The Director may assess and collect fees for the conduct
of any activity authorized by a special use permit issued pursuant to
this section. The fee will be assessed in accordance with section
922.35. No special use permit may be effective until all assessed fees
are paid, unless otherwise provided by the Director by a fee schedule
set forth as a permit condition.

Sec. 922.32 Application requirements and procedures.

(a) Submitting applications. Permit applications must be submitted
by mail or electronic mail to the address listed in the subpart for the
relevant national marine sanctuary. Applicants proposing to conduct an
activity in more than one national marine sanctuary should send the
application to each NOAA office for the relevant national marine
sanctuaries in which the activity is proposed.
(b) Application requirements. All applications for a permit under
this section must include the following information:
(1) A detailed description of the proposed activity including:
(i) A timetable for completion of the activity;
(ii) A detailed description of the proposed location for the
activity; and
(iii) The equipment, personnel and methodology to be employed;
(2) The qualifications and experience of all personnel;
(3) The financial resources available to the applicant to conduct
and complete the proposed activity and comply with any terms and
conditions deemed necessary;
(4) A statement as to why it is necessary to conduct the activity
within a national marine sanctuary;
(5) A description of the potential impacts of the activity, if any,
on sanctuary resources and qualities;
(6) A description of the benefits the conduct of the activity would
have for the national marine sanctuary or national marine sanctuary
system;
(7) Copies of all other required licenses, permits, approvals, or
other authorizations; and
(8) Such other information as the Director may request or is
specified in the relevant subpart.

[[Page 6014]]

(c) Additional information. Upon receipt of an application, and as
part of the evaluation of the permit application, the Director may:
(1) Request such additional information as he or she deems
necessary to act on the application;
(2) Require a site visit; and
(3) Seek the views of any persons, within or outside the Federal
government.
(d) Time limit for submitting additional information. Unless
otherwise specified in writing by the Director, any information
requested by the Director under paragraph (c) of this section must be
received by the Director within 30 days of the postmark date of the
request or, if email, the date of the email. Failure to provide such
additional information may be deemed by the Director to constitute
withdrawal of the permit application.
(e) Incomplete applications. The Director may consider an
application incomplete, and therefore may refuse to further consider
the application, if the applicant:
(1) Has failed to submit any of the information required under
paragraph (b);
(2) Has failed to submit any of the information requested by the
Director under paragraph (c) of this section;
(3) Has failed to pay any outstanding penalties that resulted from
a violation of this part; or
(4) Has failed to fully comply with a permit issued pursuant to
this subpart.

Sec. 922.33 Review procedures and evaluation.

(a) Review criteria. The Director shall not issue a permit under
this subpart, unless he or she also finds that:
(1) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of national marine sanctuary
resources and qualities, taking into account the following factors:
(i) The extent to which the conduct of the activity may diminish or
enhance national marine sanctuary resources and qualities; and
(ii) Any indirect, secondary or cumulative effects of the activity.
(2) It is necessary to conduct the proposed activity within the
national marine sanctuary to achieve its stated purpose;
(3) The methods and procedures proposed by the applicant are
appropriate to achieve the proposed activity's stated purpose and
eliminate, minimize, or mitigate adverse effects on sanctuary resources
and qualities as much as possible;
(4) The duration of the proposed activity and its effects are no
longer than necessary to achieve the activity's stated purpose;
(5) The expected end value of the activity to the furtherance of
national marine sanctuary goals and purposes outweighs any potential
adverse impacts on sanctuary resources and qualities from the conduct
of the activity;
(6) The applicant is professionally qualified to conduct and
complete the proposed activity;
(7) The applicant has adequate financial resources available to
conduct and complete the proposed activity and terms and conditions of
the permit; and
(8) There are no other factors that would make the issuance of a
permit for the activity inappropriate.
(9) For the Olympic Coast National Marine Sanctuary, the activity
as proposed does not adversely affect any Washington Coast treaty
tribe.
(b) Permit terms and conditions. The Director, at his or her
discretion, may subject a permit issued under this subpart to such
terms and conditions as he or she deems appropriate.
(c) Permit actions. The Director may amend, suspend, or revoke a
permit issued pursuant to this part for good cause. Procedures
governing permit sanctions and denials for enforcement reasons are set
forth in subpart D of 15 CFR part 904.
(d) Application denials. The Director may deny a permit
application, in whole or in part, if it is determined that:
(1) The proposed activity does not meet the review criteria
specified in this subpart;
(2) The permittee or applicant has acted in violation of the terms
and conditions of a permit issued under this subpart or the relevant
subpart for the national marine sanctuary;
(3) The permittee or applicant has acted in violation of the
regulations set forth in this subpart; or
(4) For other good cause.
(e) Communication of actions and denials. Any action taken by the
Director under paragraphs (c) and (d) of this section shall be
communicated in writing to the permittee or applicant and shall set
forth the reason(s) for the action taken.

Sec. 922.34 Permit amendments, including renewals.

(a) Request for amendments. Any person who has been issued a permit
under this part (a permittee) may request to amend the permit at any
time while that permit is valid. For purposes of this section, a permit
time extension (renewal) is treated as a permit amendment. A request
for permit amendment must be submitted to the same NOAA offices as the
original permit and include sufficient information to describe the
requested amendment and any additional supporting information.
(b) Review of amendment requests. After receiving the permittee's
request for amendment, the Director will:
(1) Review all reports submitted by the permittee as required by
the permit terms and conditions; and
(2) Request such additional information as may be necessary to
evaluate the request.
(c) Denial of amendment requests. The Director may deny a permit
amendment request upon finding:
(1) The amendment does not meet the review criteria under this
subpart and the relevant subpart for all national marine sanctuaries in
which the proposed activity is to take place;
(2) The permittee has been found to have violated the permit or
these regulations;
(3) The activity has resulted in unforeseen adverse impacts to
Sanctuary resources or qualities; or
(4) For other good cause.

Sec. 922.35 Special Use Permit fees.

(a) Authority to assess fees. The Director may assess a fee for the
conduct of any activity authorized under a special use permit issued
under Sec. 922.31.
(b) Components of permit fees. A fee assessed under this section
may include:
(1) All costs incurred, or expected to be incurred, in reviewing
and processing the permit application, including, but not limited to,
costs for:
(i) Number of personnel;
(ii) Personnel hours;
(iii) Equipment;
(iv) Environmental analyses or assessments;
(v) Copying; and
(vi) Overhead directly related to reviewing and processing the
permit application;
(2) All costs incurred, or expected to be incurred, as a direct
result of the conduct of the activity for which the permit is being
issued, including, but not limited to:
(i) The cost of monitoring the conduct both during the activity and
after the activity is completed in order to assess the impacts to
sanctuary resources and qualities;
(ii) The use of an official NOAA observer, including travel and
expenses and personnel hours; and
(iii) Overhead costs directly related to the permitted activity;
and
(3) An amount which represents the fair market value of the use of
the sanctuary resource.

[[Page 6015]]

Sec. 922.36 National Marine Sanctuary authorizations.

(a) Authority to issue authorizations. The Director may authorize a
person to conduct an activity otherwise prohibited by subparts L
through P, or subpart R, if such activity is specifically allowed by
any valid federal, state, or local lease, permit, license, approval, or
other authorization (hereafter called ``agency approval''), provided
the applicant complies with the provisions of this section. Such an
authorization by ONMS is hereafter referred to as an ``ONMS
authorization.''
(b) Authorization notification to the Director
(1) Notification requirement. An applicant must notify the Director
in writing of the request for an ONMS authorization of an agency
approval. The Director may treat an amendment, renewal, or extension of
such an agency approval as constituting a new agency approval for
purposes of this section.
(i) Notification must occur within fifteen days of the date of
filing of the application for the agency approval.
(ii) Notification must be sent to the Director, Office of National
Marine Sanctuaries, to the attention of the relevant Sanctuary
Superintendent(s) at the address specified in subparts L through P, or
subpart R, as appropriate.
(iii) A copy of the application for the agency approval must
accompany the notification.
(2) Director's response to notification. The Director shall respond
in writing to the applicant of his or her pending review of the request
for an ONMS authorization.
c) Authorization review procedures and evaluation.
(1) Additional information. The Director may request additional
information from the applicant as the Director deems reasonably
necessary to determine whether to issue an ONMS authorization and what
terms and conditions are reasonably necessary to protect sanctuary
resources and qualities.
(i) The information requested must be received by the Director
within 45 days of the postmark date of the request.
(ii) The Director may seek the views of any persons on the
application.
(2) Review criteria. The Director shall consider the review
criteria in Sec. 922.33(a)(1)-(9) when deciding whether to issue an
ONMS authorization.
(3) Director's response. The Director shall respond in writing to
the applicant of his or her decision as to whether to authorize the
agency approval.
(i) The Director may decline to issue an ONMS authorization and
shall provide the reason(s) therefor. If the Director declines to issue
an ONMS authorization, the activity remains prohibited in the
sanctuary.
(ii) The Director may issue an ONMS authorization with no
additional terms and conditions.
(iii) The Director may issue an ONMS authorization containing terms
and conditions deemed reasonably necessary to protect sanctuary
resources and qualities. The ONMS authorization terms and conditions
are enforceable by NOAA. If the applicant does not comply with the ONMS
authorization terms and conditions, the ONMS authorization is invalid,
and the failure to comply constitutes a violation of the NMSA and these
regulations, which may result in enforcement action and assessment of
penalties.
(d) Authorization actions. The Director may amend, suspend, or
revoke an ONMS authorization issued pursuant to this part for good
cause. Procedures governing ONMS sanctions and denials for enforcement
reasons are set forth in subpart D of 15 CFR part 904.
(e) Communication of actions and denials. Any action taken by the
Director under paragraphs (c) and (d) of this section to deny, amend,
suspend, or revoke an ONMS authorization shall be communicated in
writing to the permittee or applicant and shall set forth the reason(s)
for the action taken.
(f) Time limits. Any time limit prescribed in or established under
this Sec. 922.36 may be extended by the Director for good cause.
(g) Authorization appeals. In accordance with the provisions of
Sec. 922.37, the applicant may appeal to the Assistant Administrator:
(1) Any denial, amendment, suspension, or revocation by the
Director of the issuance of an ONMS authorization; or
(2) Any term or condition imposed by the Director.

Sec. 922.37 Appeals of permitting decisions.

(a) Potential appellants. The following persons may appeal an
action listed in paragraph (b) of this section (hereinafter referred to
as ``appellant''):
(1) An applicant for, or a holder of, a National Marine Sanctuary
permit issued pursuant to section 922.30;
(2) An applicant for, or a holder of, a special use permit issued
pursuant to section 310 of the Act and section 922.31;
(3) An applicant for, or a holder of, an ONMS authorization of an
agency approval issued by any Federal, State, or local authority of
competent jurisdiction pursuant to section 922.36; and
(4) A person requesting certification of an existing lease, permit,
license, or right of subsistence use or access under section 922.9.
(b) Actions that may be appealed. An appellant may appeal the
following actions to the Assistant Administrator:
(1) The denial, conditioning, amendment, suspension, or revocation
by the Director of a general permit pursuant to section 922.30, special
use permit pursuant to section 310 of the Act and section 922.31, or an
ONMS authorization issued pursuant to section 922.36; or
(2) The conditioning, amendment, suspension, or revocation of a
certification under section 922.9.
(c) Appeal requirements. Appeals must be made in writing to the
Assistant Administrator for Ocean Services and Coastal Zone Management,
NOAA, 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910 and
must:
(1) State the action(s) by the Director being appealed;
(2) State the reason(s) for the appeal; and
(3) Be received within 30 days of the appellant's receipt of notice
of the action by the Director.
(d) Appeal procedures.
(1) The Assistant Administrator may request the appellant submit
such information as the Assistant Administrator deems necessary in
order to render a decision on the appeal. The information requested
must be received by the Assistant Administrator within 45 days of the
postmark date of the request.
(2) The Assistant Administrator may seek the views of any other
persons when deciding an appeal.
(3) The Assistant Administrator may hold an informal hearing. If an
informal hearing is held:
(i) The Assistant Administrator may designate an officer before
whom the hearing shall be held;
(ii) The hearing officer shall give notice in the Federal Register
of the time, place and subject matter of the hearing;
(iii) The appellant and Director may appear personally or by
counsel at the hearing and submit such material and present such
arguments as deemed appropriate by the hearing officer; and
(iv) The hearing officer shall recommend a decision in writing to
the Assistant Administrator within 60 days after the record for the
hearing closes.
(e) Deciding an appeal.
(1) The Assistant Administrator shall decide the appeal using the
same regulatory criteria as for the initial decision and shall base the
appeal decision on the record before the Director and any information
submitted at the Assistant Administrator's request

[[Page 6016]]

pursuant to paragraphs (d)(1) or (d)(2) of this section, regarding the
appeal, and, if a hearing has been held, on the record before the
hearing officer and the hearing officer's recommended decision.
(2) The Assistant Administrator shall notify the appellant of the
final decision and the reason(s) therefor in writing.
(3) The Assistant Administrator's decision shall constitute final
agency action for purposes of the Administrative Procedure Act.
(f) Authority to extend time limits. Any time limit prescribed in
or established under this section other than the 30-day limit for
filing an appeal pursuant to subsection (c)(4) of this section may be
extended by the Assistant Administrator for good cause.
0
6. Remove and reserve part 922 Subpart E.

Subpart E-- [RESERVED]

Subpart F--Monitor National Marine Sanctuary

0
7. Revise Sec. 922.60 to read as follows:

Sec. 922.60 Boundary.

The Monitor National Marine Sanctuary (Sanctuary) consists of a
vertical water column in the Atlantic Ocean an estimated 0.593 square
nautical miles (nmi\2\) extending from the surface to the seabed, the
center of which is at N 35.00639 degrees W 75.40889 degrees.
* * * * *
0
8. Revise Sec. 922.62 to read as follows:

Sec. 922.62 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.61 if such activity is specifically authorized by and conducted in
accordance with the scope, purpose, terms and conditions of a permit
issued under this section and subpart D of this part.
(b) Applications for permits should be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Superintendent, Monitor
National Marine Sanctuary, c/o The Mariners' Museum, 100 Museum Drive,
Newport News, VA 23606.
(c) In addition to the requirements of subpart D of this part, the
Director may not issue a permit under this section unless the Director
also finds that the extent to which the conduct of the proposed
activity may diminish the value of the Monitor as a source of historic,
cultural, aesthetic and/or maritime information is appropriate in
relation to goals of the proposed activity.
(d) In considering any application submitted pursuant to this
section, the Director shall seek and consider the views of the Advisory
Council on Historic Preservation.

Subpart G--Channel Islands National Marine Sanctuary

0
9. Revise Sec. 922.70 to read as follows:

Sec. 922.70 Boundary.

The Channel Islands National Marine Sanctuary (Sanctuary) consists
of an area of approximately 1,128 square nautical miles (nmi\2\) of
coastal and ocean waters, and the submerged lands thereunder, off the
southern coast of California. The Sanctuary boundary begins at the Mean
High Water Line of and extends seaward to a distance of approximately
six nmi from the following islands and offshore rocks: San Miguel
Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa
Barbara Island, Richardson Rock, and Castle Rock (the Islands). The
seaward boundary coordinates are listed in appendix A to this subpart.

0
10. Remove and reserve Sec. 922.71.

Sec. 922.71 [Reserved]

0
11. Revise Sec. 922.72(c) to read as follows:

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

* * * * *
(c) The prohibitions in paragraphs (a)(3) through (a)(10), (a)(12),
and (a)(13) of this section and in Sec. 922.73 do not apply to any
activity specifically authorized by and conducted in accordance with
the scope, purpose, terms, and conditions of a National Marine
Sanctuary permit issued pursuant to subpart D of this part and 922.74.
* * * * *
0
12. Revise Sec. 922.74 to read as follows:

Sec. 922.74 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.72 or Sec. 922.73 if the activity is specifically authorized by
and conducted in accordance with the scope, purpose, terms, and
conditions of a permit issued under this section and subpart D of this
part.
(b) Permit applications should be addressed to the Director, Office
of National Marine Sanctuaries; ATTN: Superintendent, Channel Islands
National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109.

Subpart H--Gulf of the Farallones National Marine Sanctuary

0
13. Revise Sec. 922.80 to read as follows:

Sec. 922.80 Boundary.

The Gulf of the Farallones National Marine Sanctuary (Sanctuary)
boundary encompasses a total area of approximately 966 square nautical
miles (nmi\2\) of coastal and ocean waters, and submerged lands
thereunder, surrounding the Farallon Islands (and Noonday Rock) off the
northern coast of California. The northernmost extent of the Sanctuary
boundary is a geodetic line extending westward from Bodega Head
approximately 6 nmi to the northern boundary of the Cordell Bank
National Marine Sanctuary (CBNMS). The Sanctuary boundary then turns
southward to a point approximately 6 nmi off Point Reyes, California,
where it then turns westward again out towards the 1,000-fathom
isobath. The Sanctuary boundary then extends in a southerly direction
adjacent to the 1,000-fathom isobath until it intersects the northern
extent of the Monterey Bay National Marine Sanctuary (MBNMS). The
Sanctuary boundary then follows the MBNMS boundary eastward and
northward until it intersects the Mean High Water Line at Rocky Point,
California. The Sanctuary boundary then follows the MHWL north until it
intersects the Point Reyes National Seashore (PRNS) boundary. The
Sanctuary boundary then approximates the PRNS boundary, as established
at the time of designation of the Sanctuary, to the intersection of the
PRNS boundary and the MHWL in Tomales Bay. The Sanctuary boundary then
follows the MHWL up Tomales Bay and Lagunitas Creek to the Route 1
Bridge where the Sanctuary boundary crosses the Lagunitas Creek and
follows the MHWL until it intersects its northernmost extent near
Bodega Head. The Sanctuary boundary includes Bolinas Lagoon, Estero de
San Antonio (to the tide gate at Valley Ford Franklin School Road) and
Estero Americano (to the bridge at Valley Ford Estero Road), as well as
Bodega Bay, but not Bodega Harbor. Where the Sanctuary boundary crosses
a waterway, the Sanctuary boundary excludes these waterways shoreward
of the Sanctuary boundary line delineated by the coordinates provided.
The precise seaward boundary coordinates are listed in appendix A to
this subpart.

0
14. Revise Sec. 922.81 to read as follows:

Sec. 922.81 Definitions.

In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
Areas of Special Biological Significance (ASBS) are those areas
designated by California's State Water Resources Control Board as
requiring

[[Page 6017]]

protection of species or biological communities to the extent that
alteration of natural water quality is undesirable. ASBS are a subset
of State Water Quality Protection Areas established pursuant to
California Public Resources Code section 36700 et seq.
Routine maintenance means customary and standard procedures for
maintaining docks or piers.

0
15. Revise Sec. 922.82 paragraph (c) to read as follows:

Sec. 922.82 Prohibited or otherwise regulated activities.

* * * * *
(c) The prohibitions in paragraph (a) of this section do not apply
to activities necessary to respond to an emergency threatening life,
property, or the environment, or except as may be permitted by the
Director in accordance with subpart D of this part and Sec. 922.83.
* * * * *
0
16. Revise Sec. 922.83 to read as follows:

Sec. 922.83 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.82 if the activity is specifically authorized by and conducted in
accordance with the scope, purpose, terms and conditions of, a permit
issued under this section and subpart D of this part.
(b) Applications for permits should be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Superintendent, Gulf of
the Farallones National Marine Sanctuary, 991 Marine Dr., The Presidio,
San Francisco, CA 94129.

Subpart I--Gray's Reef National Marine Sanctuary

0
17. Revise Sec. 922.90 to read as follows:

Sec. 922.90 Boundary.

The Gray's Reef National Marine Sanctuary (Sanctuary) consists of
approximately 16.68 square nautical miles (nmi\2\) of ocean waters and
the submerged lands thereunder, off the coast of Georgia. The Sanctuary
boundary includes all waters and submerged lands within the geodetic
lines connecting the following coordinates:

Datum: NAD83

Geographic Coordinate System
(1) N 31.362732 degrees W 80.921200 degrees
(2) N 31.421064 degrees W 80.921201 degrees
(3) N 31.421064 degrees W 80.828145 degrees
(4) N 31.362732 degrees W 80.828145 degrees
(5) N 31.362732 degrees W 80.921200 degrees

0
18. Revise Sec. 922.91 to read as follows:

Sec. 922.91 Definitions.

In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
Handline means fishing gear that is set and pulled by hand and
consists of one vertical line to which may be attached leader lines
with hooks.
Rod and reel means a rod and reel unit that is not attached to a
vessel, or, if attached, is readily removable, from which a line and
attached hook(s) are deployed. The line is payed out from and retrieved
on the reel manually or electrically.
0
19. Amend Sec. 922.92 by revising paragraph (a) as follows:

Sec. 922.92 Prohibited or otherwise regulated activities.

(a) Except as may be necessary for national defense (subject to the
terms and conditions of Article 5, Section 2 of the Designation
Document) or to respond to an emergency threatening life, property, or
the environment, or except as may be permitted by the Director in
accordance with subpart D of this part and Sec. 922.93, the following
activities are unlawful for any person to conduct or to cause to be
conducted within the Sanctuary:
* * * * *
0
20. Revise Sec. 922.93 to read as follows:

Sec. 922.93 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.92(a)(1) through (11) if the activity is specifically authorized by
and conducted in accordance within the scope, purpose, terms and
conditions of a permit issued under this section and subpart D of this
part.
(b) Applications for such permits should be addressed to the
Director, Office of National Marine Sanctuaries; ATTN: Superintendent,
Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle,
Savannah, GA 31411.

Subpart J--National Marine Sanctuary of American Samoa

0
21. Revise Sec. 922.101 to read as follows:

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 approximately a
0.189 square nautical miles (nmi\2\) 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 (MHHW) 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 (S
14.36527 degrees, W 170.76932 degrees) and Steps Point (S 14.37291
degrees, W 170.76056 degrees) from the point at which it intersects the
mean high high water line seaward.
* * * * *
0
22. Revise Sec. 922.102 to read as follows:

Sec. 922.102 Definitions.

In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
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.
0
23. Revise Sec. 922.103 paragraph (e) to read as follows:

Sec. 922.103 Prohibited or otherwise regulated activities--Sanctuary-
wide.

* * * * *
(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
subpart D of this part and Sec. 922.107.
0
24. Revise Sec. 922.107 to read as follows:
(a) Any person in possession of a valid permit issued by the
Director, in consultation with the ASDOC, in accordance with this
section and subpart D of the part may conduct an activity otherwise
prohibited by Sec. 922.103, Sec. 922.104, and Sec. 922.105 in the
Sanctuary.
(b) Permit applications shall be addressed to the Director, Office
of National Marine Sanctuaries; ATTN: Sanctuary Superintendent,
American Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS
96799.

Subpart K--Cordell Bank National Marine Sanctuary

0
25. Revise Sec. 922.110 to read as follows:

[[Page 6018]]

Sec. 922.110 Boundary.

The Cordell Bank National Marine Sanctuary (Sanctuary) boundary
encompasses a total area of approximately 399 square nautical miles
(nmi\2\) of ocean waters, and submerged lands thereunder, off the
northern coast of California approximately 50 miles west-northwest of
San Francisco, California. The Sanctuary boundary extends westward
(approximately 250 degrees) from the northwestern most point of the
Gulf of the Farallones National Marine Sanctuary (GFNMS) to the 1,000
fathom isobath northwest of Cordell Bank. The Sanctuary boundary then
generally follows this isobath in a southerly direction to the western-
most point of the GFNMS boundary. The Sanctuary boundary then follows
the GFNMS boundary again to the northwestern corner of the GFNMS. The
exact boundary coordinates are listed in appendix A to this subpart.

0
26. Remove and reserve Sec. 922.111.

Sec. 922.111 [Reserved]

0
27. Amend Sec. 922.112 by revising paragraph (b) as follows:

Sec. 922.112 Prohibited or otherwise regulated activities.

* * * * *
(b) The prohibitions in paragraph (a) of this section do not apply
to activities necessary to respond to an emergency threatening life,
property or the environment, or except as may be permitted by the
Director in accordance with subpart D of this part and Sec. 922.113.
* * * * *
0
28. Revise Sec. 922.113 to read as follows:

Sec. 922.113 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.112 if the activity is specifically authorized by and conducted in
accordance with the scope, purpose, terms and conditions of a permit
issued under this section and subpart D of this part.
(b) Applications for permits should be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Superintendent, Cordell
Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950.

Subpart L--Flower Garden Banks National Marine Sanctuary

0
29. Revise Sec. 922.120 to read as follows:

Sec. 922.120 Boundary.

The Flower Garden Banks National Marine Sanctuary (the Sanctuary)
consists of three separate areas of ocean waters over and surrounding
the East and West Flower Garden Banks and Stetson Bank, and the
submerged lands thereunder including the Banks, in the northwestern
Gulf of Mexico. The area designated at the East Bank is located
approximately 120 nautical miles (nmi) south-southwest of Cameron,
Louisiana, and encompasses 19.20 square nautical miles (nmi\2\). The
area designated at the West Bank is located approximately 110 nmi
southeast of Galveston, Texas, and encompasses 22.61 nmi\2\. The area
designated at Stetson Bank is located approximately 70 nmi southeast of
Galveston, Texas, and encompasses 0.64 nmi\2\. The three areas
encompass a total of 42.45 nmi\2\. The boundary coordinates for each
area are listed in appendix A to this subpart.
0
30. Revise Sec. 922.121 to read as follows:

Sec. 922.121 Definitions.

In addition to those definitions found at Sec. 922.11, the
following definition applies to this subpart:
No-activity zone means the geographic areas delineated by the
Department of the Interior in stipulations described in Notice to
Lessees No. 2009-G39, ``Biologically-Sensitive Underwater Features and
Areas'' for topographic features of the Central and Western Gulf of
Mexico. The precise description of these areas around the East and West
Flower Garden Banks are provided in appendix B of this subpart; the no-
activity zone around Stetson Bank is defined as the 52 meter isobath.
These particular aliquot part descriptions for the East and West Flower
Garden Banks, and the 52 meter isobath around Stetson Bank, define the
geographic scope of the ``no-activity zones'' for purposes of the
regulations in this subpart.
0
31. Amend Sec. 922.122 by revising paragraphs (a)(4), (a)(7), (f) and
(h) to read as follows:

Sec. 922.122 Prohibited or otherwise regulated activities.

(a) * * *
(4) Drilling into, dredging or otherwise altering the seabed of the
Sanctuary; or constructing, placing or abandoning any structure,
material or other matter on the submerged lands of the Sanctuary.
* * * * *
(7) Injuring, catching, harvesting, collecting or feeding, or
attempting to injure, catch, harvest, collect or feed, any fish within
the Sanctuary by use of longlines, traps, nets, bottom trawls or any
other gear, device, equipment or means except by use of conventional
hook and line gear.
* * * * *
(f) The prohibitions in paragraphs (a)(2) through (10) of this
section do not apply to any activity specifically authorized by and
conducted in accordance with the scope, purpose, terms, and conditions
of a National Marine Sanctuary permit or ONMS authorization issued
pursuant to subpart D of this part and Sec. 922.123 or a Special Use
permit issued pursuant to section 310 of the Act.
* * * * *
(h) Notwithstanding paragraphs (f) and (g) of this section, in no
event may the Director issue a National Marine Sanctuary permit under
subpart D of this part and Sec. 922.123 or a Special Use permit under
section 10 of the Act authorizing, or otherwise approve, the
exploration for, development of, or production of oil, gas, or minerals
in a no-activity zone. Any leases, permits, approvals, or other
authorizations authorizing the exploration for, development of, or
production of oil, gas, or minerals in a no-activity zone and issued
after the January 18, 1994 shall be invalid.
0
32. Revise Sec. 922.123 to read as follows:

Sec. 922.123 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.122(a)(2) through (10) if such activity is specifically authorized
by and conducted in accordance with the scope, purpose, terms, and
conditions of a permit issued under this section and subpart D of this
part.
(b) Applications for such permits should be addressed to the
Director, Office of National Marine Sanctuaries; ATTN: Superintendent,
Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building
216, Galveston, TX 77551.

Subpart M--Monterey Bay National Marine Sanctuary

0
33. Revise Sec. 922.130 to read as follows:

Sec. 922.130 Boundary.

The Monterey Bay National Marine Sanctuary (Sanctuary) consists of
two separate areas. (a) The first area consists of an area of
approximately 4016 square nautical miles (nmi\2\) of coastal and ocean
waters, and submerged lands thereunder, in and surrounding Monterey Bay
off the central coast of California. The northern terminus of the
Sanctuary boundary is located along the southern boundary of the Gulf
of the

[[Page 6019]]

Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point
just south of Stinson Beach in Marin County. The Sanctuary boundary
follows the GFNMS boundary westward to a point approximately 29 nmi
offshore from Moss Beach in San Mateo County. The Sanctuary boundary
then extends southward in a series of arcs, which generally follow the
500 fathom isobath, to a point approximately 27 nmi offshore of
Cambria, in San Luis Obispo County. The Sanctuary boundary then extends
eastward towards shore until it intersects the Mean High Water Line
(MHWL) along the coast near Cambria. The Sanctuary boundary then
follows the MHWL northward to the northern terminus at Rocky Point. The
shoreward Sanctuary boundary excludes a small area between Point Bonita
and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey
Harbor, and Moss Landing Harbor are all excluded from the Sanctuary
shoreward from the points listed in appendix A except for Moss Landing
Harbor, where all of Elkhorn Slough east of the Highway One bridge, and
west of the tide gate at Elkhorn Road and toward the center channel
from the MHWL is included within the Sanctuary, excluding areas within
the Elkhorn Slough National Estuarine Research Reserve. Exact
coordinates for the seaward boundary and harbor exclusions are provided
in appendix A to this subpart.
(b) The Davidson Seamount Management Zone is also part of the
Sanctuary. This area, bounded by geodetic lines connecting a rectangle
centered on the top of the Davidson Seamount, consists of approximately
585 square nmi (nmi\2\) of ocean waters and the submerged lands
thereunder. The shoreward boundary of this portion of the Sanctuary is
located approximately 65 nmi off the coast of San Simeon in San Luis
Obispo County. Exact coordinates for the Davidson Seamount Management
Zone boundary are provided in appendix F to this subpart.

0
34. Revise Sec. 922.131 to read as follows:

Sec. 922.131 Definitions.

In addition to those definitions found at 15 CFR 922.11, the
following definitions apply to this subpart:
Davidson Seamount Management Zone means the area bounded by
geodetic lines connecting a rectangle centered on the top of the
Davidson Seamount, and consists of approximately 585 square nautical
miles (nmi\2\) of ocean waters and the submerged lands thereunder. The
shoreward boundary of this portion of the Sanctuary is located
approximately 65 nautical miles (nmi) off the coast of San Simeon in
San Luis Obispo County. Exact coordinates for the Davidson Seamount
Management Zone boundary are provided in appendix F to this subpart.
Hand tool means a hand-held implement, utilized for the collection
of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36
inches in length and has no moving parts (e.g., dive knife, pry bar, or
abalone iron). Pneumatic, mechanical, electrical, hydraulic, or
explosive tools are, therefore, examples of what does not meet this
definition.
0
35. Amend Sec. 922.132 by revising paragraphs (d) and (f) to read as
follows:

Sec. 922.132 Prohibited or otherwise regulated activities.

* * * * *
(d) The prohibitions in paragraph (a)(1) of this section as it
pertains to jade collection in the Sanctuary, and paragraphs (a)(2)
through (11) and (a)(13) of this section, do not apply to any activity
specifically authorized by and conducted in accordance with the scope,
purpose, terms, and conditions of a National Marine Sanctuary permit or
ONMS authorization issued pursuant to subpart D of this part and
922.133 or a Special Use permit issued pursuant to section 310 of the
Act.
* * * * *
(f) Notwithstanding paragraphs (d) and (e) of this section, in no
event may the Director issue a National Marine Sanctuary permit or ONMS
authorization under subpart D of this part and 922.133 or a Special Use
permit under section 310 of the Act authorizing, or otherwise approve:
the exploration for, development, or production of oil, gas, or
minerals within the Sanctuary, except for the collection of jade
pursuant to paragraph (a)(1) of this section; the discharge of primary-
treated sewage within the Sanctuary (except by certification, pursuant
to 15 CFR 922.47, of valid authorizations in existence on January 1,
1993 and issued by other authorities of competent jurisdiction); or the
disposal of dredged material within the Sanctuary other than at sites
authorized by EPA (in consultation with COE) before January 1, 1993.
Any purported authorizations issued by other authorities within the
Sanctuary shall be invalid.
* * * * *
0
36. Revise Sec. 922.133 to read as follows:

Sec. 922.133 Permit procedures.

Applications for permits should be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Superintendent, Monterey
Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.

Subpart N--Stellwagen Bank National Marine Sanctuary

0
37. Revise Sec. 922.140 to read as follows:

Sec. 922.140 Boundary.

(a) The Stellwagen Bank National Marine Sanctuary (Sanctuary)
consists of an area of approximately 639 square nautical miles (nmi\2\)
of Federal marine waters and the submerged lands thereunder, over and
around Stellwagen Bank and other submerged features off the coast of
Massachusetts. The boundary encompasses the entirety of Stellwagen
Bank; Tillies Bank, to the northeast of Stellwagen Bank; and portions
of Jeffreys Ledge, to the north of Stellwagen Bank.
(b) The Sanctuary boundary is identified by the following
coordinates, indicating the most northeast, southeast, southwest, west-
northwest, and north-northwest points: N 42.76662 degrees W 70.21716
degrees (NE) ; N 42.09320 degrees W 70.03559 degrees (SE); N 42.12914
degrees W 70.47096 degrees (SW); N 42.5482 degrees W 70.59788 degrees
(WNW); and N 42.65113 degrees W 70.50314 degrees (NNW). The western
border is formed by a straight line connecting the most southwest and
the west-northwest points of the Sanctuary. At the most west-northwest
point, the Sanctuary border follows a line contiguous with the three-
mile jurisdictional boundary of Massachusetts to the most north-
northwest point. From this point, the northern border is formed by a
straight line connecting the most north-northwest point and the most
northeast point. The eastern border is formed by a straight line
connecting the most northeast and the most southeast points of the
Sanctuary. The southern border follows a straight line between the most
southwest point and a point located at N 42.11516 degrees W-70.27853
degrees. From that point, the southern border then continues in a west-
to-east direction along a line contiguous with the three-mile
jurisdictional boundary of Massachusetts until reaching the most
southeast point of the Sanctuary. The boundary coordinates are listed
in appendix A to this subpart.
0
38. Revise Sec. 922.141 to read as follows:

[[Page 6020]]

Sec. 922.141 Definitions.

In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
Industrial material means mineral, as defined in Sec. 922.10.
0
39. Amend Sec. 922.142 by revising paragraphs (a)(3), (d) and (f) to
read as follows:

Sec. 922.142 Prohibited or otherwise regulated activities:

(a) * * *
(3) Drilling into, dredging or otherwise altering the seabed of the
Sanctuary; or constructing, placing or abandoning any structure,
material or other matter on the submerged lands of the Sanctuary,
except as an incidental result of:
* * * * *
(d) The prohibitions in paragraphs (a) (1) and (3) through (7) of
this section do not apply to any activity specifically authorized by
and conducted in accordance with the scope, purpose, terms, and
conditions of a National Marine Sanctuary permit issued pursuant to
subpart D of this part and Sec. 922.143 or a Special Use permit issued
pursuant to section 310 of the Act.
* * * * *
(f) Notwithstanding paragraphs (d) and (e) of this section, in no
event may the Director issue a permit under subpart D of this part and
Sec. 922.143, or under section 310 of the act, authorizing, or
otherwise approving, the exploration for, development or production of
industrial materials within the Sanctuary, or the disposal of dredged
materials within the Sanctuary (except by a certification, pursuant to
Sec. 922.47, of valid authorizations in existence on November 4, 1992)
and any leases, licenses, permits, approvals or other authorizations
authorizing the exploration for, development or production of
industrial materials in the Sanctuary issued by other authorities after
November 4, 1992, shall be invalid.
0
40. Revise Sec. 922.143 to read as follows:

Sec. 922.143 Permit procedures.

(a) A person may conduct an activity otherwise prohibited by Sec.
922.142 (a) (1) and (3) through (7) if conducted under and in
accordance with the scope, purpose, terms and conditions of a permit
issued under this section and subpart D of this part.
(b) Applications for such permits should be addressed to the
Director, Office of National Marine Sanctuaries; ATTN: Superintendent,
Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road,
Scituate, MA 02066.

Subpart O--Olympic Coast National Marine Sanctuary

0
41. Revise Sec. 922.150(a) to read as follows:

Sec. 922.150 Boundary.

(a) The Olympic Coast National Marine Sanctuary (Sanctuary)
consists of an area of approximately 2408 square nautical miles
(nmi\2\) of coastal and ocean waters, and the submerged lands
thereunder, off the central and northern coast of the State of
Washington.
* * * * *
0
42. Revise Sec. 922.151 to read as follows:

Sec. 922.151 Definitions.

In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
Indian reservation means a tract of land set aside by the Federal
Government for use by a Federally recognized American Indian tribe and
includes, but is not limited to, the Makah, Quileute, Hoh and Quinault
Reservations.
Treaty means a formal agreement between the United States
Government and an Indian tribe.
0
43. Amend Sec. 922.152 by revising paragraphs (a)(4), (e) and (h) to
read as follows:

Sec. 922.152 Prohibited or otherwise regulated activities:

(a) * * *
(4) Drilling into, dredging or otherwise altering the seabed of the
Sanctuary; or constructing, placing or abandoning any structure,
material or other matter on the submerged lands of the Sanctuary,
except as an incidental result of:
* * * * *
(e) The prohibitions in paragraphs (a) (2) through (7) of this
section do not apply to any activity specifically authorized by and
conducted under and in accordance with the scope, purpose, terms and
conditions of a National Marine Sanctuary permit or an ONMS
authorization issued pursuant to subpart D of this part and Sec.
922.153 or a Special Use permit issued pursuant to section 310 of the
Act.
* * * * *
(h) Notwithstanding paragraphs (e) and (g) of this section, in no
event may the Director issue a National Marine Sanctuary permit or ONMS
authorization under subpart D of this part and Sec. 922.153 or a
Special Use permit under section 310 of the Act authorizing, or
otherwise approve: The exploration for, development or production of
oil, gas or minerals within the Sanctuary; the discharge of primary-
treated sewage within the Sanctuary (except by certification, pursuant
to Sec. 922.47, of valid authorizations in existence on July 22, 1994
and issued by other authorities of competent jurisdiction); the
disposal of dredged material within the Sanctuary other than in
connection with beach nourishment projects related to the Quillayute
River Navigation Project; or bombing activities within the Sanctuary.
Any purported authorizations issued by other authorities after July 22,
1994 for any of these activities within the Sanctuary shall be invalid.
0
44. Revise Sec. 922.153 to read as follows:

Sec. 922.153 Permit procedures.

(a) A person may conduct an activity prohibited by Sec. 922.152
(a) (2) through (7) if conducted in accordance with the scope, purpose,
terms and conditions of a permit or ONMS authorization issued under
this section and subpart D of this part.
(b) Applications for such permits or ONMS authorizations should be
addressed to the Director, Office of National Marine Sanctuaries; ATTN:
Superintendent, Olympic Coast National Marine Sanctuary, 115 E.
Railroad Ave., Suite 301, Port Angeles, WA 98362.
(c) The Director shall obtain the express written consent of the
governing body of an Indian tribe prior to issuing a permit, if the
proposed activity involves or affects resources of cultural or
historical significance to the tribe.
(d) Removal or attempted removal of any Indian cultural resource or
artifact may only occur with the express written consent of the
governing body of the tribe or tribes to which such resource or
artifact pertains, and certification by the Director that such
activities occur in a manner that minimizes damage to the biological
and archeological resources. Prior to permitting entry onto a
significant cultural site designated by a tribal governing body, the
Director shall require the express written consent of the governing
body of the tribe or tribes to which such cultural site pertains.
(e) Where the issuance or denial of a permit is requested by the
governing body of a Washington Coast treaty tribe, the Director shall
consider and protect the interests of the tribe to the fullest extent
practicable in keeping with the purposes of the Sanctuary and his or
her fiduciary duties to the tribe.

Subpart P--Florida Keys National Marine Sanctuary

0
45. Revise Sec. 922.161 to read as follows:

[[Page 6021]]

Sec. 922.161 Boundary.

The Sanctuary consists of an area of approximately 2872 square
nautical miles (nmi\2\) of coastal and ocean waters, and the submerged
lands thereunder, surrounding the Florida Keys in Florida. Appendix I
to this subpart sets forth the precise Sanctuary boundary.
0
46. Revise Sec. 922.162 to read as follows:

Sec. 922.162 Definitions.

(a) The following definitions apply to the Florida Keys National
Marine Sanctuary regulations. To the extent that a definition appears
in Sec. 922.11 and this section, the definition in this section
governs.
Acts means the Florida Keys National Marine Sanctuary and
Protection Act, as amended, (FKNMSPA) (Pub. L. 101-605), and the
National Marine Sanctuaries Act, as amended (NMSA), also known as Title
III of the Marine Protection, Research, and Sanctuaries Act, as
amended, (MPRSA) (16 U.S.C. 1431 et seq.).
Adverse effect means any factor, force, or action that
independently or cumulatively damages, diminishes, degrades, impairs,
destroys, or otherwise harms any Sanctuary resource, as defined in
section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or
any of the qualities, values, or purposes for which the Sanctuary is
designated.
Airboat means a vessel operated by means of a motor driven
propeller that pushes air for momentum.
Areas To Be Avoided means the areas in which vessel operations are
prohibited pursuant to section 6(a)(1) of the FKNMSPA (see Sec.
922.164(a)). Appendix VII to this subpart sets forth the geographic
coordinates of these areas, including any modifications thereto made in
accordance with section 6(a)(3) of the FKNMSPA.
Closed means all entry or use is prohibited.
Coral means but is not limited to the corals of the Class Hydrozoa
(stinging and hydrocorals); Class Anthozoa, Subclass Hexacorallia,
Order Scleractinia (stony corals); Class Anthozoa, Subclass
Ceriantipatharia, Order Antipatharia (black corals); and Class
Anthozoa, Subclass Ocotocorallia, Order Gorgonacea, species Gorgonia
ventalina and Gorgonia flabellum (sea fans).
Coral area means marine habitat where coral growth abounds
including patch reefs, outer bank reefs, deepwater banks, and
hardbottoms.
Coral reefs means the hard bottoms, deep-water banks, patch reefs,
and outer bank reefs.
Ecological Reserve means an area of the Sanctuary consisting of
contiguous, diverse habitats, within which uses are subject to
conditions, restrictions and prohibitions, including access
restrictions, intended to minimize human influences, to provide natural
spawning, nursery, and permanent residence areas for the replenishment
and genetic protection of marine life, and also to protect and preserve
natural assemblages of habitats and species within areas representing a
broad diversity of resources and habitats found within the Sanctuary.
Appendix IV to this subpart sets forth the geographic coordinates of
these areas.
Existing Management Area means an area of the Sanctuary that is
within or is a resource management area established by NOAA or by
another Federal authority of competent jurisdiction as of the effective
date of these regulations where protections above and beyond those
provided by Sanctuary-wide prohibitions and restrictions are needed to
adequately protect resources. Appendix II to this subpart sets forth
the geographic coordinates of these areas.
Exotic species means a species of plant, invertebrate, fish,
amphibian, reptile or mammal whose natural zoogeographic range would
not have included the waters of the Atlantic Ocean, Caribbean, or Gulf
of Mexico without passive or active introduction to such area through
anthropogenic means.
Fishing means:
(1) The catching, taking, or harvesting of fish; the attempted
catching, taking, or harvesting of fish; any other activity which can
reasonably be expected to result in the catching, taking, or harvesting
of fish; or any operation at sea in support of, or in preparation for,
any activity described in this subparagraph (1).
(2) Such term does not include any scientific research activity
which is conducted by a scientific research vessel.
Hardbottom means a submerged marine community comprised of
organisms attached to exposed solid rock substrate. Hardbottom is the
substrate to which corals may attach but does not include the corals
themselves.
Idle speed only/no-wake means a speed at which a boat is operated
that is no greater than 4 knots or does not produce a wake.
Idle speed only/no-wake zone means a portion of the Sanctuary where
the speed at which a boat is operated may be no greater than 4 knots or
may not produce a wake.
Length overall (LOA) or length means, as used in Sec. 922.167 with
respect to a vessel, the horizontal distance, rounded to the nearest
foot (with 0.5 feet and above rounded upward), between the foremost
part of the stem and the aftermost part of the stern, excluding
bowsprits, rudders, outboard motor brackets, and similar fittings or
attachments.
Live rock means any living marine organism or an assemblage thereof
attached to a hard substrate, including dead coral or rock but not
individual mollusk shells (e.g., scallops, clams, oysters). Living
marine organisms associated with hard bottoms, banks, reefs, and live
rock may include, but are not limited to: sea anemones (Phylum
Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera);
tube worms (Phylum Annelida), including fan worms, feather duster
worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts
(Phylum Chordata); and marine algae, including Mermaid's fan and cups
(Udotea spp.), corraline algae, green feather, green grape algae
(Caulerpa spp.) and watercress (Halimeda spp.).
Marine life species means any species of fish, invertebrate, or
plant included insubsection (2), (3) or (4) of Rule 68B-42.001, Florida
Administrative Code, or any part thereof.
Military activity means an activity conducted by the Department of
Defense with or without participation by foreign forces, other than
civil engineering and other civil works projects conducted by the U.S.
Army Corps of Engineers.
No-access buffer zone means a portion of the Sanctuary where
vessels are prohibited from entering regardless of the method of
propulsion.
No motor zone means an area of the Sanctuary where the use of
internal combustion motors is prohibited. A vessel with an internal
combustion motor may access a no motor zone only through the use of a
push pole, paddle, sail, electric motor or similar means of operation
but is prohibited from using its internal combustion motor.
Officially marked channel means a channel marked by Federal, State
of Florida, or Monroe County officials of competent jurisdiction with
navigational aids except for channels marked idle speed only/no wake.
Prop dredging means the use of a vessel's propulsion wash to dredge
or otherwise alter the seabed of the Sanctuary. Prop dredging includes,
but is not limited to, the use of propulsion wash deflectors or similar
means of dredging or otherwise altering the

[[Page 6022]]

seabed of the Sanctuary. Prop dredging does not include the disturbance
to bottom sediments resulting from normal vessel propulsion.
Prop scarring means the injury to seagrasses or other immobile
organisms attached to the seabed of the Sanctuary caused by operation
of a vessel in a manner that allows its propeller or other running
gear, or any part thereof, to cause such injury (e.g., cutting seagrass
rhizomes). Prop scarring does not include minor disturbances to bottom
sediments or seagrass blades resulting from normal vessel propulsion.
Residential shoreline means any man-made or natural:
(1) Shoreline,
(2) Canal mouth,
(3) Basin, or
(4) Cove adjacent to any residential land use district, including
improved subdivision, suburban residential or suburban residential
limited, sparsely settled, urban residential, and urban residential
mobile home under the Monroe County land development regulations.
Sanctuary means the Florida Keys National Marine Sanctuary.
Sanctuary Preservation Area means an area of the Sanctuary that
encompasses a discrete, biologically important area, within which uses
are subject to conditions, restrictions and prohibitions, including
access restrictions, to avoid concentrations of uses that could result
in significant declines in species populations or habitat, to reduce
conflicts between uses, to protect areas that are critical for
sustaining important marine species or habitats, or to provide
opportunities for scientific research. Appendix V to this subpart sets
forth the geographic coordinates of these areas.
Sanctuary wildlife means any species of fauna, including avifauna,
that occupy or utilize the submerged resources of the Sanctuary as
nursery areas, feeding grounds, nesting sites, shelter, or other
habitat during any portion of their life cycles.
Special-use Area means an area of the Sanctuary set aside for
scientific research and educational purposes, recovery or restoration
of Sanctuary resources, monitoring, to prevent use or user conflicts,
to facilitate access and use, or to promote public use and
understanding of Sanctuary resources. Appendix VI to this subpart sets
forth the geographic coordinates of these areas.
Stem means the foremost part of a vessel, consisting of a section
of timber or fiberglass, or cast, forged, or rolled metal, to which the
sides of the vessel are united at the fore end, with the lower end
united to the keel, and with the bowsprit, if one is present, resting
on the upper end.
Stern means the aftermost part of the vessel.
Tank vessel means any vessel that is constructed or adapted to
carry, or that carries, oil or hazardous material in bulk as cargo or
cargo residue, and that--
(1) Is a United States flag vessel;
(2) Operates on the navigable waters of the United States; or
(3) Transfers oil or hazardous material in a port or place subject
to the jurisdiction of the United States [46 U.S.C. 2101].
Tropical fish means any species included in 68B-42 of the Florida
Administrative Code, or any part thereof.
Wildlife Management Area means an area of the Sanctuary established
for the management, protection, and preservation of Sanctuary wildlife
resources, including such an area established for the protection and
preservation of endangered or threatened species or their habitats,
within which access is restricted to minimize disturbances to Sanctuary
wildlife; to ensure protection and preservation consistent with the
Sanctuary designation and other applicable law governing the protection
and preservation of wildlife resources in the Sanctuary. Appendix III
to this subpart lists these areas and their access restrictions.
(b) Other terms appearing in the regulations in this part are
defined at 15 CFR 922.11, and/or in the Marine Protection, Research,
and Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16
U.S.C. 1431 et seq.
0
47. Amend Sec. 922.163 by revising paragraphs (a)(3), (b), (c) and (f)
to read as follows:

Sec. 922.163 Prohibited activities--Sanctuary-wide.

(a) * * *
(3) Alteration of, or construction on, the seabed. Drilling into,
dredging, or otherwise altering the seabed of the Sanctuary, or
engaging in prop-dredging; or constructing, placing or abandoning any
structure, material, or other matter on the submerged lands of the
Sanctuary, except as an incidental result of:
* * * * *
(b) Notwithstanding the prohibitions in this section and in Sec.
922.164, and any access and use restrictions imposed pursuant thereto,
a person may conduct an activity specifically authorized by and
conducted in accordance with the scope, purpose, terms, and conditions
of a National Marine Sanctuary permit issued pursuant to Sec. 922.166
and this subpart D of this part.
(c) Notwithstanding the prohibitions in this section and in Sec.
922.164, and any access and use restrictions imposed pursuant thereto,
a person may conduct an activity specifically authorized by any valid
Federal, State, or local lease, permit, license, approval, or other
authorization issued after the effective date of these regulations,
provided that the applicant complies with Sec. 922.36, the Director
notifies the applicant and authorizing agency that he or she does not
object to issuance of the authorization, and the applicant complies
with any terms and conditions the Director deems reasonably necessary
to protect Sanctuary resources and qualities. Amendments, renewals and
extensions of authorizations in existence on the effective date of
these regulations constitute authorizations issued after the effective
date of these regulations.
* * * * *
(f) Notwithstanding paragraph (b) of this section and paragraph (a)
of Sec. 922.168, in no event may the Director issue a permit under
Sec. 922.166 and subpart D of this part, authorizing, or otherwise
approving, the exploration for, leasing, development, or production of
minerals or hydrocarbons within the Sanctuary, the disposal of dredged
material within the Sanctuary other than in connection with beach
renourishment or Sanctuary restoration projects, or the discharge of
untreated or primary treated sewage, and any purported authorizations
issued by other authorities after the effective date of these
regulations for any of these activities within the Sanctuary shall be
invalid.
* * * * *
0
48. Amend Sec. 922.164 by revising paragraph (e)(1)(iii) to read as
follows:

Sec. 922.164 Additional activity regulations by Sanctuary area.

* * * * *
(e) * * *
(1) * * *
(iii) ``Research-only area'' to provide for scientific research or
education relating to protection and management, through the issuance
of a Sanctuary General permit for research pursuant to Sec. 922.166 of
these regulations and subpart D of this part; and
* * * * *
0
49. Revise Sec. 922.166 to read as follows:

[[Page 6023]]

Sec. 922.166 Permits other than for access to the Tortugas Ecological
Reserve--application procedures.

(a) A person may conduct an activity otherwise prohibited by
Sec. Sec. 922.163 or 922.164, other than an activity involving the
survey/inventory, research/recovery, or deaccession/transfer of
Sanctuary maritime heritage resources, if the activity is specifically
allowed by and conducted in accordance with the scope, purpose, terms
and conditions of a permit issued under this section and subpart D of
this part.
(b) Applications for permits should be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Superintendent, Florida
Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 33037.
(c) For activities proposed to be conducted within any of the areas
described in Sec. 922.164 (b)-(e), the Director shall not issue a
permit unless he or she further finds that such activities will further
and are consistent with the purposes for which such area was
established, as described in Sec. Sec. 922.162 and 922.164 and in the
management plan for the Sanctuary.
(d) National Marine Sanctuary Survey/Inventory of Maritime Heritage
Resources Permit.
(1) A person may conduct an activity otherwise prohibited by
Sec. Sec. 922.163 or 922.164 involving the survey/inventory of
Sanctuary maritime heritage resources if the activity is specifically
allowed by and conducted in accordance with the scope, purpose, terms
and conditions of a Survey/Inventory of Historical Resources permit
issued under this paragraph (c). If a survey/inventory activity will
involve test excavations or removal of artifacts or materials for
evaluative purposes, a Survey/Inventory of Maritime Heritage Resources
permit is required. Persons who have demonstrated their professional
abilities under a Survey/Inventory permit will be given preference over
other persons in consideration of the issuance of a Research/Recovery
permit. While a Survey/Inventory permit does not grant any rights with
regards to areas subject to pre-existing rights of access which are
still valid, once a permit is issued for an area, other survey/
inventory permits will not be issued for the same area during the
period for which the permit is valid.
(2) The Director, at his or her discretion, may issue a Survey/
Inventory permit under this paragraph (b), subject to such terms and
conditions as he or she deems appropriate, if the Director finds that
such activity:
(i) Satisfies the requirements for a permit issued under subpart D;
(ii) Either will be non-intrusive, not include any excavation,
removal, or recovery of historical resources, and not result in
destruction of, loss of, or injury to Sanctuary resources or qualities,
or if intrusive, will involve no more than the minimum manual
alteration of the seabed and/or the removal of artifacts or other
material necessary for evaluative purposes and will cause no
significant adverse impacts on Sanctuary resources or qualities; and
(iii) That such activity will be conducted in accordance with all
requirements of the Programmatic Agreement for the Management of
Maritime Heritage Resources in the Florida Keys National Marine
Sanctuary among NOAA, the Advisory Council on Historic Preservation,
and the State of Florida (hereinafter Programmatic Agreement (PA), and
that such permit issuance is in accordance with such PA. Copies of the
PA may also be examined at, and obtained from, https://floridakeys.noaa.gov or from the Florida Keys National Marine Sanctuary
Office, P.O. Box 1083, Key Largo, FL 33037.
(e) National Marine Sanctuary Research/Recovery of Sanctuary
Maritime Heritage Resources Permit.
(1) A person may conduct any activity prohibited by Sec. Sec.
922.163 or 922.164 involving the research/recovery of Sanctuary
historical resources if such activity is specifically authorized by and
is conducted in accordance with the scope, purpose, terms and
conditions of a Research/Recovery of Maritime Heritage Resources permit
issued under this paragraph (c).
(2) The Director, at his or her discretion, may issue a Research/
Recovery of Historical Resources permit, under this paragraph (c), and
subject to such terms and conditions as he or she deems appropriate, if
the Director finds that:
(i) Such activity satisfies the requirements for a permit issued
under section 922.33;
(ii) The recovery of the resource is in the public interest as
described in the PA;
(iii) Recovery of the resource is part of research to preserve
historic information for public use; and
(iv) Recovery of the resource is necessary or appropriate to
protect the resource, preserve historical information, and/or further
the policies and purposes of the NMSA and the FKNMSPA, and that such
permit issuance is in accordance with, and that the activity will be
conducted in accordance with, all requirements of the PA.
(3) Any permit authorizing the research/recovery of Maritime
Heritage resources shall be subject to the following terms and
conditions:
(i) A professional archaeologist shall be in charge of planning,
field recovery operations, and research analysis.
(ii) An agreement with a conservation laboratory shall be in place
before field recovery operations are begun, and an approved nautical
conservator shall be in charge of planning, conducting, and supervising
the conservation of any artifacts and other materials recovered.
(iii) A curation agreement with a museum or facility for curation,
public access and periodic public display, and maintenance of the
recovered historical resources shall be in place before commencing
field operations (such agreement for the curation and display of
recovered maritime heritage resources may provide for the release of
public artifacts for deaccession/transfer if such deaccession/transfer
is consistent with preservation, research, education, or other purposes
of the designation and management of the Sanctuary. Deaccession/
transfer of maritime heritage resources requires a Special-use permit
issued pursuant to paragraph (d) and such deaccession/transfer shall be
executed in accordance with the requirements of the PA).
(iv) The site's archaeological information is fully documented,
including measured drawings, site maps drawn to professional standards,
and photographic records.
0
50. Amend Sec. 922.167 by revising paragraph (b)(1) to read as
follows:

Sec. 922.167 Permits for access to the Tortugas Ecological Reserve.

* * * * *
(b)(1) Access permits must be requested at least 72 hours but no
longer than one month before the date the permit is desired to be
effective. Access permits do not require written applications or the
payment of any fee. Permits may be requested via telephone or radio by
contacting FKNMS at the following number:
Key West office: telephone: (305) 292-0311
* * * * *

Subpart Q--Hawaiian Islands Humpback Whale National Marine
Sanctuary

0
51. Revise Sec. 922.181(a) to read as follows:

Sec. 922.181 Boundary.

(a) Except for excluded areas described in paragraph (b) of this
section, the Hawaiian Islands Humpback Whale National Marine

[[Page 6024]]

Sanctuary encompasses approximately 1,032 square nautical miles
(nmi\2\), and consists of the submerged lands and waters off the coast
of the Hawaiian Islands seaward from the shoreline, cutting across the
mouths of rivers and streams:
* * * * *
0
52. Amend Sec. 922.182 by revising the definition for ``Alteration of
the seabed'' to read as follows:

Sec. 922.182 Definitions.

* * * * *
Alteration of the seabed means drilling into, dredging, or
otherwise altering a natural physical characteristic of the seabed of
the Sanctuary; or constructing, placing, or abandoning any structure,
material, or other matter on the submerged lands of the Sanctuary.
* * * * *
(b) Other terms appearing in the regulations in this subpart are
defined at 15 CFR 922.11, and/or in the Marine Protection, Research,
and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C.
1431 et seq.

Subpart R--Thunder Bay Bank National Marine Sanctuary and
Underwater Preserve

0
53. Revise Sec. 922.190 to read as follows:

Sec. 922.190 Boundary.

The Thunder Bay National Marine Sanctuary and Underwater Preserve
(Sanctuary) consists of an area of approximately 338 square nautical
miles (nmi\2\) of waters of Lake Huron and the submerged lands
thereunder, over, around, and under the underwater cultural resources
in Thunder Bay. The boundary forms an approximately rectangular area by
extending along the ordinary high water mark between the northern and
southern boundaries of Alpena County, cutting across the mouths of
rivers and streams, and lakeward from those points along latitude lines
to longitude 83 degrees west. The coordinates of the boundary are set
forth in appendix A to this Subpart.
0
54. Amend Sec. 922.191 by removing the definition for ``traditional
fishing.''

0
55. Remove and reserve Sec. 922.194.

Sec. 922.194 [Reserved].

0
56. Revise Sec. 922.195 to read as follows: Sec. 922.195 Permit
procedures.
(a) A person may conduct an activity otherwise prohibited by Sec.
922.193 (a)(1) through (3), if the activity is specifically authorized
by and conducted in accordance with the scope, purpose, terms and
conditions of a State Permit provided that:
(1) The State Archaeologist certifies to NOAA that the activity
authorized under the State Permit will be conducted consistent with the
Programmatic Agreement, in which case such State Permit shall be deemed
to have met the requirements of subpart D of this part; or
(2) In the case where the State Archaeologist does not certify that
the activity to be authorized under a State Permit will be conducted
consistent with the Programmatic Agreement, the person complies with
the requirements of subpart D of this part.
(b) In instances where the conduct of an activity is prohibited by
Sec. 922.193 (a)(1) through (3) of this subpart is not addressed under
a State or other Federal lease, license, permit or other authorization,
a person may conduct such activity if it is specifically authorized by
and conducted in accordance with the scope, purpose, terms, and
conditions of a permit issued pursuant to subpart D of this part and
the Programmatic Agreement.
(c) A permit for recovery of an underwater cultural resource may be
issued if:
(1) The proposed activity satisfies the requirements for permits
described under paragraphs (a) through (b) of this section and section
922.33;
(2) The recovery of the underwater cultural resource is in the
public interest;
(3) Recovery of the underwater cultural resource is part of
research to preserve historic information for public use; and
(4) Recovery of the underwater cultural resource is necessary or
appropriate to protect the resource, preserve historical information,
or further the policies of the Sanctuary.
(d) A person shall file an application for a permit with the
Michigan Department of Environmental Quality, Land and Water Management
Division, P.O. Box 30458, Lansing, MI 48909-7958. The application shall
contain all of the following information:
(1) The name and address of the applicant;
(2) Research plan that describes in detail the specific research
objectives and previous work done at the site. An archaeological survey
must be conducted on a site before an archaeological permit allowing
excavation can be issued;
(3) Description of significant previous work in the area of
interest, how the proposed effort would enhance or contribute to
improving the state of knowledge, why the proposed effort should be
performed in the Sanctuary, and its potential benefits to the
Sanctuary;
(4) An operational plan that describes the tasks required to
accomplish the project's objectives and the professional qualifications
of those conducting and supervising those tasks (see Sec.
922.195(e)(9) of this section). The plan must provide adequate
description of methods to be used for excavation, recovery and the
storage of artifacts and related materials on site, and describe the
rationale for selecting the proposed methods over any alternative
methods;
(5) Archaeological recording, including site maps, feature maps,
scaled photographs, and field notes;
(6) An excavation plan describing the excavation, recovery and
handling of artifacts;
(7)(i) A conservation plan documenting:
(A) The conservation facility's equipment;
(B) Ventilation temperature and humidity control; and
(C) Storage space.
(ii) Documentation of intended conservation methods and processes
must also be included;
(8) A curation and display plan for the curation of the conserved
artifacts to ensure the maintenance and safety of the artifacts in
keeping with the Sanctuary's federal stewardship responsibilities under
the Federal Archaeology Program (36 CFR part 79, Curation of Federally-
Owned and Administered Archaeological Collections); and
(9) Documentation of the professional standards of an archaeologist
supervising the archaeological recovery of historical artifacts. The
minimum professional qualifications in archaeology are a graduate
degree in archaeology, anthropology, or closely related field plus:
(i) At least one year of full-time professional experience or
equivalent specialized training in archeological research,
administration or management;
(ii) At least four months of supervised field and analytic
experience in general North American archaeology;
(iii) Demonstrated ability to carry research to completion; and
(iv) At least one year of full-time professional experience at a
supervisory level in the study of archeological resources in the
underwater environment.

[FR Doc. 2013-00937 Filed 1-25-13; 8:45 am]
BILLING CODE 3510-NK-P

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