[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2005 Edition]
[From the U.S. Government Printing Office]



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          15


          Part 800 to End

                         Revised as of January 1, 2005


          Commerce and Foreign Trade
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2005
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 15:
    Subtitle B--Regulations Relating to Commerce and Foreign 
      Trade (Continued)
          Chapter VIII--Bureau of Economic Analysis, 
          Department of Commerce                                     5
          Chapter IX--National Oceanic and Atmospheric 
          Administration, Department of Commerce                    39
          Chapter XI--Technology Administration, Department of 
          Commerce                                                 401
          Chapter XIII--East-West Foreign Trade Board              415
          Chapter XIV--Minority Business Development Agency        419
    Subtitle C--Regulations Relating to Foreign Trade 
      Agreements:
          Chapter XX--Office of the United States Trade 
          Representative                                           427
    Subtitle D--Regulations Relating to Telecommunications and 
      Information:
          Chapter XXIII--National Telecommunications and 
          Information Administration, Department of Commerce       479
  Finding Aids:
      Material Approved for Incorporation by Reference........     499
      Table of CFR Titles and Chapters........................     501

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      Alphabetical List of Agencies Appearing in the CFR......     519
      List of CFR Sections Affected...........................     529

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 15 CFR 801.1 refers 
                       to title 15, part 801, 
                       section 1.

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

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2005), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vii]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page viii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of textual material 
appearing in the Code of Federal Regulations.

INQUIRIES

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volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
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ELECTRONIC SERVICES

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Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2005.

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                               THIS TITLE

    Title 15--Commerce and Foreign Trade is composed of three volumes. 
The parts in these volumes are arranged in the following order: parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299 
is comprised of Subtitle A--Office of the Secretary of Commerce, 
Subtitle B, chapter I--Bureau of the Census, Department of Commerce, and 
chapter II--National Institute of Standards and Technology, Department 
of Commerce. The second volume containing parts 300-799 is comprised of 
chapter III--International Trade Administration, Department of Commerce, 
chapter IV--Foreign-Trade Zones Board, and chapter VII--Bureau of 
Industry and Security, Department of Commerce. The third volume 
containing part 800-End is comprised of chapter VIII--Bureau of Economic 
Analysis, Department of Commerce, chapter IX--National Oceanic and 
Atmospheric Administration, Department of Commerce, chapter XI--
Technology Administration, Department of Commerce, chapter XIII--East-
West Foreign Trade Board, chapter XIV--Minority Business Development 
Agency, chapter XX--Office of the United States Trade Representative, 
and chapter XXIII--National Telecommunications and Information 
Administration, Department of Commerce. The contents of these volumes 
represent all current regulations codified under this title of the CFR 
as of January 1, 2005.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

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                  TITLE 15--COMMERCE AND FOREIGN TRADE




                    (This book contains part 800-end)

  --------------------------------------------------------------------
                                                                    Part

     SUBTITLE B--Regulations Relating to Commerce and Foreign Trade 
                                (Continued)

chapter viii--Bureau of Economic Analysis, Department of 
  Commerce..................................................         801

chapter ix--National Oceanic and Atmospheric Administration, 
  Department of Commerce....................................         902

chapter xi--Technology Administration, Department of 
  Commerce..................................................        1150

chapter xiii--East-West Foreign Trade Board.................        1300

chapter xiv--Minority Business Development Agency...........        1400

      SUBTITLE C--Regulations Relating to Foreign Trade Agreements:

chapter xx--Office of the United States Trade Representative        2001

 SUBTITLE D--Regulations Relating to Telecommunications and Information

chapter xxiii-- National Telecommunications and Information 
  Administration, Department of Commerce....................        2301

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     Subtitle B--Regulations Relating to Commerce and Foreign Trade 
                               (Continued)

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    CHAPTER VIII--BUREAU OF ECONOMIC ANALYSIS, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
801             Survey of international trade in services 
                    between U.S. and foreign persons........           7
806             Direct investment surveys...................          19
807             Public information..........................          38

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PART 801_SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. AND 
FOREIGN PERSONS--Table of Contents




Sec.
801.1 Purpose.
801.2 Recordkeeping requirements.
801.3 General reporting requirements.
801.4 Response required.
801.5 Confidentiality.
801.6 Penalties.
801.7 General definitions.
801.8 Miscellaneous.
801.9 Reports required.
801.10 Rules and regulations for the BE-20, Benchmark Survey of Selected 
          Services Transactions with Unaffiliated Foreign Persons.
801.11 Rules and regulations for the BE-80, Benchmark Survey of 
          Financial Services Transactions Between U.S. Financial 
          Services Providers and Unaffiliated Foreign Persons.

    Authority: 5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; E.O. 
11961, 3 CFR, 1977 Comp., p. 86, as amended by E.O. 12318, 3 CFR, 1981 
Comp. p. 173, and E.O. 12518, 3 CFR, 1985 Comp. p. 348.

    Source: 51 FR 7772, Mar. 6, 1986, unless otherwise noted.



Sec. 801.1  Purpose.

    The purpose of this part is to set forth the rules and regulations 
necessary to carry out the data collection program concerning 
international trade in services that is required by, or provided for in, 
the International Investment and Trade in Services Survey Act (Pub. L. 
94-472, 90 Stat. 2059, 22 U.S.C. 3101 to 3108, as amended by section 306 
of Pub. L. 98-573), hereafter ``the Act.'' The overall purpose of the 
Act with respect to services trade is to provide comprehensive and 
reliable information pertaining to international trade in services, and 
to do so with the minimum burden on respondents and with no unnecessary 
duplication of effort. The data are needed for policymaking purposes, 
for conducting international negotiations on trade in services, and for 
improving the recording of services transactions in the U.S. balance of 
payments accounts.



Sec. 801.2  Recordkeeping requirements.

    In accordance with section 5(b)(1) of the Act (22 U.S.C 3104), 
persons subject to the jurisdiction of the United States shall maintain 
any information (including journals or other books of original entry, 
minute books, stock transfer records, lists of shareholders, or 
financial statements) which is essential for carrying out the surveys 
and studies provided for by the Act.



Sec. 801.3  General reporting requirements.

    (a) In accordance with section 5(b)(2) of the Act (22 U.S.C. 3104) 
persons subject to the jurisdiction of the United States shall furnish, 
under oath, any report containing information which is determined to be 
necessary to carry out the surveys and studies provided for by the Act.
    (b) Such reports may be required from any U.S. person, other than 
the U.S. Government, engaged in international trade in services. 
Specific reporting requirements for a given report form are set forth 
below and, in more detail, on the form itself.



Sec. 801.4  Response required.

    Reports, as specified below, are required from all U.S. persons 
coming within the reporting requirements, whether or not they are 
contacted by BEA. In addition, any person BEA contacts by sending them 
report forms must respond in writing. The response must be made by the 
due date of the report, either by filing the properly completed report 
form or by certifying in writing on the form that the person has no 
international services transactions within the purview of the Act or the 
regulations contained herein. The latter requirement is necessary to 
ensure compliance with reporting requirements and efficient 
administration of the Act.



Sec. 801.5  Confidentiality.

    Information collected pursuant to Sec. 801.3 is confidential (see 
section 5(c) of the Act, 22 U.S.C. 3104).
    (a) Access to this information shall be available only to officials 
and employees (including consultants and contractors and their 
employees) of agencies designated by the President to perform functions 
under the Act.
    (b) Subject to paragraph (d) of this section, the President may 
authorize

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the exchange of information between agencies or officials designated to 
perform functions under the Act.
    (c) Nothing in this part shall be construed to require any Federal 
agency to disclose information otherwise protected by law.
    (d) This information shall be used solely for analytical or 
statistical purposes or for a proceeding under Sec. 801.6.
    (e) No official or employee (including consultants and contractors 
and their employees) shall publish or make available to any other person 
any information collected under the Act in such a manner that the person 
to whom the information relates can be specifically identified.
    (f) Reports and copies of reports prepared pursuant to the Act are 
confidential and their submission or disclosure shall not be compelled 
by any person without the prior written permission of the person filing 
the report and the customer of such person where the information 
supplied it identifiable as being derived from the records of such 
customer.



Sec. 801.6  Penalties.

    (a) Whoever fails to furnish any information required by the Act or 
by Sec. 801.3, or to comply with any other rule, regulation, order or 
instruction promulgated under the Act, may be subject to a civil penalty 
not exceeding $10,000 in a proceeding brought in an appropriate United 
States court and to injunctive relief commanding such person to comply, 
or both (see section 6 (a) and (b) of the Act, 22 U.S.C. 3105).
    (b) Whoever willfully fails to submit any information required by 
the Act or by Sec. 801.3, or willfully violates any other rule, 
regulation, order or instruction promulgated under the Act, upon 
conviction, shall be fined not more than $10,000 and, if an individual, 
may be imprisoned for not more than one year, or both. Any officer, 
director, employee, or agent or any corporation who knowingly 
participates in such violation, upon conviction, may be punished by a 
like fine, imprisonment, or both (see section 6(c) of the Act, 22 U.S.C. 
3105).
    (c) Any person who willfully violates Sec. 801.5 relating to 
confidentially, shall, upon conviction, be fined not more than $10,000, 
in addition to any other penalty imposed by law (see section 5(d) of the 
Act, 22 U.S.C. 3104).



Sec. 801.7  General definitions.

    (a) Services means economic activities whose outputs are other than 
tangible goods. Such term includes, but is not limited to, banking, 
insurance, transportation, communications and data processing, retail 
and wholesale trade, advertising, accounting, construction, design, 
engineering, management consulting, real estate, professional services, 
entertainment, education, and health care.
    (b) United States, when used in a geographic sense, means the 
several States, the District of Columbia, the Commonwealth of Puerto 
Rico, and all territories and possessions of the United States.
    (c) Foreign, when used in a geographic sense, means that which is 
situated outside the United States or which belongs to or is 
characteristic of a country other than the United States.
    (d) Person means any individual, branch, partnership, associated 
group, association, estate, trust, corporation, or other organization 
(whether or not organized under the laws of any State), and any 
government (including a foreign government, the United States 
Government, a State or local government, and any agency, corporation, 
financial institution, or other entity or instrumentality thereof, 
including a government sponsored agency).
    (e) United States person means any person resident in the United 
States or subject to the jurisdiction of the United States.
    (f) Foreign person means any person resident outside the United 
States or subject to the jurisdiction of a country other than the United 
States.
    (g) Business enterprise means any organization, association, branch, 
or venture which exists for profitmaking purposes or to otherwise secure 
economic advantage, and any ownership of any real estate.
    (h) Unaffiliated foreign person means, with respect to a given U.S. 
person, any foreign person that is not an ``affiliated foreign person'' 
as defined in paragraph (i) of this section.

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    (i) Affiliated foreign person means, with respect to a given U.S. 
person--
    (1) A foreign affiliate of which the U.S. person is a U.S. parent; 
or
    (2) The foreign parent or other member of the affiliated foreign 
group of which the U.S. person is a U.S. affiliate.
    (j) Parent means a person of one country who directly or indirectly, 
owns or controls 10 per centum or more of the voting stock of an 
incorporated business enterprise, or an equivalent ownership interest in 
an unincorporated business enterprise, which is located outside that 
country.
    (k) Affiliate means a business enterprise located in one country 
which is directly or indirectly owned or controlled by a person of 
another country to the extent of 10 per centum or more of its voting 
stock for an incorporated business or an equivalent interest for an 
unincorported business, including a branch.
    (l) U.S. parent means the U.S. person that has direct investment in 
a foreign business enterprise.
    (m) Foreign affiliate means an affiliate located outside the United 
States in which a U.S. person has direct investment.
    (n) Foreign parent means the foreign person, or the first person 
outside the United States in a foreign chain of ownership, which has 
direct investment in a U.S. business enterprise, including a branch.
    (o) U.S. affiliate means an affiliate located in the United States 
in which a foreign person has a direct investment.
    (p) Affiliated foreign group means--
    (1) The foreign parent;
    (2) Any foreign person, proceeding up the foreign parent's ownership 
chain, which owns more than 50 per centum of the person below it up to 
and including that person which is not owned more than 50 per centum by 
another foreign person; and
    (3) Any foreign person, proceeding down the ownership chain(s) of 
each of these members, which is owned more than 50 per centum by the 
person above it.



Sec. 801.8  Miscellaneous.

    (a) Required information not available. All reasonable efforts 
should be made to obtain information required for reporting. Every 
applicable question on each form or schedule should be answered. When 
only partial information is available, an appropriate indication should 
be given.
    (b) Estimates. If actual figures are not available, estimates should 
be supplied and labeled as such. When a data item cannot be fully 
subdivided as required, a total and an estimated breakdown of the total 
should be supplied.
    (c) Specify. When ``specify'' is included in certain data items, the 
type and dollar amount of the major items included must be given for at 
least the items mentioned in the line or column instruction.
    (d) Space on form insufficient. When space on a form is insufficient 
to permit a full answer to any item, the required information should be 
submitted on supplementary sheets, appropriately labeled and referenced 
to the item of column number and the form.
    (e) Extensions. Requests for an extension of a reporting deadline 
will not normally be granted. However, in a hardship case, a written 
request for an extension will be considered provided it is received at 
least 15 days prior to the due date of the report and enumerates 
substantive reasons necessitating the extension.
    (f) Number of copies. A single original copy of each form or 
schedule shall be filed with the Bureau of Economic Analysis. This 
should be the copy with the address label if such a labeled copy has 
been provided. In addition, each respondent must retain a copy of its 
report to facilitate resolution of problems. Both copies are protected 
by law; see Sec. 801.5.
    (g) Other. Instructions concerning filing dates, where to send 
reports, and whom to contact concerning a given report are contained on 
each form.



Sec. 801.9  Reports required.

    (a) Benchmark surveys. Section 4(a)(4) of the Act (22 U.S.C. 3103) 
provides that benchmark surveys of trade in services between U.S. and 
unaffiliated foreign persons be conducted, but not more frequently than 
every 5 years. General reporting requirements, exemption levels, and the 
year of coverage of the BE-

[[Page 10]]

20 survey may be found in Sec. 801.10, and general reporting 
requirements, exemption levels, and the year of coverage of the BE-80 
survey may be found in Sec. 801.11. More detailed instructions are 
given on the forms themselves.
    (b) Annual surveys. (1) BE-29, Foreign Ocean Carriers' Expenses in 
the United States:
    (i) Who must report. A BE-29 report is required from U.S. agents on 
behalf of foreign ocean carriers transporting freight or passengers to 
or from the United States. U.S. agents are steamship agents and other 
persons representing foreign carriers in arranging ocean transportation 
of freight and cargo between U.S. and foreign ports and in arranging 
port services in the United States. Foreign carriers are foreign persons 
that own or operate ocean going vessels calling at U.S. ports, including 
VLCC tankers discharging petroleum offshore to pipelines and lighter 
vessels destined for U.S. ports. They include carriers who own or who 
operate their own or chartered (United States or foreign-flag) vessels. 
They also include foreign subsidiaries of U.S. companies operating their 
own or chartered vessels as carriers for their own accounts. Where the 
vessels under foreign registry are operated directly by a U.S. carrier 
for its own account, the operations of such vessels should be reported 
on Form BE-30, Ocean Freight Revenues and Foreign Expenses of United 
States Carriers. The Bureau of Economic Analysis may, in lieu of BE-29 
reports required from foreign carriers' U.S. agents, accept consolidated 
reports from foreign governments covering the operations of their 
national shipping concerns when, in the Bureau's discretion, such 
consolidated reports would provide the required information. Where such 
reports are accepted, the individual reports from foreign carriers' U.S. 
agents will not be required.
    (ii) Exemption. Any U.S. person otherwise required to report is 
exempted from reporting if the total number of port calls by foreign 
vessels handled in the reporting period is less than forty or total 
covered expenses are less than $250,000. For example, if an agent 
handled less than 40 port calls in a calendar year, the agent is 
exempted from reporting. If the agent handled 40 or more calls, the 
agent must report unless covered expenses for all foreign carriers 
handled by the agent were less than $250,000. The determination of 
whether a U.S. person is exempt may be based on the judgment of 
knowledgeable persons who can identify reportable transactions without 
conducting a detailed manual records search.
    (2) BE-36, Foreign Airline Operators' Revenues and Expenses in the 
United States:
    (i) Who must report. A BE-36 report is required from U.S. offices, 
agents, or other representatives of foreign airlines that are engaged in 
transporting passengers or freight and express to or from the United 
States. If the U.S. office, agent, or other representative does not have 
all the information required, it must obtain the additional information 
from the foreign airline operator.
    (ii) Exemption: A U.S. person otherwise required to report is 
exempted from reporting if total covered revenues and total covered 
expenses incurred in the United States are each less than $500,000 in 
the reporting period. If either total covered revenues or total covered 
expenses are $500,000 or more in the reporting period, a report must be 
filed.
    (3) BE-47, Annual Survey of Construction, Engineering, 
Architectural, and Mining Services Provided by U.S. Firms to 
Unaffiliated Foreign Persons:
    (i) Who must report. Form BE-47 must be filed by each U.S. person 
(other than U.S. Government agencies) providing the following types of 
services on a contract, fee, or similar basis to unaffiliated persons on 
foreign projects: The services of general contractors in the fields of 
building construction and heavy construction; construction work by 
special trade contractors, such as the erection of structural steel for 
bridges and buildings and on-site electrical work; services of a 
professional nature in the fields of engineering, architecture, and land 
surveying; and mining services in the development and operation of 
mineral properties, including oil and gas field services.
    (ii) Exemption. Any U.S. person otherwise required to report is 
exempted

[[Page 11]]

from reporting if, for all countries and all projects combined, the 
gross value of new contracts received and gross operating revenues are 
both less than $1,000,000. If either the gross value of new contracts 
received or gross operating revenues is $1,000,000 or more, then a 
report is required.
    (4) BE-48, Annual Survey of Reinsurance and other Insurance 
Transactions by U.S. Insurance Companies with Foreign Persons:
    (i) Who must report. Reports on Form BE-48 are required from U.S. 
persons who have engaged in reinsurance transactions with foreign 
persons, or who have received premiums from, or paid losses to, foreign 
persons in the capacity of primary insurers.
    (ii) Exemption. A. U.S. person otherwise required to report is 
exempt if, with respect to transactions with foreign persons, each of 
the following six items were $2 million or less in the reporting period: 
Reinsurance premiums received, reinsurance premiums paid, reinsurance 
losses paid, reinsurance losses recovered, primary insurance premiums 
received, and primary insurance losses paid. If any one of these items 
is greater than $2 million in the reporting period, a report must be 
filed.
    (5) BE-93, Annual Survey of Royalties, License Fees, and Other 
Receipts and Payments for Intangible Rights Between U.S. and 
Unaffiliated Foreign Persons:
    (i) Who must report. Reports on Form BE-93 are required from U.S. 
persons who have entered into agreements with unaffiliated foreign 
persons to buy, sell, or use intangible assets or proprietary rights, 
excluding oil royalties and other natural resources (mining) royalties.
    (ii) Exemption. A U.S. person otherwise required to report is exempt 
if total receipts and total payments of the types covered by the form 
are each $2 million or less in the reporting year. If the total of 
either covered receipts or payments is more than $2 million in the 
reporting year, a report must be filed.
    (6) BE-22, Annual Survey of Selected Services Transactions With 
Unaffiliated Foreign Persons:
    (i) Who must report--(A) Mandatory reporting. A BE-22 report is 
required from each U.S. person who had transactions (either sales or 
purchases) in excess of $1,000,000 with unaffiliated foreign persons in 
any of the covered services during the U.S. person's fiscal year. The 
determination of whether a U.S. person is subject to this mandatory 
reporting requirement may be judgmental, that is, based on the judgment 
of knowledgeable persons in a company who can identify reportable 
transactions on a recall basis, with a reasonable degree of certainty 
without conducting a detailed manual records search.
    (B) Voluntary reporting. If, during the U.S. person's fiscal year, 
the U.S. person's total transactions (either sales or purchases) in any 
of the covered services is $1,000,000 or less, the U.S. person is 
requested to provide an estimate of the total for each type of service. 
Provision of this information is voluntary. The estimates may be 
judgmental, that is, based on recall, without conducting a detailed 
manual records search.
    (C) Any U.S. person receiving a BE-22 survey form from BEA must 
complete all relevant parts of the form and return the form to BEA. A 
person that is not subject to the mandatory reporting requirement in 
paragraph (b)(6)(i)(A) of this section and is not filing information on 
a voluntary basis must only complete the ``Determination of reporting 
status'' and the ``Certification'' sections of the survey. This 
requirement is necessary to ensure compliance with the reporting 
requirements and efficient administration of the survey by eliminating 
unnecessary followup contact.
    (ii) Covered services. The covered services are: Advertising 
services; auxiliary insurance services (by non-insurance companies 
only); educational and training services; financial services (purchases 
only by non-financial services providers); medical services, inpatient 
(receipts only); medical services, other than inpatient (receipts only); 
merchanting services (receipts only); mining services; disbursements to 
fund news-gathering costs of broadcasters; disbursements to fund news-
gathering costs of print media; disbursements to

[[Page 12]]

fund production costs of motion pictures; disbursements to fund 
production costs of broadcast program material other than news; 
disbursements to maintain government tourism and business promotion 
offices; disbursements for sales promotion and representation; 
disbursements to participate in foreign trade shows (purchases only); 
other trade-related services; performing arts, sports, and other live 
performances, presentations, and events; primary insurance premiums 
(payments only); primary insurance losses recovered; sale or purchase of 
rights to natural resources, and lease bonus payments; use or lease of 
rights to natural resources, excluding lease bonus payments; waste 
treatment and depollution services; and other private services (language 
translation services; salvage services; security services; account 
collection services; satellite photography and remote sensing/satellite 
imagery services; space transport (includes satellite launches, 
transport of goods and people for scientific experiments, and space 
passenger transport); and transcription services).
    (7) BE-82, Annual Survey of Financial Services Transactions Between 
U.S. Financial Services Providers and Unaffiliated Foreign Persons:
    (i) A BE-82, Annual Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Unaffiliated Foreign 
Persons, will be conducted covering companies' 1995 fiscal year and 
every year thereafter except when a BE-80 Benchmark Survey of Financial 
Services Transactions Between U.S. Financial Services Providers and 
Unaffiliated Foreign Persons, is conducted (see Sec. 801.11). All legal 
authorities, provisions, definitions, and requirements contained in 
Sec. 801.1 through Sec. 801.8 are applicable to this survey. 
Additional rules and regulations for the BE-82 survey are given in 
paragraphs (b)(7)(i)(A) through (D) of this section. More detailed 
instructions are given on the report from itself.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person who is a financial services provider or 
intermediary, or whose consolidated U.S. enterprise includes a 
separately organized subsidiary or part that is a financial services 
provider or intermediary, and who had transactions (either sales or 
purchases) directly with unaffiliated foreign persons in all financial 
services combined in excess of $10 million during its fiscal year 
covered by the survey. The $10 million threshold should be applied to 
financial services transactions with unaffiliated foreign persons by all 
parts of the consolidated U.S. enterprise combined that are financial 
services providers or intermediaries. Because the $10 million threshold 
applies separately to sales and purchases, the mandatory reporting 
requirement may apply only to sales, to purchases, or to both sales and 
purchases.
    (i) The determination of whether a U.S. financial services provider 
or intermediary is subject to this mandatory reporting requirement may 
be judgmental, that is, based on the judgement of knowledgeable persons 
in a company who can identify reportable transactions on a recall basis, 
with a reasonable degree of certainty, without conducting a detailed 
manual records search.
    (ii) Reporters who file pursuant to this mandatory reporting 
requirement must provide data on total sales and/or purchases of each of 
the covered types of financial services transactions and must 
disaggregate the totals by country.
    (2) Voluntary reporting. If, during the fiscal year covered, sales 
or purchases of financial services by a firm that is a financial 
services provider or intermediary, or by a firm's subsidiaries or parts 
combined that are financial services providers or intermediaries, are 
$10,000,000 or less, the U.S. person is requested to provide an estimate 
of the total for each type of service. Provision of this information is 
voluntary. Because the $10,000,000 threshold applies separately to sales 
and purchases, this voluntary reporting option may apply only to sales, 
only to purchases, or to both sales or purchases.
    (B) BE-82 definition of financial services provider. Except for 
Monetary Authorities (i.e., Central Banks), the definition of financial 
services provider used for this survey is identical in coverage to 
Sector 52--Finance and Insurance--of the North American Industry

[[Page 13]]

Classification System, United States, 1997. For example, companies and/
or subsidiaries and other separable parts of companies in the following 
industries are defined as financial services providers: Depository 
credit intermediation and related activities (including commercial 
banking, holding companies, savings institutions, check cashing, and 
debit card issuing); nondepository credit intermediation (including 
credit card issuing, sales financing, and consumer lending); securities, 
commodity contracts, and other financial investments and related 
activities (including security and commodity futures brokers, dealers, 
exchanges, traders, underwriters, investment bankers, and providers of 
securities custody services); insurance carriers and related activities 
(including agents, brokers, and services providers); investment advisors 
and managers and funds, trusts, and other financial vehicles (including 
mutual funds, pension funds, real estate investment trusts, investors, 
stock quotation services, etc.).
    (C) Covered types of services. The BE-82 survey covers the same 
types of financial services transactions that are covered by the BE-80 
benchmark survey, as listed in Sec. 801.11(c).
    (D) What to file. (1) The BE-82 survey consists of Forms BE-82 (A) 
and BE-82(B). Before completing a form BE-82 (B), a consolidated U.S. 
enterprise (including the top parent and all of its subsidiaries and 
parts combined) must complete Form BE-82 (A) to determine its reporting 
status. If the enterprise is subject to the mandatory reporting 
requirement, or if it is exempt from the mandatory reporting requirement 
but chooses to report data voluntarily, either a separate Form BE-82(B) 
for each separately organized financial services subsidiary or part of a 
consolidated U.S. enterprise, or a single BE-82(B) representing the sum 
of all covered transactions by all financial services subsidiaries or 
parts of the enterprise combined must be completed.
    (2) Reporters who receive the BE-82 survey from BEA, but that are 
not reporting data in either the mandatory or voluntary section of any 
BE-82(B), must return the Exemption Claim, attached to Form BE-82 (A), 
to BEA.
    (ii) [Reserved]
    (c) Quarterly surveys. (1) BE-30, Ocean Freight Revenues and Foreign 
Expenses of United States Carriers:
    (i) Who must report. A BE-30 report is required from U.S. carriers, 
i.e., from U.S. persons that own or operate dry cargo, passenger 
(including combination), and tanker vessels regardless of whether the 
vessels are registered in the United States or in foreign countries. 
Operators are persons who enter into any form of transportation contract 
with shippers of merchandise (or their agents) for the transportation of 
freight and cargo between U.S. and foreign ports or between foreign 
ports, whether on the operators' own vessels or chartered vessels.
    (ii) Exemption. A U.S. person otherwise required to report is 
exempted from reporting if total annual covered revenues (i.e., revenues 
on outbound, cross-trade, and inbound cargoes and charter hire received) 
and total annual covered expenses (i.e., charter hire paid and expenses 
in foreign countries) are, or are expected to be, each less than 
$500,000. If either total annual covered revenues or total annual 
covered expenses are, or are expected to be, $500,000 or more, a report 
must be filed.
    (2) BE-37, U.S. Airline Operators' Foreign Revenues and Expenses:
    (i) Who must report. A BE-37 report is required from all U.S. 
airline operators engaged in transportation of passengers and freight to 
and from the United States or between foreign points.
    (ii) Exemption. A U.S. person otherwise required to report is 
exempted from reporting if total annual covered revenues (i.e., revenues 
from carrying U.S. export freight to foreign countries) and total annual 
covered expenses (i.e., expenses incurred outside the United States and 
aircraft leasing expenses) are, or are expected to be, each less than 
$500,000. If either total annual covered revenues or total annual 
covered expenses are, or are expected to be, $500,000 or more, a report 
must be filed.
    (3) BE-9, Quarterly Survey of Foreign Airline Operators' Revenues 
and Expenses in the United States:
    (i) Who must report. A BE-9 report is required from U.S. offices, 
agents, or

[[Page 14]]

other representatives of foreign airlines that are engaged in 
transporting passengers or freight and express to or from the United 
States. If the U.S. office, agent, or other representative does not have 
all the information required, it must obtain the additional information 
from the foreign airline operator.
    (ii) Exemption. A U.S. person otherwise required to report is exempt 
from reporting if total annual covered revenues and total annual covered 
expenses incurred in the United States were each less than $5 million 
during the previous year and are expected to be less than $5 million 
during the current year. If either total annual covered revenues or 
total annual covered expenses were or are expected to be $5 million or 
more, a report must be filed.
    (4) BE-85, Quarterly Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Unaffiliated Foreign 
Persons:
    (i) A BE-85, Quarterly Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Unaffiliated Foreign 
Persons, will be conducted covering the first quarter of the 2004 
calendar year and every quarter thereafter.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person who is a financial services provider or 
intermediary, or whose consolidated U.S. enterprise includes a 
separately organized subsidiary or part that is a financial services 
provider or intermediary, and that had sales of covered services to 
unaffiliated foreign persons that exceeded $20 million for the previous 
fiscal year or expects sales to exceed that amount during the current 
fiscal year, or had purchases of covered services from unaffiliated 
foreign persons that exceeded $15 million for the previous fiscal year 
or expects purchases to exceed that amount during the current fiscal 
year. These thresholds should be applied to financial services 
transactions with unaffiliated foreign persons by all parts of the 
consolidated U.S. enterprise combined that are financial services 
providers or intermediaries. Because the thresholds are applied 
separately to sales and purchases, the mandatory reporting requirement 
may apply only to sales, only to purchases, or to both sales and 
purchases.
    (i) The determination of whether a U.S. financial services provider 
or intermediary is subject to this mandatory reporting requirement may 
be based on the judgement of knowledgeable persons in a company who can 
identify reportable transactions on a recall basis, with a reasonable 
degree of certainty, without conducting a detailed manual records 
search.
    (ii) Reporters who file pursuant to this mandatory reporting 
requirement must provide data on total sales and/or purchases of each of 
the covered types of financial services transactions and must 
disaggregate the totals by country.
    (2) Voluntary reporting. If a financial services provider or 
intermediary, or all of a firm's subsidiaries or parts combined that are 
financial services providers or intermediaries, had covered sales of $20 
million or less, or covered purchases of $15 million or less during the 
previous fiscal year, and if covered sales or purchases are not expected 
to exceed these amounts in the current fiscal year, a person is 
requested to provide an estimate of the total for each type of service 
for the most recent quarter. Provision of this information is voluntary. 
The estimates may be based on the reasoned judgement of the reporting 
entity. Because these thresholds apply separately to sales and 
purchases, voluntary reporting may apply only to sales, only to 
purchases, or to both.
    (B) BE-85 definition of financial services provider. The definition 
of financial services provider used for this survey is identical in 
coverage to Sector 52--Finance and Insurance--of the North American 
Industry Classification System, United States, 2002. For example, 
companies and/or subsidiaries and other separable parts of companies in 
the following industries are defined as financial services providers: 
Depository credit intermediation and related activities (including 
commercial banking, holding companies, savings institutions, check 
cashing, and debit card issuing); nondepository credit intermediation 
(including credit card issuing, sales financing, and consumer

[[Page 15]]

lending); securities, commodity contracts, and other financial 
investments and related activities (including security and commodity 
futures brokers, dealers, exchanges, traders, underwriters, investment 
bankers, and providers of securities custody services); insurance 
carriers and related activities (including agents, brokers, and services 
providers); investment advisors and managers and funds, trusts, and 
other financial vehicles (including mutual funds, pension funds, real 
estate investment trusts, investors, stock quotation services, etc.).
    (C) Covered types of services. The BE-85 survey covers the following 
types of financial services transactions (purchases and/or sales) 
between U.S. financial services providers and unaffiliated foreign 
persons: Brokerage services, including foreign exchange brokerage 
services; underwriting and private placement services; financial 
management services; credit-related services, except credit card 
services; credit card services; financial advisory and custody services; 
security lending services; electronic funds transfers; and other 
financial services.
    (ii) [Reserved]
    (5) BE-45, Quarterly Survey of Insurance Transactions by U.S. 
Insurance Companies with Foreign Persons:
    (i) A BE-45, Quarterly Survey of Insurance Transactions by U.S. 
Insurance Companies with Foreign Persons, will be conducted covering the 
first quarter of the 2004 calendar year and every quarter thereafter.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. insurance company whose covered transactions with foreign 
persons exceeded $8 million for the previous fiscal year or are expected 
to exceed that amount during the current fiscal year. This threshold is 
applied separately to each of the eight individual types of transactions 
covered by the survey rather than to the sum of the data for all eight 
types combined. Quarterly reports for a year may be required 
retroactively when it is determined that the exemption level has been 
exceeded.
    (2) Voluntary reporting. Reports are requested from each U.S. 
insurance company whose covered transactions with foreign persons were 
$8 million or less for the previous fiscal year and are not expected to 
exceed the $8 million amount during the current fiscal year. Provision 
of this information is voluntary. The estimates may be based on recall, 
without conducting a detailed records search.
    (B) Any person receiving a BE-45 survey form from BEA must complete 
all relevant parts of the form and return the form to BEA. A person not 
subject to the mandatory reporting requirement in paragraph (c)(5)(i)(A) 
of this section and is not filing information on a voluntary basis must 
only complete the ``Determination of reporting status'' and the 
``Certification'' sections of the survey. This requirement is necessary 
to ensure compliance with the reporting requirements and efficient 
administration of the survey by eliminating unnecessary followup 
contact.
    (C) Covered insurance transactions. The transactions covered by this 
survey are: reinsurance premiums received, reinsurance premiums paid, 
reinsurance losses paid, reinsurance losses recovered, primary insurance 
premiums received, primary insurance losses paid, auxiliary insurance 
services receipts, and auxiliary insurance services payments. (Auxiliary 
insurance services include agent's commissions, insurance brokering and 
agency services, insurance consulting services, evaluation and 
adjustment services, actuarial services, salvage administration 
services, and regulatory and monitoring services on indemnities and 
recovery services.)
    (ii) [Reserved]
    (6) BE-25, Quarterly Survey of Transactions with Unaffiliated 
Foreign Persons in Selected Services and in Intangible Assets:
    (i) A BE-25, Quarterly Survey of Transactions with Unaffiliated 
Foreign Persons in Selected Services and in Intangible Assets, will be 
conducted covering the first quarter of the 2004 calendar year and every 
quarter thereafter.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person that:
    (a) Had sales of covered services to unaffiliated foreign persons 
that exceeded $6 million for the previous fiscal

[[Page 16]]

year or are expected to exceed that amount during the current fiscal 
year; or (b) had purchases of covered services from unaffiliated foreign 
persons that exceeded $4 million for the previous fiscal year or are 
expected to exceed that amount during the current fiscal year. Because 
the thresholds are applied separately to sales and purchases, the 
mandatory reporting requirement may apply only to sales, only to 
purchases, or to both sales and purchases. Quarterly reports for a year 
may be required retroactively when it is determined that the exemption 
level has been exceeded.
    (2) Voluntary reporting. Reports are requested from each U.S. person 
that had sales of covered services to unaffiliated foreign persons that 
were $6 million or less for the previous fiscal year and are expected to 
be less than or equal to that amount during the current fiscal year, or 
had purchases of covered services from unaffiliated foreign persons that 
were $4 million or less for the previous fiscal year and are expected to 
be less than or equal to that amount during the current fiscal year. 
Provision of this information is voluntary. The estimates may be based 
on recall, without conducting a detailed records search. Because these 
thresholds apply separately to sales and purchases, voluntary reporting 
may apply only to sales, only to purchases, or to both.
    (B) Any person receiving a BE-25 survey form from BEA must complete 
all relevant parts of the form and return the form to BEA. A person that 
is not subject to the mandatory reporting requirement in paragraph 
(c)(6)(i)(A) of this section and is not filing information on a 
voluntary basis must only complete the ``Determination of reporting 
status'' and the ``Certification'' sections of the survey. This 
requirement is necessary to ensure compliance with the reporting 
requirements and efficient administration of the survey by eliminating 
unnecessary followup contact.
    (C) Covered services and intangible assets. The services covered by 
this survey are: Accounting, auditing, and bookkeeping services; 
computer and data processing services; construction services; foreign 
expenses related to construction projects; data base and other 
information services; engineering, architectural, and surveying 
services; industrial engineering services; industrial-type maintenance, 
installation, alteration, and training services; legal services; 
management, consulting, and public relations services; operational 
leasing services; research, development, and testing services; and 
telecommunication services. The intangible assets covered by this survey 
are rights related to: industrial processes and products; books, compact 
discs, audio tapes and other copyrighted material and intellectual 
property; trademarks, brand names, and signatures; performances and 
events pre-recorded on motion picture film and television tape, 
including digital recording; broadcast and recording of live 
performances and events; general use computer software; business format 
franchising fees; and other intangible assets, including indefeasible 
rights of users.
    (ii) [Reserved]

[51 FR 7772, Mar. 6, 1986, as amended at 52 FR 19843, May 28, 1987; 52 
FR 46589, Dec. 9, 1987; 53 FR 39455, Oct. 7, 1988; 53 FR 41563, Oct. 24, 
1988; 57 FR 59289, Dec. 15, 1992; 59 FR 53935, Oct. 27, 1994; 60 FR 
57337, Nov. 15, 1995; 62 FR 68163, Dec. 31, 1997; 65 FR 77284, Dec. 11, 
2000; 65 FR 77813, Dec. 13, 2000; 66 FR 63917, Dec. 11, 2001; 67 FR 
71104, Nov. 29, 2002; 68 FR 69956, Dec. 16, 2003; 68 FR 75409, 75411, 
Dec. 31, 2003; 69 FR 50064, Aug. 13, 2004; 69 FR 54752, Sept. 10, 2004]



Sec. 801.10  Rules and regulations for the BE-20, Benchmark Survey 
of Selected Services Transactions with Unaffiliated Foreign Persons.

    The BE-20, Benchmark Survey of Selected Services Transactions with 
Unaffiliated Foreign Persons, will be conducted covering companies' 2001 
fiscal year and every fifth year thereafter. All legal authorities, 
provisions, definitions, and requirements contained in Sec. Sec. 801.1 
through 801.9(a) are applicable to this survey. Additional rules and 
regulations for the BE-20 survey are given in this section. More 
detailed instructions and descriptions of the individual types of 
services covered are given on the report form itself.

[[Page 17]]

    (a) The BE-20 survey consists of two parts and seven schedules. Part 
I requests information needed to determine whether a report is required 
and which schedules apply. Part II requests information about the 
reporting entity. Each of the seven schedules covers one or more types 
of services and is to be completed only if the U.S. Reporter has 
transactions of the type(s) covered by the particular schedule.
    (b) Who must report--(1) Mandatory reporting. A BE-20 report is 
required from each person who had transactions (either sales or 
purchases) in excess of $1 million with unaffiliated foreign persons in 
any of the services listed in paragraph (c) of this section during its 
fiscal year covered by the survey.
    (i) The determination of whether a U.S. person is subject to this 
mandatory reporting requirement may be judgmental, that is, based on the 
judgement of knowledgeable persons in a company who can identify 
reportable transactions on a recall basis, with a reasonable degree of 
certainty, without conducting a detailed records search. Because the $1 
million threshold applies separately to sales and purchases, the 
mandatory reporting requirement may apply only to sales, only to 
purchases, or to both sales and purchases.
    (ii) Reporters who file pursuant to this mandatory reporting 
requirement must complete Parts I and II of form BE-20 and all 
applicable schedules. The total amounts of transactions applicable to a 
particular schedule are to be entered in the appropriate column(s) on 
line 1 of the schedule. In addition, except for sales of merchanting 
services, these amounts must be distributed below line 1 to the 
country(ies) involved in the transaction(s). For sales of merchanting 
services, the data by individual foreign country are not required to be 
reported, although these data may be reported voluntarily.
    (iii) Application of the $1 million exemption level to each covered 
service is indicated on the schedule for that particular service. It 
should be noted that an item other than sales or purchases may be used 
as the measure of a given service for purposes of determining whether 
the threshold for mandatory reporting of the service is exceeded.
    (2) Voluntary reporting. If, during the fiscal year covered, the 
U.S. person's total transactions (either sales or purchases) in any of 
the types of services listed in paragraph (c) of this section are $1 
million or less, the U.S. person is requested to provide an estimate of 
the total for each type of service.
    (i) Provision of this information is voluntary. The estimates may be 
judgmental, that is, based on recall, without conducting a detailed 
manual records search. Because the $1 million threshold applies 
separately to sales and purchases, the voluntary reporting option may 
apply only to sales, only to purchases, or to both sales and purchases.
    (ii) The amounts of transactions reportable on a particular schedule 
are to be entered in the appropriate column(s) in the voluntary 
reporting section of the schedule; they are not required to be 
disaggregated by country. Reporters filing voluntary information only 
should also complete Parts I and II of the form.
    (3) Any U.S. person that receives the BE-20 survey form from BEA, 
but is not reporting data in either the mandatory or voluntary section 
of the form, must nevertheless complete and return the Exemption claim 
included with the form to BEA. This requirement is necessary to ensure 
compliance with reporting requirements and efficient administration of 
the Act by eliminating unnecessary followup contact.
    (c) Covered types of services. Only the services listed in this 
paragraph are covered by the BE-20 survey. Other services, such as 
transportation and reinsurance, are not covered. Covered services are 
Agricultural services; research, development, and testing services; 
management, consulting, and public relations services; management of 
health care facilities; accounting auditing, and bookkeeping services; 
legal services; educational and training services; mailing, 
reproduction, and commercial art; employment agencies and temporary help 
supply services; industrial engineering services; industrial-type 
maintenance, installation, alteration, and training services; performing 
arts, sports, and other live performances, presentations, and events; 
sale and purchase of rights to natural

[[Page 18]]

resources, and lease bonus payments; use or lease of rights to natural 
resources, excluding lease bonus payments; disbursements to fund news-
gathering costs of broadcasters; disbursements to fund news-gathering 
costs of print media; disbursements to fund production costs of motion 
pictures; disbursements to fund production costs of broadcast program 
material other than news; disbursements to maintain government tourism 
and business promotion offices; disbursements for sales promotion and 
representation; disbursements to participate in foreign trade shows 
(purchases only); premiums paid on purchases of primary insurance; 
losses recovered on purchases of primary insurance; construction 
services (purchases only); engineering, architectural, and surveying 
services (purchases only); mining services (purchases only); merchanting 
services (sales only); financial services (purchases only, by companies 
or parts of companies that are not financial services providers); 
advertising services; computer and data processing services; data base 
and other information services; telecommunications services; operational 
leasing services; other trade-related services; auxiliary insurance 
services; waste treatment and depollution services; and ``other'' 
private services. ``Other'' private services covers transactions in the 
following types of services: Language translation services, salvage 
services, security services account collection services, satellite 
photograph and remote sensing/satellite imagery services, space 
transport (includes satellite launches, transport of goods and people 
for scientific experiments, and space passenger transport), and 
transcription services.

[66 FR 63919, Dec. 11, 2001]



Sec. 801.11  Rules and regulations for the BE-80, Benchmark Survey of 

Financial Services Transactions Between U.S. Financial Services Providers 
and Unaffiliated Foreign Persons.

    A BE-80, Benchmark Survey of Financial Services Transactions Between 
U.S. Financial Services Providers and Unaffiliated Foreign Persons, will 
be conducted covering 1999 and every fifth year thereafter. All legal 
authorities, provisions, definitions, and requirements contained in 
Sec. Sec. 801.1 through 801.9 are applicable to this survey. Additional 
rules and regulations for the BE-80 survey are given in paragraphs (a) 
through (d) of this section. More detailed instructions are given on the 
report forms and instructions.
    (a) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person who is a financial services provider or 
intermediary, or whose consolidated U.S. enterprise includes a 
separately organized subsidiary, or part, that is a financial services 
provider or intermediary, and who had transactions (either sales or 
purchases) directly with unaffiliated foreign persons in all financial 
services combined in excess of $3,000,000 during its fiscal year covered 
by the survey. The $3,000,000 threshold should be applied to financial 
services transactions with unaffiliated foreign persons by all part of 
the consolidated U.S. enterprise combined that are financial services 
providers or intermediaries. Because the $3,000,000 threshold applies 
separately to sales and purchases, the mandatory reporting requirement 
may apply only to sales, only to purchases, or to both.
    (i) The determination of whether a U.S. financial services provider 
or intermediary is subject to this mandatory reporting requirement may 
be based on the judgment of knowledgeable persons in a company who can 
identify reportable transactions on a recall basis, with a reasonable 
degree of certainty, without conducting a detailed manual records 
search.
    (ii) Reporters who file pursuant to this mandatory reporting 
requirement must provide data on total sales and/or purchases of each of 
the covered types of financial services transactions and must 
disaggregate the totals by country.
    (2) Voluntary reporting. If during the fiscal year covered, sales or 
purchases of financial services by a firm that is a financial services 
provider or intermediary, or by a firm's subsidiaries, or parts, 
combined that are financial services providers or intermediaries, are 
$3,000,000 or less, the U.S. person is requested to provide an estimate 
of the total for each type of service. Provision

[[Page 19]]

of this information is voluntary. Because the $3,000,000 threshold 
applies separately to sales and purchases, this voluntary reporting 
option may apply only to sales, only to purchases, or to both.
    (b) BE-80 definition of financial services provider. The definition 
of financial services provider used for this survey is identical in 
coverage to Sector 52--Finance and Insurance, and holding companies that 
own or influence, and are principally engaged in making management 
decisions for these firms (part of Sector 55--Management of Companies 
and Enterprises, of the North American Industry Classification System, 
United States, 2002). For example, companies and/or subsidiaries and 
other separable parts of companies in the following industries are 
defined as financial services providers: Depository credit 
intermediation and related activities (including commercial banking, 
savings institutions, credit unions, and other depository credit 
intermediation); nondepository credit intermediation (including credit 
card issuing, sales financing, and other nondepository credit 
intermediation); activities related to credit intermediation (including 
mortgage and nonmortgage loan brokers, financial transactions 
processing, reserve, and clearinghouse activities, and other activities 
related to credit intermediation); securities and commodity contracts 
intermediation and brokerage (including investment banking and 
securities dealing, securities brokerage, commodity contracts dealing, 
and commodity contracts brokerage); securities and commodity exchanges; 
other financial investment activities (including miscellaneous 
intermediation, portfolio management, investment advice, and all other 
financial investment activities); insurance carriers; insurance 
agencies, brokerages, and other insurance related activities; insurance 
and employee benefit funds (including pension funds, health and welfare 
funds, and other insurance funds); other investment pools and funds 
(including open-end investment funds, trusts, estates, and agency 
accounts, real estate investment trusts, and other financial vehicles); 
and holding companies that own, or influence the management decisions 
of, firms principally engaged in the aforementioned activities.
    (c) Covered types of services. The BE-80 survey covers the following 
types of financial services transactions (purchases and/or sales) 
between U.S. financial services providers and unaffiliated foreign 
persons: Brokerage services related to equities transactions; other 
brokerage services; underwriting and private placement services; 
financial management services; credit-related services, except credit 
card services; credit card services; financial advisory and custody 
services; securities lending services; electronic funds transfer 
services; and other financial services. The BE-80 also covers total 
receipts and total payments for the above-listed types of financial 
services transactions with affiliated foreign parties (foreign 
affiliates and foreign parents).
    (d) What to file. (1) The BE-80 survey consists of Forms BE-80 (A) 
and BE-80(B). Before completing a form BE-80 (B), a consolidated U.S. 
enterprise (including the top U.S. parent and all of its subsidiaries 
and parts combined) must complete Form BE-80(A) to determine its 
reporting status. If the enterprise is subject to the mandatory 
reporting requirement, or if it is exempt from the mandatory reporting 
requirement but chooses to report data voluntarily, it should either:
    (i) File a separate Form BE-80(B) for each separately organized 
financial services subsidiary or part of a consolidated U.S. enterprise; 
or
    (ii) File a single BE-80(B) representing the sum of all covered 
transactions by all financial services subsidiaries or parts of the 
enterprise combined.
    (2) Reporters who receive the BE-80 survey from BEA but are not 
subject to the mandatory reporting requirements and choose not to report 
data voluntarily must complete and return to BEA the Exemption Claim.

[64 FR 59121, Nov. 2, 1999, as amended at 69 FR 69510, Nov. 30, 2004]



PART 806_DIRECT INVESTMENT SURVEYS--Table of Contents




Sec.
806.1 Purpose.
806.2 Recordkeeping requirements.

[[Page 20]]

806.3 Reporting requirements.
806.4 Response required.
806.5 Confidentiality.
806.6 Penalties.
806.7 General definitions.
806.8 Real estate.
806.9 Airlines and ship operators.
806.10 Determining place of residence and country of jurisdiction of 
          individuals.
806.11 Estates, trusts, and intermediaries.
806.12 Partnerships.
806.13 Miscellaneous.
806.14 U.S. direct investment abroad.
806.15 Foreign direct investment in the United States.
806.16 Rules and regulations for BE-10, Benchmark Survey of U.S. Direct 
          Investment Abroad--1999.
806.17 Rules and regulations for BE-12, Benchmark Survey of Foreign 
          Direct Investment in the United States--2002.
806.18 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

    Authority: 5 U.S.C. 301; 22 U.S.C. 3101-3108; and E.O. 11961 (3 CFR, 
1977 Comp., p. 86), as amended by E.O. 12013 (3 CFR, 1977 Comp., p. 
147), E.O. 12318 (3 CFR, 1981 Comp., p. 173), and E.O. 12518 (3 CFR, 
1985 Comp., p. 348).

    Effective Date Note: At 69 FR 70545, Dec. 7, 2004, the authority 
citation for part 806 was revised, effective Jan. 6, 2005. For the 
convenience of the user, the revised text is set forth as follows:
    Authority: 5 U.S.C. 301; 22 U.S.C. 3101-3108; E.O. 11961 (3 CFR, 
1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 Comp., p. 
173); E.O. 12518 (3 CFR, 1985 Comp., p. 348).

    Source: 42 FR 64315, Dec. 22, 1977, unless otherwise noted.



Sec. 806.1  Purpose.

    The purpose of this part is to set forth the rules and regulations 
necessary to carry out the data collection program and analyses 
concerning direct investment as required by, or provided for in, the 
International Investment Survey Act of 1976 (Pub. L. 94-472, 90 Stat. 
2059, 22 U.S.C. 3101 to 3108), hereinafter ``the Act''. The overall 
purpose of the Act is to provide comprehensive and reliable information 
pertaining to international investment, including direct investment, and 
to do so with a minimum of burden on respondents and with no unnecessary 
duplication of effort.



Sec. 806.2  Recordkeeping requirements.

    In accordance with section 5(b)(1) of the Act (22 U.S.C. 3104) 
persons subject to the jurisdiction of the United States shall maintain 
any information (including journals or other books of original entry, 
minute books, stock transfer records, lists of shareholders, or 
financial statements) which is essential for carrying out the surveys 
and studies provided for by the Act.



Sec. 806.3  Reporting requirements.

    (a) In accordance with section 5 (b)(2) of the Act (22 U.S.C. 3104) 
persons subject to the jurisdiction of the United States shall furnish, 
under oath, any report containing information which is determined to be 
necessary to carry out the surveys and studies provided for by the Act.
    (b) Such reports may be required from among others, U.S. persons 
which have direct investment abroad, U.S. persons in which foreign 
persons have direct investment, U.S. intermediaries, and U.S. persons 
which assist or intervene in the purchase or sale of direct investment 
interests, such as real estate brokers and brokerage houses acting as 
managers of tender offers.



Sec. 806.4  Response required.

    Reports, as specified below, are required from all persons coming 
within the reporting requirements, whether or not they are contacted by 
BEA. In addition, any person BEA contacts, either by sending them report 
forms or buy written inquiry concerning the person's being subject to 
the reporting requirements of a survey conducted pursuant to this part 
must respond in writing. The reponse must be made by filing the properly 
completed report form, or by submitting in writing, or within 30 days of 
being contacted, a valid exemption claim (including the situation where 
the statistical data requested on the form are not applicable) or by 
certifying in writing to the fact that the person has no direct 
investments within the purview of the Act or the regulations contained 
herein. This requirement is necessary to ensure compliance with 
reporting requirements and efficient administration of the Act.



Sec. 806.5  Confidentiality.

    Information collected pursuant to Sec. 806.3 is confidential (see 
section 5(c) of the Act, 22 U.S.C. 3104).

[[Page 21]]

    (a) Access to this information shall be available only to officials 
and employees (including consultants and contractors and their 
employees) of agencies designated by the President to perform functions 
under the Act.
    (b) Subject to paragraph (d) of this section, the President may 
authorize the exchange of information between agencies or officials 
designated to perform functions under the Act.
    (c) Nothing in this part shall be construed to require any Federal 
Agency to disclose information otherwise protected by law.
    (d) This information shall be used solely for analytical or 
statistical purposes or for a proceeding under Sec. 806.6.
    (e) No official or employee (including consultants and contractors 
and their employees) shall publish or make available to any other person 
any information collected under the Act in such a manner that the person 
to whom the information relates can be specifically identified.
    (f) Reports and copies of reports prepared pursuant to the Act are 
confidential and their submission or disclosure shall not be compelled 
by any person without the prior written permission of the person filing 
the report and the customer of such person where the information 
supplied is identifiable as being derived from the records of such 
customer.



Sec. 806.6  Penalties.

    (a) Whoever fails to furnish any information required by the Act or 
required by Sec. 806.3 or to comply with any other rule, regulation, 
order or instruction promulgated under the Act may be subject to a civil 
penalty not exceeding $10,000 in a proceeding brought in an appropriate 
United States court and to injunctive relief commanding such person to 
comply, or both (see section 6(a) and (b) of the Act, 22 U.S.C. 3105).
    (b) Whoever willfully fails to submit any information required by 
the Act or required by Sec. 806.3 or willfully violates any other rule, 
regulation, order or instruction promulgated under the Act, upon 
conviction, shall be fined not more than $10,000 and, if an individual, 
may be imprisioned for not more than one year, or both. Any officer, 
director, employee, or agent of any corporation who knowingly 
participates in such violation, upon conviction, may be punished by a 
like fine, imprisonment, or both (see section 6(c) of the Act, 22 U.S.C. 
3105).
    (c) Any person who willfully violates Sec. 806.5 relating to 
confidentiality, shall, upon conviction, be fined not more than $10,000, 
in addition to any other penalty imposed by law (see section 5(d) of the 
Act, 22 U.S.C. 3104).



Sec. 806.7  General definitions.

    (a) United States, when used in a geographic sense, means the 
several States, the District of Columbia, the Commonwealth of Puerto 
Rico, and all territories and possessions of the United States.
    (b) Foreign, when used in a geographic sense, means that which is 
situated outside the United States or which belongs to or is 
characteristic of a country other than the United States;
    (c) Person means any individual, branch, partnership, associated 
group, association, estate, trust, corporation, or other organization 
(whether or not organized under the laws of any State), and any 
government (including a foreign government, the United States 
Government, a State or local government, and any agency, corporation, 
financial institution, or other entity or instrumentality thereof, 
including a government sponsored agency);
    (d) United States person means any person resident in the United 
States or subject to the jurisdiction of the United States;
    (e) Foreign person means any person resident outside the United 
States or subject to the jurisdiction of a country other than the United 
States;
    (f) Business enterprise means any organization, association, branch, 
or venture which exists for profitmaking purposes or to otherwise secure 
economic advantage, and any ownership of any real estate;
    (g) Parent means a person of one country who, directly or 
indirectly, owns or controls 10 per centum or more of the voting stock 
of an incorporated business enterprise, or an equivalent ownership 
interest in an unincorporated business enterprise, which is located 
outside that country;

[[Page 22]]

    (h) Affiliate means a business enterprise located in one country 
which is directly or indirectly owned or controlled by a person of 
another country to the extent of 10 per centum or more of its voting 
stock for an incorporated business or an equivalent interest for an 
unincorporated business, including a branch;
    (i) International investment means (1) the ownership or control, 
directly or indirectly, by contractual commitment or otherwise, by 
foreign persons of any interest in property in the United States, or of 
stock, other securities, or short- and long-term debt obligations of a 
United States person, and (2) the ownership or control, directly or 
indirectly, by contractual commitment or otherwise, by United States 
persons of any interest in property outside the United States, or of 
stock, other securities, or short- and long-term debt obligations of a 
foreign person;
    (j) Direct investment means the ownership or control, directly or 
indirectly, by one person of 10 per centum or more of the voting 
securities of an incorporated business enterprise or an equivalent 
interest in an unincorporated business enterprise;
    (k) Portfolio investment means any international investment which is 
not direct investment;
    (l) Associated group means two or more persons who, by the 
appearance of their actions, by agreement, or by an understanding, 
exercise their voting privileges in a concerted manner to influence the 
management of a business enterprise. Each of the following are deemed to 
be an associated group:
    (1) Members of the same family,
    (2) A business enterprise and one or more of its officers and 
directors,
    (3) Members of a syndicate or joint venture, or
    (4) A corporation and its domestic subsidiaries;
    (m) Branch means the operations or activities conducted by a person 
in a different location in its own name rather than through an 
incorporated entity; and
    (n) Intermediary means an agent, nominee, manager, custodian, trust, 
or any person acting in a similar capacity.

[42 FR 64315, Dec. 22, 1977, as amended at 43 FR 54624, Nov. 22, 1978; 
46 FR 23226, Apr. 24, 1981]



Sec. 806.8  Real estate.

    Residential real estate held exclusively for personal use and not 
for profitmaking purposes is not subject to the reporting requirements 
of this part. A residence which was an owner's primary residence that is 
then leased by the owner while outside his/her country of usual 
residence but which the owner intends to reoccupy, is considered real 
estate held for personal use. Ownership of residential real estate by a 
corporation whose sole purpose is to hold the real estate and where the 
real estate is for the personal use of the individual owner(s) of the 
corporation, is considered real estate held for personal use. If a 
business enterprise, otherwise required to report, is in the form of 
real property not identifiable by name, reports are required to be filed 
by and in the name of the beneficial owner, or in the name of such 
beneficial owner by the intermediary of such beneficial owner.

[46 FR 23226, Apr. 24, 1981]



Sec. 806.9  Airlines and ship operators.

    Foreign stations, ticket offices, and terminal and port facilities 
of U.S. airlines and ship operators; and U.S. stations, ticket offices, 
and terminal and port facilities of foreign airlines and ship operators; 
which provide services only to their own operations are exempted from 
being reported. Reports are required when such affiliates produce 
significant revenues from services provided to unaffiliated persons.



Sec. 806.10  Determining place of residence and country of jurisdiction 
of individuals.

    An individual will be considered a resident of, and subject to the 
jurisdiction of, the country in which physically located, subject to the 
following qualifications:

[[Page 23]]

    (a) Individuals who reside, or expect to reside, outside their 
country of citizenship for less than one year are considered to be 
residents of their country of citizenship.
    (b) Individuals who reside, or expect to reside, outside their 
country of citizenship for one year or more are considered to be 
residents of the country in which they are residing, except as provided 
in paragraph (c) of this section.
    (c) Notwithstanding paragraph (b) of this section, if an owner or 
employee of a business enterprise resides outside the country of 
location of the enterprise for one year or more for the purpose of 
furthering the business of the enterprise, and the country of the 
business enterprise is the country of citizenship of the owner then such 
owner or employee shall nevertheless be considered a resident of the 
country of citizenship provided there is the intent to return within a 
reasonable period of time.
    (d) Individuals and members of their immediate families who are 
residing outside their country of citizenship as a result of employment 
by the government of that country--diplomats, consular officials, 
members of the armed forces, etc.--are considered to be residents of 
their country of citizenship.



Sec. 806.11  Estates, trusts, and intermediaries.

    (a) An estate, either U.S. or foreign, is a person and therefore may 
have direct investment, and the estate, not the beneficiary, is 
considered to be the owner.
    (b) A trust, either U.S. or foreign, is a person, but is not a 
business enterprise. The trust shall be considered the same as an 
intermediary and reporting should be as outlined in paragraph (c) of 
this section. For reporting purposes, the beneficiary(ies) of the trust, 
or the creator(s) of the trust in the situation detailed below or if 
there is, or may be, a reversionary interest, shall be considered to be 
the owner(s) of the investments of the trust for determining the 
existence of direct investment. Where a corporation or other 
organization creates a trust designating its shareholders or members as 
beneficiaries, the creating corporation or organization shall be deemed 
to be the owner of the investments of the trust, or succeeding trusts 
where the presently existing trust has evolved out of a prior trust, for 
the purposes of determining the existence and reporting of direct 
investment.

This procedure is adopted in order to fulfill the statistical purposes 
of this part and does not imply that control over an enterprise owned or 
controlled by a trust is, or can be, exercised by the beneficiary(ies) 
or creator(s).
    (c) Intermediary. (1) If a particular U.S. direct investment abroad 
is held, administered, or managed by a U.S. intermediary, such 
intermediary shall be responsible for reporting the required information 
for, and in the name of, its principal or shall instruct the principal 
to submit the required information. Upon instructing the principal, the 
intermediary shall be released from further liability to report provided 
it has informed this bureau of the date such instructions were given and 
the name and address of the principal, and has supplied the principal 
with any information in the possession of, or which can be secured by, 
the intermediary, that is necessary to permit the principal to complete 
the required reports. When acting in the capacity of an intermediary, 
the accounts or transactions of the U.S. intermediary with the foreign 
affiliate shall be considered as accounts or transactions of the U.S. 
principal with the foreign affiliate. To the extent such transactions or 
accounts are unavailable to the principal, they may be required to be 
reported by the intermediary.
    (2) If a U.S. person holds a foreign affiliate through a foreign 
intermediary, the U.S. person will be considered to own the foreign 
affiliate directly and all accounts or transactions of the U.S. person 
with the intermediary will be considered to be with the foreign 
affiliate.
    (3) If a particular foreign direct investment in the United States 
is held, exercised, administered, or managed by a U.S. intermediary for 
the foreign beneficial owner, such intermediary shall be responsible for 
reporting the required information for, and in the

[[Page 24]]

name of, the U.S. affiliate, and shall report on behalf of the U.S. 
affiliate or shall instruct the U.S. affiliate to submit the required 
information. Upon so instructing the U.S. affiliate, the intermediary 
shall be released from further liability to report provided it has 
informed this Bureau of the date such instructions were given and the 
name and address of the U.S. affiliate, and has supplied the U.S. 
affiliate with any information in the possession of, or which can be 
secured by, the intermediary that is necessary to permit the U.S. 
affiliate to complete the required reports. When acting in the capacity 
of an intermediary, the accounts or transactions of the U.S. 
intermediary with a foreign beneficial owner shall be considered as 
accounts or transactions of the U.S. affiliate with the foreign 
beneficial owner. To the extent such transactions or accounts are 
unavailable to the U.S. affiliiate, they may be required to be reported 
by the intermediary.
    (4) If a foreign beneficial owner holds a U.S. affiliate through a 
foreign intermediary, the U.S. affiliate may report the intermediary as 
its foreign parent but, when requested, must also identify and furnish 
information concerning the foreign beneficial owner, if known, or if 
such information can be secured. Accounts or transactions of the U.S. 
affiliate with the foreign intermediary shall be considered as accounts 
or transactions of the U.S. affiliate with the foreign beneficial owner.

[42 FR 64315, Dec. 22, 1977, as amended at 43 FR 54624, Nov. 22, 1978]



Sec. 806.12  Partnerships.

    Limited partners do not have voting rights in a partnership and 
therefore cannot have a direct investment in a partnership; their 
investment is considered to be portfolio investment. Determination of 
the existence of direct investment in a partnership shall be based on 
the country of residence of, and the percentage control exercised by, 
the general partner(s), although the latter may differ from the 
financial interest of the general partners.



Sec. 806.13  Miscellaneous.

    (a) Accounting methods and records. Generally accepted U.S. 
accounting principles should be followed. Corporations should generally 
use the same methods and records that are used to generate reports to 
stockholders, unless otherwise specified in the reporting instructions 
for a given report form. Reports for unincorporated persons must be 
generated on an equivalent basis.
    (b) Annual stockholder's report. Business enterprises issuing annual 
reports to stockholders are requested to furnish a copy of their annual 
reports to this Bureau.
    (c) Required information not available. All reasonable efforts 
should be made to obtain information required for reporting. Every 
question on each form should be answered, except where specifically 
exempted. When only partial information is available, an appropriate 
indication should be given.
    (d) Estimates. If actual figures are not available, estimates should 
be supplied and labeled as such. When a data item cannot be fully 
subdivided as required, a total and an estimated breakdown of the total 
should be supplied.
    (e) Specify. When ``specify'' is included in certain data items, the 
type and dollar amount of the major items included must be given for at 
least the items mentioned in the line instruction.
    (f) Space on form insufficient. When space on a form is insufficient 
to permit a full answer to any item, the required information should be 
submitted on supplementary sheets, appropriately labeled and referenced 
to the item number and the form.
    (g) Extensions. Requests for an extension of a reporting deadline 
will not normally be granted. However, in hardship cases, written 
requests for an extension will be considered provided they are received 
15 days prior to the date of the report and enumerate substantive 
reasons necessitating the extension.
    (h) Number of copies. A single original copy of each report shall be 
filed with the Bureau of Economic Analysis; this should be the copy with 
the address label if such a labeled copy has been provided. In addition, 
each respondent must retain a copy of its report. Both copies are 
protected by law; see Sec. 806.5.

[[Page 25]]

    (i) Other. Instructions concerning filing dates, where to send 
reports, and whom to contact concerning a given report are contained on 
each form. General inquiries should be directed to the:

U.S. Department of Commerce, Bureau of Economic Analysis, International 
Investment Division (BE-50), Washington, DC 20230.



Sec. 806.14  U.S. direct investment abroad.

    (a) Specific definitions--(1) U.S. direct investment abroad means 
the ownership or control, directly or indirectly, by one U.S. person of 
10 per centum or more of the voting securities of an incorporated 
foreign business enterprise or an equivalent interest in an 
unincorporated foreign business enterprise, including a branch.
    (2) U.S. Reporter means the U.S. person which has direct investment 
in a foreign business enterprise, including a branch. If the U.S. person 
is an incorporated business enterprise, the U.S. Reporter is the fully 
consolidated U.S. domestic enterprise consisting of (i) the U.S. 
corporation whose voting securities are not owned more than 50 percent 
by another U.S. corporation, and (ii) proceeding down each ownership 
chain from that U.S. corporation, any U.S. corporation (including 
Domestic International Sales Corporations) whose voting securities are 
more than 50 percent owned by the U.S. corporation above it.
    (3) Foreign affiliate means an affiliate located outside the United 
States in which a U.S. person has direct investment.
    (4) Majority-owned foreign affiliate means a foreign affiliate in 
which the combined ``direct investment interest'' of all U.S. Reporters 
of the affiliate exceeds 50 per centum.
    (b) Foreign affiliate consolidation. In cases where the 
recordkeeping system of foreign affiliates makes it impossible or 
extremely difficult to file a separate report for each foreign 
affiliate, a U.S. Reporter may consolidate affiliates in the same 
country when the following conditions apply:
    (1) The affiliates are in the same BEA 3-digit industry as defined 
in the industry Classifications and Export and Import Trade 
Classifications Booklet; or
    (2) The affiliates are integral parts of the same business 
operation. For example, if German affiliate A manufactures tires and a 
majority of its sales are to German affiliate B which produces autos, 
then affiliates A and B may be consolidated.


Any affiliates consolidated shall thereafter be considered to be one 
affiliate and should be consolidated in the same manner for all reports 
required to be filed pursuant to this section.
    (c) Reports required. The place and time for filing, and specific 
instructions and definitions relating to, a given report form are given 
on the form. Reports are required even though a foreign affiliate may 
have been established, acquired, seized, liquidated, sold, expropriated, 
or inactivated during the reporting period.
    (d) Exemption levels. Exemption levels for individual report forms 
will normally be stated in terms of total assets, net sales or gross 
operating revenues excluding sales taxes, and net income after income 
taxes, whether positive or negative, although different or special 
criteria may be specified for a given report form. If any one of the 
three items exceeds the exemption level and if the statistical data 
requested in the report are applicable to the entity being reported, 
then a report must be filed. Since these items may not have to be 
reported on a given form, a U.S. Reporter claiming exemption from filing 
a given form must furnish a certification as to the levels of the items 
on which the exemption is based or must certify that the data requested 
are not applicable. The exemption-level tests shall be applied as 
outlined below.
    (1) For quarterly report forms, as to the assets test reports are 
required beginning with the quarter in which total assets exceed the 
exemption level; as to the test for sales (revenues) and net income 
after income taxes, reports are required for each quarter of a year in 
which the annual amount of these items exceeds or can be expected to 
exceed, the exemption level. Quarterly reports for a year may be 
required retroactively when it is determined that the exemption level 
has been exceeded.

[[Page 26]]

    (2) For report forms requesting annual data after the close of the 
year in question, the test shall be whether any one of the three items 
exceeded the exemption level during that year.
    (3) For the semi-annual plant and equipment expenditures survey, 
which requests actual data for the past year and/or annual projections 
for the current and following year, the test will be made for each year 
as to whether any one of the three items exceeded, or is expected to 
exceed, the exemption level; data must be reported only for the year or 
years in which the exemption level is, or is expected to be, exceeded.

If total assets, sales or net income exceed the exemption level in a 
given year, it is deemed that the exemption level will also be exceeded 
in the following year.


The number and title of each report form, its exemption level, and other 
reporting criteria, if any, pertaining to it, are given below.
    (e) Quarterly report form. BE-577--Transactions of U.S. Reporter 
with Foreign Affiliate: One report is required for each foreign 
affiliate exceeding an exemption level of $30,000,000 except that a 
report need not be filed by a U.S. Reporter to report direct 
transactions with one of its foreign affiliates in which it does not 
hold a direct equity interest unless an intercompany balance or fee and 
royalty receipts or payments for the quarter exceed $1,000,000.
    (f) Annual report forms. (1) BE-133B--Follow-up Schedule of 
Expenditures for property, Plant, and Equipment of U.S. Direct 
Investment Abroad: This is a schedule-type report form on which each 
majority-owned foreign affiliate exceeding an exemption level of 
$10,000,000 must be listed and the requested data given for each.
    (2) BE-133C--Schedule of Expenditures for Property, Plant, and 
Equipment of U.S. Direct Investment Abroad: This is a schedule-type 
report form on which each majority-owned foreign affiliate exceeding an 
exemption level of $10,000,000 must be listed and the requested data 
given for each.
    (3) BE-11--Annual Survey of U.S. Direct Investment Abroad: A report, 
consisting of Form BE-11A and Forms(s) BE-11B(LF), BE-11B(SF), and/or 
BE-11C, is required of each nonbank U.S. Reporter who, at the end of the 
Reporter's fiscal year, had a nonbank foreign affiliate reportable on 
Form BE-11B(LF), BE-11B(SF), or BE-11C. Forms required and the criteria 
for reporting on each are as follows:
    (i) Form BE-11A (Report for U.S. Reporter) must be filed by each 
nonbank U.S. person having a foreign affiliate reportable on form BE-
11B(LF), BE-11B(SF), or BE-11C. If the U.S. reporter is a corporation, 
Form BE-11A is required to cover the fully consolidated U.S. domestic 
business enterprise.
    (A) If for a nonbank U.S. Reporter any one of the following three 
items--total assets, sales or gross operating revenues excluding sales 
taxes, or net income after provision for U.S. income taxes--was greater 
than $100 million (positive or negative) at the end of, or for, the 
Reporter's fiscal year, the U.S. Reporter must file a complete Form BE-
11A. It must also file a Form BE-11B(LF), BE-11B(SF), or BE-11C, as 
applicable, for each nonexempt foreign affiliate.
    (B) If for a nonbank U.S. Reporter no one of the three items listed 
in paragraph (f)(3)(i)(A) of this section was greater than $100 million 
(positive or negative) at the end of, or for, the Reporter's fiscal 
year, the U.S. Reporter is required to file on Form BE-11A only items 1 
through 27 and Part IV. It must also file a Form BE-11B(LF), BE-11B(SF), 
or BE-11C, as applicable, for each nonexempt foreign affiliate.
    (ii) (Form BE-11B(LF) or (SF) (Report for Majority-owned Foreign 
Affiliate).
    (A) A BE-11B(LF) (Long Form) is required to be filed for each 
majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter for 
which any one of the three items--total assets, sales or gross operating 
revenues excluding sales taxes, or net income after provision for 
foreign income taxes--was greater than $100 million (positive or 
negative) at the end of, or for, for the affiliate's fiscal year.
    (B) A BE-11B(SF)(Short Form) is required to be filed for each 
majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter for 
which any

[[Page 27]]

one of the three items listed in paragraph (f)(3)(ii)(A) of this section 
was greater than $30 million (positive or negative), but for which no 
one of these items was greater than $100 million (positive or negative), 
at the end of, or for, the affiliate's fiscal year.
    (iii) Form BE-11C (Report for Minority-owned Foreign Affiliate) must 
be filed for each minority-owned nonbank foreign affiliate that is owned 
at least 20 percent, but not more than 50 percent, directly and/or 
indirectly, by all U.S. Reporters of the affiliate combined, and for 
which any one of the three items listed in paragraph(f)(3)(ii)(A) of 
this section was greater than $30 million (positive or negative) at the 
end of, or for, the affiliate's fiscal year. In addition, for the report 
covering fiscal year 2002 only, a Form BE-11C must be filed for each 
minority-owned nonbank foreign affiliate that is owned, directly or 
indirectly, at least 10 percent by one U.S. Reporter, but less than 20 
percent by all U.S. Reporters of the affiliate combined, and for which 
any one of the three items listed in paragraph (f)(3)(ii)(A) of this 
section was greater than $100 million (positive or negative) at the end 
of, or for, the affiliate's fiscal year.
    (iv) Based on the preceding, an affiliate is exempt from being 
reported if it meets any one of the following criteria:
    (A) None of the three items listed in paragraph (f)(3)(ii)(A) of 
this section exceeds $30 million (positive or negative).
    (B) For fiscal year 2002 only, it is less than 20 percent owned, 
directly or indirectly, by all U.S. Reporters of the affiliate combined 
and none of the three items listed in paragraph (f)(3)(ii)(A) of this 
section exceeds $100 million (positive or negative).
    (C) For fiscal years other than 2002, it is less than 20 percent 
owned, directly or indirectly by all U.S. Reporters of the affiliate 
combined.
    (D) Its U.S. parent (U.S. Reporter) is a bank.
    (E) It is itself a bank.
    (v) Notwithstanding paragraph (f)(3)(iv) of this section, a Form BE-
11B(LF), BE-11B(SF), or BE-11C must be filed for a foreign affiliate of 
the U.S. Reporter than owns another nonexempt foreign affiliate of that 
U.S. Reporter, even if the foreign affiliate parent is otherwise exempt. 
That is, all affiliates upward in the chain of ownership must be 
reported.
    (g) Other report forms. (1) BE-507--Industry Classification 
Questionnaire: In general, U.S. Reporters and their foreign affiliates 
will each be assigned a BEA 3-digit industry code in the BE-10 Benchmark 
Surveys required by the Act to be conducted in 1982, 1989, and every 
fifth year thereafter. However, interim reports on Form BE-507 are 
required:
    (i) For each foreign affiliate newly established or acquired by a 
U.S. person on or after January 1, 1978; or
    (ii) For each U.S. person who becomes a U.S. Reporter on or after 
January 1, 1978 by virtue of establishing or acquiring a foreign 
affiliate; or
    (iii) For an existing foreign affiliate or U.S. Reporter whose 
industry classification changes on or after January 1, 1978 so that a 
previous BE-507 report or the BE-10 report required to be filed for 1977 
does not accurately reflect the current industry classification of the 
entity.

For new U.S. Reporters or foreign affiliates, the BE-507 report must be 
filed only if one of the other reports must be filed and shall be 
submitted with the initial filing of the related report. For a change in 
an existing U.S. Reporter or foreign affiliate which is currently filing 
one of the other reports, the BE-507 report must be filed whenever it is 
determined that change from one 3-digit industry classification to 
another has occurred.
    (2) BE-10-Benchmark Survey of U.S. Direct Investment Abroad: Section 
4(b) of the Act (22 U.S.C. 3103) provides that a comprehensive benchmark 
survey of U.S. direct investment abroad will be conducted in 1982, 1989, 
and every fifth year thereafter. The survey, referred to as the ``BE-
10,'' consists of a Form BE-10A or BE-10A BANK for reporting information 
concerning the U.S. Reporter and Form(s) BE-10B(LF), BE-10B(SF), or BE-
10B BANK for reporting information concerning each foreign

[[Page 28]]

affiliate. Exemption levels, specific requirements for, and the year of 
coverage of, a given BE-10 survey may be found in Sec. 806.16.

[42 FR 64315, Dec. 22, 1977; 43 FR 2169, Jan. 16, 1978, as amended at 46 
FR 23226, Apr. 24, 1981; 47 FR 13139, Mar. 29, 1982; 48 FR 8993, Mar. 3, 
1983; 49 FR 30059, July 26, 1984; 51 FR 11012, Apr. 1, 1986; 52 FR 8446, 
Mar. 18, 1987; 52 FR 42276, Nov. 4, 1987; 54 FR 51879, Dec. 19, 1989; 55 
FR 49879, Dec. 3, 1990; 60 FR 10490, Feb. 27, 1995; 60 FR 54591, Oct. 
25, 1995; 65 FR 78920, 78922, Dec. 18, 2000]



Sec. 806.15  Foreign direct investment in the United States.

    (a) Specific definitions--(1) Foreign direct investment in the 
United States means the ownership or control, directly or indirectly, by 
one foreign person of 10 per centum or more of the voting securities of 
an incorporated U.S. business enterprise or an equivalent interest in an 
unincorporated U.S. business enterprise, including a branch.
    (2) U.S. affiliate means an affiliate located in the United States 
in which a foreign person has a direct investment.
    (3) Foreign parent means the foreign person, or the first person 
outside the United States in a foreign chain of ownership, which has 
direct investment in a U.S. business enterprise, including a branch.
    (4) Affiliated foreign group means (i) the foreign parent, (ii) any 
foreign person, proceeding up the foreign parent's ownership chain, 
which owns more than 50 per centum of the person below it up to and 
including that person which is not owned more than 50 per centum by 
another foreign person, and (iii) any foreign person, proceeding down 
the ownership chain(s) of each of these members, which is owned more 
than 50 per centum by the person above it.
    (5) Foreign affiliate of foreign parent means, with reference to a 
given U.S. affiliate, any member of the affiliated foreign group owning 
the affiliate that is not a foreign parent of the affiliate.
    (6) Ultimate beneficial owner (UBO) is that person, proceeding up 
the ownership chain beginning with and including the foreign parent, 
that is not more than 50 percent owned or controlled by another person. 
(An owner who creates a trust, proxy, power of attorney, arrangement, or 
device with the purpose or effect of divesting such owner of the 
ownership of an equity interest as part of a plan or scheme to avoid 
reporting information, is deemed to be the owner of the equity 
interest.)
    (b) Beneficial, not record, ownership is the basis of the reporting 
criteria. In those cases where a U.S. affiliate is also required to 
identify the ultimate beneficial owner (UBO) of the foreign investment, 
if the UBO is an individual, only the country of location of the 
individual must be given.
    (c) Bearer shares. If the ownership in a U.S. affiliate by any owner 
in the ownership chain from the U.S. affiliate up to and including the 
ultimate beneficial owner (UBO) is represented by bearer shares, the 
requirement to disclose the information regarding the UBO remains with 
the reporting U.S. affiliate, except where a company in the ownership 
chain has publicly traded bearer shares. In that case, identification of 
the UBO may stop with the identification of the company whose capital 
stock is represented by the publicly traded bearer shares. For closely 
held companies with nonpublicly traded bearer shares, identifying the 
foreign parent or the UBO as ``bearer shares'' is not an acceptable 
response. The U.S. affiliate must pursue the identification of the UBO 
through managing directors or any other official or intermediary.
    (d) Aggregation of real estate investments. A foreign person holding 
real estate investments that are foreign direct investments in the 
United States must aggregate all such holdings for the purpose of 
applying the exemption level tests. If the aggregate of such holdings 
exceeds one or more of the exemption levels, then the holdings must be 
reported even if they individually would be exempt.
    (e) Consolidated reporting by U.S. affiliates. A U.S. affiliate 
shall file on a fully consolidated basis, including in the consolidation 
all other U.S. affiliates in which it directly or indirectly owns more 
than 50 per centum of the outstanding voting stock, unless the 
instructions for a given report form specifically provide otherwise. 
However, separate reports may be filed where a given U.S. affiliate is 
not normally consolidated due to unrelated

[[Page 29]]

operations or lack of control, provided written permission has been 
requested from and granted by BEA.
    (f) The place and time for filing, and specific instructions and 
definitions relating to, a given report form will be given on the report 
form. Reports are required even though the foreign person's equity 
interest in the U.S. business enterprise may have been established, 
acquired, liquidated, or sold during the reporting period.
    (g) Exemption levels. Exemption levels for individual report forms 
will normally be stated in terms of total assets, sales or gross 
operating revenues excluding sales taxes, and net income after income 
taxes, whether positive or negative, although different or special 
criteria may be specified for a given report form. If any one of the 
three items exceeds the exemption level and if the statistical data 
requested in the report are applicable to the entity being reported, 
then a report must be filed. Since these items may not have to be 
reported on a given form, a person claiming exemption from filing a 
given report form must furnish a certification as to the levels of the 
items on which the exemption is based or must certify that the data 
requested are not applicable. The exemption level tests shall be applied 
as outlined below.
    (1) For quarterly report forms, as to the assets test, reports are 
required beginning with the quarter in which total assets exceed the 
exemption level; as to the test for sales (revenues) and net income 
after income taxes, reports are required for each quarter of a year in 
which the annual amount of these items exceeds or can be expected to 
exceed the exemption level. Quarterly reports for a year may be required 
retroactively when it is determined that the exemption level has been 
exceeded.
    (2) For report forms requesting annual data after the close of the 
year in question, the test shall be whether any one of the three items 
exceeded the exemption level during that year.


If total assets, sales or net income exceed the exemption level in a 
given year, it is deemed that the exemption level will also be exceeded 
in the following year.
    The number and title of each report form, its exemption level and 
other reporting criteria, if any, pertaining to it, are given below.
    (h) Quarterly report forms. (1) BE-605--Transactions of U.S. 
Affiliate, Except a U.S. Banking Affiliate, With Foreign Parent: One 
report is required for each U.S. affiliate exceeding an exemption level 
of $30,000,000, that does not qualify for reporting on form BE-605 Bank.
    (2) BE-605 Bank--Transactions of U.S. Banking Affiliate with Foreign 
Parent: One report is required for each U.S. banking affiliate or U.S. 
bank holding company affiliate, including all of the subsidiaries and 
units of the bank holding company, exceeding an exemption level of 
$30,000,000.
    (i) Annual report form. BE-15-Annual Survey of Foreign Direct 
Investment in the United States: One report is required for each 
consolidated U.S. affiliate, except a U.S. banking affiliate or U.S. 
bank holding company affiliate (including all of the subsidiaries and 
units of the bank holding company), exceeding an exemption level of $30 
million. A long form, BE-15(LF), must be filed by each nonbank majority-
owned U.S. affiliate (a ``majority-owned'' U.S. affiliate is one in 
which the combined direct and indirect ownership interests of all 
foreign parents of the U.S. affiliate exceed 50 percent) for which at 
least one of the three items-total assets, sales or gross operating 
revenues excluding sales taxes, or net income after provision for U.S. 
income taxes-exceeds $125 million (positive or negative), unless the 
nonbank majority-owned U.S. affiliate is selected to file a BE-15(EZ) 
form. A short form, BE-15(SF), must be filed by each nonbank majority-
owned U.S. affiliate for which at least one of the three items-total 
assets, sales or gross operating revenues excluding sales taxes, or net 
income after provision for U.S. income taxes-exceeds $30 million but no 
one item exceeds $125 million (positive or negative), and by each 
nonbank minority-owned U.S. affiliate (a ``minority-owned'' U.S. 
affiliate is one in which the combined direct and indirect ownership 
interest of all foreign parents of the U.S. affiliate is 50 percent or 
less) for which at least one of the three items-total assets, sales or 
gross operating revenues excluding sales taxes, or net income after 
provision for

[[Page 30]]

U.S. income taxes-exceeds $30 million (positive or negative), unless the 
nonbank U.S. affiliate is selected to file a BE-15(EZ) form. A BE-15(EZ) 
form must be filed by each nonbank U.S. affiliate that is selected to 
file this form in lieu of filing the BE-15(LF) or BE-15(SF). A BE-15 
Supplement C (Exemption Claim) must be filed by each nonbank U.S. 
affiliate to claim exemption from filing a BE-15(LF), BE-15(SF), or BE-
15(EZ). Following an initial filing, the BE-15 Supplement C is not 
required annually from those nonbank U.S. affiliates that meet the 
stated exemption criteria from year to year.
    (j) Other report forms. (1) BE-607--Industry Classification 
Questionnaire: In general, a U.S. affiliate will be assigned a BEA 3-
digit industry code in the BE-12 Benchmark Surveys required by the Act 
to be conducted in 1980, 1987, and every fifth year thereafter. However, 
interim reports on Form BE-607 are required:
    (i) For each U.S. affiliate newly established or acquired by a 
foreign person; or
    (ii) For an existing U.S. affiliate whose industry classification 
changes so that either a previous BE-607 report or the last BE-12 report 
required to be filed does not accurately reflect the current industry 
classification of the U.S. affiliate.


For new U.S. affiliates, the BE-607 report must be filed only if the 
affiliate must file one of the other reports and shall be submitted with 
the initial filing of the related report. For a change in an existing 
U.S. affiliate which is currently filing one of the other reports, the 
BE-607 report must be filed whenever it is determined that a change from 
one BEA 3-digit industry classification to another has occurred.
    (2) BE-12--Benchmark Survey of Foreign Direct Investment in the 
United States: Section 4b of the Act (22 U.S.C. 3103) provides that a 
comprehensive benchmark survey of foreign direct investment in the 
United States shall be conducted in 1980, 1987, and every fifth year 
thereafter. The survey is referred to as the ``BE-12''. Exemption 
levels, specific requirements for, and the year of coverage of, a given 
BE-12 Survey may be found in Sec. 806.17.
    (3) BE-13--Initial Report on a Foreign Person's Direct or Indirect 
Acquisition, Establishment, or Purchase of the Operating Assets, of a 
U.S. Business Enterprise, Including Real Estate. This report is to be 
filed either:
    (i) By a U.S. business enterprise when a foreign person establishes 
or acquires directly, or indirectly through an existing U.S. affiliate, 
a 10 percent or more voting interest in that enterprise, including an 
enterprise that results from the direct or indirect acquisition by a 
foreign person of a business segment or operating unit of an existing 
U.S. business enterprise that is then organized as a separate legal 
entity; or
    (ii) By the existing U.S. affiliate of a foreign person when it 
acquires a U.S. business enterprise, or a business segment or operating 
unit of a U.S. business enterprise, that the existing U.S. affiliate 
merges into its own operations rather than continuing or organizing as a 
separate legal entity.

A separate report must be filed for each foreign parent or existing U.S. 
affiliate that is a party to the transaction.

                        Exclusions and Exemptions

    (a) Residential real estate held exclusively for personal use and 
not for profitmaking purposes is not subject to the reporting 
requirements. A residence which is an owner's primary residence that is 
then leased by the owner while outside the United States but which the 
owner intends to reoccupy, is considered real estate held for personal 
use. Ownership of residential real estate by a corporation whose sole 
purpose is to hold the real estate and where the real estate is for the 
personal use of the individual owner(s) of the corporation, is 
considered real estate held for personal use.
    (b) An existing U.S. affiliate is exempt from reporting the 
acquisition of either a U.S. business enterprise, or a business segment 
or operating unit of a U.S. business enterprise, that it then merges 
into its own operations, if the total cost of the acquisition was 
$3,000,000 or less and does not involve the purchase of 200 acres or 
more of U.S. land. (If the acquisition involves the purchase of 200 
acres or more of U.S. land, it must be reported regardless of the total 
cost of the acquisition.)
    (c) An established or acquired U.S. business enterprise, as 
consolidated, is exempt if its total assets (not the foreign parent's or 
existing U.S. affiliate's share) at the time of acquisition or 
immediately after being established were $3,000,000 or less and it does

[[Page 31]]

not own 200 acres or more of U.S. land. (If it owns 200 acres or more of 
U.S. land, it must report regardless of the value of total assets.)

If exempt under (b) or (c), the existing U.S. affiliate or the 
established or acquired U.S. business enterprise must, nevertheless, 
file an ``Exemption Claim, Form BE-13'' to validate the exemption.
    (4) Form BE-14--Report by a U.S. Person Who Assists or Intervenes in 
the Acquisition of a U.S. Business Enterprise by, or Who Enters into a 
Joint Venture With, a Foreign Person--to be completed either by:
    (i) A U.S. person--including, but not limited to, an intermediary, a 
real estate broker, business broker, and a brokerage house--who assists 
or intervenes in the sale to, or purchase by, a foreign person or a U.S. 
affiliate of a foreign person, of a 10 percent or more voting interest 
in a U.S. business enterprise, including real estate; or
    (ii) A U.S. person who enters into a joint venture with a foreign 
person to create a U.S. business enterprise.


A U.S. person is required to report only when such a foreign involvement 
is known; it is not incumbent upon the U.S. person to ascertain the 
foreign status of a person involved in an acquisition unless the U.S. 
person has reason to believe the acquiring party may be a foreign 
person. If a U.S. person required to file a Form BE-14 files Form BE-13 
relating to the acquisition of the U.S. business enterprise by a foreign 
person, then Form BE-14 is not required.

    Total Exemptions--(a) Residential real estate held exclusively for 
personal use and not for profitmaking purposes is not subject to the 
reporting requirements. A residence which is an owner's primary 
residence that is then leased by the owner while outside the United 
States but which the owner intends to reoccupy, is considered real 
estate held for personal use. Ownership of residential real estate by a 
corporation whose sole purpose is to hold the real estate and where the 
real estate is for the personal use of the individual owner(s) of the 
corporation, is considered real estate for personal use.
    (b) If the U.S. business enterprise acquired has total assets of, or 
if the capitalization (including loans from the joint venturers) of the 
joint venture to be established is, $3,000,000 or less, than no report 
is required, provided the enterprise does not own 200 acres or more of 
U.S. land. (If it owns 200 acres or more of U.S. land, a report is 
required regardless of the value of total assets.)

    (5) BE-21--Survey of Foreign Direct Investment in U.S. Business 
Enterprises Engaged in the Processing, Packaging, or Wholesale 
Distribution of Fish or Seafoods. Reporting consists of:
    (i) Form BE-21P--Identification Questionnaire. A completed 
questionnaire is required from (a) each U.S. business enterprise that is 
a U.S. affiliate of a foreign person and that engaged in the processing, 
packaging, or wholesale distribution of fish or seafoods, and (b) any 
person to whom a questionnaire is sent by BEA.
    (ii) Form BE-21A--Report for a U.S. Business Enterprise that is a 
U.S. Affiliate of a Foreign Person. A completed report is required from 
each U.S. business enterprise that is a U.S. affiliate of a foreign 
person and that engaged in the processing, packaging, or wholesale 
distribution of fish or seafoods.
    (iii) Form BE-21B--Report for each Establishment of a U.S. Business 
Enterprise that is a U.S. Affiliate of a Foreign Person. A completed 
report is required for each establishment, of the U.S. affiliate, that 
engaged in the processing, packaging, or wholesale distribution of fish 
or seafoods.

[42 FR 64315, Dec. 22, 1977; 43 FR 2169, Jan. 16, 1978, as amended at 44 
FR 32586, June 6, 1979; 46 FR 23226, Apr. 24, 1981; 46 FR 60191, Dec. 9, 
1981; 47 FR 13139, Mar. 29, 1982; 47 FR 14138, Apr. 2, 1982; 49 FR 3174, 
Jan. 26, 1984; 52 FR 8446, Mar. 18, 1987; 53 FR 1016, Jan. 15, 1988; 53 
FR 15198, Apr. 28, 1988; 54 FR 1352, Jan. 13, 1989; 58 FR 38290, July 
16, 1993; 58 FR 53125, Oct. 14, 1993; 63 FR 16892, Apr. 7, 1998; 64 FR 
10389, Mar. 4, 1999; 68 FR 3813, Jan. 27, 2003; 68 FR 67940, Dec. 5, 
2003]



Sec. 806.16  Rules and regulations for BE-10, Benchmark Survey of U.S. 
Direct Investment Abroad--1999.

    A BE-10, Benchmark Survey of U.S. Direct Investment Abroad will be 
conducted covering 1999. All legal authorities, provisions, definitions, 
and requirements contained in Sec. Sec. 806.1 through 806.13 and Sec. 
806.14(a) through (d) are applicable to this survey. Specific additional 
rules and regulations for the BE-10 survey are given in paragraphs (a) 
through (e) of this section. More detailed instructions are given on the 
report forms and instructions.

[[Page 32]]

    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-10, Benchmark Survey of U.S. 
Direct Investment Abroad--1999, contained in this section, whether or 
not they are contacted by BEA. Also, a person, or their agent, who is 
contacted by BEA about reporting in this survey, either by sending them 
a report form or by written inquiry, must respond in writing pursuant to 
Sec. 806.4. They may respond by:
    (1) Certifying in writing, within 30 days of being contacted by BEA, 
to the fact that the person had no direct investment within the purview 
of the reporting requirements of the BE-10 survey;
    (2) Completing and returning the ``BE-10 Claim for Not Filing'' 
within 30 days of receipt of the BE-10 survey report forms; or
    (3) Filing the properly completed BE-10 report (comprising Form BE-
10A or BE-10A BANK and Forms BE-10B(LF), BE-10B(SF), and/or BE-10B BANK) 
by May 31, 2000, or June 30, 2000, as required.
    (b) Who must report. (1) A BE-10 report is required of any U.S. 
person that had a foreign affiliate--that is, that had direct or 
indirect ownership or control of at least 10 percent of the voting stock 
of an incorporated foreign business enterprise, or an equivalent 
interest in an unincorporated foreign business enterprise--at any time 
during the U.S. person's 1999 fiscal year.
    (2) If the U.S. person had no foreign affiliates during its 1999 
fiscal year, a ``BE-10 Claim for Not Filing'' must be filed within 30 
days of receipt of the BE-10 survey package; no other forms in the 
survey are required. If the U.S. person had any foreign affiliates 
during its 1999 fiscal year, a BE-10 report is required and the U.S. 
person is a U.S. Reporter in this survey.
    (3) Reports are required even though the foreign business enterprise 
was established, acquired, seized, liquidated, sold, expropriated, or 
inactivated during the U.S. person's 1999 fiscal year.
    (c) Forms for nonbank U.S. Reporters and foreign affiliates.--(1) 
Form BE-10A (Report for the U.S. Reporter). A BE-10A report must be 
completed by a U.S. Reporter that is not a bank. If the U.S. Reporter is 
a corporation, Form BE-10A is required to cover the fully consolidated 
U.S. domestic business enterprise.
    (i) If for a nonbank U.S. Reporter any one of the following three 
items--total assets, sales or gross operating revenues excluding sales 
taxes, or net income after provision for U.S. income taxes--was greater 
than $100 million (positive or negative) at any time during the 
Reporter's 1999 fiscal year, the U.S. Reporter must file a complete Form 
BE-10A and, as applicable, a BE-10A SUPPLEMENT listing each, if any, 
foreign affiliate that is exempt from being reported on Form BE-10B(LF), 
BE-10B(SF), or BE-10B BANK. It must also file a Form BE-10B(LF), BE-
10B(SF), or BE-10B BANK, as appropriate, for each nonexempt foreign 
affiliate.
    (ii) If for a nonbank U.S. Reporter no one of the three items listed 
in paragraph (c)(1)(i) of this section was greater than $100 million 
(positive or negative) at any time during the Reporter's 1999 fiscal 
year, the U.S. Reporter is required to file on Form BE-10A only items 1 
through 27 and items 30 through 35 and, as applicable, a BE-10A 
SUPPLEMENT listing each, if any, foreign affiliate that is exempt from 
being reported on Form BE-10B(LF), BE-10B(SF), or BE-10B BANK. It must 
also file a Form BE-10B(LF), BE-10B(SF), or BE-10B BANK, as appropriate, 
for each nonexempt foreign affiliate.
    (2) Form BE-10B(LF) or (SF) (Report for nonbank foreign affiliate). 
(i) A BE-10B(LF) (Long Form) must be filed for each majority-owned 
nonbank foreign affiliate of a nonbank U.S. Reporter, whether held 
directly or indirectly, for which any one of the three items--total 
assets, sales or gross operating revenues excluding sales taxes, or net 
income after provision for foreign income taxes--was greater than $100 
million (positive or negative) at any time during the affiliate's 1999 
fiscal year.
    (ii) A BE-10B(SF) (Short Form) must be filed:
    (A) For each majority-owned nonbank foreign affiliate of a nonbank 
U.S. Reporter, whether held directly or indirectly, for which any one of 
the three items listed in paragraph (c)(2)(i)

[[Page 33]]

of this section was greater than $7 million but for which no one of 
these items was greater than $100 million (positive or negative), at any 
time during the affiliate's 1999 fiscal year, and
    (B) For each minority-owned nonbank foreign affiliate of a nonbank 
U.S. Reporter, whether held directly or indirectly, for which any one of 
the three items listed in paragraph (c)(2)(i) of this section was 
greater than $7 million (positive or negative), at any time during the 
affiliate's 1999 fiscal year, and
    (C) For each nonbank foreign affiliate of a U.S. bank Reporter, 
whether held directly or indirectly, for which any one of the three 
items listed in paragraph (c)(2)(i) of this section was greater than $7 
million (positive or negative), at any time during the affiliate's 1999 
fiscal year.
    (iii) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) of this 
section, a Form BE-10B(LF) or (SF) must be filed for a foreign affiliate 
of the U.S. Reporter that owns another nonexempt foreign affiliate of 
that U.S. Reporter, even if the foreign affiliate parent is otherwise 
exempt, i.e., a Form BE-10B(LF), (SF), or BANK must be filed for all 
affiliates upward in a chain of ownership.
    (d) Forms for U.S. Reporters and foreign affiliates that are banks 
or bank holding companies. (1) For purposes of the BE-10 survey, 
``banking'' covers a business entity engaged in deposit banking or 
closely related functions, including commercial banks, Edge Act 
corporations engaged in international or foreign banking, foreign 
branches and agencies of U.S. banks whether or not they accept deposits 
abroad, savings and loans, savings banks, and bank holding companies, 
i.e., holding companies for which over 50 percent of their total income 
is from banks that they hold. If the bank or bank holding company is 
part of a consolidated business enterprise and the gross operating 
revenues from nonbanking activities of this consolidated entity are more 
than 50 percent of its total revenues, then the consolidated entity is 
deemed not to be a bank even if banking revenues make up the largest 
single source of all revenues. (Activities of subsidiaries of a bank or 
bank holding company that may not be banks but that provide support to 
the bank parent company, such as real estate subsidiaries set up to hold 
the office buildings occupied by the bank parent company, are considered 
bank activities.)
    (2) Form BE-10A BANK (Report for a U.S. Reporter that is a bank). A 
BE-10A BANK report must be completed by a U.S. Reporter that is a bank. 
For purposes of filing Form BE-10A BANK, the U.S. Reporter is deemed to 
be the fully consolidated U.S. domestic business enterprise and all 
required data on the form shall be for the fully consolidated domestic 
entity.
    (i) If a U.S. bank had any foreign affiliates at any time during its 
1999 fiscal year, whether a bank or nonbank and whether held directly or 
indirectly, for which any one of the three items--total assets, sales or 
gross operating revenues excluding sales taxes, or net income after 
provision for foreign income taxes--was greater than $7 million 
(positive or negative) at any time during the affiliate's 1999 fiscal 
year, the U.S. Reporter must file a Form BE-10A BANK and, as applicable, 
a BE-10A BANK SUPPLEMENT listing each, if any, foreign affiliate, 
whether bank or nonbank, that is exempt from being reported on Form BE-
10B (SF), or BE-10B BANK. It must also file a Form BE-10B (SF) for each 
nonexempt nonbank foreign affiliate and a Form BE-10B BANK for each 
nonexempt bank foreign affiliate.
    (ii) If the U.S. bank Reporter had no foreign affiliates for which 
any one of the three items listed in paragraph (d)(2)(i) of this section 
was greater than $7 million (positive or negative) at any time during 
the affiliate's 1999 fiscal year, the U.S. Reporter must file a Form BE-
10A BANK and a BE-10A BANK SUPPLEMENT, listing all foreign affiliates 
exempt from being reported on Form BE-10B (SF) or BE-10 BANK.
    (3) Form BE-10B BANK (Report for a foreign affiliate that is a 
bank). (i) A BE-10B BANK report must be filed for each foreign bank 
affiliate of a bank or nonbank U.S. Reporter, whether directly or 
indirectly held, for which any one of the three items--total assets, 
sales or gross operating revenues excluding sales taxes, or net income 
after

[[Page 34]]

provision for foreign income taxes--was greater than $7 million 
(positive or negative) at any time during the affiliate's 1999 fiscal 
year.
    (ii) Notwithstanding paragraph (d)(3)(i) of this section, a Form BE-
10B BANK must be filed for a foreign bank affiliate of the U.S. Reporter 
that owns another nonexempt foreign affiliate of that U.S. Reporter, 
even if the foreign affiliate parent is otherwise exempt, i.e., a Form 
BE-10B (LF), (SF), or BANK must be filed for all affiliates upward in a 
chain of ownership. However, a Form BE-10B BANK is not required to be 
filed for a foreign bank affiliate in which the U.S. Reporter holds only 
an indirect ownership interest of 50 percent or less and that does not 
own a reportable nonbank foreign affiliate, but the indirectly owned 
bank affiliate must be listed on the BE-10A BANK SUPPLEMENT.
    (e) Due date. A fully completed and certified BE-10 report 
comprising Form BE-10A or 10A BANK, BE-10A SUPPLEMENT (as required), and 
Form(s) BE-10B (LF), (SF), or BANK (as required) is due to be filed with 
BEA not later than May 31, 2000 for those U.S. Reporters filing fewer 
than 50, and June 30, 2000 for those U.S. Reporters filing 50 or more, 
Forms BE-10B (LF), (SF), or BANK.

[64 FR 67718, Dec. 3, 1999]

    Effective Date Note: At 69 FR 70545, Dec. 7, 2004, Sec. 806.16 was 
revised, effective Jan. 6, 2005. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 806.16  Rules and regulations for BE-10, Benchmark Survey of U.S. 
          Direct Investment Abroad--2004.

    A BE-10, Benchmark Survey of U.S. Direct Investment Abroad will be 
conducted covering 2004. All legal authorities, provisions, definitions, 
and requirements contained in Sec. 806.1 through Sec. 806.13 and Sec. 
806.14(a) through (d) are applicable to this survey. Specific additional 
rules and regulations for the BE-10 survey are given in paragraphs (a) 
through (e) of this section. More detailed instructions are given on the 
report forms and instructions.
    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-10, Benchmark Survey of U.S. 
Direct Investment Abroad--2004, contained in this section, whether or 
not they are contacted by BEA. Also, a person, or their agent, that is 
contacted by BEA about reporting in this survey, either by sending them 
a report form or by written inquiry, must respond in writing pursuant to 
Sec. 806.4. This may be accomplished by:
    (1) Certifying in writing, by the due date of the survey, to the 
fact that the person had no direct investment within the purview of the 
reporting requirements of the BE-10 survey;
    (2) Completing and returning the ``BE-10 Claim for Not Filing'' by 
the due date of the survey; or
    (3) Filing the properly completed BE-10 report (comprising Form BE-
10A or BE-10A BANK and Forms BE-10B(LF), BE-10B(SF), BE-10B Mini and/or 
BE-10B BANK) by May 31, 2005, or June 30, 2005, as required.
    (b) Who must report. (1) A BE-10 report is required of any U.S. 
person that had a foreign affiliate--that is, that had direct or 
indirect ownership or control of at least 10 percent of the voting stock 
of an incorporated foreign business enterprise, or an equivalent 
interest in an unincorporated foreign business enterprise--at any time 
during the U.S. person's 2004 fiscal year.
    (2) If the U.S. person had no foreign affiliates during its 2004 
fiscal year, a ``BE-10 Claim for Not Filing'' must be filed by the due 
date of the survey; no other forms in the survey are required. If the 
U.S. person had any foreign affiliates during its 2004 fiscal year, a 
BE-10 report is required and the U.S. person is a U.S. Reporter in this 
survey.
    (3) Reports are required even if the foreign business enterprise was 
established, acquired, seized, liquidated, sold, expropriated, or 
inactivated during the U.S. person's 2004 fiscal year.
    (4) The amount and type of data required to be reported vary 
according to the size of the U.S. Reporters or foreign affiliates, 
whether they are banks or nonbanks, and, for foreign affiliates, whether 
they are majority-owned or minority-owned by U.S. direct investors. For 
purposes of the BE-10 survey, a ``majority-owned'' foreign affiliate is 
one in which the combined direct and indirect ownership interest of all 
U.S. parents of the foreign affiliate exceeds 50 percent; all other 
affiliates are referred to as ``minority-owned'' affiliates. In 
addition, a ``bank'' is a business entity engaged in deposit banking or 
closely related functions, including commercial banks, Edge Act 
corporations, foreign branches and agencies of U.S. banks whether or not 
they accept deposits abroad, savings and loans, savings banks, bank 
holding companies, and financial holding companies. Elsewhere in this 
section, when ``bank'' is used, it refers to all such organizations.
    (c) Forms for nonbank U.S. Reporters and foreign affiliates. (1) 
Form BE-10A (Report for nonbank U.S. Reporter). A BE-10A report must be 
completed by a U.S. Reporter that is not a bank. If the U.S. Reporter is 
a corporation, Form BE-10A is required to cover the

[[Page 35]]

fully consolidated U.S. domestic business enterprise. However, where a 
U.S. Reporter's primary line of business is not in banking (or related 
financial activities), but the Reporter also has ownership in a bank, 
the bank, including all of its domestic subsidiaries or units, must file 
on the BE-10A BANK form and the nonbanking U.S. operations not owned by 
the bank must file on the BE-10A.
    (i) If for a nonbank U.S. Reporter any one of the following three 
items--total assets, sales or gross operating revenues excluding sales 
taxes, or net income after provision for U.S. income taxes--was greater 
than $150 million (positive or negative) at any time during the 
Reporter's 2004 fiscal year, the U.S. Reporter must file a complete Form 
BE-10A and, as applicable, a BE-10A SUPPLEMENT A listing each, if any, 
foreign affiliate that is exempt from being reported on Form BE-10B(LF), 
BE-10B(SF), BE-10B Mini, or BE-10B BANK. It must also file a Form BE-
10B(LF), BE-10B(SF), BE-10B Mini, or BE-10B BANK, as appropriate, for 
each nonexempt foreign affiliate.
    (ii) If for a nonbank U.S. Reporter none of the three items listed 
in paragraph (c)(1)(i) of this section was greater than $150 million 
(positive or negative) at any time during the Reporter's 2004 fiscal 
year, the U.S. Reporter is required to file on Form BE-10A only certain 
items as designated on the form and, as applicable, a BE-10A SUPPLEMENT 
A listing each, if any, foreign affiliate that is exempt from being 
reported on Form BE-10B(LF), BE-10B(SF), BE-10B Mini, or BE-10B BANK. It 
must also file a Form BE-10B(LF), BE-10B(SF), BE-10B Mini, or BE-10B 
BANK, as appropriate, for each nonexempt foreign affiliate.
    (2) Form BE-1OB(LF), (SF), or Mini (Report for nonbank foreign 
affiliate). (i) A BE-10B(LF) (Long Form) must be filed for each 
majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter, 
whether held directly or indirectly, for which any one of the three 
items--total assets, sales or gross operating revenues excluding sales 
taxes, or net income after provision for foreign income taxes--was 
greater than $150 million (positive or negative) at any time during the 
affiliate's 2004 fiscal year.
    (ii) A BE-10B(SF) (Short Form) must be filed:
    (A) For each majority-owned nonbank foreign affiliate of a nonbank 
U.S. Reporter, whether held directly or indirectly, for which any one of 
the three items listed in paragraph (c)(2)(i) of this section was 
greater than $25 million but for which none of these items was greater 
than $150 million (positive or negative), at any time during the 
affiliate's 2004 fiscal year, and
    (B) For each minority-owned nonbank foreign affiliate of a nonbank 
U.S. Reporter, whether held directly or indirectly, for which any one of 
the three items listed in paragraph (c)(2)(i) of this section was 
greater than $25 million (positive or negative), at any time during the 
affiliate's 2004 fiscal year, and
    (C) For each nonbank foreign affiliate of a U.S. bank Reporter, 
whether held directly or indirectly, for which any one of the three 
items listed in paragraph (c)(2)(i) of this section was greater than $25 
million (positive or negative), at any time during the affiliate's 2004 
fiscal year.
    (iii) A BE-10B Mini must be filed for each nonbank foreign 
affiliate, whether held directly or indirectly, for which any one of the 
three items listed in paragraph (c)(2)(i) of this section was greater 
than $10 million but for which none of these items was greater than $25 
million (positive or negative), at any time during the affiliate's 2004 
fiscal year.
    (iv) Notwithstanding paragraphs (c)(2)(i), (c)(2)(ii), and 
(c)(2)(iii) of this section, a Form BE-10B(LF), (SF), or Mini must be 
filed for a foreign affiliate of the U.S. Reporter that owns another 
nonexempt foreign affiliate of that U.S. Reporter, even if the foreign 
affiliate parent is otherwise exempt, i.e., a Form BE-10B(LF), (SF), 
Mini, or BANK must be filed for all affiliates upward in a chain of 
ownership.
    (d) Forms for U.S. Reporters and foreign affiliates that are banks, 
bank holding companies, or financial holding companies. (1) Form BE-10A 
BANK (Report for a U.S. Reporter that is a bank). A BE-10A BANK report 
must be completed by a U.S. Reporter that is a bank. For purposes of 
filing Form BE-10A BANK, the U.S. Reporter is deemed to be the fully 
consolidated U.S. domestic business enterprise and all required data on 
the form shall be for the fully consolidated domestic entity.
    (i) If a U.S. bank had any foreign affiliates at any time during its 
2004 fiscal year, whether a bank or nonbank and whether held directly or 
indirectly, for which any one of the three items--total assets, sales or 
gross operating revenues excluding sales taxes, or net income after 
provision for foreign income taxes--was greater than $10 million 
(positive or negative) at any time during the affiliate's 2004 fiscal 
year, the U.S. Reporter must file a Form BE-10A BANK and, as applicable, 
a BE-10A BANK SUPPLEMENT A listing each, if any, foreign affiliate, 
whether bank or nonbank, that is exempt from being reported on Form BE-
10B(SF), BE-10B Mini, or BE-10B BANK. It must also file a Form BE-
10B(SF) or BE-10B Mini for each nonexempt nonbank foreign affiliate and 
a Form BE-10B BANK for each nonexempt bank foreign affiliate.
    (ii) If the U.S. bank Reporter had no foreign affiliates for which 
any one of the three items listed in paragraph (d)(2)(i) of this section 
was greater than $10 million (positive or negative) at any time during 
the affiliate's 2004 fiscal year, the U.S. Reporter must file

[[Page 36]]

a Form BE-10A BANK and a BE-10A BANK SUPPLEMENT A, listing all foreign 
affiliates exempt from being reported on Form BE-10B(SF), BE-10B Mini, 
or BE-10B BANK.
    (2) Form BE-10B BANK (Report for a foreign affiliate that is a 
bank). (i) A BE-10B BANK report must be filed for each foreign bank 
affiliate of a bank or nonbank U.S. Reporter, whether directly or 
indirectly held, for which any one of the three items--total assets, 
sales or gross operating revenues excluding sales taxes, or net income 
after provision for foreign income taxes--was greater than $10 million 
(positive or negative) at any time during the affiliate's 2004 fiscal 
year.
    (ii) Notwithstanding paragraph (d)(3)(i) of this section, a Form BE-
10B BANK must be filed for a foreign bank affiliate of the U.S. Reporter 
that owns another nonexempt foreign affiliate of that U.S. Reporter, 
even if the foreign affiliate parent is otherwise exempt, i.e., a Form 
BE-10B(LF), (SF), Mini, or BANK must be filed for all affiliates upward 
in a chain of ownership. However, a Form BE-10B BANK is not required to 
be filed for a foreign bank affiliate in which the U.S. Reporter holds 
only an indirect ownership interest of 50 percent or less and that does 
not own a reportable nonbank foreign affiliate, but the indirectly owned 
bank affiliate must be listed on the BE-10A BANK SUPPLEMENT A.
    (e) Due date. A fully completed and certified BE-10 report 
comprising Form BE-10A or 10A BANK and Form(s) BE-10B(LF), (SF), Mini, 
or BANK (as required) is due to be filed with BEA not later than May 31, 
2005 for those U.S. Reporters filing fewer than 50, and June 30, 2005 
for those U.S. Reporters filing 50 or more, Forms BE-10B(LF), (SF), 
Mini, or BANK.



Sec. 806.17  Rules and regulations for BE-12, Benchmark Survey of 
Foreign Direct Investment in the United States--2002

    A BE-12, Benchmark Survey of Foreign Direct Investment in the United 
States will be conducted covering 2002. All legal authorities, 
provisions, definitions, and requirements contained in Sec. Sec. 806.1 
through 806.13 and Sec. 806.15(a) through (g) are applicable to this 
survey. Specific additional rules and regulations for the BE-12 survey 
are given in this section.
    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-12, Benchmark Survey of Foreign 
Direct Investment in the United States--2002, contained in this section, 
whether or not they are contacted by BEA. Also, a person, or their 
agent, contacted by BEA concerning their being subject to reporting, 
either by sending them a report form or by written inquiry, must respond 
in writing pursuant to Sec. 806.4, or electronically using BEA's 
Automated Survey Transmission and Retrieval (ASTAR) system. This may be 
accomplished by completing and returning either Form BE-12(X) within 30 
days of the date it was received, if Form BE-12(LF), Form BE-12(SF), or 
Form BE-12 Bank do not apply, or by completing and returning Form BE-
12(LF), Form BE-12(SF), or Form BE-12 Bank, whichever is applicable, by 
May 31, 2003.
    (b) Who must report. A BE-12 report is required for each U.S. 
affiliate, i.e., for each U.S. business enterprise in which a foreign 
person (foreign parent) owned or controlled, directly or indirectly, 10 
percent or more of the voting securities if an incorporated U.S. 
business enterprise, or an equivalent interest if an unincorporated U.S. 
business enterprise, at the end of the business enterprise's 2002 fiscal 
year. A report is required even though the foreign person's ownership 
interest in the U.S. business enterprise may have been established or 
acquired during the reporting period. Beneficial, not record, ownership 
is the basis of the reporting criteria.
    (c) Forms to be filed. (1) Form BE-12(LF)--Benchmark Survey of 
Foreign Direct Investment in the United States--2002 (Long Form) must be 
completed and filed by May 31, 2003, by each U.S. business enterprise 
that was a U.S. affiliate of a foreign person at the end of its 2002 
fiscal year and that was majority-owned by one or more foreign parents 
(a ``majority-owned'' U.S. affiliate is one in which the combined direct 
and indirect ownership interest of all foreign parents of the U.S. 
affiliate exceeds 50 percent), if:
    (i) It is not a bank or a bank holding company, and is not owned 
directly or indirectly by a U.S. bank holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, one or more of the following three 
items for the U.S. affiliate (not just the foreign parent's share) 
exceeded $125 million (positive or negative) at the end of, or for, its 
2002 fiscal year:

[[Page 37]]

    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes;
    (C) Net income after provision for U.S. income taxes.
    (2) Form BE-12(SF)--Benchmark Survey of Foreign Direct Investment in 
the United States--2002 (Short Form) must be completed and filed by May 
31, 2003 by each U.S. business enterprise that was a U.S. affiliate of a 
foreign person at the end of its 2002 fiscal year, if:
    (i) It is not a bank or a bank holding company, and is not owned 
directly or indirectly by a U.S. bank holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, one or more of the following three 
items for a majority-owned U.S. affiliate (not just the foreign parent's 
share) exceeded $10 million, but no one item exceeded $125 million 
(positive or negative) at the end of, or for, its 2002 fiscal year:
    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes;
    (C) Net income after provision for U.S. income taxes, or
    (iii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, one or more of the following three 
items for a minority-owned U.S. affiliate (not just the foreign parent's 
share) exceeded $10 million (positive or negative) at the end of, or 
for, its 2002 fiscal year (a ``minority-owned'' U.S. affiliate is one in 
which the combined direct and indirect ownership interest of all foreign 
parents of the U.S. affiliate is 50 percent or less):
    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes;
    (C) Net income after provision for U.S. income taxes.
    (3) Form BE-12 Bank--Benchmark Survey of Foreign Direct Investment 
in the United States--2002 BANK must be completed and filed by May 31, 
2003, by each U.S. business enterprise that was a U.S. affiliate of a 
foreign person at the end of its 2002 fiscal year, if:
    (i) The U.S. affiliate is in ``banking'', which, for purposes of the 
BE-12 survey, covers business enterprises engaged in deposit banking or 
closely related functions, including commercial banks, Edge Act 
corporations engaged in international or foreign banking, U.S. branches 
and agencies of foreign banks whether or not they accept domestic 
deposits, savings and loans, savings banks, and bank holding companies, 
including all subsidiaries or units of a bank holding company and
    (ii) On a fully consolidated basis, one or more of the following 
three items for the U.S. affiliate (not just the foreign parent's share) 
exceeded $10 million (positive or negative) at the end of, or for, its 
2002 fiscal year:
    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes;
    (C) Net income after provision for U.S. income taxes.
    (4) Form BE-12(X)--Benchmark Survey of Foreign Direct Investment in 
the United States--2002 Claim for Exemption from Filing BE-12(LF), BE-
12(SF), or BE-12 Bank must be completed and filed within 30 days of the 
date it was received by:
    (i) Each U.S. business enterprise that was a U.S. affiliate of a 
foreign person at the end of its 2002 fiscal year (whether or not the 
U.S. affiliate, or its agent, is contacted by BEA concerning its being 
subject to reporting in the 2002 benchmark survey), but is exempt from 
filing Form BE-12(LF), Form BE-12(SF), and Form BE-12 Bank; and
    (ii) Each U.S. business enterprise, or its agent, that is contacted, 
in writing, by BEA concerning its being subject to reporting in the 2002 
benchmark survey but that is not otherwise required to file the Form BE-
12(LF), Form BE-12(SF), or Form BE-12 Bank.
    (d) Aggregation of real estate investments. All real estate 
investments of a foreign person must be aggregated for the purpose of 
applying the reporting criteria. A single report form must be filed to 
report the aggregate holdings, unless written permission has been 
received from BEA to do otherwise. Those holdings not aggregated must be 
reported separately.

[[Page 38]]

    (e) Exemption. (1) A U.S. affiliate as consolidated, or aggregated 
in the case of real estate investments, is not required to file form BE-
12(LF), BE-12(SF), or Form BE-12 Bank if each of the following three 
items for the U.S. affiliate (not just the foreign parent's share) did 
not exceed $10 million (positive or negative) at the end of, or for, its 
2002 fiscal year:
    (i) Total assets (do not net out liabilities);
    (ii) Sales or gross operating revenues, excluding sales taxes; and
    (iii) Net income after provision for U.S. income taxes.
    (2) If a U.S. business enterprise was a U.S. affiliate at the end of 
its 2002 fiscal year but is exempt from filing a completed Form BE-
12(LF), BE-12(SF), or Form BE-12 Bank, it must nevertheless file a 
completed and certified Form BE-12(X).
    (f) Due date. A fully completed and certified Form BE-12(LF), Form 
BE-12(SF), or Form BE-12 Bank is due to be filed with BEA not later than 
May 31, 2003. A fully completed and certified Form BE-12(X) is due to be 
filed with BEA within 30 days of the date it was received.

[68 FR 1532, Jan. 13, 2003]



Sec. 806.18  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

    (a) Purpose. This section will comply with the requirements of 
section 3507 (f) of the Paperwork Reduction Act (PRA) which require 
agencies to display a current control number assigned by the Director of 
OMB for each agency information collection requirement.
    (b) Display.

------------------------------------------------------------------------
                                                                Current
                                                                  OMB
        15 CFR section where identified and described           control
                                                                  No.
------------------------------------------------------------------------
806.1 through 806.17........................................   0608-0020
                                                                    0024
                                                                    0032
                                                                    0004
                                                                    0035
                                                                    0030
                                                                    0009
                                                                    0023
                                                                    0034
                                                                    0053
------------------------------------------------------------------------


[48 FR 56944, Dec. 27, 1983, as amended at 51 FR 41476, Nov. 17, 1986]



PART 807_PUBLIC INFORMATION--Table of Contents




Sec.
807.1 Public Reference Facility.
807.2 Department of Commerce rules applicable.



Sec. 807.1  Public Reference Facility.

    The Public Reference Facility of the Bureau of Economic Analysis is 
located in room B7 of the Tower Building. 1401 K Street NW., Washington, 
DC 20230. The telephone number is 202-523-0595. The facility is open to 
the public from 8:30 a.m. to 5 p.m., Monday through Friday, except legal 
holidays.

(5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301; 
Reorganization Plan No. 5 of 1950; and 15 CFR part 4 of Subtitle A)

[42 FR 38574, July 29, 1977]



Sec. 807.2  Department of Commerce rules applicable.

    The rules applicable to the services provided in the facility and 
procedures to be followed for public inspection and copying of materials 
are found in part 4 of subtitle A of title 15 CFR.

(5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301; 
Reorganization Plan No. 5 of 1950; and 15 CFR Part 4 of Subtitle A)

[42 FR 38574, July 29, 1977]

[[Page 39]]



CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
                               OF COMMERCE




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

                    SUBCHAPTER A--GENERAL REGULATIONS
Part                                                                Page
902             NOAA information collection requirements 
                    under the Paperwork Reduction Act: OMB 
                    control numbers.........................          41
903             Public information..........................          43
904             Civil procedures............................          43
905             Use in enforcement proceedings of 
                    information collected by voluntary 
                    fishery data collectors.................          69
908             Maintaining records and submitting reports 
                    on weather modification activities......          70
909             [Reserved]
911             Policies and procedures concerning use of 
                    the NOAA space-based data collection 
                    systems.................................          76
917             National sea grant program funding 
                    regulations.............................          83
918             Sea grants..................................          90
           SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT
921             National Estuarine Research Reserve System 
                    regulations.............................          95
922             National Marine Sanctuary program 
                    regulations.............................         119
923             Coastal zone management program regulations.         200
930             Federal consistency with approved coastal 
                    management programs.....................         240
932-933         [Reserved]

        SUBCHAPTER C--REGULATIONS OF THE NATIONAL WEATHER SERVICE
946             Modernization of the National Weather 
                    Service.................................         278
   SUBCHAPTER D--GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE
950             Environmental data and information..........         291
960             Licensing of private remote sensing systems.         295

[[Page 40]]

970             Deep seabed mining regulations for 
                    exploration licenses....................         310
971             Deep seabed mining regulations for 
                    commercial recovery permits.............         342
               SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
990             Natural resource damage assessments.........         382

[[Page 41]]



                    SUBCHAPTER A_GENERAL REGULATIONS





PART 902_NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK 
REDUCTION ACT: OMB CONTROL NUMBERS--Table of Contents




    Authority: 44 U.S.C. 3501 et seq.



Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

    (a) Purpose. This part collects and displays the control numbers 
assigned to information collection requirements of the National Oceanic 
and Atmospheric Administration (NOAA) by the Office of Management and 
Budget (OMB) pursuant to the Paperwork Reduction Act (PRA). NOAA intends 
that this part comply with the requirements of section 3507(c)(B)(i) of 
the PRA, which requires that agencies inventory and display a current 
control number assigned by the Director of OMB for each agency 
information collection requirement.
    (b) Display.

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (all numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
15 CFR
Part 908..................................  -0025
Part 911..................................  -0157
  917.11..................................  -0008, -0019, and -0034
  917.22..................................  -0008, -0019, and -0034
  917.30(b)...............................  -0008, -0019, and -0034
  917.41..................................  -0008, -0019, and -0034
  917.43(c)...............................  -0119
  918.7...................................  -0147
Part 921, subpart B.......................  -0121
Part 923..................................  -0119
  924.6...................................  -0141
  928.3...................................  -0119
  929.10..................................  -0141
  935.9...................................  -0141
  936.8...................................  -0141
  937.8...................................  -0141
  938.8...................................  -0141
  941.11..................................  -0141
  942.8...................................  -0141
  943.10..................................  -0141
  944.9...................................  -0141
Part 960, subpart B.......................  -0174
Part 970..................................  -0145
Part 971..................................  -0170
Part 981..................................  -0144
50 CFR
  216.22..................................  -0178
  216.23..................................  -0179
  216.24..................................  -0387
  216.26..................................  -0084
  216.27..................................  -0084
  216.33..................................  -0084
  216.37..................................  -0084
  216.38..................................  -0084
  216.39..................................  -0084
  216.41..................................  -0084
  216.45..................................  -0084
  216.104.................................  -0151
  216.106.................................  -0151
  216.108.................................  -0151
  216.145.................................  -0151
  222.301(i)..............................  -0084
  222.307.................................  -0230
  222.308.................................  -0084
  223.203(b)..............................  -0399
  223.206(a)..............................  -0230
  223.206(b) and (c)......................  -0178
  223.207(e)..............................  -0309
  229.4...................................  -0293
  229.5...................................  -0292
  229.6...................................  -0292
  230.8...................................  -0311
  253.15..................................  -0012
  259.30..................................  -0090
  259.35..................................  -0041
  260.15..................................  -0266
  260.36..................................  -0266
  260.37..................................  -0266
  260.96..................................  -0266
  260.97..................................  -0266
  260.103.................................  -0266
  296.5...................................  -0082
  300.13..................................  -0304
  300.14..................................  -0348
  300.17..................................  -0349
  300.22..................................  -0148
  300.24..................................  -0202
  300.25..................................  -0239
  300.26(c)...............................  -0239
  300.26(d)...............................  -0239
  300.27..................................  -0040
  300.32..................................  -0218
  300.34..................................  -0218
  300.35..................................  -0361
  300.103(a)..............................  -0194
  300.104(d)..............................  -0194
  300.104(e)..............................  -0194
  300.105(c)..............................  -0194
  300.106(e)..............................  -0194
  300.107.................................  -0194
  300.108(a)..............................  -0368
  300.108(c)..............................  -0367
  300.112.................................  -0194
  300.113.................................  -0194
  300.123.................................  -0205
  300.124(b)..............................  -0016
  300.125.................................  -0358
  300.152.................................  -0228
  300.153(b)..............................  -0228
  300.154(b)..............................  -0228
  300.154(c)..............................  -0228
  300.154(d)..............................  -0228
  600.205.................................  -0314
  600.215.................................  -0314
  600.235.................................  -0192
  600.501.................................  -0089
  600.502.................................  -0075
  600.503.................................  -0354 and -0356

[[Page 42]]

 
  600.504.................................  -0075
  600.506.................................  -0075
  600.507.................................  -0075
  600.508.................................  -0329
  600.510.................................  -0075
  600.512.................................  -0309
  600.520.................................  -0075
  600.630.................................  -0314
  600.725.................................  -0346
  600.745.................................  -0309
  600.747.................................  -0346
  600.1001................................  -0376
  600.1003................................  -0376
  600.1005................................  -0376
  600.1006................................  -0376
  600.1009................................  -0376
  600.1010................................  -0376 and -0413
  600.1011................................  -0376
  600.1012................................  -0376
  600.1013................................  -0376
  600.1014................................  -0376
  622.4...................................  -0205
  622.5...................................  -0013, -0016, and -0392
  622.6...................................  -0358 and -0359
  622.8...................................  -0205
  622.9...................................  -0205
  622.15..................................  -0013 and -0262
  622.18..................................  -0205
  622.19..................................  -0205
  622.40(a)(2)............................  -0205
  622.41..................................  -0345
  622.41(a)...............................  -0016 and -0305
  622.41(g)(3)............................  -0345
  622.45..................................  -0365
  622.45(a)...............................  -0013
  635.4(b)................................  -0327
  635.4(d)................................  -0327
  635.4(g)................................  -0202 and -0205
  635.5(a)................................  -0371, -0328, and -0452
  635.5(b)................................  -0013 and -0239
  635.5(c)................................  -0328
  635.5(d)................................  -0323
  635.5(f)................................  -0380
  635.6(c)................................  -0373
  635.7(c)................................  -0374
  635.21(d)...............................  -0202
  635.26..................................  -0247
  635.31(b)...............................  -0216
  635.32..................................  -0309
  635.33..................................  -0338
  635.42..................................  -0040
  635.43..................................  -0040
  635.44..................................  -0040
  635.46..................................  -0363
  640.4...................................  -0205
  640.6...................................  -0358 and -0359
  648.4...................................  -0202 and -0212
  648.5...................................  -0202
  648.6...................................  -0202
  648.7...................................  -0018, -0202, -0212, and -
                                             0229
  648.8...................................  -0350
  648.9...................................  -0202 and -0404
  648.10..................................  -0202
  648.11..................................  -0202
  648.13..................................  -0391 and -0481
  648.14..................................  -0469
  648.15..................................  -0202
  648.17..................................  -0202
  648.53..................................  -0202 and -0491
  648.54..................................  -0202
  648.56..................................  -0321
  648.58..................................  -0202 and -0416
  648.60..................................  -0491
  648.70..................................  -0238
  648.74..................................  -0240
  648.76..................................  -0202
  648.80..................................  -0202 and -0422
  648.81..................................  -0202 and -0412
  648.82..................................  -0202 and -0457
  648.84..................................  -0202 and -0351
  648.86..................................  -0202, -0391, and -0457
  648.89..................................  -0412
  648.91..................................  -0202
  648.92..................................  -0202
  648.93..................................  -0202
  648.94..................................  -0202
  648.96..................................  -0202
  648.100.................................  -0202
  648.106.................................  -0202
  648.122.................................  -0469
  648.123.................................  -0305
  648.144.................................  -0305
  648.160.................................  -0202
  648.205.................................  -0404
  648.262.................................  -0202
  648.264.................................  -0351
  648.322.................................  -0480
  654.6...................................  -0358 and -0359
  660.13..................................  -0204
  660.14..................................  -0214
  660.16..................................  -0361
  660.17..................................  -0204
  660.21(k)...............................  -0204
  660.23..................................  -0214
  660.24..................................  -0360
  660.25..................................  -0441
  660.27..................................  -0214
  660.28..................................  -0214
  660.43..................................  -0214
  660.48..................................  \1\ -0214
  660.303.................................  -0271
  660.305.................................  -0355
  660.322.................................  -0352
  660.323.................................  -0243
  660.333.................................  -0203
  660.504.................................  -0361
  660.512.................................  -0204
  661.4...................................  -0222
  661.20..................................  -0222
  663.4...................................  -0271
  663.10..................................  -0203
  663.11..................................  -0203
  663.22..................................  -0305
  663.33..................................  -0203
  679.4(b), (f), (h), and (i).............  -0206
  679.4(d) and (e)........................  -0272
  679.4(g) and (k)........................  -0334
  679.4(l)................................  -0393
  679.5(a)................................  -0213, -0269, -0272, and -
                                             0401
  679.5(b), (c), (d), (g), (h), (i), (j),   -0213
   (k) and (m).
  679.5(e), (f), and (o)..................  -0401
  679.5(l)(1), (l)(2), (l)(3), (l)(4), and  -0272
   (l)(5).
  679.5(l)(7).............................  -0398
  679.5(n)................................  -0269
  679.5(p)................................  -0428
  679.6...................................  -0206
  679.20(a)(8)(iii).......................  -0206
  679.24(a)...............................  -0353
  679.24(e)...............................  -0454
  679.26..................................  -0316

[[Page 43]]

 
  679.28(b) and (d).......................  -0330
  679.30..................................  -0269
  679.32(c)...............................  -0269 and -0330
  679.32(d)...............................  -0269
  679.32(f)...............................  -0269 and -0272
  679.40..................................  -0272
  679.41..................................  -0272
  679.42..................................  -0272
  679.43..................................  -0272 and -0398
  679.45..................................  -0398
  679.50..................................  -0318
  679.61(c) and (f).......................  -0401
  679.61(d) and (e).......................  -0393
  679.62(b)(3) and (c)....................  -0401
  679.63(a)(2)............................  -0330
  697.4(a), (d) and (e)...................  -0202
  697.5...................................  -0202
  697.6...................................  -0202
  697.8...................................  -0350
  697.12..................................  -0202
  697.21..................................  -0351
  697.22..................................  -0309
------------------------------------------------------------------------
\1\ And -0305.


[60 FR 39248, Aug. 2, 1995]

    Editorial Note: For Federal Register citations affecting Sec. 
902.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



PART 903_PUBLIC INFORMATION--Table of Contents




    Authority: 5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 
Reorg. Plan No. 2 of 1965, 15 U.S.C. 311 note; 32 FR 9734, 31 FR 10752.



Sec. 903.1  Access to information.

    The rules and procedures regarding public access to the records of 
the National Oceanic and Atmospheric Administration are found at 15 CFR 
part 4.

[57 FR 35749, Aug. 11, 1992]



PART 904_CIVIL PROCEDURES--Table of Contents




                            Subpart A_General

Sec.
904.1 Purpose and scope.
904.2 Definitions.
904.3 Filing and service of documents.

                        Subpart B_Civil Penalties

904.100 General.
904.101 Notice of Violation and Assessment (NOVA).
904.102 Procedures upon receipt of a NOVA.
904.103 Hearing and administrative review.
904.104 Final administrative decision.
904.105 Payment of final assessment.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing penalties.

                 Subpart C_Hearing and Appeal Procedures

                                 General

904.200 Scope and applicability.
904.201 Case docketing.
904.202 Filing of documents.
904.203 Appearances.
904.204 Duties and powers of Judge.
904.205 Disqualification of Judge.
904.206 Pleadings, motions, and service.
904.207 Amendment of pleadings or record.
904.208 Extensions of time.
904.209 Expedited proceedings.
904.210 Summary decision.
904.211 Failure to appear.
904.212 Failure to prosecute or defend.
904.213 Settlements.
904.214 Stipulations.
904.215 Consolidation.
904.216 Prehearing conferences.

                                Discovery

904.240 Discovery generally.
904.241 Depositions.
904.242 Interrogatories to parties.
904.243 Admissions.
904.244 Production of documents and inspection.
904.245 Subpoenas.

                                Hearings

904.250 Notice of time and place of hearing.
904.251 Evidence.
904.252 Witnesses.
904.253 Interlocutory appeals.
904.254 Ex parte communications.

                              Post-Hearing

904.260 Official transcript.
904.261 Post-hearing briefs.
904.262 Documents, copies, and exhibits.

                                Decision

904.270 Record of decision.
904.271 Decision.
904.272 Petition for reconsideration.
904.273 Administrative review of decision.

                 Subpart D_Permit Sanctions and Denials

                                 General

904.300 Scope and applicability.
904.301 Bases for sanctions or denials.
904.302 Notice of permit sanction (NOPS).
904.303 Notice of intent to deny permit (NIDP).
904.304 Opportunity for hearing.

[[Page 44]]

                  Sanctions for Nonpayment of Penalties

904.310 Nature of sanctions.
904.311 Compliance.

                        Sanctions for Violations

904.320 Nature of sanctions.
904.321 Reinstatement of permit.
904.322 Interim action.

                       Subpart E_Written Warnings

904.400 Purpose and scope.
904.401 Written warning as a prior offense.
904.402 Procedures.
904.403 Review and appeal of a written warning.

               Subpart F_Seizure and Forfeiture Procedures

904.500 Purpose and scope.
904.501 Notice of seizure.
904.502 Bonded release.
904.503 Appraisement.
904.504 Administrative forfeiture proceedings.
904.505 Summary sale.
904.506 Remission and mitigation of forfeiture.
904.507 Petition for restoration of proceeds.
904.508 Recovery of certain storage costs.
904.509 Abandonment.
904.510 Disposal of forfeited or abandoned items.

    Authority: 16 U.S.C. 1801-1882; 16 U.S.C. 1531-1543; 16 U.S.C. 1361-
1407; 16 U.S.C. 3371-3378; 16 U.S.C. 1431-1439; 16 U.S.C. 773-773k; 16 
U.S.C. 951-961; 16 U.S.C. 1021-1032; 16 U.S.C. 3631-3644; 42 U.S.C. 9101 
et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971i; 16 U.S.C. 781 et 
seq.; 16 U.S.C. 2401-2412; 16 U.S.C. 2431-2444; 16 U.S.C. 972-972h; 16 
U.S.C. 916-916l; 16 U.S.C. 1151-1175; 16 U.S.C. 3601-3608; 16 U.S.C. 
1851 note; 15 U.S.C. 4201 et seq.; Pub. L. 102-587, 106 Stat. 5039.

    Source: 52 FR 10325, Mar. 31, 1987, unless otherwise noted.



                            Subpart A_General



Sec. 904.1  Purpose and scope.

    (a) This part sets forth the procedures governing NOAA's 
administrative proceedings for assessment of civil penalties, 
suspension, revocation, modification, or denial of permits, issuance and 
use of written warnings, and release or forfeiture of seized property.
    (b) This subpart defines terms appearing in the part and sets forth 
rules for the filing and service of documents in administrative 
proceedings covered by this part.
    (c) The following statutes authorize NOAA to assess civil penalties, 
impose permit sanctions, issue written warnings, and/or seize and 
forfeit property in response to violations of those statutes:
    (1) Antarctic Conservation Act of 1978, 16 U.S.C. 2401-2412;
    (2) Antarctic Marine Living Resources Convention Act of 1984, 16 
U.S.C. 2431-2444;
    (3) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601-3608;
    (4) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
    (5) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971i;
    (6) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.;
    (7) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
    (8) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;
    (9) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151-1175;
    (10) Lacey Act Amendments of 1981, 16 U.S.C. 3371-3378;
    (11) Land Remote-Sensing Commercialization Act of 1981, 15 U.S.C. 
4201 et seq.;
    (12) Magnuson Fishery Conservation and Management Act, 16 U.S.C. 
1801-1882;
    (13) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;
    (14) Marine Protection, Research, and Sanctuaries Act, 16 U.S.C. 
1431-1439;
    (15) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k;
    (16) North Pacific Fisheries Act of 1954, 16 U.S.C. 1021-1032;
    (17) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et 
seq.;
    (18) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631-3644;
    (19) Sponge Act, 16 U.S.C. 781 et seq.;
    (20) Tuna Conventions Act of 1950, 16 U.S.C. 951-961; and
    (21) Whaling Convention Act of 1949, 16 U.S.C. 916-916l.

The procedures set forth in this part are intended to apply to 
administrative proceedings under these and later-enacted statutes 
administered by NOAA.

[[Page 45]]



Sec. 904.2  Definitions.

    Unless the context otherwise requires, or as otherwise noted, terms 
in this part have the meanings prescribed in the applicable statute or 
regulation. In addition, the following definitions apply:
    Administrator means the Administrator of NOAA or a designee.
    Agency means the National Oceanic and Atmospheric Administration 
(NOAA).
    Applicable statute means a statute cited in Sec. 904.1(c), and any 
regulations issued by NOAA to implement it.
    Applicant means any person who applies or is expected to apply for a 
permit.
    Citation means a written warning (see section 311(c) of the Magnuson 
Fishery Conservation and Management Act, 16 U.S.C. 1861(c), and section 
11(c) of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773i(c)).
    Decision means an initial or final decision of the Judge.
    Ex parte communication means an oral or written communication not on 
the public record with respect to which reasonable prior notice to all 
parties is not given, but does not include inquiries regarding 
procedures, scheduling, and status.
    Final administrative decision means an order or decision of NOAA 
assessing a civil penalty or permit sanction which is not subject to 
further Agency review under this part, and which is subject to 
collection proceedings or judicial review in an appropriate Federal 
district court as authorized by law.
    Forfeiture includes, but is not limited to, surrender or 
relinquishment of any claim to an item by written agreement, or 
otherwise; or extinguishment of any claim to, and transfer of title to 
an item to the Government by court order or by order of the 
Administrator under a statute.
    Initial decision means a decision of the Judge which, under 
applicable statute and regulation, is subject to review by the 
Administrator, but which becomes the final administrative decision in 
the absence of such review.
    Judge means Administrative Law Judge.
    NOAA (see Agency) means either the Administrator or a designee 
acting on behalf of the Administrator.
    Party means the respondent and the Agency as represented by counsel; 
if they enter an appearance, a joint and several respondent, vessel 
owner, or permit holder; and any other person allowed to participate 
under Sec. 904.204(a).
    Payment agreement means any promissory note, security agreement, 
settlement agreement, or other contract specifying the terms according 
to which a permit holder agrees to pay a civil penalty.
    Permit means any license, permit, certificate, or other approval 
issued by NOAA under an applicable statute.
    Permit holder means the holder of a permit or any agent or employee 
of the holder, and includes the owner and operator of a vessel for which 
the permit was issued.
    Sanction means suspension, revocation, or modification of a permit 
(see Sec. 904.320).
    Vessel owner means the owner of any vessel that is liable in rem for 
any civil penalty under this part, or whose permit may be subject to 
sanction as a result of civil penalty proceedings under this part.
    Written warning means a notice in writing to a person that a 
violation of a minor or technical nature has been documented against the 
person or against the vessel which is owned or operated by the person.



Sec. 904.3  Filing and service of documents.

    (a) Whenever this part requires service of a document or other 
paper, such service may effectively be made on the agent for service of 
process or on the attorney for the person to be served or other 
representative. Refusal by the person to be served, or his or her agent 
or attorney, of service of a document or other paper will be considered 
effective service of the document or other paper as of the date of such 
refusal. Service will be considered effective when the document is 
mailed to an addressee's last known address.
    (b) Any documents or pleadings filed or served must be signed:
    (1) By the person or persons filing the same,

[[Page 46]]

    (2) By an officer thereof if a corporation,
    (3) By an officer or authorized employee if a government 
instrumentality, or
    (4) By an attorney or other person having authority to sign.
    (c) A pleading or document will be considered served and/or filed as 
of the date of the postmark (or as otherwise shown for government-
franked mail); or (if not mailed) as of the date actually delivered in 
person; or as shown by electronic mail transmission.
    (d) Time periods begin to run on the day following the date of the 
document, paper, or event that begins the time period. Saturdays, 
Sundays, and Federal holidays will be included in computing such time, 
except that when such time expires on a Saturday, Sunday, or Federal 
holiday, such period will be extended to include the next business day. 
This method of computing time periods also applies to any act, such as 
paying a civil penalty, required by this part to take place within a 
specified period of time. When the period of time prescribed or allowed 
is less than 11 days, intermediate Saturdays, Sundays, and legal 
holidays will be excluded in the computation.
    (e) If an oral or written application is made to NOAA within 10 days 
after the expiration of a time period established in this part for the 
required filing of documents or other papers, NOAA may permit a late 
filing if NOAA finds reasonable grounds for an inability or failure to 
file within the time period. All extensions will be in writing. Except 
as specifically provided in this part, or by order of an Administrative 
Law Judge (Judge) under this part, no requests for an extension of time 
may be granted.



                        Subpart B_Civil Penalties



Sec. 904.100  General.

    This subpart sets forth the procedures governing NOAA administrative 
proceedings for the assessment of civil penalties under the statutes 
cited in Sec. 904.1(c).



Sec. 904.101  Notice of Violation and Assessment (NOVA).

    (a) A NOVA will be issued by NOAA and served personally or by 
registered or certified mail, return receipt requested, upon the person 
alleged to be subject to a civil penalty (the respondent). A copy of the 
NOVA will similarly be served upon the permit holder or the vessel 
owner, if the holder or owner is not the respondent. The NOVA will 
contain:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provisions of the Act, regulation, 
license, permit, agreement, or order allegedly violated;
    (3) The findings and conclusions upon which NOAA bases the 
assessment; and
    (4) The amount of the civil penalty assessed. The NOVA will also 
advise of the respondent's rights upon receipt of the NOVA, and will be 
accompanied by a copy of the regulations in this part governing the 
proceedings.
    (b) In assessing a civil penalty, NOAA will take into account 
information available to the Agency concerning any factor to be 
considered under the applicable statute, and any other information that 
justice or the purposes of the statute require.
    (c) The NOVA may also contain a proposal for compromise or 
settlement of the case. NOAA may also attach documents that illuminate 
the facts believed to show a violation.



Sec. 904.102  Procedures upon receipt of a NOVA.

    (a) The respondent has 30 days from receipt of the NOVA in which to 
respond. During this time the respondent may:
    (1) Accept the penalty or compromise penalty, if any, by taking the 
actions specified in the NOVA;
    (2) Seek to have the NOVA amended, modified, or rescinded under 
paragraph (b) of this section;
    (3) Request a hearing under paragraph (e) of this section;
    (4) Request an extension of time to respond under paragraph (c) of 
this section; or
    (5) Take no action, in which case the NOVA becomes final in 
accordance with Sec. 904.104. The procedures set forth in paragraphs 
(a) (2), (3), (4), and (5) of this section may also be exercised by the 
permit holder or vessel owner.

[[Page 47]]

    (b) The respondent, the permit holder, or the vessel owner may seek 
amendment or modification of the NOVA to conform to the facts or law as 
that person sees them by notifying Agency counsel at the telephone 
number or address specified in the NOVA. If amendment or modification is 
sought, Agency counsel will either amend the NOVA or decline to amend 
it, and so notify the respondent, permit holder, or vessel owner, as 
appropriate.
    (c) The respondent, permit holder, or vessel owner may, within the 
30-day period specified in paragraph (a) of this section, request an 
extension of time to respond. Agency counsel may grant an extension of 
up to 30 days unless he or she determines that the requester could, 
exercising reasonable diligence, respond within the 30-day period. If 
Agency counsel does not respond to the request within 48 hours of its 
receipt, the request is granted automatically for the extension 
requested, up to a maximum of 30 days. A telephonic response to the 
request within the 48-hour period is considered an effective response, 
and will be followed by written confirmation.
    (d) Agency counsel may, for good cause, grant an additional 
extension beyond the 30-day period specified in paragraph (c) of this 
section.
    (e) If the respondent, the permit holder, or the vessel owner wishes 
a hearing, the request must be dated and in writing, and must be served 
either in person or mailed to the address specified in the NOVA. The 
requester must either attach a copy of the NOVA or refer to the relevant 
NOAA case number. Agency counsel will promptly forward the request for 
hearing to the Office of Administrative Law Judges.
    (f) Any denial, in whole or in part, of any request under this 
section that is based upon untimeliness will be in writing.
    (g) Agency counsel may, in his or her discretion, treat any 
communication from a respondent, a permit holder, or vessel owner as a 
request for a hearing under paragraph (e) of this section.



Sec. 904.103  Hearing and administrative review.

    (a) Any hearing request under Sec. 904.102(e) is governed by the 
hearing and review procedures set forth in subpart C.
    (b) In any hearing held in response to a request under Sec. 
904.102(e), the Administrative Law Judge (Judge) will render an initial 
decision. Any party to the hearing may seek the Administrator's review 
of the Judge's initial decision, subject to the provisions of subpart C.



Sec. 904.104  Final administrative decision.

    (a) If no request for hearing is timely filed as provided in Sec. 
904.102(e), the NOVA becomes effective as the final administrative 
decision and order of NOAA on the 30th day after service of the NOVA or 
on the last day of any delay period granted.
    (b) If a request for hearing is timely filed in accordance with 
Sec. 904.102(e), the date of the final administrative decision is as 
provided in subpart C.



Sec. 904.105  Payment of final assessment.

    (a) Respondent must make full payment of the civil penalty assessed 
within 30 days of the date upon which the assessment becomes effective 
as the final administrative decision and order of NOAA under Sec. 
904.104 or subpart C. Payment must be made by mailing or delivering to 
NOAA at the address specified in the NOVA a check or money order made 
payable in United States currency in the amount of the assessment to the 
``Treasurer of the United States,'' or as otherwise directed.
    (b) Upon any failure to pay the civil penalty assessed, NOAA may 
request the Justice Department to recover the amount assessed in any 
appropriate district court of the United States, or may act under Sec. 
904.106.



Sec. 904.106  Compromise of civil penalty.

    (a) NOAA, in its sole discretion, may compromise, modify, remit, or 
mitigate, with or without conditions, any civil penalty imposed, or 
which is subject to imposition, except as stated in paragraph (d) of 
this section.
    (b) The compromise authority of NOAA under this section is in 
addition to any similar authority provided in any applicable statute or 
regulation, and may be exercised either upon the initiative of NOAA or 
in response to a

[[Page 48]]

request by the alleged violator or other interested person. Any such 
request should be sent to Agency counsel at the address specified in the 
NOVA.
    (c) Neither the existence of the compromise authority of NOAA under 
this section nor NOAA's exercise thereof at any time changes the date 
upon which an assessment is final or payable.
    (d) Exception. NOAA will not compromise, modify, or remit a civil 
penalty imposed, or subject to imposition, under the Deep Seabed Hard 
Mineral Resources Act while an action to review or recover the penalty 
is pending in a court of the United States.



Sec. 904.107  Joint and several respondents.

    (a) A NOVA may assess a civil penalty against two or more 
respondents jointly and severally. Each respondent is liable for the 
entire penalty, but no more than the amount finally assessed may be 
collected from the respondents.
    (b) A hearing request by one respondent is considered a request by 
the other respondents. Agency counsel, having received a hearing request 
from one respondent, will send a copy of it to the other joint and 
several respondents in the case.
    (c) A decision by the Judge or the Administrator after a hearing 
requested by one joint and several respondent is binding on all parties 
and on all other joint and several respondents, whether or not they 
entered an appearance.



Sec. 904.108  Factors considered in assessing penalties.

    (a) Factors to be taken into account in assessing a penalty, 
depending upon the statute in question, may include the nature, 
circumstances, extent, and gravity of the alleged violation; the 
respondent's degree of culpability, any history of prior offenses, and 
ability to pay; and such other matters as justice may require. NOAA will 
take into account a respondent's ability to pay when assessing a civil 
penalty for a violation of any of the statutes NOAA administers.
    (b) NOAA may, in consideration of a respondent's ability to pay, 
increase or decrease a penalty from an amount that would otherwise be 
warranted by the other relevant factors. A penalty may be increased if a 
respondent's ability to pay is such that a higher penalty is necessary 
to deter future violations, or for commercial violators, to make a 
penalty more than a cost of doing business. A penalty may be decreased 
if the respondent establishes that he or she is unable to pay an 
otherwise appropriate penalty amount.
    (c) Except as provided in paragraph (g) of this section, if a 
respondent asserts that a penalty should be reduced because of an 
inability to pay, the respondent has the burden of proving such 
inability by providing verifiable, complete, and accurate financial 
information to NOAA. NOAA will not consider a respondent's inability to 
pay unless the respondent, upon request, submits such financial 
information as Agency counsel determines is adequate to evaluate the 
respondent's financial condition. Depending on the circumstances of the 
case, Agency counsel may require the respondent to complete a financial 
information request form, answer written interrogatories, or submit 
independent verification of his or her financial information. If the 
respondent does not submit the requested financial information, he or 
she will be presumed to have the ability to pay the penalty.
    (d) Financial information relevant to a respondent's ability to pay 
includes, but is not limited to, the value of respondent's cash and 
liquid assets, ability to borrow, net worth, liabilities, income, prior 
and anticipated profits, expected cash flow, and the respondent's 
ability to pay in installments over time. A respondent will be 
considered able to pay a penalty even if he or she must take such 
actions as pay in installments over time, borrow money, liquidate 
assets, or reorganize his or her business. NOAA's consideration of a 
respondent's ability to pay does not preclude an assessment of a penalty 
in an amount that would cause or contribute to the bankruptcy or other 
discontinuation of the respondent's business.
    (e) Financial information regarding respondent's ability to pay 
should be submitted to Agency counsel as soon after receipt of the NOVA 
as possible. If a respondent has requested a hearing on the offense 
alleged in the NOVA and

[[Page 49]]

wants his or her inability to pay considered in the initial decision of 
the Judge, verifiable financial information must be submitted to Agency 
counsel at least 15 days in advance of the hearing. In deciding whether 
to submit such information, the respondent should keep in mind that the 
Judge may assess de novo a civil penalty either greater or smaller than 
that assessed in the NOVA.
    (f) Issues regarding ability to pay will not be considered in an 
administrative review of an initial decision if the financial 
information was not previously presented by the respondent to the Judge 
at the hearing.
    (g) Whenever a statute requires NOAA to take into consideration a 
respondent's ability to pay when assessing a penalty, NOAA will take 
into consideration information available to it concerning a respondent's 
ability to pay. In such case, the NOVA will advise, in accordance with 
section 904.102 of this part, that respondent may seek to have the 
penalty amount modified by Agency counsel on the basis that he or she 
does not have the ability to pay the penalty assessed. A request to have 
the penalty amount modified on this basis must be made in accordance 
with Sec. 904.102 of this part and should be accompanied by supporting 
financial information. Agency counsel may request the respondent to 
submit such additional verifiable financial information as Agency 
counsel determines is necessary to evaluate the respondent's financial 
condition (such as by responding to a financial request form or written 
interrogatories, or by authorizing independent verification of 
respondent's financial condition). A respondent's failure to provide the 
requested information may serve as the basis for inferring that such 
information would not have supported the respondent's assertion of 
inability to pay the penalty assessed in the NOVA If the respondent has 
requested a hearing on the offense alleged in the NOVA, the Agency must 
submit information on the respondent's financial condition so that the 
Judge may consider that information, along with any other factors 
required to be considered, in the Judge's de novo assessment of a 
penalty. Agency counsel may obtain such financial information through 
discovery procedures under Sec. 904.240 of this part, or otherwise. A 
respondent's refusal or failure to respond to such discovery requests 
may serve as the basis for inferring that such information would have 
been adverse to any claim by respondent of inability to pay the assessed 
penalty, or result in respondent being barred from asserting financial 
hardship.

[52 FR 10325, Mar. 31, 1987, as amended at 58 FR 58485, Nov. 2, 1993]



                 Subpart C_Hearing and Appeal Procedures

                                 General



Sec. 904.200  Scope and applicability.

    (a) This subpart sets forth the procedures governing the conduct of 
hearings and the issuance of initial and final decisions of NOAA in 
administrative proceedings involving alleged violations of the laws 
cited in Sec. 904.1(c) and regulations implementing these laws, 
including civil penalty assessments and permit sanctions and denials. By 
separate regulation, these rules may be applied to other proceedings.
    (b) Subject to the administrative direction of the Chief 
Administrative Law Judge, each Administrative Law Judge (Judge) assigned 
by the Chief Administrative Law Judge is delegated authority to make the 
initial or final decision of the Agency (whichever is made appropriate 
by regulation outside this subpart) in proceedings subject to the 
provisions of this subpart, and to take actions to promote the efficient 
and fair conduct of hearings as set out in this subpart. The Judge has 
no authority to rule on challenges to the validity of regulations 
promulgated by the Agency.
    (c) This subpart is not an independent basis for claiming the right 
to a hearing, but instead prescribes procedures for the conduct of 
hearings, the right to which is provided by other authority.



Sec. 904.201  Case docketing.

    Each request for hearing promptly upon its receipt for filing in the 
Office of Administrative Law Judges will be

[[Page 50]]

assigned a docket number and thereafter the proceeding will be referred 
to by such number. Written notice of the assignment of hearing to a 
Judge will promptly be given to the parties.



Sec. 904.202  Filing of documents.

    (a) Pleadings, papers, and other documents in the proceeding must be 
filed in conformance with Sec. 904.3 directly with the Judge, with 
copies served on all other parties. Pleadings, papers, and other 
documents pertaining to administrative review under Sec. 904.273 must 
be filed with the Administrator, with copies served on all other 
parties.
    (b) Unless otherwise ordered by the Judge, discovery requests and 
answers will be served on the opposing party and need not be filed with 
the Judge.



Sec. 904.203  Appearances.

    A party may appear in person or by or with counsel or other 
representative.



Sec. 904.204  Duties and powers of Judge.

    The Judge has all powers and responsibilities necessary to preside 
over the parties and the proceeding, to hold prehearing conferences, to 
conduct the hearing, and to make the decision in accordance with these 
regulations and 5 U.S.C. 554 through 557, including, but not limited to, 
the authority and duty to do the following:
    (a) Rule on a request to participate as a party in the proceeding by 
allowing, denying, or limiting such participation (such ruling will 
consider views of the parties and be based on whether the requester 
could be directly and adversely affected by the decision and whether the 
requester can be expected to contribute materially to the disposition of 
the proceedings);
    (b) Schedule the time, place, and manner of conducting the pre-
hearing conference or hearing, continue the hearing from day to day, 
adjourn the hearing to a later date or a different place, and reopen the 
hearing at any time before issuance of the decision, all in the Judge's 
discretion, having due regard for the convenience and necessity of the 
parties and witnesses;
    (c) Schedule and regulate the course of the hearing and the conduct 
of the participants and the media, including the power to close the 
hearings in the interests of justice; seal the record from public 
scrutiny to protect privileged information, trade secrets, and 
confidential commercial or financial information; and strike testimony 
of a witness who refuses to answer a question ruled to be proper;
    (d) Administer oaths and affirmations to witnesses;
    (e) Rule on discovery requests, establish discovery schedules, and, 
whenever the ends of justice would thereby be served, take or cause 
depositions or interrogatories to be taken and issue protective orders 
under Sec. 904.240(d);
    (f) Rule on motions, procedural requests, and similar matters;
    (g) Receive, exclude, limit, and otherwise rule on offers of proof 
and evidence;
    (h) Examine and cross-examine witnesses and introduce into the 
record on the Judge's own initiative documentary or other evidence;
    (i) Rule on requests for appearance of witnesses or production of 
documents and take appropriate action upon failure of a party to effect 
the appearance or production of a witness or document ruled relevant and 
necessary to the proceeding; as authorized by law, issue subpoenas for 
the appearance of witnesses or production of documents;
    (j) Require a party or witness at any time during the proceeding to 
state his or her position concerning any issue or his or her theory in 
support of such position;
    (k) Take official notice of any matter not appearing in evidence 
that is among traditional matters of judicial notice; or of technical or 
scientific facts within the general or specialized knowledge of the 
Department of Commerce as an expert body; or of a non-privileged 
document required by law or regulation to be filed with or published by 
a duly constituted government body; or of any reasonably available 
public document; Provided, That the parties will be advised of the 
matter noticed and given reasonable opportunity to show the contrary;
    (l) For stated good reason(s), assess a penalty de novo without 
being bound by the amount assessed in the NOVA;

[[Page 51]]

    (m) Prepare and submit a decision or other appropriate disposition 
document and certify the record;
    (n) Award attorney fees and expenses as provided by applicable 
statute or regulation; and
    (o) Grant preliminary or interim relief.



Sec. 904.205  Disqualification of Judge.

    (a) The Judge may withdraw voluntarily from a particular case when 
the Judge deems himself/herself disqualified.
    (b) A party may in good faith request the Judge to withdraw on the 
grounds of personal bias or other disqualification. The party seeking 
the disqualification must file with the Judge a timely affidavit or 
statement setting forth in detail the facts alleged to constitute the 
grounds for disqualification, and the Judge will rule on the matter. If 
the Judge rules against disqualification, the Judge will place all 
matters relating to such claims of disqualification in the record.



Sec. 904.206  Pleadings, motions, and service.

    (a) The original of all pleadings and documents must be filed with 
the Office of Administrative Law Judges and a copy served upon each 
party. All pleadings or documents when submitted for filing must show 
that service has been made upon all parties. Such service must be made 
in accordance with Sec. 904.3(a).
    (b) Pleadings and documents to be filed may be reproduced by 
printing or any other process, provided the copies are clear and 
legible; must be dated, the original signed in ink or as otherwise 
verified for electronic mail; and must show the docket description and 
title of the proceeding, and the title, if any, address, and telephone 
number of the signatory. If typewritten, the impression may be on only 
one side of the paper and must be double spaced, pica type, if possible, 
except that quotations may be single spaced and indented.
    (c) Motions must normally be made in writing and must state clearly 
and concisely the purpose of and relief sought by the motion, the 
statutory or principal authority relied upon, and the facts claimed to 
constitute the grounds requiring the relief requested.
    (d) Unless otherwise provided, the answer to any written motion, 
pleading, or petition must be served within 20 days after date of 
service thereof. If a motion states that opposing counsel has no 
objection, it may be acted upon as soon as practicable, without awaiting 
the expiration of the 20-day period. Answers must be in writing, unless 
made in response to an oral motion made at a hearing; must fully and 
completely advise the parties and the Judge concerning the nature of the 
opposition; must admit or deny specifically and in detail each material 
allegation of the pleading answered; and must state clearly and 
concisely the facts and matters of law relied upon. Any new matter 
raised in an answer will be deemed controverted.
    (e) A response to an answer will be called a reply. A short reply 
restricted to new matters may be served within 15 days of service of an 
answer. The Judge has discretion to dispense with the reply. No further 
responses are permitted.



Sec. 904.207  Amendment of pleadings or record.

    The Judge, upon his or her own initiative or upon application by a 
party, may order a party to make a more definite statement of any 
pleading. The Judge has discretion to permit either party to amend its 
pleadings upon conditions fair to both parties. Harmless errors may be 
corrected (by deletion or substitution of words or figures), and broad 
discretion will be exercised by the Judge in permitting such 
corrections.



Sec. 904.208  Extensions of time.

    If appropriate and justified, and as provided in Sec. 904.3(e), the 
Judge may grant any request for an extension of time. Requests for 
extensions of time must, except in extraordinary circumstances, be made 
in writing.



Sec. 904.209  Expedited proceedings.

    In the interests of justice and administrative efficiency, the 
Judge, on his or her own initiative or upon the application of any 
party, may expedite the

[[Page 52]]

proceeding. A motion of a party to expedite the proceeding may, in the 
discretion of the Judge, be made orally or in writing with concurrent 
actual notice to all parties. If a motion for an expedited hearing is 
granted, the hearing on the merits may not be scheduled with less than 
three days' notice, unless all parties consent to an earlier hearing.



Sec. 904.210  Summary decision.

    The Judge may render a summary decision disposing of all or part of 
the proceeding if:
    (a) Jointly requested by every party to the proceeding; and
    (b) There is no genuine issue as to any material fact and a party is 
entitled to summary decision as a matter of law.

[61 FR 54731, Oct. 22, 1996]



Sec. 904.211  Failure to appear.

    (a) If a party fails to appear after proper service of notice, the 
hearing may proceed. A notation of failure to appear will be made in the 
record, and the hearing may be conducted with the parties then present, 
or may be terminated if the Judge determines that proceeding with the 
hearing will not aid the decisional process.
    (b) The Judge will place in the record all the facts concerning the 
issuance and service of the notice of time and place of hearing.
    (c) The Judge may deem a failure of a party to appear after proper 
notice a waiver of any right to a hearing and consent to the making of a 
decision on the record.



Sec. 904.212  Failure to prosecute or defend.

    Whenever the record discloses the failure of either party to file 
documents, respond to orders or notices from the Judge, or otherwise 
indicates an intention on the part of either party not to participate 
further in the proceeding, the Judge may issue any order, except 
dismissal, that is necessary for the just and expeditious resolution of 
the case.

[61 FR 54731, Oct. 22, 1996]



Sec. 904.213  Settlements.

    If settlement is reached before the Judge has certified the record, 
the Judge may require the submission of a copy of the settlement 
agreement to assure that the Judge's consideration of the case is 
completed and to order the matter dismissed on the basis of the 
agreement.



Sec. 904.214  Stipulations.

    The parties may, by stipulation, agree upon any matters involved in 
the proceeding and include such stipulations in the record with the 
consent of the Judge. Written stipulations must be signed and served 
upon all parties.



Sec. 904.215  Consolidation.

    The Judge may order two or more proceedings that involve 
substantially the same parties or the same issues consolidated and/or 
heard together.



Sec. 904.216  Prehearing conferences.

    (a) Prior to any hearing or at other time deemed appropriate, the 
Judge may, upon his or her own initiative, or upon the application of 
any party, arrange a telephone conference and, where appropriate, record 
such telephone conference, or direct the parties to appear for a 
conference to consider:
    (1) Simplification or clarification of the issues or settlement of 
the case by consent;
    (2) The possibility of obtaining stipulations, admissions, 
agreements, and rulings on admissibility of documents, understandings on 
matters already of record, or similar agreements that will avoid 
unnecessary proof;
    (3) Agreements and rulings to facilitate the discovery process;
    (4) Limitation of the number of expert witnesses or other avoidance 
of cumulative evidence;
    (5) The procedure, course, and conduct of the hearing;
    (6) The distribution to the parties and the Judge prior to the 
hearing of written testimony and exhibits in order to expedite the 
hearing;
    (7) Such other matters as may aid in the disposition of the 
proceeding.
    (b) The Judge in his or her discretion may issue an order showing 
the matters disposed of in such conference.

[[Page 53]]

                                Discovery



Sec. 904.240  Discovery generally.

    (a) Preliminary position on issues and procedures. Prior to hearing 
the Judge will ordinarily require from the parties a written submission 
stating their preliminary positions on legal and factual issues and 
procedures, listing potential witnesses and summarizing their testimony, 
and listing exhibits. Except for information regarding a respondent's 
ability to pay an assessed penalty, this document, which must be served 
on all other parties, will normally obviate the need for further 
discovery. Failure to provide the requested information may result in 
the exclusion of witnesses and/or exhibits at the hearing. See also 
Sec. 904.212. A party has the affirmative obligation to supplement the 
submission as new information becomes known to the party.
    (b) Additional discovery. Upon written motion by a party, the Judge 
may allow additional discovery only upon a showing of relevance, need, 
and reasonable scope of the evidence sought, by one or more of the 
following methods: deposition upon oral examination or written 
questions, written interrogatories, production of documents or things 
for inspection and other purposes, and requests for admission. With 
respect to information regarding a respondent's ability to pay an 
assessed penalty, the Agency may serve any discovery request (i.e., 
deposition, interrogatories, admissions, production of documents) 
directly upon the respondent without first seeking an order from the 
Judge.
    (c) Time limits. Motions for depositions, interrogatories, 
admissions, or production of documents or things may not be filed within 
20 days of hearing except on order of the Judge for good cause shown. 
Oppositions to a discovery motion must be filed within 10 days of 
service unless otherwise provided in these rules or by the Judge.
    (d) Oppositions. Oppositions to any discovery motion or portion 
thereof must state with particularity the grounds relied upon. Failure 
to object in a timely fashion constitutes waiver of the objection.
    (e) Scope of discovery. The Judge may limit the scope, subject 
matter, method, time, or place of discovery. Unless otherwise limited by 
order of the Judge, the scope of discovery is as follows:
    (1) In general. As allowed under paragraph (b) of this section, 
parties may obtain discovery of any matter, not privileged, that is 
relevant to the allegations of the charging document, to the proposed 
relief, or to the defenses of any respondent, or that appears reasonably 
calculated to lead to the discovery of admissible evidence.
    (2) Hearing preparation: Materials. A party may not obtain discovery 
of materials prepared in anticipation of litigation except upon a 
showing that the party seeking discovery has a substantial need for the 
materials in preparation of his or her case, and is unable without undue 
hardship to obtain the substantial equivalent of the materials by other 
means. Mental impressions, conclusions, opinions, or legal theories of 
an attorney or other representative of a party are not discoverable 
under this section.
    (3) Hearing preparation: Experts. A party may discover the substance 
of the facts and opinions to which an expert witness is expected to 
testify and a summary of the grounds for each opinion. A party may also 
discover facts known or opinions held by an expert consulted by another 
party in anticipation of litigation but not expected to be called as a 
witness upon a showing of exceptional circumstances making it 
impracticable for the party seeking discovery to obtain such facts or 
opinions by other means.
    (f) Failure to comply. If a party fails to comply with any subpoena 
or order concerning discovery, the Judge may, in the interest of 
justice:
    (1) Infer that the admission, testimony, documents, or other 
evidence would have been adverse to the party;
    (2) Rule that the matter or matters covered by the order or subpoena 
are established adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely upon, in support of any claim or defense, testimony by such party, 
officer, or agent, or the documents or other evidence;
    (4) Rule that the party may not be heard to object to introduction 
and use

[[Page 54]]

of secondary evidence to show what the withheld admission, testimony, 
documents, or other evidence would have shown;
    (5) Strike part or all of a pleading (except a request for hearing), 
a motion or other submission by the party, concerning the matter or 
matters covered by the order or subpoena.

[52 FR 10325, Mar. 31, 1987, as amended at 58 FR 58486, Nov. 2, 1993; 61 
FR 54731, Oct. 22, 1996]



Sec. 904.241  Depositions.

    (a) Notice. If a motion for deposition is granted, and unless 
otherwise ordered by the Judge, the party taking the deposition of any 
person must serve on that person, and each other party, written notice 
at least 15 days before the deposition would be taken (or 25 days if the 
deposition is to be taken outside the United States). The notice must 
state the name and address of each person to be examined, the time and 
place where the examination would be held, the name and mailing address 
of the person before whom the deposition would be taken, and the subject 
matter about which each person would be examined.
    (b) Taking the deposition. Depositions may be taken before any 
officer authorized to administer oaths by the law of the United States 
or of the place where the examination is to be held, or before a person 
appointed by the Judge. Each deponent will be sworn, and any party has 
the right to cross-examine. Objections are not waived by failure to make 
them during the deposition unless the ground of the objection is one 
that might have been removed if presented at that time. The deposition 
will be recorded, transcribed, signed by the deponent, unless waived, 
and certified by the officer before whom the deposition was taken. All 
transcription costs associated with the testimony of a deponent will be 
borne by the party seeking the deposition. Each party will bear its own 
expense for any copies of the transcript. See also Sec. 904.252(c).
    (c) Alternative deposition methods. By order of the Judge, the 
parties may use other methods of deposing parties or witnesses, such as 
telephonic depositions or depositions upon written questions. Objections 
to the form of written questions are waived unless made within five days 
of service of the questions.
    (d) Use of depositions at hearing. (1) At hearing any part or all of 
a deposition, so far as admissible under the rules of evidence applied 
as though the witness were then testifying, may be used against any 
party who was present or represented at the taking of the deposition, or 
had reasonable notice.
    (2) The deposition of a witness may be used by any party for any 
purpose if the Judge finds:
    (i) That the witness is unable to attend due to death, age, health, 
imprisonment, disappearance or distance from the hearing site; or
    (ii) That exceptional circumstances make it desirable, in the 
interest of justice, to allow the deposition to be used.
    (3) If only part of a deposition is offered in evidence by a party, 
any party may introduce any other part.



Sec. 904.242  Interrogatories to parties.

    (a) Use at hearing. If ordered by the Judge, any party may serve 
upon any other party written interrogatories. Answers may be used at 
hearing in the same manner as depositions under Sec. 904.241(d).
    (b) Answers and objections. Answers and objections must be made in 
writing under oath, and reasons for the objections must be stated. 
Answers must be signed by the person making them and objections by the 
attorney making them. Unless otherwise ordered, answers and objections 
must be served on all parties within 20 days after service of the 
interrogatories.
    (c) Option to produce records. Where the answer to an interrogatory 
may be ascertained from the records of the party upon whom the 
interrogatory is served, it is sufficent to specify such records and 
afford the party serving the interrogatories an opportunity to examine 
them.



Sec. 904.243  Admissions.

    (a) Request. If ordered by the Judge, any party may serve on any 
other party a written request for admission of the truth of any relevant 
matter of fact set forth in the request, including the genuineness of 
any relevant document described in the request. Copies

[[Page 55]]

of documents must be served with the request. Each matter of which an 
admission is requested must be separately stated.
    (b) Response. Each matter is admitted unless a written answer or 
objection is served within 20 days of service of the request, or within 
such other time as the Judge may allow. The answering party must 
specifically admit or deny each matter, or state the reasons why he or 
she cannot truthfully admit or deny it.
    (c) Effect of admission. Any matter admitted is conclusively 
established unless the Judge on motion permits withdrawal or amendment 
of it for good cause shown.



Sec. 904.244  Production of documents and inspection.

    (a) Scope. If ordered by the Judge, any party may serve on any other 
party a request to produce a copy of any document or specifically 
designated category of documents, or to inspect, copy, photograph, or 
test any such document or tangible thing in the possession, custody, or 
control of the party upon whom the request is served.
    (b) Procedure. The request must set forth:
    (1) The items to be produced or inspected by item or by category, 
described with reasonable particularity, and
    (2) A reasonable time, place, and manner for inspection. The party 
upon whom the request is served must serve within 20 days a response or 
objections, which must address each item or category and include copies 
of the requested documents.



Sec. 904.245  Subpoenas.

    (a) In general. Subpoenas for the attendance and testimony of 
witnesses and the production of documentary evidence for the purpose of 
discovery or hearing may be issued as authorized by the statute under 
which the proceeding is conducted.
    (b) Timing. Applications for subpoenas must be submitted at least 10 
days before the scheduled hearing or deposition.
    (c) Motions to quash. Any person to whom a subpoena is directed or 
any party may move to quash or limit the subpoena within 10 days of its 
service or on or before the time specified for compliance, whichever is 
shorter. The Judge may quash or modify the subpoena.
    (d) Enforcement. In case of disobedience to a subpoena, NOAA may 
request the Justice Department to invoke the aid of any court of the 
United States in requiring the attendance and testimony of witnesses and 
the production of documentary evidence.

                                Hearings



Sec. 904.250  Notice of time and place of hearing.

    (a) The Judge will promptly serve on the parties notice of the time 
and place of hearing. The hearing will not, except in extraordinary 
circumstances, be held less than 20 days after service of the notice of 
hearing.
    (b) In setting a place for hearing, the Judge will consider the 
convenience and costs of the parties, including but not limited to 
transportation costs and living expenses of witnesses, attorneys, and 
the Judge; place of residence of the respondent(s); scheduling of other 
hearings within the same region; and availability of facilities and 
court reporters.
    (c) Upon the consent of each party to the proceeding, the Judge may 
order that all or part of a proceeding be heard on submissions or 
affidavits if it appears that substantially all important issues may be 
resolved by means of written materials and that efficient disposition of 
the proceeding can be made without an in-person hearing. For good cause, 
the Judge may, in his sole discretion, order that the testimony of 
witnesses be taken by telephone.

[52 FR 10325, Mar. 31, 1987, as amended at 61 FR 54731, Oct. 22, 1996]



Sec. 904.251  Evidence.

    (a) At the hearing, every party has the right to present oral or 
documentary evidence in support of its case or defense, to submit 
rebuttal evidence, and to conduct such cross-examination as may be 
required for a full and true disclosure of the facts. This paragraph may 
not be interpreted to diminish the powers and duties of the Judge under 
this subpart.

[[Page 56]]

    (b) All evidence that is relevant, material, reliable, and 
probative, and not unduly repetitious or cumulative, is admissible at 
the hearing. Formal rules of evidence do not necessarily apply to the 
proceedings, and hearsay evidence is not inadmissible as such.
    (c) Formal exceptions to the rulings of the Judge are unnecessary. 
It is sufficient that a party, at the time of the ruling, makes known 
the action that it desires the Judge to take or its objection to an 
action taken, and the grounds therefor. Rulings on each objection must 
appear in the record.
    (d) In any case involving a charged violation of law in which the 
party charged has admitted an allegation, evidence may be taken to 
establish matters of aggravation or mitigation.
    (e) Exhibits in a foreign language must be translated into English 
before such exhibits are offered into evidence. Copies of both the 
untranslated and translated versions of the proposed exhibits, along 
with the name of the translator, must be served on the opposing party at 
least 10 days prior to the hearing unless the parties otherwise agree.
    (f) A party who intends to raise an issue concerning the law of a 
foreign country must give reasonable notice. The Judge, in determining 
foreign law, may consider any relevant material or source, whether or 
not submitted by a party.



Sec. 904.252  Witnesses.

    (a) Any witness not a party may have personal counsel to advise him 
or her as to his or her rights, but such counsel may not otherwise 
participate in the hearing.
    (b) Witnesses who are not parties may be excluded from the hearing 
room prior to the taking of their testimony.
    (c) Witnesses other than NOAA employees subpoenaed under these 
rules, including Sec. 904.245, will be paid the same fees and mileage 
that are paid witnesses in the courts of the United States, and 
witnesses whose depositions are taken are entitled to the same fees as 
are paid for like services in the courts of the United States. Fees and 
any other related expenses for NOAA emoloyees as authorized by the NOAA 
travel handbook will be paid by the party at whose instance the witness 
appears or the deposition is taken.
    (d) If a witness is expected to testify in a language other than the 
English language, the party sponsoring the witness must provide for the 
services of an interpreter and advise opposing counsel 10 days prior to 
the hearing concerning the extent to which interpreters are to be used. 
When available, the interpreter must be court certified under 28 U.S.C. 
1827.



Sec. 904.253  Interlocutory appeals.

    (a) At the request of a party or on the Judge's own initiative, the 
Judge may certify to the Administrator for review a ruling that does not 
finally dispose of the proceeding, if the Judge determines that an 
immediate appeal therefrom may materially advance the ultimate 
disposition of the matter.
    (b) Upon certification by the Judge of the interlocutory ruling for 
review, the parties have 10 days to serve any briefs associated with the 
certification. The Administrator will promptly decide the matter.
    (c) No interlocutory appeal lies as to any ruling not certified by 
the Judge.



Sec. 904.254  Ex parte communications.

    (a) Except to the extent required for disposition of ex parte 
matters as authorized by law, after issuance of a NOVA, NOPS, or NIDP 
and until the final decision of the Agency is effective under these 
regulations, no ex parte communication relevant to the merits of the 
proceeding may be made, or knowingly caused to be made:
    (1) By the Judge or by an Agency employee involved in the decisional 
process of the proceeding to any interested person outside the 
Department of Commerce or to any Agency employee involved in the 
investigation or prosecution of the case;
    (2) By any Agency employee involved in the investigation or 
prosecution of the case to the Judge or to any Agency employee involved 
in the decisional process of the proceeding; or
    (3) By an interested person outside the Department of Commerce to 
the Judge or to any Agency employee involved in the decisional process 
of the proceeding.

[[Page 57]]

    (b) An Agency employee or Judge who makes or receives a prohibited 
communication must place in the hearing record the communication and any 
response thereto, and the Judge or Administrator, as appropriate, may 
take action consistent with these rules, the applicable statute, and 5 
U.S.C. 556(d) and 557(d).
    (c) Agency counsel may not participate or advise in the decision of 
the Judge or the Administrator's review thereof except as witness or 
counsel in the proceeding in accordance with this subpart. In addition, 
the Judge may not consult any person or party on a fact in issue unless 
notice and opportunity for all parties to participate is provided.
    (d)(1) Paragraphs (a) and (b) of this section do not apply to 
communications concerning national defense or foreign policy matters. 
Such ex parte communications to or from an Agency employee on national 
defense or foreign policy matters, or from employees of the United 
States Government involving intergovernmental negotiations, are allowed 
if the communicator's position with respect to those matters cannot 
otherwise be fairly presented for reasons of foreign policy or national 
defense.
    (2) Ex parte communications subject to this paragraph will be made a 
part of the record to the extent that they do not include information 
classified under an Executive Order. Classified information will be 
included in a classified portion of the record that will be available 
for review only in accordance with applicable law.

                              Post-Hearing



Sec. 904.260  Official transcript.

    (a) The official transcript of testimony taken, together with any 
exhibits, briefs, or memoranda of law filed therewith, will be filed 
with the Office of Administrative Law Judges. Transcripts of testimony 
will be available in any proceeding and will be supplied to the parties 
upon the payment of fees at the rate provided in the agreement with the 
reporter.
    (b) The Judge may determine whether ``ordinary copy,'' ``daily 
copy,'' or other copy (as those terms are defined by contract) will be 
necessary and required for the proper conduct of the proceeding.



Sec. 904.261  Post-hearing briefs.

    (a) Unless a different schedule is established in the discretion of 
the Judge, including the procedure in paragraph (b) of this section, the 
parties may file proposed findings of fact and conclusions of law, 
together with supporting briefs, within 30 calendar days from service of 
the hearing transcript. Reply briefs may be submitted within 15 days 
after service of the proposed findings and conclusions to which they 
respond, unless the Judge sets a different schedule.
    (b) In cases involving few parties, limited issues, and short 
hearings, the Judge may require that any proposed findings and 
conclusions and reasons in support be presented orally at the close of 
the hearing. In such case, the Judge will advise the parties in advance 
of hearing.



Sec. 904.262  Documents, copies and exhibits.

    (a) If original documents have been received in evidence, a true 
copy thereof, or of such part as may be material or relevant, may be 
substituted in lieu of the original during the hearing or at its 
conclusion. The Judge may, in his or her discretion, and after notice to 
the other parties, allow the withdrawal of original exhibits or any part 
thereof by the party entitled thereto for the purpose of substituting 
copies. The substitution of true copies of exhibits, or any part 
thereof, may be required by the Judge in his or her discretion as a 
condition of granting permission for withdrawal of the original.
    (b) Photographs may be substituted for physical evidence in the 
discretion of the Judge.
    (c) Except upon the Judge's order, or upon request by a party, 
physical evidence will be retained after the hearing by the authorized 
enforcement officer responsible for the case.

                                Decision



Sec. 904.270  Record of decision.

    (a) The exclusive record of decision consists of the official 
transcript of

[[Page 58]]

testimony and proceedings; exhibits admitted into evidence; briefs, 
pleadings, and other documents filed in the proceeding; and descriptions 
or copies of matters, facts, or documents officially noticed in the 
proceeding. Any other exhibits and records of any ex parte 
communications will accompany the record of decision.
    (b) The Judge will arrange for appropriate storage of the records of 
any proceeding, which place of storage need not necessarily be located 
physically within the Office of Administrative Law Judges.
    (c) Exhibits offered after the close of a hearing will not be 
admitted, unless the Judge specifically keeps open or reopens the record 
to admit them.



Sec. 904.271  Decision.

    (a) After expiration of the period provided in Sec. 904.261 for the 
filing of reply briefs (unless the parties have waived briefs or 
presented proposed findings orally at the hearing), the Judge will 
render a written decision upon the record in the case, setting forth:
    (1) Findings and conclusions, and the reasons or basis therefor, on 
all material issues of fact, law, or discretion presented on the record, 
and the ruling on any proposed findings or conclusions presented by the 
parties;
    (2) A statement of any facts noticed or relied upon in the decision; 
and
    (3) Such other matters as the Judge considers appropriate.
    (b) If the parties have presented oral proposed findings at the 
hearing or have waived presentation of proposed findings, the Judge may 
at the termination of the hearing announce the decision, subject to 
later issuance of a written decision under paragraph (a) of this 
section. The Judge may in such case direct the prevailing party to 
prepare proposed findings, conclusions, and an order.
    (c) The Judge will serve the written decision on each of the parties 
by registered or certified mail, return receipt requested, and will 
promptly certify to the Administrator the record, including the original 
copy of the decision, as complete and accurate.
    (d) Unless the Judge orders a stay under Sec. 904.272, or unless a 
petition for discretionary review is filed or the Administrator issues 
an order to review upon his/her own initiative, an initial decision 
becomes effective as the final administrative decision of NOAA 30 days 
after service, unless otherwise provided by statute or regulations.



Sec. 904.272  Petition for reconsideration.

    Unless an order of the Judge specifically provides otherwise, any 
party may file a petition for reconsideration of an order or decision 
issued by the Judge. Such petitions must state the matter claimed to 
have been erroneously decided and the alleged errors or relief sought 
must be specified with particularity. Petitions must be filed within 20 
days after the service of such order or decision. Neither the filing nor 
the granting of a petition for reconsideration may operate as a stay of 
an order or decision or its effectiveness date (including for purposes 
of Sec. 904.273) unless specifically so ordered by the Judge. Within 15 
days after the petition is filed, any party to the proceeding may file 
an answer in support or in opposition. In the Judge's discretion, the 
hearing may be reopened to consider matters raised in a petition that 
could not reasonably have been foreseen prior to issuance of the order 
or decision.



Sec. 904.273  Administrative review of decision.

    (a) Subject to the requirements of this section, any party may 
petition for review of an initial decision of the Judge within 30 days 
after the date the decision is served. The petition shall be addressed 
to the Administrator and filed at the following address: Administrator, 
National Oceanic and Atmospheric Administration, Department of Commerce, 
Room 5128, 14th Street and Constitution Avenue NW., Washington, DC 
20230.
    (b) Review by the Administrator of an initial decision is 
discretionary and is not a matter of right. A petition for review nust 
be served upon all parties. If a party files a timely petition for 
discretionary review, or action to review is taken by the Administrator 
upon his or her own initiative, the effectiveness of the initial 
decision is stayed until further order of the Administrator.

[[Page 59]]

    (c) Petitions for discretionary review may be filed only upon one or 
more of the following grounds:
    (1) A finding of a material fact is clearly erroneous based upon the 
evidence in the record;
    (2) A necessary legal conclusion is contrary to law or precedent:
    (3) A substantial and important question of law, policy, or 
discretion is involved (including the amount of the civil penalty); or
    (4) A prejudicial procedural error has occurred.
    (d) Each issue must be separately numbered, concisely stated, and 
supported by detailed citations to the record, statutes, regulations, 
and principal authorities. Issues of fact or law not argued before the 
Judge may not be raised on review unless they were raised for the first 
time in the initial decision, or could not reasonably have been foreseen 
and raised by the parties during the hearing. The Administrator will not 
consider new or additional evidence that is not a part of the record 
before the Judge.
    (e) No oral argument on petitions for discretionary review will be 
allowed.
    (f) Within 30 days after service of a petition for discretionary 
review, any party may file and serve an answer in support or in 
opposition. No further replies are allowed.
    (g) If the Administrator declines to exercise discretionary review, 
such order will be served on all parties personally or by registered or 
certified mail, return receipt requested, and will specify the date upon 
which the Judge's decision will become effective as the final decision 
of NOAA. The Administrator need not give reasons for declining review.
    (h) If the Administrator grants a petition for discretionary review, 
he or she will issue an order specifying issues to be briefed and a 
briefing schedule. Such issues may constitute one or more of the issues 
raised in the petition for discretionary review and/or matters the 
Administrator wishes to review on his or her own initiative. Only those 
issues specified in the order may be argued in the briefs and considered 
by the Administrator. No oral argument will be permitted.
    (i) After expiration of the period for filing briefs under paragraph 
(h) of this section, the Administrator will render a written decision on 
the issues under review. The Administrator will transmit the decision to 
each of the parties by registered or certified mail, return receipt 
requested. The Administrator's decision becomes the final administrative 
decision on the date it is served, unless otherwise provided in the 
decision.



                 Subpart D_Permit Sanctions and Denials

                                 General



Sec. 904.300  Scope and applicability.

    (a) This subpart sets forth policies and procedures governing the 
suspension, revocation, modification, and denial of permits for reasons 
relating to enforcement of the statutes cited in Sec. 904.1(c), except 
for the statutes listed in paragraph (b) of this section. These reasons 
include nonpayment of civil penalties or criminal fines, and violations 
of statutes, regulations, or permit conditions. Nothing in this subpart 
precludes sanction or denial of a permit for reasons not relating to 
enforcement. As appropriate, and unless otherwise specified in this 
subpart, the provisions of Subparts A, B, and C apply to this subpart.
    (b) Regulations governing sanctions and denials of permits issued 
under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et 
seq.) appear at 15 CFR part 970; under the Ocean Thermal Energy 
Conversion Act of 1980 (42 U.S.C. 9101 et seq.), at 15 CFR part 981.



Sec. 904.301  Bases for sanctions or denials.

    (a) Unless otherwise specified in a settlement agreement, or 
otherwise provided in this subpart, NOAA may take action under this 
subpart with respect to any permit issued under the statutes cited in 
Sec. 904.1(c). The bases for an action to sanction or deny a permit are 
as follows:
    (1) The commission of any offense prohibited by any statute 
administered by NOAA, including violation of any

[[Page 60]]

regulation promulgated or permit condition or restriction prescribed 
thereunder, by the permit holder or with the use of a permitted vessel;
    (2) The failure to pay a civil penalty assessed under subparts B and 
C of this part; or
    (3) The failure to pay a criminal fine imposed or to satisfy any 
other liability incurred in a judicial proceeding under any of the 
statutes administered by NOAA.
    (b) A sanction may be imposed or a permit denied under this subpart 
with respect to the particular permit pertaining to the offense or 
nonpayment, and may also be applied to any NOAA permit held or sought by 
the permit holder, including permits for other activities or for other 
vessels. Examples of the application of this policy are the following:
    (1) NOAA suspends Vessel A's fishing permit for nonpayment of a 
civil penalty pertaining to Vessel A. The owner of Vessel A buys Vessel 
B and applies for a permit for Vessel B to participate in the same or a 
different fishery. NOAA may withhold that permit until the sanction 
against vessel A is lifted.
    (2) NOAA revokes a Marine Mammal Protection Act permit for violation 
of its conditions. The permit holder subsequently applies for a permit 
under the Endangered Species Act. NOAA may deny the ESA application.
    (3) Captain X, an officer in Country Y's fishing fleet, is found 
guilty of assaulting an enforcement officer. NOAA may impose a condition 
on the permits of Country Y's vessels that they may not fish in the 
fishery conservation zone with Captain X aboard. (See Sec. 904.320(c).)
    (c) Sanction not extinguished by sale. [Reserved]



Sec. 904.302  Notice of permit sanction (NOPS).

    (a) A NOPS will be served personally or by registered or certified 
mail, return receipt requested, on the permit holder. When a foreign 
fishing vessel is involved, service will be made on the agent authorized 
to receive and respond to any legal process for vessels of that country.
    (b) The NOPS will set forth the sanction to be imposed, the bases 
for the sanction, and any opportunity for a hearing. It will state the 
effective date of the sanction, which will ordinarily not be earlier 
than 30 calendar days after the date of receipt of the NOPS (see Sec. 
904.322).
    (c) Upon demand by an authorized enforcement officer, a permit 
holder must surrender a permit against which a sanction has taken 
effect. The effectiveness of the sanction, however, does not depend on 
surrender of the permit.



Sec. 904.303  Notice of intent to deny permit (NIDP).

    (a) NOAA may issue an NIDP if the applicant has been charged with a 
violation of a statute, regulation, or permit administered by NOAA.
    (b) The NIDP will set forth the basis for its issuance and any 
opportunity for a hearing, and will be served in accordance with Sec. 
904.302(a).
    (c) NOAA will not refund any fee(s) submitted with a permit 
application if an NIDP is issued.
    (d) An NIDP may be issued in conjunction with or independent of a 
NOPS. Nothing in this section should be interpreted to preclude NOAA 
from initiating a permit sanction action following issuance of the 
permit, or from withholding a permit under Sec. 904.310(c) or Sec. 
904.320.



Sec. 904.304  Opportunity for hearing.

    (a) Except as provided in paragraph (b) of this section, the 
recipient of a NOPS or NIDP will be provided an opportunity for a 
hearing. The hearing may be combined with any other hearing under this 
part.
    (b) There will be no opportunity for a hearing if, with respect to 
the violation that forms the basis for the NOPS or NIDP, the permit 
holder had a previous opportunity to participate as a party in a 
judicial or administrative hearing, whether or not the permit holder did 
participate, and whether or not such a hearing was held.
    (c) If entitled to a hearing under this section, the recipient of a 
NOPS or NIDP will have 30 calendar days from receipt of the notice to 
request a hearing. A request for hearing must be

[[Page 61]]

dated and in writing. Failure to request a hearing within 30 days 
constitutes a waiver of the opportunity for a hearing.
    (d) Even if no hearing is requested, NOAA may order a hearing if it 
will serve the interests of justice. This paragraph does not create any 
right to a hearing in addition to the right provided in paragraph (a) of 
this section.

                  Sanctions for Nonpayment of Penalties



Sec. 904.310  Nature of sanctions.

    (a) NOAA may suspend a permit if:
    (1) A civil penalty has been assessed against the permit holder 
under subparts B and C of this part, but the permit holder has failed to 
pay the penalty, or has defaulted on a payment agreement; or
    (2) A criminal fine or other liability for violation of any of the 
statutes administered by NOAA has been imposed against the permit holder 
in a judicial proceeding, but payment has not been made.
    (b) NOAA will suspend any permit issued to a foreign fishing vessel 
under section 204(b) of the Magnuson Fishery Conservation and Management 
Act under the circumstances set forth in paragraph (a) of this section.
    (c) NOAA will withhold any other permit for which the permit holder 
applies if either condition in Sec. 904.310(a) is applicable.



Sec. 904.311  Compliance.

    If the permit holder pays the fine or penalty in full or agrees to 
terms satisfactory to NOAA for payment:
    (a) The suspension will not take effect;
    (b) Any permit suspended under Sec. 904.310 will be reinstated by 
affirmative order of NOAA; or
    (c) Any application by the permit holder may be granted if the 
permit holder is otherwise qualified to receive the permit.

                        Sanctions for Violations



Sec. 904.320  Nature of sanctions.

    Subject to the requirements of this subpart, NOAA may take any of 
the following actions or combination of actions if a permit holder or 
permitted vessel violates a statute administered by NOAA, or any 
regulation promulgated or permit condition prescribed thereunder:
    (a) Revocation. A permit may be cancelled, with or without prejudice 
to issuance of the permit in the future. Additional requirements for 
issuance of any future permit may be imposed.
    (b) Suspension. A permit may be suspended either for a specified 
period of time or until stated requirements are met, or both. If 
contingent on stated requirements being met, the suspension is with 
prejudice to issuance of any permit until the requirements are met.
    (c) Modification. A permit may be modified, as by imposing 
additional conditions and restrictions. If the permit was issued for a 
foreign fishing vessel under section 204(b) of the Magnuson Fishery 
Conservation and Management Act, additional conditions and restrictions 
may be imposed on the application of the foreign nation involved and on 
any permits issued under such application.



Sec. 904.321  Reinstatement of permit.

    (a) A permit suspended for a specified period of time will be 
reinstated automatically at the end of the period.
    (b) A permit suspended until stated requirements are met will be 
reinstated only by affirmative order of NOAA.



Sec. 904.322  Interim action.

    (a) To protect marine resources during the pendency of an action 
under this subpart, in cases of willfulness, or as otherwise required in 
the interest of public health, welfare, or safety, an Administrative Law 
Judge may order immediate suspension, modification, or withholding of a 
permit until a decision is made on the action proposed in a NOPS or 
NIDP.
    (b) The Judge will order interim action under paragraph (a) of this 
section, only after finding that there exists probable cause to believe 
that the violation charged in the NOPS or NIDP was committed. The 
Judge's finding of probable cause, which will be summarized in the 
order, may be made:

[[Page 62]]

    (1) After review of the factual basis of the alleged violation, 
following an opportunity for the parties to submit their views (orally 
or in writing, in the Judge's discretion); or
    (2) By adoption of an equivalent finding of probable cause or an 
admission in any administrative or judicial proceeding to which the 
recipient of the NOPS or NIDP was a party, including, but not limited 
to, a hearing to arrest or set bond for a vessel in a civil forfeiture 
action or an arraignment or other hearing in a criminal action. Adoption 
of a finding or admission under this paragraph may be made only after 
the Judge reviews pertinent portions of the transcript or other records, 
documents, or pleadings from the other proceeding.
    (c) An order for interim action under paragraph (a) of this section 
is unappealable and will remain in effect until a decision is made on 
the NOPS or NIDP. Where such interim action has been taken, the Judge 
will expedite any hearing requested under Sec. 904.304.



                       Subpart E_Written Warnings



Sec. 904.400  Purpose and scope.

    This subpart sets forth the policy and procedures governing the 
issuance and use of written warnings by persons authorized to enforce 
the statutes administered by NOAA, and the review of such warnings. A 
written warning may be issued in lieu of assessing a civil penalty or 
initiating criminal prosecution for violation of any of the laws cited 
in Sec. 904.1(c).



Sec. 904.401  Written warning as a prior offense.

    A written warning may be used as a basis for dealing more severely 
with a subsequent offense, including, but not limited to, a violation of 
the same statute or an offense involving an activity that is related to 
the prior offense.



Sec. 904.402  Procedures.

    (a) Any person authorized to enforce the laws listed in Sec. 
904.1(c) who finds a violation of one of the laws may issue a written 
warning to a violator in lieu of other law enforcement action that could 
be taken under the applicable statute.
    (b) The written warning will:
    (1) State that it is a ``written warning'';
    (2) State the factual and statutory or regulatory basis for its 
issuance;
    (3) Advise the violator of its effect in the event of a future 
violation; and
    (4) Inform the violator of the right of review and appeal under 
Sec. 904.403.
    (c) NOAA will maintain a record of written warnings that are issued.
    (d) If, within 120 days of the date of the written warning, further 
investigation indicates that the violation is more serious than realized 
at the time the written warning was issued, or that the violator 
previously committed a similar offense for which a written warning was 
issued or other enforcement action was taken, NOAA may withdraw the 
warning and commence other civil or criminal proceedings.
    (e) For written warnings under the Magnuson Fishery Conservation and 
Management Act or the Northern Pacific Halibut Act of 1982, the 
enforcement officer will note the warning, its date, and reason for its 
issuance on the permit, if any, of the vessel used in the violation. If 
noting the warning on the permit of the vessel is impracticable, notice 
of the written warning will be served personally, or by registered or 
certified mail, return receipt requested, on the vessel's owner, 
operator, or designated agent for service of process, and such service 
will be deemed notation on the permit.



Sec. 904.403  Review and appeal of a written warning.

    (a) If a person receives a written warning from an enforcement 
agent, the person may, within 90 days of receipt of the written warning, 
seek review by the appropriate NOAA Regional Attorney. The request must 
be in writing and must present the facts and circumstances that explain 
or deny the violation described in the warning. The Regional Attorney 
will review the information and notify the person of his or her 
decision.
    (b) If a person receives a written warning from a Regional Attorney 
or staff attorney, or receives a decision from a Regional Attorney 
affirming a written warning, the person may appeal the warning or 
decision to the

[[Page 63]]

NOAA Assistant General Counsel for Enforcement and Litigation. The 
appeal must be brought within 30 days of receipt of the warning or 
decision from the Regional Attorney. The Assistant General Counsel for 
Enforcement and Litigation may, in his or her discretion, affirm, 
expunge, or modify the written warning and will notify the person of the 
decision. The decision constitutes the final agency action.
    (c) The addresses of the NOAA Regional Attorneys are:

Regional Counsel, Office of General Counsel, NOAA, 14 Elm Street, 
Federal Building, Gloucester, MA 01930
Regional Counsel, Office of General Counsel, NOAA, 9450 Koger Blvd., 
Suite 102, St. Petersburg, FL 33702
Regional Counsel, Office of General Counsel, NOAA, Bin C15700, 7600 
Sandpoint Way, NE., Seattle, WA 98115
Regional Counsel, Office of General Counsel, NOAA, 300 South Ferry 
Street, Room 2013, Terminal Island, CA 90731
Regional Counsel, Office of General Counsel, NOAA, P.O. Box 1668, 
Juneau, AK 99802

    The address of the Assistant General Counsel for Enforcement and 
Litigation is 1825 Connecticut Avenue NW., Suite 607, Washington, DC 
20235.



               Subpart F_Seizure and Forfeiture Procedures



Sec. 904.500  Purpose and scope.

    (a) This subpart sets forth procedures governing the release or 
forfeiture of seized property (except property seized and held solely as 
evidence) that is subject to forfeiture under the various statutes 
administered by NOAA.
    (b) Except as provided in this subpart, these regulations apply to 
all seized property subject to forfeiture under the statutes listed in 
Subpart A. This subpart is in addition to, and not in contradiction of, 
any special rules regarding seizure, holding or disposition of property 
seized under these statutes.



Sec. 904.501  Notice of seizure.

    Except where the owner, consignee, or other party that the facts of 
record indicate has an interest in the seized property is personally 
notified, or where seizure is made under a search warrant, NOAA will, as 
soon as practicable following the seizure or other receipt of seized 
property, mail notice of the seizure by registered or certified mail, 
return receipt requested, to the owner or consignee, if known or easily 
ascertainable, or other party that the facts of record indicate has an 
interest in the seized property. The notice will describe the seized 
property and state the time, place and reason for the seizure. The 
notice will inform each interested party of his or her right to apply 
for remission or mitigation of the forfeiture (including any agreement 
that may be required under Sec. 904.506(b)(2)(vii)). The notice may be 
combined with a notice of the sale of perishable fish issued under Sec. 
904.505.



Sec. 904.502  Bonded release.

    NOAA may, in its sole discretion, release any seized property upon 
deposit with NOAA of the full value of the property or such lesser 
amount as NOAA deems sufficient to protect the interests served by the 
applicable statute. The deposit will be held in a NOAA suspense account, 
or deposited with the appropriate court, pending the outcome of 
forfeiture proceedings. In addition, NOAA may, in its sole discretion, 
accept a bond or other security in place of fish, wildlife, or other 
property seized. The bond will contain such conditions as NOAA deems 
appropriate. The provisions of Sec. 904.506(f) apply to NOAA's 
determination whether to release the property. The deposit or bond will 
for all purposes be considered to represent the property seized and 
subject to forfeiture.



Sec. 904.503  Appraisement.

    NOAA will appraise seized property to determine its domestic value. 
Domestic value means the price at which such or similar property is 
offered for sale at the time and place of appraisement in the ordinary 
course of trade. If there is no market for the seized property at the 
place of appraisement, the value in the principal market nearest the 
place of appraisement will be used. If the seized property may not 
lawfully be sold in the United States, its domestic value will be 
determined by other reasonable means.

[[Page 64]]



Sec. 904.504  Administrative forfeiture proceedings.

    (a) When authorized. This section applies to property that is 
determined under Sec. 904.503 to have a value of $100,000 or less, and 
that is subject to administrative forfeiture under the applicable 
statute. This section does not apply to conveyances seized in connection 
with criminal proceedings.
    (b) Procedure. (1) NOAA will publish a notice of proposed forfeiture 
once a week for at least three successive weeks in a newspaper of 
general circulation in the Federal judicial district in which the 
property was seized. However, if the value of the seized property does 
not exceed $1,000, the notice may be published by posting for at least 
three successive weeks in a conspicuous place accessible to the public 
at the National Marine Fisheries Service Enforcement Office, United 
States District Court, or the United States Customs House nearest the 
place of seizure, with the date of posting indicated on the notice. In 
addition, a reasonable effort will be made to serve the notice 
personally, or by registered or certified mail, return receipt 
requested, on each person whose whereabouts and interest in the property 
are known or easily ascertainable.
    (2) The notice of proposed forfeiture will:
    (i) Describe the seized property, including any applicable 
registration or serial numbers;
    (ii) State the time, place and reason for the seizure; and
    (iii) Describe the rights of an interested person to file a claim to 
the property (including the right to file a motion to stay 
administrative forfeiture proceedings and to petition to remit or 
mitigate the forfeiture).
    (3)(i) Except as provided in paragraph (b)(4) of this section, any 
person claiming the seized property may file a claim with NOAA, at the 
address indicated in the notice, within 20 days of the date the notice 
was first published or posted. The claim must state the claimant's 
interest in the property.
    (ii) Except as provided in paragraph (b)(3)(v) or (b)(4) of this 
section, a bond for costs in the penal sum of $5,000 or 10 per cent of 
the appraised value of the property, whichever is lower, but not less 
than $250, with sureties satisfactory to the Administrator, must be 
filed with the claim for seized property. The bond may be posted on 
Customs form 4615 or a similar form provided by NOAA. There must be 
endorsed on the bond a list or schedule in substantially the following 
form, signed by the claimant in the presence of witnesses, and attested 
by the witnesses:


List or schedule containing a particular description of seized article, 
claim for which is covered by the within bond; to wit:

________________________________________________________________________

________________________________________________________________________

    The foregoing list is correct.

________________________________________________________________________

 Claimant


Attest:

________________________________________________________________________

________________________________________________________________________

    A certified check may be substituted for a bond.
    (iii) Filing a claim and posting a bond does not entitle the 
claimant to possession of the property. However, it does stop 
administrative forfeiture proceedings.
    (iv) If the claim and bond are filed timely in accordance with this 
section, NOAA will refer the matter to the Attorney General to institute 
forfeiture proceedings in the appropriate United States District Court.
    (v) Upon satisfactory proof of financial inability to post the bond, 
NOAA may waive the bond requirement for any person claiming an interest 
in the seized property.
    (4) Instead of, or in addition to, filing a claim and bond under 
paragraph (b)(3) of this section, any person claiming the seized 
property may file with NOAA within 20 days after the date of first 
publication or posting of the notice of proposed forfeiture, a motion to 
stay administrative forfeiture proceedings. The motion must contain:
    (i) The claimant's verified statement showing the claimant's 
absolute title to the seized property, free of all liens or other third 
party interests; and
    (ii) The claimant's offer to pay in advance all reasonable costs 
anticipated for storage and maintenance of the

[[Page 65]]

property. NOAA, in its discretion, may grant the stay and impose any 
conditions deemed reasonable, including but not limited to length of the 
stay, factors that would automatically terminate the stay, and any 
requirement for a bond to secure payment of storage or maintenance 
costs. If NOAA denies or terminates the stay, the claimant, if he or she 
has not already done so, has 20 days from receipt of the denial or 
termination order to file a claim and bond in accordance with paragraph 
(b)(3) of this section. Failure to file the claim and bond within that 
20 days will result in summary forfeiture under paragraph (b)(5) of this 
section.
    (5) If a claim and bond are not filed within 20 days of notice in 
accordance with this section, or if a motion for a stay under paragraph 
(b)(4) is pending, NOAA will declare the property forfeited. The 
declaration of forfeiture will be in writing and will be served on each 
person whose whereabouts and prior interest in the seized property are 
known or easily ascertainable. The forfeited property will be subject to 
disposition as authorized by law and regulations of NOAA.
    (6) If the appraised value of the property is more than $100,000, or 
a timely and satisfactory claim and bond for property appraised at 
$100,000 or less are submitted to NOAA, the matter will be referred to 
the Attorney General to institute in rem proceedings in the appropriate 
United States District Court.



Sec. 904.505  Summary sale.

    (a) In view of the perishable nature of fish, any person authorized 
to enforce a statute administered by NOAA may, as authorized by law, 
sell or cause to be sold, and any person may purchase, for not less than 
its domestic fair market value, fish seized under such statute.
    (b) Any person purchasing fish subject to this section must deliver 
the proceeds of the sale to a person authorized to enforce a statute 
administered by NOAA immediately upon request of such authorized person. 
Anyone who does not so deliver the proceeds may be subject to penalties 
under the applicable statute or statutes.
    (c) NOAA will give notice of the sale by registered or certified 
mail, return receipt requested, to the owner or consignee, if known or 
easily ascertainable, or to any other party that the facts of record 
indicate has an interest in the seized fish, unless the owner or 
consignee or other interested party has otherwise been personally 
notified. Notice will be sent either prior to the sale, or as soon 
thereafter as practicable.
    (d) The proceeds of the sale, after deducting any reasonable costs 
of the sale, will be subject to any administrative or judicial 
proceedings in the safe manner as the seized fish would have been, 
including an action in rem for the forfeiture of the proceeds. Pending 
disposition of such proceedings, the proceeds will, as appropriate, 
either be deposited in a NOAA suspense account or submitted to the 
appropriate court. The proceeds will not be subject to release under 
Sec. 904.502 or Sec. 904.506(f).
    (e) Seizure and sale of fish is without prejudice to any other 
remedy or sanction authorized by law.



Sec. 904.506  Remission and mitigation of forfeiture.

    (a) Application of this section. (1) This section establishes 
procedures for filing with NOAA a petition for relief from forfeitures 
incurred, or alleged to have been incurred, under any statute 
administered by NOAA that authorizes the remission or mitigation of 
forfeitures.
    (2) Although NOAA may properly consider a petition for relief from 
forfeiture along with other consequences of a violation, the remission 
or mitigation of a forfeiture is not dispositive of any criminal charge 
filed, civil penalty assessed, or permit sanction proposed, unless NOAA 
expressly so states. Remission or mitigation of a forfeiture is in the 
nature of executive clemency and is granted in the sole discretion of 
NOAA only when consistent with the purposes of the particular statute 
involved and this section.
    (3) NOAA will not consider a petition for remission or mitigation 
while a forfeiture proceeding is pending in federal court. Once such a 
case is referred to the Attorney General for institution of judicial 
proceedings, and until the proceedings are completed, any petition 
received by NOAA will be forwarded to

[[Page 66]]

the Attorney General for consideration.
    (b) Petition for relief from forfeiture. (1) Any person having an 
interest in property seized and subject to forfeiture may file a 
petition for relief from forfeiture. Unless otherwise directed in a 
notice concerning the seized property, the petition shall be addressed 
to NOAA and filed with the Regional Attorney nearest to the place where 
the property is held (addresses in Sec. 904.403(c)). NOAA will consider 
a petition filed after a declaration or decree of forfeiture only if the 
petitioner demonstrates that he or she did not previously know of the 
seizure and was in such circumstances as prevented him or her from 
knowing of it, except that NOAA will not consider a petition filed more 
than three months from the date of such declaration or decree. (See 
Sec. 904.507 regarding the right of certain claimants to petition for 
restoration of proceeds from the sale of forfeited property.)
    (2) The petition need not be in any particular form, but must set 
forth the following:
    (i) A description of the property seized;
    (ii) The date and place of the seizure;
    (iii) The petitioner's interest in the property, supported as 
appropriate by bills of sale, contracts, mortgages, or other 
satisfactory evidence;
    (iv) The facts and circumstances relied upon by the petitioner to 
justify the remission or mitigation;
    (v) Any request for release under paragraph (f) of this section 
pending final decision on the petition, together with any offer of 
payment to protect the United States' interest that petitioner makes in 
return for the release, and the facts and circumstances relied upon by 
petitioner in the request;
    (vi) The signature of the petitioner, his or her attorney, or other 
authorized agent; and
    (vii) An express agreement to defer administrative or judicial 
forfeiture proceedings until completion of all other related judicial or 
administrative proceedings (including any associated civil penalty or 
permit sanction proceedings).


A false statement in a petition will subject petitioner to prosecution 
under 18 U.S.C. 1001.
    (c) Investigation. NOAA will investigate the facts and circumstances 
shown by the petition and seizure, and may in this respect appoint an 
investigator to examine the facts and prepare a report of investigation.
    (d) Decision on petition. (1) After investigation under paragraph 
(c) of this section, NOAA will decide the matter and notify the 
petitioner. NOAA may remit or mitigate the forfeiture, on such terms and 
conditions as under the applicable statute and the circumstances are 
deemed reasonable and just, upon a finding:
    (i) That the forfeiture was incurred without willful negligence and 
without any intention on the part of petitioner to violate the 
applicable statute; or
    (ii) That other circumstances exist that justify remission or 
mitigation of the forfeiture.
    (2) Unless NOAA determines no valid purpose would be served, NOAA 
will condition a decision to remit or mitigate a forfeiture upon the 
petitioner's submitting an agreement, in a form satisfactory to NOAA, to 
hold the United States and its officers or agents harmless from any and 
all claims based on loss of or damage to the seized property or that 
might result from grant of remission or mitigation. If the petitioner is 
not the beneficial owner of the property, or if there are others with a 
proprietary interest in the property, NOAA may require the petitioner to 
submit such an agreement executed by the beneficial owner or other 
interested party. NOAA may also require that the property be promptly 
exported from the United States.
    (e) Compliance with the decision. A decision by NOAA to remit or 
mitigate the forfeiture upon stated conditions, as upon payment of a 
specified amount, will be effective for 60 days after the date of the 
decision. If the petitioner does not comply with the conditions within 
that period in the manner prescribed by the decision, or make 
arrangements satisfactory to NOAA for later compliance, the remission or 
mitigation will be void, and judicial or administrative forfeiture 
proceedings will be instituted or resumed.

[[Page 67]]

    (f) Release of seized property pending decision. (1) Upon request in 
the petition for relief from forfeiture, NOAA may in its discretion 
order the release, pending final decision on the petition, of all or 
part of the seized property upon payment by the petitioner of the full 
value of the property to be released or such lesser amount as NOAA deems 
sufficient to protect the interests served by the applicable statute. 
The following, however, will not be released:
    (i) Property in which NOAA is not satisfied that the petitioner has 
a substantial interest;
    (ii) Property whose entry into the commerce of the United States is 
prohibited;
    (iii) Live animals, except in the interest of the animals' welfare;
    (iv) Proceeds from the sale of seized property sold under Sec. 
904.505 (see Sec. 904.507 regarding petitions for restoration of 
proceeds from the sale of property declared forfeited); or
    (v) Property whose release appears to NOAA not to be in the best 
interest of the United States or serve the purposes of the applicable 
statute.
    (2) If NOAA grants the request, the amount paid by the petitioner 
will be deposited in a NOAA suspense account. The amount so deposited 
will for all purposes be considered to represent the property seized and 
subject to forfeiture, and payment of the amount by petitioner 
constitutes a waiver by the petitioner of any claim arising from the 
seizure and custody of the property. NOAA will maintain the money so 
deposited pending further order of NOAA, order of a court, or 
disposition by applicable administrative proceedings.



Sec. 904.507  Petition for restoration of proceeds.

    (a) The general provisions of Sec. 904.506 on petitions for 
remission or mitigation of forfeitures apply to petitions for 
restoration of proceeds from the sale of forfeited property, except as 
modified by this section.
    (b) In addition to any evidence required under Sec. 904.506, the 
petition for restoration of proceeds must be supported by satisfactory 
proof that the petitioner did not know of the seizure prior to the 
declaration or decree of forfeiture and was in such circumstances as 
prevented him or her from knowing of it.
    (c) If forfeited property that is the subject of a claim for 
restoration of proceeds has been appropriated for official use, 
retention by the government will be regarded as sale for the purposes of 
this section.
    (d) No petition for restoration of proceeds will be considered 
unless it is submitted within three months of the declaration or decree 
of forfeiture.
    (e) If no petition is timely filed, or if the petition is denied, 
prior to depositing the proceeds NOAA may use the proceeds of sale to 
reimburse the government for any costs that by law may be recovered or 
to pay any reward that by law may be paid from such sums.



Sec. 904.508  Recovery of certain storage costs.

    If any fish, wildlife, or evidentiary item is seized and forfeited 
under the Endangered Species Act, 16 U.S.C. 1531 through 1543, any 
person whose act or omission was the basis for the seizure may be 
charged a reasonable fee for expenses to the United States connected 
with the transfer, board, handling or storage of such property. If any 
fish or wildlife is seized in connection with a violation of the Lacey 
Act Amendments of 1981, 16 U.S.C. 3371 through 3378, or any property is 
seized in connection with a violation of the Magnuson Fishery 
Conservation and Management Act, 16 U.S.C. 1801 through 1882, any person 
convicted thereof, or assessed a civil penalty therefor, may be assessed 
a reasonable fee for expenses of the United States connected with the 
storage, care and maintenance of such property. Within a reasonable time 
after forfeiture, NOAA will send to such person by registered or 
certified mail, return receipt requested, a bill for such fee. The bill 
will contain an itemized statement of the applicable costs, and 
instructions on the time and manner of payment. Payment must be made in 
accordance with the bill. If the recipient of the bill objects to the 
reasonableness of the costs assessed he or she may, within 30 days of 
receipt, file written objections with NOAA at the address stated in the 
bill.

[[Page 68]]

NOAA will promptly review the written objections and within 30 days mail 
the final decision to the party who filed them. NOAA's decision will 
constitute final agency action on the matter.



Sec. 904.509  Abandonment.

    (a) The owner of a seized item may abandon it to NOAA by various 
means, including, but not limited to, expressly waiving any claim to the 
item, refusing or otherwise avoiding delivery of mail concerning the 
seizure (as by giving a false name or address), or failing for more than 
180 days to make or maintain a claim to the item.
    (b) The owner of a seized item waives a claim to it by failing to 
respond within 120 days of issuance of a Government notice concerning 
the seizure, or by voluntarily relinquishing any interest in an item by 
written agreement, or otherwise.
    (c) An item will be declared finally abandoned, without recourse, 
upon a finding of abandonment.



Sec. 904.510  Disposal of forfeited or abandoned items.

    (a) Delivery to Administrator. Upon forfeiture of any fish, 
wildlife, parts or products thereof, or other property to the United 
States, or the abandonment or waiver of any claim to any such property, 
it will be delivered to NOAA for storage or disposal according to the 
provisions of this section.
    (b) Purposes of disposal. Disposal procedures may be used to 
alleviate overcrowding of evidence storage facilities, and to avoid the 
accumulation of seized items where disposal is not otherwise 
accomplished by court order, as well as to address the needs of 
governmental agencies and other institutions and organizations for such 
items for scientific, educational, and public display purposes. In no 
case will items be used for personal purposes, either by loan recipients 
or government personnel.
    (c) Disposal of evidence. Items that are evidence may be disposed of 
only after authorization by the NOAA Office of General Counsel. Disposal 
approval usually will not be given until the case involving the evidence 
is closed, except that perishable items may be authorized for disposal 
sooner.
    (d) Loans--(1) To institutions. Items approved for disposal may be 
loaned to institutions or organizations requesting such items for 
scientific, educational, or public display purposes. Items will be 
loaned only after execution of a loan agreement which provides, among 
other things, that the loaned items will be used only for noncommercial 
scientific, educational, or public display purposes, and that they will 
remain the property of the United States government, which may demand 
their return at any time. Parties requesting the loan of an item must 
demonstrate the ability to provide adequate care and security for the 
item. Loans may be made to responsible agencies of foreign governments 
in accordance with the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora.
    (2) To individuals. Items generally will not be loaned to 
individuals not affiliated with an institution or organization unless it 
is clear that the items will be used in a noncommercial manner, and for 
scientific, educational, or public display purposes which are in the 
public interest.
    (3) Selection of loan recipients. Recipients of items will be chosen 
so as to assure a wide distribution of the items throughout the 
scientific, educational, public display and museum communities. Other 
branches of NMFS, NOAA, the Department of Commerce, and other 
governmental agencies will have the right of first refusal of any item 
offered for disposal. The Administrator may solicit applications, by 
publication of a notice in the Federal Register, from qualified persons, 
institutions, and organizations who are interested in obtaining the 
property being offered. Such notice will contain a statement as to the 
availability of specific items for which transferees are being sought, 
and instructions on how and where to make application. Applications will 
be granted in the following order: Other offices of NMFS, NOAA, and the 
Department of Commerce; U.S. Fish and Wildlife Service; other Federal 
agencies; other governmental agencies; scientific, educational, or other 
public or private institutions; and private individuals.

[[Page 69]]

    (4) Loan agreement. Items will be transferred under a loan agreement 
executed by the Administrator and the borrower. Any attempt on the part 
of the borrower to retransfer an item, even to another institution for 
related purposes, will violate and invalidate the loan agreement, and 
entitle the United States to immediate repossession of the item, unless 
the prior approval of the Administrator has been obtained under Sec. 
904.510(d)(5). Violation of the loan agreement may also subject the 
violator to the penalties provided by the laws governing possession and 
transfer of the item.
    (5) Temporary reloans; documents to accompany items. Temporary 
reloans by the borrower to another qualified borrower (as for temporary 
exhibition) may be made if the Administrator is advised in advance by 
the borrowers. Temporary loans for more than thirty days must be 
approved in advance in writing by the Administrator. A copy of the 
original loan agreement, and a copy of the written approval for reloan, 
if any, must accompany the item whenever it is temporarily reloaned or 
is shipped or transported across state or international boundaries.
    (e) Destruction of items. This paragraph and other provisions 
relating to the destruction of property apply to items:
    (1) Which have not been handicrafted, or
    (2) Which have been handicrafted and are of less than one hundred 
dollars ($100) value, and
    (3) For which no acceptable applications have been received, or for 
which publication in the Federal Register of the availability of similar 
items in the past has resulted in the receipt of no applications. Such 
items may be destroyed if they have been in government ownership for 
more than one year. Perishable items which are not fit for human 
consumption may be destroyed sooner, if the authorization required by 
Sec. 904.510(c) has been obtained. Destruction of items will be 
witnessed by two persons, one of whom may be the disposing officer.
    (f) Food items. Food items will, if possible, be disposed of by gift 
to nonprofit groups providing public welfare food services.
    (g) Record-keeping. A ``fish and wildlife disposal'' form will be 
completed each time an item is disposed of pursuant to the policy and 
procedure established herein, and will be retained in the case file for 
the item. These forms will be available to the public.



PART 905_USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED BY 
VOLUNTARY FISHERY DATA COLLECTORS--Table of Contents




Sec.
905.1 Scope.
905.2 Definitions.
905.3 Access to information.
905.4 Use of information.
905.5 Exceptions.

    Authority: 16 U.S.C. 1853(f).

    Source: 60 FR 39251, Aug. 2, 1995, unless otherwise noted.



Sec. 905.1  Scope.

    This part applies to the use, in enforcement proceedings conducted 
pursuant to the Magnuson Act, the MMPA, and the ESA, of information 
collected by voluntary fishery data collectors.



Sec. 905.2  Definitions.

    When used in this part:
    Consenting owner means the owner, operator, or crewmember of a 
vessel carrying a voluntary fishery data collector.
    Enforcement proceeding means any judicial or administrative trial or 
hearing, initiated for the purpose of imposing any civil or criminal 
penalty authorized under the Magnuson Act, MMPA, or ESA, including but 
not limited to, any proceeding initiated to: Impose a monetary penalty; 
modify, sanction, suspend or revoke a lease, license or permit; secure 
forfeiture of seized property; or incarcerate an individual.
    ESA means the Endangered Species Act, as amended, 16 U.S.C. 1531 et 
seq., and implementing regulations.
    Information means all observations, data, statistics, photographs, 
film, or recordings collected by a voluntary fishery data collector for 
conservation and management purposes, as defined by the Magnuson Act, 
MMPA, or ESA,

[[Page 70]]

while onboard the vessel of a consenting owner.
    Magnuson Act means the Magnuson Fishery Conservation and Management 
Act, as amended, 16 U.S.C. 1801 et seq., and implementing regulations.
    MMPA means the Marine Mammal Protection Act, as amended, 16 U.S.C. 
1361 et seq., and implementing regulations.
    Secretary means the Secretary of Commerce, the Secretary of the 
Interior, their chosen designees, or any other Federal agency authorized 
to enforce the provisions of the Magnuson Act, MMPA, or ESA.
    Vessel means any vessel as defined at 16 U.S.C. 1802(31).
    Voluntary fishery data collector means:
    (1) Any person, including an observer or a sea sampler;
    (2) Placed aboard a vessel by the Secretary;
    (3) For the purpose of collecting information; and
    (4) Whose presence aboard that vessel is not required by the 
Secretary pursuant to provisions of the Magnuson Act, MMPA, or ESA, or 
their implementing regulations.



Sec. 905.3  Access to information.

    Information collected by a voluntary fishery data collector:
    (a) Is subject to disclosure to both the Secretary and the public, 
to the extent required or authorized by law; and
    (b) Is subject to discovery by any party to an enforcement 
proceeding, to the extent required or authorized by law.



Sec. 905.4  Use of information.

    (a) Except as provided for in paragraph (b) of this section, 
information collected by a voluntary fishery data collector may not be 
introduced by the Secretary as evidence against any consenting owner 
that is a party to an enforcement proceeding.
    (b) Provided that all applicable evidentiary requirements are 
satisfied:
    (1) Information collected by a voluntary fishery data collector may 
be introduced in an enforcement proceeding by any party except the 
Secretary;
    (2) If information is introduced pursuant to paragraph (b)(1) of 
this section, all information collected by a voluntary fishery data 
collector may be introduced by any other party, including the Secretary.
    (c) Independent evidence derived from information collected by a 
voluntary fishery data collector may be introduced by any party, 
including the Secretary, in an enforcement proceeding.



Sec. 905.5  Exceptions.

    The provisions of this part shall not apply in any enforcement 
proceeding against a consenting owner that alleges the actual or 
attempted:
    (a) Assault, intimidation, or harassment (including sexual 
harassment) of any person; or
    (b) Impairment or interference with the duties of a voluntary 
fishery data collector.



PART 908_MAINTAINING RECORDS AND SUBMITTING REPORTS ON WEATHER 
MODIFICATION ACTIVITIES--Table of Contents




Sec.
908.1 Definitions.
908.2 Persons subject to reporting.
908.3 Activities subject to reporting.
908.4 Initial report.
908.5 Interim reports.
908.6 Final report.
908.7 Supplemental reports.
908.8 Maintenance of records.
908.9 Retention of records.
908.10 Penalties.
908.11 Maintenance of records of related activities.
908.12 Public disclosure of information.
908.13 Address of letters.
908.14 Business to be transacted in writing.
908.15 Times for taking action; expiration on Saturday, Sunday, or 
          holiday.
908.16 Signature.
908.17 Suspension or waiver of rules.
908.18 Matters not specifically provided for in rules.
908.19 Publication of notice of proposed amendments.
908.20 Effective date.
908.21 Report form.

    Authority: Pub. L. 92-305, 85 Stat. 735, December 18, 1971.

    Source: 41 FR 23394, June 10, 1976, unless otherwise noted.

[[Page 71]]



Sec. 908.1  Definitions.

    As used in this part, terms shall have the meaning ascribed in this 
section.
    (a) Administrator. The Administrator of the National Oceanic and 
Atmospheric Administration.
    (b) Person. Any individual, corporation, company, association, firm, 
partnership, society, joint stock company, any State or local government 
or any agency thereof, or any other organization, whether commercial or 
nonprofit, except where acting solely as an employee, agent, or 
independent contractor of the Federal government.
    (c) Weather modification activity. Any activity performed with the 
intention of producing artificial changes in the composition, behavior, 
or dynamics of the atmosphere.
    (d) United States. The several States, the District of Columbia, the 
Commonwealth of Puerto Rico, and any territory or insular possession of 
the United States.
    (e) Persons whose activities relate to weather modification. Persons 
engaged in weather modification activities or engaged in the 
distribution or sale of weather modification apparatus or materials 
known by them to be destined for use in weather modification activities.
    (f) Project. A related series of weather modification activities 
having a common objective.
    (g) Target area. The ground area within which the effects of the 
weather modification activity are expected to be found.
    (h) Control area. A preselected, untreated ground area used for 
comparison with a target area.
    (i) Weather modification apparatus. Any apparatus used with the 
intention of producing artificial changes in the composition, behavior, 
or dynamics of the atmosphere. For example: Seeding generators, propane 
devices, flares, rockets, artillery projectiles, jet engines, etc.
    (j) Sponsor. The primary person for whom the weather modification 
activity is performed.
    (k) Operator. The person who is primarily responsible for carrying 
out the weather modification activity.

[41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]



Sec. 908.2  Persons subject to reporting.

    Any person engaged or intending to engage in any weather 
modification activity in the United States shall be subject to the 
reporting provisions of this part.



Sec. 908.3  Activities subject to reporting.

    (a) The following, when conducted as weather modification 
activities, shall be subject to reporting:
    (1) Seeding or dispersing of any substance into clouds or fog, to 
alter drop size distribution, produce ice crystals or coagulation of 
droplets, alter the development of hail or lightning, or influence in 
any way the natural development cycle of clouds or their environment;
    (2) Using fires or heat sources to influence convective circulation 
or to evaporate fog;
    (3) Modifying the solar radiation exchange of the earth or clouds, 
through the release of gases, dusts, liquids, or aerosols into the 
atmosphere;
    (4) Modifying the characteristics of land or water surfaces by 
dusting or treating with powders, liquid sprays, dyes, or other 
materials;
    (5) Releasing electrically charged or radioactive particles, or 
ions, into the atmosphere;
    (6) Applying shock waves, sonic energy sources, or other explosive 
or acoustic sources to the atmosphere;
    (7) Using aircraft propeller downwash, jet wash, or other sources of 
artificial wind generation; or
    (8) Using lasers or other sources of electromagnetic radiation.
    (b) In addition to the activities listed above, other similar 
activities falling within the definition of weather modification as set 
forth in Sec. 908.1 are also subject to reporting.
    (c) The requirement for reporting shall not apply to activities of a 
purely local nature that can reasonably be expected not to modify the 
weather outside of the area of operation. This exception is presently 
restricted to the use of lightning deflection or static discharge 
devices in aircraft, boats, or buildings, and to the use of small heat 
sources, fans, fogging devices, aircraft downwash, or sprays to prevent 
the occurrence of frost in tracts or fields planted with crops 
susceptible to frost

[[Page 72]]

or freeze damage. Also expected from the requirement for reporting are 
religious activities or other ceremonies, rites and rituals intended to 
modify the weather.
    (d) All activities noted in paragraphs (a) and (b) of this section 
are subject to initial reporting. However, after the Administrator has 
received initial notification of a planned activity, he may waive some 
of the subsequent reporting requirements. This decision to waive certain 
reporting requirements will be based on the general acceptability, from 
a technical or scientific viewpoint, of the apparatus and techniques to 
be used.
    (e) Other reporting exceptions may be made in the future by rule of 
the Administrator.



Sec. 908.4  Initial report.

    (a) Any person intending to engage in any weather modification 
project or activity in the United States shall provide a report of his 
intention, to be received by the Administrator at least 10 days before 
the commencement of such project or activity. This report shall contain 
at least the following:
    (1) The designation, if any, used by the operator for the project or 
activity;
    (2) The following dates for weather modification activities:
    (i) The date the first actual weather modification activity is to be 
undertaken;
    (ii) The date on which the final modification activity is expected 
to occur;
    (3) The following information on persons involved with the project 
or activity:
    (i) The name, affiliation, and address of the sponsor;
    (ii) The name, affiliation, and address of the operator;
    (4) The purpose of the project or activity;
    (5) A map showing the approximate size and location of the target 
and control areas, and the location of each item of ground-based weather 
modification apparatus, precipitation measuring device, and, for 
airborne operations, the airport;
    (6) A description of the weather modification apparatus, 
modification agents, and the techniques to be employed;
    (7) The name and address of the responsible individual from whom log 
books or other records of the project or activity may be obtained;
    (8) Answers to the following questions on project safeguards:
    (i) Has an Environmental Impact Statement, Federal or State, been 
filed: Yes---- No ----. If Yes, please furnish a copy as applicable.
    (ii) Have provisions been made to acquire the latest forecasts, 
advisories, warnings, etc. of the National Weather Service, Forest 
Service, or others when issued prior to and during operations? Yes ---- 
No ----. If Yes, please specify on a separate sheet.
    (iii) Have any safety procedures (operational contraints, provisions 
for suspension of operations, monitoring methods, etc.) and any 
environmental guidelines (related to the possible effects of the 
operations) been included in the operational plans? Yes ---- No ----. If 
Yes, please furnish copies or a description of the specific procedures 
and guidelines; and
    (9) Optional remarks, to include any additional items which the 
person deems significant or of interest and such other information as 
the Administrator may request the person to submit.
    (b) If circumstances prevent the signing of a contract or agreement 
to perform, or receipt of an authorization to proceed with, a weather 
modification activity at a date early enough to comply with paragraph 
(a) of this section, the initial report shall be provided so as to be 
received by the Administrator within 10 days of the date of signing of 
the contract or agreement, or receipt of authorization to proceed. In 
such cases, the report shall be accompanied by an explanation as to why 
it was not submitted at least 10 days prior to the commencement of the 
activity.
    (c) In the event that circumstances beyond the control of the person 
liable to report under these regulations prevent the submission of the 
initial report in a timely manner as described above, the report shall 
be forwarded as early as possible, accompanied by an explanation as to 
why a timely report

[[Page 73]]

has not been provided. If such explanation is deemed adequate, the 
Administrator will consider the report as timely filed.



Sec. 908.5  Interim reports.

    (a) Any person engaged in a weather modification project or activity 
in the United States on January 1 in any year shall submit to the 
Administrator, not later than 45 days thereafter, an interim report 
setting forth as of such date the information required below with 
respect to any such continuing project or activity not previously 
furnished to the Administrator in a prior interim report; provided that 
the January 1 date shall not apply if other arrangements have previously 
been made with the written approval of the Administrator.
    (b) The interim report shall include the file number assigned by the 
Administrator and shall provide a summary of the project or activity 
containing at least the following information for each month:
    (1) Number of days on which actual modification activities took 
place;
    (2) Number of days on which weather modification activities were 
conducted, segregated by each of the major purposes of the activities;
    (3) Total number of hours of operation of each type of weather 
modification apparatus (i.e., net hours of agent release);
    (4) Total amount of agent used. If more than one agent was used, 
each should be totaled separately (e.g., carbon dioxide, sodium 
chloride, urea, silver iodide).
    (c) The totals for the items in paragraph (b) of this section shall 
be provided for the period covered by the interim report.

[41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]



Sec. 908.6  Final report.

    Upon completion of a weather modification project or activity the 
person who performed the same shall submit a report to the Administrator 
not later than 45 days after completion of the project or activity. The 
report shall include the file number assigned by the Administrator and 
the following items:
    (a) Information required for the interim reports (to the extent not 
previously reported).
    (b) The total number of days on which actual modification activities 
took place during the project or activity.
    (c) The total number of days during the project or activity on which 
weather modification activities were conducted, segregated by each of 
the major purposes of the activities.
    (d) The total number of hours of operation of each type of weather 
modification apparatus during the project or activity (i.e., net hours 
of agent release).
    (e) The total amount of modification agent(s) dispensed during the 
project or activity. If more than one agent was used, each should be 
totaled separately (e.g., carbon dioxide, sodium chloride, urea, silver 
iodide).
    (f) The date on which the final weather modification activity 
occurred.

[41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]



Sec. 908.7  Supplemental reports.

    Notwithstanding other regulations, a supplemental report in letter 
form referring to the appropriate NOAA file number, if assigned, must be 
made to the Administrator immediately if any report of weather 
modification activities submitted under Sec. 908.4, Sec. 908.5, or 
Sec. 908.6 is found to contain any material inaccuracies, 
misstatements, and omissions. A supplemental report must also be made if 
there are changes in plans for the project or activity.



Sec. 908.8  Maintenance of records.

    (a) Any person engaging in a weather modification activity in the 
United States shall maintain a record of such activity. This record 
shall contain at least the following, when applicable:
    (1) A chronological record of activities carried on, preferably in 
the form of a daily log, which shall include the NOAA file number 
assigned to the project, the designation of each unit of weather 
modification apparatus, and at least the following information for each 
unit:
    (i) Date of the weather modification activity.

[[Page 74]]

    (ii) Position of each aircraft or location of each item of weather 
modification apparatus during each modification mission. Maps may be 
used.
    (iii) Time when weather modification activity began and ended.
    (iv) Total duration of operation of each unit of weather 
modification apparatus (i.e., net hours of agent release).
    (v) Type of each modification agent used.
    (vi) Rate of dispersal of each agent during the period of actual 
operation of weather modification apparatus.
    (vii) Total amount of agent used. If more than one agent was used, 
report total for each type separately.
    (viii) Number of days on which weather modification activities were 
conducted, segregated by each of the major purposes of the activities.
    (2) The monthly totals of hours of modification activity, the amount 
of modification agent used, and the number of days on which weather 
modification activities were conducted, segregated by each of the major 
purposes of the activities, shall be shown on the daily log sheet for 
the last day of each month.
    (b) When the activity involves ground-based weather modification 
apparatus, records of the following shall also be maintained, when 
applicable, but need not be made part of the daily log:
    (1) The location of each item of weather modification apparatus in 
use and its identification such as type and manufacturer's model number. 
If the apparatus is not commercially available, a brief description of 
the apparatus and the method of operation should be recorded.
    (2) The name and address of the person responsible for operating 
each weather modification apparatus.
    (3) The altitude and type of weather phenomenon subjected to weather 
modification activity during each operational period (e.g., cumulus 
clouds between 10,000 and 30,000 feet m.s.l.; ground fog).
    (c) When the activity involves airborne weather modification 
apparatus, records of the following shall also be maintained, when 
applicable, but need not be made a part of the daily log: For each 
airborne weather modification apparatus run: Altitude, air speed; 
release points of modification agents, method of modification and 
characteristics of flares, rockets, or other delivery systems employed; 
temperature at release altitude; and, for aircraft: The type of 
aircraft, its identification number, the airport or airports used, and 
the names and addresses of crew members and the person responsible for 
operating the weather modification apparatus; and the altitude and type 
of weather phenomenon subjected to weather modification activity during 
each operational period (e.g., cumulus clouds between 10,000 and 30,000 
feet m.s.l.; ground fog).
    (d) The following records shall also be maintained, whenever 
applicable, but need not be made a part of the daily log. Only data 
specifically collected for the reported activity need be retained; data 
available from other sources need not be included.
    (1) Any descriptions that were recorded of meteorological condiitons 
in target and control areas during the periods of operation; for 
example: Percent of cloud cover, temperature, humidity, the presence of 
lightning, hail, funnel clouds, heavy rain or snow, and unusual radar 
patterns.
    (2) All measurements made of precipitation in target and control 
areas.
    (3) Any unusual results.



Sec. 908.9  Retention of records.

    Records required under Sec. 908.8 shall be retained and available 
for inspection by the Administrator or his designated representatives 
for 3 years after completion of the activity to which they relate. Such 
records shall be required to be produced for inspection only at the 
place where normally kept. The Administrator shall have the right to 
make copies of such records, if he or she deems necessary.

[52 FR 4896, Feb. 18, 1987]



Sec. 908.10  Penalties.

    Knowing and willful violation of any rule adopted under the 
authority of section 2 of Public Law 92-205 shall subject the person 
violating such rule to a fine of not more than $10,000, upon conviction 
thereof.

[[Page 75]]



Sec. 908.11  Maintenance of records of related activities.

    (a) Persons whose activities relate to weather modification 
activities, other than persons engaged in weather modification 
activities, shall maintain records concerning the identities of 
purchasers or users of weather modification apparatus or materials, the 
quantities or numbers of items purchased, and the times of such 
purchases. Such information shall be retained for at least 3 years.
    (b) In addition, persons whose activities relate to weather 
modification shall be required, under the authority of section 4 of 
Public Law 92-205, to provide the Administrator, on his request, with 
information he deems necessary to carry out the purposes of this act.

[41 FR 23394, June 10, 1976, as amended at 52 FR 4896, Feb. 18, 1987]



Sec. 908.12  Public disclosure of information.

    (a) Any records or other information obtained by the Administrator 
under these rules or otherwise under the authority of Public Law 92-205 
shall be made publicly available to the fullest practicable extent. Such 
records or information may be inspected on written request to the 
Administrator. However, the Administrator will not disclose any 
information referred to in section 1905 of title 18, United States Code, 
and that is otherwise unavailable to the public, except that such 
information shall be disclosed:
    (1) To other Federal government departments, agencies, and officials 
for official use upon request;
    (2) In any judicial proceeding under a court order formulated to 
preserve the confidentiality of such information without impairing the 
proceeding; and
    (3) To the public, if necessary to protect their health and safety.
    (b) Certified copies of such reports and information, to the extent 
publicly disclosable, may be obtained from the Administrator at cost in 
accordance with the Department of Commerce implementation of the Freedom 
of Information Act.
    (c) Persons reporting on weather modification projects or related 
activities shall specifically identify all information that they 
consider not to be subject to public disclosure under the terms of 
Public Law 92-205 and provide reasons in support thereof. A 
determination as to whether or not reported information is subject to 
public dissemination shall be made by the Administrator.
    (d) When consideration of a weather modification activity report and 
related information indicates that a proposed project may significantly 
depart from the practices or procedures generally employed in similar 
circumstances to avoid danger to persons, property, or the environment, 
or indicates that success of Federal research projects may be adversely 
affected if the proposed project is carried out as described, the 
Administrator will notify the operator(s) and State officials of such 
possibility and make recommendations where appropriate. The purpose of 
such notification shall be to inform those notified of existing 
practices and procedures or Federal research projects known to NOAA. 
Notification or recommendation, or failure to notify or recommend, shall 
not be construed as approval or disapproval of a proposed project or as 
an indication that, if carried out as proposed or recommended it may, in 
any way, protect or endanger persons, property, or the environment or 
affect the success of any Federal research project. Any advisory 
notification issued by the Administrator shall be available to the 
public and be included in the pertinent activity report file.



Sec. 908.13  Address of letters.

    Letters and other communications intended for the Administrator, in 
connection with weather modification reporting or activities, shall be 
addressed to: The Administrator, National Oceanic and Atmospheric 
Administration, Environmental Modification Office, Rockville, Md. 20852.



Sec. 908.14  Business to be transacted in writing.

    All business transacted with the National Oceanic and Atmospheric 
Administration with regard to reports of weather modification activities 
should be transacted in writing. Actions of the

[[Page 76]]

National Oceanic and Atmospheric Administration will be based 
exclusively on the written record.



Sec. 908.15  Times for taking action; expiration on Saturday, Sunday, 
or holiday.

    Whenever periods of time are specified in these rules in days, 
calendar days are intended. When the day, or the last day, fixed under 
these rules for taking any action falls on a Saturday, Sunday, or on a 
Federal holiday, the action may be taken on the next succeeding day 
which is not a Saturday, Sunday, or Federal holiday.



Sec. 908.16  Signature.

    All reports filed with the National Oceanic and Atmospheric 
Administration must be dated and signed by or on behalf of the person 
conducting or intending to conduct the weather modification activities 
referred to therein by such person, individually or, in the case of a 
person other than an individual, by a partner, officer, or other person 
having corresponding functions and authority. For this purpose 
``officer'' means a president, vice president, treasurer, secretary, or 
comptroller. Notwithstanding the foregoing, such reports may also be 
signed by the duly authorized agent or attorney of the person whose 
activities are being reported. Proof of such authorization shall be 
furnished to the Administrator when filing a report, unless previously 
furnished.



Sec. 908.17  Suspension or waiver of rules.

    In an extraordinary situation, any requirement of these rules may be 
suspended or waived by the Administrator on request of the interested 
party, to the extent such waiver is consistent with the provisions of 
Public Law 92-205 and subject to such other requirements as may be 
imposed.



Sec. 908.18  Matters not specifically provided for in rules.

    All matters not specifically provided for or situations not 
specifically addressed in these rules will be decided in accordance with 
the merits of each case by or under the authority of the Administrator, 
and such decision will be communicated in writing to all parties 
involved in the case.



Sec. 908.19  Publication of notice of proposed amendments.

    Whenever required by law, and in other cases whenever practicable, 
notice of proposed amendments to these rules will be published in the 
Federal Register. If not published with the notice, copies of the text 
of proposed amendments will be furnished to any person requesting the 
same. All comments, suggestions, and briefs received within the time 
specified in the notice will be considered before adoption of the 
proposed amendments, which may be modified in the light thereof. 
Informal hearings may be held at the discretion of the Administrator.



Sec. 908.20  Effective date.

    These rules are effective on June 10, 1976.



Sec. 908.21  Report form.

    Public Law 92-205 and these rules should be studied carefully prior 
to reporting. Reports required by these rules shall be submitted on 
forms obtainable on request from the Administrator, or on an equivalent 
format.\1\ In special situations, such alterations to the forms as the 
circumstances thereto may render necessary may be made, provided they do 
not depart from the requirements of these rules or of Public Law 92-205.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document.
---------------------------------------------------------------------------

                           PART 909 [RESERVED]



PART 911_POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-BASED 
DATA COLLECTION SYSTEMS--Table of Contents




Sec.
911.1 Purpose.
911.2 Scope.
911.3 Definitions.
911.4 Use of the NOAA Data Collection Systems.
911.5 NOAA Data Collection Systems Use Agreements.
911.6 Treatment of data.
911.7 Continuation of the NOAA Data Collection Systems.

[[Page 77]]

911.8 Technical requirements.

Appendix A to Part 911--Argos DCS Use Policy Diagram
Appendix B to Part 911--GOES DCS Use Policy Diagram

    Authority: 15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7 U.S.C. 
450b; 5 U.S.C. 552.

    Source: 63 FR 24922, May 6, 1998, unless otherwise noted.



Sec. 911.1   Purpose.

    These regulations set forth the procedural, informational and 
technical requirements for use of the NOAA Data Collection Systems 
(DCS). In addition, they establish the criteria NOAA will employ when 
making determinations as to whether to authorize the use of its space-
based DCS. The regulations are intended to facilitate the collection of 
environmental data as well as other such data which the Government is 
interested in collecting. In those instances where space-based 
commercial systems do not meet users' requirements, the intent is to not 
disadvantage the development of the commercial space-based services in 
this sector. Obtaining a system use agreement to operate data collection 
platforms pursuant to these regulations does not affect related 
licensing requirements of other Federal agencies such as the Federal 
Communications Commission.



Sec. 911.2   Scope.

    (a) These regulations apply to any person subject to the 
jurisdiction or control of the United States who operates or proposes to 
operate data collection platforms to be used with the NOAA DCS either 
directly or through an affiliate or subsidiary. For the purposes of 
these regulations a person is subject to the jurisdiction or control of 
the United States if such person is:
    (1) An individual who is a U.S. citizen; or
    (2) A corporation, partnership, association, or other entity 
organized or existing under the laws of any state, territory, or 
possession of the United States.
    (b) These regulations apply to all existing Geostationary 
Operational Environmental Satellite (GOES) and Argos DCS users as well 
as all future applications for NOAA DCS use.



Sec. 911.3   Definitions.

    For purposes of this part:
    (a) Approving authority means NOAA for the GOES DCS; and it means 
the Argos Participating Agencies, via the Argos Operations Committee, 
for the Argos DCS.
    (b) Argos DCS means the system which collects data from fixed and 
moving platforms and provides platform location data. This system 
consists of platforms, the Argos French instrument on the Polar-orbiting 
Operational Environmental Satellites (POES) and other international 
satellites; a ground processing system; and telemetry ground stations.
    (c) Argos participating agencies means those agencies of the United 
States and other countries that participate in the management of the 
Argos DCS.
    (d) Assistant Administrator means the Assistant Administrator for 
Satellite and Information Services, NOAA, or his/her designee.
    (e) Director means the Director of the Office of Satellite Data 
Processing and Distribution for the National Environmental Satellite, 
Data, and Information Service of NOAA.
    (f) Environmental data means environmental measurement data for the 
purpose of using the GOES DCS; and it means environmental measurement 
and environmental protection data for the purpose of using the Argos 
DCS.
    (g) Environmental measurement data means data that relate to the 
characteristics of the Earth and its natural phenomena by helping to 
better understand, evaluate, or monitor its natural resources.
    (h) Environmental protection data means data that relate to the 
characteristics of the Earth and its environment (including its 
ecosystems and the species which inhabit them) by helping to protect 
against any unreasonable adverse effects thereto.
    (i) Episodic use means the use of the system for short events where 
there is a significant possibility of loss of life, such as for Arctic 
expeditions or scientific campaigns into remote areas.
    (j) Government interest means that the use is determined in advance 
to be of interest to one or more governmental entities of the United 
States, France or, once they have become an Argos

[[Page 78]]

Participating Agency, Japan or a European Organization for the 
Exploitation of Meteorological Satellites (EUMETSAT) member state; or 
also, in the case of the GOES DCS, a state or local government.
    (k) Government user means agencies of international governmental 
organizations, national government or any subdivision thereof, or any of 
those agencies' contractors or grantees, so long as the contractor is 
using the data collected by the NOAA DCS to fulfill its contractual 
obligations to the government agency or in the case of a grantee that 
these data are being used in accordance with the statement of work for 
the award.
    (l) NOAA DCS means the GOES and Argos space-based DCS.
    (m) Non-profit user means a not-for-profit academic, research, or 
other non-governmental organization, which is using these data, for 
education and/or scientific, non-commercial purposes.
    (n) Operational use means the use of data in a situation where the 
utility of the data are significantly reduced if not collected or 
delivered in a specific time window. This includes situations where 
extensive preparation work is in place and a delay in acquisition of 
data would jeopardize the project.
    (o) Platform compatibility means the compatibility of the platform 
with the space segment of the system, and includes elements such as 
message length and composition, signal strength, and transmission 
protocol (e.g., continuous versus event drive).
    (p) Sensitive use means the use of the NOAA DCS where the users' 
requirements dictate the use of a governmental system such as National 
security, homeland security, law enforcement and humanitarian 
operations.
    (q) Testing use means the use of the NOAA DCS by manufacturers of 
platforms for use in conjunction with the NOAA DCS, for the limited 
purpose of testing and certifying the compatibility of new platforms 
with the technical requirements of the NOAA DCS.
    (r) User means the entity and/or organization that owns or operates 
user platforms for the purpose of collecting and transmitting data 
through the NOAA DCS, or the organization requiring the collection of 
the data.
    (s) User platform means device designed in accordance with the 
specifications delineated and approved by the Approving Authority used 
for the in-situ collection and subsequent transmission of data via the 
NOAA DCS. Those devices which are used in conjunction with the GOES DCS 
are referred to as data collection platforms (DCP) and those which are 
used in conjunction with the Argos DCS are referred to as Platform 
Transmitter Terminals (PTT). For purposes of these regulations, the 
terms ``user platform,'' ``DCP'', and ``PTT'' are interchangeable.
    (t) User requirement means the requirement expressed and explained 
in the System Use Agreement.

[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]



Sec. 911.4  Use of the NOAA Data Collection Systems.

    (a) Use of the NOAA DCS will only be authorized in accordance with 
the conditions and requirements set forth in paragraphs (b), (c), (d), 
(e), and (f) of this section.
    (b)(1) Use of the NOAA DCS will only be authorized where it is 
determined that there are no commercial space-based services available 
that meet the user's requirements.
    (2) A determination under paragraph (b)(1) of this section must be 
based on such factors as satellite coverage, accuracy, data throughput, 
platform power consumption, size and weight, service continuity and 
reliability, platform compatibility, system access mode, and, in the 
case of government agencies, cost-effectiveness.
    (c)(1) Except as provided in paragraphs (c)(2), (3), (4), and (5) of 
this section, NOAA DCS shall only be used for the collection of 
environmental data by governmental and/or non-profit users.
    (2) Non-governmental, environmental use of the NOAA DCS is only 
authorized where there is a Government interest in the collection and/or 
receipt of the data.
    (3) Except as provided in paragraph (c)(4) of this section, non-
environmental use of the NOAA DCS is only authorized for government use 
and

[[Page 79]]

non-profit users where there is a government interest. The NOAA DCS will 
continue to be predominantly used for environmental applications. Non-
environmental use of the system shall be limited to sensitive use, and 
to episodic use as defined below in paragraph (c)(4) of this section.
    (4) Episodic use of the NOAA DCS may also be authorized in specific 
instances where there is a significant possibility for loss of life. 
Such use shall be closely monitored.
    (5) Testing use of the NOAA DCS will only be authorized for 
manufacturers of NOAA DCS platforms, that require access to the system 
in order to test and certify prototype and production models.
    (d) Because of capacity limitations on the GOES DCS, system 
applicants will be admitted to use the GOES system in accordance with 
the following priority:
    (1) NOAA programs or users whose data are required for 
implementation of NOAA programs, as determined by the Assistant 
Administrator, will be accorded first priority.
    (2) Users whose data are desired to support NOAA programs will be 
accorded second priority.
    (3) Users whose data and/or use of the GOES DCS will further a 
program of an agency or department of the U.S. Government, other than 
NOAA, will be accorded third priority.
    (4) Users whose data are required by a state or local Government of 
the United States will be accorded fourth priority.
    (5) Testing users of the system will be accorded fifth priority.
    (6) No other usage will be authorized for the GOES DCS.
    (e) In the event that Argos DCS capacity limitations require that 
priority determinations be made, priority will be given to those 
platforms that provide environmental data of broad international 
interest, especially of an operational nature, and to those requiring 
the unique capabilities of the Argos DCS, such as platform location or 
polar coverage.

[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]



Sec. 911.5  NOAA Data Collection Systems Use Agreements.

    (a)(1) In order to use a NOAA DCS, each user must have an agreement 
with the approving authority for that system.
    (2) Persons interested in entering into a system use agreement 
should contact the Director.
    (b) These agreements will address, but may not be limited to, the 
following matters:
    (1) The period of time the agreement is valid and procedures for its 
termination,
    (2) The authorized use(s), and its priorities for use,
    (3) The extent of the availability of commercial space-based 
services which meet the user's requirements and the reasons for 
necessitating the use of the Government system,
    (4) Any applicable government interest in the data,
    (5) Required equipment standards,
    (6) Standards of operation,
    (7) Conformance with applicable ITU and FCC agreements and 
regulations,
    (8) Reporting time and frequencies,
    (9) Data formats,
    (10) Data delivery systems and schedules, and
    (11) User-borne costs.
    (c) The Director shall evaluate user requests for System Use 
Agreements and renewals and conclude agreements for use of the NOAA DCS.
    (d)(1) Agreements for the collection, via the Argos DCS, of 
environmental data by government agencies or non-profit institutions 
shall be valid for 3 years from the date of initial in-situ deployment 
of the platforms, and may be renewed for additional 3-year periods.
    (2) Agreements for the collection of environmental data, via the 
Argos DCS, by non-government users shall be valid for 1 year from the 
date of initial in-situ deployment of the platforms, and may be renewed 
for additional 1-year periods, but only for so long as there exists a 
governmental interest in the receipt of these data.
    (3) Agreements for the collection of non-environmental data, via the 
Argos DCS, by government agencies, or non-profit institutions where 
there is a government interest, shall be valid for 1

[[Page 80]]

year from the date of initial in-situ deployment of the platforms, and 
may be renewed for additional 1-year periods.
    (4) Agreements for the episodic collection of non-environmental 
data, via the Argos DCS under Sec. 911.4(c)(4), shall be of short, 
finite duration not to exceed 1 year without exception, and usually 
shall not exceed 6 months. These agreements shall be closely monitored 
and shall not be renewed.
    (5) Agreements for the testing use of the Argos DCS by equipment 
manufacturers shall be valid for 1 year from the date of initial 
testing, and may be renewed for additional 1-year periods.
    (e)(1) Agreements for the collection of environmental data, by the 
GOES DCS, shall be valid for 5 years from the date of initial in-situ 
deployment, and may be renewed for additional 5-year periods.
    (2) Agreements for the testing use of the GOES DCS, by equipment 
manufacturers, shall be valid for 1 year from the date of initial 
testing, and may be renewed for additional 1-year periods.
    (3) Agreements for the collection of non-environmental data, via the 
GOES DCS, by government agencies, or non-profit institutions where there 
is a government interest, shall be valid for 1 year from the date of 
initial in-situ deployment of the platforms, and may be renewed for 
additional 1-year periods.
    (4) Agreements for the episodic collection of non-environmental 
data, via the GOES DCS under Sec. 911.4(c)(4), shall be of short, 
finite duration not to exceed 1 year without exception, and usually 
shall not exceed 6 months. These agreements shall be closely monitored 
and shall not be renewed.

[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]



Sec. 911.6  Treatment of data.

    (a) All NOAA DCS users must agree to permit NOAA and other agencies 
of the U.S. Government the full, open, timely, and appropriate use as 
determined by NOAA, of all environmental data collected from their 
platforms; this may include the international distribution of 
environmental data under the auspices of the World Meteorological 
Organization.
    (b) Raw data from the NOAA space segment is openly transmitted and 
accessible.
    (c) Accessibility of the NOAA DCS processed data from the ground 
segment is handled in accordance with the users specifications and 
system design limitations, subject to the provisions stated in paragraph 
(a) of this section.

[68 FR 45161, Aug. 1, 2003]



Sec. 911.7  Continuation of the NOAA Data Collection Systems.

    (a) NOAA expects to continue to operate DCS on its geostationary and 
polar-orbiting satellites, subject to the availability of future 
appropriations. However, viable commercial space-based alternatives may 
eventually obviate the need for NOAA to operate its own space-based DCS.
    (b) If use of the system in support of NOAA programs increases, it 
eventually may be necessary to the further restrict system usage by 
other users. If such restrictions on use become necessary, or in the 
event that NOAA discontinues operation of GOES and/or POES, NOAA will 
provide, to the maximum extent practicable, advance notice and an 
orderly transition.
    (c) NOAA will not be responsible for any losses resulting from the 
nonavailability of the NOAA DCS.



Sec. 911.8  Technical requirements.

    (a) All platform operators of the NOAA DCS must use a data 
collection platform radio set whose technical and design characteristics 
are certified to conform to applicable specifications and regulations.
    (b) All platform operators are responsible for all costs associated 
with the procurement and operation of the platforms, and for the 
acquisition of data from those platforms, either directly from the 
satellite or from the applicable data processing center.

[[Page 81]]

          Appendix A to Part 911--Argos DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR01AU03.015


[68 FR 45161, Aug. 1, 2003]

[[Page 82]]

           Appendix B to Part 911--GOES DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR01AU03.016


[68 FR 45162, Aug. 1, 2003]

[[Page 83]]



PART 917_NATIONAL SEA GRANT PROGRAM FUNDING REGULATIONS--Table of 
Contents




                            Subpart A_General

Sec.
917.1 Basic provisions.
917.2 Definitions.

               Subpart B_Sea Grant Matched Funding Program

917.10 General.
917.11 Guidelines for Sea Grant Fellowships.

                       Subpart C_National Projects

917.20 General.
917.21 National needs and problems.
917.22 National Projects funding.

             Subpart D_International Cooperation Assistance

917.30 General.

    Subpart E_General Considerations Pertaining to Sea Grant Funding

917.40 General.
917.41 Application guidance for Sea Grant funding.
917.42 Categories of support available for the conducting of Sea Grant 
          activities.
917.43 Terms and conditions of Sea Grant funding.

    Authority: Pub. L. 94-461, 90 Stat. 1961 (33 U.S.C. 1121 et seq.).

    Source: 43 FR 15307, Apr. 11, 1978, unless otherwise noted.



                            Subpart A_General



Sec. 917.1  Basic provisions.

    (a) This section sets forth the basic purposes for which Sea Grant 
funding may be made pursuant to the following sections of the Act: 33 
U.S.C. 1124, 1127, 1125 and 1124a. These sections provide for the 
funding of programs and projects in fields related to ocean and coastal 
resources that involve marine research, marine education and training, 
and marine advisory services. However, there is a significant difference 
in focus among these sections since section 1124(a) is concerned chiefly 
with regional and state needs relative to ocean and coastal resources 
(including the funding of Sea Grant Fellowships under section 1127) 
while section 1125 is concerned with national needs and problems 
relative to ocean and coastal resources, and section 1124a is concerned 
with programs of international cooperation assistance with respect to 
those resources.
    (b) Comment: Statutory citation 33 U.S.C. 1124(a):

    In General. The Secretary may make grants and enter into contracts 
under this subsection to assist any Sea Grant program or project if the 
Secretary finds that such program or project will--
    (1) Implement the objective set forth in Section 202(b); and
    (2) Be responsive to the needs or problems of individual states or 
regions.
    The total amount paid pursuant to any such grant or contract may 
equal 66\2/3\ percent, or any lesser percent, of the total cost of the 
Sea Grant program or project involved.

    (c) Comment: Statutory citation 33 U.S.C. 1127(a):

    In General. The Secretary may enter into contracts and make grants 
under this section to--
    (1) Enhance the research and development capability of developing 
foreign nations with respect to ocean and coastal resources.
    (2) Promote the international exchange of information and data with 
respect to the assessment, development, utilization, and conservation of 
such resources.



Sec. 917.2  Definitions.

    (a) The term Act means the Sea Grant Program Improvement Act of 
1976, as amended (33 U.S.C. 1121 et seq.).
    (b) The term Secretary means the Secretary of Commerce.
    (c) The term Administrator means the Administrator of the National 
Oceanic and Atmospheric Administration.
    (d) The term Office of Sea Grant means the National Oceanic and 
Atmospheric Administration's Office of Sea Grant, which administers the 
National Sea Grant Program provided for in the Act.
    (e) The term objective of the Act means the objective set forth at 
33 U.S.C. 1121(b) and is ``is to increase the understanding, assessment, 
development, utilization, and conservation of the Nation's ocean and 
coastal resources by providing assistance to promote a strong 
educational base, responsive research and training activities, and broad 
and prompt dissemination of knowledge and techniques.''

[[Page 84]]

    (f) The term ocean and coastal resource(s) is as defined at 33 
U.S.C. 1122(7) and means:

any resource (whether living, nonliving, manmade, tangible, intangible, 
actual, or potential) which is located in, derived from, or traceable 
to, the marine environment.
    Such term includes the habitat of any such living resource, the 
coastal space, the ecosystems, the nutrient rich areas, and the other 
components of the marine environment which contribute to or provide (or 
which are capable of contributing to or providing) recreational, scenic, 
esthetic, biological, habitational, commercial, economic, or 
conservation values. Living resources include natural and cultured plant 
life, fish, shellfish, marine mammals, and wildlife. Nonliving resources 
include energy sources, minerals, and chemical substances.

    (g) The term marine environment used in the definition for ``ocean 
and coastal resources'' in Sec. 917.2(e) and used elsewhere in these 
regulations is as defined at 33 U.S.C. 1122(6) and means:

the coastal zone, as defined in Section 304(1) of the Coastal Zone 
Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil, and 
waters of the territorial sea of the United States; the waters of any 
zone over which the United States asserts exclusive fishery management 
authority; the waters of the high seas; and the seabed and subsoil of 
and beyond the outer Continental Shelf.

    (h) The term person is as defined at 33 U.S.C. 1122(9) and means: 
``any individual; any public or private corporation, partnership, or 
other association or entity (including any Sea Grant College, Sea Grant 
Regional Consortium, education, institute, or laboratory); or any state, 
political subdivision of a state, or agency or officer thereof.''
    (i) The term Sea Grant College is as defined at 33 U.S.C. 1122(10) 
and means: ``any public or private institution of higher education which 
is designated as such by the Secretary . . .'' pursuant to regulations 
promulgated at 15 CFR part 918.
    (j) The term Sea Grant Program is as defined at 33 U.S.C. 1122(11) 
and means: ``any program which'' (1) is administered by a Sea Grant 
College, Sea Grant Regional Consortium, institution of higher education, 
institute, laboratory, or state or local agency; and (2) includes two or 
more projects involving one or more of the following activities in 
fields related to ocean and coastal resources:
    (i) Research,
    (ii) Education,
    (iii) Training, or
    (iv) Advisory services.
    (k) The term Sea Grant Program Directors means the local Directors 
of the Sea Grant coherent area programs, insititutional programs, Sea 
Grant Colleges, and Sea Grant Regional Consortia.
    (l) The term Sea Grant Regional Consortium is as defined at 33 
U.S.C. 1122(12) and means: ``any association or alliance which is 
designated as such by the Secretary . . .'' pursuant to regulations 
promulgated at 15 CFR part 918.
    (m) The term state is as defined at 33 U.S.C. 1122 (14) and means: 
``any state of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
the Commonwealth of the Mariana Islands, or any other territory or 
possession of the United States.''
    (n) The term developing foreign nations includes any foreign nation 
other than a foreign nation that is ineligible for designation under 
section 502(b) of the Trade Act of 1974, (19 U.S.C. 2462(b)) as a 
benificiary developing country under Title of that Act.



               Subpart B_Sea Grant Matched Funding Program



Sec. 917.10  General.

    (a) 33 U.S.C. 1124(a) establishes a program for the funding of Sea 
Grant Programs and projects dealing with marine research, marine 
education and training, and/or marine advisory services, that are 
designed to achieve the objective of the Act and that generally respond 
to the needs of individual states or regions. Included as a part of this 
program is the Sea Grant Fellowship Program, established by 33 U.S.C. 
1127. Any person may apply to the Office of Sea Grant for Sea Grant 
Matched Funding Program Monies, except for Sea Grant Fellowship funding. 
Sea Grant Fellowship funding may be granted only to Sea Grant Colleges, 
Sea Grant Regional Consortia, institutions of higher education, and 
professional associations and institutions.

[[Page 85]]

    (b) Federal Sea Grant funding for the section 1124(a) Matched 
Funding Program cannot exceed 66\2/3\ percent of the total cost of the 
project involved.



Sec. 917.11  Guidelines for Sea Grant Fellowships.

    (a) Sea Grant Fellowships are designed to provide educational and 
training assistance to qualified individuals at the undergraduate and 
graduate levels of education in fields related to ocean and coastal 
resources. The objective of the program is to increase the national 
supply of individuals educated and trained in the assessment, 
development, utilization, and conservation of ocean and coastal 
resources. The purpose of this section is to provide guidelines 
regarding the content of applications for Sea Grant Fellowship funding.
    (b) Funding will be made to eligible entities (see Sec. 917.10 of 
this part) that are selected to award and administer Sea Grant 
Fellowships. Fellowships will not be awarded directly to students by the 
Office of Sea Grant. The entity receiving Fellowship funding will select 
the students to be awarded the Fellowships and will handle the 
administration of the Fellowships.
    (c) Proposals for Fellowship funding will be expected to address (1) 
the nature and focus of the proposed Fellowship Program, (2) the 
utilization of institutional or other appropriate resources in the 
education and training of Sea Grant Fellows, (3) the method of 
advertising availability of the Fellowships, (4) the method of selection 
of recipients, and (5) the terms of tenure and method of determining 
continuity of tenure.
    (d) Innovation and uniqueness will be significant factors in the 
determination of which proposals will be funded. Another factor 
considered will be the potential of the proposed program to stimulate 
interest in marine related careers among those individuals; for example, 
minorities, women, and the handicapped whose previous background or 
training might not have generated such an interest.
    (e) The total amount that may be provided for grants under the Sea 
Grant Fellowship Program during any fiscal year cannot exceed an amount 
equal to five percent of the total funds appropriated for the Matched 
Funding Program for that year. Fellowship programs are subject to the 
requirement of a minimum of 33\1/3\ percent matching funds from non-
Federal sources to which all Matched Funding Program projects are 
subject. Indirect costs are not allowable for either the Fellowships or 
for any costs associated with the Fellowships.

Considering the variations in the cost-of-living and the differences in 
tuition, fees, etc., between one college or university and another, the 
amount of money requested and awarded per Fellowship may vary.



                       Subpart C_National Projects



Sec. 917.20  General.

    (a) 33 U.S.C. 1125 requires the Secretary to identify specific 
national needs and problems relative to ocean and coastal resources. 
This responsibility has been delegated to the Administrator. The 
designation is intended to focus public attention on needs and problems 
of the marine environment that are considered to be of particular 
national importance at a given point in time.
    (b) 33 U.S.C. 1125 provides for the funding of national projects in 
marine research, marine education and training, and marine advisory 
services that are designed to deal with the national needs and problems 
concerning ocean and coastal resources identified by the Administrator.
    (c) The Administrator will identify the national needs and problems 
apart from considerations of Office of Sea Grant funding for ``National 
Projects'' responsive to national needs and problems that are 
identified.



Sec. 917.21  National needs and problems.

    (a) The Administrator will, periodically, publish in the Federal 
Register the identified national needs and problems with respect to 
ocean and coastal resources at a given point in time.
    (b) Suggestions from the general public as to the identity of 
national needs and problems may be submitted to the Office of Sea Grant 
at any time. These suggestions will be reviewed by the Office of Sea 
Grant and the Sea Grant Review Panel, and those receiving a

[[Page 86]]

positive critique will be forwarded to the Administrator. In addition, 
suggestions concerning the identification of national needs and problems 
will be requested from the Sea Grant Program Directors.
    (c) The Administrator has identified the following as currently 
being national needs and problems with respect to ocean and coastal 
resources:global and regional climate and primary productivity.
    (1) Improve the prediction of extreme natural events and their 
effects on ocean coastal and continental shelf locations as well as 
analogous regions of the Great Lakes.
    (2) Improve the predictability of global sea-level change and 
determine the impact of this change on coastal areas.
    (3) Define the processes that determine ocean variability on the 
time scale of a few weeks to a few years, and the relationship to 
fluctuations in global and regional climate, primary productivity, and 
fisheries production.
    (4) Improve understanding of the flow fields and mixing processes on 
the continental shelves of the United States.
    (5) Develop an increased understanding of the arctic and antarctic 
environment and a capability to predict the special hazards posed to 
transportation and resource development.
    (6) Develop and increased capability to characterize the engineering 
properties of ocean botton sediments.
    (7) Reduce the recurring economic loss due to corrosion of 
structures, vessels, and other devices in the marine environment.
    (8) Gain a fundamental understanding of the processes by which 
biological fouling and associated corrosion are initiated upon material 
surfaces exposed to seawater.
    (9) Investigate methods to improve man's underwater capability to 
conduct undersea research and perform useful work.
    (10) Investigate the wider application of remotely operated and 
artificial intelligence techniques for vehicles for undersea activities.
    (11) Expand/improve remote sensing technologies for use on the ocean 
and Great Lakes.
    (12) Advance knowledge of acoustics in the ocean and ocean bottom in 
order to exploit the burgeoning acoustics technologies.
    (13) Develop techniques for in-situ monitoring of biological, 
chemical, and physical processes in the Great Lakes, oceans, and their 
connecting waterways which are cost effective and provide data in real 
time.
    (14) Improve the position of the U.S. seafood industry in world 
seafood markets.
    (15) Design more efficient mechanisms to allocate U.S. fish 
resources to achieve optimum yield and minimize industry dislocations.
    (16) Gain a fundamental understanding of the biological productivity 
of estuarine and coastal waters.
    (17) Conduct research leading to the restoration and/or enhancement 
of heavily exploited fishery stocks.
    (18) Improve the capability for stock assessment, predicting yield, 
age-class strength, and long-term population status of important 
fisheries.
    (19) Conduct research to increase the economic potential of low-
value, high-volume fish products.
    (20) Develop productive and profitable aquaculture industries in the 
United States and technology that can be exported to less developed 
nations of the world with different climate, cultural, and economic 
constraints.
    (21) Explore marine biochemicals as source of chemical feedstocks, 
enzymes, pharmacological substance, and other bioactive agents such as 
pesticides.
    (22) Apply modern biotechnology to exploiting marine plants, 
animals, and microorganisms for good and services.
    (23) Develop rapid, efficient, and specific methods for assaying the 
potential of marine organisms to communicate disease to humans.
    (24) Develop innovations that would promote safe, nondestructive, 
recreational access to and use of marine and Great Lakes water.
    (25) Re-examine the ocean as an appropriate place for the disposal 
of wastes from land-based society.
    (26) Develop an increased understanding of the impacts of low 
density, nonbiodegradable, solid wastes on marine and Great Lakes 
species.

[[Page 87]]

    (27) Conduct research for realizing the economic potential of the 
nonliving resources of the U.S. 200-mile Exclusive Economic Zone.
    (28) Investigate the effect of seafloor hydrothermal systems on the 
seafloor, oceans, and atmosphere.
    (29) Develop a better understanding of the value the marine sector 
contributes to the U.S. economy and culture.
    (30) Improve the competitive position of American ports in the face 
of rapid technological and social change.
    (31) Improve the capability of developing nations to address their 
marine resource needs.
    (32) Develop eductional programs to increase application of marine 
sector research.
    (33) Develop syntheses of and better access to existing 
multidisciplinary marine and Great Lakes information.

[43 FR 15307, Apr. 11, 1978, as amended at 51 FR 35210, Oct. 2, 1986]



Sec. 917.22  National Projects funding.

    (a) National Projects funding proposals will be expected to address: 
(1) The relevance of the proposed project to a national need or problem 
that has been identified by the Administrator; (2) the nature and focus 
of the proposed project; (3) a demonstrated capacity to carry out the 
proposed project in a competent and cost-effective manner; and (4) the 
utilization of existing capability and coordination with other relevant 
projects. Innovation and uniqueness will be significant factors in 
determining whether to fund a proposed project.
    (b) Any person may apply to the Office of Sea Grant for National 
Project funding. In addition, the Office of Sea Grant may invite 
applications for National Project funding.
    (c) The total amount provided for National Projects' funding during 
any fiscal year can never exceed an amount equal to 10 percent of the 
total funds appropriated for the Matched Funding Program. Federal Sea 
Grant funding for National Projects can be up to 100 percent of the 
total cost of the project involved.



             Subpart D_International Cooperation Assistance



Sec. 917.30  General.

    (a) 33 U.S.C. 1124a sets up a program of International Cooperation 
Assistance in marine reseach, marine education and training, and marine 
advisory services designed to enhance the research and technical 
capability of developing foreign nations with respect to ocean and 
coastal resources and to promote the international exchange of 
information and data with respect to the assessment, development, 
utilization, and conservation of such resources. Any Sea Grant College 
or Sea Grant Regional Consortium or any institution of higher education, 
laboratory, or institute (if such institution, laboratory or institute 
is located within any state) may apply for and receive International 
Cooperation Assistance funding.
    (b) International Cooperation Assistance funding proposals will be 
expected to address: (1) The nature and focus of the proposed project, 
(2) the utilization of institutional and other appropriate resources in 
the implementation of the project, (3) a clear indication of the foreign 
participant's (individual or institution) commitment to the project, (4) 
identification of accomplishments expected from a single granting 
interval, (5) implicit or explicit out-year commitment of resources, and 
(6) the impact of the proposed project on the institution receiving 
funding.
    (c) The projects supported by International Cooperation Assistance 
funding are intended to be genuinely cooperative. Innovation and 
uniqueness will be significant factors in the determination of proposals 
to be funded. In the case of a proposed international project that is 
submitted from an institution where a Sea Grant program is in existence, 
the extent to which the proposed project takes advantage of the Sea 
Grant institutional capability existing at that institution and thereby 
strengthening it, as opposed to being a mere appendage to the ongoing 
Sea Grant program, will also be an important evaluation factor. The U.S. 
Department of State will be given the opportunity to review all 
International Cooperation Assistance projects and

[[Page 88]]

none will be funded without this consultation. Because the United 
Nations Educational, Scientific, and Cultural Organization (UNESCO) also 
funds international projects of the kind that can be funded under the 
Sea Grant International Cooperation Assistance program, and, to effect 
coordination in this area between Sea Grant and UNESCO, the Division of 
Marine Sciences (UNESCO) will be informed of all International 
Cooperation Assistance projects funded.



    Subpart E_General Considerations Pertaining to Sea Grant Funding



Sec. 917.40  General.

    This subpart sets forth general considerations pertaining to Sea 
Grant funding.



Sec. 917.41  Application guidance for Sea Grant funding.

    (a) Detailed guidance for submission of applications for National 
Sea Grant Program Funding is given in the publication, ``The National 
Sea Grant Program: Program Description and Suggestions for Preparing 
Proposals,'' available on request from: Office of Sea Grant Program, 
3300 Whitehaven Street NW., Washington, DC 20235.
    (b) It is noted here that application for Sea Grant funding shall be 
made pursuant to the following Federal provisions:
    (1) OMB Circular A-110 ``Grants and Agreements with Institutions of 
Higher Education, Hospitals, and Other Non-Profit Organizations.''
    (2) OMB Circular A-111, ``Designation of Federal Programs Suitable 
for Joint Funding Purposes.''
    (3) GSA FMC 73-6, ``Coordinating Indirect Cost Rates and Audit at 
Educational Institutions.''
    (4) GSA FMC 73-7, ``Administration of College and University 
Research Grants.''
    (5) GSA FMC 73-8, ``Cost Principles for Educational Institutions.''
    (6) GSA FMC 74-4, ``Cost Principles Applicable to Grants and 
Contracts with State and Local Governments.''
    (7) OMB Circular A-102, ``Uniform Administrative Requirements for 
Grants-in-Aid to State and Local Governments.''
    (8) NOAA General Provisions implementing OMB Circular A-110, 
``Grants and Agreements with Institutions of Higher Education, 
Hospitals, and Other Non-Profit Organizations.''



Sec. 917.42  Categories of support available for the conducting of 
Sea Grant activities.

    (a) Three categories of support are available for the conducting of 
Sea Grant activities: Projects; coherent area programs; and 
institutional programs. In general, funding for institutional programs 
and coherent area programs are made with expectation of renewal, as long 
as the funding recipient maintains a high level of quality and relevance 
in its activities. Project funding is made generally for a single item 
of research, education and training, or advisory service, but may be 
renewed under certain conditions; each renewal is negotiated 
individually.
    (b) Project support is for a clearly defined activity to be 
conducted over a definite period of time to achieve a specified goal. 
The project may be in research, education, training, or advisory 
services. Support for a project is made to an individual investigator or 
project director through his organization.
    (c) Intermediate between the institutional programs and individual 
projects are coherent area programs. These have two main purposes:
    (1) To bring into the National Sea Grant Program institutions of 
higher education that have a strong core of capability in some aspects 
of marine affairs, but which do not qualify or do not wish to qualify 
for institutional program support at this time. The purpose of support 
in such cases is to enable the institution to apply its existing 
competence to its regional problems and opportunities while developing 
the broader base of capability and the internal organization that will 
lead to institutional support. This program category requires a definite 
commitment on the part of the institution to develop an institutional 
program and to present a multiproject, multidisciplinary program 
involving the existing competence of an institution in

[[Page 89]]

a unified or coherent attack on well-defined local or regional problems. 
Such a coherent area program should include research, education and 
training, and advisory services, to the extent of the institution's 
capability.
    (2) To bring into the National Sea Grant Program (on a more or less 
continuing basis) qualified entities that have rare or unique capability 
in a specialized field of marine affairs. Such entities need not be 
institutions of higher education.
    (d) Institutional grants are made to institutions of higher 
education or to a combination of institutions that have an existing 
broad base of competence in marine affairs. To qualify, an institution 
must make a positive, long-range commitment to objectives of the 
National Sea Grant Program as evidence by committing the institution's 
own resources in the form of matching funds, creation of the 
organization necessary for management of the Sea Grant Program, quality 
education programs in marine areas, establishment of interdisciplinary 
research teams, and development of advisory service mechanisms for 
strong interaction with marine communities in its region. A Sea Grant 
institutional program is expected to provide intellectual leadership in 
assisting its region to solve problems and to realize opportunities of 
its marine environment. To the extent possible, an institutional program 
should involve all appropriate elements of the institution, whether 
colleges or departments, and devise cooperative or mutally supporting 
programs with other institutions of higher education, and with Federal 
and state agencies, local agencies, and industry. An institutional 
program should have substantial strength in the three basic Sea Grant 
activities: research, education and training, and advisory services. Sea 
Grant institutional programs that meet the qualifications for Sea Grant 
College or Sea Grant Regional Consortium status set forth at 15 CFR part 
918 will be so designated by the Secretary.



Sec. 917.43  Terms and conditions of Sea Grant funding.

    No Sea Grant funding may be applied to:
    (a)(1) the purchase or rental of any land or (2) the purchase, 
rental, construction, preservation, or repair of any building, dock, or 
vessel, except that payment under any such grant or contract may (if 
approved by the Assistant Administrator for Administration of the 
National Oceanic and Atmospheric Administration or designee) be applied 
to the purchase, rental, construction, preservation, or repair of non-
self-propelled habitats, buoys, platforms, and other similar devices or 
structures, or to the rental of any research vessel which is used in 
direct support of activities under any Sea Grant program or project.
    (b) In addition, Sea Grant funding under the Sea Grant Matched 
Funding Program will be subject to the limitation that the total amount 
which may be obligated within any one state to persons under the Sea 
Grant Matched Funding Program in any fiscal year shall not exceed an 
amount equal to 15 percent of the funds appropriated for the Sea Grant 
Matched Funding Program.
    (c) Any person who receives or utilizes Sea Grant funding shall keep 
the records required by OMB Circular A-110, ``Grant and Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' and by NOAA General Provision, implementing OMB 
Circular A-110, by OMB Circular A-102, ``Uniform Administrative 
Requirements for Grants-in-Aid to State and Local Governments,'' 
including records that fully disclose the amount and disposition by the 
recipient of such proceeds, the total cost of the program or project in 
which such proceeds were used, and the amount, if any, of such cost 
which was provided through other sources. Such records shall be 
maintained for three years after the completion of such a program or 
project. The Secretary and the Comptroller General of the United States, 
or any of their duly authorized representatives, shall have access, for 
the purpose of audit and evaulation, to any books, documents, papers, 
and records of receipt which, in the opinion of the Secretary or the 
Comptroller General, may be related or pertinent to such grants and 
contracts.

[[Page 90]]



PART 918_SEA GRANTS--Table of Contents




Sec.
918.1 Introduction.
918.2 Definitions.
918.3 Eligibility, qualifications, and responsibility of a Sea Grant 
          College.
918.4 Duration of Sea Grant College designation.
918.5 Eligibility, qualifications, and responsibilities--Sea Grant 
          Regional Consortia.
918.6 Duration of Sea Grant Regional Consortium designation.
918.7 Application for designation.

    Authority: Sec. 207, National Sea Grant College Program Act, as 
amended (Pub. L. 94-461, 33 U.S.C. 1121, et seq.).

    Source: 44 FR 75054, Dec. 18, 1979, unless otherwise noted.



Sec. 918.1  Introduction.

    Pursuant to section 207 of the National Sea Grant College Program 
Act, as amended (Pub. L. 94-461, 33 U.S.C. 1121 et seq.), herein 
referred to as the Act, the following guidelines establish the 
procedures by which organizations can qualify for designation as Sea 
Grant Colleges or Sea Grant Regional Consortia, and the responsibilities 
required of organizations so designated.



Sec. 918.2  Definitions.

    (a) Marine environment. The term Marine Environment means any or all 
of the following: the coastal zone, as defined in section 304(1) of the 
Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, 
subsoil and waters of the territorial sea of the United States, 
including the Great Lakes; the waters of any zone over which the United 
States asserts exclusive fishery management authority; the waters of the 
high seas; and the seabed and subsoil of and beyond the Outer 
Continental Shelf.
    (b) Ocean, Great Lakes, and coastal resources. The term ocean, Great 
Lakes, and coastal resources means any resource (whether living, 
nonliving, manmade, tangible, intangible, actual, or potential) which is 
located in, derived from, or traceable to, the marine environment. Such 
term includes the habitat of any such living resource, the coastal 
space, the ecosystems, the nutrient-rich areas, and the other components 
of the marine environment which contribute to or provide (or which are 
capable of contributing to or providing) recreational, scenic, 
aesthetic, biological, habitational, commercial, economic, or 
conservation values. Living resources include natural and cultured plant 
life, fish, shellfish, marine mammals, and wildlife. Nonliving resources 
include energy sources, minerals, and chemical substances.
    (c) Person. The term Person means any public or private corporation, 
partnership, or other association or entity (including any Sea Grant 
College, Sea Grant Regional Consortium, institution of higher education, 
institute, or laboratory); or any State, political subdivision of a 
State, or agency or officer thereof.
    (d) Sea Grant College. The term Sea Grant College means any public 
or private institution of higher education or confederation of such 
institutions which is designated as such by the Secretary under section 
207 of the National Sea Grant Program Act. Included in this term are all 
campuses (or other administrative entities) of a designated Sea Grant 
College, working through the established management structure of the Sea 
Grant College.
    (e) Sea Grant Program. The term Sea Grant Program means any program 
which:
    (1) Is administered by a Sea Grant College, Sea Grant Regional 
Consortium, institution of higher education, institute, laboratory, or 
State or local agency; and
    (2) Includes two or more Sea Grant projects involving one or more of 
the following activities in fields related to ocean, Great Lakes, and 
coastal resources:
    (i) Research,
    (ii) Education and training, and
    (iii) Advisory services.
    (f) Sea Grant project. A Sea Grant project is any separately 
described activity which has been proposed to the National Sea Grant 
College Program, and has subsequently been approved.
    (g) Sea Grant Regional Consortium. The term Sea Grant Regional 
Consortium means any association or other alliance of two or more 
persons as defined above (other than individuals) established for the 
purpose of pursuing programs in marine research education,

[[Page 91]]

training, and advisory services on a regional basis (i.e., beyond the 
boundaries of a single state) and which is designated as a consortium by 
the Secretary under section 207 of the National Sea Grant Program Act.
    (h) Field related to Ocean, Great Lakes, and coastal resources. The 
term field related to Ocean, Great Lakes, and coastal resources means 
any discipline or field (including marine sciences and the physical, 
natural, and biological sciences, and engineering, included therein, 
marine technology, education, economics, sociology, communications, 
planning law, international affairs, public administration, humanities, 
and the arts) which is concerned with, or likely to improve the 
understanding, assessment, development, utilization, or conservation of, 
ocean, Great Lakes, and coastal resources.



Sec. 918.3  Eligibility, qualifications, and responsibility of a 
Sea Grant College.

    (a) To be eligible for designation as a Sea Grant College, the 
institution of higher education or confederation of such institutions 
must have demonstrated a capability to maintain a high quality and 
balanced program of research, education, training, and advisory services 
in fields related to ocean, Great Lakes, and coastal resources for a 
minimum of three years, and have received financial assistance as an 
Institutional program under either section 205 of the National Sea Grant 
College Program Act or under section 204(c) of the earlier National Sea 
Grant College and Program Act of 1966.
    (b) To be eligible for designation as a Sea Grant College, the 
candidate institution or confederation of institutions must meet the 
qualifications set forth above as evaluated by a site review team 
composed of members of the Sea Grant Review Panel, NOAA's Office of Sea 
Grant, and other experts named by NOAA. As a result of this review, the 
candidate must be rated highly in all of the following qualifying areas:
    (1) Leadership. The Sea Grant College candidate must have achieved 
recognition as an intellectual and practical leader in marine science, 
engineering, education, and advisory service in its state and region.
    (2) Organization. The Sea Grant College candidate must have created 
the management organization to carry on a viable and productive Sea 
Grant Program, and must have the backing of its administration at a 
sufficiently high level to fulfill its multidisciplinary and 
multifaceted mandate.
    (3) Relevance. The Sea Grant College candidate's program must be 
relevant to local, State, regional, or National opportunities and 
problems in the marine environment. Important factors in evaluating 
relevance are the need for marine resource emphasis and the extent to 
which capabilities have been developed to be responsive to that need.
    (4) Programmed team approach. The Sea Grant College candidate must 
have a programmed team approach to the solution of marine problems which 
includes relevant, high quality, multidisciplinary research with 
associated educational and advisory services capable of producing 
identifiable results.
    (5) Education and training. Education and training must be clearly 
relevant to National, regional, State and local needs in fields related 
to ocean, Great Lakes, and coastal resources. As appropriate, education 
may include pre-college, college, post-graduate, public and adult 
levels.
    (6) Advisory services. The Sea Grant College candidate must have a 
strong program through which information, techniques,and research 
results from any reliable source, domestic or international, may be 
communicated to and utilized by user communities. In addition to the 
educational and information dissemination role, the advisory service 
program must aid in the identification and communication of user 
communities' research and educational needs.
    (7) Relationships. The Sea Grant College candidate must have close 
ties with Federal agencies. State agencies and administrations, local 
authorities, business and industry, and other educational institutions. 
These ties are: (i) To ensure the relevance of its programs, (ii) to 
give assistance to the

[[Page 92]]

broadest possible audience, (iii) to involve a broad pool of talent in 
providing this assistance (including universities and other 
administrative entities outside the Sea Grant College), and (iv) to 
assist others in developing research and management competence. The 
extent and quality of an institution's relationships are critical 
factors in evaluating the institutional program.
    (8) Productivity. The Sea Grant College candidate must have 
demonstrated the degree of productivity (of research results, reports, 
employed students, service to State agencies and industry, etc.) 
commensurate with the length of its Sea Grant operations and the level 
of funding under which it has worked.
    (9) Support. The Sea Grant College candidate must have the ability 
to obtain matching funds from non-Federal sources, such as state 
legislatures, university management, state agencies, business, and 
industry. A diversity of matching fund sources is encouraged as a sign 
of program vitality and the ability to meet the Sea Grant requirement 
that funds for the general programs be matched with at least one non-
Federal dollar for every two Federal dollars.
    (c) Finally, it must be found that the Sea Grant College candidate 
will act in accordance with the following standards relating to its 
continuing responsibilities if it should be designated a Sea Grant 
College:
    (1) Continue pursuit of excellence and high performance in marine 
research, education, training, and advisory services.
    (2) Provide leadership in marine activities including coordinated 
planning and cooperative work with local, state, regional, and Federal 
agencies, other Sea Grant Programs, and non-Sea Grant universities.
    (3) Maintain an effective management framework and application of 
institutional resources to the achievement of Sea Grant objectives.
    (4) Develop and implement long-term plans for research, education, 
training, and advisory services consistent with Sea Grant goals and 
objectives.
    (5) Advocate and further the Sea Grant concept and the full 
development of its potential within the institution and the state.
    (6) Provide adequate and stable matching financial support for the 
program from non-Federal sources.
    (7) Establish and operate an effective system to control the quality 
of its Sea Grant programs.



Sec. 918.4  Duration of Sea Grant College designation.

    Designation will be made on the basis of merit and the determination 
by the Secretary of Commerce that such a designation is consistent with 
the goals of the Act. Continuation of the Sea Grant College designation 
is contingent upon the institution's ability to maintain a high quality 
performance consistent with the requirements outlined above. The 
Secretary may, for cause and after an opportunity for hearing, suspend 
or terminate a designation as a Sea Grant College.



Sec. 918.5  Eligibility, qualifications, and responsibilities--Sea Grant 
Regional Consortia.

    (a) To be eligible for designation as a Sea Grant Regional 
Consortium, the candidate association or alliance of organizations must 
provide, in significant breadth and quality, one or more services in the 
areas of research, education, and training, or advisory service in 
fields related to ocean, Great Lakes, and coastal resources. Further, it 
is essential that the candidate Sea Grant Consortium be required to 
provide all three services as soon as possible after designation. 
Further, such association or alliance must demonstrate that:
    (1) It has been established for the purpose of sharing expertise, 
research, educational facilities, or training facilities, and other 
capabilities in order to facilitate research, education, training, and 
advisory services in any field related to ocean, Great Lakes, and 
coastal resources; and
    (2) It will encourage and follow a regional multi-State approach to 
solving problems or meeting needs relating to ocean, Great Lakes, and 
coastal resources, in cooperation with appropriate Sea Grant Colleges, 
Sea Grant Programs and other persons in the region.
    (b) Although it is recognized that the distribution of effort 
between research,

[[Page 93]]

education, training, and advisory services to achieve appropriate 
balance in a Sea Grant Regional Consortium may differ from a Sea Grant 
College, sustained effort in all of these areas is, nonetheless, an 
essential requirement for retention of such designation. To be eligible 
for designation as a Sea Grant Regional Consortium, the candidate 
association or alliance of organizations must meet the qualifications 
set forth above as evaluated by a site review team composed of members 
of the Sea Grant Review Panel, the Office of Sea Grant, and other 
experts. Further, the candidate must be rated highly in all of the 
following qualifying areas which are pertinent to the Consortium's 
program:
    (1) Leadership. The Sea Grant Regional Consortium candidate must 
have achieved recognition as an intellectual and practical leader in 
marine science, engineering, education, and advisory service in its 
region.
    (2) Organization. The Sea Grant Regional Consortium candidate must 
have created the management organization to carry on a viable and 
productive multidisciplinary Sea Grant Program and have the backing of 
the administrations of its component organizations at a sufficiently 
high level to fulfill its multidisciplinary and multifaceted mandate.
    (3) Relevance. The Sea Grant Regional Consortium candidate's Sea 
Grant Program must be relevant to regional opportunities and problems in 
the marine environment. Important factors in evaluating relevance are 
the extent and depth of the need of a region for a focused marine 
resource emphasis and the degree to which the candidate has developed 
its capability to be responsive to that need.
    (4) Education and training. Education and training must be clearly 
relevant to regional needs and must be of high quality in fields related 
to ocean, Great Lakes, and coastal resources. As appropriate, education 
may include precollege, college, post-graduate, public and adult levels.
    (5) Advisory services. The Sea Grant Regional Consortium candidate 
must have a strong program through which information techniques, and 
research results from any reliable source, domestic or international, 
may be communicated to and utilized by user communities. In addition to 
the educational and information dissemination role, the advisory service 
program must aid in the identification and communication of user 
communities' research and educational needs.
    (6) Relationships. The Sea Grant Regional Consortium candidate must 
have close ties with federal agencies, state agencies and 
administrations, regional authorities, regional business and industry, 
and other regional educational institutions. These regional ties are: 
(i) To ensure the relevance of programs, (ii) to generate requests for 
such assistance as the consortium may offer, and (iii) to assist others 
in developing research and management competence. The extent and quality 
of a candidate's relationships are critical factors in evaluating the 
proposed designation.
    (7) Productivity. The Sea Grant Regional Consortium candidate must 
have demonstrated a degree of productivity (of research results, 
reports, employed students, service to regional agencies, industry, 
etc.) commensurate with the length of its Sea Grant operations and the 
level of funding under which it has worked.
    (8) Support. The Sea Grant Regional Consortium candidate must have 
the ability to obtain matching funds from non-Federal sources, such as 
State legislatures, university management, State agencies, and business 
and industry. A diversity of matching funds sources is encouraged as a 
sign of program vitality and the ability to meet the Sea Grant 
requirement that funds for the general programs be matched with at least 
one non-Federal dollar for every two Federal dollars.
    (c) Finally, it must be found that the Sea Grant Regional Consortium 
candidate will act in accordance with the following standards relating 
to its continuing responsibilities as a Sea Grant Regional Consortium:
    (1) Continue pursuit of excellence and high performance in marine 
research education, training, and advisory services.
    (2) Provide regional leadership in marine activities including 
coordinated planning and cooperative work with

[[Page 94]]

local, State, regional, and Federal agencies, other Sea Grant Programs, 
and non-Sea Grant organizations.
    (3) Maintain an effective management framework and application of 
organizational resources to the achievement of Sea Grant objectives.
    (4) Develop and implement long-term plans for research, education, 
training, and advisory services consistent with Sea Grant goals and 
objectives.
    (5) Advocate and further the Sea Grant concept and the full 
development of its potential within the consortium and the region.
    (6) Provide adequate and stable matching financial support for the 
program from non-Federal sources.
    (7) Establish and operate an effective system to control the quality 
of its Sea Grant program.



Sec. 918.6  Duration of Sea Grant Regional Consortium designation.

    Designation will be made on the basis of merit and the determination 
by the Secretary of Commerce that such a designation is consistent with 
the goals of the Act. Continuation of the Sea Grant Regional Consortium 
designation is contingent upon the alliance's ability to maintain a high 
quality performance consistent with the standards outlined above. The 
Secretary may, for cause and after an opportunity for hearing, suspend 
or terminate the designation as a Sea Grant Regional Consortium.



Sec. 918.7  Application for designation.

    (a) All applications for initial designation as a Sea Grant College 
or a Regional Consortium should be addressed to the Secretary of 
Commerce and submitted to the Director, National Sea Grant College 
Program, National Oceanic and Atmospheric Administration. The 
application should contain an outline of the capabilities of the 
applicant and the reasons why the applicant believes that it merits 
designation under the guidelines contained in this regulation. Upon 
receipt of the application, the Director will present the institution's 
case to the Sea Grant Review Panel for evaluation. The Panel's 
recommendation will be forwarded to the Secretary for final action.
    (b) An existing Sea Grant College or Regional Consortium may also 
apply as in paragraph (a) of this section, for a change in the scope of 
designation to include or exclude other administrative entities of the 
institution or association. If approved by the Secretary such included 
(excluded) administrative entities shall share (lose) the full rights 
and responsibilities of a Sea Grant College or Regional Consortium.

[[Page 95]]



           SUBCHAPTER B_OCEAN AND COASTAL RESOURCE MANAGEMENT





PART 921_NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM REGULATIONS--Table 
of Contents




                            Subpart A_General

Sec.
921.1 Mission, goals and general provisions.
921.2 Definitions.
921.3 National Estuarine Research Reserve System Biogeographic 
          Classification Scheme and Estuarine Typologies.
921.4 Relationship to other provisions of the Coastal Zone Management 
          Act and the Marine Protection, Research and Sanctuaries Act.

   Subpart B_Site Selection, Post Site Selection and Management Plan 
                               Development

921.10 General.
921.11 Site selection and feasibility.
921.12 Post site selection.
921.13 Management plan and environmental impact statement development.

    Subpart C_Acquisition, Development and Preparation of the Final 
                             Management Plan

921.20 General.
921.21 Initial acquisition and development awards.

         Subpart D_Reserve Designation and Subsequent Operation

921.30 Designation of National Estuarine Research Reserves.
921.31 Supplemental acquisition and development awards.
921.32 Operation and management: Implementation of the management plan.
921.33 Boundary changes, amendments to the management plan, and addition 
          of multiple-site components.

 Subpart E_Ongoing Oversight, Performance Evaluation and Withdrawal of 
                               Designation

921.40 Ongoing oversight and evaluations of designated National 
          Estuarine Research Reserves.
921.41 Withdrawal of designation.

                   Subpart F_Special Research Projects

921.50 General.
921.51 Estuarine research guidelines.
921.52 Promotion and coordination of estuarine research.

                  Subpart G_Special Monitoring Projects

921.60 General.

         Subpart H_Special Interpretation and Education Projects

921.70 General.

            Subpart I_General Financial Assistance Provisions

921.80 Application information.
921.81 Allowable costs.
921.82 Amendments to financial assistance awards.

Appendix I to Part 921--Biogeographic Classification Scheme
Appendix II to Part 921--Typology of National Estuarine Research 
          Reserves

    Authority: Section 315 of the Coastal Zone Management Act, as 
amended (16 U.S.C. 1461).

    Source: 58 FR 38215, July 15, 1993, unless otherwise noted.



                            Subpart A_General



Sec. 921.1  Mission, goals and general provisions.

    (a) The mission of the National Estuarine Research Reserve Program 
is the establishment and management, through Federal-state cooperation, 
of a national system (National Estuarine Research Reserve System or 
System) of estuarine research reserves (National Estuarine Research 
Reserves or Reserves) representative of the various regions and 
estuarine types in the United States. National Estuarine Research 
Reserves are established to provide opportunities for long-term 
research, education, and interpretation.
    (b) The goals of the Program are to:
    (1) Ensure a stable environment for research through long-term 
protection of National Estuarine Research Reserve resources;
    (2) Address coastal management issues identified as significant 
through coordinated estuarine research within the System;

[[Page 96]]

    (3) Enhance public awareness and understanding of estuarine areas 
and provide suitable opportunities for public education and 
interpretation;
    (4) Promote Federal, state, public and private use of one or more 
Reserves within the System when such entities conduct estuarine 
research; and
    (5) Conduct and coordinate estuarine research within the System, 
gathering and making available information necessary for improved 
understanding and management of estuarine areas.
    (c) National Estuarine Research Reserves shall be open to the public 
to the extent permitted under state and Federal law. Multiple uses are 
allowed to the degree compatible with each Reserve's overall purpose as 
provided in the management plan (see Sec. 921.13) and consistent with 
paragraphs (a) and (b) of this section. Use levels are set by the state 
where the Reserve is located and analyzed in the management plan. The 
Reserve management plan shall describe the uses and establish priorities 
among these uses. The plan shall identify uses requiring a state permit, 
as well as areas where uses are encouraged or prohibited. Consistent 
with resource protection and research objectives, public access and use 
may be restricted to certain areas or components within a Reserve.
    (d) Habitat manipulation for research purposes is allowed consistent 
with the following limitations. Manipulative research activities must be 
specified in the management plan, be consistent with the mission and 
goals of the program (see paragraphs (a) and (b) of this section) and 
the goals and objectives set forth in the Reserve's management plan, and 
be limited in nature and extent to the minimum manipulative activity 
necessary to accomplish the stated research objective. Manipulative 
research activities with a significant or long-term impact on Reserve 
resources require the prior approval of the state and the National 
Oceanic and Atmospheric Administration (NOAA). Manipulative research 
activities which can reasonably be expected to have a significant 
adverse impact on the estuarine resources and habitat of a Reserve, such 
that the activities themselves or their resulting short- and long-term 
consequences compromise the representative character and integrity of a 
Reserve, are prohibited. Habitat manipulation for resource management 
purposes is prohibited except as specifically approved by NOAA as: (1) A 
restoration activity consistent with paragraph (e) of this section; or 
(2) an activity necessary for the protection of public health or the 
preservation of other sensitive resources which have been listed or are 
eligible for protection under relevant Federal or state authority (e.g., 
threatened/endangered species or significant historical or cultural 
resources) or if the manipulative activity is a long-term pre-existing 
use (i.e., has occurred prior to designation) occurring in a buffer 
area. If habitat manipulation is determined to be necessary for the 
protection of public health, the preservation of sensitive resources, or 
if the manipulation is a long-term pre-existing use in a buffer area, 
then these activities shall be specified in the Reserve management plan 
in accordance with Sec. 921.13(a)(10) and shall be limited to the 
reasonable alternative which has the least adverse and shortest term 
impact on the representative and ecological integrity of the Reserve.
    (e) Under the Act an area may be designated as an estuarine Reserve 
only if the area is a representative estuarine ecosystem that is 
suitable for long-term research. Many estuarine areas have undergone 
some ecological change as a result of human activities (e.g., 
hydrological changes, intentional/unintentional species composition 
changes--introduced and exotic species). In those areas proposed or 
designated as National Estuarine Research Reserves, such changes may 
have diminished the representative character and integrity of the site. 
Although restoration of degraded areas is not a primary purpose of the 
System, such activities may be permitted to improve the representative 
character and integrity of a Reserve. Restoration activities must be 
carefully planned and approved by NOAA through the Reserve management 
plan. Historical research may be necessary to determine the ``natural'' 
representative state of an estuarine area (i.e., an estuarine ecosystem 
minimally affected by

[[Page 97]]

human activity or influence). Frequently, restoration of a degraded 
estuarine area will provide an excellent opportunity for management 
oriented research.
    (f) NOAA may provide financial assistance to coastal states, not to 
exceed, per Reserve, 50 percent of all actual costs or $5 million 
whichever amount is less, to assist in the acquisition of land and 
waters, or interests therein. NOAA may provide financial assistance to 
coastal states not to exceed 70 percent of all actual costs for the 
management and operation of, the development and construction of 
facilities, and the conduct of educational or interpretive activities 
concerning Reserves (see subpart I). NOAA may provide financial 
assistance to any coastal state or public or private person, not to 
exceed 70 percent of all actual costs, to support research and 
monitoring within a Reserve. Notwithstanding any financial assistance 
limits established by this Part, when financial assistance is provided 
from amounts recovered as a result of damage to natural resources 
located in the coastal zone, such assistance may be used to pay 100 
percent of all actual costs of activities carrier out with this 
assistance, as long as such funds are available. Predesignation, 
acquisition and development, operation and management, special research 
and monitoring, and special education and interpretation awards are 
available under the National Estuarine Reserve Program. Predesignation 
awards are for site selection/feasibility, draft management plan 
preparation and conduct of basic characterization studies. Acquisition 
and development awards are intended primarily for acquisition of 
interests in land, facility construction and to develop and/or upgrade 
research, monitoring and education programs. Operation and management 
awards provide funds to assist in implementing, operating and managing 
the administrative, and basic research, monitoring and education 
programs, outlined in the Reserve management plan. Special research and 
monitoring awards provide funds to conduct estuarine research and 
monitoring projects with the System. Special educational and 
interpretive awards provide funds to conduct estuarine educational and 
interpretive projects within the System.
    (g) Lands already in protected status managed by other Federal 
agencies, state or local governments, or private organizations may be 
included within National Estuarine Research Reserves only if the 
managing entity commits to long-term management consistent with 
paragraphs (d) and (e) of this section in the Reserve management plan. 
Federal lands already in protected status may not comprise a majority of 
the key land and water areas of a Reserve (see Sec. 921.11(c)(3)).
    (h) To assist the states in carrying out the Program's goals in an 
effective manner, NOAA will coordinate a research and education 
information exchange throughout the National Estuarine Research Reserve 
System. As part of this role, NOAA will ensure that information and 
ideas from one Reserve are made available to others in the System. The 
network will enable Reserves to exchange information and research data 
with each other, with universities engaged in estuarine research, and 
with Federal, state, and local agencies. NOAA's objective is a system-
wide program of research and monitoring capable of addressing the 
management issues that affect long-term productivity of our Nation's 
estuaries.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 
63 FR 26717, May 14, 1998]



Sec. 921.2  Definitions.

    (a) Act means the Coastal Zone Management Act of 1972, as amended, 
16 U.S.C. 1451 et seq.
    (b) Assistant Administrator means the Assistant Administrator for 
Ocean Services and Coastal Zone Management or delegee.
    (c) Coastal state means a state of the United States, in or 
bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of 
Mexico, Long Island Sound, or one or more of the Great Lakes. For the 
purposes of these regulations the term also includes Puerto Rico, the 
Virgin Islands, Guam, the Commonwealth of the Northern Marianas Islands, 
the Trust Territories of the Pacific Islands, and American Samoa (see 16 
U.S.C. 1453(4)).

[[Page 98]]

    (d) State agency means an instrumentality of a coastal state to whom 
the coastal state has delegated the authority and responsibility for the 
creation and/or management/operation of a National Estuarine Research 
Reserve. Factors indicative of this authority may include the power to 
receive and expend funds on behalf of the Reserve, acquire and sell or 
convey real and personal property interests, adopt rules for the 
protection of the Reserve, enforce rules applicable to the Reserve, or 
develop and implement research and education programs for the reserve. 
For the purposes of these regulations, the terms ``coastal state'' and 
``State agency'' shall be synonymous.
    (e) Estuary means that part of a river or stream or other body of 
water having unimpaired connection with the open sea, where the sea 
water is measurably diluted with fresh water derived from land drainage. 
The term also includes estuary-type areas with measurable freshwater 
influence and having unimpaired connections with the open sea, and 
estuary-type areas of the Great Lakes and their connecting waters (see 
16 U.S.C. 1453(7)).
    (f) National Estuarine Research Reserve means an area that is a 
representative estuarine ecosystem suitable for long-term research, 
which may include all of the key land and water portion of an estuary, 
and adjacent transitional areas and uplands constituting to the extent 
feasible a natural unit, and which is set aside as a natural field 
laboratory to provide long-term opportunities for research, education, 
and interpretation on the ecological relationships within the area (see 
16 U.S.C. 1453(8)) and meets the requirements of 16 U.S.C. 1461(b). This 
includes those areas designated as National Estuarine Sanctuaries or 
Reserves under section 315 of the Act prior to enactment of the Coastal 
Zone Act Reauthorization Amendments of 1990 and each area subsequently 
designated as a National Estuarine Research Reserve.



Sec. 921.3  National Estuarine Research Reserve System Biogeographic 
Classification Scheme and Estuarine Typologies.

    (a) National Estuarine Research Reserves are chosen to reflect 
regional differences and to include a variety of ecosystem types. A 
biogeographic classification scheme based on regional variations in the 
nation's coastal zone has been developed. The biogeographic 
classification scheme is used to ensure that the National Estuarine 
Research Reserve System includes at least one site from each region. The 
estuarine typology system is utilized to ensure that sites in the System 
reflect the wide range of estuarine types within the United States.
    (b) The biogeographic classification scheme, presented in appendix 
I, contains 29 regions. Figure 1 graphically depicts the biogeographic 
regions of the United States.
    (c) The typology system is presented in appendix II.



Sec. 921.4  Relationship to other provisions of the Coastal Zone 
Management Act, and to the Marine Protection, Research and Sanctuaries Act.

    (a) The National Estuarine Research Reserve System is intended to 
provide information to state agencies and other entities involved in 
addressing coastal management issues. Any coastal state, including those 
that do not have approved coastal management programs under section 306 
of the Act, is eligible for an award under the National Estuarine 
Research Reserve Program (see Sec. 921.2(c)).
    (b) For purposes of consistency review by states with a federally 
approved coastal management program, the designation of a National 
Estuarine Research Reserve is deemed to be a Federal activity, which, if 
directly affecting the state's coastal zone, must be undertaken in a 
manner consistent to the maximum extent practicable with the approved 
state coastal management program as provided by section 1456(c)(1) of 
the Act, and implementing regulations at 15 CFR part 930, subpart C. In 
accordance with section 1456(c)(1) of the Act and the applicable 
regulations NOAA will be responsible for certifying that designation of 
the Reserve is consistent with the state's approved coastal management 
program. The state must concur with or object to the certification. It 
is recommended that the lead state agency for Reserve designation 
consult, at the

[[Page 99]]

earliest practicable time, with the appropriate state officials 
concerning the consistency of a proposed National Estuarine Research 
Reserve.
    (c) The National Estuarine Research Reserve Program will be 
administered in close coordination with the National Marine Sanctuary 
Program (Title III of the Marine Protection, Research and Sanctuaries 
Act, as amended, 16 U.S.C. 1431-1445), also administered by NOAA. Title 
III authorizes the Secretary of Commerce to designate discrete areas of 
the marine environment as National Marine Sanctuaries to protect or 
restore such areas for their conservation, recreational, ecological, 
historical, research, educational or esthetic values. National Marine 
Sanctuaries and Estuarine Research Reserves may not overlap, but may be 
adjacent.



   Subpart B_Site Selection, Post Site Selection and Management Plan 
                               Development



Sec. 921.10  General.

    (a) A coastal state may apply for Federal financial assistance for 
the purpose of site selection, preparation of documents specified in 
Sec. 921.13 (draft management plan (DMP) and environmental impact 
statement (EIS)), and the conduct of limited basic characterization 
studies. The total Federal share of this assistance may not exceed 
$100,000. Federal financial assistance for preacquisition activities 
under Sec. 921.11 and Sec. 921.12 is subject to the total $5 million 
for which each Reserve is eligible for land acquisition. Notwithstanding 
the above, when financial assistance is provided from amounts recovered 
as a result of damage to natural resources located in the coastal zone, 
such assistance may be used to pay 100 percent of all actual costs of 
activities carried out with this assistance, as long as such funds are 
available. In the case of a biogeographic region (see appendix I) shared 
by two or more coastal states, each state is eligible for Federal 
financial assistance to establish a separate National Estuarine Research 
Reserve within their respective portion of the shared biogeographic 
region. Each separate National Estuarine Research Reserve is eligible 
for the full complement of funding. Financial assistance application 
procedures are specified in subpart I.
    (b) In developing a Reserve program, a state may choose to develop a 
multiple-site Reserve reflecting a diversity of habitats in a single 
biogeographic region. A multiple-site Reserve allows the state to 
develop complementary research and educational programs within the 
individual components of its multi-site Reserve. Multiple-site Reserves 
are treated as one Reserve in terms of financial assistance and 
development of an overall management framework and plan. Each individual 
site of a proposed multiple-site Reserve shall be evaluated both 
separately under Sec. 921.11(c) and collectively as part of the site 
selection process. A coastal state may propose to establish a multiple-
site Reserve at the time of the initial site selection, or at any point 
in the development or operation of the Reserve. If the state decides to 
develop a multiple-site National Estuarine Research Reserve after the 
initial acquisition and development award is made for a single site, the 
proposal is subject to the requirements set forth in Sec. 921.33(b). 
However, a state may not propose to add one or more sites to an already 
designated Reserve if the operation and management of such Reserve has 
been found deficient and uncorrected or the research conducted is not 
consistent with the Estuarine Research Guidelines referenced in Sec. 
921.51. In addition, Federal funds for the acquisition of a multiple-
site Reserve remain limited to $5,000,000 (see Sec. 921.20). The 
funding for operation of a multiple-site Reserve is limited to the 
maximum allowed for any one Reserve per year (see Sec. 921.32(c)) and 
preacquisition funds are limited to $100,000 per Reserve. 
Notwithstanding the above, when financial assistance is provided from 
amounts recovered as a result of damage to natural resources located in 
the coastal zone, such assistance may be used to pay 100 percent of all 
actual costs of activities carrier out with this assistance, as long as 
such funds are available.

[58 FR 38215, July 15, 1993, as amended at 63 FR 26717, May 14, 1998]

[[Page 100]]



Sec. 921.11  Site selection and feasibility.

    (a) A coastal state may use Federal funds to establish and implement 
a site selection process which is approved by NOAA.
    (b) In addition to the requirements set forth in subpart I, a 
request for Federal funds for site selection must contain the following 
programmatic information:
    (1) A description of the proposed site selection process and how it 
will be implemented in conformance with the biogeographic classification 
scheme and typology (Sec. 921.3);
    (2) An identification of the site selection agency and the potential 
management agency; and
    (3) A description of how public participation will be incorporated 
into the process (see Sec. 921.11(d)).
    (c) As part of the site selection process, the state and NOAA shall 
evaluate and select the final site(s). NOAA has final authority in 
approving such sites. Site selection shall be guided by the following 
principles:
    (1) The site's contribution to the biogeographical and typological 
balance of the National Estuarine Research Reserve System. NOAA will 
give priority consideration to proposals to establish Reserves in 
biogeographic regions or subregions or incorporating types that are not 
represented in the system. (see the biogeographic classification scheme 
and typology set forth in Sec. 921.3 and appendices I and II);
    (2) The site's ecological characteristics, including its biological 
productivity, diversity of flora and fauna, and capacity to attract a 
broad range of research and educational interests. The proposed site 
must be a representative estuarine ecosystem and should, to the maximum 
extent possible, be an estuarine ecosystem minimally affected by human 
activity or influence (see Sec. 921.1(e)).
    (3) Assurance that the site's boundaries encompass an adequate 
portion of the key land and water areas of the natural system to 
approximate an ecological unit and to ensure effective conservation. 
Boundary size will vary greatly depending on the nature of the 
ecosystem. Reserve boundaries must encompass the area within which 
adequate control has or will be established by the managing entity over 
human activities occurring within the Reserve. Generally, Reserve 
boundaries will encompass two areas: Key land and water areas (or ``core 
area'') and a buffer zone. Key land and water areas and a buffer zone 
will likely require significantly different levels of control (see Sec. 
921.13(a)(7)). The term ``key land and water areas'' refers to that core 
area within the Reserve that is so vital to the functioning of the 
estuarine ecosystem that it must be under a level of control sufficient 
to ensure the long-term viability of the Reserve for research on natural 
processes. Key land and water areas, which comprise the core area, are 
those ecological units of a natural estuarine system which preserve, for 
research purposes, a full range of significant physical, chemical and 
biological factors contributing to the diversity of fauna, flora and 
natural processes occurring within the estuary. The determination of 
which land and water areas are ``key'' to a particular Reserve must be 
based on specific scientific knowledge of the area. A basic principle to 
follow when deciding upon key land and water areas is that they should 
encompass resources representative of the total ecosystem, and which if 
compromised could endanger the research objectives of the Reserve. The 
term buffer zone refers to an area adjacent to or surrounding key land 
and water areas and essential to their integrity. Buffer zones protect 
the core area and provide additional protection for estuarine-dependent 
species, including those that are rare or endangered. When determined 
appropriate by the state and approved by NOAA, the buffer zone may also 
include an area necessary for facilities required for research and 
interpretation. Additionally, buffer zones should be established 
sufficient to accommodate a shift of the core area as a result of 
biological, ecological or geomorphological change which reasonably could 
be expected to occur. National Estuarine Research Reserves may include 
existing Federal or state lands already in a protected status where 
mutual benefit can be enhanced. However, NOAA will not approve a site

[[Page 101]]

for potential National Estuarine Research Reserve status that is 
dependent primarily upon the inclusion of currently protected Federal 
lands in order to meet the requirements for Reserve status (such as key 
land and water areas). Such lands generally will be included within a 
Reserve to serve as a buffer or for other ancillary purposes; and may be 
included, subject to NOAA approval, as a limited portion of the core 
area;
    (4) The site's suitability for long-term estuarine research, 
including ecological factors and proximity to existing research 
facilities and educational institutions;
    (5) The site's compatibility with existing and potential land and 
water uses in contiguous areas as well as approved coastal and estuarine 
management plans; and
    (6) The site's importance to education and interpretive efforts, 
consistent with the need for continued protection of the natural system.
    (d) Early in the site selection process the state must seek the 
views of affected landowners, local governments, other state and Federal 
agencies and other parties who are interested in the area(s) being 
considered for selection as a potential National Estuarine Research 
Reserve. After the local government(s) and affected landowner(s) have 
been contacted, at least one public meeting shall be held in the 
vicinity of the proposed site. Notice of such a meeting, including the 
time, place, and relevant subject matter, shall be announced by the 
state through the area's principal newspaper at least 15 days prior to 
the date of the meeting and by NOAA in the Federal Register.
    (e) A state request for NOAA approval of a proposed site (or sites 
in the case of a multi-site Reserve) must contain a description of the 
proposed site(s) in relationship to each of the site selection 
principals (Sec. 921.11(c)) and the following information:
    (1) An analysis of the proposed site(s) based on the biogeographical 
scheme/typology discussed in Sec. 921.3 and set forth in appendices I 
and II;
    (2) A description of the proposed site(s) and its (their) major 
resources, including location, proposed boundaries, and adjacent land 
uses. Maps are required;
    (3) A description of the public participation process used by the 
state to solicit the views of interested parties, a summary of comments, 
and, if interstate issues are involved, documentation that the 
Governor(s) of the other affected state(s) has been contacted. Copies of 
all correspondence, including contact letters to all affected landowners 
must be appended;
    (4) A list of all sites considered and a brief statement of the 
reasons why a site was not preferred; and
    (5) A nomination of the proposed site(s) for designation as a 
National Estuarine Research Reserve by the Governor of the coastal state 
in which the state is located.
    (f) A state proposing to reactivate an inactive site, previously 
approved by NOAA for development as an Estuarine Sanctuary or Reserve, 
may apply for those funds remaining, if any, provided for site selection 
and feasibility (Sec. 921.11a)) to determine the feasibility of 
reactivation. This feasibility study must comply with the requirements 
set forth in Sec. 921.11 (c) through (e).



Sec. 921.12  Post site selection.

    (a) At the time of the coastal state's request for NOAA approval of 
a proposed site, the state may submit a request for funds to develop the 
draft management plan and for preparation of the EIS. At this time, the 
state may also submit a request for the remainder of the predesignation 
funds to perform a limited basic characterization of the physical, 
chemical and biological characteristics of the site approved by NOAA 
necessary for providing EIS information to NOAA. The state's request for 
these post site selection funds must be accompanied by the information 
specified in subpart I and, for draft management plan development and 
EIS information collection, the following programmatic information:
    (1) A draft management plan outline (see Sec. 921.13(a) below); and
    (2) An outline of a draft memorandum of understanding (MOU) between 
the state and NOAA detailing the Federal-state role in Reserve 
management during the initial period of Federal funding and expressing 
the

[[Page 102]]

state's long-term commitment to operate and manage the Reserve.
    (b) The state is eligible to use the funds referenced in Sec. 
921.12(a) after the proposed site is approved by NOAA under the terms of 
Sec. 921.11.



Sec. 921.13  Management plan and environmental impact statement 
development.

    (a) After NOAA approves the state's proposed site and application 
for funds submitted pursuant to Sec. 921.12, the state may begin draft 
management plan development and the collection of information necessary 
for the preparation by NOAA of an EIS. The state shall develop a draft 
management plan, including an MOU. The plan shall set out in detail:
    (1) Reserve goals and objectives, management issues, and strategies 
or actions for meeting the goals and objectives;
    (2) An administrative plan including staff roles in administration, 
research, education/interpretation, and surveillance and enforcement;
    (3) A research plan, including a monitoring design;
    (4) An education/interpretive plan;
    (5) A plan for public access to the Reserve;
    (6) A construction plan, including a proposed construction schedule, 
general descriptions of proposed developments and general cost 
estimates. Information should be provided for proposed minor 
construction projects in sufficient detail to allow these projects to 
begin in the initial phase of acquisition and development. A categorical 
exclusion, environmental assessment, or EIS may be required prior to 
construction;
    (7)(i) An acquisition plan identifying the ecologically key land and 
water areas of the Reserve, ranking these areas according to their 
relative importance, and including a strategy for establishing adequate 
long-term state control over these areas sufficient to provide 
protection for Reserve resources to ensure a stable environment for 
research. This plan must include an identification of ownership within 
the proposed Reserve boundaries, including land already in the public 
domain; the method(s) of acquisition which the state proposes to use--
acquisition (including less-than-fee simple options) to establish 
adequate long-term state control; an estimate of the fair market value 
of any property interest--which is proposed for acquisition; a schedule 
estimating the time required to complete the process of establishing 
adequate state control of the proposed research reserve; and a 
discussion of any anticipated problems. In selecting a preferred 
method(s) for establishing adequate state control over areas within the 
proposed boundaries of the Reserve, the state shall perform the 
following steps for each parcel determined to be part of the key land 
and water areas (control over which is necessary to protect the 
integrity of the Reserve for research purposes), and for those parcels 
required for research and interpretive support facilities or buffer 
purposes:
    (A) Determine, with appropriate justification, the minimum level of 
control(s) required [e.g., management agreement, regulation, less-than-
fee simple property interest (e.g., conservation easement), fee simple 
property acquisition, or a combination of these approaches]. This does 
not preclude the future necessity of increasing the level of state 
control;
    (B) Identify the level of existing state control(s);
    (C) Identify the level of additional state control(s), if any, 
necessary to meet the minimum requirements identified in paragraph 
(a)(7)(i)(A) of this section;
    (D) Examine all reasonable alternatives for attaining the level of 
control identified in paragraph (a)(7)(i)(C) of this section, and 
perform a cost analysis of each; and
    (E) Rank, in order of cost, the methods (including acquisition) 
identified in paragraph (a)(7)(i)(D) of this section.
    (ii) An assessment of the relative cost-effectiveness of control 
alternatives shall include a reasonable estimate of both short-term 
costs (e.g., acquisition of property interests, regulatory program 
development including associated enforcement costs, negotiation, 
adjudication, etc.) and long-term costs (e.g., monitoring, enforcement,

[[Page 103]]

adjudication, management and coordination). In selecting a preferred 
method(s) for establishing adequate state control over each parcel 
examined under the process described above, the state shall give 
priority consideration to the least costly method(s) of attaining the 
minimum level of long-term control required. Generally, with the 
possible exception of buffer areas required for support facilities, the 
level of control(s) required for buffer areas will be considerably less 
than that required for key land and water areas. This acquisition plan, 
after receiving the approval of NOAA, shall serve as a guide for 
negotiations with landowners. A final boundary for the reserve shall be 
delineated as a part of the final management plan;
    (8) A resource protection plan detailing applicable authorities, 
including allowable uses, uses requiring a permit and permit 
requirements, any restrictions on use of the research reserve, and a 
strategy for research reserve surveillance and enforcement of such use 
restrictions, including appropriate government enforcement agencies;
    (9) If applicable, a restoration plan describing those portions of 
the site that may require habitat modification to restore natural 
conditions;
    (10) If applicable, a resource manipulation plan, describing those 
portions of the Reserve buffer in which long-term pre-existing (prior to 
designation) manipulation for reasons not related to research or 
restoration is occurring. The plan shall explain in detail the nature of 
such activities, shall justify why such manipulation should be permitted 
to continue within the reserve buffer; and shall describe possible 
effects of this manipulation on key land and water areas and their 
resources;
    (11) A proposed memorandum of understanding (MOU) between the state 
and NOAA regarding the Federal-state relationship during the 
establishment and development of the National Estuarine Research 
Reserve, and expressing a long-term commitment by the state to maintain 
and manage the Reserve in accordance with section 315 of the Act, 16 
U.S.C. 1461, and applicable regulations. In conjunction with the MOU, 
and where possible under state law, the state will consider taking 
appropriate administrative or legislative action to ensure the long-term 
protection and operation of the National Estuarine Research Reserve. If 
other MOUs are necessary (such as with a Federal agency, another state 
agency or private organization), drafts of such MOUs must be included in 
the plan. All necessary MOU's shall be signed prior to Reserve 
designation; and
    (12) If the state has a federally approved coastal management 
program, a certification that the National Estuarine Research Reserve is 
consistent to the maximum extent practicable with that program. See 
Sec. Sec. 921.4(b) and 921.30(b).
    (b) Regarding the preparation of an EIS under the National 
Environmental Policy Act on a National Estuarine Research Reserve 
proposal, the state and NOAA shall collect all necessary information 
concerning the socioeconomic and environmental impacts associated with 
implementing the draft management plan and feasible alternatives to the 
plan. Based on this information, the state will draft and provide NOAA 
with a preliminary EIS.
    (c) Early in the development of the draft management plan and the 
draft EIS, the state and NOAA shall hold a scoping meeting (pursuant to 
NEPA) in the area or areas most affected to solicit public and 
government comments on the significant issues related to the proposed 
action. NOAA will publish a notice of the meeting in the Federal 
Register at least 15 days prior to the meeting. The state shall be 
responsible for publishing a similar notice in the local media.
    (d) NOAA will publish a Federal Register notice of intent to prepare 
a draft EIS. After the draft EIS is prepared and filed with the 
Environmental Protection Agency (EPA), a Notice of Availability of the 
draft EIS will appear in the Federal Register. Not less than 30 days 
after publication of the notice, NOAA will hold at least one public 
hearing in the area or areas most affected by the proposed national 
estuarine research reserve. The hearing will be held no sooner than 15 
days after appropriate notice of the meeting has been given in the 
principal news media by the state and in the Federal Register by NOAA. 
After a 45-day

[[Page 104]]

comment period, a final EIS will be prepared by the state and NOAA.



    Subpart C_Acquisition, Development and Preparation of the Final 
                             Management Plan



Sec. 921.20  General.

    The acquisition and development period is separated into two major 
phases. After NOAA approval of the site, draft management plan and draft 
MOU, and completion of the final EIS, a coastal state is eligible for an 
initial acquisition and development award(s). In this initial phase, the 
state should work to meet the criteria required for formal research 
reserve designation; e.g., establishing adequate state control over the 
key land and water areas as specified in the draft management plan and 
preparing the final management plan. These requirements are specified in 
Sec. 921.30. Minor construction in accordance with the draft management 
plan may also be conducted during this initial phase. The initial 
acquisition and development phase is expected to last no longer than 
three years. If necessary, a longer time period may be negotiated 
between the state and NOAA. After Reserve designation, a state is 
eligible for a supplemental acquisition and development award(s) in 
accordance with Sec. 921.31. In this post-designation acquisition and 
development phase, funds may be used in accordance with the final 
management plan to construct research and educational facilities, 
complete any remaining land acquisition, for program development, and 
for restorative activities identified in the final management plan. In 
any case, the amount of Federal financial assistance provided to a 
coastal state with respect to the acquisition of lands and waters, or 
interests therein, for any one National Estuarine Research Reserve may 
not exceed an amount equal to 50 percent of the costs of the lands, 
waters, and interests therein or $5,000,000, whichever amount is less, 
except when the financial assistance is provided from amounts recovered 
as a result of damage to natural resources located in the coastal zone, 
in which case the assistance may be used to pay 100 percent of all 
actual costs of activities carrier out with this assistance, as long as 
such funds are available.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 
63 FR 26717, May 14, 1998]



Sec. 921.21  Initial acquisition and development awards.

    (a) Assistance is provided to aid the recipient prior to designation 
in:
    (1) Acquiring a fee simple or less-than-fee simple real property 
interest in land and water areas to be included in the Reserve 
boundaries (see Sec. 921.13(a)(7); Sec. 921.30(d));
    (2) Minor construction, as provided in paragraphs (b) and (c) of 
this section;
    (3) Preparing the final management plan; and
    (4) Initial management costs, e.g., for implementing the NOAA 
approved draft management plan, hiring a Reserve manager and other staff 
as necessary and for other management-related activities. Application 
procedures are specified in subpart I.
    (b) The expenditure of Federal and state funds on major construction 
activities is not allowed during the initial acquisition and development 
phase. The preparation of architectural and engineering plans, including 
specifications, for any proposed construction, or for proposed 
restorative activities, is permitted. In addition, minor construction 
activities, consistent with paragraph (c) of this section also are 
allowed. The NOAA-approved draft management plan must, however, include 
a construction plan and a public access plan before any award funds can 
be spent on construction activities.
    (c) Only minor construction activities that aid in implementing 
portions of the management plan (such as boat ramps and nature trails) 
are permitted during the initial acquisition and development phase. No 
more than five (5) percent of the initial acquisition and development 
award may be expended on such activities. NOAA must make a specific 
determination, based on the final EIS, that the construction activity 
will not be detrimental to the environment.

[[Page 105]]

    (d) Except as specifically provided in paragraphs (a) through (c) of 
this section, construction projects, to be funded in whole or in part 
under an acquisition and development award(s), may not be initiated 
until the Reserve receives formal designation (see Sec. 921.30). This 
requirement has been adopted to ensure that substantial progress in 
establishing adequate state control over key land and water areas has 
been made and that a final management plan is completed before major 
sums are spent on construction. Once substantial progress in 
establishing adequate state control/acquisition has been made, as 
defined by the state in the management plan, other activities guided by 
the final management plan may begin with NOAA's approval.
    (e) For any real property acquired in whole or part with Federal 
funds for the Reserve, the state shall execute suitable title documents 
to include substantially the following provisions, or otherwise append 
the following provisions in a manner acceptable under applicable state 
law to the official land record(s):
    (1) Title to the property conveyed by this deed shall vest in the 
[recipient of the award granted pursuant to section 315 of the Act, 16 
U.S.C. 1461 or other NOAA approved state agency] subject to the 
condition that the designation of the [name of National Estuarine 
Reserve] is not withdrawn and the property remains part of the federally 
designated [name of National Estuarine Research Reserve]; and
    (2) In the event that the property is no longer included as part of 
the Reserve, or if the designation of the Reserve of which it is part is 
withdrawn, then NOAA or its successor agency, after full and reasonable 
consultation with the State, may exercise the following rights regarding 
the disposition of the property:
    (i) The recipient may retain title after paying the Federal 
Government an amount computed by applying the Federal percentage of 
participation in the cost of the original project to the current fair 
market value of the property;
    (ii) If the recipient does not elect to retain title, the Federal 
Government may either direct the recipient to sell the property and pay 
the Federal Government an amount computed by applying the Federal 
percentage of participation in the cost of the original project to the 
proceeds from the sale (after deducting actual and reasonable selling 
and repair or renovation expenses, if any, from the sale proceeds), or 
direct the recipient to transfer title to the Federal Government. If 
directed to transfer title to the Federal Government, the recipient 
shall be entitled to compensation computed by applying the recipient's 
percentage of participation in the cost of the original project to the 
current fair market value of the property; and
    (iii) Fair market value of the property must be determined by an 
independent appraiser and certified by a responsible official of the 
state, as provided by Department of Commerce regulations at 15 CFR part 
24, and Uniform Relocation Assistance and Real Property Acquisition for 
Federal and Federally assisted programs at 15 CFR part 11.
    (f) Upon instruction by NOAA, provisions analogous to those of Sec. 
921.21(e) shall be included in the documentation underlying less-then-
fee-simple interests acquired in whole or part with Federal funds.
    (g) Federal funds or non-Federal matching share funds shall not be 
spent to acquire a real property interest in which the state will own 
the land concurrently with another entity unless the property interest 
has been identified as a part of an acquisition strategy pursuant to 
Sec. 921.13(7) which has been approved by NOAA prior to the effective 
date of these regulations.
    (h) Prior to submitting the final management plan to NOAA for review 
and approval, the state shall hold a public meeting to receive comment 
on the plan in the area affected by the estuarine research reserve. NOAA 
will publish a notice of the meeting in the Federal Register at least 15 
days prior to the public meeting. The state shall be responsible for 
having a similar notice published in the local newspaper(s).

[[Page 106]]



         Subpart D_Reserve Designation and Subsequent Operation



Sec. 921.30  Designation of National Estuarine Research Reserves.

    (a) The Under Secretary may designate an area proposed for 
designation by the Governor of the state in which it is located, as a 
National Esturaine Research Reserve if the Under Secretary finds:
    (1) The area is a representative estuarine ecosystem that is 
suitable for long-term research and contributes to the biogeographical 
and typological balance of the System;
    (2) Key land and water areas of the proposed Reserve, as identified 
in the management plan, are under adequate state control sufficient to 
provide long-term protection for reserve resources to ensure a stable 
environment for research;
    (3) Designation of the area as a Reserve will serve to enhance 
public awareness and understanding of estuarine areas, and provide 
suitable opportunities for public education and interpretation;
    (4) A final management plan has been approved by NOAA;
    (5) An MOU has been signed between the state and NOAA ensuring a 
long-term commitment by the state to the effective operation and 
implementation of the area as a National Estuarine Research Reserve;
    (6) All MOU's necessary for reserve management (i.e., with relevant 
Federal, state, and local agencies and/or private organizations) have 
been signed; and
    (7) The coastal state in which the area is located has complied with 
the requirements of subpart B.
    (b) NOAA will determine whether the designation of a National 
Estuarine Research Reserve in a state with a federally approved coastal 
zone management program directly affects the coastal zone. If the 
designation is found to directly affect the coastal zone, NOAA will make 
a consistency determination pursuant to Sec. 307(c)(1) of the Act, 16 
U.S.C. 1456, and 15 CFR part 930, subpart C. See Sec. 921.4(b). The 
results of this consistency determination will be published in the 
Federal Register when the notice of designation is published. See Sec. 
921.30(c).
    (c) NOAA will publish the notice of designation of a National 
Estuarine Research Reserve in the Federal Register. The state shall be 
responsible for having a similar notice published in the local media.
    (d) The term state control in Sec. 921.30(a)(3) does not 
necessarily require that key land and water areas be owned by the state 
in fee simple. Acquisition of less-than-fee simple interests e.g., 
conservation easements) and utilization of existing state regulatory 
measures are encouraged where the state can demonstrate that these 
interests and measures assure adequate long-term state control 
consistent with the purposes of the research reserve (see also 
Sec. Sec. 921.13(a)(7); 921.21(g)). Should the state later elect to 
purchase an interest in such lands using NOAA funds, adequate 
justification as to the need for such acquisition must be provided to 
NOAA.



Sec. 921.31  Supplemental acquisition and development awards.

    After National Estuarine Research Reserve designation, and as 
specified in the approved management plan, a coastal state may request a 
supplemental acquisition and/or development award(s) for acquiring 
additional property interests identified in the management plan as 
necessary to strengthen protection of key land and water areas and to 
enhance long-term protection of the area for research and education, for 
facility and exhibit construction, for restorative activities identified 
in the approved management plan, for administrative purposes related to 
acquisition and/or facility construction and to develop and/or upgrade 
research, monitoring and education/interpretive programs. Federal 
financial assistance provided to a National Estuarine Research Reserve 
for supplemental development costs directly associated with facility 
construction (i.e., major construction activities) may not exceed 70 
percent of the total project cost, except when the financial assistance 
is provided from amounts recovered as a result of damage to natural 
resources located in the coastal zone, in which case the assistance may 
be used to pay 100

[[Page 107]]

percent of the costs. NOAA must make a specific determination that the 
construction activity will not be detrimental to the environment. 
Acquisition awards for the acquisition of lands or waters, or interests 
therein, for any one reserve may not exceed an amount equal to 50 
percent of the costs of the lands, waters, and interests therein of 
$5,000,000, whichever amount is less, except when the financial 
assistance is provided from amounts recovered as result of damage to 
natural resources located in the coastal zone, in which case the 
assistance may be used to pay 100 percent of all actual costs of 
activities carrier out with this assistance, as long as such funds are 
available. In the case of a biogeographic region (see appendix I) shared 
by two or more states, each state is eligible independently for Federal 
financial assistance to establish a separate National Estuarine Research 
Reserve within their respective portion of the shared biogeographic 
region. Application procedures are specified in subpart I. Land 
acquisition must follow the procedures specified in Sec. Sec. 
921.13(a)(7), 921.21(e) and (f) and 921.81.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 
63 FR 26717, May 14, 1998]



Sec. 921.32  Operation and management: Implementation of the management 
plan.

    (a) After the Reserve is formally designated, a coastal state is 
eligible to receive Federal funds to assist the state in the operation 
and management of the Reserve including the management of research, 
monitoring, education, and interpretive programs. The purpose of this 
Federally funded operation and management phase is to implement the 
approved final management plan and to take the necessary steps to ensure 
the continued effective operation of the Reserve.
    (b) State operation and management of the Reserves shall be 
consistent with the mission, and shall further the goals of the National 
Estuarine Research Reserve program (see Sec. 921.1).
    (c) Federal funds are available for the operation and management of 
the Reserve. Federal funds provided pursuant to this section may not 
exceed 70 percent of the total cost of operating and managing the 
Reserve for any one year, except when the financial assistance is 
provided from amounts recovered as a result of damage to natural 
resources located in the coastal zone, in which case the assistance may 
be used to pay 100 percent of the costs. In the case of a biogeographic 
region (see Appendix I) shared by two or more states, each state is 
eligible for Federal financial assistance to establish a separate 
Reserve within their respective portion of the shared biogeographic 
region (see Sec. 921.10).
    (d) Operation and management funds are subject to the following 
limitations:
    (1) Eligible coastal state agencies may apply for up to the maximum 
share available per Reserve for that fiscal year. Share amounts will be 
announced annually by letter from the Sanctuary and Reserves Division to 
all participating states. This letter will be provided as soon as 
practicable following approval of the Federal budget for that fiscal 
year.
    (2) No more than ten percent of the total amount (state and Federal 
shares) of each operation and management award may be used for 
construction-type activities.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]



Sec. 921.33  Boundary changes, amendments to the management plan, and 
addition of multiple-site components.

    (a) Changes in the boundary of a Reserve and major changes to the 
final management plan, including state laws or regulations promulgated 
specifically for the Reserve, may be made only after written approval by 
NOAA. NOAA may require public notice, including notice in the Federal 
Register and an opportunity for public comment before approving a 
boundary or management plan change. Changes in the boundary of a Reserve 
involving the acquisition of properties not listed in the management 
plan or final EIS require public notice and the opportunity for comment; 
in certain cases, a categorical exclusion, an environmental assessment 
and possibly an environmental impact statement may be required.

[[Page 108]]

NOAA will place a notice in the Federal Register of any proposed changes 
in Reserve boundaries or proposed major changes to the final management 
plan. The state shall be responsible for publishing an equivalent notice 
in the local media. See also requirements of Sec. Sec. 921.4(b) and 
921.13(a)(11).
    (b) As discussed in Sec. 921.10(b), a state may choose to develop a 
multiple-site National Estuarine Research Reserve after the initial 
acquisition and development award for a single site has been made. NOAA 
will publish notice of the proposed new site including an invitation for 
comments from the public in the Federal Register. The state shall be 
responsible for publishing an equivalent notice in the local 
newspaper(s). An EIS, if required, shall be prepared in accordance with 
section Sec. 921.13 and shall include an administrative framework for 
the multiple-site Reserve and a description of the complementary 
research and educational programs within the Reserve. If NOAA 
determines, based on the scope of the project and the issues associated 
with the additional site(s), that an environmental assessment is 
sufficient to establish a multiple-site Reserve, then the state shall 
develop a revised management plan which, concerning the additional 
component, incorporates each of the elements described in Sec. 
921.13(a). The revised management plan shall address goals and 
objectives for all components of the multi-site Reserve and the 
additional component's relationship to the original site(s).
    (c) The state shall revise the management plan for a Reserve at 
least every five years, or more often if necessary. Management plan 
revisions are subject to (a) above.
    (d) NOAA will approve boundary changes, amendments to management 
plans, or the addition of multiple-site components, by notice in the 
Federal Register. If necessary NOAA will revise the designation document 
(findings) for the site.



 Subpart E_Ongoing Oversight, Performance Evaluation and Withdrawal of 
                               Designation



Sec. 921.40  Ongoing oversight and evaluations of designated National 
Estuarine Research Reserves.

    (a) The Sanctuaries and Reserve Division shall conduct, in 
accordance with section 312 of the Act and procedures set forth in 15 
CFR part 928, ongoing oversight and evaluations of Reserves. Interim 
sanctions may be imposed in accordance with regulations promulgated 
under 15 CFR part 928.
    (b) The Assistant Administrator may consider the following 
indicators of non-adherence in determining whether to invoke interim 
sanctions:
    (1) Inadequate implementation of required staff roles in 
administration, research, education/interpretation, and surveillance and 
enforcement. Indicators of inadequate implementation could include: No 
Reserve Manager, or no staff or insufficient staff to carry out the 
required functions.
    (2) Inadequate implementation of the required research plan, 
including the monitoring design. Indicators of inadequate implementation 
could include: Not carrying out research or monitoring that is required 
by the plan, or carrying out research or monitoring that is inconsistent 
with the plan.
    (3) Inadequate implementation of the required education/
interpretation plan. Indicators of inadequate implementation could 
include: Not carrying out education or interpretation that is required 
by the plan, or carrying out education/interpretation that is 
inconsistent with the plan.
    (4) Inadequate implementation of public access to the Reserve. 
Indicators of inadequate implementation of public access could include: 
Not providing necessary access, giving full consideration to the need to 
keep some areas off limits to the public in order to protect fragile 
resources.
    (5) Inadequate implementation of facility development plan. 
Indicators of inadequate implementation could include: Not taking action 
to propose and budget for necessary facilities, or not undertaking 
necessary construction in a timely manner when funds are available.

[[Page 109]]

    (6) Inadequate implementation of acquisition plan. Indicators of 
inadequate implementation could include: Not pursuing an aggressive 
acquisition program with all available funds for that purpose, not 
requesting promptly additional funds when necessary, and evidence that 
adequate long-term state control has not been established over some core 
or buffer areas, thus jeopardizing the ability to protect the Reserve 
site and resources from offsite impacts.
    (7) Inadequate implementation of Reserve protection plan. Indicators 
of inadequate implementation could include: Evidence of non-compliance 
with Reserve restrictions, insufficient surveillance and enforcement to 
assure that restrictions on use of the Reserve are adhered to, or 
evidence that Reserve resources are being damaged or destroyed as a 
result of the above.
    (8) Failure to carry out the terms of the signed Memorandum of 
Understanding (MOU) between the state and NOAA, which establishes a 
long-term state commitment to maintain and manage the Reserve in 
accordance with section 315 of the Act. Indicators of failure could 
include: State action to allow incompatible uses of state-controlled 
lands or waters in the Reserve, failure of the state to bear its fair 
share of costs associated with long-term operation and management of the 
Reserve, or failure to initiate timely updates of the MOU when 
necessary.



Sec. 921.41  Withdrawal of designation.

    The Assistant Administrator may withdraw designation of an estuarine 
area as a National Estuarine Research Reserve pursuant to and in 
accordance with the procedures of section 312 and 315 of the Act and 
regulations promulgated thereunder.



                   Subpart F_Special Research Projects



Sec. 921.50  General.

    (a) To stimulate high quality research within designated National 
Estuarine Research Reserves, NOAA may provide financial support for 
research projects which are consistent with the Estuarine Research 
Guidelines referenced in Sec. 921.51. Research awards may be awarded 
under this subpart to only those designated Reserves with approved final 
management plans. Although research may be conducted within the 
immediate watershed of the Reserve, the majority of research activities 
of any single research project funded under this subpart may be 
conducted within Reserve boundaries. Funds provided under this subpart 
are primarily used to support management-related research projects that 
will enhance scientific understanding of the Reserve ecosystem, provide 
information needed by Reserve management and coastal management 
decision-makers, and improve public awareness and understanding of 
estuarine ecosystems and estuarine management issues. Special research 
projects may be oriented to specific Reserves; however, research 
projects that would benefit more than one Reserve in the National 
Estuarine Reserve Research System are encouraged.
    (b) Funds provided under this subpart are available on a competitive 
basis to any coastal state or qualified public or private person. A 
notice of available funds will be published in the Federal Register. 
Special research project funds are provided in addition to any other 
funds available to a coastal state under the Act. Federal funds provided 
under this subpart may not exceed 70 percent of the total cost of the 
project, consistent with Sec. 921.81(e)(4) (``allowable costs''), 
except when the financial assistance is provided from amounts recovered 
as a result of damage to natural resources located in the coastal zone, 
in which case the assistance may be used to pay 100 percent of the 
costs.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]



Sec. 921.51  Estuarine research guidelines.

    (a) Research within the National Estuarine Research Reserve System 
shall be conducted in a manner consistent with Estuarine Research 
Guidelines developed by NOAA.
    (b) A summary of the Estuarine Research Guidelines is published in 
the Federal Register as a part of the notice of available funds 
discussed in Sec. 921.50(c).
    (c) The Estuarine Research Guidelines are reviewed annually by NOAA. 
This review will include an opportunity

[[Page 110]]

for comment by the estuarine research community.



Sec. 921.52  Promotion and coordination of estuarine research.

    (a) NOAA will promote and coordinate the use of the National 
Estuarine Research Reserve System for research purposes.
    (b) NOAA will, in conducting or supporting estuarine research other 
than that authorized under section 315 of the Act, give priority 
consideration to research that make use of the National Estuarine 
Research Reserve System.
    (c) NOAA will consult with other Federal and state agencies to 
promote use of one or more research reserves within the National 
Estuarine Research Reserve System when such agencies conduct estuarine 
research.



                  Subpart G_Special Monitoring Projects



Sec. 921.60  General.

    (a) To provide a systematic basis for developing a high quality 
estuarine resource and ecosystem information base for National Estuarine 
Research Reserves and, as a result, for the System, NOAA may provide 
financial support for basic monitoring programs as part of operations 
and management under Sec. 921.32. Monitoring funds are used to support 
three major phases of a monitoring program:
    (1) Studies necessary to collect data for a comprehensive site 
description/characterization;
    (2) Development of a site profile; and
    (3) Formulation and implementation of a monitoring program.
    (b) Additional monitoring funds may be available on a competitive 
basis to the state agency responsible for Reserve management or a 
qualified public or private person or entity. However, if the applicant 
is other than the managing entity of a Reserve that applicant must 
submit as a part of the application a letter from the Reserve manager 
indicating formal support of the application by the managing entity of 
the Reserve. Funds provided under this subpart for special monitoring 
projects are provided in addition to any other funds available to a 
coastal state under the Act. Federal funds provided under this subpart 
may not exceed 70 percent of the total cost of the project, consistent 
with Sec. 921.81(e)(4) (``allowable costs''), except when the financial 
assistance is provided from amounts recovered as a result of damage to 
natural resources located in the coastal zone, in which case the 
assistance may be used to pay 100 percent of the costs.
    (c) Monitoring projects funded under this subpart must focus on the 
resources within the boundaries of the Reserve and must be consistent 
with the applicable sections of the Estuarine Research Guidelines 
referenced in Sec. 921.51. Portions of the project may occur within the 
immediate watershed of the Reserve beyond the site boundaries. However, 
the monitoring proposal must demonstrate why this is necessary for the 
success of the project.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]



         Subpart H_Special Interpretation and Education Projects



Sec. 921.70  General.

    (a) To stimulate the development of innovative or creative 
interpretive and educational projects and materials to enhance public 
awareness and understanding of estuarine areas, NOAA may fund special 
interpretive and educational projects in addition to those activities 
provided for in operations and management under Sec. 921.32. Special 
interpretive and educational awards may be awarded under this subpart to 
only those designated Reserves with approved final management plans.
    (b) Funds provided under this subpart may be available on a 
competitive basis to any state agency. However, if the applicant is 
other than the managing entity of a Reserve, that applicant must submit 
as a part of the application a letter from the Reserve manager 
indicating formal support of the application by the managing entity of 
the Reserve. These funds are provided in addition to any other funds 
available to a coastal state under the Act. Federal funds provided under 
this subpart may not exceed 70 percent of the total cost of the project, 
consistent with Sec. 921.81(e)(4) (``allowable costs''),

[[Page 111]]

except when the financial assistance is provided from amounts recovered 
as a result of damage to natural resources located in the coastal zone, 
in which case the assistance may be used to pay 100 percent of the 
costs.
    (c) Applicants for education/interpretive projects that NOAA 
determines benefit the entire National Estuarine Research Reserve System 
may receive Federal assistance of up to 100% of project costs.

[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]



            Subpart I_General Financial Assistance Provisions



Sec. 921.80  Application information.

    (a) Only a coastal state may apply for Federal financial assistance 
awards for preacquisition, acquisition and development, operation and 
management, and special education and interpretation projects under 
subpart H. Any coastal state or public or private person may apply for 
Federal financial assistance awards for special estuarine research or 
monitoring projects under subpart G. The announcement of opportunities 
to conduct research in the System appears on an annual basis in the 
Federal Register. If a state is participating in the national Coastal 
Zone Management Program, the applicant for an award under section 315 of 
the Act shall notify the state coastal management agency regarding the 
application.
    (b) An original and two copies of the formal application must be 
submitted at least 120 working days prior to the proposed beginning of 
the project to the following address: Sanctuaries and Reserves Division 
Ocean and Coastal Resource Management, National Oceanic and Atmospheric 
Administration, 1825 Connecticut Avenue, NW., suite 714, Washington, DC 
20235. Application for Federal Assistance Standard Form 424 (Non-
construction Program) constitutes the formal application for site 
selection, post-site selection, operation and management, research, and 
education and interpretive awards. The Application for Federal Financial 
Assistance Standard Form 424 (Construction Program) constitutes the 
formal application for land acquisition and development awards. The 
application must be accompanied by the information required in subpart B 
(predesignation), subpart C and Sec. 921.31 (acquisition and 
development), and Sec. 921.32 (operation and management) as applicable. 
Applications for development awards for construction projects, or 
restorative activities involving construction, must include a 
preliminary engineering report, a detailed construction plan, a site 
plan, a budget and categorical exclusion check list or environmental 
assessment. All applications must contain back up data for budget 
estimates (Federal and non-Federal shares), and evidence that the 
application complies with the Executive Order 12372, ``Intergovernmental 
Review of Federal Programs.'' In addition, applications for acquisition 
and development awards must contain:
    (1) State Historic Preservation Office comments;
    (2) Written approval from NOAA of the draft management plan for 
initial acquisition and development award(s); and
    (3) A preliminary engineering report for construction activities.



Sec. 921.81  Allowable costs.

    (a) Allowable costs will be determined in accordance with applicable 
OMB Circulars and guidance for Federal financial assistance, the 
financial assistant agreement, these regulations, and other Department 
of Commerce and NOAA directives. The term ``costs'' applies to both the 
Federal and non-Federal shares.
    (b) Costs claimed as charges to the award must be reasonable, 
beneficial and necessary for the proper and efficient administration of 
the financial assistance award and must be incurred during the award 
period.
    (c) Costs must not be allocable to or included as a cost of any 
other Federally-financed program in either the current or a prior award 
period.
    (d) General guidelines for the non-Federal share are contained in 
Department of Commerce Regulations at 15 CFR part 24 and OMB Circular A-
110.

[[Page 112]]

Copies of Circular A-110 can be obtained from the Sanctuaries and 
Reserves Division; 1825 Connecticut Avenue, NW., suite 714; Washington, 
DC 20235. The following may be used in satisfying the matching 
requirement:
    (1) Site selection and post site selection awards. Cash and in-kind 
contributions (value of goods and services directly benefiting and 
specifically identifiable to this part of the project) are allowable. 
Land may not be used as match.
    (2) Acquisition and development awards. Cash and in-kind 
contributions are allowable. In general, the fair market value of lands 
to be included within the Reserve boundaries and acquired pursuant to 
the Act, with other than Federal funds, may be used as match. However, 
the fair market value of real property allowable as match is limited to 
the fair market value of a real property interest equivalent to, or 
required to attain, the level of control over such land(s) identified by 
the state and approved by the Federal Government as that necessary for 
the protection and management of the National Estuarine Research 
Reserve. Appraisals must be performed according to Federal appraisal 
standards as detailed in Department of Commerce regulations at 15 CFR 
part 24 and the Uniform Relocation Assistance and Real Property 
Acquisition for Federal land Federally assisted programs in 15 CFR part 
11. The fair market value of privately donated land, at the time of 
donation, as established by an independent appraiser and certified by a 
responsible official of the state, pursuant to 15 CFR part 11, may also 
be used as match. Land, including submerged lands already in the state's 
possession, may be used as match to establish a National Estuarine 
Research Reserve. The value of match for these state lands will be 
calculated by determining the value of the benefits foregone by the 
state, in the use of the land, as a result of new restrictions that may 
be imposed by Reserve designation. The appraisal of the benefits 
foregone must be made by an independent appraiser in accordance with 
Federal appraisal standards pursuant to 15 CFR part 24 and 15 CFR part 
11. A state may initially use as match land valued at greater than the 
Federal share of the acquisition and development award. The value in 
excess of the amount required as match for the initial award may be used 
to match subsequent supplemental acquisition and development awards for 
the National Estuarine Research Reserve (see also Sec. 921.20). Costs 
related to land acquisition, such as appraisals, legal fees and surveys, 
may also be used as match.
    (3) Operation and management awards. Generally, cash and in-kind 
contributions (directly benefiting and specifically identifiable to 
operations and management), except land, are allowable.
    (4) Research, monitoring, education and interpretive awards. Cash 
and in-kind contributions (directly benefiting and specifically 
identifiable to the scope of work), except land, are allowable.



Sec. 921.82  Amendments to financial assistance awards.

    Actions requiring an amendment to the financial assistance award, 
such as a request for additional Federal funds, revisions of the 
approved project budget or original scope of work, or extension of the 
performance period must be submitted to NOAA on Standard Form 424 and 
approved in writing.

      Appendix I to Part 921-- Biogeographic Classification Scheme

                                 Acadian

    1. Northern of Maine (Eastport to the Sheepscot River.)
    2. Southern Gulf of Maine (Sheepscot River to Cape Cod.)

                                Virginian

    3. Southern New England (Cape Cod to Sandy Hook.)
    4. Middle Atlantic (Sandy Hook to Cape Hatteras.)
    5. Chesapeake Bay.

                               Carolinian

    6. North Carolinas (Cape Hatteras to Santee River.)
    7. South Atlantic (Santee River to St. John's River.)
    8. East Florida (St. John's River to Cape Canaveral.)

                               West Indian

    9. Caribbean (Cape Canaveral to Ft. Jefferson and south.)
    10. West Florida (Ft. Jefferson to Cedar Key.)

[[Page 113]]

                               Louisianian

    11. Panhandle Coast (Cedar Key to Mobile Bay.)
    12. Mississippi Delta (Mobile Bay to Galveston.)
    13. Western Gulf (Galveston to Mexican border.)

                               Californian

    14. Southern California (Mexican border to Point Conception.)
    15. Central California (Point Conception to Cape Mendocino.)
    16. San Francisco Bay.

                                Columbian

    17. Middle Pacific (Cape Mendocino to the Columbia River.)
    18. Washington Coast (Columbia River to Vancouver Island.)
    19. Puget Sound.

                               Great Lakes

    20. Lake Superior (including St. Mary's River.)
    21. Lakes Michigan and Huron (including Straits of Mackinac, St. 
Clair River, and Lake St. Clair.)
    22. Lake Erie (including Detroit River and Niagara Falls.)
    23. Lake Ontario (including St. Lawrence River.)

                                  Fjord

    24. Southern Alaska (Prince of Wales Island to Cook Inlet.)
    25. Aleutian Island (Cook Inlet Bristol Bay.)

                               Sub-Arctic

    26. Northern Alaska (Bristol Bay to Damarcation Point.)

                                 Insular

    27. Hawaiian Islands.
    28. Western Pacific Island.
    29. Eastern Pacific Island.

[[Page 114]]

[GRAPHIC] [TIFF OMITTED] TC12SE91.000

   Appendix II to Part 921-- Typology of National Estuarine Research 
                                Reserves

    This typology system reflects significant differences in estuarine 
characteristics that are not necessarily related to regional location. 
The purpose of this type of classification is to maximize ecosystem 
variety in the selection of national estuarine reserves. Priority will 
be given to important ecosystem types as yet unrepresented in the 
reserve system. It should be noted that any one site may represent 
several ecosystem types or physical characteristics.

                        Class I--Ecosystem Types

                           Group I--Shorelands

    A. Maritime Forest-Woodland. That have developed under the influence 
of salt spray. It can be found on coastal uplands or recent features 
such as barrier islands and beaches, and may be divided into the 
following biomes:

    1. Northern coniferous forest biome: This is an area of 
predominantly evergreens such as the sitka spruce (Picea), grand fir 
(Abies), and white cedar (Thuja), with poor development of the shrub and 
herb leyera, but high annual productivity and pronounced seasonal 
periodicity.

    2. Moist temperate (Mesothermal) coniferous forest biome: Found 
along the west coast of North America from California to Alaska, this 
area is dominated by conifers, has relatively small seasonal range, high 
humidity with rainfall ranging from 30 to 150 inches, and a well-
developed understory of vegetation with an abundance of mosses and other 
moisture-tolerant plants.

    3. Temperate deciduous forest biome: This biome is characterized by 
abundant, evenly distributed rainfall, moderate temperatures which 
exhibit a distinct seasonal pattern,

[[Page 115]]

well-developed soil biota and herb and shrub layers, and numerous plants 
which produce pulpy fruits and nuts. A distinct subdivision of this 
biome is the pine edible forest of the southeastern coastal plain, in 
which only a small portion of the area is occupied by climax vegetation, 
although it has large areas covered by edaphic climax pines.

    4. Broad-leaved evergreen subtropical forest biome: The main 
characteristic of this biome is high moisture with less pronounced 
differences between winter and summer. Examples are the hammocks of 
Florida and the live oak forests of the Gulf and South Atlantic coasts. 
Floral dominants include pines, magnolias, bays, hollies, wild tamarine, 
strangler fig, gumbo limbo, and palms.

    B. Coast shrublands. This is a transitional area between the coastal 
grasslands and woodlands and is characterized by woody species with 
multiple stems and a few centimeters to several meters above the ground 
developing under the influence of salt spray and occasional sand burial. 
This includes thickets, scrub, scrub savanna, heathlands, and coastal 
chaparral. There is a great variety of shrubland vegetation exhibiting 
regional specificity:

    1. Northern areas: Characterized by Hudsonia, various erinaceous 
species, and thickets of Myricu, prunus, and Rosa.
    2. Southeast areas: Floral dominants include Myrica, Baccharis, and 
Iles.
    3. Western areas: Adenostoma, arcotyphylos, and eucalyptus are the 
dominant floral species.
    C. Coastal grasslands. This area, which possesses sand dunes and 
coastal flats, has low rainfall (10 to 30 inches per year) and large 
amounts of humus in the soil. Ecological succession is slow, resulting 
in the presence of a number of seral stages of community development. 
Dominant vegetation includes mid-grasses (5 to 8 feet tall), such as 
Spartina, and trees such as willow (Salix sp.), cherry (Prunus sp.), and 
cottonwood (Pupulus deltoides.) This area is divided into four regions 
with the following typical strand vegetation:
    1. Arctic/Boreal: Elymus;
    2. Northeast/West: Ammophla;
    3. Southeast Gulf: Uniola; and
    4. Mid-Atlantic/Gulf: Spartina patens.
    D. Coastal tundra. This ecosystem, which is found along the Arctic 
and Boreal coasts of North America, is characterized by low 
temperatures, a short growing season, and some permafrost, producing a 
low, treeless mat community made up of mosses, lichens, heath, shrubs, 
grasses, sedges, rushes, and herbaceous and dwarf woody plants. Common 
species include arctic/alpine plants such as Empetrum nigrum and Betula 
nana, the lichens Cetraria and Cladonia, and herbaceous plants such as 
Potentilla tridentata and Rubus chamaemorus. Common species on the 
coastal beach ridges of the high arctic desert include Bryas 
intergrifolia and Saxifrage oppositifolia. This area can be divided into 
two main subdivisions:
    1. Low tundra: Characterized by a thick, spongy mat of living and 
undecayed vegetation, often with water and dotted with ponds when not 
frozen; and
    2. High Tundra: A bare area except for a scanty growth of lichens 
and grasses, with underlaying ice wedges forming raised polygonal areas.
    E. Coastal cliffs. This ecosystem is an important nesting site for 
many sea and shore birds. It consists of communities of herbaceous, 
graminoid, or low woody plants (shrubs, heath, etc.) on the top or along 
rocky faces exposed to salt spray. There is a diversity of plant species 
including mosses, lichens, liverworts, and ``higher'' plant 
representatives.

                       Group II--Transition Areas

    A. Coastal marshes. These are wetland areas dominated by grasses 
(Poacea), sedges (Cyperaceae), rushes (Juncaceae), cattails (Typhaceae), 
and other graminoid species and is subject to periodic flooding by 
either salt or freshwater. This ecosystem may be subdivided into: (a) 
Tidal, which is periodically flooded by either salt or brackish water; 
(b) nontidal (freshwater); or (c) tidal freshwater. These are essential 
habitats for many important estuarine species of fish and invertebrates 
as well as shorebirds and waterfowl and serve important roles in shore 
stabilization, flood control, water purification, and nutrient transport 
and storage.
    B. Coastal swamps. These are wet lowland areas that support mosses 
and shrubs together with large trees such as cypress or gum.
    C. Coastal mangroves. This ecosystem experiences regular flooding on 
either a daily, monthly, or seasonal basis, has low wave action, and is 
dominated by a variety of salt-tolerant trees, such as the red mangrove 
(Rhizophora mangle), black mangrove (Avicennia Nitida), and the white 
mangrove (Laguncularia racemosa.) It is also an important habitat for 
large populations of fish, invertebrates, and birds. This type of 
ecosystem can be found from central Florida to extreme south Texas to 
the islands of the Western Pacific.
    D. Intertidal beaches. This ecosystem has a distinct biota of 
microscopic animals, bacteria, and unicellular algae along with 
macroscopic crustaceans, mollusks, and worms with a detritus-based 
nutrient cycle. This area also includes the driftline communities found 
at high tide levels on the beach. The dominant organisms in this 
ecosystem include crustaceans such as the mole crab (Emerita), amphipods 
(Gammeridae), ghost crabs (Ocypode), and bivalve mollusks such

[[Page 116]]

as the coquina (Donax) and surf clams (Spisula and Mactra.)
    E. Intertidal mud and sand flats. These areas are composed of 
unconsolidated, high organic content sediments that function as a short-
term storage area for nutrients and organic carbons. Macrophytes are 
nearly absent in this ecosystem, although it may be heavily colonized by 
benthic diatoms, dinoflaggellates, filamintous blue-green and green 
algae, and chaemosynthetic purple sulfur bacteria. This system may 
support a considerable population of gastropods, bivalves, and 
polychaetes, and may serve as a feeding area for a variety of fish and 
wading birds. In sand, the dominant fauna include the wedge shell Donax, 
the scallop Pecten, tellin shells Tellina, the heart urchin 
Echinocardium, the lug worm Arenicola, sand dollar Dendraster, and the 
sea pansy Renilla. In mud, faunal dominants adapted to low oxygen levels 
include the terebellid Amphitrite, the boring clam Playdon, the deep sea 
scallop Placopecten, the Quahog Mercenaria, the echiurid worm Urechis, 
the mud snail Nassarius, and the sea cucumber Thyone.
    F. Intertidal algal beds. These are hard substrates along the marine 
edge that are dominated by macroscopic algae, usually thalloid, but also 
filamentous or unicellular in growth form. This also includes the rocky 
coast tidepools that fall within the intertidal zone. Dominant fauna of 
these areas are barnacles, mussels, periwinkles, anemones, and chitons. 
Three regions are apparent:
    1. Northern latitude rocky shores: It is in this region that the 
community structure is best developed. The dominant algal species 
include Chondrus at the low tide level, Fucus and Ascophylium at the 
mid-tidal level, and Laminaria and other kelplike algae just beyond the 
intertidal, although they can be exposed at extremely low tides or found 
in very deep tidepools.
    2. Southern latitudes: The communities in this region are reduced in 
comparison to those of the northern latitudes and possesses algae 
consisting mostly of single-celled or filamentour green, blue-green, and 
red algae, and small thalloid brown algae.
    3. Tropical and subtropical latitudes: The intertidal in this region 
is very reduced and contains numerous calcareous algae such as 
Porolithon and Lithothamnion, as well and green algae with calcareous 
particles such as Halimeda, and numerous other green, red, and brown 
algae.

                      Group III--Submerged Bottoms

    A. Subtidal hardbottoms. This system is characterized by a 
consolidated layer of solid rock or large pieces of rock (neither of 
biotic origin) and is found in association with geomorphological 
features such as submarine canyons and fjords and is usually covered 
with assemblages of sponges, sea fans, bivalves, hard corals, tunicates, 
and other attached organisms. A significant feature of estuaries in many 
parts of the world is the oyster reef, a type of subtidal hardbottom. 
Composed of assemblages of organisms (usually bivalves), it is usually 
found near an estuary's mouth in a zone of moderate wave action, salt 
content, and turbidity. If light levels are sufficient, a covering of 
microscopic and attached macroscopic algae, such as keep, may also be 
found.
    B. Subtidal softbottoms. Major characteristics of this ecosystem are 
an unconsolidated layer of fine particles of silt, sand, clay, and 
gravel, high hydrogen sulfide levels, and anaerobic conditions often 
existing below the surface. Macrophytes are either sparse or absent, 
although a layer of benthic microalgae may be present if light levels 
are sufficient. The faunal community is dominated by a diverse 
population of deposit feeders including polychaetes, bivalves, and 
burrowing crustaceans.
    C. Subtidal plants. This system is found in relatively shallow water 
(less than 8 to 10 meters) below mean low tide. It is an area of 
extremely high primary production that provides food and refuge for a 
diversity of faunal groups, especially juvenile and adult fish, and in 
some regions, manatees and sea turtles. Along the North Atlantic and 
Pacific coasts, the seagrass Zostera marina predominates. In the South 
Atlantic and Gulf coast areas, Thalassia and Diplanthera predominate. 
The grasses in both areas support a number of epiphytic organisms.

                   Class II--Physical Characteristics

                            Group I--Geologic

    A. Basin type. Coastal water basins occur in a variety of shapes, 
sizes, depths, and appearances. The eight basic types discussed below 
will cover most of the cases:
    1. Exposed coast: Solid rock formations or heavy sand deposits 
characterize exposed ocean shore fronts, which are subject to the full 
force of ocean storms. The sand beaches are very resilient, although the 
dunes lying just behind the beaches are fragile and easily damaged. The 
dunes serve as a sand storage area making them chief stabilizers of the 
ocean shorefront.
    2. Sheltered coast: Sand or coral barriers, built up by natural 
forces, provide sheltered areas inside a bar or reef where the ecosystem 
takes on many characteristics of confined waters-abundant marine 
grasses, shellfish, and juvenile fish. Water movement is reduced, with 
the consequent effects pollution being more severe in this area than in 
exposed coastal areas.
    3. Bay: Bays are larger confined bodies of water that are open to 
the sea and receive strong tidal flow. When stratification is pronounced 
the flushing action is augmented by

[[Page 117]]

river discharge. Bays vary in size and in type of shorefront.
    4. Embayment: A confined coastal water body with narrow, restricted 
inlets and with a significant freshwater inflow can be classified as an 
embayment. These areas have more restricted inlets than bays, are 
usually smaller and shallower, have low tidal action, and are subject to 
sedimentation.
    5. Tidal river: The lower reach of a coastal river is referred to as 
a tidal river. The coastal water segment extends from the sea or estuary 
into which the river discharges to a point as far upstream as there is 
significant salt content in the water, forming a salt front. A 
combination of tidal action and freshwater outflow makes tidal rivers 
well-flushed. The tidal river basin may be a simple channel or a complex 
of tributaries, small associated embayments, marshfronts, tidal flats, 
and a variety of others.
    6. Lagoon: Lagoons are confined coastal bodies of water with 
restricted inlets to the sea and without significant freshwater inflow. 
Water circulation is limited, resulting in a poorly flushed, relatively 
stagnant body of water. Sedimentation is rapid with a great potential 
for basin shoaling. Shores are often gently sloping and marshy.
    7. Perched coastal wetlands: Unique to Pacific islands, this wetland 
type found above sea level in volcanic crater remnants forms as a result 
of poor drainage characteristics of the crater rather than from 
sedimentation. Floral assemblages exhibit distinct zonation while the 
faunal constituents may include freshwater, brackish, and/or marine 
species. Example: Aunu's Island, American Samoa.
    8. Anchialine systems: These small coastal exposures of brackish 
water form in lava depressions or elevated fossil reefs have only a 
subsurface connection in the ocean, but show tidal fluctuations. 
Differing from true estuaries in having no surface continuity with 
streams or ocean, this system is characterized by a distinct biotic 
community dominated by benthis algae such as Rhizoclonium, the mineral 
encrusting Schiuzothrix, and the vascular plant Ruppia maritima. 
Characteristic fauna which exhibit a high degree of endemicity, include 
the mollusks Theosoxus neglectus and Tcariosus. Although found 
throughout the world, the high islands of the Pacific are the only areas 
within the U.S. where this system can be found.
    B. Basin structure. Estuary basins may result from the drowning of a 
river valley (coastal plains estuary), the drowning of a glacial valley 
(fjord), the occurrence of an offshore barrier (bar-bounded estuary), 
some tectonic process (tectonic estuary), or volcanic activity (volcanic 
estuary).
    1. Coastal plains estuary: Where a drowned valley consists mainly of 
a single channel, the form of the basin is fairly regular forming a 
simple coastal plains estuary. When a channel is flooded with numerous 
tributaries an irregular estuary results. Many estuaries of the eastern 
United States are of this type.
    2. Fjord: Estuaries that form in elongated steep headlands that 
alternate with deep U-shaped valleys resulting from glacial scouring are 
called fjords. They generally possess rocky floors or very thin veneers 
of sediment, with deposition generally being restricted to the head 
where the main river enters. Compared to total fjord volume river 
discharge is small. But many fjords have restricted tidal ranges at 
their mouths due to sills, or upreaching sections of the bottom which 
limit free movement of water, often making river flow large with respect 
to the tidal prism. The deepest portions are in the upstream reaches, 
where maximum depths can range from 800m to 1200m while sill depths 
usually range from 40m to 150m.
    3. Bar-bounded estuary: These result from the development of an 
offshore barrier such as a beach strand, a line of barrier islands, reef 
formations a line of moraine debris, or the subsiding remnants of a 
deltaic lobe. The basin is often partially exposed at low tide and is 
enclosed by a chain of offshore bars of barrier islands broken at 
intervals by inlets. These bars may be either deposited offshore or may 
be coastal dunes that have become isolated by recent seal level rises.
    4. Tectonic estuary: These are coastal indentures that have formed 
through tectonic processes such as slippage along a fault line (San 
Francisco Bay), folding or movement of the earth's bedrock often with a 
large inflow of freshwater.
    5. Volcanic estuary: These coastal bodies of open water, a result of 
volcanic processes are depressions or craters that have direct and/or 
subsurface connections with the ocean and may or may not have surface 
continuity with streams. These formations are unique to island areas of 
volcanic orgin.
    C. Inlet type. Inlets in various forms are an integral part of the 
estuarine environment as they regulate to a certain extent, the velocity 
and magnitude of tidal exchange, the degree of mixing, and volume of 
discharge to the sea.
    1. Unrestricted: An estuary with a wide unrestricted inlet typically 
has slow currents, no significant turbulence, and receives the full 
effect of ocean waves and local disturbances which serve to modify the 
shoreline. These estuaries are partially mixed, as the open mouth 
permits the incursion of marine waters to considerable distances 
upstream, depending on the tidal amplitude and stream gradient.
    2. Restricted: Restrictions of estuaries can exist in many forms: 
Bars, barrier islands, spits, sills, and more. Restricted inlets result 
in decreased circulation, more pronounced longitudinal and vertical 
salinity gradients, and more rapid sedimentation. However, if

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the estuary mouth is restricted by depositional features or land 
closures, the incoming tide may be held back until it suddenly breaks 
forth into the basin as a tidal wave, or bore. Such currents exert 
profound effects on the nature of the subtrate, turbidity, and biota of 
the estuary.
    3. Permanent: Permanent inlets are usually opposite the mouths of 
major rivers and permit river water to flow into the sea.
    4. Temporary (Intermittent): Temporary inlets are formed by storms 
and frequently shift position, depending on tidal flow, the depth of the 
sea, and sound waters, the frequency of storms, and the amount of 
littoral transport.
    D. Bottom composition. The bottom composition of estuaries attests 
to the vigorous, rapid, and complex sedimentation processes 
characteristic of most coastal regions with low relief. Sediments are 
derived through the hydrologic processes of erosion, transport, and 
deposition carried on by the sea and the stream.
    1. Sand: Near estuary mouths, where the predominating forces of the 
sea build spits or other depositional features, the shore and substrates 
of the estuary are sandy. The bottom sediments in this area are usually 
coarse, with a graduation toward finer particles in the head region and 
other zones of reduced flow, fine silty sands are deposited. Sand 
deposition occurs only in wider or deeper regions where velocity is 
reduced.
    2. Mud: At the base level of a stream near its mouth, the bottom is 
typically composed of loose muds, silts, and organic detritus as a 
result of erosion and transport from the upper stream reaches and 
organic decomposition. Just inside the estuary entrance, the bottom 
contains considerable quantities of sand and mud, which support a rich 
fauna. Mud flats, commonly built up in estuarine basins, are composed of 
loose, coarse, and fine mud and sand, often dividing the original 
channel.
    3. Rock: Rocks usually occur in areas where the stream runs rapidly 
over a steep gradient with its coarse materials being derived from the 
higher elevations where the stream slope is greater. The larger 
fragments are usually found in shallow areas near the stream mouth.
    4. Oyster shell: Throughout a major portion of the world, the oyster 
reef is one of the most significant features of estuaries, usually being 
found near the mouth of the estuary in a zone of moderate wave action, 
salt content, and turbidity. It is often a major factor in modifying 
estuarine current systems and sedimentation, and may occur as an 
elongated island or peninsula oriented across the main current, or may 
develop parallel to the direction of the current.

                         Group II--Hydrographic

    A. Circulation. Circulation patterns are the result of combined 
influences of freshwater inflow, tidal action, wind and oceanic forces, 
and serve many functions: Nutrient transport, plankton dispersal, 
ecosystem flushing, salinity control, water mixing, and more.
    1. Stratified: This is typical of estuaries with a strong freshwater 
influx and is commonly found in bays formed from ``drowned'' river 
valleys, fjords, and other deep basins. There is a net movement of 
freshwater outward at the top layer and saltwater at the bottom layer, 
resulting in a net outward transport of surface organisms and net inward 
transport of bottom organisms.
    2. Non-stratified: Estuaries of this type are found where water 
movement is sluggish and flushing rate is low, although there may be 
sufficient circulation to provide the basis for a high carrying 
capacity. This is common to shallow embayments and bays lacking a good 
supply of freshwater from land drainage.
    3. Lagoonal: An estuary of this type is characterized by low rates 
of water movement resulting from a lack of significant freshwater influx 
and a lack of strong tidal exchange because of the typically narrow 
inlet connecting the lagoon to the sea. Circulation whose major driving 
force is wind, is the major limiting factor in biological productivity 
within lagoons.
    B. Tides. This is the most important ecological factor in an estuary 
as it affects water exchange and its vertical range determines the 
extent of tidal flats which may be exposed and submerged with each tidal 
cycle. Tidal action against the volume of river water discharged into an 
estuary results in a complex system whose properties vary according to 
estuary structure as well as the magnitude of river flow and tidal 
range. Tides are usually described in terms of the cycle and their 
relative heights. In the United States, tide height is reckoned on the 
basis of average low tide, which is referred to as datum. The tides, 
although complex, fall into three main categories:
    1. Diurnal: This refers to a daily change in water level that can be 
observed along the shoreline. There is one high tide and one low tide 
per day.
    2. Semidiurnal: This refers to a twice daily rise and fall in water 
that can be observed along the shoreline.
    3. Wind/Storm tides: This refers to fluctuations in water elevation 
to wind and storm events, where influence of lunar tides is less.
    C. Freshwater. According to nearly all the definitions advanced, it 
is inherent that all estuaries need freshwater, which is drained from 
the land and measurably dilutes seawater to create a brackish condition. 
Freshwater enters an estuary as runoff from the

[[Page 119]]

land either from a surface and/or subsurface source.
    1. Surface water: This is water flowing over the ground in the form 
of streams. Local variation in runoff is dependent upon the nature of 
the soil (porosity and solubility), degree of surface slope, 
vegetational type and development, local climatic conditions, and volume 
and intensity of precipitation.
    2. Subsurface water: This refers to the precipitation that has been 
absorbed by the soil and stored below the surface. The distribution of 
subsurface water depends on local climate, topography, and the porosity 
and permeability of the underlying soils and rocks. There are two main 
subtypes of surface water:
    a. Vadose water: This is water in the soil above the water table. 
Its volume with respect to the soil is subject to considerable 
fluctuation.
    b. Groundwater: This is water contained in the rocks below the water 
table, is usually of more uniform volume than vadose water, and 
generally follows the topographic relief of the land being high hills 
and sloping into valleys.

                           Group III--Chemical

    A. Salinity. This reflects a complex mixture of salts, the most 
abundant being sodium chloride, and is a very critical factor in the 
distribution and maintenance of many estuarine organisms. Based on 
salinity, there are two basic estuarine types and eight different 
salinity zones (expressed in parts per thousand-ppt.)
    1. Positive estuary: This is an estuary in which the freshwater 
influx is sufficient to maintain mixing, resulting in a pattern of 
increasing salinity toward the estuary mouth. It is characterized by low 
oxygen concentration in the deeper waters and considerable organic 
content in bottom sediments.
    2. Negative estuary: This is found in particularly arid regions, 
where estuary evaporation may exceed freshwater inflow, resulting in 
increased salinity in the upper part of the basin, especially if the 
estuary mouth is restricted so that tidal flow is inhibited. These are 
typically very salty (hyperhaline), moderately oxygenated at depth, and 
possess bottom sediments that are poor in organic content.
    3. Salinity zones (expressed in ppt):
    a. Hyperhaline--greater than 40 ppt.
    b. Euhaline--40 ppt to 30 ppt.
    c. Mixhaline--30 ppt to 0.5 ppt.
    (1) Mixoeuhaline--greater than 30 ppt but less than the adjacent 
euhaline sea.
    (2) Polyhaline--30 ppt to 18 ppt.
    (3) Mesohaline--18 ppt to 5 ppt.
    (4) Oligohaline--5 ppt to 0.5 ppt.
    d. Limnetic: Less than 0.5 ppt.
    B. pH Regime: This is indicative of the mineral richness of 
estuarine waters and falls into three main categories:
    1. Acid: Waters with a pH of less than 5.5.
    2. Circumneutral: A condition where the pH ranges from 5.5 to 7.4.
    3. Alkaline: Waters with a pH greater than 7.4.



PART 922_NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS--Table of Contents




                            Subpart A_General

Sec.
922.1 Applicability of regulations.
922.2 Mission, goals, and special policies.
922.3 Definitions.
922.4 Effect of National Marine Sanctuary designation.

                  Subpart B_Site Evaluation List (SEL)

922.10 General.

          Subpart C_Designation of National Marine Sanctuaries

922.20 Standards and procedures for designation.
922.21 Selection of active candidates.
922.22 Development of designation materials.
922.23 Coordination with States and other Federal agencies.
922.24 Congressional documents.
922.25 Designation determination and findings.

        Subpart D_Management Plan Development and Implementation

922.30 General.
922.31 Promotion and coordination of Sanctuary use.

             Subpart E_Regulations of General Applicability

922.40 Purpose.
922.41 Boundaries.
922.42 Allowed activities.
922.43 Prohibited or otherwise regulated activities.
922.44 Emergency regulations.
922.45 Penalties.
922.46 Response costs and damages.
922.47 Pre-existing authorizations or rights and certifications of pre-
          existing authorizations or rights.
922.48 National Marine Sanctuary permits--application procedures and 
          issuance criteria.

[[Page 120]]

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.

               Subpart F_Monitor National Marine Sanctuary

922.60 Boundary.
922.61 Prohibited or otherwise regulated activities.
922.62 Permit procedures and criteria.

           Subpart G_Channel Islands National Marine Sanctuary

922.70 Boundary.
922.71 Prohibited or otherwise regulated activities.
922.72 Permit procedures and criteria.

Appendix A to Subpart G of Part 922--Channel Islands National Marine 
          Sanctuary Boundary Coordinates

       Subpart H_Gulf of the Farallones National Marine Sanctuary

922.80 Boundary.
922.81 Definitions.
922.82 Prohibited or otherwise regulated activities.
922.83 Permit procedures and criteria.
922.84 Certification of other permits.

Appendix A to Subpart H of Part 922--Gulf of the Farallones National 
          Marine Sanctuary Boundary Coordinates

             Subpart I_Gray's Reef National Marine Sanctuary

922.90 Boundary.
922.91 Prohibited or otherwise regulated activities.
922.92 Permit procedures and criteria.

            Subpart J_Fagatele Bay National Marine Sanctuary

922.100 Scope of regulations.
922.101 Boundary.
922.102 Prohibited or otherwise regulated activities.
922.103 Management and enforcement.
922.104 Permit procedures and criteria.

            Subpart K_Cordell Bank National Marine Sanctuary

922.110 Boundary.
922.111 Prohibited or otherwise regulated activities.
922.112 Permit procedures and criteria.

Appendix A to Subpart K of Part 922--Cordell Bank National Marine 
          Sanctuary Boundary Coordinates

         Subpart L_Flower Garden Banks National Marine Sanctuary

922.120 Boundary.
922.121 Definitions.
922.122 Prohibited or otherwise regulated activities.
922.123 Permit procedures and criteria.

Appendix A to Subpart L of Part 922--Flower Garden Banks National Marine 
          Sanctuary Boundary Coordinates
Appendix B to Subpart L of Part 922--Coordinates for the Department of 
          the Interior Topographic Lease Stipulations for OCS Lease Sale 
          171

            Subpart M_Monterey Bay National Marine Sanctuary

922.130 Boundary.
922.131 Definitions.
922.132 Prohibited or otherwise regulated activities.
922.133 Permit procedures and criteria.
922.134 Notification and review.

Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
          Sanctuary Boundary Coordinates
Appendix B to Subpart M of Part 922--Dredged Material Disposal Sites 
          Adjacent to the Monterey Bay National Marine Sanctuary
Appendix C to Subpart M of Part 922--Zones Within the Sanctuary Where 
          Overflights Below 1000 Feet Are Prohibited
Appendix D to Subpart M of Part 922--Zones and Access Routes Within the 
          Sanctuary Where the Operation of Motorized Personal Watercraft 
          Is Allowed

           Subpart N_Stellwagen Bank National Marine Sanctuary

922.140 Boundary.
922.141 Definitions.
922.142 Prohibited or otherwise regulated activities.
922.143 Permit procedures and criteria.

Appendix A to Subpart N of Part 922--Stellwagen Bank National Marine 
          Sanctuary Boundary Coordinates

            Subpart O_Olympic Coast National Marine Sanctuary

922.150 Boundary.
922.151 Definitions.
922.152 Prohibited or otherwise regulated activities.
922.153 Permit procedures and criteria.
922.154 Consultation with the State of Washington, affected Indian 
          tribes, and adjacent county governments.

[[Page 121]]


Appendix A to Subpart O of Part 922--Olympic Coast National Marine 
          Sanctuary Boundary Coordinates

            Subpart P_Florida Keys National Marine Sanctuary

922.160 Purpose.
922.161 Boundary.
922.162 Definitions.
922.163 Prohibited activities--Sanctuary-wide.
922.164 Additional activity regulations by Sanctuary area.
922.165 Emergency regulations.
922.166 Permits other than for access to the Tortugas Ecological 
          Reserve--application procedures and issuance criteria.
922.167 Permits for access to the Tortugas Ecological Reserve.
922.168 Certification of preexisting leases, licenses, permits, 
          approvals, other authorizations, or rights to conduct a 
          prohibited activity.

Appendix I to Subpart P of Part 922--Florida Keys National Marine 
          Sanctuary Boundary Coordinates
Appendix II to Subpart P of Part 922--Existing Management Areas Boundary 
          Coordinates
Appendix III to Subpart P of Part 922--Wildlife Management Areas Access 
          Restrictions
Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary 
          Coordinates
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas 
          Boundary Coordinates
Appendix VI to Subpart P of Part 922--Special-use Areas Boundary 
          Coordinates and Use Designations
Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary 
          Coordinates
Appendix VIII to Subpart P of Part 922--Marine Life Rule As Excerpted 
          From Chapter 46-42 of the Florida Administrative Code

   Subpart Q_Hawaiian Islands Humpback Whale National Marine Sanctuary

922.180 Purpose.
922.181 Boundary.
922.182 Definitions.
922.183 Allowed activities.
922.184 Prohibited activities.
922.185 Emergency regulations.
922.186 Penalties; appeals.
922.187 Interagency cooperation.

Appendix A to Subpart Q to part 922--Hawaiian Islands Humpback Whale 
          National Marine Sanctuary Boundary Description and Coordinates 
          of the Lateral Boundary Closures and Excluded Areas

 Subpart R_Thunder Bay National Marine Sanctuary and Underwater Preserve

922.190 Boundary.
922.191 Definitions.
922.192 Joint Management Committee.
922.193 Prohibited or otherwise regulated activities.
922.194 Certification of preexisting leases, licenses, permits, 
          approvals, other authorizations, or rights to conduct a 
          prohibited activity.
922.195 Permit procedures and criteria.
922.196 Emergency regulations.
922.197 Consultation with affected federally-recognized Indian tribes.
922.198 Procedures for determining watercraft and related items which 
          sink on or after the date of Sanctuary designation to be an 
          underwater cultural resource.

Appendix A to Subpart R of Part 922--Thunder Bay National Marine 
          Sanctuary and Underwater Preserve Boundary Coordinates
Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
          Sec. 922.193(a)(2)(iii)

    Authority: 16 U.S.C. 1431 et seq.

    Source: 60 FR 66877, Dec. 27, 1995, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 922 appear at 62 FR 
3789, Jan. 27, 1997; 62 FR 67724, Dec. 30, 1997.



                            Subpart A_General



Sec. 922.1  Applicability of regulations.

    Unless noted otherwise, the regulations in Subparts A, D and E apply 
to all thirteen National Marine Sanctuaries for which site-specific 
regulations appear in Subparts F through R, respectively. Subparts B and 
C apply to the site evaluation list and to the designation of future 
Sanctuaries.

[65 FR 39055, June 22, 2000]



Sec. 922.2  Mission, goals, and special policies.

    (a) In accordance with the standards set forth in title III of the 
Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 
also known as the National Marine Sanctuaries Act (Act) the mission of 
the National Marine Sanctuary program (Program) is to identify, 
designate and manage areas of the marine environment of special 
national, and in some cases international, significance due to their 
conservation,

[[Page 122]]

recreational, ecological, historical, research, educational, or 
aesthetic qualities.
    (b) The goals of the Program are to carry out the mission to:
    (1) Identify and designate as National Marine Sanctuaries areas of 
the marine environment which are of special national significance;
    (2) Provide authority for comprehensive and coordinated conservation 
and management of these marine areas, and activities affecting them, in 
a manner which complements existing regulatory authorities;
    (3) Support, promote, and coordinate scientific research on, and 
monitoring of, the resources of these marine areas, especially long-term 
monitoring and research of these areas;
    (4) Enhance public awareness, understanding, appreciation, and wise 
use of the marine environment;
    (5) Facilitate to the extent compatible with the primary objective 
of resource protection, all public and private uses of the resources of 
these marine areas not prohibited pursuant to other authorities;
    (6) Develop and implement coordinated plans for the protection and 
management of these areas with appropriate Federal agencies, State and 
local governments, Native American tribes and organizations, 
international organizations, and other public and private interests 
concerned with the continuing health and resilience of these marine 
areas;
    (7) Create models of, and incentives for, ways to conserve and 
manage these areas;
    (8) Cooperate with global programs encouraging conservation of 
marine resources; and
    (9) Maintain, restore, and enhance living resources by providing 
places for species that depend upon these marine areas to survive and 
propagate.
    (c) To the extent consistent with the policies set forth in the Act, 
in carrying out the Program's mission and goals:
    (1) Particular attention will be given to the establishment and 
management of marine areas as National Marine Sanctuaries for the 
protection of the area's natural resource and ecosystem values; 
particularly for ecologically or economically important or threatened 
species or species assemblages, and for offshore areas where there are 
no existing special area protection mechanisms;
    (2) The size of a National Marine Sanctuary, while highly dependent 
on the nature of the site's resources, will be no larger than necessary 
to ensure effective management;
    (d) Management efforts will be coordinated to the extent practicable 
with other countries managing marine protected areas;
    (e) 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 Management at (301) 713-
3125.



Sec. 922.3  Definitions.

    Act 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.

[[Page 123]]

    Active Candidate means a site selected by the Secretary from the 
Site Evaluation List for further consideration for possible designation 
as a National Marine Sanctuary.
    Assistant Administrator means the Assistant Administrator for Ocean 
Services and Coastal Zone Management, National Oceanic and Atmospheric 
Administration (NOAA), or designee.
    Benthic community means the assemblage of organisms, substrate, and 
structural formations found at or near the bottom that is periodically 
or permanently covered by water.
    Commercial fishing means any activity that results in the sale or 
trade for intended profit of fish, shellfish, algae, or corals.
    Conventional hook and line gear means any fishing apparatus operated 
aboard a vessel and composed of a single line terminated by a 
combination of sinkers and hooks or lures and spooled upon a reel that 
may be hind- or electrically operated, hand-held or mounted. This term 
does not include bottom longlines.
    Cultural resources means any historical or cultural feature, 
including archaeological sites, historic structures, shipwrecks, and 
artifacts.
    Director means, except where otherwise specified, the Director of 
the Office of Ocean and Coastal Resource Management, NOAA, or designee.
    Exclusive economic zone means the exclusive economic zone as defined 
in the Magnuson Fishery Conservation and Management Act, 16 U.S. 1801 et 
seq.
    Fish wastes means waste materials resulting from commercial fish 
processing operations.
    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 ``submerged cultural resources'', and also include 
``historical properties,'' as defined in the National Historic 
Preservation Act, as amended, and its implementing regulations, as 
amended.
    Indian tribe means any American Indian tribe, band, group, or 
community recognized as such by the Secretary of the Interior.
    Injure means to change adversely, either in the short or long term, 
a chemical, biological or physical attribute of, or the viability of. 
This includes, but is not limited to, to cause the loss of or destroy.
    Lightering means at-sea transfer of petroleum-based products, 
materials, or other matter from vessel to vessel.
    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.
    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 means an area of the marine environment of 
special national significance due to its resource or human-use values, 
which is designated as such to ensure its conservation and management.
    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 section 302 of the Magnuson 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 the 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 that contributes to

[[Page 124]]

the conservation, recreational, ecological, historical, research, 
educational, or aesthetic value of the Sanctuary, including, but not 
limited to, the substratum of the area 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, seabirds, sea turtles and other marine reptiles, marine mammals 
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.
    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.
    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) For any marine mammal, sea turtle, or 
seabird listed as either endangered or threatened pursuant to the 
Endangered Species Act, to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, collect or injure, or to attempt to engage in any 
such conduct; (2) For any other marine mammal, sea turtle, or seabird, 
to harass, hunt, capture, kill, collect or injure, or to attempt to 
engage in any such conduct. For the purposes of both (1) and (2) of this 
definition, this includes, but is not limited to, to collect any dead or 
injured marine mammal, sea turtle or seabird, or any part thereof; to 
restrain or detain any marine mammal, sea turtle or seabird, or any part 
thereof, no matter how temporarily; to tag any sea turtle, marine mammal 
or seabird; to operate a vessel or aircraft or to do any other act that 
results in the disturbance or molestation of any marine mammal, sea 
turtle or seabird.
    Tropical fish means fish or minimal sport and food value, usually 
brightly colored, often used for aquaria purposes and which 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/on the waters of a Sanctuary.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 
FR 39055, June 22, 2000]



Sec. 922.4  Effect of National Marine Sanctuary designation.

    The designation of a National Marine Sanctuary, and the regulations 
implementing it, are binding on any person subject to the jurisdiction 
of the United States. Designation does not constitute any claim to 
territorial jurisdiction on the part of the United States for designated 
sites beyond the U.S. territorial sea, and the regulations implementing 
the designation shall be applied in accordance with generally recognized 
principles of international law, and in accordance with treaties, 
conventions, and other agreements to which the United States is a party. 
No regulation shall apply to a person who is not a citizen, national, or 
resident alien of the United States, unless in accordance with:
    (a) Generally recognized principles of international law;
    (b) An agreement between the United States and the foreign state of 
which the person is a citizen; or
    (c) An agreement between the United States and the flag state of the 
foreign

[[Page 125]]

vessel, if the person is a crew member of the vessel.



                  Subpart B_Site Evaluation List (SEL)



Sec. 922.10  General.

    (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) Only sites on the SEL may be considered for subsequent review as 
active candidates for designation.
    (d) Placement of a site on the SEL, or selection of a site from the 
SEL as an active candidate for designation as provided for in Sec. 
922.21, by itself shall not subject the site to any regulatory control 
under the Act. Such controls may only be imposed after designation.



          Subpart C_Designation of National Marine Sanctuaries



Sec. 922.20  Standards and procedures for designation.

    In designating a National Marine Sanctuary, the Secretary shall 
apply the standards and procedures set forth in section 303 and section 
304 of the Act.



Sec. 922.21  Selection of active candidates.

    (a) The Secretary shall, from time to time, select a limited number 
of sites from the SEL for Active Candidate consideration based on a 
preliminary assessment of the designation standards set forth in section 
303 of the Act.
    (b) Selection of a site as an Active Candidate shall begin the 
formal Sanctuary designation-evaluation process. A notice of intent to 
prepare a draft environmental impact statement shall be published in the 
Federal Register and in newspapers in the area(s) of local concern. A 
brief written analysis describing the site shall be provided. The 
Secretary, at any time, may drop a site from consideration if the 
Secretary determines that the site does not meet the designation 
standards and criteria set forth in the Act.



Sec. 922.22  Development of designation materials.

    (a) In designating a National Marine Sanctuary, the Secretary shall 
prepare the designation materials described in section 304 of the Act.
    (b) If a proposed Sanctuary includes waters within the exclusive 
economic zone, the Secretary shall notify the appropriate Regional 
Fishery Management Council(s) which shall have one hundred and twenty 
(120) days from the date of such notification to make recommendations 
and, if appropriate, prepare draft fishery regulations and to 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 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. Fishery activities not proposed for 
regulation under section 304(a)(5) of the Act may be listed in the draft 
Sanctuary designation document as potentially subject to regulation, 
without following the procedures specified in section 304(a)(5) of the 
Act. If the Secretary subsequently determines that regulation of any 
such fishery activity is necessary, then the procedures specified in 
section 304(a)(5) of the Act shall be followed.



Sec. 922.23  Coordination with States and other Federal agencies.

    (a) The Secretary shall consult and cooperate with affected States 
throughout the National Marine Sanctuary designation process. In 
particular the Secretary shall:
    (1) Consult with the relevant State officials prior to selecting any 
site on the SEL as an Active Candidate pursuant to Sec. 922.21, 
especially concerning the relationship of any site to State waters and 
the consistency of the proposed designation with a federally approved 
State coastal zone management

[[Page 126]]

program. For the purposes of a consistency review by States with 
federally approved coastal zone management programs, designation of a 
National Marine Sanctuary is deemed to be a Federal activity, which, if 
affecting the State's coastal zone, must be undertaken in a manner 
consistent to the maximum extent practicable with the approved State 
coastal zone program as provided by section 307(c)(1) of the Coastal 
Zone Management Act of 1972, as amended, and implementing regulations at 
15 CFR part 930, subpart.
    (2) Ensure that relevant State agencies are consulted prior to 
holding any public hearings pursuant to section 304(a)(3) of the Act.
    (3) Provide the Governor(s) of any State(s) in which a proposed 
Sanctuary would be located an opportunity to certify the designation or 
any of its terms as unacceptable as specified in section 304(b)(1) of 
the Act.
    (b) The Secretary shall develop proposed regulations relating to 
activities under the jurisdiction of one or more other Federal agencies 
in consultation with those agencies.



Sec. 922.24  Congressional documents.

    In designating a National Marine Sanctuary, the Secretary shall 
prepare and submit to Congress those documents described in section 304 
of the Act.



Sec. 922.25  Designation determination and findings.

    (a) In designating a National Marine Sanctuary, the Secretary shall 
prepare a written Designation Determination and Findings which shall 
include those findings and determinations described in section 303 of 
the Act.
    (b) In addition to those factors set forth in section 303 of the 
Act, the Secretary, when making a designation determination, shall 
consider the Program's fiscal capability to manage the area as a 
National Marine Sanctuary.



        Subpart D_Management Plan Development and Implementation



Sec. 922.30  General.

    (a) The Secretary shall implement each management plan, and 
applicable regulations, including carrying out surveillance and 
enforcement activities and conducting such research, monitoring, 
evaluation, and education programs as are necessary and reasonable to 
carry out the purposes and policies of the Act.
    (b) Consistent with Sanctuary management plans, the Secretary shall 
develop and implement site-specific contingency and emergency-response 
plans designed to protect Sanctuary resources. The plans shall contain 
alert procedures and actions to be taken in the event of an emergency 
such as a shipwreck or an oil spill.



Sec. 922.31  Promotion and coordination of Sanctuary use.

    The Secretary shall take such action as is necessary and reasonable 
to promote and coordinate the use of National Marine Sanctuaries for 
research, monitoring, and education purposes. Such action may include 
consulting with Federal agencies, or other persons to promote use of one 
or more Sanctuaries for research, monitoring and education, including 
coordination with the National Estuarine Research Reserve System.



             Subpart E_Regulations of General Applicability



Sec. 922.40  Purpose.

    The purpose of the regulations in this Subpart and in Subparts F 
through R is to implement the designations of the thirteen National 
Marine Sanctuaries for which site specific regulations appear in 
Subparts F through R, respectively, by regulating activities affecting 
them, consistent with their respective terms of designation in order to 
protect, preserve and manage and thereby ensure the health, integrity 
and continued availability of the conservation, ecological, 
recreational, research, educational, historical and aesthetic resources 
and qualities of these areas. Additional purposes of the regulations 
implementing the designation of the Florida Keys and Hawaiian Islands 
Humpback Whale National Marine Sanctuaries are found at Sec. Sec. 
922.160, and 922.180, respectively.

[65 FR 39055, June 22, 2000]

[[Page 127]]



Sec. 922.41  Boundaries.

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

[65 FR 39055, June 22, 2000]



Sec. 922.42  Allowed activities.

    All activities (e.g., fishing, boating, diving, research, education) 
may be conducted unless prohibited or otherwise regulated in Subparts F 
through R, subject to any emergency regulations promulgated pursuant to 
Sec. Sec. 922.44, 922.111(c), 922.165, 922.186, or 922.196, subject to 
all prohibitions, regulations, restrictions, and conditions validly 
imposed by any Federal, State, or local authority of competent 
jurisdiction, including Federal and State fishery management 
authorities, and subject to the provisions of section 312 of the 
National Marine Sanctuaries Act (NMSA), (16 U.S.C. 1431 et seq.). The 
Assistant Administrator may only directly regulate fishing activities 
pursuant to the procedure set forth in section 304(a)(5) of the NMSA.

[65 FR 39055, June 22, 2000]



Sec. 922.43  Prohibited or otherwise regulated activities.

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

[65 FR 39055, June 22, 2000]



Sec. 922.44  Emergency regulations.

    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all such activities 
are subject to immediate temporary regulation, including prohibition. 
The provisions of this section do not apply to the Cordell Bank, Florida 
Keys, Hawaiian Islands Humpback Whale, and Thunder Bay National Marine 
Sanctuaries. See Sec. Sec. 922.111(c), 922.165, and 922.186, 922.196, 
respectively, for the authority to issue emergency regulations with 
respect to those sanctuaries.

[65 FR 39055, June 22, 2000]



Sec. 922.45  Penalties.

    (a) Each violation of the NMSA or FKNMSPA, any regulation in this 
part, or any permit issued pursuant thereto, is subject to a civil 
penalty of not more than $ 100,000. 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.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997]



Sec. 922.46  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 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. 922.47  Pre-existing authorizations or rights and certifications 
of pre-existing authorizations or rights.

    (a) Leases, permits, licenses, or rights of subsistence use or 
access in existence on the date of designation of any National Marine 
Sanctuary shall 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.
    (b) The prohibitions listed in Subparts F through P, and Subpart R 
do not apply to any activity authorized by a valid lease, permit, 
license, approval or other authorization in existence on the effective 
date of Sanctuary designation, or in the case of the Florida Keys 
National Marine Sanctuary the effective date of the regulations in 
Subpart P, and issued by any Federal, State or local authority of 
competent jurisdiction, or by any valid right of subsistence use or 
access in existence

[[Page 128]]

on the effective date of Sanctuary designation, or in the case of the 
Florida Keys National Marine Sanctuary the effective date of the 
regulations in Subpart P, provided that the holder of such authorization 
or right complies with certification procedures and criteria promulgated 
at the time of Sanctuary designation, or in the case of the Florida Keys 
National Marine Sanctuary the effective date of the regulations in 
Subpart P, and with any terms and conditions on the exercise of such 
authorization or right imposed by the Director as a condition of 
certification as the Director deems necessary to achieve the purposes 
for which the Sanctuary was designated.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 
FR 39055, June 22, 2000]



Sec. 922.48  National Marine Sanctuary permits--application procedures 
and issuance criteria.

    (a) A person may conduct an activity prohibited by Subparts F 
through O, if conducted in accordance with the scope, purpose, terms and 
conditions of a permit issued under this section and Subparts F through 
O, as appropriate. For the Florida Keys National Marine Sanctuary, a 
person may conduct an activity prohibited by Subpart P if conducted in 
accordance with the scope, purpose, terms and conditions of a permit 
issued under Sec. 922.166. For the Thunder Bay National Marine 
Sanctuary and Underwater Preserve, a person may conduct an activity 
prohibited by Subpart R in accordance with the scope, purpose, terms and 
conditions of a permit issued under Sec. 922.195.
    (b) Applications for permits to conduct activities otherwise 
prohibited by Subparts F through O should be addressed to the Director 
and sent to the address specified in Subparts F through O, or Subpart R, 
as appropriate. An application must include:
    (1) A detailed description of the proposed activity including a 
timetable for completion;
    (2) The equipment, personnel and methodology to be employed;
    (3) The qualifications and experience of all personnel;
    (4) The potential effects of the activity, if any, on Sanctuary 
resources and qualities; and (5) Copies of all other required licenses, 
permits, approvals or other authorizations.
    (c) Upon receipt of an application, the Director may request such 
additional information from the applicant as he or she deems necessary 
to act on the application and may seek the views of any persons or 
entity, within or outside the Federal government, and may hold a public 
hearing, as deemed appropriate.
    (d) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct a prohibited activity, in accordance with the criteria found in 
Subparts F through O, or Subpart R, as appropriate. The Director shall 
further impose, at a minimum, the conditions set forth in the relevant 
subpart.
    (e) A permit granted pursuant to this section is nontransferable.
    (f) The Director may amend, suspend, or revoke a permit issued 
pursuant to this section for good cause. The Director may deny a permit 
application pursuant to this section, in whole or in part, if it is 
determined that the permittee or applicant has acted in violation of the 
terms and conditions of a permit or of the regulations set forth in this 
section or Subparts F through O, Subpart R or for other good cause. Any 
such action shall be communicated in writing to the permittee or 
applicant by certified mail and shall set forth the reason(s) for the 
action taken. Procedures governing permit sanctions and denials for 
enforcement reasons are set forth in subpart D of 15 CFR part 904.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 
FR 39056, June 22, 2000]



Sec. 922.49  Notification and review of applications for leases, 

licenses, permits, approvals, or other authorizations to conduct 
a prohibited activity.

    (a) A person may conduct an activity prohibited by Subparts L 
through P, or Subpart R, if such activity is specifically authorized by 
any valid Federal, State, or local lease, permit, license, approval, or 
other authorization issued after the effective date of Sanctuary

[[Page 129]]

designation, or in the case of the Florida Keys National Marine 
Sanctuary after the effective date of the regulations in Subpart P, 
provided that:
    (1) The applicant notifies the Director, in writing, of the 
application for such authorization (and of any application for an 
amendment, renewal, or extension of such authorization) within fifteen 
(15) days of the date of filing of the application or the effective date 
of Sanctuary designation, or in the case of the Florida Keys National 
Marine Sanctuary the effective date of the regulations in Subpart P, 
whichever is later;
    (2) The applicant complies with the other provisions of this Sec. 
922.49;
    (3) The Director notifies the applicant and authorizing agency that 
he or she does not object to issuance of the authorization (or 
amendment, renewal, or extension); and
    (4) The applicant complies with any terms and conditions the 
Director deems reasonably necessary to protect Sanctuary resources and 
qualities.
    (b) Any potential applicant for an authorization described in 
paragraph (a) of this section may request the Director to issue a 
finding as to whether the activity for which an application is intended 
to be made is prohibited by Subparts L through P, or Subpart R, as 
appropriate.
    (c) Notification of filings of applications should be sent to the 
Director, Office of Ocean and Coastal Resource Management at the address 
specified in Subparts L through P, or Subpart R, as appropriate. A copy 
of the application must accompany the notification.
    (d) The Director may request additional information from the 
applicant as he or she deems reasonably necessary to determine whether 
to object to issuance of an authorization described in paragraph (a) of 
this section, or what terms and conditions are reasonably necessary to 
protect Sanctuary resources and qualities. The information requested 
must be received by the Director within 45 days of the postmark date of 
the request. The Director may seek the views of any persons on the 
application.
    (e) The Director shall notify, in writing, the agency to which 
application has been made of his or her pending review of the 
application and possible objection to issuance. Upon completion of 
review of the application and information received with respect thereto, 
the Director shall notify both the agency and applicant, in writing, 
whether he or she has an objection to issuance and what terms and 
conditions he or she deems reasonably necessary to protect Sanctuary 
resources and qualities, and reasons therefor.
    (f) The Director may amend the terms and conditions deemed 
reasonably necessary to protect Sanctuary resources and qualities 
whenever additional information becomes available justifying such an 
amendment.
    (g) Any time limit prescribed in or established under this Sec. 
922.49 may be extended by the Director for good cause.
    (h) The applicant may appeal any objection by, or terms or 
conditions imposed by, the Director to the Assistant Administrator or 
designee in accordance with the provisions of Sec. 922.50.

[62 FR 4608, Jan. 30, 1997, as amended at 65 FR 39056, June 22, 2000]



Sec. 922.50  Appeals of administrative action.

    (a)(1) Except for permit actions taken for enforcement reasons (see 
subpart D of 15 CFR part 904 for applicable procedures), an applicant 
for, or a holder of, a National Marine Sanctuary permit; an applicant 
for, or a holder of, a Special Use permit issued pursuant to section 310 
of the Act; a person requesting certification of an existing lease, 
permit, license or right of subsistence use or access under Sec. 
922.47; or, for those Sanctuaries described in Subparts L through P and 
Subpart R, an applicant for a lease, permit, license or other 
authorization issued by any Federal, State, or local authority of 
competent jurisdiction (hereinafter appellant) may appeal to the 
Assistant Administrator:
    (i) The granting, denial, conditioning, amendment, suspension or 
revocation by the Director of a National Marine Sanctuary or Special Use 
permit;
    (ii) The conditioning, amendment, suspension or revocation of a 
certification under Sec. 922.47; or

[[Page 130]]

    (iii) For those Sanctuaries described in Subparts L through P and 
Subpart R, the objection to issuance of or the imposition of terms and 
conditions on a lease, permit, license or other authorization issued by 
any Federal, State, or local authority of competent jurisdiction.
    (2) For those National Marine Sanctuaries described in Subparts F 
through K, any interested person may also appeal the same actions 
described in Sec. 922.50(a)(1)(i) and (ii). For appeals arising from 
actions taken with respect to these National Marine Sanctuaries, the 
term ``appellant'' includes any such interested persons.
    (b) An appeal under paragraph (a) of this section must be in 
writing, state the action(s) by the Director appealed and the reason(s) 
for the appeal, and be received within 30 days of receipt of notice of 
the action by the Director. Appeals should be addressed to the Assistant 
Administrator for Ocean Services and Coastal Zone Management, NOAA 1305 
East-West Highway, 13th Floor, Silver Spring, MD 20910.
    (c)(1) The Assistant Administrator may request the appellant to 
submit such information as the Assistant Administrator deems necessary 
in order for him or her to decide the appeal. The information requested 
must be received by the Assistant Administrator within 45 days of the 
postmark date of the request. The Assistant Administrator may seek the 
views of any other persons. For the Monitor National Marine Sanctuary, 
if the appellant has requested a hearing, the Assistant Administrator 
shall grant an informal hearing. For all other National Marine 
Sanctuaries, the Assistant Administrator may determine whether to hold 
an informal hearing on the appeal. If the Assistant Administrator 
determines that an informal hearing should be held, the Assistant 
Administrator may designate an officer before whom the hearing shall be 
held.
    (2) The hearing officer shall give notice in the Federal Register of 
the time, place and subject matter of the hearing. The appellant and the 
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. Within 60 days after the record for the hearing closes, 
the hearing officer shall recommend a decision in writing to the 
Assistant Administrator.
    (d) 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 regarding the appeal, and, if a hearing has been held, on the 
record before the hearing officer and the hearing officer's recommended 
decision. The Assistant Administrator shall notify the appellant of the 
final decision and he reason(s) therefore in writing. The Assistant 
Administrator's decision shall constitute final agency action for the 
purpose of the Administrative Procedure Act.
    (e) Any time limit prescribed in or established under this section 
other than the 30-day limit for filing an appeal may be extended by the 
Assistant Administrator or hearing office for good cause.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4608, Jan. 30, 1997; 65 
FR 39056, June 22, 2000; 65 FR 60097, Oct. 10, 2000]



               Subpart F_Monitor National Marine Sanctuary



Sec. 922.60  Boundary.

    The Monitor National Marine Sanctuary (Sanctuary) consists of a 
vertical water column in the Atlantic Ocean one mile in diameter 
extending from the surface to the seabed, the center of which is at 
35[deg]00[min]23[sec] north latitude and 75[deg]24[min]32[sec] west 
longitude.



Sec. 922.61  Prohibited or otherwise regulated activities.

    Except as may be permitted by the Director, the following activities 
are prohibited and thus are unlawful for any person to conduct or to 
cause to be conducted within the Sanctuary:
    (a) Anchoring in any manner, stopping, remaining, or drifting 
without power at any time;
    (b) Any type of subsurface salvage or recovery operation;
    (c) Diving of any type, whether by an individual or by a 
submersible;
    (d) Lowering below the surface of the water any grappling, suction, 
conveyor, dredging or wrecking device;

[[Page 131]]

    (e) Detonating below the surface of the water any explosive or 
explosive mechanism;
    (f) Drilling or coring the seabed;
    (g) Lowering, laying, positioning or raising any type of seabed 
cable or cable-laying device;
    (h) Trawling; or
    (i) Discharging waster material into the water in violation of any 
Federal statute or regulation.



Sec. 922.62  Permit procedure and criteria.

    (a) Any person or entity may conduct in the Sanctuary any activity 
listed in Sec. 922.61 if such activity is either:
    (1) For the purpose of research related to the Monitor, or
    (2) Pertains to salvage or recovery operations in connection with an 
air or marine casualty and such person or entity is in possession of a 
valid permit issued by the Director authorizing the conduct of such 
activity; except that, no permit is required for the conduct of any 
activity immediately and urgently necessary for the protection of life, 
property or the environment.
    (b) Any person or entity who wishes to conduct in the Sanctuary an 
activity for which a permit is authorized by this section (hereafter a 
permitted activity) may apply in writing to the Director for a permit to 
conduct such activity citing this section as the basis for the 
application. Such application should be made to: Director, Office of 
Ocean and Coastal Resource Management; ATTN: Manager, Monitor National 
Marine Sanctuary, Building 1519, NOAA, Fort Eustis, VA 23604-5544.
    (c) In considering whether to grant a permit for the conduct of a 
permitted activity for the purpose of research related to the Monitor, 
the Secretary shall evaluate such matters as:
    (1) The general professional and financial responsibility of the 
applicant;
    (2) The appropriateness of the research method(s) envisioned to the 
purpose(s) of the research;
    (3) The extent to which the conduct of any permitted activity may 
diminish the value of the MONITOR as a source of historic, cultural, 
aesthetic and/or maritime information;
    (4) The end value of the research envisioned; and
    (5) Such other matters as the Director deems appropriate.
    (d) In considering whether to grant a permit for the conduct of a 
permitted activity in the Sanctuary in relation to an air or marine 
casualty, the Director shall consider such matters as:
    (1) The fitness of the applicant to do the work envisioned;
    (2) The necessity of conducting such activity;
    (3) The appropriateness of any activity envisioned to the purpose of 
the entry into the Sanctuary;
    (4) The extent to which the conduct of any such activity may 
diminish the value of the Monitor as a source of historic, cultural, 
aesthetic and/or maritime information; and
    (5) Such other matters as the Director deems appropriate.
    (e) In considering any application submitted pursuant to this 
section, the Director shall seek and consider the views of the Advisory 
Council on Historic Preservation.
    (f) The Director may observe any activity permitted by this section; 
and/or may require the submission of one or more reports of the status 
or progress of such activity.



           Subpart G_Channel Islands National Marine Sanctuary



Sec. 922.70  Boundary.

    The Channel Islands National Marine Sanctuary (Sanctuary) consists 
of an area of the waters off the coast of California of approximately 
1252.5 square nautical miles (NM) adjacent to 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 
(collectively the Islands) extending seaward to a distance of six NM. 
The boundary coordinates are listed in appendix A to this subpart.



Sec. 922.71  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for the national defense (subject to 
the terms and conditions of Article 5, Section 2 of the Designation 
Document) or

[[Page 132]]

to respond to an emergency threatening life, property, or the 
environment, or except as may be permitted by the Director in accordance 
with Sec. Sec. 922.48 and 922.72, the following activities are 
prohibited and thus are unlawful for any person to conduct or to cause 
to be conducted within the Sanctuary:
    (1) Exploring for, developing, and producing hydrocarbons except 
pursuant to leases executed prior to March 30, 1981, and except the 
laying of pipeline, if the following oil spill contingency equipment is 
available at the site of such operations:
    (i) 1500 feet of open ocean containment boom and a boat capable of 
deploying the boom;
    (ii) One oil skimming device capable of open ocean use; and
    (iii) Fifteen bales of oil sorbent material, and subject to all 
prohibitions, restrictions and conditions imposed by applicable 
regulations, permits, licenses or other authorizations and consistency 
reviews including those issued by the Department of the Interior, the 
Coast Guard, the Corps of Engineers, the Environmental Protection Agency 
and under the California Coastal Management Program and its implementing 
regulations.
    (2) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts and chumming materials (bait);
    (ii) Water (including cooling water) and other biodegradable 
effluents incidental to vessel use of the Sanctuary generated by:
    (A) Marine sanitation devices;
    (B) Routine vessel maintenance, e.g., deck wash down;
    (C) Engine exhaust; or
    (D) Meals on board vessels;
    (iii) Effluents incidental to hydrocarbon exploration and 
exploitation activities allowed by paragraph (a)(1) of this section.
    (3) Except in connection with the laying of any pipeline as allowed 
by paragraph (a)(1) of this section, within 2 NM of any Island:
    (i) Constructing any structure other than a navigation aid,
    (ii) Drilling through the seabed, or
    (iii) Dredging or otherwise altering the seabed in any way, other 
than
    (A) To anchor vessels, or
    (B) To bottom trawl from a commercial fishing vessel.
    (4) Except to transport persons or supplies to or from an Island, 
operating within one NM of an Island any vessel engaged in the trade of 
carrying cargo, including, but not limited to, tankers and other bulk 
carriers and barges, or any vessel engaged in the trade of servicing 
offshore installations. In no event shall this section be construed to 
limit access for fishing (including kelp harvesting), recreational, or 
research vessels.
    (5) Disturbing seabirds or marine mammals by flying motorized 
aircraft at less than 1000 feet over the waters within one NM of any 
Island except:
    (i) For enforcement purposes;
    (ii) To engage in kelp bed surveys; or
    (iii) To transport persons or supplies to or from an Island.
    (6) Removing or damaging any historical or cultural resource.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for the national defense and, 
therefore, not subject to the prohibitions in this section. The 
exemption of additional activities having significant impact shall be 
determined in consultation between the Director and the Department of 
Defense.



Sec. 922.72  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director in accordance with this section and Sec. 922.48 may conduct 
any activity in the Sanctuary prohibited under Sec. 922.71 if such 
activity is either:
    (1) Research related to the resources of the Sanctuary,
    (2) To further the educational value of the Sanctuary; or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to: Director, Office of 
Ocean and Coastal Resource Management, ATTN: Manager, Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109.
    (c) In considering whether to grant a permit the Director shall 
evaluate such matters as:

[[Page 133]]

    (1) The general professional, and financial responsibility of the 
applicant;
    (2) The appropriateness of the methods envisioned to the purpose(s) 
of the activity;
    (3) The extent to which the conduct of any permitted activity may 
diminish or enhance the value of the Sanctuary as a source of 
recreation, or as a source of educational or scientific information;
    (4) The end value of the activity and
    (5) Such other matters as may be deemed appropriate.
    (d) The Director may observe any permitted activity and/or require 
the submission of one or more reports of the status or progress of such 
activity. Any information obtained shall be available to the public.

  Appendix A to Subpart G of Part 922--Channel Islands National Marine 
                     Sanctuary Boundary Coordinates

----------------------------------------------------------------------------------------------------------------
                Point No.                            Latitude north                     Longitude west
----------------------------------------------------------------------------------------------------------------
 
                                        Northern Channel Islands Section
----------------------------------------------------------------------------------------------------------------
01.......................................  33[deg]56[min]28.959[sec]          119[deg]16[min]23.800[sec]
02.......................................  33[deg]58[min]03.919[sec]          119[deg]14[min]56.964[sec]
03.......................................  34[deg]01[min]33.846[sec]          119[deg]14[min]07.740[sec]
04.......................................  34[deg]04[min]24.203[sec]          119[deg]15[min]21.308[sec]
05.......................................  34[deg]06[min]06.653[sec]          119[deg]17[min]27.002[sec]
06.......................................  34[deg]06[min]54.809[sec]          119[deg]19[min]46.046[sec]
07.......................................  34[deg]06[min]57.988[sec]          119[deg]23[min]24.905[sec]
08.......................................  34[deg]06[min]51.627[sec]          119[deg]24[min]04.198[sec]
09.......................................  34[deg]07[min]01.640[sec]          119[deg]25[min]40.819[sec][min]
10.......................................  34[deg]06[min]59.904[sec]          119[deg]26[min]50.959[sec]
11.......................................  34[deg]08[min]02.002[sec]          119[deg]28[min]47.501[sec]
12.......................................  34[deg]08[min]17.693[sec]          119[deg]29[min]27.698[sec]
13.......................................  34[deg]08[min]52.234[sec]          119[deg]30[min]39.562[sec]
14.......................................  34[deg]09[min]16.780[sec]          119[deg]35[min]22.667[sec]
15.......................................  34[deg]09[min]05.106[sec]          119[deg]36[min]41.694[sec]
16.......................................  34[deg]08[min]02.782[sec]          119[deg]39[min]33.421[sec]
17.......................................  34[deg]08[min]46.870[sec]          119[deg]41[min]48.621[sec]
18.......................................  34[deg]09[min]35.563[sec]          119[deg]45[min]57.284[sec]
19.......................................  34[deg]09[min]32.627[sec]          119[deg]46[min]37.335[sec]
20.......................................  34[deg]09[min]33.396[sec]          119[deg]47[min]32.285[sec]
21.......................................  34[deg]09[min]43.668[sec]          119[deg]48[min]09.018[sec]
22.......................................  34[deg]10[min]10.616[sec]          119[deg]50[min]07.659[sec]
23.......................................  34[deg]10[min]21.586[sec]          119[deg]51[min]05.146[sec]
24.......................................  34[deg]10[min]33.161[sec]          119[deg]53[min]17.044[sec]
25.......................................  34[deg]10[min]36.545[sec]          119[deg]55[min]57.373[sec]
26.......................................  34[deg]10[min]21.283[sec]          119[deg]57[min]26.403[sec]
27.......................................  34[deg]08[min]07.255[sec]          120[deg]01[min]07.233[sec]
28.......................................  34[deg]08[min]13.144[sec]          120[deg]02[min]27.930[sec]
29.......................................  34[deg]07[min]47.772[sec]          120[deg]05[min]05.449[sec]
30.......................................  34[deg]07[min]29.314[sec]          120[deg]06[min]36.262[sec]
31.......................................  34[deg]07[min]30.691[sec]          120[deg]09[min]35.238[sec]
32.......................................  34[deg]06[min]36.285[sec]          120[deg]12[min]39.335[sec]
33.......................................  34[deg]06[min]40.634[sec]          120[deg]13[min]33.940[sec]
34.......................................  34[deg]08[min]10.759[sec]          120[deg]15[min]07.017[sec]
35.......................................  34[deg]09[min]12.290[sec]          120[deg]17[min]07.046[sec]
35A......................................  34[deg]09[min]50.706[sec]          120[deg]17[min]31.649[sec]
36.......................................  34[deg]10[min]56.346[sec]          120[deg]18[min]40.520[sec]
36B......................................  34[deg]11[min]28.249[sec]          120[deg]19[min]29.213[sec]
37.......................................  34[deg]12[min]08.078[sec]          120[deg]21[min]00.835[sec]
37C......................................  34[deg]12[min]25.468[sec]          120[deg]25[min]01.261[sec]
38.......................................  34[deg]12[min]18.754[sec]          120[deg]25[min]39.373[sec]
38D......................................  34[deg]11[min]33.184[sec]          120[deg]27[min]33.921[sec]
39.......................................  34[deg]12[min]19.470[sec]          120[deg]30[min]22.620[sec]
39E......................................  34[deg]12[min]17.540[sec]          120[deg]32[min]19.959[sec]
40.......................................  34[deg]10[min]54.592[sec]          120[deg]35[min]57.887[sec]
40F......................................  34[deg]06[min]07.491[sec]          120[deg]38[min]27.883[sec]
41.......................................  34[deg]04[min]53.454[sec]          120[deg]38[min]16.602[sec]
41G......................................  34[deg]03[min]30.539[sec]          120[deg]37[min]39.442[sec]
42.......................................  34[deg]01[min]09.860[sec]          120[deg]35[min]04.808[sec]
42H......................................  34[deg]00[min]48.573[sec]          120[deg]34[min]25.106[sec]
43.......................................  33[deg]59[min]13.122[sec]          120[deg]33[min]53.385[sec]
44.......................................  33[deg]57[min]01.427[sec]          120[deg]31[min]54.590[sec]
45.......................................  33[deg]55[min]36.973[sec]          120[deg]27[min]37.188[sec]
46.......................................  33[deg]55[min]30.037[sec]          120[deg]25[min]14.587[sec]
47.......................................  33[deg]54[min]50.522[sec]          120[deg]22[min]29.536[sec]
48.......................................  33[deg]55[min]01.640[sec]          120[deg]19[min]26.722[sec]
49.......................................  33[deg]54[min]34.409[sec]          120[deg]18[min]27.344[sec]
50.......................................  33[deg]53[min]23.129[sec]          120[deg]17[min]39.927[sec]
51.......................................  33[deg]50[min]39.990[sec]          120[deg]15[min]13.874[sec]
52.......................................  33[deg]49[min]53.260[sec]          120[deg]13[min]41.904[sec]
53.......................................  33[deg]49[min]03.437[sec]          120[deg]12[min]06.750[sec]
54.......................................  33[deg]48[min]36.087[sec]          120[deg]11[min]10.821[sec]
55.......................................  33[deg]47[min]39.280[sec]          120[deg]07[min]59.707[sec]
56.......................................  33[deg]47[min]37.617[sec]          120[deg]06[min]04.002[sec]
57.......................................  33[deg]47[min]59.351[sec]          120[deg]04[min]08.370[sec]
58.......................................  33[deg]48[min]38.700[sec]          120[deg]02[min]33.188[sec]
59.......................................  33[deg]48[min]52.167[sec]          120[deg]01[min]50.244[sec]
60.......................................  33[deg]50[min]28.486[sec]          119[deg]57[min]50.820[sec]
61.......................................  33[deg]50[min]55.128[sec]          119[deg]55[min]19.934[sec]
62.......................................  33[deg]52[min]13.338[sec]          119[deg]52[min]53.439[sec]
63.......................................  33[deg]52[min]04.900[sec]          119[deg]52[min]10.719[sec]
64.......................................  33[deg]51[min]39.919[sec]          119[deg]47[min]21.152[sec]
65.......................................  33[deg]51[min]48.592[sec]          119[deg]46[min]13.213[sec]
66.......................................  33[deg]51[min]35.798[sec]          119[deg]44[min]34.589[sec]
67.......................................  33[deg]51[min]44.374[sec]          119[deg]41[min]12.738[sec]
68.......................................  33[deg]52[min]23.857[sec]          119[deg]39[min]14.708[sec]
69.......................................  33[deg]53[min]09.365[sec]          119[deg]37[min]30.784[sec]
70.......................................  33[deg]53[min]12.754[sec]          119[deg]35[min]35.793[sec]
71.......................................  33[deg]53[min]17.114[sec]          119[deg]34[min]54.567[sec]
72.......................................  33[deg]53[min]38.865[sec]          119[deg]32[min]51.578[sec]
73.......................................  33[deg]54[min]02.277[sec]          119[deg]31[min]06.274[sec]
74.......................................  33[deg]54[min]56.444[sec]          119[deg]28[min]54.052[sec]
75.......................................  33[deg]54[min]39.349[sec]          119[deg]27[min]37.512[sec]
76.......................................  33[deg]54[min]15.236[sec]          119[deg]25[min]23.779[sec]
77.......................................  33[deg]54[min]07.847[sec]          119[deg]24[min]22.849[sec]
78.......................................  33[deg]54[min]04.682[sec]          119[deg]22[min]58.006[sec]
79.......................................  33[deg]54[min]14.311[sec]          119[deg]21[min]44.573[sec]
80.......................................  33[deg]54[min]22.824[sec]          119[deg]21[min]09.003[sec]
81.......................................  33[deg]54[min]46.904[sec]          119[deg]19[min]54.677[sec]
82.......................................  33[deg]55[min]05.834[sec]          119[deg]19[min]16.027[sec]
 
                                          Santa Barbara Island Section
----------------------------------------------------------------------------------------------------------------
83.......................................  33[deg]28[min]56.904[sec]          119[deg]10[min]04.092[sec]
84.......................................  33[deg]26[min]32.364[sec]          119[deg]10[min]01.328[sec]
85.......................................  33[deg]24[min]19.904[sec]          119[deg]08[min]52.236[sec]
86.......................................  33[deg]23[min]26.019[sec]          119[deg]07[min]54.826[sec]
87.......................................  33[deg]22[min]04.836[sec]          119[deg]05[min]16.716[sec]
88.......................................  33[deg]21[min]49.387[sec]          119[deg]04[min]01.551[sec]
89.......................................  33[deg]21[min]44.594[sec]          119[deg]02[min]49.887[sec]
90.......................................  33[deg]21[min]49.556[sec]          119[deg]01[min]37.839[sec]
91.......................................  33[deg]22[min]07.538[sec]          118[deg]59[min]49.357[sec]
92.......................................  33[deg]22[min]27.774[sec]          118[deg]58[min]51.623[sec]
93.......................................  33[deg]22[min]47.957[sec]          118[deg]58[min]07.633[sec]
94.......................................  33[deg]23[min]20.805[sec]          118[deg]57[min]14.375[sec]
95.......................................  33[deg]24[min]18.458[sec]          118[deg]56[min]08.450[sec]
96.......................................  33[deg]26[min]24.130[sec]          118[deg]54[min]51.352[sec]
97.......................................  33[deg]29[min]02.820[sec]          118[deg]54[min]22.276[sec]
98.......................................  33[deg]31[min]27.917[sec]          118[deg]54[min]50.367[sec]
99.......................................  33[deg]32[min]17.935[sec]          118[deg]55[min]18.396[sec]
100......................................  33[deg]35[min]10.090[sec]          118[deg]59[min]40.091[sec]
101......................................  33[deg]35[min]24.575[sec]          119[deg]01[min]22.108[sec]
102......................................  33[deg]35[min]06.497[sec]          119[deg]03[min]59.463[sec]
103......................................  33[deg]34[min]48.322[sec]          119[deg]05[min]03.374[sec]
104......................................  33[deg]32[min]37.151[sec]          119[deg]08[min]37.201[sec]

[[Page 134]]

 
105......................................  33[deg]30[min]41.731[sec]          119[deg]09[min]45.845[sec]
----------------------------------------------------------------------------------------------------------------



       Subpart H_Gulf of the Farallones National Marine Sanctuary



Sec. 922.80  Boundary.

    (a) The Gulf of the Farallones National Marine Sanctuary (Sanctuary) 
consists of an area of the waters adjacent to the coast of California 
north and south of the Point Reyes Headlands, between Bodega Head and 
Rocky Point and the Farallon Islands (including Noonday Rock), and 
includes approximately 948 square nautical miles (NM). The boundary 
coordinates are listed in Appendix A to this subpart.
    (b) The shoreward boundary follows the mean high tide line and the 
seaward limit of Point Reyes National Seashore. Between Bodega Head and 
Point Reyes Headlands, the Sanctuary extends seaward 3 NM beyond State 
waters. The Sanctuary also includes the waters within 12 NM of the 
Farallon Islands, and between the Islands and the mainland from Point 
Reyes Headlands to Rocky Point. The Sanctuary includes Bodega Bay, but 
not Bodega Harbor.



Sec. 922.81  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definition applies to this subpart:
    Areas of Special Biological Significance (ASBS) means those areas 
established by the State of California prior to the designation of the 
Sanctuary except that for purposes of the regulations in this subpart, 
the area established around the Farallon Islands shall not be included.
    Motorized personal watercraft means a vessel which uses an inboard 
motor powering a water jet pump as its primary source of motive power 
and which is designed to be operated by a person sitting, standing, or 
kneeling on the vessel, rather than the conventional manner of sitting 
or standing inside the vessel.

[60 FR 66877, Dec. 27, 1995, as amended at 66 FR 46951, Sept. 10, 2001]



Sec. 922.82  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 Sec. 922.48 and Sec. 922.83, the following activities 
are prohibited and thus are unlawful for any person to conduct or to 
cause to be conducted within the Sanctuary:
    (1) Exploring for, developing and producing oil or gas except that 
pipelines related to hydrocarbon operations outside the Sanctuary may be 
placed at a distance greater than 2 NM from the Farallon Islands, 
Bolinas Lagoon, and ASBS where certified to have no significant effect 
on Sanctuary resources in accordance with Sec. 922.84.
    (2) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts and chumming materials (bait).
    (ii) Water (including cooling water) and other biodegradable 
effluents incidental to vessel use of the Sanctuary generated by:
    (A) Marine sanitation devices;
    (B) Routine vessel maintenance, e.g., deck wash down;
    (C) Engine exhaust; or
    (D) Meals on board vessels.
    (iii) Dredge material disposed of at the interim dumpsite now 
established approximately 10 NM south of the southeast Farallon Island 
and municipal sewage provided such discharges are certified in 
accordance with Sec. 922.84.
    (3) Except in connection with the laying of pipelines or 
construction of an outfall if certified in accordance with

Sec. 922.84:
    (i) Constructing any structure other than a navigation aid,
    (ii) Drilling through the seabed, and
    (iii) Dredging or otherwise altering the seabed in any way other 
than by anchoring vessels or bottom trawling from a commercial fishing 
vessel, except for routine maintenance and navigation, ecological 
maintenance, mariculture, and the construction of docks and piers in 
Tomales Bay.
    (4) Except to transport persons or supplies to or from islands or 
mainland

[[Page 135]]

areas adjacent to Sanctuary waters, within an area extending 2 NM from 
the Farallon Islands, Bolinas Lagoon, or any ASBS, operating any vessel 
engaged in the trade of carrying cargo, including but not limited to 
tankers and other bulk carriers and barges, or any vessel engaged in the 
trade of servicing offshore installations. In no event shall this 
section be construed to limit access for fishing, recreational or 
research vessels.
    (5) Disturbing seabirds or marine mammals by flying motorized 
aircraft at less than 1000 feet over the waters within one NM of the 
Farallon Islands, Bolinas Lagoon, or any ASBS except to transport 
persons or supplies to or from the Islands or for enforcement purposes.
    (6) Removing or damaging any historical or cultural resource.
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft for emergency search and 
rescue mission or law enforcement operations (other than routine 
training activities) carried out by National Park Service, U.S. Coast 
Guard, Fire or Police Departments or other Federal, State or local 
jurisdictions.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for the national defense and, 
therefore, not subject to the prohibitions in this section. The 
exemption of additional activities having significant impacts shall be 
determined in consultation between the Director and the Department of 
Defense.

[60 FR 66877, Dec. 27, 1995, as amended at 66 FR 46951, Sept. 10, 2001]



Sec. 922.83  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director in accordance with this section and Sec. 922.48 may conduct 
any activity in the Sanctuary, prohibited user Sec. 922.82, if such an 
activity is
    (1) Research related to the resources of the Sanctuary,
    (2) To further the educational value of the Sanctuary, or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management, ATTN: Manager, Gulf of the 
Farallones National Marine Sanctuary, Fort Mason, building 201, 
San Francisco, CA 94123.
    (c) In considering whether to grant a permit, the Director shall 
evaluate
    (1) The general professional and financial responsibility of the 
applicant,
    (2) The appropriateness of the methods envisioned to the purpose(s) 
of the activity,
    (3) The extent to which the conduct of any permitted activity may 
diminish or enhance the value of the Sanctuary,
    (4) The end value of the activity, and
    (5) Other matters as deemed appropriate.
    (d) The Director may observe any permitted activity and/or require 
the submission of one or more reports of the status or progress of such 
activity. Any information obtained will be made available to the public.



Sec. 922.84  Certification of other permits.

    (a) A permit, license, or other authorization allowing the discharge 
of municipal sewage, the laying of any pipeline outside 2 NM from the 
Farallon Islands, Bolinas Lagoon and ASBS, or the disposal of dredge 
material at the interim dumpsite now established approximately 10 NM 
south of the Southeast Farallon Island prior to the selection of a 
permanent dumpsite shall be valid if certified by the Director as 
consistent with the purpose of the Sanctuary and having no significant 
effect on Sanctuary resources. Such certification may impose terms and 
conditions as deemed appropriate to ensure consistency.
    (b) In considering whether to make the certifications called for in 
this section, the Director may seek and consider the views of any other 
person or entity, within or outside the Federal government, and may hold 
a public hearing as deemed appropriate.
    (c) Any certification called for in this section shall be presumed 
unless the Director acts to deny or condition certification within 60 
days from the date that the Director receives notice of the

[[Page 136]]

proposed permit and the necessary supporting data.
    (d) The Director may amend, suspend, or revoke any certification 
made under this section whenever continued operation would violate any 
terms or conditions of the certification. Any such action shall be 
forwarded in writing to both the holder of the certified permit and the 
issuing agency and shall set forth reason(s) for the action taken.

  Appendix A to Subpart H of Part 922--Gulf of the Farallones National 
                  Marine Sanctuary Boundary Coordinates

----------------------------------------------------------------------------------------------------------------
                Point No.                            Latitude north                     Longitude west
----------------------------------------------------------------------------------------------------------------
1........................................  38[deg]15[min]50.349[sec]          123[deg]10[min]48.933[sec]
2........................................  38[deg]12[min]36.338[sec]          123[deg]07[min]04.846[sec]
3........................................  38[deg]09[min]57.033[sec]          123[deg]05[min]27.435[sec]
4........................................  38[deg]08[min]26.872[sec]          123[deg]04[min]52.524[sec]
5........................................  38[deg]07[min]42.125[sec]          123[deg]05[min]10.714[sec]
6........................................  38[deg]06[min]08.017[sec]          123[deg]05[min]48.920[sec]
7........................................  38[deg]05[min]26.765[sec]          123[deg]06[min]09.922[sec]
8........................................  38[deg]04[min]44.587[sec]          123[deg]06[min]29.251[sec]
9........................................  38[deg]03[min]54.439[sec]          123[deg]06[min]57.591[sec]
10.......................................  38[deg]03[min]07.527[sec]          123[deg]07[min]37.755[sec]
11.......................................  37[deg]59[min]32.425[sec]          123[deg]08[min]24.905[sec]
12.......................................  37[deg]59[min]22.344[sec]          123[deg]14[min]06.127[sec]
13.......................................  37[deg]57[min]31.931[sec]          123[deg]19[min]19.187[sec]
14.......................................  37[deg]54[min]16.943[sec]          123[deg]23[min]18.456[sec]
15.......................................  37[deg]50[min]05.522[sec]          123[deg]25[min]28.791[sec]
16.......................................  37[deg]45[min]33.799[sec]          123[deg]25[min]32.666[sec]
17.......................................  37[deg]41[min]20.351[sec]          123[deg]23[min]29.811[sec]
18.......................................  37[deg]38[min]01.053[sec]          123[deg]19[min]37.445[sec]
19.......................................  37[deg]36[min]04.665[sec]          123[deg]14[min]30.483[sec]
20.......................................  37[deg]35[min]30.191[sec]          123[deg]13[min]31.060[sec]
21.......................................  37[deg]33[min]47.197[sec]          123[deg]11[min]50.904[sec]
22.......................................  37[deg]31[min]12.270[sec]          123[deg]07[min]39.618[sec]
23.......................................  37[deg]30[min]29.706[sec]          123[deg]05[min]42.221[sec]
24.......................................  37[deg]29[min]39.287[sec]          123[deg]00[min]23.711[sec]
25.......................................  37[deg]30[min]34.337[sec]          122[deg]54[min]18.139[sec]
26.......................................  37[deg]31[min]47.784[sec]          122[deg]51[min]31.592[sec]
27.......................................  37[deg]34[min]17.533[sec]          122[deg]48[min]10.415[sec]
28.......................................  37[deg]36[min]58.627[sec]          122[deg]46[min]05.779[sec]
29.......................................  37[deg]39[min]59.303[sec]          122[deg]44[min]59.838[sec]
30.......................................  37[deg]52[min]56.355[sec]          122[deg]37[min]35.195[sec]
----------------------------------------------------------------------------------------------------------------



             Subpart I_Gray's Reef National Marine Sanctuary



Sec. 922.90  Boundary.

    The Gray's Reef National Marine Sanctuary (Sanctuary) consists of 
16.68 square nautical miles (NM) of high sea waters off the coast of 
Georgia. The Sanctuary boundary includes all waters within a rectangle 
starting at coordinate 31[deg]21[min]45[sec]N, 80[deg]55[min]17[sec]W, 
commencing to coordinate 31[deg]25[min]15[sec]N, 80[deg]55[min]17[sec]W, 
thence to coordinate 31[deg]25[min]15[sec]N, 80[deg]49[min]42[sec]W, 
thence to coordinate 31[deg]21[min]45[sec]N, 80[deg]49[min]42[sec]W, 
thence back to the point of origin.



Sec. 922.91  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 Sec. 922.48 and Sec. 922.92, the following activities 
are prohibited and thus are unlawful for any person to conduct or to 
cause to be conducted within the Sanctuary:
    (1) Dredging, drilling, or otherwise altering the seabed in any way 
nor constructing any structure other than a navigation aid.
    (2) Discharging or depositing any material or other matter except:
    (i) Fish or parts, bait, and chumming materials;
    (ii) Effluent from marine sanitation devices; and
    (iii) Vessel cooling waters.
    (3) Operating a watercraft other than in accordance with the Federal 
rules and regulations that would apply if there were no Sanctuary.
    (4) Using, placing, or possessing wire fish traps.
    (5) Using a bottom trawl, specimen dredge, or similar vessel-towed 
bottom sampling device.
    (6)(i)(A) Breaking, cutting, or similarly damaging, taking, or 
removing any bottom formation, marine invertebrate, or marine plant.
    (B) Taking any tropical fish.
    (C) Using poisons, electric charges, explosives, or similar methods 
to take any marine animal not otherwise prohibited to be taken.
    (ii) There shall be a rebuttable presumption that any bottom 
formation, marine invertebrate, tropical fish, marine plant, or marine 
animal found in the possession of a person within the Sanctuary have 
been collected within or removed from the Sanctuary.
    (7) Tampering with, damaging, or removing any historic or cultural 
resources.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for

[[Page 137]]

the national defense and, therefore, not subject to the prohibitions in 
this section. The exemption of additional activities having significant 
impacts shall be determined in consultation between the Director and the 
Department of Defense.



Sec. 922.92  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director in accordance with this section and Sec. 922.48 may conduct 
the specific activity in the Sanctuary including any activity 
specifically prohibited under Sec. 922.91, if such activity is
    (1) Research related to the resources of the Sanctuary,
    (2) To further the educational value of the Sanctuary, or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management, ATTN: Manager, Gray's Reef 
National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
    (c) In considering whether to grant a permit, the Director shall 
evaluate
    (1) The general professional and financial responsibility of the 
applicant,
    (2) The appropriateness of the methods envisioned to the purpose(s) 
of the activity,
    (3) The extent to which the conduct of any permitted activity may 
diminish or enhance the value of the Sanctuary,
    (4) The end value of the activity, and
    (5) Other matters as deemed appropriate.
    (d) The Director may observe any permitted activity and/or require 
the submission of one or more reports of the status or progress of such 
activity. Any information obtained will be made available to the public.



            Subpart J_Fagatele Bay National Marine Sanctuary



Sec. 922.100  Scope of regulations.

    The provisions of this subpart J apply only to the area of the 
Territory of American Samoa within the boundary of the Fagatele Bay 
National Marine Sanctuary (Sanctuary). Neither the provisions of this 
subpart J nor any permit issued under their authority shall be construed 
to relieve a person from any other requirements imposed by statute or 
regulation of the Territory of American Samoa or of the United States. 
In addition, no statute or regulation of the Territory of American Samoa 
shall be construed to relieve a person from the restrictions, 
conditions, and requirements contained in this subpart J.



Sec. 922.101  Boundary.

    The Sanctuary is a 163-acre (0.25 sq. mi.) coastal embayment formed 
by a collapsed volcanic crater on the island of Tutuila, Territory of 
American Samoa and includes Fagatele Bay in its entirety. The landward 
boundary is defined by the mean high high water (MHHW) line between 
Fagatele Point (14[deg]22[min]15[sec] S, 170[deg]46[min]5[sec] W) and 
Steps Point (14[deg]22[min]44[sec] S, 170[deg]45[min]27[sec] W). The 
seaward boundary of the Sanctuary is defined by a straight line between 
Fagatele Point and Steps Point.



Sec. 922.102  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense or to respond to 
an emergency threatening life, property, or the environment, or as may 
be permitted by the Director in accordance with Sec. 922.48 and Sec. 
922.104, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1)(i)(A) Gathering, taking, breaking, cutting, damaging, 
destroying, or possessing any invertebrate, coral, bottom formation, or 
marine plant.
    (B) Taking, gathering, cutting, damaging, destroying, or possessing 
any crown-of-thorns starfish (Acanthaster planci).
    (C) Possessing or using poisons, electrical charges, explosives, or 
similar environmentally destructive methods.
    (D) Possessing or using spearguns, including such devices known as 
Hawaiian slings, pole spears, arbalettes, pneumatic and spring-loaded 
spearguns, bows and arrows, bang sticks, or any similar taking device.
    (E) Possessing or using a seine, trammel net, or any type of fixed 
net.

[[Page 138]]

    (ii) There shall be a rebuttable presumption that any items listed 
in this paragraph (a)(1) found in the possession of a person within the 
Sanctuary have been used, collected, or removed within or from the 
Sanctuary.
    (2)(i) Operating a vessel closer than 200 feet (60.96 meters) from 
another vessel displaying a dive flag at a speed exceeding three knots.
    (ii) Operating a vessel in a manner which causes the vessel to 
strike or otherwise cause damage to the natural features of the 
Sanctuary.
    (3) Diving or conducting diving operations from a vessel not flying 
in a conspicuous manner the international code flag alpha ``A.''
    (4) Littering, depositing, or discharging, into the waters of the 
Sanctuary, any material or other matter.
    (5) Disturbing the benthic community by dredging, filling, 
dynamiting, bottom trawling, or otherwise altering the seabed.
    (6) Removing, damaging, or tampering with any historical or cultural 
resource within the boundary of the Sanctuary.
    (7) Ensnaring, entrapping, or fishing for any sea turtle listed as a 
threatened or endangered species under the Endangered Species Act of 
1973, as amended, 16 U.S.C. 1531 et seq.
    (8) Except for law enforcement purposes, using or discharging 
explosives or weapons of any description. Distress signaling devices, 
necessary and proper for safe vessel operation, and knives generally 
used by fishermen and swimmers shall not be considered weapons for 
purposes of this section.
    (9) Marking, defacing, or damaging in any way, or displacing or 
removing or tampering with any signs, notices, or placards, whether 
temporary or permanent, or with any monuments, stakes, posts, or other 
boundary markers related to the Sanctuary.
    (b) In addition to those activities prohibited or otherwise 
regulated under paragraph (a) of this section, the following activities 
are prohibited and thus are unlawful for any person to conduct or to 
cause to be conducted landward of the straight line connecting Fagatele 
Point (14[deg]22[min]15[sec] S, 170[deg]46[min]5[sec] W) and Matautuloa 
Benchmark (14[deg]22[min]18[sec] S, 170[deg]45[min]35[sec] W).
    (1) Possessing or using fishing poles, handlines, or trawls.
    (2) Fishing commercially.



Sec. 922.103  Management and enforcement.

    The National Oceanic and Atmospheric Administration (NOAA) has 
primary responsibility for the management of the Sanctuary pursuant to 
the Act. The American Samoa Economic and Development Planning Office 
(EDPO) will assist NOAA in the administration of the Sanctuary, and act 
as the lead agency, in conformance with the Designation Document, these 
regulations, and the terms and provisions of any grant or cooperative 
agreement. NOAA may act to deputize enforcement agents of the American 
Samoa Government (ASG) to enforce the regulations in this subpart in 
accordance with existing law. If NOAA chooses to exercise this 
provision, a memorandum of understanding shall be executed between NOAA 
and the ASG or the person(s) or entity authorized to act on their 
behalf.



Sec. 922.104  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director, in consultation with the EDPO, in accordance with this section 
and Sec. 922.48, may conduct an activity otherwise prohibited by Sec. 
922.102 in the Sanctuary if such activity is judged not to cause long-
term or irreparable harm to the resources of the Sanctuary, and is:
    (1) Related to research involving Sanctuary resources designed to 
enhance understanding of the Sanctuary environment or to improve 
resource management decisionmaking;
    (2) Intended to further the educational value of the Sanctuary and 
thereby enhance understanding of the Sanctuary environmental or improve 
resource management decisionmaking; or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management; ATTN: Sanctuary Coordinator,

[[Page 139]]

Fagatele Bay National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 
96799.
    (c) In considering whether to grant a permit, the Director shall 
evaluate such matters as:
    (1) The general professional and financial responsibility of the 
applicant;
    (2) The appropriateness of the methods being proposed for the 
purpose(s) of the activity;
    (3) The extent to which the conduct of any permitted activity may 
diminish or enhance the value of the Sanctuary as a source of 
recreation, education, or scientific information; and
    (4) The end value of the activity.
    (d) In addition to meeting the criteria in this section and Sec. 
922.48, the applicant also must demonstrate to the Director that:
    (1) The activity shall be conducted with adequate safeguards for the 
environment; and
    (2) The environment shall be returned to, or will regenerate to, the 
condition which existed before the activity occurred.
    (e) The Director may, at his or her discretion, grant a permit which 
has been applied for pursuant to this section, in whole or in part, and 
subject the permit to such condition(s) as he or she deems necessary. A 
permit granted for research related to the Sanctuary may include, but is 
not limited to, the following conditions:
    (1) The Director may observe any activity permitted by this section;
    (2) any information obtained in the research site shall be made 
available to the public; and
    (3) The submission of one or more reports of the status of such 
research activity may be required.



            Subpart K_Cordell Bank National Marine Sanctuary



Sec. 922.110  Boundary

    The Cordell Bank National Marine Sanctuary (Sanctuary) consists of a 
397.05 square nautical mile (NM) area of marine waters approximately 50 
miles west-northwest of San Francisco, California extending at 180[deg] 
from the northernmost boundary of the Gulf of the Farallones National 
Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of the 
Bank, then south along this isobath to the GFNMS boundary and back to 
the northwest along this boundary to the beginning point. The boundary 
coordinates are listed in appendix A to this subpart.



Sec. 922.111  Prohibited or otherwise regulated activities.

    (a) Except as necessary for national defense or to respond to an 
emergency threatening life, property or the environment, or except as 
permitted in accordance with Sec. Sec. 922.48 and 922.112 or certified 
in accordance with Sec. 922.47, the following activities are prohibited 
and thus are unlawful for any person to conduct or to cause to be 
conducted:
    (1)(i) Depositing or discharging, from any location within the 
boundary of the Sanctuary, material or other matter of any kind except:
    (A) Fish, fish parts, chumming materials (bait) produced and 
discarded during routine fishing activities conducted in the Sanctuary; 
and
    (B) Water (including cooling water) and other biodegradable 
effluents incidental to use of a vessel in the Sanctuary and generated 
by: Marine sanitation devices approved by the United States Coast Guard; 
routine vessel maintenance, e.g., deck wash down; engine exhaust; or 
meals on board vessels.
    (ii) Depositing or discharging, from any location beyond the 
boundaries of the Sanctuary, material or other matter of any kind, 
except for the exclusions listed in paragraph (a)(1)(i) of this section, 
which enter the Sanctuary and injure a Sanctuary resource.
    (2) Removing, taking, or injuring or attempting to remove, take, or 
injure benthic invertebrates or algae located on Cordell Bank or within 
the 50 fathom isobath surrounding the Bank. There is a rebuttable 
presumption that any such resource found in the possession of a person 
within the Sanctuary was taken or removed by that person. This 
prohibition does not apply to accidental removal, injury, or takings 
during normal fishing operations.
    (3) Exploring for, or developing or producing, oil, gas, or minerals 
in any area of the Sanctuary.

[[Page 140]]

    (b) All activities being carried out by the Department of Defense 
(DOD) within the Sanctuary on the effective date of designation that are 
necessary for national defense are exempt from the prohibitions 
contained in the regulations in this subpart. Additional DOD activities 
initiated after the effective date of designation that are necessary for 
national defense will be exempted by the Director after consultation 
between the Department of Commerce and DOD. DOD activities not necessary 
for national defense, such as routine exercises and vessel operations, 
are subject to all prohibitions contained in the regulations in this 
subpart.
    (c) Where necessary to prevent immediate, serious, and irreversible 
damage to a Sanctuary resource, any activity may be regulated within the 
limits of the Act on an emergency basis for no more than 120 days.



Sec. 922.112  Permit procedures and criteria.

    (a) If a person wishes to conduct an activity prohibited under Sec. 
922.111, that person must apply for, receive, and have in possession on 
board any vessel used a valid permit issued pursuant to this section and 
Sec. 922.48 authorizing that person to conduct that activity.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management; ATTN: Manager, Cordell Bank 
National Marine Sanctuary, Fort Mason, Building 201, San 
Francisco, CA 94123.
    (c) The Director, at his or her discretion, may issue a permit 
subject to such terms and conditions as deemed appropriate, to conduct 
an activity otherwise prohibited by Sec. 922.111, if the Director finds 
that the activity will further research related to Sanctuary resources; 
further the educational or historical value of the Sanctuary; further 
salvage or recovery operations in or near the Sanctuary in connection 
with a recent air or marine casualty; or assist in the management of the 
Sanctuary. In deciding whether to issue a permit, the Director may 
consider such factors as the professional qualifications and financial 
ability of the applicant as related to the proposed activity; the 
appropriateness of the methods and procedures proposed by the applicant 
for the conduct of the activity; the extent to which the conduct of the 
activity may diminish or enhance the values for which the Sanctuary was 
designated; and the end value of the applicant's overall activity.

   Appendix A to Subpart K of Part 922--Cordell Bank National Marine 
                     Sanctuary Boundary Coordinates

------------------------------------------------------------------------
          Point No.                 Latitude              Longitude
------------------------------------------------------------------------
1...........................  38[deg]15[min]51.72[  123[deg]10[min]52.44
                               sec]                  [sec]
2...........................  38[deg]07[min]55.88[  123[deg]38[min]33.53
                               sec]                  [sec]
3...........................  38[deg]06[min]45.21[  123[deg]38[min]00.40
                               sec]                  [sec]
4...........................  38[deg]04[min]58.41[  123[deg]37[min]14.34
                               sec]                  [sec]
5...........................  38[deg]04[min]28.22[  123[deg]37[min]17.83
                               sec]                  [sec]
6...........................  38[deg]03[min]42.75[  123[deg]36[min]55.66
                               sec]                  [sec]
7...........................  38[deg]03[min]11.10[  123[deg]36[min]19.78
                               sec]                  [sec]
8...........................  38[deg]02[min]46.12[  123[deg]36[min]21.98
                               sec]                  [sec]
9...........................  38[deg]02[min]02.74[  123[deg]35[min]56.56
                               sec]                  [sec]
10..........................  38[deg]01[min]27.10[  123[deg]35[min]55.12
                               sec]                  [sec]
11..........................  38[deg]01[min]22.28[  123[deg]36[min]55.13
                               sec]                  [sec]
12..........................  38[deg]01[min]11.54[  123[deg]37[min]28.21
                               sec]                  [sec]
13..........................  38[deg]00[min]49.16[  123[deg]37[min]29.77
                               sec]                  [sec]
14..........................  37[deg]59[min]54.49[  123[deg]36[min]47.90
                               sec]                  [sec]
15..........................  37[deg]59[min]12.39[  123[deg]35[min]59.55
                               sec]                  [sec]
16..........................  37[deg]58[min]39.40[  123[deg]35[min]14.85
                               sec]                  [sec]
17..........................  37[deg]58[min]00.57[  123[deg]34[min]42.93
                               sec]                  [sec]
18..........................  37[deg]57[min]18.99[  123[deg]33[min]43.15
                               sec]                  [sec]
19..........................  37[deg]56[min]56.42[  123[deg]32[min]51.97
                               sec]                  [sec]
20..........................  37[deg]56[min]18.90[  123[deg]32[min]49.24
                               sec]                  [sec]
21..........................  37[deg]55[min]22.37[  123[deg]32[min]36.96
                               sec]                  [sec]
22..........................  37[deg]54[min]26.10[  123[deg]32[min]21.73
                               sec]                  [sec]
23..........................  37[deg]53[min]07.46[  123[deg]31[min]46.81
                               sec]                  [sec]
24..........................  37[deg]52[min]34.93[  123[deg]31[min]18.90
                               sec]                  [sec]
25..........................  37[deg]51[min]42.81[  123[deg]31[min]19.10
                               sec]                  [sec]
26..........................  37[deg]50[min]59.58[  123[deg]31[min]02.96
                               sec]                  [sec]
27..........................  37[deg]49[min]22.64[  123[deg]29[min]34.07
                               sec]                  [sec]
28..........................  37[deg]48[min]49.14[  123[deg]28[min]44.61
                               sec]                  [sec]
29..........................  37[deg]48[min]36.95[  123[deg]28[min]08.29
                               sec]                  [sec]
30..........................  37[deg]48[min]03.37[  123[deg]28[min]23.27
                               sec]                  [sec]
31..........................  37[deg]47[min]41.54[  123[deg]28[min]01.97
                               sec]                  [sec]
32..........................  37[deg]47[min]01.78[  123[deg]27[min]16.78
                               sec]                  [sec]
33..........................  37[deg]46[min]51.92[  123[deg]26[min]48.98
                               sec]                  [sec]
34..........................  37[deg]46[min]13.20[  123[deg]26[min]04.79
                               sec]                  [sec]
35..........................  37[deg]46[min]00.73[  123[deg]25[min]36.99
                               sec]                  [sec]
36..........................  37[deg]50[min]25.31[  123[deg]25[min]26.53
                               sec]                  [sec]
37..........................  37[deg]54[min]32.28[  123[deg]23[min]16.49
                               sec]                  [sec]
38..........................  37[deg]57[min]45.71[  123[deg]19[min]17.72
                               sec]                  [sec]
39..........................  37[deg]59[min]29.27[  123[deg]14[min]12.16
                               sec]                  [sec]
40..........................  37[deg]59[min]43.71[  123[deg]08[min]27.55
                               sec]                  [sec]
41..........................  38[deg]03[min]10.20[  123[deg]07[min]44.35
                               sec]                  [sec]
42..........................  38[deg]04[min]01.64[  123[deg]06[min]58.92
                               sec]                  [sec]
43..........................  38[deg]08[min]33.32[  123[deg]04[min]56.24
                               sec]                  [sec]
44..........................  38[deg]12[min]42.06[  123[deg]07[min]10.21
                               sec]                  [sec]
------------------------------------------------------------------------


[61 FR 51577, Oct. 3, 1996]



         Subpart L_Flower Garden Banks National Marine Sanctuary



Sec. 922.120  Boundary.

    The Flower Garden Banks National Marine Sanctuary (the Sanctuary) 
consists of three separate areas of ocean

[[Page 141]]

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 nmi2. The area designated at 
the West Bank is located approximately 110 nmi southeast of Galveston, 
Texas, and encompasses 22.50 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 42.34 nmi2 
(145.09 square kilometers). The boundary coordinates for each area are 
listed in appendix A to this subpart.

[65 FR 81178, Dec. 22, 2000]



Sec. 922.121  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definition applies to this subpart:
    No-activity zone means the two geographic areas delineated by the 
Department of the Interior in stipulations for OCS lease sale 112 over 
and surrounding the East and West Flower Garden Banks, and the 
geographic area delineated by the Department of the Interior in 
stipulations for OCS lease sale 171 over and surrounding Stetson Bank, 
as areas in which activities associated with exploration for, 
development of, or production of hydrocarbons are prohibited. The 
precise aliquot part 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. The descriptions for the East and West 
Flower Garden Banks no-activity zones are based on the ``\1/4\ \1/4\ \1/
4\'' system formerly used by the Department of the Interior, a method 
that delineates a specific portion of a block rather than the actual 
underlying isobath.

[65 FR 81178, Dec. 22, 2000]



Sec. 922.122  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (c) through (h) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Exploring for, developing, or producing oil, gas or minerals 
except outside of all no-activity zones and provided all drilling 
cuttings and drilling fluids are shunted to the seabed through a 
downpipe that terminates an appropriate distance, but no more than ten 
meters, from the seabed.
    (2)(i) Anchoring any vessel within the Sanctuary.
    (ii) Mooring any vessel within the Sanctuary, except that vessels 
100 feet (30.48 meters) or less in registered length may moor on a 
Sanctuary mooring buoy.
    (3)(i) Discharging or depositing, from within the boundaries of the 
Sanctuary, any material or other matter except:
    (A) Fish, fish parts, chumming materials or bait used in or 
resulting from fishing with conventional hook and line gear in the 
Sanctuary;
    (B) Biodegradable effluents incidental to vessel use and generated 
by marine sanitation devices approved in accordance with section 312 of 
the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1322;
    (C) Water generated by routine vessel operations (e.g., cooling 
water, deck wash down, and graywater as defined by section 312 of the 
Federal Water Pollution Control Act, as amended, 33 U.S.C. 1322) 
excluding oily wastes from bilge pumping;
    (D) Engine exhaust; or
    (E) In areas of the Sanctuary outside the no-activity zones, 
drilling cuttings and drilling fluids necessarily discharged incidental 
to the exploration for, development of, or production of oil or gas in 
those areas and in accordance with the shunting requirements of 
paragraph (a)(1) unless such discharge injures a Sanctuary resource or 
quality.

[[Page 142]]

    (ii) Discharging or depositing, from beyond the boundaries of the 
Sanctuary, any material or other matter, except those listed in 
paragraphs (a)(3)(i) (A) through (D) of this section, that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality.
    (4) Drilling into, dredging or otherwise altering the seabed of the 
Sanctuary (except by anchoring); or constructing, placing or abandoning 
any structure, material or other matter on the seabed of the Sanctuary.
    (5) Injuring or removing, or attempting to injure or remove, any 
coral or other bottom formation, coralline algae or other plant, marine 
invertebrate, brine-seep biota or carbonate rock within the Sanctuary.
    (6) Taking any marine mammal or turtle within the Sanctuary, except 
as permitted by regulations, as amended, promulgated under the Marine 
Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and the 
Endangered Species Act, as amended, 16 U.S.C. 1531 et seq.
    (7) Injuring, catching, harvesting, collecting or feeding, or 
attempting to injure, catch, harvest, collect or feed, any fish within 
the Sanctuary by use of bottom longlines, traps, nets, bottom trawls or 
any other gear, device, equipment or means except by use of conventional 
hook and line gear.
    (8) Possessing within the Sanctuary (regardless of where collected, 
caught, harvested or removed), except for valid law enforcement 
purposes, any carbonate rock, coral or other bottom formation, coralline 
algae or other plant, marine invertebrate, brine-seep biota or fish 
(except for fish caught by use of conventional hook and line gear).
    (9) Possessing or using within the Sanctuary, except possessing 
while passing without interruption through it or for valid law 
enforcement purposes, any fishing gear, device, equipment or means 
except conventional hook and line gear.
    (10) Possessing, except for valid law enforcement purposes, or using 
explosives or releasing electrical charges within the Sanctuary.
    (b) If any valid regulation issued by any Federal authority of 
competent jurisdiction, regardless of when issued, conflicts with a 
Sanctuary regulation, the regulation deemed by the Director as more 
protective of Sanctuary resources and qualities shall govern.
    (c) The prohibitions in paragraphs (a)(2) (i), (iii), and (iv), (4) 
and (10) of this section do not apply to necessary activities conducted 
in areas of the Sanctuary outside the no-activity zones and incidental 
to exploration for, development of, or production of oil or gas in those 
areas.
    (d) The prohibitions in paragraphs (a) (2) through (10) of this 
section do not apply to activities necessary to respond to emergencies 
threatening life, property, or the environment.
    (e)(1) The prohibitions in paragraphs (a) (2) through (10) of this 
section do not apply to activities being carried out by the Department 
of Defense as of the effective date of Sanctuary designation (January 
18, 1994). Such activities shall be carried out in a manner that 
minimizes any adverse impact on Sanctuary resources and qualities. The 
prohibitions in paragraphs (a) (2) through (10) of this section do not 
apply to any new activities carried out by the Department of Defense 
that do not have the potential for any significant adverse impacts on 
Sanctuary resources or qualities. Such activities shall be carried out 
in a manner that minimizes any adverse impact on Sanctuary resources and 
qualities. New activities with the potential for significant adverse 
impacts on Sanctuary resources or qualities may be exempted from the 
prohibitions in paragraphs (a) (2) through (10) of this section by the 
Director after consultation between the Director and the Department of 
Defense. If it is determined that an activity may be carried out, such 
activity shall be carried out in a manner that minimizes any adverse 
impact on Sanctuary resources and qualities.
    (2) In the event of threatened or actual destruction of, loss of, or 
injury to a Sanctuary resource or quality resulting from an untoward 
incident, including but not limited to spills and groundings, caused by 
a component of the Department of Defense, the cognizant component shall 
promptly coordinate with the Director for the purpose of taking 
appropriate actions to respond to and mitigate the harm and,

[[Page 143]]

if possible, restore or replace the Sanctuary resource or quality.
    (f) The prohibitions in paragraphs (a) (2) through (10) of this 
section do not apply to any activity executed in accordance with the 
scope, purpose, terms, and conditions of a National Marine Sanctuary 
permit issued pursuant to Sec. 922.48 and Sec. 922.123 or a Special 
Use permit issued pursuant to section 310 of the Act.
    (g) The prohibitions in paragraphs (a) (2) through (10) of this 
section do not apply to any activity authorized by any lease, permit, 
license, approval or other authorization issued after January 18, 1994, 
provided that the applicant complies with Sec. 922.49, 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 necessary to protect 
Sanctuary resources and qualities.
    (h) Notwithstanding paragraphs (f) and (g) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
Sec. 922.48 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.

[60 FR 66877, Dec. 27, 1995, as amended at 66 FR 58371, Nov. 21, 2001]



Sec. 922.123  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.122(a) 
(2) through (10) if conducted in accordance with the scope, purpose, 
terms, and conditions of a permit issued under this section and Sec. 
922.48.
    (b) Applications for such permits should be addressed to the 
Director, Office of Ocean and Coastal Resource Management; ATTN: 
Manager, Flower Garden Banks National Marine Sanctuary, 216 West 26th 
Street, Suite 104, Bryan, TX 77803.
    (c) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec. 922.122(a) (2) through (10), if 
the Director finds that the activity will: further research related to 
Sanctuary resources; further the educational, natural or historical 
resource value of the Sanctuary; further salvage or recovery operations 
in or near the Sanctuary in connection with a recent air or marine 
casualty; or assist in managing the Sanctuary. In deciding whether to 
issue a permit, the Director shall consider such factors as: the 
professional qualifications and financial ability of the applicant as 
related to the proposed activity; the duration of the activity and the 
duration of its effects; the appropriateness of the methods and 
procedures proposed by the applicant for the conduct of the activity; 
the extent to which the conduct of the activity may diminish or enhance 
Sanctuary resources and qualities; the cumulative effects of the 
activity; and the end value of the activity. In addition, the Director 
may consider such other factors as he or she deems appropriate.
    (d) It shall be a condition of any permit issued that the permit or 
a copy thereof be displayed on board all vessels or aircraft used in the 
conduct of the activity.
    (e) The Director may, inter alia, make it a condition of any permit 
issued that any information obtained under the permit be made available 
to the public.
    (f) The Director may, inter alia, make it a condition of any permit 
issued that a NOAA official be allowed to observe any activity conducted 
under the permit and/or that the permit holder submit one or more 
reports on the status, progress, or results of any activity authorized 
by the permit.

[60 FR 66877, Dec. 27, 1995, as amended at 65 FR 81178, Dec. 22, 2000]

Appendix A to Subpart L of Part 922--Flower Garden Banks National Marine 
                     Sanctuary Boundary Coordinates

    This appendix contains a second set of boundary coordinates using 
the geographic positions of the North American Datum of 1983 (NAD 83). 
FGBNMS coordinates are now

[[Page 144]]

provided in both North American Datum of 1927 (NAD 27) and NAD 83.

----------------------------------------------------------------------------------------------------------------
                Point                             Latitude (N)                          Longitude (W)
----------------------------------------------------------------------------------------------------------------
                                        East Flower Garden Bank: (NAD 27)
----------------------------------------------------------------------------------------------------------------
E-1.................................  27 deg. 52[min] 53.82718[sec]         93 deg. 37[min] 41.30310[sec]
E-2.................................  27 deg. 53[min] 34.83434[sec]         93 deg. 38[min] 23.35445[sec]
E-3.................................  27 deg. 55[min] 13.64286[sec]         93 deg. 38[min] 40.34368[sec]
E-4.................................  27 deg. 57[min] 30.71927[sec]         93 deg. 38[min] 33.26982[sec]
E-5.................................  27 deg. 58[min] 27.66896[sec]         93 deg. 37[min] 46.12447[sec]
E-6.................................  27 deg. 59[min] 01.41554[sec]         93 deg. 35[min] 31.74954[sec]
E-7.................................  27 deg. 59[min] 00.50888[sec]         93 deg. 35[min] 09.69198[sec]
E-8.................................  27 deg. 55[min] 22.38258[sec]         93 deg. 34[min] 14.79162[sec]
E-9.................................  27 deg. 54[min] 04.05605[sec]         93 deg. 34[min] 18.88720[sec]
E-10................................  27 deg. 53[min] 26.70972[sec]         93 deg. 35[min] 05.00978[sec]
E-11................................  27 deg. 52[min] 52.06998[sec]         93 deg. 36[min] 57.23078[sec]
-------------------------------------
                                        West Flower Garden Bank: (NAD 27)
----------------------------------------------------------------------------------------------------------------
W-1.................................  27 deg. 49[min] 10.16324[sec]         93 deg. 50[min] 45.27154[sec]
W-2.................................  27 deg. 50[min] 12.35976[sec]         93 deg. 52[min] 10.47158[sec]
W-3.................................  27 deg. 51[min] 12.82777[sec]         93 deg. 52[min] 51.63488[sec]
W-4.................................  27 deg. 51[min] 32.41145[sec]         93 deg. 52[min] 50.66983[sec]
W-5.................................  27 deg. 52[min] 49.88791[sec]         93 deg. 52[min] 24.77053[sec]
W-6.................................  27 deg. 55[min] 00.93450[sec]         93 deg. 49[min] 43.68090[sec]
W-7.................................  27 deg. 54[min] 58.33040[sec]         93 deg. 48[min] 37.54501[sec]
W-8.................................  27 deg. 54[min] 35.26067[sec]         93 deg. 47[min] 10.34866[sec]
W-9.................................  27 deg. 54[min] 14.80334[sec]         93 deg. 46[min] 49.28963[sec]
W-10................................  27 deg. 53[min] 35.63704[sec]         93 deg. 46[min] 51.25825[sec]
W-11................................  27 deg. 52[min] 57.34474[sec]         93 deg. 47[min] 15.26428[sec]
W-12................................  27 deg. 50[min] 40.26361[sec]         93 deg. 47[min] 22.14179[sec]
W-13................................  27 deg. 49[min] 10.89894[sec]         93 deg. 48[min] 42.72307[sec]
----------------------------------------------------------------------------
                                             Stetson Bank: (NAD 27)
----------------------------------------------------------------------------------------------------------------
S-1.................................  28 deg. 09[min] 30.06738[sec]         94 deg. 18[min] 31.34461[sec]
S-2.................................  28 deg. 10[min] 09.24374[sec]         94 deg. 18[min] 29.57042[sec]
S-3.................................  28 deg. 10[min] 06.88036[sec]         94 deg. 17[min] 23.26201[sec]
S-4.................................  28 deg. 09[min] 27.70425[sec]         94 deg. 17[min] 25.04315[sec]
-------------------------------------
                                        East Flower Garden Bank: (NAD 83)
----------------------------------------------------------------------------------------------------------------
E-1.................................  27 deg. 52[min] 54.84288[sec]         93 deg. 37[min] 41.84187[sec]
E-2.................................  27 deg. 53[min] 35.80428[sec]         93 deg. 38[min] 23.89520[sec]
E-3.................................  27 deg. 55[min] 14.61048[sec]         93 deg. 38[min] 40.88638[sec]
E-4.................................  27 deg. 57[min] 31.68349[sec]         93 deg. 38[min] 33.81421[sec]
E-5.................................  27 deg. 58[min] 28.63153[sec]         93 deg. 37[min] 46.66809[sec]
E-6.................................  27 deg. 59[min] 02.37658[sec]         93 deg. 35[min] 32.28918[sec]
E-7.................................  27 deg. 59[min] 01.46983[sec]         93 deg. 35[min] 10.23088[sec]
E-8.................................  27 deg. 55[min] 23.34849[sec]         93 deg. 34[min] 15.32560[sec]
E-9.................................  27 deg. 54[min] 05.02387[sec]         93 deg. 34[min] 19.42020[sec]
E-10................................  27 deg. 53[min] 27.67871[sec]         93 deg. 35[min] 05.54379[sec]
E-11................................  27 deg. 52[min] 53.04047[sec]         93 deg. 36[min] 57.76805[sec]
-------------------------------------
                                        West Flower Garden Bank: (NAD 83)
----------------------------------------------------------------------------------------------------------------
W-1.................................  27 deg. 49[min] 11.14452[sec]         93 deg. 50[min] 45.83401[sec]
W-2.................................  27 deg. 50[min] 13.34001[sec]         93 deg. 52[min] 11.03791[sec]
W-3.................................  27 deg. 51[min] 13.80672[sec]         93 deg. 52[min] 52.20349[sec]
W-4.................................  27 deg. 51[min] 33.38988[sec]         93 deg. 52[min] 51.23867[sec]
W-5.................................  27 deg. 52[min] 50.86415[sec]         93 deg. 52[min] 25.33954[sec]
W-6.................................  27 deg. 55[min] 01.90633[sec]         93 deg. 49[min] 44.24605[sec]
W-7.................................  27 deg. 54[min] 59.30189[sec]         93 deg. 48[min] 38.10780[sec]
W-8.................................  27 deg. 54[min] 36.23221[sec]         93 deg. 47[min] 10.90806[sec]
W-9.................................  27 deg. 54[min] 15.77527[sec]         93 deg. 46[min] 49.84801[sec]
W-10................................  27 deg. 53[min] 36.60997[sec]         93 deg. 46[min] 51.81616[sec]
W-11................................  27 deg. 52[min] 58.31880[sec]         93 deg. 47[min] 15.82251[sec]
W-12................................  27 deg. 50[min] 41.24120[sec]         93 deg. 47[min] 22.69837[sec]
W-13................................  27 deg. 49[min] 11.87936[sec]         93 deg. 48[min] 43.28125[sec]
-------------------------------------
                                             Stetson Bank: (NAD 83)
----------------------------------------------------------------------------------------------------------------
S-1.................................  28 deg. 09[min] 31.02671[sec]         94 deg. 18[min] 31.98164[sec]
S-2.................................  28 deg. 10[min] 10.20196[sec]         94 deg. 18[min] 30.20776[sec]
S-3.................................  28 deg. 10[min] 07.83821[sec]         94 deg. 17[min] 23.89688[sec]

[[Page 145]]

 
S-4.................................  28 deg. 09[min] 28.66320[sec]         94 deg. 17[min] 25.67770[sec]
----------------------------------------------------------------------------------------------------------------


[65 FR 81178, Dec. 22, 2000]

 Appendix B to Subpart L of Part 922--Coordinates for the Department of 
   the Interior Topographic Lease Stipulations for OCS Lease Sale 171

Aliquot Part Description of Biological Stipulation Area East Garden Bank

  Block A-366 Texas Leasing Map No. 7C (High Island Area East Addition 
                            South Extension)

SE\1/4\, SW\1/4\; S\1/2\, NE\1/4\, SE\1/4\; SE\1/4\, NW\1/4\, SE\1/4\; 
          S\1/2\, SE\1/4\.

                               Block A-376

W\1/2\, NW\1/4\, SW\1/4\; SW\1/4\, SW\1/4\, SW\1/4\.

                               Block A-374

W\1/2\, NW\1/4\, NW\1/4\; W\1/2\, SW\1/4\, NW\1/4\; SE\1/4\, SW\1/4\, 
          NW\1/4\; SW\1/4\,
NE\1/4\, SW\1/4\, W\1/2\, SW\1/4\; W\1/2\, SE\1/4\, SW\1/4\; SE\1/4\, 
          SE\1/4\, SW\1/4\.

                               Block A-375

E\1/2\; E\1/2\, NW\1/4\; E\1/2\, NW\1/4\, NW\1/4\; SW\1/4\, NW\1/4\, 
          NW\1/4\; E\1/2\,
SW\1/4\, NW\1/4\; NW\1/4\, SW\1/4\, NW\1/4\; SW\1/4\.

                               Block A-388

NE\1/4\; E\1/2\, NW\1/4\; E\1/2\, NW\1/4\, NW\1/4\; NE\1/4\, SW\1/4\, 
          NW\1/4\; E\1/2\,
NE\1/4\, SW\1/4\; NW\1/4\, NE\1/4\, SW\1/4\; NE\1/4\, NW\1/4\, SW\1/4\; 
          NE\1/4\,
SE\1/4\, SW\1/4\, NE\1/4\; NE\1/4\, NE\1/4\, SE\1/4\; W\1/2\, NE\1/4\, 
          SE\1/4\; NW\1/4\,

                               Block A-389

NE\1/4\, NW\1/4\; NW\1/4\, NW\1/4\; SW\1/4\, NW\1/4\; NE\1/4\, SE\1/4\, 
          NW\1/4\; W\1/2\,
SE\1/4\, NW\1/4\; N\1/2\, NW\1/4\, SW\1/4\.

Aliquot Part Description of Biological Stipulation Area West Garden Bank

  Block A-383 Texas Leasing Map No. 7C (High Island Area East Addition 
                            South Extension)

E\1/2\, SE\1/4\, SE\1/4\; SW\1/4\, SE\1/4\, SE\1/4\.

                               Block A-384

W\1/2\, SW\1/4\, NE\1/4\; SE\1/4\, SW\1/4\, NE\1/4\; S\1/2\, SE\1/4\, 
          NE\1/4\;
SE\1/4\, NW\1/4\; E\1/2\, SW\1/4\; E\1/2\, NW\1/4\, SW\1/4\, SW\1/4\, 
          NW\1/4\,
SW\1/4\; SW\1/4\, SW\1/4\; SE\1/4\.

                               Block A-385

SW\1/4\, SW\1/4\, NW\1/4\; NW\1/4\, SW\1/4\; NW\1/4\, SW\1/4\, SW\1/4\.

                               Block A-397

W\1/2\, W\1/2\, NW\1/4\; W\1/2\, NW\1/4\, SW\1/4\; NW\1/4\; SW\1/4\, 
          SW\1/4\.

                               Block A-398

    Entire block.

                               Block A-399

E\1/2\, SE\1/4\, NE\1/4\, NW\1/4\; E\1/2\, SE\1/4\, NW\1/4\; E\1/2\, 
          NE\1/4\, SW\1/4\;
SW\1/4\, NE\1/4\, SW\1/4\; NE\1/4\, SE\1/4\, SW\1/4\.

                               Block A-401

NE\1/4\, NE\1/4\; N\1/2\, NW\1/4\, NE\1/4\; NE\1/4\, SE\1/4\, NE\1/4\.

      Block 134 Official Protraction Diagram NG15-02 (Garden Banks)

    That portion of the block north of a line connecting a point on the 
east boundary of Block 134, X=1,378,080.00[foot], Y=10,096,183.00[foot], 
with a point on the west boundary of Block 134, X=1,367,079,385[foot], 
Y=10,096,183.000[foot], defined under the Universal Transverse Mercator 
grid system.

      Block 135 Official Protraction Diagram NG15-02 (Garden Banks)

    That portion of the block northwest of a line connecting the 
southeast corner of Texas Leasing Map No. 7C, Block A-398, 
X=1,383,293.840[foot], Y=10,103,281.930[foot], with a point on the west 
boundary of Official Protraction Diagram NG15-02, Block 135, 
X=1,378,080.000[foot], Y=10,096,183.000[foot], defined under the 
Universal Transverse Mercator grid system.

[65 FR 81180, Dec. 22, 2000]



            Subpart M_Monterey Bay National Marine Sanctuary



Sec. 922.130  Boundary.

    (a) The Monterey Bay National Marine Sanctuary (Sanctuary) consists 
of an area of approximately 4,024 square nautical miles of coastal and 
ocean waters, and the submerged lands thereunder, in and surrounding 
Monterey Bay, off the central coast of California.

[[Page 146]]

    (b) The northern terminus of the boundary is located along the 
southern boundary of the Gulf of the Farallones National Marine 
Sanctuary (GFNMS) and runs westward to approximately 123[deg]07[min]W. 
The boundary then extends south in an arc which generally follows the 
500 fathom isobath. At approximately 37[deg]03[min]N, the boundary arcs 
south to 122[deg]25[min]W, 36[deg]10[min]N, due west of Partington 
Point. The boundary again follows the 500 fathom isobath south to 
121[deg]41[min]W, 35[deg]33[min]N, due west of Cambria. The boundary 
then extends shoreward towards the mean high-water line. The landward 
boundary is defined by the mean high-water line between the GFNMS and 
Cambria, exclusive of a small area off the north coast of San Mateo 
County and the City and County of San Francisco between Point Bonita and 
Point San Pedro. Pillar Point, Santa Cruz, Moss Landing and Monterey 
harbors are excluded from the Sanctuary boundary shoreward from their 
respective International Collision at Sea regulation (Colreg.) 
demarcation lines except for Moss Landing Harbor, where all of Elkhorn 
Slough east of the Highway One bridge is included within the Sanctuary 
boundary. The boundary coordinates are listed in appendix A to this 
subpart.



Sec. 922.131  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Attract or attracting means the conduct of any activity that lures 
or may lure white sharks by using food, bait, chum, dyes, acoustics or 
any other means, except the mere presence of human beings (e.g., 
swimmers, divers, boaters, kayakers, surfers).
    Federal Project means any water resources development project 
conducted by the U.S. Army Corps of Engineers or operating under a 
permit or other authorization issued by the Corps of Engineers and 
authorized by Federal law.
    Hand tool means a hand-held implement, utilized for the collection 
of jade pursuant to Sec. 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.
    Motorized personal water craft means any motorized vessel that is 
less than fifteen feet in length as manufactured, is capable of 
exceeding a speed of fifteen knots, and has the capacity to carry not 
more than the operator and one other person while in operation. The term 
includes, but is not limited to, jet skis, wet bikes, surf jets, 
miniature speed boats, air boats, and hovercraft.

[60 FR 66877, Dec. 27, 1995, as amended at 61 FR 66917, Dec. 19, 1996; 
63 FR 15087, Mar. 30, 1998]



Sec. 922.132  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (f) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Exploring for, developing or producing oil, gas or minerals 
within the Sanctuary except: jade may be collected (meaning removed) 
from the area bounded by the 35[deg]55[min]20[sec] N latitude parallel 
(coastal reference point: beach access stairway at south Sand Dollar 
Beach), the 35[deg]53[min]20[sec] N latitude parallel (coastal reference 
point: westernmost tip of Cape San Martin), and from the mean high tide 
line seaward to the 90-foot isobath (depth line) (the ``authorized 
area'') provided that:
    (i) Only jade already loose from the seabed may be collected;
    (ii) No tool may be used to collect jade except:
    (A) A hand tool (as defined in Sec. 922.131) to maneuver or lift 
the jade or scratch the surface of a stone as necessary to determine if 
it is jade;
    (B) A lift bag or multiple lift bags with a combined lift capacity 
of no more than two hundred pounds; or
    (C) A vessel (except for motorized personal watercraft) (see 
paragraph (a)(7) of this section) to provide access to the authorized 
area;
    (iii) Each person may collect only what that person individually 
carries; and
    (iv) For any loose piece of jade that cannot be collected under 
paragraphs (a)(1) (ii) and (iii) of this section, any

[[Page 147]]

person may apply for a permit to collect such a loose piece by following 
the procedures in Sec. 922.133.
    (2)(i) Discharging or depositing, from within the boundary of the 
Sanctuary, any material or other matter except:
    (A) Fish, fish parts, chumming materials or bait used in or 
resulting from traditional fishing operations in the Sanctuary;
    (B) Biodegradable effluent incidental to vessel use and generated by 
marine sanitation devices approved in accordance with section 312 of the 
Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 
et seq.;
    (C) Water generated by routine vessel operations (e.g., cooling 
water, deck wash down and graywater as defined by section 312 of the 
FWPCA) excluding oily wastes from bilge pumping;
    (D) Engine exhaust; or
    (E) Dredged material deposited at disposal sites authorized by the 
U.S. Environmental Protection Agency (EPA) (in consultation with the 
U.S. Army Corps of Engineers (COE)) prior to the effective date of 
Sanctuary designation (January 1, 1993), provided that the activity is 
pursuant to, and complies with the terms and conditions of, a valid 
Federal permit or approval existing on January 1, 1993.
    (ii) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality, except those 
listed in paragraphs (a)(2)(i) (A) through (D) of this section and 
dredged material deposited at the authorized disposal sites described in 
appendix B to this subpart, provided that the dredged material disposal 
is pursuant to, and complies with the terms and conditions of, a valid 
Federal permit or approval.
    (3) Moving, removing or injuring, or attempting to move, remove or 
injure, a Sanctuary historical resource. This prohibition does not apply 
to moving, removing or injury resulting incidentally from kelp 
harvesting, aquaculture or traditional fishing operations.
    (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 seabed of the Sanctuary except as an 
incidental result of:
    (i) Anchoring vessels;
    (ii) Aquaculture, kelp harvesting or traditional fishing operations;
    (iii) Installation of navigation aids;
    (iv) Harbor maintenance in the areas necessarily associated with 
Federal Projects in existence on January 1, 1993, including dredging of 
entrance channels and repair, replacement or rehabilitation of 
breakwaters and jetties;
    (v) Construction, repair, replacement or rehabilitation of docks or 
piers; or
    (vi) Collection of jade pursuant to paragraph (a)(1) of this 
section, provided that there is no constructing, placing, or abandoning 
any structure, material, or other matter on the seabed of the Sanctuary.
    (5) Taking any marine mammal, sea turtle or seabird in or above the 
Sanctuary, except as permitted by regulations, as amended, promulgated 
under the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 
1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 
1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 
U.S.C. 703 et seq.
    (6) Flying motorized aircraft, except as necessary for valid law 
enforcement purposes, at less than 1000 feet above any of the four zones 
within the Sanctuary described in appendix C to this subpart.
    (7) Operating motorized personal water craft within the Sanctuary 
except within the four designated zones and access routes within the 
Sanctuary described in appendix D to this subpart.
    (8) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), except as necessary for valid law enforcement 
purposes, any historical resource, or any marine mammal, sea turtle or 
seabird taken in violation of regulations, as amended, promulgated under 
the MMPA, ESA or MBTA.
    (9) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulation or permit 
issued under the Act.

[[Page 148]]

    (10) Attracting any white shark in that part of the Sanctuary out to 
the seaward limit of State waters. For the purposes of this prohibition, 
the seaward limit of State waters is a line three nautical miles distant 
from the coastline of the State, where the coastline is the line of 
ordinary low water along the portion of the coast in direct contact with 
the open sea. The coastline for Monterey Bay, which is inland waters, is 
the straight line marking the seaward limit of the Bay, determined by 
connecting the following two points: 36[deg]57[min]6[sec] N, 
122[deg]01[min]45[sec] W and 36[deg]38[min]16[sec] N, 
121[deg]56[min]3[sec] W.
    (b) The prohibitions in paragraphs (a)(2) through (9) of this 
section do not apply to activities necessary to respond to emergencies 
threatening life, property or the environment.
    (c)(1) All Department of Defense activities shall be carried out in 
a manner that avoids to the maximum extent practicable any adverse 
impacts on Sanctuary resources and qualities. The prohibitions in 
paragraphs (a) (2) through (9) of this section do not apply to existing 
military activities carried out by the Department of Defense, as 
specifically identified in the Final environmental Impact Statement and 
Management Plan for the Proposed Monterey Bay National Marine Sanctuary 
(NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey Bay 
National Marine Sanctuary, 299 Foam Street, Suite D, Monterey, CA 
93940). New activities may be exempted from the prohibitions in 
paragraphs (a) (2) through (9) of this section by the Director after 
consultation between the Director and the Department of Defense.
    (2) In the event of threatened or actual destruction of, loss of, or 
injury to a Sanctuary resource or quality resulting from an untoward 
incident, including but not limited to spills and groundings, caused by 
the Department of Defense, the cognizant component shall promptly 
coordinate with the Director for the purpose of taking appropriate 
actions to respond to and mitigate the harm and, if possible, restore or 
replace the Sanctuary resource or quality.
    (d) The prohibitions in paragraph (a)(1) of this section as it 
pertains to jade collection in the Sanctuary, paragraphs (a) (2) and (8) 
of this section, and paragraph (a)(10) of this section do not apply to 
any activity executed in accordance with the scope, purpose, terms and 
conditions of a National Marine Sanctuary permit issued pursuant to 
Sec. Sec. 922.48 and 922.133 or a Special Use permit issued pursuant to 
section 310 of the Act.
    (e) The prohibitions in paragraphs (a) (2) through (8) of this 
section do not apply to any activity authorized by any lease, permit, 
license, approval or other authorization issued after January 1, 1993 
and issued by any Federal, State or local authority of competent 
jurisdiction, provided that the applicant complies with Sec. 922.49, 
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 necessary to 
protect Sanctuary resources and qualities. Amendments, renewals and 
extensions of authorizations in existence on the effective date of 
designation constitute authorizations issued after the effective date.
    (f) Notwithstanding paragraphs (d) and (e) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
Sec. Sec. 922.48 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 Sec. 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) prior to January 1, 1993. Any purported 
authorizations issued by other authorities within the Sanctuary shall be 
invalid.

[60 FR 66877, Dec. 27, 1995, as amended at 61 FR 66917, Dec. 19, 1996; 
62 FR 35338, July 1, 1997; 63 FR 15087, Mar. 30, 1998]

[[Page 149]]



Sec. 922.133  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 
922.132(a)(1) as it pertains to jade collection in the Sanctuary, Sec. 
922.132(a) (2) through (8), and Sec. 922.132(a) (10), if conducted in 
accordance with the scope, purpose, terms and conditions of a permit 
issued under this section and 922.48.
    (b) Applications for such permits should be addressed to the 
Director, Office of Ocean and Coastal Resource Management; ATTN: 
Manager, Monterey Bay National Marine Sanctuary, 299 Foam Street, Suite 
D, Monterey, CA 93940.
    (c) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec. 922.132(a)(1) as it pertains to 
jade collection in the Sanctuary, Sec. 922.132(a) (2) through (8), and 
Sec. 922.132(a)(10) if the Director finds the activity will have only 
negligible short-term adverse effects on Sanctuary resources and 
qualities and will: further research related to Sanctuary resources and 
qualities; further the educational, natural or historical resource value 
of the Sanctuary; further salvage or recovery operations in or near the 
Sanctuary in connection with a recent air or marine casualty; allow the 
removal, without the use of pneumatic, mechanical, electrical, hydraulic 
or explosive tools, of loose jade from the Jade Cove area under Sec. 
922.132(a)(1)(iv); assist in managing the Sanctuary; or further salvage 
or recovery operations in connection with an abandoned shipwreck in the 
Sanctuary title to which is held by the State of California. In deciding 
whether to issue a permit, the Director shall consider such factors as: 
the professional qualifications and financial ability of the applicant 
as related to the proposed activity; the duration of the activity and 
the duration of its effects; the appropriateness of the methods and 
procedures proposed by the applicant for the conduct of the activity; 
the extend to which the conduct of the activity may diminish or enhance 
Sanctuary resources and qualities; the cumulative effects of the 
activity; and the end value of the activity. For jade collection, 
preference will be given for applications proposing to collect loose 
pieces of jade for research or educational purposes. In addition, the 
Director may consider such other factors as he or she deems appropriate.
    (d) It shall be a condition of any permit issued that the permit or 
a copy thereof be displayed on board all vessels or aircraft used in the 
conduct of the activity.
    (e) The Director may, inter alia, make it a condition of any permit 
issued that any data or information obtained under the permit be made 
available to the public.
    (f) The Director may, inter alia, make it a condition of any permit 
issued that a NOAA official be allowed to observe any activity conducted 
under the permit and/or that the permit holder submit one or more 
reports on the status, progress or results of any activity authorized by 
the permit.

[60 FR 66877, Dec. 27, 1995, as amended at 63 FR 15088, Mar. 30, 1998]



Sec. 922.134  Notification and review.

    (a) [Reserved]
    (b)(1) NOAA has entered into a Memorandum of Agreement (MOA) with 
the State of California, EPA and the Association of Monterey Bay Area 
Governments regarding the Sanctuary regulations relating to water 
quality within State waters within the Sanctuary. With regard to 
permits, the MOA encompasses:
    (i) National Pollutant Discharge Elimination System (NPDES) permits 
issued by the State of California under Sec. 13377 of the California 
Water Code; and
    (ii) Waste Discharge Requirements issued by the State of California 
under Sec. 13263 of the California Water Code.
    (2) The MOA specifies how the process of Sec. 922.49 will be 
administered within State waters within the Sanctuary in coordination 
with the State permit program.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 62694, Nov. 25, 1997]

[[Page 150]]

   Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
                     Sanctuary Boundary Coordinates

            [Appendix based on North American datum of 1983.]
------------------------------------------------------------------------
               Point                     Latitude          Longitude
------------------------------------------------------------------------
1.................................  37[deg]52[min]56.  122[deg]37[min]39
                                           09055[sec]        .12564[sec]
2.................................  37[deg]39[min]59.    122[deg]45[min]
                                           06176[sec]       3.79307[sec]
3.................................  37[deg]36[min]58.    122[deg]46[min]
                                           39164[sec]       9.73871[sec]
4.................................  37[deg]34[min]17.  122[deg]48[min]14
                                           30224[sec]        .38141[sec]
5.................................  37[deg]31[min]47.  122[deg]51[min]35
                                           55649[sec]        .56769[sec]
6.................................  37[deg]30[min]34.  122[deg]54[min]22
                                           11030[sec]        .12170[sec]
7.................................  37[deg]29[min]39.  123[deg]00[min]27
                                           05866[sec]        .70792[sec]
8.................................  37[deg]30[min]29.  123[deg]05[min]46
                                           47603[sec]        .22767[sec]
9.................................  37[deg]31[min]17.  123[deg]07[min]47
                                           66945[sec]        .63363[sec]
10................................  37[deg]27[min]10.  123[deg]08[min]24
                                           93594[sec]        .32210[sec]
11................................  37[deg]20[min]35.  123[deg]07[min]54
                                           37491[sec]        .12763[sec]
12................................  37[deg]13[min]50.  123[deg]06[min]15
                                           21805[sec]        .50600[sec]
13................................  37[deg]07[min]48.  123[deg]01[min]43
                                           76810[sec]        .10994[sec]
14................................  37[deg]03[min]46.  122[deg]54[min]45
                                           60999[sec]        .39513[sec]
15................................  37[deg]02[min]06.  122[deg]46[min]35
                                           30955[sec]        .02125[sec]
16................................  36[deg]55[min]17.  122[deg]48[min]21
                                           56782[sec]        .41121[sec]
17................................  36[deg]48[min]22.  122[deg]48[min]56
                                           74244[sec]        .29007[sec]
18................................  36[deg]41[min]30.  122[deg]48[min]19
                                           91516[sec]        .40739[sec]
19................................  36[deg]34[min]45.  122[deg]46[min]26
                                           76070[sec]        .96772[sec]
20................................  36[deg]28[min]24.  122[deg]43[min]32
                                           18076[sec]        .43527[sec]
21................................  36[deg]22[min]20.  122[deg]39[min]28
                                           70312[sec]        .42026[sec]
22................................  36[deg]16[min]43.  122[deg]34[min]26
                                           93588[sec]        .77255[sec]
23................................  36[deg]11[min]44.  122[deg]28[min]37
                                           53838[sec]        .16141[sec]
24................................  36[deg]07[min]26.  122[deg]21[min]54
                                           88988[sec]        .97541[sec]
25................................  36[deg]04[min]07.  122[deg]14[min]39
                                           08898[sec]        .75924[sec]
26................................  36[deg]01[min]28.  122[deg]07[min]00
                                           22233[sec]        .19068[sec]
27................................  35[deg]59[min]45.  121[deg]58[min]56
                                           46381[sec]        .36189[sec]
28................................  35[deg]58[min]59.  121[deg]50[min]26
                                           12170[sec]        .47931[sec]
29................................  35[deg]58[min]53.  121[deg]45[min]22
                                           63866[sec]        .82363[sec]
30................................  35[deg]55[min]45.  121[deg]42[min]40
                                           60623[sec]        .28540[sec]
31................................  35[deg]50[min]15.  121[deg]43[min]09
                                           84256[sec]        .20193[sec]
32................................  35[deg]43[min]14.  121[deg]42[min]43
                                           26690[sec]        .79121[sec]
33................................  35[deg]35[min]41.  121[deg]41[min]25
                                           88635[sec]        .07414[sec]
34................................  35[deg]33[min]11.  121[deg]37[min]49
                                           75999[sec]        .74192[sec]
35................................  35[deg]33[min]17.  121[deg]05[min]52
                                           45869[sec]        .89891[sec]
36................................  37[deg]35[min]39.  122[deg]31[min]14
                                           73180[sec]        .96033[sec]
37................................  37[deg]36[min]49.  122[deg]37[min]00
                                           21739[sec]        .22577[sec]
38................................  37[deg]46[min]00.  122[deg]39[min]00
                                           98983[sec]        .40466[sec]
39................................  37[deg]49[min]05.  122[deg]31[min]46
                                           69080[sec]        .30542[sec]
------------------------------------------------------------------------

  Appendix B to Subpart M of Part 922--Dredged Material Disposal Sites 
         Adjacent to the Monterey Bay National Marine Sanctuary

(Appendix based on North American Datum of 1983.)
    As of January 1, 1993, the U.S. Army Corps of Engineers operates the 
following dredged material disposal site adjacent to the Sanctuary off 
of the Golden Gate:

------------------------------------------------------------------------
               Point                     Latitude          Longitude
------------------------------------------------------------------------
1.................................  37[deg]45.875[min  122[deg]34.140[mi
                                                    ]                 n]
2.................................  37[deg]44.978[min  122[deg]37.369[mi
                                                    ]                 n]
3.................................  37[deg]44.491[min  122[deg]37.159[mi
                                                    ]                 n]
4.................................  37[deg]45.406[min  122[deg]33.889[mi
                                                    ]                 n]
5.................................  37[deg]45.875[min  122[deg]34.140[mi
                                                    ]                 n]
------------------------------------------------------------------------

    In addition, the U.S. Environmental Protection Agency, as of January 
1, 1993, is (in consultation with the U.S. Army Corps of Engineers) in 
the process of establishing a dredged material disposal site outside the 
northern boundary of the Monterey Bay National Marine Sanctuary and 
within one of three study areas described in 57 FR 43310, Sept. 18, 
1992. When that disposal site is authorized, this appendix will be 
updated to incorporate its precise location.

 Appendix C to Subpart M of Part 922--Zones Within the Sanctuary Where 
               Overflights Below 1000 Feet Are Prohibited

    The four zones are:
    (1) From mean high water out to three nautical miles (NM) between a 
line extending from Point Santa Cruz on a southwesterly heading of 
220[deg] and a line extending from 2.0 NM north of Pescadero Point on a 
southwesterly heading of 240[deg];
    (2) From mean high water out to three NM between a line extending 
from the Carmel River mouth on a westerly heading of 270[deg] and a line 
extending due west along latitude 35[deg]33[min]17.5612[sec] off of 
Cambria;
    (3) From mean high water and within a five NM arc drawn from a 
center point at the end of Moss Landing Pier; and
    (4) Over the waters of Elkhorn Slough east of the Highway On bridge 
to Elkhorn Road.

Appendix D to Subpart M of Part 922--Zones and Access Routes Within the 
   Sancturary Where the Operation of Motorized Personal Watercraft Is 
                                 Allowed

    The four zones and access routes are:
    (1) The approximately one [1.0] NM\2\ area off Pillar Point Harbor 
from harbor launch ramps, through harbor entrance to the northern 
boundary of Zone One bounded by (a) 37[deg]29.6[min] N (flashing 5-
second breakwater entrance light and horn located at the seaward end of 
the outer west breakwater), 122[deg]29.1[min] W; (b) 37[deg]28.9[min] N 
(bell buoy), 122[deg]29.0[min] W; (c) 37[deg]28.8[min] N, 
122[deg]28[min] W; and (d) 37[deg]29.6[min] N, 122[deg]28[min] W;
    (2) The approximately five [5.0] NM\2\ area off of Santa Cruz Small 
Craft Harbor from harbor launch ramps, through harbor entrance, and then 
along a 100 yard wide access route southwest along a true bearing of 
approximately 196[deg] (180[deg] magnetic) to the whistle buoy at 
36[deg]56.3[min] N, 122[deg]00.6[min] W. Zone Two is bounded by (a) 
36[deg]55[min] N, 122[deg]02[min] W; (b) 36[deg]55[min] N, 
121[deg]58[min] W; (c) 36[deg]56.5[min] N, 121[deg]58[min] W; and (d) 
36[deg]56.5[min] N, 122[deg]02[min] W;
    (3) The approximately six [6.0] NM\2\ area off of Moss Landing 
Harbor from harbor launch ramps, through harbor entrance, and then along 
a 100 yard wide access route due west to the eastern boundary of Zone 
Three bounded by (a) 36[deg]50[min] N, 121[deg]49.3[min] W; (b) 
36[deg]50[min] N, 121[deg]50.8[min] W; (c) 36[deg]46.7[min] N, 
121[deg]50.8[min] W; (d)

[[Page 151]]

36[deg]46.7[min] N, 121[deg]49[min] W; (e) 36[deg]47.9[min] N (bell 
buoy), 121[deg]48.1[min] W; and (f) 36[deg]48.9[min] N, 
121[deg]48.2[min] W; and
    (4) The approximately five [5.0] NM\2\ area off of Monterey Harbor 
from harbor launch ramps to the seaward end of the U.S. Coast Guard 
Pier, and then along a 100 yard wide access route due north to the 
southern boundary of Zone Four bounded by (a) 36[deg]38.7[min] N, 
121[deg]55.4[min] W; (b) 36[deg]36.9[min] N, 121[deg]52.5[min] W; (c) 
36[deg]38.3[min] N, 121[deg]51.3[min] W; and (d) 36[deg]40[min] N, 
121[deg]54.4[min] W.

[60 FR 66877, Dec. 27, 1995, as amended at 61 FR 14964, Apr. 4, 1996]



           Subpart N_Stellwagen Bank National Marine Sanctuary



Sec. 922.140  Boundary.

    (a) The Stellwagen Bank National Marine Sanctuary (Sanctuary) 
consists of an area of approximately 638 square nautical miles (NM) 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: 
42[deg]45[min]59.83[sec]Nx70[deg]13[min]01.77[sec]W (NE); 
42[deg]05[min]35.51[sec]Nx70[deg]02[min]08.14[sec]W (SE); 
42[deg]07[min]44.89[sec]Wx70[deg]28[min]15.44[sec]W (SW); 
42[deg]32[min]53.52[sec]Nx70[deg]35[min]52.38[sec]W (WNW); and 
42[deg]39[min]04.08[sec]Nx70[deg]30[min]11.29[sec]W (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 42[deg]06[min]54.57[sec]N x 
70[deg]16[min]42.7[sec] W. 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.



Sec. 922.141  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Industrial material means mineral, as defined in Sec. 922.3.
    Traditional fishing means those commercial or recreational fishing 
methods which have been conducted in the past within the Sanctuary.



Sec. 922.142  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (f) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1)(i) Discharging or depositing, from within the boundary of the 
Sanctuary, any material or other matter except:
    (A) Fish, fish parts, chumming materials or bait used in or 
resulting from traditional fishing operations in the Sanctuary;
    (B) Biodegradable effluent incidental to vessel use and generated by 
marine sanitation devices approved in accordance with section 312 of the 
Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 
et seq.;
    (C) Water generated by routine vessel operations (e.g., cooling 
water, deck wash down and graywater as defined by section 312 of the 
FWPCA) excluding oily wastes from bilge pumping; or
    (D) Engine exhaust.
    (ii) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter, except those listed in 
paragraphs (a)(1)(i) (A) through (D) of this section, that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality.
    (2) Exploring for, developing or producing industrial materials 
within the Sanctuary.

[[Page 152]]

    (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 seabed of the Sanctuary, except as an 
incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations; or
    (iii) Installation of navigation aids.
    (4) Moving, removing or injuring, or attempting to move, remove or 
injure, a Sanctuary historical resource. This prohibition does not apply 
to moving, removing or injury resulting incidentally from traditional 
fishing operations.
    (5) Taking any marine reptile, marine mammal or seabird in or above 
the Sanctuary, except as permitted by the Marine Mammal Protection Act, 
as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, 
as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty 
Act, as amended, (MBTA), 16 U.S.C. 703 et seq.
    (6) Lightering in the Sanctuary.
    (7) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), except as necessary for valid law enforcement 
purposes, any historical resource, or any marine mammal, marine reptile 
or seabird taken in violation of the MMPA, ESA or MBTA.
    (8) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulation or permit 
issued under the Act.
    (b) The prohibitions in paragraphs (a) (1), and (3) through (8) of 
this section do not apply to any activity necessary to respond to an 
emergency threatening life, property or the environment.
    (c)(1)(i) All Department of Defense military activities shall be 
carried out in a manner that avoids to the maximum extent practicable 
any adverse impacts on Sanctuary resources and qualities.
    (ii) Department of Defense military activities may be exempted from 
the prohibitions in paragraphs (a) (1) and (3) through (7) of this 
section by the Director after consultation between the Director and the 
Department of Defense.
    (iii) If it is determined that an activity may be carried out, such 
activity shall be carried out in a manner that avoids to the maximum 
extent practicable any advance impact on Sanctuary resources and 
qualities. Civil engineering and other civil works projects conducted by 
the U.S. Army Corps of Engineers are excluded from the scope of this 
paragraph(c).
    (2) In the event of threatened or actual destruction of, loss of, or 
injury to a Sanctuary resource or quality resulting from an untoward 
incident, including but not limited to spills and groundings caused by 
the Department of Defense, the Department of Defense shall promptly 
coordinate with the Director for the purpose of taking appropriate 
actions to respond to and mitigate the harm and, if possible, restore or 
replace the Sanctuary resource or quality.
    (d) The prohibitions in paragraphs (a) (1) and (3) through (7) of 
this section do not apply to any activity executed in accordance with 
the scope, purpose, terms and conditions of a National Marine Sanctuary 
permit issued pursuant to Sec. 922.48 and Sec. 922.143 or a Special 
Use permit issued pursuant to section 310 of the Act.
    (e) The prohibitions in paragraphs (a)(1) and (3) through (7) of 
this section do not apply any activity authorized by any lease, permit, 
license, approval or other authorization issued after the effective date 
of Sanctuary designation (November 4, 1992) and issued by any Federal, 
State or local authority of competent jurisdiction, provided that the 
applicant complies with Sec. 922.49, 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 necessary to protect Sanctuary 
resources and qualities. Amendments, renewals and extensions of 
authorizations in existence on the effective date of designation 
constitute authorizations issued after the effective date.
    (f) Notwithstanding paragraphs (d) and (e) of this section, in no 
event may the Director issue a permit under Sec. 922.48 and Sec. 
922.143, or under section

[[Page 153]]

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.



Sec. 922.143  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.142 (a) 
(1) and (3) through (7) if conducted in accordance with scope, purpose, 
manner, terms and conditions of a permit issued under this section and 
Sec. 922.48.
    (b) Applications for such permits should be addressed to the 
Director, Office of Ocean and Coastal Resource Management; ATTN: 
Manager, Stellwagen Bank National Marine Sanctuary, 14 Union Street, 
Plymouth, MA 02360.
    (c) The Director, at his or her discretion may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec. 922.142(a) (1) and (3) through 
(7), if the Director finds that the activity will have only negligible 
short-term adverse effects on Sanctuary resources and qualities and 
will: further research related to Sanctuary resources and qualities; 
further the educational, natural or historical resource value of the 
Sanctuary; further salvage or recovery operations in or near the 
Sanctuary in connection with a recent air or marine casualty; or assist 
in managing the Sanctuary. In deciding whether to issue a permit, the 
Director may consider such factors as: the professional qualifications 
and financial ability of the applicant as related to the proposed 
activity; the duration of the activity and the duration of its effects; 
the appropriateness of the methods and procedures proposed by the 
applicant for the conduct of the activity; the extent to which the 
conduct of the activity may diminish or enhance Sanctuary resources and 
qualities; the cumulative effects of the activity; and the end value of 
the activity. In addition, the Director may consider such other factors 
as he or she deems appropriate.
    (d) It shall be a condition of any permit issued that the permit or 
a copy thereof be displayed on board all vessels or aircraft used in the 
conduct of the activity.
    (e) The Director may, inter alia, make it a condition of any permit 
issued that any data or information obtained under the permit be made 
available to the public.
    (f) The Director may, inter alia, make it a condition of any permit 
issued that a NOAA official be allowed to observe any activity conducted 
under the permit and/or that the permit holder submit one or more 
reports on the status, progress or results of any activity authorized by 
the permit.

  Appendix A to Subpart N of Part 922--Stellwagen Bank National Marine 
                     Sanctuary Boundary Coordinates

            [Appendix Based on North American Datum of 1927]
------------------------------------------------------------------------
                                                            Loran
          Pt.             Latitude      Longitude  ---------------------
                                                      9960W      9960X
------------------------------------------------------------------------
E1                      42[deg]45[mi  70[deg]13[mi  13,607.19  25,728.57
                        n]59.83[sec]  n]01.77[sec]
E2                      42[deg]05[mi  70[deg]02[mi  13,753.39  25,401.78
                        n]35.51[sec]  n]08.14[sec]
E3                      42[deg]06[mi  70[deg]03[mi  13,756.72  25,412.46
                         n]8.25[sec]  n]17.55[sec]
E4                      42[deg]06[mi  70[deg]04[mi  13,760.30  25,417.53
                         n]2.53[sec]  n]03.36[sec]
E5                      42[deg]07[mi  70[deg]05[mi  13,764.52  25,427.27
                        n]02.70[sec]  n]13.61[sec]
E6                      42[deg]07[mi  70[deg]06[mi  13,770.54  25,434.45
                         n]13.0[sec]  n]23.75[sec]
E7                      42[deg]07[mi  70[deg]07[mi  13,775.08  25,442.51
                        n]35.95[sec]  n]27.89[sec]
E8                      42[deg]07[mi  70[deg]08[mi  13,780.35  25,448.27
                        n]42.33[sec]  n]26.07[sec]
E9                      42[deg]07[mi  70[deg]09[mi  13,784.24  25,455.02
                        n]59.94[sec]  n]19.78[sec]
E10                     42[deg]08[mi  70[deg]10[mi  13,790.27  25,461.28
                        n]04.95[sec]  n]24.40[sec]
E11                     42[deg]07[mi  70[deg]11[mi  13,799.38  25,467.56
                        n]55.19[sec]  n]47.67[sec]
E12                     42[deg]07[mi  70[deg]13[mi  13,806.58  25,474.95
                        n]59.84[sec]  n]03.35[sec]
E13                     42[deg]07[mi  70[deg]14[mi  13,815.52  25,480.62
                        n]46.55[sec]  n]21.91[sec]
E14                     42[deg]07[mi  70[deg]15[mi  13,823.21  25,484.05
                        n]27.29[sec]  n]22.95[sec]
E15                     42[deg]06[mi  70[deg]16[mi  13,833.88  25,487.79
                        n]54.57[sec]  n]42.71[sec]
E16                     42[deg]07[mi  70[deg]28[mi  13,900.14  25,563.22
                        n]44.89[sec]  n]15.44[sec]
E17                     42[deg]32[mi  70[deg]35[mi  13,821.60  25,773.51
                        n]53.52[sec]  n]52.38[sec]
E18                     42[deg]33[mi  70[deg]35[mi  13,814.43  25,773.54
                        n]30.24[sec]  n]14.96[sec]
E19                     42[deg]33[mi  70[deg]35[mi  13,811.68  25,774.28
                        n]48.14[sec]  n]03.81[sec]
E20                     42[deg]34[mi  70[deg]34[mi  13,803.64  25,774.59
                        n]30.45[sec]  n]22.98[sec]
E21                     42[deg]34[mi  70[deg]33[mi  13,795.43  25,770.55
                        n]50.37[sec]  n]21.93[sec]
E22                     42[deg]35[mi  70[deg]32[mi  13,787.92  25,768.31
                        n]16.08[sec]  n]32.29[sec]
E23                     42[deg]35[mi  70[deg]31[mi  13,780.57  25,766.25
                        n]41.80[sec]  n]44.20[sec]
E24                     42[deg]36[mi  70[deg]30[mi  13,772.14  25,766.14
                        n]23.08[sec]  n]58.98[sec]
E25                     42[deg]37[mi  70[deg]30[mi  13,763.69  25,768.12
                        n]15.51[sec]  n]23.01[sec]
E26                     42[deg]37[mi  70[deg]30[mi  13,758.09  25,771.07
                        n]58.88[sec]  n]06.60[sec]
E27                     42[deg]38[mi  70[deg]30[mi  13,755.07  25,774.58
                        n]32.46[sec]  n]06.54[sec]
E28                     42[deg]39[mi  70[deg]30[mi  13,752.75  25,778.35
                        n]04.08[sec]  n]11.29[sec]
------------------------------------------------------------------------


[[Page 154]]



            Subpart O_Olympic Coast National Marine Sanctuary



Sec. 922.150  Boundary.

    (a) The Olympic Coast National Marine Sanctuary (Sanctuary) consists 
of an area of approximately 2500 square nautical miles (NM) 
(approximately 8577 sq. kilometers) of coastal and ocean waters, and the 
submerged lands thereunder, off the central and northern coast of the 
State of Washington.
    (b) The Sanctuary boundary extends from Koitlah Point due north to 
the United States/Canada international boundary. The Sanctuary boundary 
then follows the U.S./Canada international boundary seaward to the 100 
fathom isobath. The seaward boundary of the Sanctuary approximates the 
100 fathom isobath in a southerly direction from the U.S./Canada 
international boundary to a point due west of the mouth of the Copalis 
River cutting across the heads of Nitnat, Juan de Fuca and Quinault 
Canyons. The coastal boundary of the Sanctuary is the mean higher high 
water line when adjacent to Federally managed lands cutting across the 
mouths of all rivers and streams, except where adjacent to Indian 
reservations, State and county owned lands; in such case, the coastal 
boundary is the mean lower low water line. La Push harbor is excluded 
from the Sanctuary boundary shoreward of the International Collision at 
Sea regulation (Colreg.) demarcation lines. The boundary coordinates are 
listed in appendix A to this subpart.



Sec. 922.151  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Federal Project means any water resources development project 
conducted by the U.S. Army Corps of Engineers or operating under a 
permit or other authorization issued by the Corps of Engineers and 
authorized by Federal law.
    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.
    Traditional fishing means fishing using a commercial or recreational 
fishing method that has been used in the Sanctuary before the effective 
date of Sanctuary designation (July 22, 1994), including the retrieval 
of fishing gear.
    Treaty means a formal agreement between the United States Government 
and an Indian tribe.



Sec. 922.152  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (g) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Exploring for, developing or producing oil, gas or minerals 
within the Sanctuary.
    (2)(i) Discharging or depositing, from within the boundary of the 
Sanctuary, any material or other matter except:
    (A) Fish, fish parts, chumming materials or bait used in or 
resulting from traditional fishing operations in the Sanctuary;
    (B) Biodegradable effluent incidental to vessel use and generated by 
marine sanitation devices approved in accordance with section 312 of the 
Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 
et seq.;
    (C) Water generated by routine vessel operations (e.g., cooling 
water, deck wash down and graywater as defined by section 312 of the 
FWPCA) excluding oily wastes from bilge pumping;
    (D) Engine exhaust; or
    (E) Dredge spoil in connection with beach nourishment projects 
related to harbor maintenance activities.
    (ii) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter, except those listed in 
paragraphs (a)(2)(i) (A) through (E) of this section, that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality.
    (3) Moving, removing or injuring, or attempting to move, remove or 
injure, a Sanctuary historical resource. This prohibition does not apply 
to moving, removing or injury resulting incidentally from traditional 
fishing operations.

[[Page 155]]

    (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 seabed of the Sanctuary, except as an 
incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations;
    (iii) Installation of navigation aids;
    (iv) Harbor maintenance in the areas necessarily associated with 
Federal Projects in existence on July 22, 1994, including dredging of 
entrance channels and repair, replacement or rehabilitation of 
breakwaters and jetties;
    (v) Construction, repair, replacement or rehabilitation of boat 
launches, docks or piers, and associated breakwaters and jetties; or
    (vi) Beach nourishment projects related to harbor maintenance 
activities.
    (5) Taking any marine mammal, sea turtle or seabird in or above the 
Sanctuary, except as authorized by the Marine Mammal Protection Act, as 
amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as 
amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty 
Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any 
Indian treaty with an Indian tribe to which the United States is a 
party, provided that the Indian treaty right is exercised in accordance 
with the MMPA, ESA and MBTA, to the extent that they apply.
    (6) Flying motorized aircraft at less than 2,000 feet both above the 
Sanctuary within one NM of the Flattery Rocks, Quillayute Needles, or 
Copalis National Wildlife Refuge, or within one NM seaward from the 
coastal boundary of the Sanctuary, except for activities related to 
tribal timber operations conducted on reservation lands, or to transport 
persons or supplies to or from reservation lands as authorized by a 
governing body of an Indian tribe.
    (7) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from) any historical resource, or any marine mammal, 
sea turtle, or seabird taken in violation of the MMPA, ESA or MBTA, to 
the extent that they apply.
    (8) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulation or permit 
issued under the Act.
    (b) The prohibitions in paragraph (a) (2) through (4), (6) and (7) 
of this section do not apply to activities necessary to respond to 
emergencies threatening life, property or the environment.
    (c) The prohibitions in paragraphs (a) (2) through (4), (6) and (7) 
of this section do not apply to activities necessary for valid law 
enforcement purposes.
    (d)(1) All Department of Defense military activities shall be 
carried out in a manner that avoids to the maximum extent practicable 
any adverse impacts on Sanctuary resources and qualities.
    (i) Except as provided in paragraph (d)(2) of this section, the 
prohibitions in paragraphs (a) (2) through (7) of this section do not 
apply to the following military activities performed by the Department 
of Defense in W-237A, W-237B, and Military Operating Areas Olympic A and 
B in the Sanctuary:
    (A) Hull integrity tests and other deep water tests;
    (B) Live firing of guns, missiles, torpedoes, and chaff;
    (C) Activities associated with the Quinault Range including the in-
water testing of non-explosive torpedoes; and
    (D) Anti-submarine warfare operations.
    (ii) New activities may be exempted from the prohibitions in 
paragraphs (a) (2) through (7) of this section by the Director after 
consultation between the Director and the Department of Defense. If it 
is determined that an activity may be carried out, such activity shall 
be carried out in a manner that avoids to the maximum extent practicable 
any adverse impact on Sanctuary resources and qualities. Civil 
engineering and other civil works projects conducted by the U.S. Army 
Corps of Engineers are excluded from the scope of this paragraph (d).
    (2) The Department of Defense is prohibited from conducting bombing 
activities within the Sanctuary.
    (3) In the event of threatened or actual destruction of, loss of, or 
injury to

[[Page 156]]

a Sanctuary resource or quality resulting from an untoward incident, 
including but not limited to spills and groundings caused by the 
Department of Defense, the Department of Defense shall promptly 
coordinate with the Director for the purpose of taking appropriate 
actions to respond to and mitigate the harm and, if possible, restore or 
replace the Sanctuary resource or quality.
    (e) The prohibitions in paragraphs (a) (2) through (7) of this 
section do not apply to any activity executed in accordance with the 
scope, purpose, terms and conditions of a National Marine Sanctuary 
permit issued pursuant to Sec. 922.48 and Sec. 922.153 or a Special 
Use permit issued pursuant to section 310 of the Act.
    (f) Members of a federally recognized Indian tribe may exercise 
aboriginal and treaty-secured rights, subject to the requirements of 
other applicable law, without regard to the requirements of this part. 
The Director may consult with the governing body of a tribe regarding 
ways the tribe may exercise such rights consistent with the purposes of 
the Sanctuary.
    (g) The prohibitions in paragraphs (a) (2) through (7) of this 
section do not apply to any activity authorized by any lease, permit, 
license, or other authorization issued after July 22, 1994 and issued by 
any Federal, State or local authority of competent jurisdiction, 
provided that the applicant complies with Sec. 922.49, 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 necessary to protect 
Sanctuary resources and qualities. Amendments, renewals and extensions 
of authorizations in existence on the effective date of designation 
constitute authorizations issued after the effective date.
    (h) Notwithstanding paragraphs (e) and (g) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
Sec. Sec. 922.48 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 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 
harbor maintenance activities; 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.



Sec. 922.153  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by paragraphs (a) 
(2) through (7) of Sec. 922.152 if conducted in accordance with the 
scope, purpose, terms and conditions of a permit issued under this 
section and Sec. 922.48.
    (b) Applications for such permits should be addressed to the 
Director, Office of Ocean and Coastal Resource Management; ATTN: 
Manager, Olympic Coast National Marine Sanctuary, 138 West First Street, 
Port Angeles, WA 98362.
    (c) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or her deems appropriate, to 
conduct an activity prohibited by paragraphs (a) (2) through (7) of 
Sec. 922.152, if the Director finds that the activity will not 
substantially injure Sanctuary resources and qualities and will: further 
research related to Sanctuary resources and qualities; further the 
educational, natural or historical resource value of the Sanctuary; 
further salvage or recovery operations in or near the Sanctuary in 
connection with a recent air or marine casualty; assist in managing the 
Sanctuary; further salvage or recovery operations in connection with an 
abandoned shipwreck in the Sanctuary title to which is held by the State 
of Washington; or promote the welfare of any Indian tribe adjacent to 
the Sanctuary. In deciding whether to issue a permit, the Director may 
consider such factors as: the professional qualifications and financial 
ability of the applicant as related to the proposed activity; the 
duration of the activity and the duration

[[Page 157]]

of its effects; the appropriateness of the methods and procedures 
proposed by the applicant for the conduct of the activity; the extent to 
which the conduct of the activity may diminish or enhance Sanctuary 
resources and qualities; the cumulative effects of the activity; the end 
value of the activity; and the impacts of the activity on adjacent 
Indian tribes. Where the issuance or denial of a permit is requested by 
the governing body of an Indian tribe, the Director shall consider and 
protect the interests of the tribe to the fullest extent practicable in 
keeping with the purposes of the Sanctuary and his or her fiduciary 
duties to the tribe. The Director may also deny a permit application 
pursuant to this section, in whole or in part, if it is determined that 
the permittee or applicant has acted in violation of the terms or 
conditions of a permit or of the regulations in this subpart. In 
addition, the Director may consider such other factors as he or she 
deems appropriate.
    (d) It shall be a condition of any permit issued that the permit or 
a copy thereof be displayed on board all vessels or aircraft used in the 
conduct of the activity.
    (e) The Director may, inter alia, make it a condition of any permit 
issued that any data or information obtained under the permit be made 
available to the public.
    (f) The Director may, inter alia, make it a condition of any permit 
issued that a NOAA official be allowed to observe any activity conducted 
under the permit and/or that the permit holder submit one or more 
reports on the status, progress or results of any activity authorized by 
the permit.
    (g) 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.
    (h) 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.



Sec. 922.154  Consultation with the State of Washington, affected 
Indian tribes, and adjacent county governments.

    (a) The Director shall regularly consult with the State of 
Washington, the governing bodies of tribes with reservations adjacent to 
the Sanctuary, and adjacent county governments regarding areas of mutual 
concern, including Sanctuary programs, permitting, activities, 
development, and threats to Sanctuary resources.
    (b) The Director shall, when requested by such governments, enter 
into a memorandum of understanding regarding such consultations.

   Appendix A to Subpart O of Part 922--Olympic Coast National Marine 
                     Sanctuary Boundary Coordinates

                 [Based on North American Datum of 1983]
------------------------------------------------------------------------
             Point                     Latitude            Longitude
------------------------------------------------------------------------
1..............................  47[deg]07[min]45[se  124[deg]11[min]02[
                                  c]                   sec]
2..............................  47[deg]07[min]45[se  124[deg]58[min]12[
                                  c]                   sec]
3..............................  47[deg]35[min]05[se  125[deg]00[min]00[
                                  c]                   sec]
4..............................  47[deg]40[min]05[se  125[deg]04[min]44[
                                  c]                   sec]
5..............................  47[deg]50[min]01[se  125[deg]05[min]42[
                                  c]                   sec]
6..............................  47[deg]57[min]13[se  125[deg]29[min]13[
                                  c]                   sec]
7..............................  48[deg]07[min]33[se  125[deg]38[min]20[
                                  c]                   sec]
8..............................  48[deg]15[min]00[se  125[deg]40[min]54[
                                  c]                   sec]
9..............................  48[deg]18[min]21.2[  125[deg]30[min]02.
                                  sec]                 9[sec]
10.............................  48[deg]20[min]15.2[  125[deg]22[min]52.
                                  sec]                 9[sec]
11.............................  48[deg]26[min]46.2[  125[deg]09[min]16.
                                  sec]                 9[sec]
12.............................  48[deg]27[min]09.2[  125[deg]08[min]29.
                                  sec]                 9[sec]
13.............................  48[deg]28[min]08.2[  125[deg]05[min]51.
                                  sec]                 9[sec]
14.............................  48[deg]29[min]43.2[  125[deg]00[min]10.
                                  sec]                 9[sec]
15.............................  48[deg]29[min]56.2[  124[deg]59[min]19.
                                  sec]                 9[sec]
16.............................  48[deg]30[min]13.2[  124[deg]54[min]56.
                                  sec]                 9[sec]
17.............................  48[deg]30[min]21.2[  124[deg]50[min]25.
                                  sec]                 9[sec]
18.............................  48[deg]30[min]10.2[  124[deg]47[min]17.
                                  sec]                 9[sec]
19.............................  48[deg]29[min]36.4[  124[deg]43[min]38.
                                  sec]                 1[sec]
20.............................  48[deg]28[min]08[se  124[deg]38[min]13[
                                  c]                   sec]
21.............................  48[deg]23[min]17[se  124[deg]38[min]13[
                                  c]                   sec]
------------------------------------------------------------------------



            Subpart P_Florida Keys National Marine Sanctuary

    Source: 62 FR 32161, June 12, 1997, unless otherwise noted.

[[Page 158]]



Sec. 922.160  Purpose.

    (a) The purpose of the regulations in this subpart is to implement 
the comprehensive management plan for the Florida Keys National Marine 
Sanctuary by regulating activities affecting the resources of the 
Sanctuary or any of the qualities, values, or purposes for which the 
Sanctuary is designated, in order to protect, preserve and manage the 
conservation, ecological, recreational, research, educational, 
historical, and aesthetic resources and qualities of the area. In 
particular, the regulations in this part are intended to protect, 
restore, and enhance the living resources of the Sanctuary, to 
contribute to the maintenance of natural assemblages of living resources 
for future generations, to provide places for species dependent on such 
living resources to survive and propagate, to facilitate to the extent 
compatible with the primary objective of resource protection all public 
and private uses of the resources of the Sanctuary not prohibited 
pursuant to other authorities, to reduce conflicts between such 
compatible uses, and to achieve the other policies and purposes of the 
Florida Keys National Marine Sanctuary and Protection Act and the 
National Marine Sanctuaries Act.
    (b) Section 304(e) of the NMSA requires the Secretary to review 
management plans and regulations every five years, and make necessary 
revisions. Upon completion of the five year review of the Sanctuary 
management plan and regulations, the Secretary will repropose the 
regulations in their entirety with any proposed changes thereto, 
including those regulations in subparts A and E of this part that apply 
to the Sanctuary. The Governor of the State of Florida will have the 
opportunity to review the re-proposed regulations before they take 
effect and if the Governor certifies such regulations as unacceptable, 
they will not take effect in State waters of the Sanctuary.



Sec. 922.161  Boundary.

    The Sanctuary consists of an area of approximately 2900 square 
nautical miles (9,800 square kilometers) 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.

[66 FR 4369, Jan. 17, 2001]



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. 922.3 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 (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 the corals of the Class Hydrozoa (stinging and 
hydrocorals); the Class Anthozoa, Subclass Hexacorallia, Order 
Scleractinia (stony corals) and Antipatharia (black corals).
    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

[[Page 159]]

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.
    Fish means finfish, mollusks, crustaceans, and all forms of marine 
animal and plant life other than marine mammals and birds.
    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 ft 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 in sections (2), (3), or (4) of Rule 46-42.001, Florida 
Administrative Code, reprinted in Appendix VIII to this subpart.
    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

[[Page 160]]

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 it's internal combustion 
motor.
    Not available for immediate use means not readily accessible for 
immediate use, e.g., by being stowed unbaited in a cabin, locker, rod 
holder, or similar storage area, or by being securely covered and lashed 
to a deck or bulkhead.
    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.
    Personal watercraft means any jet or air-powered watercraft operated 
by standing, sitting, or kneeling on or behind the vessel, in contrast 
to a conventional boat, where the operator stands or sits inside the 
vessel, and that uses an inboard engine to power a water jet pump for 
propulsion, instead of a propeller as in a conventional boat.
    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 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.
    Seagrass means any species of marine angiosperms (flowering plants) 
that inhabit portions of the seabed in the Sanctuary. Those species 
include, but are not limited to: Thalassia testudinum (turtle grass); 
Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass); 
Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.
    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.

[[Page 161]]

    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].
    Traditional fishing means those commercial or recreational fishing 
activities that were customarily conducted within the Sanctuary prior to 
its designation as identified in the Environmental Impact Statement and 
Management Plan for this Sanctuary.
    Tropical fish means any species included in section (2) of Rule 46-
42.001, Florida Administrative Code, reproduced in Appendix VIII to this 
subpart, or any part thereof.
    Vessel means a watercraft of any description, including, but 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/on the waters of the 
Sanctuary. For purposes of this part, the terms ``vessel,'' 
``watercraft,'' and ``boat'' have the same meaning.
    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 922.3, 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.

[62 FR 32161, June 12, 1997, as amended at 66 FR 4369, Jan. 17, 2001]



Sec. 922.163  Prohibited activities--Sanctuary-wide.

    (a) Except as specified in paragraph (b) through (e) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Mineral and hydrocarbon exploration, development and production. 
Exploring for, developing, or producing minerals or hydrocarbons within 
the Sanctuary.
    (2) Removal of, injury to, or possession of coral or live rock. (i) 
Moving, removing, taking, harvesting, damaging, disturbing, breaking, 
cutting, or otherwise injuring, or possessing (regardless of where taken 
from) any living or dead coral, or coral formation, or attempting any of 
these activities, except as permitted under 50 CFR part 638.
    (ii) Harvesting, or attempting to harvest, any live rock from the 
Sanctuary, or possessing (regardless of where taken from) any live rock 
within the Sanctuary, except as authorized by a permit for the 
possession or harvest from aquaculture operations in the Exclusive 
Economic Zone, issued by the National Marine Fisheries Service pursuant 
to applicable regulations under the appropriate Fishery Management Plan, 
or as authorized by the applicable State authority of competent 
jurisdiction within the Sanctuary for live rock cultured on State 
submerged lands leased from the State of Florida, pursuant to applicable 
State law. See Sec. 370.027, Florida Statutes and implementing 
regulations.
    (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 seabed of the Sanctuary, except as an 
incidental result of:
    (i) Anchoring vessels in a manner not otherwise prohibited by this 
part (see Sec. Sec. 922.163(a)(5)(ii) and 922.164(d)(1)(v));
    (ii) Traditional fishing activities not otherwise prohibited by this 
part;

[[Page 162]]

    (iii) Installation and maintenance of navigational aids by, or 
pursuant to valid authorization by, any Federal, State, or local 
authority of competent jurisdiction;
    (iv) Harbor maintenance in areas necessarily associated with Federal 
water resource development projects in existence on July 1, 1997, 
including maintenance dredging of entrance channels and repair, 
replacement, or rehabilitation of breakwaters or jetties;
    (v) Construction, repair, replacement, or rehabilitation of docks, 
seawalls, breakwaters, piers, or marinas with less than ten slips 
authorized by any valid lease, permit, license, approval, or other 
authorization issued by any Federal, State, or local authority of 
competent jurisdiction.
    (4) Discharge or deposit of materials or other matter. (i) 
Discharging or depositing, from within the boundary of the Sanctuary, 
any material or other matter, except:
    (A) Fish, fish parts, chumming materials, or bait used or produced 
incidental to and while conducting a traditional fishing activity in the 
Sanctuary;
    (B) Biodegradable effluent incidental to vessel use and generated by 
a marine sanitation device approved in accordance with section 312 of 
the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 
1322 et seq.;
    (C) Water generated by routine vessel operations (e.g., deck wash 
down and graywater as defined in section 312 of the FWPCA), excluding 
oily wastes from bilge pumping; or
    (D) Cooling water from vessels or engine exhaust;
    (ii) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality, except those 
listed in paragraph (a)(4)(i) (A) through (D) of this section and those 
authorized under Monroe County land use permits or under State permits.
    (5) Operation of vessels. (i) Operating a vessel in such a manner as 
to strike or otherwise injure coral, seagrass, or any other immobile 
organism attached to the seabed, including, but not limited to, 
operating a vessel in such a manner as to cause prop-scarring.
    (ii) Having a vessel anchored on living coral other than hardbottom 
in water depths less than 40 feet when visibility is such that the 
seabed can be seen.
    (iii) Except in officially marked channels, operating a vessel at a 
speed greater than 4 knots or in manner which creates a wake:
    (A) Within an area designated idle speed only/no wake;
    (B) Within 100 yards of navigational aids indicating emergent or 
shallow reefs (international diamond warning symbol);
    (C) Within 100 feet of the red and white ``divers down'' flag (or 
the blue and white ``alpha'' flag in Federal waters);
    (D) Within 100 yards of residential shorelines; or
    (E) Within 100 yards of stationary vessels.
    (iv) Operating a vessel in such a manner as to injure or take 
wading, roosting, or nesting birds or marine mammals.
    (v) Operating a vessel in a manner which endangers life, limb, 
marine resources, or property.
    (6) Conduct of diving/snorkeling without flag. Diving or snorkeling 
without flying in a conspicuous manner the red and white ``divers down'' 
flag (or the blue and white ``alpha'' flag in Federal waters).
    (7) Release of exotic species. Introducing or releasing an exotic 
species of plant, invertebrate, fish, amphibian, or mammals into the 
Sanctuary.
    (8) Damage or removal of markers. Marking, defacing, or damaging in 
any way or displacing, removing, or tampering with any official signs, 
notices, or placards, whether temporary or permanent, or with any 
navigational aids, monuments, stakes, posts, mooring buoys, boundary 
buoys, trap buoys, or scientific equipment.
    (9) Movement of, removal of, injury to, or possession of Sanctuary 
historical resources. Moving, removing, injuring, or possessing, or 
attempting to move, remove, injure, or possess, a Sanctuary historical 
resource.
    (10) Take or possession of protected wildlife. Taking any marine 
mammal,

[[Page 163]]

sea turtle, or seabird in or above the Sanctuary, except as authorized 
by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 
et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 
et seq., and the Migratory Bird Treaty Act, as amended, (MBTA) 16 U.S.C. 
703 et seq.
    (11) Possession or use of explosives or electrical charges. 
Possessing, or using explosives, except powerheads, or releasing 
electrical charges within the Sanctuary.
    (12) Harvest or possession of marine life species. Harvesting, 
possessing, or landing any marine life species, or part thereof, within 
the Sanctuary, except in accordance with rules 46-42.001 through 46-
42.003, 46-42.0035, and 46-42.004 through 46-42.007, and 46.42.009 of 
the Florida Administrative Code, reproduced in Appendix VIII to this 
subpart, and such rules shall apply mutatis mutandis (with necessary 
editorial changes) to all Federal and State waters within the Sanctuary.
    (13) Interference with law enforcement. Interfering with, 
obstructing, delaying or preventing an investigation, search, seizure, 
or disposition of seized property in connection with enforcement of the 
Acts or any regulation or permit issued under the Acts.
    (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.
    (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 a valid 
Federal, State, or local lease, permit, license, approval, or other 
authorization in existence on the effective date of these regulations, 
or by any valid right of subsistence use or access in existence on the 
effective date of these regulations, provided that the holder of such 
authorization or right complies with Sec. 922.167 and with any terms 
and conditions on the exercise of such authorization or right imposed by 
the Director as a condition of certification as he or she deems 
reasonably necessary to achieve the purposes for which the Sanctuary was 
designated.
    (d) 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. 922.168, 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.
    (e)(1) All military activities shall be carried out in a manner that 
avoids to the maximum extent practical any adverse impacts on Sanctuary 
resources and qualities. The prohibitions in paragraph (a) of this 
section and Sec. 922.164 do not apply to existing classes of military 
activities which were conducted prior to the effective date of these 
regulations, as identified in the Environmental Impact Statement and 
Management Plan for the Sanctuary. New military activities in the 
Sanctuary are allowed and may be exempted from the prohibitions in 
paragraph (a) of this section and in Sec. 922.164 by the Director after 
consultation between the Director and the Department of Defense pursuant 
to section 304(d) of the NMSA. When a military activity is modified such 
that it is likely to destroy, cause the loss of, or injure a Sanctuary 
resource or quality in a manner significantly greater than was 
considered in a previous consultation under section 304(d) of the NMSA, 
or it is likely to destroy, cause the loss of, or injure a Sanctuary 
resource or quality not previously considered in a previous consultation 
under section 304(d) of the NMSA, the activity is considered a new 
activity for purposes of this

[[Page 164]]

paragraph. If it is determined that an activity may be carried out, such 
activity shall be carried out in a manner that avoids to the maximum 
extent practical any adverse impact on Sanctuary resources and 
qualities.
    (2) In the event of threatened or actual destruction of, loss of, or 
injury to a Sanctuary resource or quality resulting from an untoward 
incident, including but not limited to spills and groundings caused by 
the Department of Defense, the cognizant component shall promptly 
coordinate with the Director for the purpose of taking appropriate 
actions to prevent, respond to or mitigate the harm and, if possible, 
restore or replace the Sanctuary resource or quality.
    (f) The prohibitions contained in paragraph (a)(5) of this section 
do not apply to Federal, State and local officers while performing 
enforcement duties and/or responding to emergencies that threaten life, 
property, or the environment in their official capacity.
    (g) 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 authorizing, or otherwise approve, 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 (except by a certification, pursuant to Sec. 922.167, of a valid 
authorization in existence on the effective date of these regulations), 
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.
    (h) Any amendment to these regulations shall not take effect in 
Florida State waters until approved by the Board of Trustees of the 
Internal Improvement Trust Fund of the State of Florida. Any fishery 
regulations in the Sanctuary shall not take effect in Florida State 
waters until established by the Florida Marine Fisheries Commission.



Sec. 922.164  Additional activity regulations by Sanctuary area.

    In addition to the prohibitions set forth in Sec. 922.163, which 
apply throughout the Sanctuary, the following regulations apply with 
respect to activities conducted within the Sanctuary areas described in 
this section and in Appendix (II) through (VII) to this subpart. 
Activities located within two or more overlapping Sanctuary areas are 
concurrently subject to the regulations applicable to each overlapping 
area.
    (a) Areas to be avoided. Operating a tank vessel or a vessel greater 
than 50 meters in registered length is prohibited in all areas to be 
avoided, except if such vessel is a public vessel and its operation is 
essential for national defense, law enforcement, or responses to 
emergencies that threaten life, property, or the environment. Appendix 
VII to this subpart sets forth the geographic coordinates of these 
areas.
    (b) Existing management areas--(1) Key Largo and Looe Key Management 
Areas. The following activities are prohibited within the Key Largo and 
Looe Key Management Areas (also known as the Key Largo and Looe Key 
National Marine Sanctuaries) described in Appendix II to this subpart:
    (i) Removing, taking, damaging, harmfully disturbing, breaking, 
cutting, spearing or similarly injuring any coral or other marine 
invertebrate, or any plant, soil, rock, or other material, except 
commercial taking of spiny lobster and stone crab by trap and 
recreational taking of spiny lobster by hand or by hand gear which is 
consistent with these regulations and the applicable regulations 
implementing the applicable Fishery Management Plan.
    (ii) Taking any tropical fish.
    (iii) Fishing with wire fish traps, bottom trawls, dredges, fish 
sleds, or similar vessel-towed or anchored bottom fishing gear or nets.
    (iv) Fishing with, carrying or possessing, except while passing 
through without interruption or for law enforcement purposes: pole 
spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber 
powered arbaletes, pneumatic and spring-loaded guns or similar devices 
known as spearguns.

[[Page 165]]

    (2) Great White Heron and Key West National Wildlife Refuge 
Management Areas. Operating a personal watercraft, operating an airboat, 
or water skiing except within Township 66 South, Range 29 East, Sections 
5, 11, 12 and 14; Township 66 South, Range 28 East, Section 2; Township 
67 South, Range 26 East, Sections 16 and 20, all Tallahassee Meridian, 
are prohibited within the marine portions of the Great White Heron and 
Key West National Wildlife Refuge Management Areas described in Appendix 
II to this subpart.
    (c) Wildlife management areas. (1) Marine portions of the Wildlife 
Management Areas listed in Appendix III to this subpart or portions 
thereof may be designated ``idle speed only/no-wake,'' ``no-motor'' or 
``no-access buffer'' zones or ``closed''. The Director, in cooperation 
with other Federal, State, or local resource management authorities, as 
appropriate, shall post signs conspicuously, using mounting posts, 
buoys, or other means according to location and purpose, at appropriate 
intervals and locations, clearly delineating an area as an ``idle speed 
only/no wake'', a ``no-motor'', or a ``no-access buffer'' zone or as 
``closed'', and allowing instant, long-range recognition by boaters. 
Such signs shall display the official logo of the Sanctuary.
    (2) The following activities are prohibited within the marine 
portions of the Wildlife Management Areas listed in Appendix III to this 
subpart:
    (i) In those marine portions of any Wildlife Management Area 
designated an ``idle speed only/no wake'' zone in Appendix III to this 
subpart, operating a vessel at a speed greater that idle speed only/no 
wake.
    (ii) In those marine portions of any Wildlife Management Area 
designated a ``no-motor'' zone in Appendix III to this subpart, using 
internal combustion motors or engines for any purposes. A vessel with an 
internal combustion motor or engine may access a ``no-motor'' zone only 
through the use of a push pole, paddle, sail, electric motor or similar 
means of propulsion.
    (iii) In those marine portions of any Wildlife Management Area 
designated a ``no-access buffer'' zone in Appendix III of this subpart, 
entering the area by vessel.
    (iv) In those marine portions of any Wildlife Management Area 
designated as closed in Appendix III of this subpart, entering or using 
the area.
    (3) The Director shall coordinate with other Federal, State, or 
local resource management authorities, as appropriate, in the 
establishment and enforcement of access restrictions described in 
paragraph (c)(2) (i)-(iv) of this section in the marine portions of 
Wildlife Management Areas.
    (4) The Director may modify the number and location of access 
restrictions described in paragraph (c)(2) (i)-(iv) of this section 
within the marine portions of a Wildlife Management Area if the Director 
finds that such action is reasonably necessary to minimize disturbances 
to Sanctuary wildlife, or to ensure protection and preservation of 
Sanctuary wildlife consistent with the purposes of the Sanctuary 
designation and other applicable law governing the protection and 
preservation of wildlife resources in the Sanctuary. The Director will 
effect such modification by:
    (i) Publishing in the Federal Register, after notice and an 
opportunity for public comments in accordance, an amendment to the list 
of such areas set forth in Appendix III to this subpart, and a notice 
regarding the time and place where maps depicting the precise locations 
of such restrictions will be made available for public inspection, and
    (ii) Posting official signs delineating such restrictions in 
accordance with paragraph (c)(1) of this section.
    (d) Ecological Reserves and Sanctuary Preservation Areas. (1) The 
following activities are prohibited within the Ecological Reserves 
described in Appendix IV to this subpart, and within the Sanctuary 
Preservation Areas, described in Appendix V to this subpart:
    (i) Discharging or depositing any material or other matter except 
cooling water or engine exhaust.
    (ii) Possessing, moving, harvesting, removing, taking, damaging, 
disturbing, breaking, cutting, spearing, or otherwise injuring any 
coral, marine invertebrate, fish, bottom formation, algae, seagrass or 
other living or dead organism, including shells, or attempting any of 
these activities. However,

[[Page 166]]

fish, invertebrates, and marine plants may be possessed aboard a vessel 
in an Ecological Reserve or Sanctuary Preservation Area, provided such 
resources can be shown not to have been harvested within, removed from, 
or taken within, the Ecological Reserve or Sanctuary Preservation Area, 
as applicable, by being stowed in a cabin, locker, or similar storage 
area prior to entering and during transit through such reserves or 
areas, provided further that in an Ecological Reserve or Sanctuary 
Preservation Area located in Florida State waters, such vessel is in 
continuous transit through the Ecological Reserve or Sanctuary 
Preservation Area.
    (iii) Except for catch and release fishing by trolling in the Conch 
Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any 
means. However, gear capable of harvesting fish may be aboard a vessel 
in an Ecological Reserve or Sanctuary Preservation Area, provided such 
gear is not available for immediate use when entering and during transit 
through such Ecological Reserve or Sanctuary Preservation Area, and no 
presumption of fishing activity shall be drawn therefrom.
    (iv) Touching living or dead coral, including but not limited to, 
standing on a living or dead coral formation.
    (v) Anchoring in the Tortugas Ecological Reserve. In all other 
Ecological Reserves and Sanctuary Preservation Areas, placing any anchor 
in a way that allows the anchor or any portion of the anchor apparatus 
(including the anchor, chain or rope) to touch living or dead coral, or 
any attached living organism. When anchoring dive boats, the first diver 
down must inspect the anchor to ensure that it is not touching living or 
dead coral, and will not shift in such a way as to touch such coral or 
other attached organism. No further diving shall take place until the 
anchor is placed in accordance with these requirements.
    (vi) Except in the Tortugas Ecological Reserve where mooring buoys 
must be used, anchoring instead of mooring when a mooring buoy is 
available or anchoring in other than a designated anchoring area when 
such areas have been designated and are available.
    (vii) Except for passage without interruption through the area, for 
law enforcement purposes, or for purposes of monitoring pursuant to 
paragraph (d)(2) of this section, violating a temporary access 
restriction imposed by the Director pursuant to paragraph (d)(2) of this 
section.
    (viii) Except for passage without interruption through the area, for 
law enforcement purposes, or for purposes of monitoring pursuant to 
paragraph (d)(2) of this section: entering the Tortugas South area of 
the Tortugas Ecological Reserve; or entering the Tortugas North area of 
the Tortugas Ecological Reserve without a valid access permit issued 
pursuant to Sec. 922.167 or entering or leaving the Tortugas North area 
with a valid access permit issued pursuant to Sec. 922.167 without 
notifying FKNMS staff at the Dry Tortugas National Park office by 
telephone or radio no less than 30 minutes and no more than 6 hours, 
before entering and upon leaving the Tortugas Ecological Reserve.
    (ix) Tying a vessel greater than 100 feet (30.48 meters) LOA, or 
tying more than one vessel (other than vessels carried on board a 
vessel) if the combined lengths would exceed 100 feet (30.48 meters) 
LOA, to a mooring buoy or to a vessel tied to a mooring buoy in the 
Tortugas Ecological Reserve.
    (2) The Director may temporarily restrict access to any portion of 
any Sanctuary Preservation Area or Ecological Reserve if the Director, 
on the basis of the best available data, information and studies, 
determines that a concentration of use appears to be causing or 
contributing to significant degradation of the living resources of the 
area and that such action is reasonably necessary to allow for recovery 
of the living resources of such area. The Director will provide for 
continuous monitoring of the area during the pendency of the 
restriction. The Director will provide public notice of the restriction 
by publishing a notice in the Federal Register, and by such other means 
as the Director may deem appropriate. The Director may only restrict 
access to an area for a period of

[[Page 167]]

60 days, with one additional 60 day renewal. The Director may restrict 
access to an area for a longer period pursuant to a notice and 
opportunity for public comment rulemaking under the Administrative 
Procedure Act. Such restriction will be kept to the minimum amount of 
area necessary to achieve the purposes thereof.
    (e) Special-use Areas. (1) The Director may set aside discrete areas 
of the Sanctuary as Special-use Areas, and, by designation pursuant to 
this paragraph, impose the access and use restrictions specified in 
paragraph (e)(3) of this section. Special-use Areas are described in 
Appendix VI to this subpart, in accordance with the following 
designations and corresponding objectives:
    (i) ``Recovery area'' to provide for the recovery of Sanctuary 
resources from degradation or other injury attributable to human uses;
    (ii) ``Restoration area'' to provide for restoration of degraded or 
otherwise injured Sanctuary resources;
    (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
    (iv) ``Facilitated-use area'' to provide for the prevention of use 
or user conflicts or the facilitation of access and use, or to promote 
public use and understanding, of Sanctuary resources through the 
issuance of special-use permits.
    (2) A Special-use Area shall be no larger than the size the Director 
deems reasonably necessary to accomplish the applicable objective.
    (3) Persons conducting activities within any Special-use Area shall 
comply with the access and use restrictions specified in this paragraph 
and made applicable to such area by means of its designation as a 
``recovery area,'' ``restoration area,'' ``research-only area,'' or 
``facilitated-use area.'' Except for passage without interruption 
through the area or for law enforcement purposes, no person may enter a 
Special-use Area except to conduct or cause to be conducted the 
following activities:
    (i) In such area designated as a ``recovery area'' or a 
``restoration area'', habitat manipulation related to restoration of 
degraded or otherwise injured Sanctuary resources, or activities 
reasonably necessary to monitor recovery of degraded or otherwise 
injured Sanctuary resources;
    (ii) In such area designated as a ``research only area'', scientific 
research or educational use specifically authorized by and conducted in 
accordance with the scope, purpose, terms and conditions of a valid 
National Marine Sanctuary General or Historical Resources permit, or
    (iii) In such area designated as a ``facilitated-use area'', 
activities specified by the Director or specifically authorized by and 
conducted in accordance with the scope, purpose, terms, and conditions 
of a valid Special-use permit.
    (4)(i) The Director may modify the number of, location of, or 
designations applicable to, Special-use Areas by publishing in the 
Federal Register, after notice and an opportunity for public comment in 
accordance with the Administrative Procedure Act, an amendment to 
Appendix VI to this subpart, except that, with respect to such areas 
designated as a ``recovery area,'' ``restoration area,'' or ``research 
only area,'' the Director may modify the number of, location of, or 
designation applicable to, such areas by publishing a notice of such 
action in the Federal Register if the Director determines that immediate 
action is reasonably necessary to:
    (A) Prevent significant injury to Sanctuary resources where 
circumstances create an imminent risk to such resources;
    (B) Initiate restoration activity where a delay in time would 
significantly impair the ability of such restoration activity to 
succeed;
    (C) Initiate research activity where an unforeseen natural event 
produces an opportunity for scientific research that may be lost if 
research is not initiated immediately.
    (ii) If the Director determines that a notice of modification must 
be promulgated immediately in accordance with paragraph (e)(4)(i) of 
this section, the

[[Page 168]]

Director will, as part of the same notice, invite public comment and 
specify that comments will be received for 15 days after the effective 
date of the notice. As soon as practicable after the end of the comment 
period, the Director will either rescind, modify or allow the 
modification to remain unchanged through notice in the Federal Register.
    (f) Additional Wildlife Management Areas, Ecological Reserves, 
Sanctuary Preservation Areas, or Special-use Areas, and additional 
restrictions in such areas, shall not take effect in Florida State 
waters unless first approved by the Board of Trustees of the Internal 
Improvement Trust Fund of the State of Florida.
    (g) Anchoring on Tortugas Bank. Vessels 50 meters or greater in 
registered length, are prohibited from anchoring on the portion of 
Tortugas Bank within the Florida Keys National Marine Sanctuary west of 
the Dry Tortugas National Park that is outside of the Tortugas 
Ecological Reserve. The boundary of the area closed to anchoring by 
vessels 50 meters or greater in registered length is formed by 
connecting in succession the points at the following coordinates (based 
on the North American Datum of 1983):
(1) 24 deg. 32.00[min] N 83 deg. 00.05[min] W
(2) 24 deg. 37.00[min] N 83 deg. 06.00[min] W
(3) 24 deg. 39.00[min] N 83 deg. 06.00[min] W
(4) 24 deg. 39.00[min] N 83 deg. 00.05[min] W
(5) 24 deg. 32.00[min] N 83 deg. 00.05[min] W

[62 FR 32161, June 12, 1997, as amended at 63 FR 43873, Aug. 17, 1998; 
66 FR 4369, Jan. 17, 2001]



Sec. 922.165  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 activities are 
subject to immediate temporary regulation, including prohibition. 
Emergency regulations shall not take effect in Florida territorial 
waters until approved by the Governor of the State of Florida. Any 
temporary regulation may be in effect for up to 60 days, with one 60-day 
extension. Additional or extended action will require notice and comment 
rulemaking under the Administrative Procedure Act, notice in local 
newspapers, notice to Mariners, and press releases.



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

    (a) National Marine Sanctuary General Permit. (1) A person may 
conduct an activity prohibited by Sec. Sec. 922.163 or 922.164, other 
than an activity involving the survey/inventory, research/recovery, or 
deaccession/transfer of Sanctuary historical resources, if such activity 
is specifically authorized by, and provided such activity is conducted 
in accordance with the scope, purpose, terms and conditions of, a 
National Marine Sanctuary General permit issued under this paragraph 
(a).
    (2) The Director, at his or her discretion, may issue a General 
permit under this paragraph (a), subject to such terms and conditions as 
he or she deems appropriate, if the Director finds that the activity 
will:
    (i) Further research or monitoring related to Sanctuary resources 
and qualities;
    (ii) Further the educational value of the Sanctuary;
    (iii) Further the natural or historical resource value of the 
Sanctuary;
    (iv) Further salvage or recovery operations in or near the Sanctuary 
in connection with a recent air or marine casualty;
    (v) Assist in managing the Sanctuary; or
    (vi) Otherwise further Sanctuary purposes, including facilitating 
multiple use of the Sanctuary, to the extent compatible with the primary 
objective of resource protection.
    (3) The Director shall not issue a General permit under this 
paragraph (a), unless the Director also finds that:
    (i) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (ii) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (iii) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (iv) The methods and procedures proposed by the applicant are 
appropriate to achieve the proposed activity's goals

[[Page 169]]

in relation to the activity's impacts on Sanctuary resources and 
qualities;
    (v) The proposed activity will be conducted in a manner compatible 
with the primary objective of protection of Sanctuary resources and 
qualities, considering the extent to which the conduct of the activity 
may diminish or enhance Sanctuary resources and qualities, any indirect, 
secondary or cumulative effects of the activity, and the duration of 
such effects;
    (vi) It is necessary to conduct the proposed activity within the 
Sanctuary to achieve its purposes; and
    (vii) The reasonably expected end value of the activity to the 
furtherance of Sanctuary goals and purposes outweighs any potential 
adverse impacts on Sanctuary resources and qualities from the conduct of 
the activity.
    (4) 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.
    (b) National Marine Sanctuary Survey/Inventory of Historical 
Resources Permit. (1) A person may conduct an activity prohibited by 
Sec. Sec. 922.163 or 922.164 involving the survey/inventory 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 Survey/Inventory of Historical Resources 
permit issued under this paragraph (b). Such permit is not required if 
such survey/inventory activity does not involve any activity prohibited 
by Sec. Sec. 922.163 or 922.164. Thus, survey/inventory activities that 
are non-intrusive, do not include any excavation, removal, or recovery 
of historical resources, and do not result in destruction of, loss of, 
or injury to Sanctuary resources or qualities do not require a permit. 
However, if a survey/inventory activity will involve test excavations or 
removal of artifacts or materials for evaluative purposes, a Survey/
Inventory of Historical Resources permit is required. Regardless of 
whether a Survey/Inventory permit is required, a person may request such 
permit. 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 paragraph 
(a)(3) of this section;
    (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 
Submerged Cultural Resources in the Florida Keys National Marine 
Sanctuary among NOAA, the Advisory Council on Historic Preservation, and 
the State of Florida (hereinafter SCR Agreement), and that such permit 
issuance is in accordance with such SCR Agreement. Copies of the SCR 
Agreement may also be examined at, and obtained from, the Sanctuaries 
and Reserves Division, Office of Ocean and Coastal Resource Management, 
National Ocean Service, National Oceanic and Atmospheric Administration, 
1305 East-West Highway, 12th floor, Silver Spring, MD 20910; or from the 
Florida Keys National Marine Sanctuary Office, P.O. Box 500368, 
Marathon, FL 33050.

[[Page 170]]

    (c) National Marine Sanctuary Research/Recovery of Sanctuary 
Historical 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 
Historical 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 paragraph (a)(3) of this section;
    (ii) The recovery of the resource is in the public interest as 
described in the SCR Agreement;
    (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 SCR Agreement.
    (d) National Marine Sanctuary Special-use Permit. (1) A person may 
conduct any commercial or concession-type activity prohibited by 
Sec. Sec. 922.163 or 922.164, if such activity is specifically 
authorized by, and is conducted in accordance with the scope, purpose, 
terms and conditions of, a Special-use permit issued under this 
paragraph (d). A Special-use permit is required for the deaccession/
transfer of Sanctuary historical resources.
    (2) The Director, at his or her discretion, may issue a Special-use 
permit in accordance with this paragraph (d), and subject to such terms 
and conditions as he or she deems appropriate and the mandatory terms 
and conditions of section 310 of the NMSA, if the Director finds that 
issuance of such permit is reasonably necessary to: establish conditions 
of access to and use of any Sanctuary resource; or promote public use 
and understanding of any Sanctuary resources. No permit may be issued 
unless the activity is compatible with the purposes for which the 
Sanctuary was designated and can be conducted in a manner that does not 
destroy, cause the loss of, or injure any Sanctuary resource, and if for 
the deaccession/transfer of Sanctuary Historical Resources, unless such 
permit issuance is in accordance with, and that the activity will be 
conducted in accordance with, all requirements of the SCR Agreement.
    (3) The Director may assess and collect fees for the conduct of any 
activity authorized by a Special-use permit issued pursuant to this 
paragraph (d). No Special-use permit shall be effective until all 
assessed fees are paid, unless otherwise provided by the Director by a 
fee schedule set forth as a permit condition. In assessing a fee, the 
Director shall include:
    (i) All costs incurred, or expected to be incurred, in reviewing and 
processing the permit application, including, but not limited to, costs 
for:
    (A) Number of personnel;
    (B) Personnel hours;
    (C) Equipment;
    (D) Biological assessments;
    (E) Copying; and
    (F) Overhead directly related to reviewing and processing the permit 
application;
    (ii) All costs incurred, or expected to be incurred, as a direct 
result of the conduct of the activity for which the Special-use permit 
is being issued, including, but not limited to:
    (A) 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;
    (B) The use of an official NOAA observer, including travel and 
expenses and personnel hours; and
    (C) Overhead costs directly related to the permitted activity; and
    (iii) An amount which represents the fair market value of the use of 
the Sanctuary resource and a reasonable return to the United States 
Government.

[[Page 171]]

    (4) Nothing in this paragraph (d) shall be considered to require a 
person to obtain a permit under this paragraph for the conduct of any 
fishing activities within the Sanctuary.
    (e) Applications. (1) Applications for permits should be addressed 
to the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O. 
Box 500368, Marathon, FL 33050. All applications must include:
    (i) A detailed description of the proposed activity including a 
timetable for completion of the activity and the equipment, personnel 
and methodology to be employed;
    (ii) The qualifications and experience of all personnel;
    (iii) The financial resources available to the applicant to conduct 
and complete the proposed activity;
    (iv) A statement as to why it is necessary to conduct the activity 
within the Sanctuary;
    (v) The potential impacts of the activity, if any, on Sanctuary 
resources and qualities;
    (vi) The benefit to be derived from the activity; and
    (vii) Such other information as the Director may request depending 
on the type of activity. Copies of all other required licenses, permits, 
approvals, or other authorizations must be attached to the application.
    (2) Upon receipt of an application, the Director may request such 
additional information from the applicant as he or she deems reasonably 
necessary to act on the application and may seek the views of any 
persons. The Director may require a site visit as part of the permit 
evaluation. Unless otherwise specified, the information requested must 
be received by the Director within 30 days of the postmark date of the 
request. Failure to provide such additional information on a timely 
basis may be deemed by the Director to constitute abandonment or 
withdrawal of the permit application.
    (f) A permit may be issued for a period not exceeding five years. 
All permits will be reviewed annually to determine the permittee's 
compliance with permit scope, purpose, terms and conditions and progress 
toward reaching the stated goals and appropriate action taken under 
paragraph (g) of this section if warranted. A permittee may request 
permit renewal pursuant to the same procedures for applying for a new 
permit. Upon the permittee's request for renewal, the Director shall 
review all reports submitted by the permittee as required by the permit 
conditions. In order to renew the permit, the Director must find that 
the:
    (1) Activity will continue to further the purposes for which the 
Sanctuary was designated in accordance with the criteria applicable to 
the initial issuance of the permit;
    (2) Permittee has at no time violated the permit, or these 
regulations; and
    (3) The activity has not resulted in any unforeseen adverse impacts 
to Sanctuary resources or qualities.
    (g) The Director may amend, suspend, or revoke a permit for good 
cause. The Director may deny a permit application, in whole or in part, 
if it is determined that the permittee or applicant has acted in 
violation of a previous permit, of these regulations, of the NMSA or 
FKNMSPA, or for other good cause. Any such action shall be communicated 
in writing to the permittee or applicant by certified mail and shall set 
forth the reason(s) for the action taken. Procedures governing permit 
sanctions and denials for enforcement reasons are set forth in Subpart D 
of 15 CFR part 904.
    (h) The applicant for or holder of a National Marine Sanctuary 
permit may appeal the denial, conditioning, amendment, suspension or 
revocation of the permit in accordance with the procedures set forth in 
Sec. 922.50.
    (i) A permit issued pursuant to this section other than a Special-
use permit is nontransferable. Special-use permits may be transferred, 
sold, or assigned with the written approval of the Director. The 
permittee shall provide the Director with written notice of any proposed 
transfer, sale, or assignment no less than 30 days prior to its proposed 
consummation. Transfers, sales, or assignments consummated in violation 
of this requirement shall be considered a material breach of the 
Special-use permit, and the permit shall be considered void as of the 
consummation of any such transfer, sale, or assignment.

[[Page 172]]

    (j) The permit or a copy thereof shall be maintained in legible 
condition on board all vessels or aircraft used in the conduct of the 
permitted activity and be displayed for inspection upon the request of 
any authorized officer.
    (k) Any permit issued pursuant to this section shall be subject to 
the following terms and conditions:
    (1) All permitted activities shall be conducted in a manner that 
does not destroy, cause the loss of, or injure Sanctuary resources or 
qualities, except to the extent that such may be specifically 
authorized.
    (2) The permittee agrees to hold the United States harmless against 
any claims arising out of the conduct of the permitted activities.
    (3) All necessary Federal, State, and local permits from all 
agencies with jurisdiction over the proposed activities shall be secured 
before commencing field operations.
    (l) In addition to the terms and conditions listed in paragraph (k) 
of this section, any permit authorizing the research/recovery of 
historical resources shall be subject to the following terms and 
conditions:
    (1) A professional archaeologist shall be in charge of planning, 
field recovery operations, and research analysis.
    (2) 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.
    (3) 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 
historical 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 historical 
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 SCR Agreement).
    (4) The site's archaeological information is fully documented, 
including measured drawings, site maps drawn to professional standards, 
and photographic records.
    (m) In addition to the terms and conditions listed in paragraph (k) 
and (l) of this section, any permit issued pursuant to this section is 
subject to such other terms and conditions, including conditions 
governing access to, or use of, Sanctuary resources, as the Director 
deems reasonably necessary or appropriate and in furtherance of the 
purposes for which the Sanctuary is designated. Such terms and 
conditions may include, but are not limited to:
    (1) Any data or information obtained under the permit shall be made 
available to the public.
    (2) A NOAA official shall be allowed to observe any activity 
conducted under the permit.
    (3) The permittee shall submit one or more reports on the status, 
progress, or results of any activity authorized by the permit.
    (4) The permittee shall submit an annual report to the Director not 
later than December 31 of each year on activities conducted pursuant to 
the permit. The report shall describe all activities conducted under the 
permit and all revenues derived from such activities during the year 
and/or term of the permit.
    (5) The permittee shall purchase and maintain general liability 
insurance or other acceptable security against potential claims for 
destruction, loss of, or injury to Sanctuary resources arising out of 
the permitted activities. The amount of insurance or security should be 
commensurate with an estimated value of the Sanctuary resources in the 
permitted area. A copy of the insurance policy or security instrument 
shall be submitted to the Director.



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

    (a) A person may enter the Tortugas North area of the Tortugas 
Ecological Reserve other than for passage without interruption through 
the reserve, for

[[Page 173]]

law enforcement purposes, or for purposes of monitoring pursuant to 
paragraph (d)(2) of Sec. 922.164 , if authorized by a valid access 
permit issued pursuant to Sec. 922.167.
    (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 any of the following numbers:

Key West office: telephone: (305) 292-0311
Marathon office: telephone: (305) 743-2437

    (2) The following information must be provided, as applicable:
    (i) Vessel name.
    (ii) Name, address, and telephone number of owner and operator.
    (iii) Name, address, and telephone number of applicant.
    (iv) USCG documentation, state license, or registration number.
    (v) Home port.
    (vi) Length of vessel and propulsion type (i.e., motor or sail).
    (vii) Number of divers.
    (viii) Requested effective date and duration of permit (2 weeks, 
maximum).
    (c) The Sanctuary Superintendent will issue a permit to the owner or 
to the owner's representative for the vessel when all applicable 
information has been provided. The Sanctuary Superintendent will provide 
a permit number to the applicant and confirm the effective date and 
duration period of the permit. Written confirmation of permit issuance 
will be provided upon request.

[66 FR 4370, Jan. 17, 2001]



Sec. 922.168  Certification of preexisting leases, licenses, permits, 

approvals, other authorizations, or rights to conduct a prohibited 
activity.

    (a) A person may conduct an activity prohibited by Sec. Sec. 
922.163 or 922.164 if such activity is specifically authorized by a 
valid Federal, State, or local lease, permit, license, approval, or 
other authorization in existence on July 1, 1997, or by any valid right 
of subsistence use or access in existence on July 1, 1997, provided 
that:
    (1) The holder of such authorization or right notifies the Director, 
in writing, within 90 days of July 1, 1997, of the existence of such 
authorization or right and requests certification of such authorization 
or right; for the area added to the Sanctuary by the boundary expansion 
for the Tortugas Ecological Reserve, the holder of such authorization or 
right notifies the Director, in writing, within 90 days of the effective 
date of the boundary expansion, of the existence of such authorization 
or right and requests certification of such authorization or right.
    (2) The holder complies with the other provisions of this Sec. 
922.168; and
    (3) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as a condition of 
certification, by the Director, to achieve the purposes for which the 
Sanctuary was designated.
    (b) The holder of an authorization or right described in paragraph 
(a) of this section authorizing an activity prohibited by Secs. 922.163 
or 922.164 may conduct the activity without being in violation of 
applicable provisions of Secs. 922.163 or 922.164, pending final agency 
action on his or her certification request, provided the holder is in 
compliance with this Sec. 922.168.
    (c) Any holder of an authorization or right described in paragraph 
(a) of this section may request the Director to issue a finding as to 
whether the activity for which the authorization has been issued, or the 
right given, is prohibited by Secs. 922.163 or 922.164, thus requiring 
certification under this section.
    (d) Requests for findings or certifications should be addressed to 
the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O. 
Box 500368, Marathon, FL 33050. A copy of the lease, permit, license, 
approval, or other authorization must accompany the request.
    (e) The Director may request additional information from the 
certification requester as he or she deems reasonably necessary to 
condition appropriately the exercise of the certified authorization or 
right to achieve the purposes for which the Sanctuary was

[[Page 174]]

designated. The information requested must be received by the Director 
within 45 days of the postmark date of the request. The Director may 
seek the views of any persons on the certification request.
    (f) The Director may amend any certification made under this Sec. 
922.168 whenever additional information becomes available justifying 
such an amendment.
    (g) Upon completion of review of the authorization or right and 
information received with respect thereto, the Director shall 
communicate, in writing, any decision on a certification request or any 
action taken with respect to any certification made under this Sec. 
922.168, in writing, to both the holder of the certified lease, permit, 
license, approval, other authorization, or right, and the issuing 
agency, and shall set forth the reason(s) for the decision or action 
taken.
    (h) Any time limit prescribed in or established under this Sec. 
922.168 may be extended by the Director for good cause.
    (i) The holder may appeal any action conditioning, amending, 
suspending, or revoking any certification in accordance with the 
procedures set forth in Sec. 922.50.
    (j) Any amendment, renewal, or extension made after July 1, 1997, to 
a lease, permit, license, approval, other authorization or right is 
subject to the provisions of Sec. 922.49.

[66 FR 4369, Jan. 17, 2001]

   Appendix I to Subpart P of Part 922--Florida Keys National Marine 
                     Sanctuary Boundary Coordinates

            (Appendix Based on North American Datum of 1983)

    (1) The boundary of the Florida Keys National Marine Sanctuary--
    (a) Begins at the northeasternmost point of Biscayne National Park 
located at approximately 25 degrees 39 minutes north latitude, 80 
degrees 05 minutes west longitude, then runs eastward to the point at 25 
degrees 39 minutes north latitude, 80 degrees 04 minutes west longitude; 
and
    (b) Then runs southward and connects in succession the points at the 
following coordinates:
    (i) 25 degrees 34 minutes north latitude, 80 degrees 04 minutes west 
longitude,
    (ii) 25 degrees 28 minutes north latitude, 80 degrees 05 minutes 
west longitude, and
    (iii) 25 degrees 21 minutes north latitude, 80 degrees 07 minutes 
west longitude;
    (iv) 25 degrees 16 minutes north latitude, 80 degrees 08 minutes 
west longitude;
    (c) Then runs southwesterly approximating the 300-foot isobath and 
connects in succession the points at the following coordinates:
    (i) 25 degrees 07 minutes north latitude, 80 degrees 13 minutes west 
longitude,
    (ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes 
west longitude,
    (iii) 24 degrees 39 minutes north latitude, 80 degrees 52 minutes 
west longitude,
    (iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes 
west longitude,
    (v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes west 
longitude,
    (vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes 
west longitude,
    (vii) 24 degrees 37 minutes north latitude, 83 degrees 06 minutes 
west longitude,
    (viii) 24 degrees 46 minutes north latitude, 83 degrees 06 minutes 
west longitude,
    (ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes 
west longitude,
    (x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes west 
longitude,
    (xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes 
west longitude, and
    (xii) 24 degrees 55 minutes north latitude, 80 degrees 56 minutes 
west longitude;
    (d) Then follows the boundary of Everglades National Park in a 
southerly then northeasterly direction through Florida Bay, Buttonwood 
Sound, Tarpon Basin, and Blackwater Sound;
    (e) After Division Point, then departs from the boundary of 
Everglades National Park and follows the western shoreline of Manatee 
Bay, Barnes Sound, and Card Sound;
    (f) then follows the southern boundary of Biscayne National Park to 
the southeasternmost point of Biscayne National Park; and
    (g) then follows the eastern boundary of Biscayne National Park to 
the beginning point specified in paragraph (a).
    (2) The shoreward boundary of the Florida Keys National Marine 
Sanctuary is the mean high-water mark except around the Dry Tortugas 
where the boundary is coterminous with that of the Dry Tortugas National 
Park, formed by connecting in succession the points at the following 
coordinates:
    (a) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 54 
minutes 0 seconds west longitude;
    (b) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 58 
minutes 0 second west longitude;
    (c) 24 degrees 39 minutes 0 seconds north latitude, 82 degrees 58 
minutes 0 seconds west longitude;
    (d) 24 degrees 43 minutes 0 seconds north latitude, 82 degrees 54 
minutes 0 seconds west longitude;

[[Page 175]]

    (e) 24 degrees 43 minutes 32 seconds north latitude, 82 degrees 52 
minutes 0 seconds west longitude;
    (f) 24 degrees 43 minutes 32 seconds north latitude, 82 degrees 48 
minutes 0 seconds west longitude;
    (g) 24 degrees 42 minutes 0 seconds north latitude, 82 degrees 46 
minutes, 0 seconds west longitude;
    (h) 24 degrees 40 minutes 0 seconds north latitude, 82 degrees 46 
minutes 0 seconds west longitude;
    (i) 24 degrees 37 minutes 0 seconds north latitude, 82 degrees 48 
minutes 0 seconds west longitude; and
    (j) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 54 
minutes 0 seconds west longitude.
    (3) The Florida Keys National Marine Sanctuary also includes the 
area located within the boundary formed by connecting in succession the 
points at the following coordinates:
    (a) 24 degrees 33 minutes north latitude, 83 degrees 09 minutes west 
longitude,
    (b) 24 degrees 33 minutes north latitude, 83 degrees 05 minutes west 
longitude, and
    (c) 24 degrees 18 minutes north latitude, 83 degrees 05 minutes west 
longitude;
    (d) 24 degrees 18 minutes north latitude, 83 degrees 09 minutes west 
longitude; and
    (e) 24 degrees 33 minutes north latitude, 83 degrees 09 minutes west 
longitude.

[66 FR 4370, Jan. 17, 2001]

Appendix II to Subpart P of Part 922--Existing Management Areas Boundary 
                               Coordinates

    (1) The boundary of each of the Existing Management Areas is formed 
by connecting in succession the points at the following coordinates:

             National Oceanic and Atmospheric Administration

                        Key Largo-Management Area
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25                    80
                                 deg.19[min]45[sec]    deg.12[min]00[sec
                                 N                     ] W.
2.............................  25                    80
                                 deg.16[min]02[sec]    deg.08[min]07[sec
                                 N                     ] W.
3.............................  25                    80
                                 deg.07[min]05[sec]    deg.12[min]05[sec
                                 N                     ] W.
4.............................  24                    80
                                 deg.58[min]03[sec]    deg.19[min]08[sec
                                 N                     ] W.
5.............................  25                    80
                                 deg.02[min]02[sec]    deg.25[min]25[sec
                                 N                     ] W.
6.............................  25                    80
                                 deg.19[min]45[sec]    deg.12[min]00[sec
                                 N                     ] W.
------------------------------------------------------------------------


                        Looe Key Management Area
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24                    81
                                 deg.31[min]62[sec]    deg.26[min]00[sec
                                 N                     ] W.
2.............................  24                    81
                                 deg.33[min]57[sec]    deg.26[min]00[sec
                                 N                     ] W.
3.............................  24                    81
                                 deg.34[min]15[sec]    deg.23[min]00[sec
                                 N                     ] W.
4.............................  24                    81
                                 deg.32[min]20[sec]    deg.23[min]00[sec
                                 N                     ] W.
5.............................  24                    81
                                 deg.31[min]62[sec]    deg.26[min]00[sec
                                 N                     ] W.
------------------------------------------------------------------------

                 United States Fish and Wildlife Service

               Great White Heron National Wildlife Refuge
               [Based on the North American Datum of 1983]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.43.8[min] N    81 deg.48.6[min]
                                                       W.
2.............................  24 deg.43.8[min] N    81 deg.37.2[min]
                                                       W.
3.............................  24 deg.49.2[min] N    81 deg.37.2[min]
                                                       W.
4.............................  24 deg.49.2[min] N    81 deg.19.8[min]
                                                       W.
5.............................  24 deg.48.0[min] N    81 deg.19.8[min]
                                                       W.
6.............................  24 deg.48.0[min] N    81 deg.14.4[min]
                                                       W.
7.............................  24 deg.49.2[min] N    81 deg.14.4[min]
                                                       W.
8.............................  24 deg.49.2[min] N    81 deg.08.4[min]
                                                       W.
9.............................  24 deg.43.8[min] N    81 deg.08.4[min]
                                                       W.
10............................  24 deg.43.8[min] N    81 deg.14.4[min]
                                                       W.
11............................  24 deg.43.2[min] N    81 deg.14.4[min]
                                                       W.
12............................  24 deg.43.2[min] N    81 deg.16.2[min]
                                                       W.
13............................  24 deg.42.6[min] N    81 deg.16.2[min]
                                                       W.
14............................  24 deg.42.6[min] N    81 deg.21.0[min]
                                                       W.
15............................  24 deg.41.4[min] N    81 deg.21.0[min]
                                                       W.
16............................  24 deg.41.4[min] N    81 deg.22.2[min]
                                                       W.
17............................  24 deg.43.2[min] N    81 deg.22.2[min]
                                                       W.
18............................  24 deg.43.2[min] N    81 deg.22.8[min]
                                                       W.
19............................  24 deg.43.8[min] N    81 deg.22.8[min]
                                                       W.
20............................  24 deg.43.8[min] N    81 deg.24.0[min]
                                                       W.
21............................  24 deg.43.2[min] N    81 deg.24.0[min]
                                                       W.
22............................  24 deg.43.2[min] N    81 deg.26.4[min]
                                                       W.
23............................  24 deg.43.8[min] N    81 deg.26.4[min]
                                                       W.
24............................  24 deg.43.8[min] N    81 deg.27.0[min]
                                                       W.
25............................  24 deg.43.2[min] N    81 deg.27.0[min]
                                                       W.
26............................  24 deg.43.2[min] N    81 deg.29.4[min]
                                                       W.
27............................  24 deg.42.6[min] N    81 deg.29.4[min]
                                                       W.
28............................  24 deg.42.6[min] N    81 deg.30.6[min]
                                                       W.
29............................  24 deg.41.4[min] N    81 deg.30.6[min]
                                                       W.
30............................  24 deg.41.4[min] N    81 deg.31.2[min]
                                                       W.
31............................  24 deg.40.8[min] N    81 deg.31.2[min]
                                                       W.
32............................  24 deg.40.8[min] N    81 deg.32.4[min]
                                                       W.
33............................  24 deg.41.4[min] N    81 deg.32.4[min]
                                                       W.
34............................  24 deg.41.4[min] N    81 deg.34.2[min]
                                                       W.
35............................  24 deg.40.8[min] N    81 deg.34.2[min]
                                                       W.
36............................  24 deg.48.0[min] N    81 deg.35.4[min]
                                                       W.
37............................  24 deg.39.6[min] N    81 deg.35.4[min]
                                                       W.
38............................  24 deg.39.6[min] N    81 deg.36.0[min]
                                                       W.
39............................  24 deg.39.0[min] N    81 deg.36.0[min]
                                                       W.
40............................  24 deg.39.0[min] N    81 deg.37.2[min]
                                                       W.
41............................  24 deg.37.8[min] N    81 deg.37.2[min]
                                                       W.
42............................  24 deg.37.8[min] N    81 deg.37.8[min]
                                                       W.
43............................  24 deg.37.2[min] N    81 deg.37.8[min]
                                                       W.
44............................  24 deg.37.2[min] N    81 deg.40.2[min]
                                                       W.
45............................  24 deg.36.0[min] N    81 deg.40.2[min]
                                                       W.
46............................  24 deg.36.0[min] N    81 deg.40.8[min]
                                                       W.
47............................  24 deg.35.4[min] N    81 deg.40.8[min]
                                                       W.
48............................  24 deg.35.4[min] N    81 deg.42.0[min]
                                                       W.
49............................  24 deg.36.0[min] N    81 deg.42.0[min]
                                                       W.
50............................  24 deg.36.0[min] N    81 deg.48.6[min]
                                                       W.
51............................  24 deg.43.8[min] N    81 deg.48.6[min]
                                                       W.
------------------------------------------------------------------------


                    Key West National Wildlife Refuge
               [Based on the North American Datum of 1983]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.40.0[min] N    81 deg.49.0[min]
                                                       W.

[[Page 176]]

 
2.............................  24 deg.40.0[min] N    82 deg.10.0[min]
                                                       W.
3.............................  24 deg.27.0[min] N    82 deg.10.0[min]
                                                       W.
4.............................  24 deg.27.0[min] N    81 deg.49.0[min]
                                                       W.
5.............................  24 deg.40.0[min] N    81 deg.49.0[min]
                                                       W.
------------------------------------------------------------------------

    (2) When differential Global Positioning Systems data becomes 
available, these coordinates may be publication in the Federal Register 
to reflect the increased accuracy of such data.

[66 FR 4371, Jan. 17, 2001]

Appendix III to Subpart P of Part 922--Wildlife Management Areas Access 
                              Restrictions

------------------------------------------------------------------------
                   Area                          Access restrictions
------------------------------------------------------------------------
Bay Keys..................................  No-motor zone (300 feet)
                                             around one key; idle speed
                                             only/no-wake zones in tidal
                                             creeks.
Boca Grande Key...........................  South one-half of beach
                                             closed (beach above mean
                                             high water closed by
                                             Department of the
                                             Interior).
Woman Key.................................  One-half of beach and sand
                                             spit on southeast side
                                             closed (beach and sand spit
                                             above mean high water
                                             closed by Department of the
                                             Interior).
Cayo Agua Keys............................   Idle speed only/no-wake
                                             zones in all navigable
                                             tidal creeks.
Cotton Key................................  No-motor zone on tidal flat.
Snake Creek...............................  No-motor zone on tidal flat.
Cottrell Key..............................  No-motor zone (300 feet)
                                             around entire key.
Little Mullet Key.........................  No-access buffer zone (300
                                             feet) around entire key.
Big Mullet Key............................  No-motor zone (300 feet)
                                             around entire key.
Crocodile Lake............................  No-access buffer zone (100
                                             feet) along shoreline
                                             between March 1 and October
                                             1.
East Harbor Key...........................  No-access buffer zone (300
                                             feet) around northernmost
                                             island.
Lower Harbor Keys.........................  Idle speed only/no-wake
                                             zones in selected tidal
                                             creeks.
Eastern Lake Surprise.....................  Idle speed only/no-wake zone
                                             east of highway U.S. 1.
Horseshoe Key.............................  No-access buffer zone (300
                                             feet) around main island
                                             (main island closed by
                                             Department of the
                                             Interior).
Marquesas Keys............................  (i) No-motor zones (300
                                             feet) around three smallest
                                             keys on western side of
                                             chain; (ii) no-access
                                             buffer zone (300 feet)
                                             around one island at
                                             western side of chain;
                                             (iii) idle speed only/no-
                                             wake zone in southwest
                                             tidal creek.
Tidal flat south of Marvin Key............  No-access buffer zone on
                                             tidal flat.
Mud Keys..................................  (i) Idle speed only/no-wake
                                             zones in the two main tidal
                                             creeks; (ii) two smaller
                                             creeks on west side closed.
Pelican Shoal.............................  No-access buffer zone out to
                                             50 meters from shore
                                             between April 1 and August
                                             31 (shoal closed by the
                                             Florida Game and Freshwater
                                             Fish Commission).
Rodriguez Key.............................  No-motor zone on tidal
                                             flats.
Dove Key..................................  No-motor zone on tidal
                                             flats; area around the two
                                             small islands closed.
Tavernier Key.............................  No-motor zone on tidal
                                             flats.
Sawyer Keys...............................  Tidal creeks on south side
                                             closed.
Snipe Keys................................  (i) Idle speed only/no-wake
                                             zone in main tidal creek;
                                             (ii) no-motor zone in all
                                             other tidal creeks.
Upper Harbor Key..........................  No-access buffer zone (300
                                             feet) around entire key.
East Content Keys.........................  Idle speed only/no-wake
                                             zones in tidal creeks
                                             between southwesternmost
                                             keys.
West Content Keys.........................  Idle speed only/no-wake
                                             zones in selected tidal
                                             creeks; no-access buffer
                                             zone in one cove.
Little Crane Key..........................  No-access buffer zone (300
                                             feet) around entire key.
------------------------------------------------------------------------

   Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary

                               Coordinates

    (1) The boundary of the Western Sambo Ecological Reserve is formed 
by connecting in succession the points at the following coordinates:

                              Western Sambo
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.33.70[min] N.  81 deg.40.80[min]
                                                       W.
2.............................  24 deg.28.85[min] N.  81 deg.41.90[min]
                                                       W.
3.............................  24 deg.28.50[min] N.  81 deg.43.70[min]
                                                       W.
4.............................  24 deg.33.50[min] N.  81 deg.43.10[min]
                                                       W.
5.............................  24 deg.33.70[min] N.  81 deg.40.80[min]
                                                       W.
------------------------------------------------------------------------

    (2) The Tortugas Ecological Reserve consists of two discrete areas, 
Tortugas North and Tortugas South.
    (3) The boundary of Tortugas North is formed by connecting in 
succession the points at the following coordinates:

[[Page 177]]



                             Tortugas North
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.46.00[min] N.  83 deg.06.00[min]
                                                       W.
2.............................  24 deg.46.00[min] N.  82 deg.54.00[min]
                                                       W.
3.............................  24 deg.45.80[min] N.  82 deg.48.00[min]
                                                       W.
4.............................  24 deg.43.53[min] N.  82 deg.48.00[min]
                                                       W.
5.............................  24 deg.43.53[min] N.  82 deg.52.00[min]
                                                       W.
6.............................  24 deg.43.00[min] N.  82 deg.54.00[min]
                                                       W.
7.............................  24 deg.39.00[min] N.  82 deg.58.00[min]
                                                       W.
8.............................  24 deg.39.00[min] N.  83 deg.06.00[min]
                                                       W.
9.............................  24 deg.46.00[min] N.  83 deg.06.00[min]
                                                       W.
------------------------------------------------------------------------

    (4) The boundary of Tortugas South is formed by connecting in 
succession the points at the following coordinates:

                             Tortugas South
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.33.00[min] N.  83 deg.09.00[min]
                                                       W.
2.............................  24 deg.33.00[min] N.  83 deg.05.00[min]
                                                       W.
3.............................  24 deg.18.00[min] N.  83 deg.05.00[min]
                                                       W.
4.............................  24 deg.18.00[min] N.  83 deg.09.00[min]
                                                       W.
5.............................  24 deg.33.00[min] N.  83 deg.09.00[min]
                                                       W.
------------------------------------------------------------------------


[66 FR 4372, Jan. 17, 2001]

   Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas 
                          Boundary Coordinates

    The boundary of each of the Sanctuary Preservation Areas (SPAs) is 
formed by connecting in succession the points at the following 
coordinates:

                             Alligator Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitute             Longitude
------------------------------------------------------------------------
1.............................  24 deg.50.98[min] N   80 deg.36.84[min]
                                                       W.
2.............................  24 deg.50.51[min] N   80 deg.37.35[min]
                                                       W.
3.............................  24 deg.50.81[min] N   80 deg.37.63[min]
                                                       W.
4.............................  24 deg.51.23[min] N   80 deg.37.17[min]
                                                       W.
5.............................  24 deg.50.98[min] N   80 deg.36.84[min]
                                                       W.
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this SPA.

                     Carysfort/South Carysfort Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.13.78[min] N   80 deg.12.00[min]
                                                       W.
2.............................  25 deg.12.03[min] N   80 deg.12.98[min]
                                                       W.
3.............................  25 deg.12.24[min] N   80 deg.13.77[min]
                                                       W.
4.............................  25 deg.14.13[min] N   80 deg.12.78[min]
                                                       W.
5.............................  25 deg.13.78[min] N   80 deg.12.00[min]
                                                       W.
------------------------------------------------------------------------


                              Cheeca Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.54.42[min] N   80 deg.36.91[min]
                                                       W.
2.............................  24 deg.54.25[min] N   80 deg.36.77[min]
                                                       W.
3.............................  24 deg.54.10[min] N   80 deg.37.00[min]
                                                       W.
4.............................  24 deg.54.22[min] N   80 deg.37.15[min]
                                                       W.
5.............................  24 deg.54.42[min] N   80 deg.36.91[min]
                                                       W.
------------------------------------------------------------------------


                              Coffins Patch
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.41.47[min] N   80 deg.57.68[min]
                                                       W.
2.............................  24 deg.41.12[min] N   80 deg.57.53[min]
                                                       W.
3.............................  24 deg.40.75[min] N   80 deg.58.33[min]
                                                       W.
4.............................  24 deg.41.06[min] N   80 deg.58.48[min]
                                                       W.
5.............................  24 deg.41.47[min] N   80 deg.57.68[min]
                                                       W.
------------------------------------------------------------------------


                               Conch Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.57.48[min] N   80 deg.27.47[min]
                                                       W.
2.............................  24 deg.57.34[min] N   80 deg.27.26[min]
                                                       W.
3.............................  24 deg.56.78[min] N   80 deg.27.52[min]
                                                       W.
4.............................  24 deg.56.96[min] N   80 deg.27.73[min]
                                                       W.
5.............................  24 deg.57.48[min] N   80 deg.27.47[min]
                                                       W.
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this SPA.

                               Davis Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.55.61[min] N   80 deg.30.27[min]
                                                       W.
2.............................  24 deg.55.41[min] N   80 deg.30.05[min]
                                                       W.
3.............................  24 deg.55.11[min] N   80 deg.30.35[min]
                                                       W.
4.............................  24 deg.55.34[min] N   80 deg.30.52[min]
                                                       W.
5.............................  24 deg.55.61[min] N   80 deg.30.27[min]
                                                       W.
------------------------------------------------------------------------


                                Dry Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.07.59[min] N   80 deg.17.91[min]
                                                       W.
2.............................  25 deg.07.41[min] N   80 deg.17.70[min]
                                                       W.
3.............................  25 deg.07.25[min] N   80 deg.17.82[min]
                                                       W.
4.............................  25 deg.07.41[min] N   80 deg.18.09[min]
                                                       W.
5.............................  25 deg.07.59[min] N   80 deg.17.91[min]
                                                       W.
------------------------------------------------------------------------


                              Grecian Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.06.91[min] N   80 deg.18.20[min]
                                                       W.
2.............................  25 deg.06.67[min] N   80 deg.18.06[min]
                                                       W.
3.............................  25 deg.06.39[min] N   80 deg.18.32[min]
                                                       W.
4.............................  25 deg.06.42[min] N   80 deg.18.48[min]
                                                       W.
5.............................  25 deg.06.81[min] N   80 deg.18.44[min]
                                                       W.
6.............................  25 deg.06.91[min] N   80 deg.18.20[min]
                                                       W.
------------------------------------------------------------------------


[[Page 178]]


                            Eastern Dry Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.27.92[min] N   81 deg.50.55[min]
                                                       W.
2.............................  24 deg.27.73[min] N   81 deg.50.33[min]
                                                       W.
3.............................  24 deg.27.47[min] N   81 deg.50.80[min]
                                                       W.
4.............................  24 deg.27.72[min] N   81 deg.50.86[min]
                                                       W.
5.............................  24 deg.27.92[min] N   81 deg.50.55[min]
                                                       W.
------------------------------------------------------------------------


                                The Elbow
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.08.97[min] N   80 deg.15.63[min]
                                                       W.
2.............................  25 deg.08.95[min] N   80 deg.15.22[min]
                                                       W.
3.............................  25 deg.08.18[min] N   80 deg.15.64[min]
                                                       W.
4.............................  25 deg.08.50[min] N   80 deg.16.07[min]
                                                       W.
5.............................  25 deg.08.97[min] N   80 deg.15.63[min]
                                                       W.
------------------------------------------------------------------------


                               French Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.02.20[min] N   80 deg.20.63[min]
                                                       W.
2.............................  25 deg.01.81[min] N   80 deg.21.02[min]
                                                       W.
3.............................  25 deg.02.36[min] N   80 deg.21.27[min]
                                                       W.
4.............................  25 deg.02.20[min] N   80 deg.20.63[min]
                                                       W.
------------------------------------------------------------------------


                            Hen and Chickens
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.56.38[min] N   80 deg.32.86[min]
                                                       W.
2.............................  24 deg.56.21[min] N   80 deg.32.63[min]
                                                       W.
3.............................  24 deg.55.86[min] N   80 deg.32.95[min]
                                                       W.
4.............................  24 deg.56.04[min] N   80 deg.33.19[min]
                                                       W.
5.............................  24 deg.56.38[min] N   80 deg.32.86[min]
                                                       W.
------------------------------------------------------------------------


                                Looe Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.33.24[min] N   81 deg.24.03[min]
                                                       W.
2.............................  24 deg.32.70[min] N   81 deg.23.85[min]
                                                       W.
3.............................  24 deg.32.52[min] N   81 deg.24.70[min]
                                                       W.
4.............................  24 deg.33.12[min] N   81 deg.24.81[min]
                                                       W.
5.............................  24 deg.33.24[min] N   81 deg.24.03[min]
                                                       W.
------------------------------------------------------------------------


                              Molasses Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.01.00[min] N   80 deg.22.53[min]
                                                       W.
2.............................  25 deg.01.06[min] N   80 deg.21.84[min]
                                                       W.
3.............................  25 deg.00.29[min] N   80 deg.22.70[min]
                                                       W.
4.............................  25 deg.00.72[min] N   80 deg.22.83[min]
                                                       W.
5.............................  25 deg.01.00[min] N   80 deg.22.53[min]
                                                       W.
------------------------------------------------------------------------


                           Newfound Harbor Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.37.10[min] N   81 deg.23.34[min]
                                                       W.
2.............................  24 deg.36.85[min] N   81 deg.23.28[min]
                                                       W.
3.............................  24 deg.36.74[min] N   81 deg.23.80[min]
                                                       W.
4.............................  24 deg.37.00[min] N   81 deg.23.86[min]
                                                       W.
5.............................  24 deg.37.10[min] N   81 deg.23.34[min]
                                                       W.
------------------------------------------------------------------------


                                Rock Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.27.48[min] N   81 deg.51.35[min]
                                                       W.
2.............................  24 deg.27.30[min] N   81 deg.51.15[min]
                                                       W.
3.............................  24 deg.27.21[min] N   81 deg.51.60[min]
                                                       W.
4.............................  24 deg.27.45[min] N   81 deg.51.65[min]
                                                       W.
5.............................  24 deg.27.48[min] N   81 deg.51.35[min]
                                                       W.
------------------------------------------------------------------------


                                Sand Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.27.58[min] N   81 deg.52.29[min]
                                                       W.
2.............................  24 deg.27.01[min] N   81 deg.52.32[min]
                                                       W.
3.............................  24 deg.27.02[min] N   81 deg.52.95[min]
                                                       W.
4.............................  24 deg.27.61[min] N   81 deg.52.94[min]
                                                       W.
5.............................  24 deg.27.58[min] N   81 deg.52.29[min]
                                                       W.
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this SPA.

                              Sombrero Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.37.91[min] N   81 deg.06.78[min]
                                                       W.
2.............................  24 deg.37.50[min] N   81 deg.06.19[min]
                                                       W.
3.............................  24 deg.37.25[min] N   81 deg.06.89[min]
                                                       W.
4.............................  24 deg.37.91[min] N   81 deg.06.78[min]
                                                       W.
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this SPA.

[66 FR 4373, Jan. 17, 2001]

    Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary 
                    Coordinates and Use Designations

    The boundary of each of the Special-Use is formed by connecting in 
succession the points at the following coordinates:

                               Conch Reef
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.56.83[min] N   80 deg.27.26[min]
                                                       W.
2.............................  24 deg.57.10[min] N   80 deg.26.93[min]
                                                       W.
3.............................  24 deg.56.99[min] N   80 deg.27.42[min]
                                                       W.
4.............................  24 deg.57.34[min] N   80 deg.27.26[min]
                                                       W.

[[Page 179]]

 
5.............................  24 deg.56.83[min] N   80 deg.27.26[min]
                                                       W.
------------------------------------------------------------------------


                              Eastern Sambo
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.29.84[min] N   81 deg.39.59[min]
                                                       W.
2.............................  24 deg.29.55[min] N   81 deg.39.35[min]
                                                       W.
3.............................  24 deg.29.37[min] N   81 deg.39.96[min]
                                                       W.
4.............................  24 deg.29.77[min] N   81 deg.40.03[min]
                                                       W.
5.............................  24 deg.29.84[min] N   81 deg.39.59[min]
                                                       W.
------------------------------------------------------------------------


                                Looe Key
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.34.17[min] N   81 deg.23.01[min]
                                                       W.
2.............................  24 deg.33.98[min] N   81 deg.22.96[min]
                                                       W.
3.............................  24 deg.33.84[min] N   81 deg.23.60[min]
                                                       W.
4.............................  24 deg.34.23[min] N   81 deg.23.68[min]
                                                       W.
5.............................  24 deg.34.17[min] N   81 deg.23.01[min]
                                                       W.
------------------------------------------------------------------------


                             Tennessee Reef
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.44.77[min] N   80 deg.47.12[min]
                                                       W.
2.............................  24 deg.44.57[min] N   80 deg.46.98[min]
                                                       W.
3.............................  24 deg.44.68[min] N   80 deg.46.59[min]
                                                       W.
4.............................  24 deg.44.95[min] N   80 deg.46.74[min]
                                                       W.
5.............................  24 deg.44.77[min] N   80 deg.47.12[min]
                                                       W.
------------------------------------------------------------------------


[66 FR 4376, Jan. 17, 2001]

  Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary 
                               Coordinates

                   In The Vicinity of the Florida Keys
 [Reference Charts: United States 11466, 27th Edition--September 1, 1990
          and United States 11450, 4th Edition--August 11,1990]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25[deg]45.00[min]N    80[deg]06.10[min]W
2.............................  25[deg]38.70[min]N    80[deg]02.70[min]W
3.............................  25[deg]22.00[min]N    80[deg]03.00[min]W
4.............................  25[deg]06.38[min]N    80[deg]10.48[min]W
5.............................  24[deg]56.37[min]N    80[deg]19.26[min]W
6.............................  24[deg]37.90[min]N    80[deg]47.30[min]W
7.............................  24[deg]29.20[min]N    81[deg]17.30[min]W
8.............................  24[deg]22.30[min]N    81[deg]43.17[min]W
9.............................  24[deg]28.00[min]N    81[deg]43.17[min]W
10............................  24[deg]28.70[min]N    81[deg]43.50[min]W
11............................  24[deg]29.80[min]N    81[deg]43.17[min]W
12............................  24[deg]33.10[min]N    81[deg]35.15[min]W
13............................  24[deg]33.60[min]N    81[deg]26.00[min]W
14............................  24[deg]38.20[min]N    81[deg]07.00[min]W
15............................  24[deg]43.20[min]N    80[deg]53.20[min]W
16............................  24[deg]46.10[min]N    80[deg]46.15[min]W
17............................  24[deg]51.10[min]N    80[deg]37.10[min]W
18............................  24[deg]57.50[min]N    80[deg]27.50[min]W
19............................  25[deg]09.90[min]N    80[deg]16.20[min]W
20............................  25[deg]24.00[min]N    80[deg]09.10[min]W
21............................  25[deg]31.50[min]N    80[deg]07.00[min]W
22............................  25[deg]39.70[min]N    80[deg]06.85[min]W
23............................  25[deg]45.00[min]N    80[deg]06.10[min]W
------------------------------------------------------------------------


                   In the Vicinity of Key West Harbor
  [Reference Chart: United States 11434, 21st Edition--August 11, 1990]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
24............................  24 deg.27.95' N       81 deg.48.65' W.
25............................  24 deg.23.00' N       81 deg.53.50' W.
26............................  24 deg.26.60' N       81 deg.58.50' W.
27............................  24 deg.27.75' N       81 deg.55.70' W.
28............................  24 deg.29.35' N       81 deg.53.40' W.
29............................  24 deg.29.35' N       81 deg.50.00' W.
30............................  24 deg.27.95' N       81 deg.48.65' W.
------------------------------------------------------------------------


                   Area Surrounding the Marquesas Keys
  [Reference Chart: United States 11434, 21st Edition--August 11, 1990]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
31............................  24 deg.26.60' N       81 deg.59.55' W.
32............................  24 deg.23.00' N       82 deg.03.50' W.
33............................  24 deg.23.60' N       82 deg.27.80' W.
34............................  24 deg.34.50' N       82 deg.37.50' W.
35............................  24 deg.43.00' N       82 deg.26.50' W.
36............................  24 deg.38.31' N       81 deg.54.06' W.
37............................  24 deg.37.91' N       81 deg.53.40' W.
38............................  24 deg.36.15' N       81 deg.51.78' W.
39............................  24 deg.34.40' N       81 deg.50.60' W.
40............................  24 deg.33.44' N       81 deg.49.73' W.
41............................  24 deg.31.20' N       81 deg.52.10' W.
42............................  24 deg.28.70' N       81 deg.56.80' W.
43............................  24 deg.26.60' N       81 deg.59.55' W.
------------------------------------------------------------------------


                Area Surrounding the Dry Tortugas Islands
  [Reference Chart: United States 11434, 21st Edition--August 11, 1990]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
44............................  24 deg.32.00' N       82 deg.53.50' W.
45............................  24 deg.32.00' N       83 deg.00.05' W.
46............................  24 deg.39.70' N       83 deg.00.05' W.
47............................  24 deg.45.60' N       82 deg.54.40' W.
48............................  24 deg.45.60' N       82 deg.47.02' W.
49............................  24 deg.42.80' N       82 deg.43.90' W.
50............................  24 deg.39.50' N       82 deg.43.90' W.
51............................  24 deg.35.60' N       82 deg.46.40' W.
52............................  24 deg.32.00' N       82 deg.53.50' W.
------------------------------------------------------------------------


[66 FR 4377, Jan. 17, 2001, as amended at 66 FR 34534, June 29, 2001]

[[Page 180]]

 Appendix VIII to Subpart P of Part 922--Marine Life Rule [As Excerpted 
         From Chapter 46-42 of the Florida Administrative Code]

46-42.001 Purpose and Intent; Designation of Restricted Species; 
Definition of ``Marine Life Species.''
46-42.002 Definitions.
46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama Starfish.
46-42.0035 Live Landing and Live Well Requirements.
46-42.0036 Harvest in Biscayne National Park.*
46-42.004 Size Limits.
46-42.005 Bag Limits.
46-42.006 Commercial Season, Harvest Limits.
46-42.007 Gear Specifications and Prohibited Gear.
46-42.008 Live Rock.*
46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine 
Corals and Sea Fans.

    *--Part 42.0036 was not reproduced because it does not apply to the 
Sanctuary.
    *--Part 42.008 was not reproduced because it is regulated pursuant 
to this Part 922.163(2)(ii).

46-42.001 Purpose and Intent; Designation of Restricted Species; 
Definition of ``Marine Life Species''.--

    (1)(a) The purpose and intent of this chapter are to protect and 
conserve Florida's tropical marine life resources and assure the 
continuing health and abundance of these species. The further intent of 
this chapter is to assure that harvesters in this fishery use nonlethal 
methods of harvest and that the fish, invertebrates, and plants so 
harvested be maintained alive for the maximum possible conservation and 
economic benefits.
    (b) It is the express intent of the Marine Fisheries Commission that 
landing of live rock propagated through aquaculture will be allowed 
pursuant to the provisions of this chapter.
    (2) The following fish species, as they occur in waters of the state 
and in federal Exclusive Economic Zone (EEZ) waters adjacent to state 
waters, are hereby designated as restricted species pursuant to Section 
370.01(20), Florida Statutes:
    (a) Moray eels--Any species of the Family Muraenidae.
    (b) Snake eels--Any species of the Genera Myrichthys and Myrophis of 
the Family Ophichthidae.
    (c) Toadfish--Any species of the Family Batrachoididae.
    (d) Frogfish--Any species of the Family Antennariidae.
    (e) Batfish--Any species of the Family Ogcocephalidae.
    (f) Clingfish--Any species of the Family Gobiesocidae.
    (g) Trumpetfish--Any species of the Family Aulostomidae.
    (h) Cornetfish--Any species of the Family Fistulariidae.
    (i) Pipefish/seahorses--Any species of the Family Syngnathidae.
    (j) Hamlet/seabass--Any species of the Family Serranidae, except 
groupers of the genera Epinephalus and Mycteroperca, and seabass of the 
genus Centropristis.
    (k) Basslets--Any species of the Family Grammistidae.
    (l) Cardinalfish--Any species of the Family Apogonidae.
    (m) High-hat, Jackknife-fish, Spotted drum, Cubbyu--Any species of 
the genus Equetus of the Family Sciaenidae.
    (n) Reef Croakers--Any of the species Odontocion dentex.
    (o) Sweepers--Any species of the Family Pempherididae.
    (p) Butterflyfish--Any species of the Family Chaetodontidae.
    (q) Angelfish--Any species of the Family Pomacanthidae.
    (r) Damselfish--Any species of the Family Pomacentridae.
    (s) Hawkfish--Any species of the Family Cirrhitidae.
    (t) Wrasse/hogfish/razorfish--Any species of the Family Labridae, 
except hogfish, Lachnolaimus maximus.
    (u) Parrotfish--Any species of the Family Scaridae.
    (v) Jawfish--Any species of the Family Opistognathidae.
    (w) Blennies--Any species of the Families Clinidae or Blenniidae.
    (x) Sleepers--Any species of the Family Eleotrididae.
    (y) Gobies--Any species of the Family Gobiidae.
    (z) Tangs and surgeonfish--Any species of the Family Acanthuridae.
    (aa) Filefish/triggerfish--Any species of the Family Balistes, 
except gray triggerfish, Balistidae capriscus.
    (bb) Trunkfish/cowfish--Any species of the Family Ostraciidae.
    (cc) Pufferfish/burrfish/balloonfish--Any of the following species:
    1. Balloonfish--Diodon holocanthus.
    2. Sharpnose puffer--Canthigaster rostrata.
    3. Striped burrfish--Chilomycterus schoepfi.
    (3) The following invertebrate species, as they occur in waters of 
the state and in federal Exclusive Economic Zone (EEZ) waters adjacent 
to state waters, are hereby designated as restricted species pursuant to 
Section 370.01(20), Florida Statutes:
    (a) Sponges--Any species of the Class Demospongia, except 
sheepswool, yellow, grass, glove, finger, wire, reef, and velvet 
sponges, Order Dictyoceratida.

[[Page 181]]

    (b) Upside-down jellyfish--Any species of the Genus Cassiopeia.
    (c) Siphonophores/hydroids--Any species of the Class Hydrozoa, 
except fire corals, Order Milleporina.
    (d) Soft corals--Any species of the Subclass Octocorallia, except 
sea fans Gorgonia flabellum and Gorgonia ventalina.
    (e) Sea anemones--Any species of the Orders Actinaria, Zoanthidea, 
Corallimorpharia, and Ceriantharia.
    (f) Featherduster worms/calcareous tubeworms--Any species of the 
Families Sabellidae and Serpulidae.
    (g) Star-shells--Any of the species Astraea americana or Astraea 
phoebia.
    (h) Nudibranchs/sea slugs--Any species of the Subclass 
Opisthobranchia.
    (i) Fileclams--Any species of the Genus Lima.
    (j) Octopods--Any species of the Order Octopoda, except the common 
octopus, Octopodus vulgaris.
    (k) Shrimp--Any of the following species:
    1. Cleaner shrimp and peppermint shrimp--Any species of the Genera 
Periclimenes or Lysmata.
    2. Coral shrimp--Any species of the Genus Stenopus.
    3. Snapping shrimp--Any species of the Genus Alpheus.
    (l) Crabs--Any of the following species:
    1. Yellowline arrow crab--Stenorhynchus seticornis.
    2. Furcate spider or decorator crab--Stenocionops furcata.
    3. Thinstripe hermit crab--Clibanarius vittatus.
    4. Polkadotted hermit crab--Phimochirus operculatus.
    5. Spotted porcelain crab--Porcellana sayana.
    6. Nimble spray or urchin crab--Percnon gibbesi.
    7. False arrow crab--Metoporhaphis calcarata.
    (m) Starfish--Any species of the Class Asteroidea, except the Bahama 
starfish, Oreaster reticulatus.
    (n) Brittlestars--Any species of the Class Ophiuroidea.
    (o) Sea urchins--Any species of the Class Echinoidea, except 
longspine urchin, Diadema antillarum, and sand dollars and sea biscuits, 
Order Clypeasteroida.
    (p) Sea cucumbers--Any species of the Class Holothuroidea.
    (q) Sea lillies--Any species of the Class Crinoidea.
    (4) The following species of plants, as they occur in waters of the 
state and in federal Exclusive Economic Zone (EEZ) waters adjacent to 
state waters, are hereby designated as restricted species pursuant to 
Section 370.01(20), Florida Statutes:
    (a) Caulerpa--Any species of the Family Caulerpaceae.
    (b) Halimeda/mermaid's fan/mermaid's shaving brush--Any species of 
the Family Halimedaceae.
    (c) Coralline red algae--Any species of the Family Corallinaceae.
    (5) For the purposes of Section 370.06(2)(d), Florida Statutes, the 
term ``marine life species'' is defined to mean those species designated 
as restricted species in subsections (2), (3), and (4) of this rule.
    Specific Authority 370.01(20), 370.027(2), 370.06(2)(d), F.S. Law 
Implemented 370.01(20), 370.025, 370.027, 370.06(2)(d), F.S. History--
New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.002 Definitions.-- As used in this rule chapter:
    (1) ``Barrier net,'' also known as a ``fence net,'' means a seine 
used beneath the surface of the water by a diver to enclose and 
concentrate tropical fish and which may be made of either nylon or 
monofilament.
    (2) ``Drop net'' means a small, usually circular, net with weights 
attached along the outer edge and a single float in the center, used by 
a diver to enclose and concentrate tropical fish.
    (3) ``Hand held net'' means a landing or dip net as defined in Rule 
46-4.002(4), except that a portion of the bag may be constructed of 
clear plastic material, rather than mesh.
    (4) ``Harvest'' means the catching or taking of a marine organism by 
any means whatsoever, followed by a reduction of such organism to 
possession. Marine organisms that are caught but immediately returned to 
the water free, alive, and unharmed are not harvested. In addition, 
temporary possession of a marine animal for the purpose of measuring it 
to determine compliance with the minimum or maximum size requirements of 
this chapter shall not constitute harvesting such animal, provided that 
it is measured immediately after taking, and immediately returned to the 
water free, alive, and unharmed if undersize or oversize.
    (5) ``Harvest for commercial purposes'' means the taking or 
harvesting of any tropical ornamental marine life species or tropical 
ornamental marine plant for purposes of sale or with intent to sell. The 
harvest of tropical ornamental marine life species or tropical 
ornamental marine plants in excess of the bag limit shall constitute 
prima facie evidence of intent to sell.
    (6) ``Land,'' when used in connection with the harvest of marine 
organisms, means the physical act of bringing the harvested organism 
ashore.
    (7) ``Live rock'' means rock with living marine organisms attached 
to it.
    (8) ``Octocoral'' means any erect, nonencrusting species of the 
Subclass Octocorallia, except the species Gorgonia flabellum and 
Gorgonia ventalina.
    (9) ``Slurp gun'' means a self-contained, handheld device that 
captures tropical fish

[[Page 182]]

by rapidly drawing seawater containing such fish into a closed chamber.
    (10) ``Total length'' means the length of a fish as measured from 
the tip of the snout to the tip of the tail.
    (11) ``Trawl'' means a net in the form of an elongated bag with the 
mouth kept open by various means and fished by being towed or dragged on 
the bottom. ``Roller frame trawl'' means a trawl with all of the 
following features and specifications:
    (a) A rectangular rigid frame to keep the mouth of the trawl open 
while being towed.
    (b) The lower horizontal beam of the frame has rollers to allow the 
trawl to roll over the bottom and any obstructions while being towed.
    (c) The trawl opening is shielded by a grid of vertical bars spaced 
no more than 3 inches apart.
    (d) The trawl is towed by attaching a line or towing cable to a 
tongue located above yor at the center of the upper horizontal beam of 
the frame.
    (e) The trawl has no doors attached to keep the mouth of the trawl 
open.
    (12) ``Tropical fish'' means any species included in subsection (2) 
of Rule 46-42.001, or any part thereof.
    (13) ``Tropical ornamental marine life species'' means any species 
included in subsections (2) or (3) of Rule 46-42.001, or any part 
thereof.
    (14) ``Tropical ornamental marine plant'' means any species included 
in subsection (4) of Rule 46-42.001.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama 
Starfish.-- No person shall harvest, possess while in or on the waters 
of the state, or land any of the following species:
    (1) Longspine urchin, Diadema antillarum.
    (2) Bahama starfish, Oreaster reticulatus.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92.
    46-42.0035 Live Landing and Live Well Requirements.--
    (1) Each person harvesting any tropical ornamental marine life 
species or any tropical ornamental marine plant shall land such marine 
organism alive.
    (2) Each person harvesting any tropical ornamental marine life 
species or any tropical ornamental marine plant shall have aboard the 
vessel being used for such harvest a continuously circulating live well 
or aeration or oxygenation system of adequate size and capacity to 
maintain such harvested marine organisms in a healthy condition.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 7-1-92.
    46-42.004 Size Limits.--
    (1) Angelfishes.--
    (a) No person harvesting for commercial purposes shall harvest, 
possess while in or on the waters of the state, or land any of the 
following species of angelfish, of total length less than that set forth 
below:
    1. One-and-one-half (1 1/2) inches for:
    a. Gray angelfish (Pomacanthus arcuatus).
    b. French angelfish (Pomacanthus paru).
    2. One-and-three-quarters (1\3/4\) inches for:
    a. Blue angelfish (Holacanthus bermudensis).
    b. Queen angelfish (Holacanthus ciliaris).
    3. Two (2) inches for rock beauty (Holacanthus tricolor).
    (b) No person shall harvest, possess while in or on the waters of 
the state, or land any angelfish (Family Pomacanthidae), of total length 
greater than that specified below:
    1. Eight (8) inches for angelfish, except rock beauty (Holacanthus 
tricolor).
    2. Five (5) inches for rock beauty.
    (c) Except as provided herein, no person shall purchase, sell, or 
exchange any angelfish smaller than the limits specified in paragraph 
(a) or larger than the limits specified in paragraph (b). This 
prohibition shall not apply to angelfish legally harvested outside of 
state waters or federal Exclusive Economic Zone (EEZ) waters adjacent to 
state waters, which angelfish are entering Florida in interstate or 
international commerce. The burden shall be upon any person possessing 
such angelfish for sale or exchange to establish the chain of possession 
from the initial transaction after harvest, by appropriate receipt(s), 
bill(s) of sale, or bill(s) of lading, and any customs receipts, and to 
show that such angelfish originated from a point outside the waters of 
the State of Florida or federal Exclusive Economic Zone (EEZ) waters 
adjacent to Florida waters and entered the state in interstate or 
international commerce. Failure to maintain such documentation or to 
promptly produce same at the request of any duly authorized law 
enforcement officer shall constitute prima facie evidence that such 
angelfish were harvested from Florida waters or adjacent EEZ waters for 
purposes of this paragraph.
    (2) Butterflyfishes.--
    (a) No person harvesting for commercial purposes shall harvest, 
possess while in or on the waters of the state, or land any 
butterflyfish (Family Chaetodontidae) of total length less than one (1) 
inch.
    (b) No person shall harvest, possess while in or on the waters of 
the state, or land any butterflyfish of total length greater than 4 
inches.
    (3) Gobies--No person shall harvest, possess while in or on the 
waters of the state, or land any gobie (Family Gobiidae) of total length 
greater than 2 inches.
    (4) Jawfishes--No person shall harvest, possess while in or on the 
waters of the state, or

[[Page 183]]

land any jawfish (Family Opistognathidae) of total length greater than 4 
inches.
    (5) Spotfin and Spanish hogfish--
    (a) No person shall harvest, possess while in or on the waters of 
this state, or land any Spanish hogfish (Bodianus rufus) of total length 
less than 2 inches.
    (b) No person shall harvest, possess while in or on the waters of 
this state, or land any Spanish hogfish (Bodianus rufus) or spotfin 
hogfish (Bodianus pulchellus) of total length greater than 8 inches.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.005 Bag limit.--
    (1) Except as provided in Rule 46-42.006 or subsections (3) or (4) 
of this rule, no person shall harvest, possess while in or on the waters 
of the state, or land more than 20 individuals per day of tropical 
ornamental marine life species, in any combination.
    (2) Except as provided in Rule 46-42.006, no person shall harvest, 
possess while in or on the waters of the state, or land more than one 
(1) gallon per day of tropical ornamental marine plants, in any 
combination of species.
    (3) Except as provided in Rule 46-42.006, no person shall harvest, 
possess while in or on the waters of the state, or land more than 5 
angelfishes (Family Pomacanthidae) per day. Each angelfish shall be 
counted for purposes of the 20 individual bag limit specified in 
subsection (1) of this rule.
    (4)(a) Unless the season is closed pursuant to paragraph (b), no 
person shall harvest, possess while in or on the waters of the state, or 
land more than 6 colonies per day of octocorals. Each colony of 
octocoral or part thereof shall be considered an individual of the 
species for purposes of subsection (1) of this rule and shall be counted 
for purposes of the 20 individual bag limit specified therein. Each 
person harvesting any octocoral as authorized by this rule may also 
harvest substrate within 1 inch of the perimeter of the holdfast at the 
base of the octocoral, provided that such substrate remains attached to 
the octocoral.
    (b) If the harvest of octocorals in federal Exclusive Economic Zone 
(EEZ) waters adjacent to state waters is closed to all harvesters prior 
to September 30 of any year, the season for harvest of octocorals in 
state waters shall also close until the following October 1, upon notice 
given by the Secretary of the Department of Environmental Protection, in 
the manner provided in s.120.52(16)(d), Florida Statutes.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 1-1-95.
    46-42.006 Commercial Season, Harvest Limits.--
    (1) Except as provided in Rule 46-42.008(7), no person shall 
harvest, possess while in or on the waters of the state, or land 
quantities of tropical ornamental marine life species or tropical 
ornamental marine plants in excess of the bag limits established in Rule 
46-42.005 unless such person possesses a valid saltwater products 
license with both a marine life fishery endorsement and a restricted 
species endorsement issued by the Department of Environmental 
Protection.
    (2) Persons harvesting tropical ornamental marine life species or 
tropical ornamental marine plants for commercial purposes shall have a 
season that begins on October 1 of each year and continues through 
September 30 of the following year. These persons shall not harvest, 
possess while in or on the waters of the state, or land tropical 
ornamental marine life species in excess of the following limits:
    (a) A limit of 75 angelfish (Family Pomacanthidae) per person per 
day or 150 angelfish per vessel per day, whichever is less.
    (b) A limit of 75 butterflyfishes (Family Chaetodontidae) per vessel 
per day.
    (c) There shall be no limits on the harvest for commercial purposes 
of octocorals unless and until the season for all harvest of octocorals 
in federal Exclusive Economic Zone (EEZ) waters adjacent to state waters 
is closed. At such time, the season for harvest of octocorals in state 
waters shall also close until the following October 1, upon notice given 
by the Secretary of the Department of Environmental Protection, in the 
manner provided in Section 120.52(16)(d), Florida Statutes. Each person 
harvesting any octocoral as authorized by this rule may also harvest 
substrate within 1 inch of the perimeter of the holdfast at the base of 
the octocoral, provided that such substrate remains attached to the 
octocoral.
    (d) A limit of 400 giant Caribbean or ``pink-tipped'' anemones 
(Genus Condylactus) per vessel per day.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.007 Gear Specifications and Prohibited Gear.--
    (1) The following types of gear shall be the only types allowed for 
the harvest of any tropical fish, whether from state waters or from 
federal Exclusive Economic Zone (EEZ) waters adjacent to state waters:
    (a) Hand held net.
    (b) Barrier net, with a mesh size not exceeding \3/4\ inch stretched 
mesh.
    (c) Drop net, with a mesh size not exceeding \3/4\ inch stretched 
mesh.
    (d) Slurp gun.
    (e) Quinaldine may be used for the harvest of tropical fish if the 
person using the chemical or possessing the chemical in or on the waters 
of the state meets each of the following conditions:
    1. The person also possesses and maintains aboard any vessel used in 
the harvest of

[[Page 184]]

tropical fish with quinaldine a special activity license authorizing the 
use of quinaldine, issued by the Division of Marine Resources of the 
Department of Environmental Protection pursuant to Section 370.08(8), 
Florida Statutes.
    2. The quinaldine possessed or applied while in or on the waters of 
the state is in a diluted form of no more than 2% concentration in 
solution with seawater. Prior to dilution in seawater, quinaldine shall 
only be mixed with isopropyl alcohol or ethanol.
    (f) A roller frame trawl operated by a person possessing a valid 
live bait shrimping license issued by the Department of Environmental 
Protection pursuant to Section 370.15, Florida Statutes, if such 
tropical fish are taken as an incidental bycatch of shrimp lawfully 
harvested with such trawl.
    (g) A trawl meeting the following specifications used to collect 
live specimens of the dwarf seahorse, Hippocampus zosterae, if towed by 
a vessel no greater than 15 feet in length at no greater than idle 
speed:
    1. The trawl opening shall be no larger than 12 inches by 48 inches.
    2. The trawl shall weigh no more than 5 pounds wet when weighed out 
of the water.
    (2) This rule shall not be construed to prohibit the use of any bag 
or container used solely for storing collected specimens or the use of a 
single blunt rod in conjunction with any allowable gear, which rod meets 
each of the following specifications:
    (a) The rod shall be made of nonferrous metal, fiberglass, or wood.
    (b) The rod shall be no longer than 36 inches and have a diameter no 
greater than \3/4\ inch at any point.
    (3) No person shall harvest in or from state waters any tropical 
fish by or with the use of any gear other than those types specified in 
subsection (1); provided, however, that tropical fish harvested as an 
incidental bycatch of other species lawfully harvested for commercial 
purposes with other types of gear shall not be deemed to be harvested in 
violation of this rule, if the quantity of tropical fish so harvested 
does not exceed the bag limits established in Rule 46-42.005.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine 
Corals and Sea Fans; Exception; Repeal of Section 370.114, Florida 
Statutes.--
    (1) Except as provided in subsection (2), no person shall take, 
attempt to take, or otherwise destroy, or sell, or attempt to sell, any 
sea fan of the species Gorgonia flabellum or of the species Gorgonia 
ventalina, or any hard or stony coral (Order Scleractinia) or any fire 
coral (Genus Millepora). No person shall possess any such fresh, 
uncleaned, or uncured sea fan, hard or stony coral, or fire coral.
    (2) Subsection (1) shall not apply to:
    (a) Any sea fan, hard or stony coral, or fire coral legally 
harvested outside of state waters or federal Exclusive Economic Zone 
(EEZ) waters adjacent to state waters and entering Florida in interstate 
or international commerce. The burden shall be upon any person 
possessing such species to establish the chain of possession from the 
initial transaction after harvest, by appropriate receipt(s), bill(s) of 
sale, or bill(s) of lading, and any customs receipts, and to show that 
such species originated from a point outside the waters of the State of 
Florida or federal Exclusive Economic Zone (EEZ) adjacent to state 
waters and entered the state in interstate or international commerce. 
Failure to maintain such documentation or to promptly produce same at 
the request of any duly authorized law enforcement officer shall 
constitute prima facie evidence that such species were harvested from 
Florida waters in violation of this rule.
    (b) Any sea fan, hard or stony coral, or fire coral harvested and 
possessed pursuant to permit issued by the Department of Environmental 
Protection for scientific or educational purposes as authorized in 
Section 370.10(2), Florida Statutes.
    (c) Any sea fan, hard or stony coral, or fire coral harvested and 
possessed pursuant to the aquacultured live rock provisions of Rule 46-
42.008(3)(a) or pursuant to a Live Rock Aquaculture Permit issued by the 
National Marine Fisheries Service under 50 CFR Part 638 and meeting the 
following requirements:
    (1) Persons possessing these species in or on the waters of the 
state shall also possess a state submerged lands lease for live rock 
aquaculture and a Department of Environmental Protection permit for live 
rock culture deposition and removal or a federal Live Rock Aquaculture 
Permit. If the person possessing these species is not the person named 
in the documents required herein, then the person in such possession 
shall also possess written permission from the person so named to 
transport aquacultured live rock pursuant to this exception.
    (2) The nearest office of the Florida Marine Patrol shall be 
notified at least 24 hours in advance of any transport in or on state 
waters of aquacultured live rock pursuant to this exception.
    (3) Persons possessing these species off the water shall maintain 
and produce upon the request of any duly authorized law enforcement 
officer sufficient documentation to establish the chain of possession 
from harvest on a state submerged land lease for live rock aquaculture 
or in adjacent Exclusive Economic Zone (EEZ) waters pursuant to a 
federal Live Rock Aquaculture Permit.
    (4) Any sea fan, hard or stony coral, or fire coral harvested 
pursuant to Rule 46-42.008(3)(a) shall remain attached to the cultured 
rock.

[[Page 185]]

    Specific Authority 370.027(2), F.S.; Section 6, Chapter 83-134, Laws 
of Florida, as amended by Chapter 84-121, Laws of Florida. Law 
Implemented 370.025, 370.027, F.S.; Section 6, Chapter 83-134, Laws of 
Florida, as amended by Chapter 84-121, Laws of Florida. History--New 1-
1-95.2222



   Subpart Q_Hawaiian Islands Humpback Whale National Marine Sanctuary

    Authority: 16 U.S.C. 1431 et seq. and subtitle C, title II, Pub. L. 
102-587, 106 Stat. 5055.

    Source: 64 FR 66570, Nov. 29, 1999, unless otherwise noted.



Sec. 922.180  Purpose.

    (a) The purpose of the regulations in this subpart is to implement 
the designation of the Hawaiian Islands Humpback Whale National Marine 
Sanctuary by regulating activities affecting the resources of the 
Sanctuary or any of the qualities, values, or purposes for which the 
Sanctuary was designated, in order to protect, preserve, and manage the 
conservation, ecological, recreational, research, educational, 
historical, cultural, and aesthetic resources and qualities of the area. 
The regulations are intended to supplement and complement existing 
regulatory authorities; to facilitate to the extent compatible with the 
primary objective of protecting the humpback whale and its habitat, all 
public and private uses of the Sanctuary, including uses of Hawaiian 
natives customarily and traditionally exercised for subsistence, 
cultural, and religious purposes, as well as education, research, 
recreation, commercial and military activities; to reduce conflicts 
between compatible uses; to maintain, restore, and enhance the humpback 
whale and its habitat; to contribute to the maintenance of natural 
assemblages of humpback whales for future generations; to provide a 
place for humpback whales that are dependent on their Hawaiian Islands 
wintering habitat for reproductive activities, including breeding, 
calving, and nursing, and for the long-term survival of their species; 
and to achieve the other purposes and policies of the HINMSA and NMSA.
    (b) These regulations may be modified to fulfill the Secretary's 
responsibilities for the Sanctuary, including the provision of 
additional protections for humpback whales and their habitat, if 
reasonably necessary, and the conservation and management of other 
marine resources, qualities and ecosystems of the Sanctuary determined 
to be of national significance. The Secretary shall consult with the 
Governor of the State of Hawaii on any modification to the regulations 
contained in this part. For any modification of the regulations 
contained in this part that would constitute a change in a term of the 
designation, as contained in the Designation Document for the Sanctuary, 
the Secretary shall follow the applicable requirements of sections 303 
and 304 of the NMSA, and sections 2305 and 2306 of the HINMSA.
    (c) Section 304(e) of the NMSA requires the Secretary to review 
management plans and regulations every five years, and make necessary 
revisions. Upon completion of the five year review of the Sanctuary 
management plan and regulations, the Secretary will repropose the 
Sanctuary management plan and regulations in their entirety with any 
proposed changes thereto. The Governor of the State of Hawaii will have 
the opportunity to review the re-proposed management plan and 
regulations before they take effect and if the Governor certifies any 
term or terms of such management plan or regulations as unacceptable, 
the unacceptable term or terms will not take effect in State waters of 
the Sanctuary.



Sec. 922.181  Boundary.

    (a) Except for excluded areas described in paragraph (b) of this 
section, the Hawaiian Islands Humpback Whale National Marine Sanctuary 
consists of the submerged lands and waters off the coast of the Hawaiian 
Islands seaward from the shoreline, cutting across the mouths of rivers 
and streams:
    (1) To the 100-fathom (183 meter) isobath from Kailiu Point eastward 
to Mokolea Point, Kauai;
    (2) To the 100-fathom (183 meter) isobath from Puaena Point eastward 
to Mahie Point, and from the Kapahulu

[[Page 186]]

Groin in Waikiki eastward to Makapuu Point, Oahu;
    (3) To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, 
south and westward to Ilio Point, Molokai; southwestward to include 
Penguin Banks; eastward along the east side of Lanai; to the waters 
seaward of the three nautical mile limit north of Kahoolawe, to the 
Hanamanoia Lighthouse on Maui, and northward along the shoreline to 
Lipoa Point, Maui;
    (4) To the deep water area of Pailolo Channel from Cape Halawa, 
Molokai, to Lipoa Point, Maui, and southward;
    (5) To the 100-fathom (183 meter) isobath from Upolu Point southward 
to Keahole Point, Hawaii.
    (b) Excluded from the Sanctuary boundary are the following 
commercial ports and small boat harbors:

                           Hawaii (Big Island)

Kawaihae Boat Harbor & Small Boat Basin

                                  Lanai

Kaumalapau Harbor, Manele Harbor

                                  Maui

Lahaina Boat Harbor
Maalaea Boat Harbor

                                 Molokai

Hale o Lono Harbor
Kaunakakai Harbor

                                  Oahu

Kuapa Pond (Hawaii Kai)

    (c) The coordinates of the lateral extents of each boundary area 
within the Sanctuary boundary appear in Appendix A of this subpart Q.



Sec. 922.182  Definitions.

    (a) Acts means the Hawaiian Islands National Marine Sanctuary Act 
(HINMSA; sections 2301-2307 of Pub. L. 102-587), and the National Marine 
Sanctuaries Act (NMSA; also known as Title III of the Marine Protection, 
Research, and Sanctuaries Act (MPRSA), as amended, 16 U.S.C. 1431 et 
seq.).
    Adverse impact means an impact that independently or cumulatively 
damages, diminishes, degrades, impairs, destroys, or otherwise harms.
    Alteration of the seabed means drilling into, dredging, or otherwise 
altering a natural physical characteristic of the seabed of the 
Sanctuary; or constructing, placing, or abandoning any structure, 
material, or other matter on the seabed of the Sanctuary.
    Habitat means those areas that provide space for individual and 
population growth and normal behavior of humpback whales, and include 
sites used for reproductive activities, including breeding, calving and 
nursing.
    Military activities means those military activities conducted by or 
under the auspices of the Department of Defense and any combined 
military activities carried out by the Department of Defense and the 
military forces of a foreign nation.
    Sanctuary means the Hawaiian Islands Humpback Whale National Marine 
Sanctuary.
    Sanctuary resource means any humpback whale, or the humpback whale's 
habitat within the Sanctuary.
    Shoreline means the upper reaches of the wash of the waves, other 
than storm or seismic waves, at high tide during the season of the year 
in which the highest wash of the waves occurs, usually evidenced by the 
edge of vegetation growth, or the upper limit of debris left by the wash 
of the waves.
    Take or taking a humpback whale means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, collect or injure a humpback whale, 
or to attempt to engage in any such conduct. The term includes, but is 
not limited to, any of the following activities: collecting any dead or 
injured humpback whale, or any part thereof; restraining or detaining 
any humpback whale, or any part thereof, no matter how temporarily; 
tagging any humpback whale; operating a vessel or aircraft or doing any 
other act that results in the disturbing or molesting of any humpback 
whale.
    (b) Other terms appearing in the regulations in this subpart are 
defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and 
Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 
et seq.



Sec. 922.183  Allowed activities.

    (a) All activities except those prohibited by Sec. 922.184 may be 
undertaken in

[[Page 187]]

the Sanctuary subject to any emergency regulations promulgated pursuant 
to Sec. 922.185, subject to the interagency cooperation provisions of 
section 304(d) of the NMSA [16 U.S.C. 1434(d)] and Sec. 922.187 of this 
subpart, and subject to the liability established by section 312 of the 
NMSA and Sec. 922.46 of this part. All activities are also subject to 
all prohibitions, restrictions, and conditions validly imposed by any 
other Federal, State, or county authority of competent jurisdiction.
    (b) Included as activities allowed under the first sentence of 
paragraph (a) of this Sec. 922.183 are all classes of military 
activities, internal or external to the Sanctuary, that are being or 
have been conducted before the effective date of these regulations, as 
identified in the Final Environmental Impact Statement/Management Plan. 
Paragraphs (a)(1) through (a)(5) of Sec. 922.184 do not apply to these 
classes of activities, nor are these activities subject to further 
consultation under section 304(d) of the NMSA.
    (c) Military activities proposed after the effective date of these 
regulations are also included as allowed activities under the first 
sentence of paragraph (a) of this Sec. 922.183. Paragraphs (a)(1) 
through (a)(5) of Sec. 922.184 apply to these classes of activities 
unless--
    (1) They are not subject to consultation under section 304(d) of the 
NMSA and Sec. 922.187 of this subpart, or
    (2) Upon consultation under section 304(d) of the NMSA and Sec. 
922.187 of this subpart, NOAA's findings and recommendations include a 
statement that paragraphs (a)(1) through (a)(5) of Sec. 922.184 do not 
apply to the military activity.
    (d) If a military activity described in paragraphs (b) or (c)(2) of 
this Sec. 922.183 is modified such that it is likely to destroy, cause 
the loss of, or injure a Sanctuary resource in a manner significantly 
greater than was considered in a previous consultation under section 
304(d) of the NMSA and Sec. 922.187 of this subpart, or if the modified 
activity is likely to destroy, cause the loss of, or injure any 
Sanctuary resource not considered in a previous consultation under 
section 304(d) of the NMSA and Sec. 922.187 of this subpart, the 
modified activity will be treated as a new military activity under 
paragraph (c) of this section.
    (e) If a proposed military activity subject to section 304(d) of the 
NMSA and Sec. 922.187 of this subpart is necessary to respond to an 
emergency situation and the Secretary of Defense determines in writing 
that failure to undertake the proposed activity during the period of 
consultation would impair the national defense, the Secretary of the 
military department concerned may request the Director that the activity 
proceed during consultation. If the Director denies such a request, the 
Secretary of the military department concerned may decide to proceed 
with the activity. In such case, the Secretary of the military 
department concerned shall provide the Director with a written statement 
describing the effects of the activity on Sanctuary resources once the 
activity is completed.



Sec. 922.184  Prohibited activities.

    (a) The following activities are prohibited and thus unlawful for 
any person to conduct or cause to be conducted.
    (1) Approaching, or causing a vessel or other object to approach, 
within the Sanctuary, by any means, within 100 yards of any humpback 
whale except as authorized under the Marine Mammal Protection Act, as 
amended (MMPA), 16 U.S.C. 1361 et seq., and the Endangered Species Act, 
as amended (ESA), 16 U.S.C. 1531 et seq.;
    (2) Operating any aircraft above the Sanctuary within 1,000 feet of 
any humpback whale except as necessary for takeoff or landing from an 
airport or runway, or as authorized under the MMPA and the ESA;
    (3) Taking any humpback whale in the Sanctuary except as authorized 
under the MMPA and the ESA;
    (4) Possessing within the Sanctuary (regardless of where taken) any 
living or dead humpback whale or part thereof taken in violation of the 
MMPA or the ESA;
    (5) Discharging or depositing any material or other matter in the 
Sanctuary; altering the seabed of the Sanctuary; or discharging or 
depositing any material or other matter outside the Sanctuary if the 
discharge or deposit subsequently enters and injures a

[[Page 188]]

humpback whale or humpback whale habitat, provided that such activity:
    (i) Requires a Federal or State permit, license, lease, or other 
authorization; and
    (ii) Is conducted:
    (A) Without such permit, license, lease, or other authorization, or
    (B) not in compliance with the terms or conditions of such permit, 
license, lease, or other authorization.
    (6) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of either of the Acts or any regulations 
issued under either of the Acts.
    (b) The prohibitions in paragraphs (a)(1) through (a)(5) of this 
Sec. 922.184 do not apply to activities necessary to respond to 
emergencies threatening life, property or the environment; or to 
activities necessary for valid law enforcement purposes. However, while 
such activities are not subject to paragraphs (a)(1) through (a)(5) of 
this Sec. 922.184, this paragraph (b) does not exempt the activity from 
the underlying prohibition or restriction under other applicable laws 
and regulations (e.g., MMPA, ESA, and CWA).
    (c) Any Sanctuary fishery regulations shall not take effect in 
Hawaii State waters until established by the State Board of Land and 
Natural Resources.



Sec. 922.185  Emergency regulations.

    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource, or to minimize the imminent risk of 
such destruction, loss, or injury, any and all activities are subject to 
immediate temporary regulation, including prohibition. Before issuance 
of such regulations the Director shall consult to the extent practicable 
with any relevant Federal agency and the Governor of the State of 
Hawaii. Emergency regulations shall not take effect in State waters of 
the Sanctuary until approved by the Governor of Hawaii.



Sec. 922.186  Penalties; appeals.

    (a) Pursuant to section 307 of the NMSA, each violation of either of 
the Acts, or any regulation in this subpart is subject to a civil 
penalty of not more than $100,000. Each such violation is subject to 
forfeiture of property or Sanctuary resources seized in accordance with 
section 307 of the NMSA. Each day of a continuing violation constitutes 
a separate violation.
    (b) Regulations setting forth the procedures governing the 
administrative proceedings for assessment of civil penalties for 
enforcement reasons, issuance and use of written warnings, and release 
or forfeiture of seized property appear at 15 CFR Part 904.
    (c) A person subject to an action taken for enforcement reasons for 
violation of these regulations or either of the Acts may appeal pursuant 
to the applicable procedures in 15 CFR Part 904.



Sec. 922.187  Interagency Cooperation.

    Under section 304(d) of the NMSA, Federal agency actions internal or 
external to a national marine sanctuary, including private activities 
authorized by licenses, leases, or permits, that are likely to destroy, 
cause the loss of, or injure any sanctuary resource are subject to 
consultation with the Director. The Federal agency proposing an action 
shall determine whether the activity is likely to destroy, cause the 
loss of, or injure a Sanctuary resource. To the extent practicable, 
consultation procedures under section 304(d) of the NMSA may be 
consolidated with interagency cooperation procedures required by other 
statutes, such as the ESA. The Director will attempt to provide 
coordinated review and analysis of all environmental requirements.

 Appendix A to Subpart Q of Part 922--Hawaiian Islands Humpback Whale, 
 National Marine Sanctuary Boundary Description and Coordinates of the 
              Lateral Boundary Closures and Excluded Areas.

    Appendix A provides a text and pictoral (see Figures 1-3) 
description of the Sanctuary boundary with specific lateral closure 
points and exclusion areas. The lateral extents (bounds) of each 
boundary area are closed by straight lines defined by at least two 
points. It may be necessary to extend these lines beyond the defining 
points to intersect the actual 100 fathom contour or the shoreline. Each 
point corresponds to a bounds number indicated in Figure 2. Digital

[[Page 189]]

files of the Sanctuary boundary (available in three common formats, ESRI 
Shape File, MapInfo Table, and an ASCII Exchange Format) are available 
from the Sanctuary office in Kihei, Maui, at the address listed above or 
by calling (808) 879-2818. These digital geographies are the best 
available representation of the verbal legal delineation and were 
derived from: the Hawaiian shoreline as supplied by State of Hawaii 
through the Office of Planning GIS Office, the NOAA and State of Hawaii 
agreed upon lateral boundary and exclusion areas, and the 100 fathom 
isobath digitized from the following 1:80,000 scale NOAA nautical 
charts-19327--West Coast of Hawaii (9th ED, 4/29/89),

19347--Channels between Molokai, Maui, Lanai, and Kahoolawe (17th ED, 
12/13/97),
19351--Channels between Oahu, Molokai, and Lanai (8th ED, 7/01/1989),
19357--Island of Oahu (20th ED, 9/21/1996), and
19381--Island of Kauai (8th ED, 7/17/1993)].

    For the portion of the Lanai region of the HIHWNMS west of Chart 
19351,[157[deg]42.8[min] west] the 100 fathom contour was derived from 
the 1:250,000 chart 19340--Hawaii to Oahu (24th ED, 1/09/1993).
    All digital geography data have been referenced to WGS84 (NAD83) and 
have been converted to geographic (latitude and longitude) coordinates.

                           Sanctuary Boundary

    A. As defined by the specific lateral boundaries in B, and except 
for excluded areas described in paragraph C of this section, the 
Hawaiian Islands Humpback Whale National Marine Sanctuary consists of 
the submerged lands and waters off the coast of the Hawaiian Islands 
seaward from the shoreline, cutting across the mouths of rivers and 
streams (see Figure 1):
    1. To the 100-fathom (183 meter) isobath from Kailiu Point eastward 
to Mokolea Point, Kauai;
    2. To the 100-fathom (183 meter) isobath from Puaena Point eastward 
to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to 
Makapuu Point, Oahu;
    3. To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, 
south and westward to Ilio Point, Molokai; southwestward to include 
Penguin Banks; eastward along the east side of Lanai; to the waters 
seaward of the three nautical mile limit north of Kahoolawe, to the 
Hanamanoia Lighthouse on Maui, and northward along the shoreline to 
Lipoa Point, Maui;
    4. To the deep water area of Pailolo Channel from Cape Halawa, 
Molokai, to Lipoa Point, Maui, and southward;
    5. To the 100-fathom (183 meter) isobath from Upolu Point southward 
to Keahole Point, Hawaii.

[[Page 190]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.000

    B. Lateral Closure Bounds for the Hawaiian Islands Humpback Whale 
National Marine Sanctuary Boundary (see Figure 2).

[[Page 191]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.001


----------------------------------------------------------------------------------------------------------------
                                                                        No. of
       Bound No.  (Fig. 2)                   Geographic name            points     Latitude         Longitude
----------------------------------------------------------------------------------------------------------------
 1...............................  Kailiu Pt., Kauai.................       2   22[deg]13[min]  -159[deg]34[min]
                                                                                     24.7[sec]         52.2[sec]
                                                                                22[deg]16[min]  -159[deg]35[min]
                                                                                     33.5[sec]         59.4[sec]
 2...............................  Mokolea Pt., Kauai................       2   22[deg]13[min]  -159[deg]22[min]
                                                                                     29.9[sec]         55.8[sec]
                                                                                22[deg]14[min]  -159[deg]22[min]
                                                                                     55.4[sec]         19.3[sec]
 3...............................  Puaena Pt., N. Oahu...............       2   21[deg]38[min]  -158[deg]8[min]2
                                                                                     24.6[sec]          6.0[sec]
                                                                                21[deg]36[min]  -158[deg]6[min]2
                                                                                      8.4[sec]          4.5[sec]
 4...............................  Mahie Pt., N. Oahu................       2   21[deg]33[min]  -157[deg]51[min]
                                                                                     37.3[sec]         51.9[sec]
                                                                                21[deg]35[min]  -157[deg]50[min]
                                                                                     32.2[sec]          5.5[sec]
 5...............................  Kapahulu Groin, S. Oahu...........       3   21[deg]15[min]  -157[deg]50[min]
                                                                                      5.7[sec]         27.5[sec]
                                                                                21[deg]16[min]  -157[deg]49[min]
                                                                                      6.1[sec]         25.7[sec]
                                                                                21[deg]16[min]  -157[deg]49[min]
                                                                                      6.2[sec]         23.8[sec]
 6...............................  Makapuu Pt., S. Oahu..............       2   21[deg]18[min]  -157[deg]38[min]
                                                                                     39.6[sec]         56.7[sec]
                                                                                21[deg]19[min]  -157[deg]35[min]
                                                                                     44.7[sec]         46.1[sec]
 7...............................  Ilio Pt, Molokai..................       2   21[deg]13[min]  -157[deg]18[min]
                                                                                     25.7[sec]         45.8[sec]
                                                                                21[deg]13[min]  -157[deg]15[min]
                                                                                     27.0[sec]         14.4[sec]
 8...............................  Pailolo Channel, C. Halawa to            2   21[deg]1[min]2  -156[deg]38[min]
                                    Lipoa Pt..                                        9.8[sec]         22.0[sec]
                                                                                21[deg]9[min]2  -156[deg]42[min]
                                                                                      9.5[sec]         37.2[sec]

[[Page 192]]

 
 9...............................  Hanamanoia Lighthouse, Maui.......       2   20[deg]34[min]  -156[deg]26[min]
                                                                                     21.8[sec]         51.1[sec]
                                                                                20[deg]34[min]  -156[deg]24[min]
                                                                                     58.4[sec]         45.2[sec]
 10..............................  3 Nmi. closure around Kahoolawe...      51   20[deg]35[min]  -156[deg]29[min]
                                                                                     58.1[sec]         32.0[sec]
                                                                                20[deg]35[min]  -156[deg]29[min]
                                                                                     59.9[sec]         33.0[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                      3.9[sec]         35.5[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                      6.6[sec]         36.9[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                     16.3[sec]         43.1[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                     25.7[sec]         49.9[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                     34.6[sec]         57.3[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     39.9[sec]          2.2[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     43.8[sec]          5.5[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     50.8[sec]         12.1[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     59.0[sec]         16.5[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     58.7[sec]         22.7[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     18.1[sec]         29.5[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     27.0[sec]         36.8[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     35.5[sec]         44.8[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     43.4[sec]         53.4[sec]
                                                                       .......  20[deg]37[min]  -156[deg]31[min]
                                                                                     50.9[sec]          2.4[sec]
                                                                       .......  20[deg]37[min]  -156[deg]31[min]
                                                                                     56.4[sec]         10.0[sec]
                                                                       .......  20[deg]37[min]  -156[deg]31[min]
                                                                                     59.0[sec]         13.2[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                      6.0[sec]         22.7[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                      8.6[sec]         26.8[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     10.8[sec]         29.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     17.2[sec]         39.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     18.9[sec]         43.0[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     23.4[sec]         48.4[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     30.3[sec]         58.0[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     36.6[sec]          7.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     42.4[sec]         18.3[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     43.4[sec]         20.5[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     46.4[sec]         25.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     51.5[sec]         36.7[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     56.0[sec]         47.7[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     59.8[sec]         59.1[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      3.0[sec]         10.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      4.0[sec]         15.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      4.4[sec]         17.0[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      5.3[sec]         21.1[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      6.8[sec]         28.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      8.6[sec]         40.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      8.9[sec]         44.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      9.7[sec]         49.6[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                     10.1[sec]         53.8[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.0[sec]          0.3[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.1[sec]         12.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.5[sec]         24.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.4[sec]         25.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.6[sec]         30.5[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.2[sec]         42.6[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.8[sec]         47.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.7[sec]         48.9[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.3[sec]         55.8[sec]
11...............................  Technical Cosure..................       2   20[deg]41[min]  -156[deg]37[min]
                                                                                     39.2[sec]          7.5[sec]
                                                                                20[deg]41[min]  -156[deg]38[min]
                                                                                     45.0[sec]          3.6[sec]
                                   North of Kahoolawe................
12...............................  Upolu Pt., Hawaii (Big Island)....       2   20[deg]16[min]  -155[deg]51[min]
                                                                                      5.3[sec]          0.5[sec]
                                                                                20[deg]17[min]  -155[deg]51[min]
                                                                                     59.9[sec]         17.2[sec]
13...............................  Keahole Pt., Hawaii (Big Island)..       2   19[deg]43[min]  -156[min]3[min]4
                                                                                     39.6[sec]          2.7[sec]
                                                                                19[deg]43[min]  -156[deg]4[min]1
                                                                                     41.5[sec]          4.5[sec]
----------------------------------------------------------------------------------------------------------------
C. Excluded Ports and Harbors Bounds (see Figure 3).


[[Page 193]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.002


----------------------------------------------------------------------------------------------------------------
                                                                        No. of
        Bound No. (Fig.2)                    Geographic Name            Points     Latitude         Longitude
----------------------------------------------------------------------------------------------------------------
14...............................  Kawaihae Harbor, Big Island              2   20[deg]2[min]1  -155[deg]50[min]
                                    exclusion.                                        4.3[sec]          2.5[sec]
                                                                                20[deg]2[min]2  -155[deg]49[min]
                                                                                      5.3[sec]         57.7[sec]
15...............................  Haleolono Harbor, Molokai                2   21[deg]5[min]3  -157[deg]14[min]
                                    exclusion.                                         .5[sec]         58.6[sec]
                                                                                21[deg]5[min]4  -157[deg]14[min]
                                                                                       .8[sec]         55.2[sec]
16...............................  Kaunakakai Harbor, Molokai               4   21[deg]5[min]1  -157[deg]1[min]3
                                    exclusion.                                        3.9[sec]          5.7[sec]
                                                                                21[deg]4[min]4  -157[deg]1[min]5
                                                                                      9.2[sec]          8.3[sec]
                                                                                21[deg]4[min]3  -157[deg]1[min]4
                                                                                      8.5[sec]          1.2[sec]
                                                                                21[deg]5[min]7  -157[deg]1[min]1
                                                                                       .4[sec]          5.0[sec]
17...............................  Kaumalapau Harbor, Lanai exclusion       2   20[deg]47[min]  -156[deg]59[min]
                                                                                      9.2[sec]         32.2[sec]
                                                                                20[deg]47[min]  -156[deg]59[min]
                                                                                      1.1[sec]         31.3[sec]
18...............................  Manele Harbor, Lanai exclusion....       2   20[deg]44[min]  -156[deg]53[min]
                                                                                     33.2[sec]         12.9[sec]
                                                                                20[deg]44[min]  -156[deg]53[min]
                                                                                     35.2[sec]         14.1[sec]
19...............................  Lahaina Harbor, Maui exclusion....       2   20[deg]52[min]  -156[deg]40[min]
                                                                                     18.3[sec]         45.0[sec]
                                                                                20[deg]52[min]  -156[deg]40[min]
                                                                                     18.8[sec]         44.0[sec]
20...............................  Maalaea Harbor, Maui exclusion....       2   20[deg]47[min]  -156[deg]30[min]
                                                                                     32.1[sec]         35.0[sec]
                                                                                20[deg]47[min]  -156[deg]30[min]
                                                                                     24.8[sec]         39.6[sec]

[[Page 194]]

 
21...............................  Western closure Kuapa Pond (Hawaii       2   21[deg]17[min]  -157[deg]43[min]
                                    Kai), Oahu.                                       7.0[sec]          7.7[sec]
                                                                                21[deg]17[min]  -157[deg]43[min]
                                                                                      6.5[sec]          7.0[sec]
22...............................  Eastern closure Kuapa Pond (Hawaii       2   21[deg]16[min]  -157[deg]42[min]
                                    Kai), Oahu.                                      53.3[sec]         42.7[sec]
                                                                                21[deg]16[min]  -157[deg]42[min]
                                                                                     51.9[sec]         40.3[sec]
----------------------------------------------------------------------------------------------------------------



 Subpart R_Thunder Bay National Marine Sanctuary and Underwater Preserve

    Source: 65 FR 39056, June 22, 2000, unless otherwise noted.



Sec. 922.190  Boundary.

    The Thunder Bay National Marine Sanctuary and Underwater Preserve 
(Sanctuary) consists of an area of approximately 448 square miles (1169 
square kilometers) 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.



Sec. 922.191  Definitions.

    (a) The following terms are defined for purposes of Subpart R:
    Minor project means any project listed in Appendix B to this 
Subpart.
    Programmatic Agreement means the agreement among NOAA, the Federal 
Advisory Council on Historic Preservation, and the State of Michigan, 
developed pursuant to the National Marine Sanctuaries Act (NMSA), 16 
U.S.C. 1431 et seq. and section 106 of the National Historic 
Preservation Act of 1966 as amended, 16 U.S.C. 470 et seq., which, in 
part, sets forth the procedures for review and approval of State Permits 
that authorize activities prohibited by the Sanctuary regulations.
    State Archaeologist means the State Archaeologist, Michigan 
Historical Center, Michigan Department of State.
    State Permit means any lease, permit, license, approval, or other 
authorization issued by the State of Michigan for the conduct of 
activities or projects within the Thunder Bay National Marine Sanctuary 
and Underwater Preserve that are prohibited by the regulations at Sec. 
922.193.
    Traditional fishing means those commercial, recreational, and 
subsistence fishing activities that were customarily conducted within 
the Sanctuary prior to its designation, as identified in the Final 
Environmental Impact Statement and Management Plan for this Sanctuary. 
Copies of the Final Environmental Impact Statement/Management Plan 
(FEIS/MP) are available upon request to the Marine Sanctuaries Division, 
Office of Ocean and Coastal Resource Management, National Ocean Service, 
National Oceanic and Atmospheric Administration, 1305 East-West Highway, 
11th Floor, Silver Spring, MD 20910, (301) 713-3125.
    Traditional fishing includes tribal fishing rights as provided for 
in the 1836 Treaty of Washington and subsequent court decisions related 
to the Treaty.
    Underwater cultural resource means:
    (1) Any sunken watercraft, including a ship, boat, canoe, skiff, 
raft, or barge; the rigging, gear, fittings, trappings, and equipment of 
any sunken watercraft; the personal property of the officers, crew, and 
passengers of any sunken watercraft; and the cargo of any sunken 
watercraft, that sank prior to the effective date of Sanctuary 
designation; and
    (2) Any of the above that sinks on or after the date of Sanctuary 
designation determined to be an underwater cultural resource by the 
Director pursuant to Sec. 922.198. Underwater cultural resource also 
means any historical remnant of docks or piers or associated material, 
or materials resulting from activities of historic and prehistoric 
Native Americans.

[[Page 195]]

    (b) Other terms appearing in the regulations are defined at 15 CFR 
part 922 subpart A, and/or in the National Marine Sanctuaries Act, as 
amended, 16 U.S.C. 1431 et seq.



Sec. 922.192  Joint Management Committee.

    (a) A state/federal Joint Management Committee shall be established 
to oversee and engage in decision-making authority for the Thunder Bay 
National Marine Sanctuary and Underwater Preserve.
    (b) The Joint Management Committee shall be comprised of one Federal 
employee named by the NOAA Administrator and one state employee named by 
the Governor of Michigan. The Federal employee cannot be the sanctuary 
manager (the individual who exercises day-to-day management over the 
Sanctuary) and must have a civil service grade higher than that of the 
sanctuary manager.
    (c) The Joint Management Committee shall:
    (1) Develop a position description for, recruit prospective 
candidates for the position of, interview candidates for the position 
of, and take part in the annual performance evaluation of, the sanctuary 
manager;
    (2) Approve revisions to the Management Plan;
    (3) Approve annual work plans;
    (4) Approve, on an annual basis, the expenditure of allocated state 
and federal funds and other sources of revenue for the Thunder Bay 
National Marine Sanctuary and Underwater Preserve, in accordance with 
the Management Plan and the annual work plans; and
    (5) Make decisions on other key issues related to management of the 
Thunder Bay National Marine Sanctuary and Underwater Preserve.
    (d) The Joint Management Committee shall meet as agreed to by the 
members but not less than once annually.
    (e) If the Joint Management Committee is unable to reach agreement 
on an issue, the members shall follow the ``Consultation and Conflict 
Resolution'' procedures set forth in the Interlocal Agreement between 
NOAA and the State of Michigan.
    (f) The Joint Management Committee may invite affected public 
parties to participate in selected aspects of Sanctuary management as:
    (1) Parties to the Interlocal Agreement pursuant to the Michigan 
Urban Cooperation Act of 1967, MCL 124.501 et seq.; and/or
    (2) Pursuant to the NMSA.



Sec. 922.193  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (d) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Recovering, altering, destroying, possessing, or attempting to 
recover, alter, destroy, or possess an underwater cultural resource.
    (2) Drilling into, dredging or otherwise altering the lakebottom 
associated with underwater cultural resources, including contextual 
information; or constructing, placing or abandoning any structure, 
material or other matter on the lakebottom associated with underwater 
cultural resources, except as an incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations; or
    (iii) Minor projects (as defined in Appendix B of this subpart) that 
do not adversely affect underwater cultural resources.
    (3) Using grappling hooks or other anchoring devices on underwater 
cultural resource sites that are marked with a mooring buoy.
    (4) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulations issued under 
the Act.
    (b) Members of a federally-recognized Indian tribe may exercise 
treaty-secured rights, subject to the requirements of other applicable 
law, without regard to the requirements of this subpart. The Director 
may consult with the governing body of a tribe regarding ways the tribe 
may exercise such rights consistent with the purposes of the Sanctuary, 
provided that the rights are authorized by the tribe by regulation, 
license, or permit.

[[Page 196]]

    (c) The prohibitions in paragraphs (a)(1) through (3) of this 
section do not apply to valid law enforcement activities, or any 
activity necessary to respond to an emergency threatening life or the 
environment.
    (d) The prohibitions in paragraphs (a) (1) through (3) of this 
section do not apply to any activity:
    (1) Specifically authorized by, and conducted in accordance with the 
scope, purpose, terms and conditions of, a permit issued pursuant to 
Sec. 922.195 or a Special Use Permit issued pursuant to section 310 of 
the NMSA.
    (2) Specifically authorized by any valid Federal, State, or local 
lease, permit, license, approval, or other authorization in existence on 
the effective date of these regulations, or by any valid right of 
subsistence use or access in existence on the effective date of these 
regulations, provided that the holder of such authorization or right 
complies with Sec. 922.194 and Sec. 922.47 and with any terms and 
conditions for the exercise of such authorization or right imposed by 
the Director as a condition of certification as he or she deems 
reasonably necessary to achieve the purposes for which the Sanctuary was 
designated.



Sec. 922.194  Certification of preexisting leases, licenses, permits, 

approvals, other authorizations, or rights to conduct a prohibited 
activity.

    (a) A person may conduct an activity prohibited by Sec. 922.193 
(a)(1) through (3) if such activity is specifically authorized by a 
valid Federal, State, or local lease, permit, license, approval, or 
other authorization in existence on the effective date of Sanctuary 
designation, or by any valid right of subsistence use or access in 
existence on the effective date of Sanctuary designation, provided that:
    (1) for any State or local lease, permit, license, approval, or 
other authorization, or any right of subsistence use, the State 
Archaeologist certifies to the Director, within 90 days of the effective 
date of designation, that the activity authorized under the State or 
local lease, permit, license, approval, or other authorization, or any 
right of subsistence use, is being conducted consistent with the 
Programmatic Agreement, in which case such activity shall be deemed to 
have met the requirements of this section and Sec. 922.47; or
    (2) In the case where either:
    (i) The State Archaeologist does not certify that the activity 
authorized under a State or local lease, permit, license, approval, or 
other authorization, or right of subsistence use is being conducted 
consistent with the Programmatic Agreement; or
    (ii) The activity is conducted pursuant only to a Federal permit, 
the holder of the authorization or right complies with paragraphs (b) 
through (k) of this section.
    (b) For an activity described in paragraph (a)(2) of this section, 
the holder of the authorization or right may conduct the activity 
prohibited by Sec. 922.193 (a)(1) through (3) provided that:
    (1) The holder of such authorization or right notifies the Director, 
in writing, within 90 days of the effective date of Sanctuary 
designation, of the existence of such authorization or right and 
requests certification of such authorization or right;
    (2) The holder complies with the other provisions of Sec. 922.194; 
and
    (3) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as a condition of 
certification, by the Director, to achieve the purposes for which the 
Sanctuary was designated.
    (c) The holder of an authorization or right described in paragraph 
(a)(2) of this section authorizing an activity prohibited by Sec. 
922.193 may conduct the activity without being in violation of 
applicable provisions of Sec. 922.193, pending final agency action on 
his or her certification request, provided the holder is in compliance 
with this Sec. 922.194.
    (d) Any holder of an authorization or right described in paragraph 
(a)(2) of this section may request the Director to issue a finding as to 
whether the activity for which the authorization has been issued, or the 
right given, is prohibited by Sec. 922.193, thus requiring 
certification under this section.
    (e) Requests for findings or certifications should be addressed to 
the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary

[[Page 197]]

Manager, Thunder Bay National Marine Sanctuary and Underwater Preserve, 
1305 East-West Highway, N/ORM, Silver Spring, Maryland, 20910. A copy of 
the lease, permit, license, approval, or other authorization must 
accompany the request.
    (f) The Director may request additional information from the 
certification requester as he or she deems reasonably necessary to 
condition appropriately the exercise of the certified authorization or 
right to achieve the purposes for which the Sanctuary was designated. 
The Director must receive the information requested within 45 days of 
the postmark date of the request. The Director may seek the views of any 
persons on the certification request.
    (g) The Director may amend any certification made under this Sec. 
922.194 whenever additional information becomes available justifying 
such an amendment.
    (h) Upon completion of review of the authorization or right and 
information received with respect thereto, the Director shall 
communicate, in writing, any decision on a certification request or any 
action taken with respect to any certification made under this Sec. 
922.194, in writing, to both the holder of the certified lease, permit, 
license, approval, other authorization, or right, and the issuing 
agency, and shall set forth the reason(s) for the decision or action 
taken.
    (i) Any time limit prescribed in or established under this Sec. 
922.194 may be extended by the Director for good cause.
    (j) The holder may appeal any action conditioning, amending, 
suspending, or revoking any certification in accordance with the 
procedures set forth in Sec. 922.50.
    (k) Any amendment, renewal, or extension made after the effective 
date of Sanctuary designation, to a lease, permit, license, approval, 
other authorization or right is subject to the provisions of Sec. 
922.195 and Sec. 922.49.
    (l) For any activity authorized pursuant to Sec. 922.193 (b), the 
holder of such license or permit shall notify the Director, in writing, 
within 90 days of the effective date of Sanctuary designation, of the 
existence of such authorization or right.



Sec. 922.195  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.193 
(a)(1) through (3), if 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 Sec. 922.49; 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 Sec. 922.49 of this part.
    (b) If no State Permit is required to conduct an activity prohibited 
by Sec. 922.193 (a)(1) through (3) of this subpart, a person may 
conduct such activity if it is conducted in accordance with the scope, 
purpose, terms and conditions of a Federal permit, provided that the 
person complies with the provisions of Sec. 922.49 of this part.
    (c) 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 must obtain a Sanctuary permit from NOAA pursuant to Sec. 
922.48 (c) through (f) of this part and the Programmatic Agreement in 
order to conduct the activity.
    (d) 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 (c) of this section;
    (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

[[Page 198]]

historical information, or further the policies of the Sanctuary.
    (e) 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.



Sec. 922.196  Emergency regulations.

    (a) Where necessary to prevent or minimize the destruction of, loss 
of, or injury to an underwater cultural resource, or to minimize the 
imminent risk of such destruction, loss, or injury, any and all 
activities are subject to immediate temporary regulation, including 
prohibition. An emergency regulation shall not take effect without the 
approval of the Governor of Michigan.
    (b) Emergency regulations remain in effect until a date fixed in the 
rule or six months after the effective date, whichever is earlier. The 
rule may be extended once for not more than six months.



Sec. 922.197  Consultation with affected federally-recognized Indian 
tribes.

    The Director shall regularly consult with the governing bodies of 
affected federally-recognized Indian tribes regarding areas of mutual 
concern.

[[Page 199]]



Sec. 922.198  Procedures for determining watercraft and related items 

which sink on or after the date of Sanctuary designation to be an 
underwater cultural resource.

    The Director, in consultation with the State of Michigan, 
appropriate federal agencies, and the governing body of any affected 
federally-recognized tribe, may determine, after providing 45 days for 
public comment, that any sunken watercraft, including a ship, boat, 
canoe, skiff, raft, or barge; the rigging, gear, fittings, trappings, 
and equipment of any sunken watercraft; the personal property of the 
officers, crew, and passengers of any sunken watercraft; and the cargo 
of any sunken watercraft, that sinks on or after the date of Sanctuary 
designation, to be an underwater cultural resource if such is determined 
by the Director to be 50 years or older and of special national 
significance due to architectural significance or association with 
individuals or events that are significant to local or national history.

    Appendix A to Subpart R of Part 922--Thunder Bay National Marine 
         Sanctuary and Underwater Preserve Boundary Coordinates

[Based on North American Datum of 1983]

------------------------------------------------------------------------
                  Point                      Latitude        Longitude
------------------------------------------------------------------------
1.......................................  45[deg]12[min]  83[deg]23[min]
                                               25.5[sec]       18.6[sec]
2.......................................  45[deg]12[min]  83[deg]00[min]
                                               25.5[sec]         00[sec]
3.......................................  44[deg]51[min]  83[deg]00[min]
                                               30.5[sec]         00[sec]
4.......................................  44[deg]51[min]  83[deg]19[min]
                                               30.5[sec]       17.3[sec]
------------------------------------------------------------------------

  Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
                        Sec. 922.193(a)(2)(iii)

    Pursuant to Michigan State Administrative Rule R 322.1013 of Part 
325, Great Lakes Submerged Lands of Public Act 451 (Michigan State 
Statute), the Michigan Department of Environmental Quality (Department) 
issues permits for projects that are of a minor nature which are not 
controversial, which have minimal adverse environmental impact, which 
will be constructed of clean, non-polluting materials, which do not 
impair the use of the adjacent bottomlands by the public, and which do 
not adversely affect riparian interests of adjacent owners. The 
following projects are minor projects:
    (a) Noncommercial single piers, docks, and boat hoists which meet 
the following design criteria:
    (i) are of a length or size not greater than the length or size of 
similar structures in the vicinity and on the watercourse involved; and
    (ii) provide for the free littoral flow of water and drift material.
    (b) Spring piles and pile clusters when their design and purpose is 
usual for such projects in the vicinity and on the watercourse involved.
    (c) Seawalls, bulkheads, and other permanent revetment structures 
which meet all of the following purpose and design criteria:
    (i) the proposed structure fulfills an identifiable need for erosion 
protection, bank stabilization, protection of uplands, or improvements 
on uplands;
    (ii) the structure will be constructed of suitable materials free 
from pollutants, waste metal products, debris, or organic materials;
    (iii) the structure is not more than 300 feet in length and is 
located in an area on the body of water where other similar structures 
already exist;
    (iv) the placement of backfill or other fill associated with the 
construction does not exceed an average of 3 cubic yards per running 
foot along the shoreline and a maximum of 300 cubic yards; and
    (v) the structure or any associated fill will not be placed in a 
wetland area or placed in any manner that impairs surface water flow 
into or out of any wetland area.
    (d) Groins 50 feet or less in length, as measures from the toe to 
bluff, which meet all of the following criteria:
    (i) the groin is low profile, with the lakeward end not more than 1 
foot above the existing water level; and
    (ii) the groin is placed at least \1/2\ of the groin length from the 
adjacent property line or closer with written approval of the adjacent 
riparian.
    (e) Filling for restoration of existing permitted fill, fills placed 
incidental to construction of other structures, and fills that do not 
exceed 300 cubic yards as a single and complete project, where the fill 
is of suitable material free from pollutants, waste metal products, 
debris, or organic materials.
    (f) Dredging for the maintenance of previously dredged areas or 
dredging of not more than 300 cubic yards as a single and complete 
project when both of the following criteria are met:
    (i) No reasonable expectation exists that the materials to be 
dredged are polluted; and
    (ii) All dredging materials will be removed to an upland site 
exclusive of wetland areas.
    (g) Structural repair of man-made structures, except as exempted by 
Michigan State Administrative Rule R 322.1008(3), when their design and 
purpose meet both of the following criteria:
    (i) The repair does not alter the original use of a recently 
serviceable structure; and

[[Page 200]]

    (ii) The repair will not adversely affect public trust values or 
interests, including navigation and water quality.
    (h) Fish or wildlife habitat structures which meet both of the 
following criteria:
    (i) Are placed so the structures do not impede or create a 
navigational hazard; and
    (ii) Are anchored to the bottomlands.
    (i) Scientific structures such as staff gauges, water monitoring 
devices, water quality testing devices, survey devices, and core 
sampling devices, if the structures do not impede or create a 
navigational hazard.
    (j) Navigational aids which meet both of the following criteria:
    (i) Are approved by the United States Coast Guard; and
    (ii) Are approved under Michigan State Act No. 303 of the Public 
Acts of 1967, as amended, being Section 281.1001 et seq. of the Michigan 
Compiled Laws, and known as the Marine Safety Act.
    (k) Extension of a project where work is being performed under a 
current permit and which will result in no damage to natural resources.
    (l) A sand trap wall which meets all of the following criteria:
    (i) The wall is 300 feet or less in length along the shoreline;
    (ii) The wall does not extend more than 30 feet lakeward of the toe 
of bluff;
    (iii) The wall is low profile, that is, it is not more than 1 foot 
above the existing water level; and
    (iv) The wall is constructed of wood or steel or other non-polluting 
material.
    (m) Physical removal of man-made structures or natural obstructions 
which meet all of the following criteria:
    (i) The debris and spoils shall be removed to an upland site, not in 
a wetland, in a manner which will not allow erosion into public waters;
    (ii) The shoreline and bottom contours shall be restored to an 
acceptable condition; and
    (iii) Upon completion of structure removal, the site does not 
constitute a safety or navigational hazard. Department staff shall 
consider fisheries and wildlife resource values when evaluating 
applications for natural obstruction removal.



PART 923_COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS--Table of Contents




                            Subpart A_General

Sec.
923.1 Purpose and scope.
923.2 Definitions.
923.3 General requirements.

                  Subpart B_Uses Subject to Management

923.10 General.
923.11 Uses subject to management.
923.12 Uses of regional benefit.
923.13 Energy facility planning process.

                   Subpart C_Special Management Areas

923.20 General.
923.21 Areas of particular concern.
923.22 Areas for preservation or restoration.
923.23 Other areas of particular concern.
923.24 Shorefront access and protection planning.
923.25 Shoreline erosion/mitigation planning.

                          Subpart D_Boundaries

923.30 General.
923.31 Inland boundary.
923.32 Lakeward or seaward boundary.
923.33 Excluded lands.
923.34 Interstate boundary.

                 Subpart E_Authorities and Organization

923.40 General.
923.41 Identification of authorities.
923.42 State establishment of criteria and standards for local 
          implementation--Technique A.
923.43 Direct State land and water use planning and regulation--
          Technique B.
923.44 State review on a case-by-case basis of actions affecting land 
          and water uses subject to the management program--Technique C.
923.45 Air and water pollution control requirements.
923.46 Organizational structure.
923.47 Designated State agency.
923.48 Documentation.

    Subpart F_Coordination, Public Involvement and National Interest

923.50 General.
923.51 Federal-State consultation.
923.52 Consideration of the national interest in facilities.
923.53 Federal consistency procedures.
923.54 Mediation.
923.55 Full participation by State and local governments, interested 
          parties, and the general public.
923.56 Plan coordination.
923.57 Continuing consultation.
923.58 Public hearings.

[[Page 201]]

                  Subpart G_Review/Approval Procedures

923.60 Review/approval procedures.

 Subpart H_Amendments to and Termination of Approved Management Programs

923.80 General.
923.81 Requests for amendments.
923.82 Amendment review/approval procedures.
923.83 Mediation of amendments.
923.84 Routine program changes.

 Subpart I_Applications for Program Development of Implementation Grants

923.90 General.
923.91 State responsibility.
923.92 Allocation.
923.93 Eligible implementation costs.
923.94 Application for program development or implementation grants.
923.95 Approval of applications.
923.96 Grant amendments.

    Subpart J_Allocation of Section 306 Program Administration Grants

923.110 Allocation formula.

            Subpart K_Coastal Zone Enhancement Grants Program

923.121 General.
923.122 Objectives.
923.123 Definitions.
923.124 Allocation of section 309 funds.
923.125 Criteria for section 309 project selection.
923.126 Pre-application procedures.
923.127 Formal application for financial assistance and application 
          review and approval procedures.
923.128 Revisions to assessments and strategies.

                     Subpart L_Review of Performance

923.131 General.
923.132 Definitions.
923.133 Procedure for conducting continuing reviews of approved State 
          CZM programs.
923.134 Public participation.
923.135 Enforcement.

    Authority: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; 
Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 
1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 
3 CFR 1983 Comp. p. 186.

    Source: 44 FR 18595, Mar. 28, 1979, unless otherwise noted.



                            Subpart A_General

    Source: 61 FR 33805, June 28, 1996, unless otherwise noted.



Sec. 923.1  Purpose and scope.

    (a) The regulations in this part set forth the requirements for 
State coastal management program approval by the Assistant Administrator 
for Ocean Services and Coastal Zone Management pursuant to the Coastal 
Zone Management Act of 1972, as amended (hereafter, the Act); the grant 
application procedures for program funds; conditions under which grants 
may be terminated; and requirements for review of approved management 
programs.
    (b) Sections 306 and 307 of the Act set forth requirements which 
must be fulfilled as a condition of program approval. The specifics of 
these requirements are set forth below under the following headings: 
General Requirements; Uses Subject to Management; Special Management 
Areas; Boundaries; Authorities and Organization; and Coordination, 
Public Involvement and National Interest. All relevant sections of the 
Act are dealt with under one of these groupings, but not necessarily in 
the order in which they appear in the Act.
    (c) In summary, the requirements for program approval are that a 
State develop a management program that:
    (1) Identifies and evaluates those coastal resources recognized in 
the Act as requiring management or protection by the State;
    (2) Reexamines existing policies or develops new policies to manage 
these resources. These policies must be specific, comprehensive, and 
enforceable;
    (3) Determines specific use and special geographic areas that are to 
be subject to the management program, based on the nature of identified 
coastal concerns;
    (4) Identifies the inland and seaward areas subject to the 
management program;
    (5) Provides for the consideration of the national interest in the 
planning for and siting of facilities that meet more than local 
requirements;
    (6) Includes sufficient legal authorities and organizational 
arrangements

[[Page 202]]

to implement the program and to ensure conformance to it. In arriving at 
these elements of the management program, States are obliged to follow 
an open process which involves providing information to and considering 
the interests of the general public, special interest groups, local 
governments, and regional, State, interstate, and Federal agencies;
    (7) Provides for public participation in permitting processes, 
consistency determinations, and other similar decisions;
    (8) Provides a mechanism to ensure that all state agencies will 
adhere to the program; and
    (9) Contains enforceable policies and mechanisms to implement the 
applicable requirements of the Coastal Nonpoint Pollution Control 
Program of the state required by section 6217 of the Coastal Zone Act 
Reauthorization Amendments of 1990.



Sec. 923.2  Definitions.

    (a) The term Act means the Coastal Zone Management Act of 1972, as 
amended.
    (b) The term Secretary means the Secretary of Commerce and his/her 
designee.
    (c) The term Assistant Administrator means the Assistant 
Administrator for Ocean Services and Coastal Zone Management, National 
Oceanic and Atmospheric Administration (NOAA), or designee.
    (d)(1) The term relevant Federal agencies means those Federal 
agencies with programs, activities, projects, regulatory, financing, or 
other assistance responsibilities in the following fields which could 
impact or affect a State's coastal zone:
    (i) Energy production or transmission,
    (ii) Recreation of a more than local nature,
    (iii) Transportation,
    (iv) Production of food and fiber,
    (v) Preservation of life and property,
    (vi) National defense,
    (vii) Historic, cultural, aesthetic, and conservation values,
    (viii) Mineral resources and extraction, and
    (ix) Pollution abatement and control.
    (2) The following are defined as relevant Federal agencies: 
Department of Agriculture; Department of Commerce; Department of 
Defense; Department of Education; Department of Energy; Department of 
Health and Human Services; Department of Housing and Urban Development; 
Department of the Interior; Department of Transportation; Environmental 
Protection Agency; Federal Energy Regulatory Commission; General 
Services Administration, Nuclear Regulatory Commission; Federal 
Emergency Management Agency.
    (e) The term Federal agencies principally affected means the same as 
``relevant Federal agencies.'' The Assistant Administrator may include 
other agencies for purposes of reviewing the management program and 
environmental impact statement.
    (f) The term Coastal State means a State of the United States in, or 
bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of 
Mexico, Long Island Sound, or one or more of the Great Lakes. Pursuant 
to section 304(3) of the Act, the term also includes Puerto Rico, the 
Virgin Islands, Guam, and American Samoa. Pursuant to section 703 of the 
Covenant to Establish a Commonwealth of the Northern Mariana Islands in 
Political Union with the United States of America, the term also 
includes the Northern Marianas.
    (g) The term management program includes, but is not limited to, a 
comprehensive statement in words, maps, illustrations, or other media of 
communication, including an articulation of enforceable policies and 
citation of authorities providing this enforceability, prepared and 
adopted by the State in accordance with the provisions of this Act and 
this part, setting forth objectives, policies, and standards to guide 
public and private uses of lands and waters in the coastal zone.
    (h) The following terms, as used in these regulations, have the same 
definition as provided in section 304 of the Act:
    (1) Coastal zone;
    (2) Coastal waters;
    (3) Enforceable policy;
    (4) Estuary;
    (5) Land use; and
    (6) Water use.

[[Page 203]]

    (i) The term grant means a financial assistance instrument and 
refers to both grants and cooperative agreements.



Sec. 923.3  General requirements.

    (a) The management program must be developed and adopted in 
accordance with the requirements of the Act and this part, after notice, 
and the opportunity for full participation by relevant Federal and State 
agencies, local governments, regional organizations, port authorities, 
and other interested parties and persons, and be adequate to carry out 
the purposes of the Act and be consistent with the national policy set 
forth in section 303 of the Act.
    (b) The management program must provide for the management of those 
land and water uses having a direct and significant impact on coastal 
waters and those geographic areas which are likely to be affected by or 
vulnerable to sea level rise. The program must include provisions to 
assure the appropriate protection of those significant resources and 
areas, such as wetlands, beaches and dunes, and barrier islands, that 
make the State's coastal zone a unique, vulnerable, or valuable area.
    (c) The management program must contain a broad class of policies 
for each of the following areas: resource protection, management of 
coastal development, and simplification of governmental processes. These 
three broad classes must include specific policies that provide the 
framework for the exercise of various management techniques and 
authorities governing coastal resources, uses, and areas. The three 
classes must include policies that address uses of or impacts on 
wetlands and floodplains within the State's coastal zone, and that 
minimize the destruction, loss or degradation of wetlands and preserve 
and enhance their natural values in accordance with the purposes of 
Executive Order 11990, pertaining to wetlands. These policies also must 
reduce risks of flood loss, minimize the impact of floods on human 
safety, health and welfare, and preserve the natural, beneficial values 
served by floodplains, in accordance with the purposes of Executive 
Order 11988, pertaining to floodplains.
    (d) The policies in the program must be appropriate to the nature 
and degree of management needed for uses, areas, and resources 
identified as subject to the program.
    (e) The policies, standards, objectives, criteria, and procedures by 
which program decisions will be made must provide:
    (1) A clear understanding of the content of the program, especially 
in identifying who will be affected by the program and how, and
    (2) A clear sense of direction and predictability for decisionmakers 
who must take actions pursuant to or consistent with the management 
program.



                  Subpart B_Uses Subject to Management

    Source: 61 FR 33806, June 28, 1996, unless otherwise noted.



Sec. 923.10  General.

    This subpart sets forth the requirements for management program 
approvability with respect to land and water uses which, because of 
their direct and significant impacts on coastal waters or those 
geographic areas likely to be affected by or vulnerable to sea level 
rise, are subject to the terms of the management program. This subpart 
deals in full with the following subsections of the Act: 306(d)(1)(B), 
Uses Subject to the Management Program, 306(d)(2)(H), Energy Facility 
Planning, and 306(d)(12)(B), Uses of Regional Benefit.



Sec. 923.11  Uses subject to management.

    (a)(1) The management program for each coastal state must include a 
definition of what shall constitute permissible land uses and water uses 
within the coastal zone which have a direct and significant impact on 
the coastal waters.
    (2) The management program must identify those land and water uses 
that will be subject to the terms of the management program. These uses 
shall be those with direct and significant impacts on coastal waters or 
on geographic areas likely to be affected by or vulnerable to sea level 
rise.
    (3) The management program must explain how those uses identified in

[[Page 204]]

paragraph (a)(2) of this section will be managed. The management program 
must also contain those enforceable policies, legal authorities, 
performance standards or other techniques or procedures that will govern 
whether and how uses will be allowed, conditioned, modified, encouraged 
or prohibited.
    (b) In identifying uses and their appropriate management, a State 
should analyze the quality, location, distribution and demand for the 
natural and man-made resources of their coastal zone, and should 
consider potential individual and cumulative impacts of uses on coastal 
waters.
    (c) States should utilize the following types of analyses:
    (1) Capability and suitability of resources to support existing or 
projected uses;
    (2) Environmental impacts on coastal resources;
    (3) Compatibility of various uses with adjacent uses or resources;
    (4) Evaluation of inland and other location alternatives; and
    (5) Water dependency of various uses and other social and economic 
considerations.
    (d) Examination of the following factors is suggested:
    (1) Air and water quality;
    (2) Historic, cultural and esthetic resources where coastal 
development is likely to affect these resources;
    (3) Open space or recreational uses of the shoreline where increased 
access to the shorefront is a particularly important concern;
    (4) Floral and faunal communities where loss of living marine 
resources or threats to endangered or threatened coastal species are 
particularly important concerns.
    (5) Information on the impacts of global warming and resultant sea 
level rise on natural resources such as beaches, dunes, estuaries, and 
wetlands, on salinization of drinking water supplies, and on properties, 
infrastructure and public works.



Sec. 923.12  Uses of regional benefit.

    The management program must contain a method of assuring that local 
land use and water use regulations within the coastal zone do not 
unreasonably restrict or exclude land uses and water uses of regional 
benefit. To this end, the management program must:
    (a) Identify what constitutes uses of regional benefit; and
    (b) Identify and utilize any one or a combination of methods, 
consistent with the control techniques employed by the State, to assure 
local land and water use regulations do not unreasonably restrict or 
exclude uses of regional benefit.

[61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996]



Sec. 923.13  Energy facility planning process.

    The management program must contain a planning process for energy 
facilities likely to be located in or which may significantly affect, 
the coastal zone, including a process for anticipating the management of 
the impacts resulting from such facilities. (See subsection 304(5) of 
the Act.) This process must contain the following elements:
    (a) Identification of energy facilities which are likely to locate 
in, or which may significantly affect, a State's coastal zone;
    (b) Procedures for assessing the suitability of sites for such 
facilities designed to evaluate, to the extent practicable, the costs 
and benefits of proposed and alternative sites in terms of State and 
national interests as well as local concerns;
    (c) Articulation and identification of enforceable State policies, 
authorities and techniques for managing energy facilities and their 
impacts; and
    (d) Identification of how interested and affected public and private 
parties will be involved in the planning process.

[61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996]



                   Subpart C_Special Management Areas

    Source: 61 FR 33806, June 28, 1996, unless otherwise noted.



Sec. 923.20  General.

    (a) This subpart sets forth the requirements for management program 
approvability with respect to areas of

[[Page 205]]

particular concern because of their coastal-related values or 
characteristics, or because they may face pressures which require 
detailed attention beyond the general planning and regulatory system 
which is part of the management program. As a result, these areas 
require special management attention within the terms of the State's 
overall coastal program. This special management may include regulatory 
or permit requirements applicable only to the area of particular 
concern. It also may include increased intergovernmental coordination, 
technical, assistance, enhanced public expenditures, or additional 
public services and maintenance to a designated area. This subpart deals 
with the following subsections of the Act: 306(d)(2)(C)--Geographic 
Areas of Particular Concern; 306(d)(2)(E)--Guidelines on Priorities of 
Uses; 306(d)(2)(G)--Shorefront Access and protection Planning; 
306(d)(2)(I)--Shoreline Erosion/Mitigation Planning; and 306(d)(9)--
Areas for Preservation and Restoration.
    (b) The importance of designating areas of particular concern for 
management purposes and the number and type of areas that should be 
designated is directly related to the degree of comprehensive controls 
applied throughout a State's coastal zone. Where a State's general 
coastal management policies and authorities address state and national 
concerns comprehensively and are specific with respect to particular 
resources and uses, relatively less emphasis need be placed on 
designation of areas of particular concern. Where these policies are 
limited and non-specific, greater emphasis should be placed on areas of 
particular concern to assure effective management and an adequate degree 
of program specificity.



Sec. 923.21  Areas of particular concern.

    (a) The management program must include an inventory and designation 
of areas of particular concern within the coastal zone, on a generic 
and/or site-specific basis, and broad guidelines on priorities of uses 
in particular areas, including specifically those uses of lowest 
priority.
    (b) In developing criteria for inventorying and designating areas of 
particular concern. States must consider whether the following represent 
areas of concern requiring special management:
    (1) Areas of unique, scarce, fragile or vulnerable natural habitat; 
unique or fragile, physical, figuration (as, for example, Niagara 
Falls); historical significance, cultural value or scenic importance 
(including resources on or determined to be eligible for the National 
Register of Historic Places.);
    (2) Areas of high natural productivity or essential habitat for 
living resources, including fish, wildlife, and endangered species and 
the various trophic levels in the food web critical to their well-being;
    (3) Areas of substantial recreational value and/or opportunity;
    (4) Areas where developments and facilities are dependent upon the 
utilization of, or access to, coastal waters;
    (5) Areas of unique hydrologic, geologic or topographic significance 
for industrial or commercial development or for dredge spoil disposal;
    (6) Areas or urban concentration where shoreline utilization and 
water uses are highly competitive;
    (7) Areas where, if development were permitted, it might be subject 
to significant hazard due to storms, slides, floods, erosion, 
settlement, salt water intrusion, and sea level rise;
    (8) Areas needed to protect, maintain or replenish coastal lands or 
resources including coastal flood plains, aquifers and their recharge 
areas, estuaries, sand dunes, coral and other reefs, beaches, offshore 
sand deposits and mangrove stands.
    (c) Where states will involve local governments, other state 
agencies, federal agencies and/or the public in the process of 
designating areas of particular concern, States must provide guidelines 
to those who will be involved in the designation process. These 
guidelines shall contain the purposes, criteria, and procedures for 
nominating areas of particular concern.
    (d) In identifying areas of concern by location (if site specific) 
or category of coastal resources (if generic), the program must contain 
sufficient detail to

[[Page 206]]

enable affected landowners, governmental entities and the public to 
determine with reasonable certainty whether a given area is designated.
    (e) In identifying areas of concern, the program must describe the 
nature of the concern and the basis on which designations were made.
    (f) The management program must describe how the management program 
addresses and resolves the concerns for which areas are designated; and
    (g) The management program must provide guidelines regarding 
priorities of uses in these areas, including guidelines on uses of 
lowest priority.



Sec. 923.22  Areas for preservation or restoration.

    The management program must include procedures whereby specific 
areas may be designated for the purpose of preserving or restoring them 
for their conservation, recreational, ecological, historical or esthetic 
values, and the criteria for such designations.



Sec. 923.23  Other areas of particular concern.

    (a) The management program may, but is not required to, designate 
specific areas known to require additional or special management, but 
for which additional management techniques have not been developed or 
necessary authorities have not been established at the time of program 
approval. If a management program includes such designations, the basis 
for designation must be clearly stated, and a reasonable time frame and 
procedures must be set forth for developing and implementing appropriate 
management techniques. These procedures must provide for the development 
of those items required in Sec. 923.21. The management program must 
identify an agency (or agencies) capable of formulating the necessary 
management policies and techniques.
    (b) The management program must meet the requirements of Sec. 
923.22 for containing procedures for designating areas for preservation 
or restoration. The management program may include procedures and 
criteria for designating areas of particular concern for other than 
preservation or restoration purposes after program approval.



Sec. 923.24  Shorefront access and protection planning.

    (a) The management program must include a definition of the term 
``beach'' and a planning process for the protection of, and access to, 
public beaches and other public coastal areas of environmental, 
recreational, historical, esthetic, ecological or cultural value.
    (b) The basic purpose in focusing special planning attention on 
shorefront access and protection is to provide public beaches and other 
public coastal areas of environmental, recreational, historic, esthetic, 
ecological or cultural value with special management attention within 
the purview of the State's management program. This special management 
attention may be achieved by designating public shorefront areas 
requiring additional access or protection as areas of particular concern 
pursuant to Sec. 923.21 or areas for preservation or restoration 
pursuant to Sec. 923.22.
    (c) The management program must contain a procedure for assessing 
public beaches and other public areas, including State owned lands, 
tidelands and bottom lands, which require access or protection, and a 
description of appropriate types of access and protection.
    (d) The management program must contain a definition of the term 
``beach'' that is the broadest definition allowable under state law or 
constitutional provisions, and an identification of public areas meeting 
that definition.
    (e) The management program must contain an identification and 
description of enforceable policies, legal authorities, funding program 
and other techniques that will be used to provide such shorefront access 
and protection that the State's planning process indicates is necessary.



Sec. 923.25  Shoreline erosion/mitigation planning.

    (a) The management program must include a planning process for 
assessing the effects of, and studying and evaluating ways to control, 
or lessen the impact of, shoreline erosion, including potential impacts 
of sea level rise, and to restore areas adversely affected by such 
erosion. This planning process

[[Page 207]]

may be within the broader context of coastal hazard mitigation planning.
    (b) The basic purpose in developing this planning process is to give 
special attention to erosion issues. This special management attention 
may be achieved by designating erosion areas as areas of particular 
concern pursuant to Sec. 923.21 or as areas for preservation or 
restoration pursuant to Sec. 923.22.
    (c) The management program must include an identification and 
description of enforceable policies, legal authorities, funding 
techniques and other techniques that will be used to manage the effects 
of erosion, including potential impacts of sea level rise, as the 
state's planning process indicates is necessary.

[61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996]



                          Subpart D_Boundaries

    Source: 61 FR 33808, June 28, 1996, unless otherwise noted.



Sec. 923.30  General.

    This subpart sets forth the requirements for management program 
approvability with respect to boundaries of the coastal zone. There are 
four elements to a State's boundary: the inland boundary, the seaward 
boundary, areas excluded from the boundary, and, in most cases, 
interstate boundaries. Specific requirements with respect to procedures 
for determining and identifying these boundary elements are discussed in 
the sections of this subpart that follow.



Sec. 923.31  Inland boundary.

    (a) The inland boundary of a State's coastal zone must include:
    (1) Those areas the management of which is necessary to control uses 
which have direct and significant impacts on coastal waters, or are 
likely to be affected by or vulnerable to sea level rise, pursuant to 
section 923.11 of these regulations.
    (2) Those special management areas identified pursuant to Sec. 
923.21;
    (3) Waters under saline influence--waters containing a significant 
quantity of seawater, as defined by and uniformly applied by the State;
    (4) Salt marshes and wetlands--Areas subject to regular inundation 
of tidal salt (or Great Lakes) waters which contain marsh flora typical 
of the region;
    (5) Beaches--The area affected by wave action directly from the sea. 
Examples are sandy beaches and rocky areas usually to the vegetation 
line;
    (6) Transitional and intertidal areas-Areas subject to coastal storm 
surge, and areas containing vegetation that is salt tolerant and 
survives because of conditions associated with proximity to coastal 
waters. Transitional and intertidal areas also include dunes and rocky 
shores to the point of upland vegetation;
    (7) Islands--Bodies of land surrounded by water on all sides. 
Islands must be included in their entirety, except when uses of interior 
portions of islands do not cause direct and significant impacts.
    (8) The inland boundary must be presented in a manner that is clear 
and exact enough to permit determination of whether property or an 
activity is located within the management area. States must be able to 
advise interested parties whether they are subject to the terms of the 
management program within, at a maximum, 30 days of receipt of an 
inquiry. An inland coastal zone boundary defined in terms of political 
jurisdiction (e.g., county, township or municipal lines) cultural 
features (e.g., highways, railroads), planning areas (e.g., regional 
agency jurisdictions, census enumeration districts), or a uniform 
setback line is acceptable so long as it includes the areas indentified.
    (b) The inland boundary of a State's coastal zone may include:
    (1) Watersheds--A state may determine some uses within entire 
watersheds which have direct and significant impact on coastal waters or 
are likely to be affected by or vulnerable to sea level rise. In such 
cases it may be appropriate to define the coastal zone as including 
these watersheds.
    (2) Areas of tidal influence that extend further inland than waters 
under saline influence; particularly in estuaries, deltas and rivers 
where uses inland could have direct and significant impacts on coastal 
waters or areas that

[[Page 208]]

are likely to be affected by or vulnerable to sea level rise.
    (3) Indian lands not held in trust by the Federal Government.
    (c) In many urban areas or where the shoreline has been modified 
extensively, natural system relationships between land and water may be 
extremely difficult, if not, impossible, to define in terms of direct 
and significant impacts. Two activities that States should consider as 
causing direct and significant impacts on coastal waters in urban areas 
are sewage discharges and urban runoff. In addition, States should 
consider dependency of uses on water access and visual relationships as 
factors appropriate for the determination of the inland boundary in 
highly urbanized areas.



Sec. 923.32  Lakeward or seaward boundary.

    (a) (1) For states adjoining the Great Lakes, the lakeward boundary 
of the State's coastal zone is the international boundary with Canada or 
the boundaries with adjacent states. For states adjacent to the Atlantic 
or Pacific Ocean, or the Gulf of Mexico, the seaward boundary is the 
outer limit of state title and ownership under the Submerged Lands Act 
(48 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48 U.S.C. 749), the 
Covenant to Establish a Commonwealth of the Northern Mariana Islands in 
Political Union with the United States of America, as approved by the 
Act of March 24, 1976 (48 U.S.C. 1681 note) or section 1 of the Act of 
November 10, 1963, (48 U.S.C. 1705, as applicable).
    (2) The requirement for defining the seaward boundary of a State's 
coastal zone can be met by a simple restatement of the limits defined in 
this section, unless there are water areas which require a more exact 
delineation because of site specific policies associated with these 
areas. Where States have site specific policies for particular water 
areas, these shall be mapped, described or referenced so that their 
location can be determined reasonably easily by any party affected by 
the policies.
    (b) The seaward limits, as defined in this section, are for purposes 
of this program only and represent the area within which the State's 
management program may be authorized and financed. These limits are 
irrespective of any other claims States may have by virtue of other 
laws.



Sec. 923.33  Excluded lands.

    (a) The boundary of a State's coastal zone must exclude lands owned, 
leased, held in trust or whose use is otherwise by law subject solely to 
the discretion of the Federal Government, its officers or agents. To 
meet this requirement, the program must describe, list or map lands or 
types of lands owned, leased, held in trust or otherwise used solely by 
Federal agencies.
    (b) The exclusion of Federal lands does not remove Federal agencies 
from the obligation of complying with the consistency provisions of 
section 307 of the Act when Federal actions on these excluded lands have 
spillover impacts that affect any land or water use or natural resource 
of the coastal zone within the purview of a state's management program. 
In excluding Federal lands from a State's coastal zone for the purposes 
of this Act, a State does not impair any rights or authorities that it 
may have over Federal lands that exist separate from this program.



Sec. 923.34  Interstate boundary.

    States must document that there has been consultation and 
coordination with adjoining coastal States regarding delineation of any 
adjacent inland and lateral seaward boundary.



                 Subpart E_Authorities and Organization

    Source: 61 FR 33809, June 28, 1996, unless otherwise noted.



Sec. 923.40  General.

    (a) This subpart sets forth the requirements for management program 
approvability with respect to authorities and organization. The 
authorities and organizational structure on which a State will rely to 
administer its management program are the crucial underpinnings for 
enforcing the policies which guide the management of the uses and areas 
identified in its management program. There is a direct

[[Page 209]]

relationship between the adequacy of authorities and the adequacy of the 
overall program. The authorities need to be broad enough in both 
geographic scope and subject matter to ensure implementation of the 
State's enforceable policies. These enforceable policies must be 
sufficiently comprehensive and specific to regulate land and water uses, 
control development, and resolve conflicts among competing uses in order 
to assure wise use of the coastal zone. (Issues relating to the adequate 
scope of the program are dealt with in Sec. 923.3.)
    (b) The entity or entities which will exercise the program's 
authorities is a matter of State determination. They may be the state 
agency designated pursuant to section 306(d)(6) of the Act, other state 
agencies, regional or interstate bodies, and local governments. The 
major approval criterion is a determination that such entity or entities 
are required to exercise their authorities in conformance with the 
policies of the management program. Accordingly, the essential 
requirement is that the State demonstrate that there is a means of 
ensuring such compliance. This demonstration will be in the context of 
one or a combination of the three control techniques specified in 
section 306(d)(11) of the Act. The requirements related to section 
306(d)(12) of the Act are described in Sec. Sec. 923.42 through 923.44 
of this subchapter.
    (c) In determining the adequacy of the authorities and organization 
of a state's programs, the Assistant Administrator will review and 
evaluate authorities and organizational arrangements in light of the 
requirements of this subpart and the finding of section 302(h) of the 
Act.
    (d) The authorities requirements of the Act dealt with in this 
subpart are those contained in subsections 306(d)(2)(D)--Means of 
Control; 306(d)(10)-Authorities; 306(d)(10)(A)-Control Development and 
Resolve Conflicts; 306(d)(10)(B)-Powers of Acquisition; 306(d)(11)--
Techniques of Control; and 307(f)--Air and Water Quality Control 
Requirements. The organization requirements of the Act dealt with in 
this subpart are those contained in sections 306(d)(2)(F)--
Organizational Structure; 306(d)(6)--Designated State Agency; and 
306(d)(7)--Organization.



Sec. 923.41  Identification of authorities.

    (a)(1) The management program must identify the means by which the 
state proposes to exert control over the permissible land uses and water 
uses within the coastal zone which have a direct and significant impact 
on the coastal waters, including a listing of relevant state 
constitutional provisions, laws, regulations, and judicial decisions. 
These are the means by which the state will enforce its coastal 
management policies. (See section 304(6a) of the Act.)
    (2) The state chosen agency or agencies (including local 
governments, area-wide agencies, regional agencies, or interstate 
agencies) must have the authority for the management of the coastal 
zone. Such authority includes the following powers:
    (i) To administer land use and water use regulations to control 
development to ensure compliance with the management program, and to 
resolve conflicts among competing uses; and
    (ii) To acquire fee simple and less than fee simple interests in 
land, waters, and other property through condemnation or other means 
when necessary to achieve conformance with the management program.
    (b) In order to meet these requirements, the program must identify 
relevant state constitutional provisions, statutes, regulations, case 
law and such other legal instruments (including executive orders and 
interagency agreements) that will be used to carry out the state's 
management program, including the authorities pursuant to sections 
306(d)(10) and 306(d)(11) of the Act which require a state to have the 
ability to:
    (1) Administer land and water use regulations in conformance with 
the policies of the management program;
    (2) Control such development as is necessary to ensure compliance 
with the management program;
    (3) Resolve conflicts among competing uses; and

[[Page 210]]

    (4) Acquire appropriate interest in lands, waters or other property 
as necessary to achieve management objectives. Where acquisition will be 
a necessary technique for accomplishing particular program policies and 
objectives, the management program must indicate for what purpose 
acquisition will be used (i.e., what policies or objectives will be 
accomplished); the type of acquisition (e.g., fee simple, purchase of 
easements, condemnation); and what agency (or agencies) of government 
have the authority for the specified type of acquisition.



Sec. 923.42  State establishment of criteria and standards for local 
implementation--Technique A.

    (a) The management program must provide for any one or a combination 
of general techniques specified in subsection 306(d)(11) of the Act for 
control of land uses and water uses within the coastal zone. The first 
such control technique, at subsection 306(d)(11)(A) of the Act, is state 
establishment of criteria and standards for local implementation, 
subject to administrative review and enforcement (control technique A).
    (b) There are 5 principal requirements that control technique A must 
embody in order to be approved:
    (1) The State must have developed and have in effect at the time of 
program approval enforceable policies that meet the requirements of 
Sec. 923.3. These policies must serve as the standards and criteria for 
local program development or the State must have separate standards and 
criteria, related to these enforceable policies, that will guide local 
program development.
    (2) During the period while local programs are being developed, a 
State must have sufficient authority to assure that land and water use 
decisions subject to the management program will comply with the 
program's enforceable policies. The adequacy of these authorities will 
be judged on the same basis as specified for direct State controls or 
case-by-case reviews.
    (3) A State must be able to ensure that coastal programs will be 
developed pursuant to the State's standards and criteria, or failing 
this, that the management program can be implemented directly by the 
State. This requirement can be met if a State can exercise any one of 
the following techniques:
    (i) Direct State enforcement of its standards and criteria in which 
case a State would need to meet the requirements of this section which 
address the direct State control technique;
    (ii) Preparation of a local program by a State agency which the 
local government then would implement. To use this technique the State 
must have statutory authority to prepare and adopt a program for a local 
government, and a mechanism by which the State can cause the local 
government to enforce the State-created program. Where the mechanism to 
assure local enforcement will be judicial relief, the program must 
include the authority under which judicial relief can be sought;
    (iii) State preparation and enforcement of a program on behalf of a 
local government. Here the State must have the authority to:
    (A) Prepare and adopt a plan, regulations, and ordinances for the 
local government and
    (B) Enforce such plans, regulations and ordinances;
    (iv) State review of local government actions on a case-by-case 
basis or on appeal, and prevention of actions inconsistent with the 
standards and criteria. Under this technique, when a local government 
fails to adopt an approvable program, the State must have the ability to 
review activities in the coastal zone subject to the management program 
and the power to prohibit, modify or condition those activities based on 
the policies, standards and criteria of the management program; or
    (v) If a locality fails to adopt a management program, the State may 
utilize a procedure whereby the responsibility for preparing a program 
shifts to an intermediate level government, such as a county. If this 
intermediate level of government fails to produce a program, then the 
State must have the ability to take one of the actions described above. 
This alternative cannot be used where the intermediate level of 
government lacks the legal authority to adopt and implement regulations

[[Page 211]]

necessary to implement State policies, standards and criteria.
    (4) A State must have a procedure whereby it reviews and certifies 
the local program's compliance with State standards and criteria. This 
procedure must include provisions for:
    (i) Opportunity for the public and governmental entities (including 
Federal agencies) to participate in the development of local programs; 
and
    (ii) Opportunity for the public and governmental entities (including 
Federal agencies) to make their views known (through public hearings or 
other means) to the State agency prior to approval of local programs; 
and
    (iii) Review by the State of the adequacy of local programs 
consideration of facilities identified in a State's management program 
in which there is a national interest.
    (5) A State must be able to assure implementation and enforcement of 
a local program once approved. To accomplish this a State must:
    (i) Establish a monitoring system which defines what constitutes and 
detects patterns of non-compliance. In the case of uses of regional 
benefit and facilities in which there is a national interest, the 
monitoring system must be capable of detecting single instances of local 
actions affecting such uses or facilities in a manner contrary to the 
management program.
    (ii) Be capable of assuring compliance when a pattern of deviation 
is detected or when a facility involving identified national interests 
or a use of regional benefit is affected in a manner contrary to the 
program's policies. When State action is required because of failure by 
a local government to enforce its program, the State must be able to do 
one or a combination of the following:
    (A) Directly enforce the entire local program;
    (B) Directly enforce that portion of the local program that is being 
enforced improperly. State intervention would be necessary only in those 
local government activities that are violating the policies, standards 
or criteria.
    (C) Seek judicial relief against local government for failure to 
properly enforce;
    (D) Review local government actions on a case-by-case basis or on 
appeal and have the power to prevent those actions inconsistent with the 
policies and standards.
    (E) Provide a procedure whereby the responsibility for enforcing a 
program shifts to an intermediate level of government, assuming 
statutory authority exists to enable the immediate of government to 
assume this responsibility.



Sec. 923.43  Direct State land and water use planning and regulation
--Technique B.

    (a) The management program must provide for any one or a combination 
of general techniques specified in subsection 306(d)(11) of the Act for 
control of land and water uses within the coastal zone. The second such 
control technique, at subsection 306(d)(11)(B) of the Act, is direct 
state land and water use planning and regulation (control technique B).
    (b) To have control technique B approved, the State must have the 
requisite direct authority to plan and regulate land and water uses 
subject to the management program. This authority can take the form of:
    (1) Comprehensive legislation--A single piece of comprehensive 
legislation specific to coastal management and the requirements of this 
Act.
    (2) Networking--The utilization of authorities which are compatible 
with and applied on the basis of coastal management policies developed 
pursuant to Sec. 923.3.
    (c) In order to apply the networking concept, the State must:
    (1) Demonstrate that, taken together, existing authorities can and 
will be used to implement the full range of policies and management 
techniques identified as necessary for coastal management purposes; and
    (2) Bind each party which exercises statutory authority that is part 
of the management program to conformance with relevant enforceable 
policies and management techniques. Parties may be bound to conformance 
through an executive order, administrative directive or a memorandum of 
understanding provided that:

[[Page 212]]

    (i) The management program authorities provide grounds for taking 
action to ensure compliance of networked agencies with the program. It 
will be sufficient if any of the following can act to ensure compliance: 
The State agency designated pursuant to subsection 306(d)(6) of the Act, 
the State's Attorney General, another State agency, a local government, 
or a citizen.
    (ii) The executive order, administrative directive or memorandum of 
understanding establishes conformance requirements of other State agency 
activities or authorities to management program policies. A 
gubernatorial executive order will be acceptable if networked State 
agency heads are directly responsible to the Governor.
    (3) Where networked State agencies can enforce the management 
program policies at the time of section 306 approval without first 
having to revise their operating rules and regulations, then any 
proposed revisions to such rules and regulations which would enhance or 
facilitate implementation need not be accomplished prior to program 
approval. Where State agencies cannot enforce coastal policies without 
first revising their rules and regulations, then these revisions must be 
made prior to approval of the State's program by the Assistant 
Administrator.



Sec. 923.44  State review on a case-by-case basis of actions affecting 
land and water uses subject to the management program--Technique C.

    (a) The management program must provide for any one or a combination 
of general techniques specified in subsection 306(d)(11) of the Act for 
control of land and water uses within the coastal zone. The third such 
control technique, at subsection 306(d)(11)(C) of the Act, is state 
administrative review for consistency with the management program of all 
development plans, projects, or land and water use regulations, 
including exceptions and variances thereto, proposed by any state or 
local authority or private developer, with power to approve or 
disapprove after public notice and an opportunity for hearings (control 
technique C).
    (b) Under case-by-case review, States have the power to review 
individual development plans, projects or land and water use regulations 
(including variances and exceptions thereto) proposed by any State or 
local authority or private developer which have been identified in the 
management program as being subject to review for consistency with the 
management program. This control technique requires the greatest degree 
of policy specificity because compliance with the program will not 
require any prior actions on the part of anyone affected by the program. 
Specificity also is needed to avoid challenges that decisions (made 
pursuant to the management program) are unfounded, arbitrary or 
capricious.
    (c) To have control technique C approved, a State must:
    (1) Identify the plans, projects or regulations subject to review, 
based on their significance in terms of impacts on coastal resources, 
potential for incompatibility with the State's coastal management 
program, and having greater than local significance;
    (2) Identify the State agency that will conduct this review;
    (3) Include the criteria by which identified plans, projects and 
regulations will be approved or disapproved;
    (4) Have the power to approve or disapprove identified plans, 
projects or regulations that are inconsistent with the management 
program, or the power to seek court review thereof; and
    (5) Provide public notice of reviews and the opportunity for public 
hearing prior to rendering a decision on each case-by-case review.



Sec. 923.45  Air and water pollution control requirements.

    The program must incorporate, by reference or otherwise, all 
requirements established by the Federal Water Pollution Control Act, as 
amended (Clean Water Act or CWA), or the Clean Air Act, as amended 
(CAA), or established by the Federal Government or by any state or local 
government pursuant to such Acts. Such requirements must be the water 
pollution control and air pollution control requirements applicable to 
such program. Incorporation of the air and water quality requirements 
pursuant

[[Page 213]]

to the CWA and CAA should involve their consideration during program 
development, especially with respect to use determinations and 
designation of areas for special management. In addition, this 
incorporation will prove to be more meaningful if close coordination and 
working relationships between the State agency and the air and water 
quality agencies are developed and maintained throughout the program 
development process and after program approval.



Sec. 923.46  Organizational structure.

    The State must be organized to implement the management program. The 
management program must describe the organizational structure that will 
be used to implement and administer the management program including a 
discussion of those state and other agencies, including local 
governments, that will have responsibility for administering, enforcing 
and/or monitoring those authorities or techniques required pursuant to 
the following subsections of the Act: 306(d)(3)(B); 306(d)(10); 
306(d)(10) (A) and (B); 306(d) (11) and (12); and 307(f). The management 
program must also describe the relationship of these administering 
agencies to the state agency designated pursuant to subsection 306(d)(6) 
of the Act.



Sec. 923.47  Designated State agency.

    (a) For program approval, the Governor of the state must designate a 
single state agency to receive and administer the grants for 
implementing the management program.
    (1) This entity must have the fiscal and legal capability to accept 
and administer grant funds, to make contracts or other arrangements 
(such as passthrough grants) with participating agencies for the purpose 
of carrying out specific management tasks and to account for the 
expenditure of the implementation funds of any recipient of such monies, 
and
    (2) This entity must have the administrative capability to monitor 
and evaluate the management of the State's coastal resources by the 
various agencies and/or local governments with specified 
responsibilities under the management program (irrespective of whether 
such entities receive section 306 funds); to make periodic reports to 
the Office of Ocean and Coastal Resource Management (OCRM), the 
Governor, or the State legislature, as appropriate, regarding the 
performance of all agencies involved in the program. The entity also 
must be capable of presenting evidence of adherence to the management 
program or justification for deviation as part of the review by OCRM of 
State performance required by section 312 of the Act.
    (b)(1) The 306 agency designation is designed to establish a single 
point of accountability for prudent use of administrative funds in the 
furtherance of the management and for monitoring of management 
activities. Designation does not imply that this single agency need be a 
``super agency'' or the principal implementation vehicle. It is, 
however, the focal point for proper administration and evaluation of the 
State's program and the entity to which OCRM will look when monitoring 
and reevaluating a State's program during program implementation.
    (2) The requirement for the single designated agency should not be 
viewed as confining or otherwise limiting the role and responsibilities 
which may be assigned to this agency. It is up to the State to decide in 
what manner and to what extent the designated State agency will be 
involved in actual program implementation or enforcement. In determining 
the extent to which this agency should be involved in program 
implementation or enforcement, specific factors should be considered, 
such as the manner in which local and regional authorities are involved 
in program implementation, the administrative structure of the State, 
the authorities to be relied upon and the agencies administering such 
authorities. Because the designated State agency may be viewed as the 
best vehicle for increasing the unity and efficiency of a management 
program, the State may want to consider the following in selecting which 
agency to designate:
    (i) Whether the designated State entity has a legislative mandate to 
coordinate other State or local programs, plans and/or policies within 
the coastal zone;

[[Page 214]]

    (ii) To what extent linkages already exist between the entity, other 
agencies, and local governments;
    (iii) To what extent management or regulatory authorities affecting 
the coastal zone presently are administered by the agency; and
    (iv) Whether the agency is equipped to handle monitoring, evaluation 
and enforcement responsibilities.



Sec. 923.48  Documentation.

    A transmittal letter signed by the Governor is required for the 
submission of a management program for federal approval. The letter must 
state that the Governor:
    (a) Has reviewed and approved as State policy, the management 
program, and any changes thereto, submitted for the approval of the 
Assistant Administrator.
    (b) Has designated a single State agency to receive and administer 
implementation grants;
    (c) Attests to the fact that the State has the authorities necessary 
to implement the management program; and
    (d) Attests to the fact that the State is organized to implement the 
management program.



    Subpart F_Coordination, Public Involvement and National Interest

    Source: 61 FR 33812, June 28, 1996, unless otherwise noted.



Sec. 923.50  General.

    (a) Coordination with governmental agencies having interests and 
responsibilities affecting the coastal zone, and involvement of interest 
groups as well as the general public is essential to the development and 
administration of State coastal management programs. The coordination 
requirements of this subpart are intended to achieve a proper balancing 
of diverse interests in the coastal zone. The policies of section 303 of 
the Act require that there be a balancing of variety, sometimes 
conflicting, interests, including:
    (1) The preservation, protection, development and, where possible, 
the restoration or enhancement of coastal resources;
    (2) The achievement of wise use of coastal land and water resources 
with full consideration for ecological, cultural, historic, and 
aesthetic values and needs for compatible economic development;
    (3) The involvement of the public, of Federal, state and local 
governments and of regional agencies in the development and 
implementation of coastal management programs;
    (4) The management of coastal development to improve, safeguard, and 
restore coastal water quality; and
    (5) The study and development of plans for addressing the adverse 
effects of coastal hazards, including erosion, flooding, land subsidence 
and sea level rise.
    (b) In order to be meaningful, coordination with and participation 
by various units and levels of government including regional 
commissions, interest groups, and the general public should begin early 
in the process of program development and should continue throughout on 
a timely basis to assure that such efforts will result in substantive 
inputs into a State's management program. State efforts should be 
devoted not only to obtaining information necessary for developing the 
management program but also to obtaining reactions and recommendations 
regarding the content of the management program and to responding to 
concerns by interested parties. The requirements for intergovernmental 
cooperation and public participation continue after program approval.
    (c) This subpart deals with requirements for coordination with 
governmental entities, interest groups and the general public to assure 
that their interests are fully expressed and considered during the 
program development process and that procedures are created to insure 
continued consideration of their views during program implementation. In 
addition, this subpart deals with mediation procedures for serious 
disagreements between States and Federal agencies that occur during 
program development and implementation. This subpart addresses the 
requirements of the following subsections of the Act: 306(d)(1)--
Opportunity for Full Participation; 306(d)(3)(A)--Plan Coordination; 
306(d)(3)(B)--Continued State-Local

[[Page 215]]

Consultation; 306(d)(4)--Public Hearings; 306(d)(8)--Consideration of 
the National Interest in Facilities; 307(b)--Federal Consultation; and 
307(h)--Mediation.



Sec. 923.51  Federal-State consultation.

    (a) The management program must be developed and adopted with the 
opportunity of full participation by relevant Federal agencies and with 
adequate consideration of the views of Federal agencies principally 
affected by such program.
    (b) By providing relevant Federal agencies with the opportunity for 
full participation during program development and for adequately 
considering the views of such agencies, States can effectuate the 
Federal consistency provisions of subsections 307 (c) and (d) of the Act 
once their programs are approved. (See 15 CFR part 930 for a full 
discussion of the Federal consistency provisions of the Act.)
    (c) In addition to the consideration of relevant Federal agency 
views required during program development, Federal agencies have the 
opportunity to provide further comment during the program review and 
approval process. (See subpart G for details on this process.) Moreover, 
in the event of a serious disagreement between a relevant Federal agency 
and designated State agency during program development or during program 
implementation, the mediation provisions of subsection 307(h) of the Act 
are available. (See Sec. 923.54 for details on mediation.)
    (d) In order to provide an opportunity for participation by relevant 
Federal agencies and give adequate consideration to their views, each 
state must:
    (1) Contact each relevant Federal Agency listed in Sec. 923.2(d) 
and such other Federal agencies as may be relevant, owing to a State's 
particular circumstances, early in the development of its management 
program. The purpose of such contact is to develop mutual arrangements 
or understandings regarding that agency's participation during program 
development;
    (2) Provide for Federal agency input on a timely basis as the 
program is developed. Such input shall be related both to information 
required to develop the management program and to evaluation of and 
recommendations concerning various elements of the management program;
    (3) Solicit statements from the head of Federal agencies identified 
in Table 1 of Sec. 923.52(c)(1) as to their interpretation of the 
national interest in the planning for and siting of facilities which are 
more than local in nature;
    (4) Summarize the nature, frequency, and timing of contacts with 
relevant Federal agencies;
    (5) Evaluate Federal comments received during the program 
development process and, where appropriate in the opinion of the State, 
accommodate the substance of pertinent comments in the management 
program. States must consider and evaluate relevant Federal agency views 
or comments about the following:
    (i) Management of coastal resources for preservation, conservation, 
development, enhancement or restoration purposes;
    (ii) Statements of the national interest in the planning for or 
siting of facilities which are more than local in nature;
    (iii) Uses which are subject to the management program;
    (iv) Areas which are of particular concern to the management 
program;
    (v) Boundary determinations;
    (vi) Shorefront access and protecting planning, energy facility 
planning and erosion planning processes; and
    (vii) Federally developed or assisted plans that must be coordinated 
with the management program pursuant to subsection 306(d)(3) of the Act.
    (6) Indicate the nature of major comments by Federal agencies 
provided during program development (either by including copies of 
comments or by summarizing comments) and discuss any major differences 
or conflicts between the management program and Federal views that have 
not been resolved at the time of program submission.



Sec. 923.52  Consideration of the national interest in facilities.

    (a) The management program must provide for adequate consideration 
of the national interest involved in planning for, and managing the 
coastal

[[Page 216]]

zone, including the siting of facilities such as energy facilities which 
are of greater than local significance. In the case of energy 
facilities, the State must have considered any applicable national or 
interstate energy plan or program.
    (b) The primary purpose of this requirement is to assure adequate 
consideration by States of the national interest involved in the 
planning for and siting of facilities (which are necessary to meet other 
than local requirements) during:
    (1) The development of the State's management program,
    (2) The review and approval of the program by the Assistant 
Administrator, and
    (3) The implementation of the program as such facilities are 
proposed.
    (c) In order to fulfill this requirement, States must:
    (1) Describe the national interest in the planning for and siting of 
facilities considered during program development.
    (2) Indicate the sources relied upon for a description of the 
national interest in the planning for and siting of the facilities.
    (3) Indicate how and where the consideration of the national 
interest is reflected in the substance of the management program. In the 
case of energy facilities in which there is a national interest, the 
program must indicate the consideration given any national or interstate 
energy plans or programs which are applicable to or affect a state's 
coastal zone.
    (4) Describe the process for continued consideration of the national 
interest in the planning for and siting of facilities during program 
implementation, including a clear and detailed description of the 
administrative procedures and decisions points where such interest will 
be considered.



Sec. 923.53  Federal consistency procedures.

    (a) A State must include in its management program submission, as 
part of the body of the submission an appendix or an attachment, the 
procedures it will use to implement the Federal consistency requirements 
of subsections 307 (c) and (d) of the Act. At a minimum, the following 
must be included:
    (1) An indication of whether the state agency designated pursuant to 
subsection 306(d)(6) of the Act or a single other agency will handle 
consistency review (see 15 CFR 930.18);
    (2) A list of Federal license and permit activities that will be 
subject to review (see 15 CFR 930.53);
    (3) For States anticipating coastal zone effects from Outer 
Continental Shelf (OCS) activities, the license and permit list also 
must include OCS plans which describe in detail Federal license and 
permit activities (see 15 CFR 930.74); and
    (4) The public notice procedures to be used for certifications 
submitted for Federal License and permit activities and, where 
appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and 
930.78).
    (b) Beyond the minimum requirements contained in paragraph (a) of 
this section, States have the option of including:
    (1) A list of Federal activities, including development projects, 
which in the opinion of the State agency are likely to significantly 
affect the coastal zone and thereby will require a Federal agency 
consistency determination (see 15 CFR 930.35); and
    (2) A description of the types of information and data necessary to 
assess the consistency of Federal license and permit activities and, 
where appropriate, those described in detail in OCS plans (see 15 CFR 
930.56 and 930.75).



Sec. 923.54  Mediation.

    (a) Section 307(h) of the Act provides for mediation of serious 
disagreement between any Federal agency and a coastal state in the 
development and implementation of a management program. In certain 
cases, mediation by the Secretary, with the assistance of the Executive 
Office of the President, may be an appropriate forum for conflict 
resolution.
    (b) State-Federal differences should be addressed initially by the 
parties involved. Whenever a serious disagreement cannot be resolved 
between the parties concerned, either party may request the informal 
assistance of the Assistant Administrator in resolving

[[Page 217]]

the disagreement. This request shall be in writing, stating the points 
of disagreement and the reason therefore. A copy of the request shall be 
sent to the other party to the disagreement.
    (c) If a serious disagreement persists, the Secretary or other head 
of a relevant Federal agency, or the Governor or the head of the state 
agency designated by the Governor as administratively responsible for 
program development (if a state still is receiving section 305 program 
development grants) or for program implementation (if a state is 
receiving section 306 program implementation grants) may notify the 
Secretary in writing of the existence of a serious disagreement, and may 
request that the Secretary seek to mediate the serious disagreement. A 
copy of the written request must be sent to the agency with which the 
requesting agency disagrees and to the Assistant Administrator.
    (d) Secretarial mediation efforts shall last only so long as the 
parties agree to participate. The Secretary shall confer with the 
Executive Office of the President, as necessary, during the mediation 
process.
    (e) Mediation shall terminate:
    (1) At any time the parties agree to a resolution of the serious 
disagreement,
    (2) If one of the parties withdraws from mediation,
    (3) In the event the parties fail to reach a resolution of the 
serious disagreement within 15 days following Secretarial mediation 
efforts, and the parties do not agree to extend mediation beyond that 
period, or
    (4) For other good cause.
    (f) The availability of the mediation services provided in this 
section is not intended expressly or implicitly to limit the parties' 
use of alternate forums to resolve disputes. Specifically, judicial 
review where otherwise available by law may be sought by any party to a 
serious disagreement without first having exhausted the mediation 
process provided herein.



Sec. 923.55  Full participation by State and local governments, 
interested parties, and the general public.

    The management program must be developed and adopted with the 
opportunity of full participation by state agencies, local governments, 
regional commissions and organizations, port authorities, and other 
interested public and private parties. To meet this requirement, a State 
must:
    (a) Develop and make available general information regarding the 
program design, its content and its status throughout program 
development;
    (b) Provide a listing, as comprehensive as possible, of all 
governmental agencies, regional organizations, port authorities and 
public and private organizations likely to be affected by or to have a 
direct interest in the development and implementation of the management 
program;
    (c) Indicate the nature of major comments received from interested 
or affected parties, identified in paragraph (b)(2) of this section, and 
the nature of the State's response to these comments; and
    (d) Hold public meetings, workshops, etc., during the course of 
program development at accessible locations and convenient times, with 
reasonable notice and availability of materials.



Sec. 923.56  Plan coordination.

    (a) The management program must be coordinated with local, areawide, 
and interstate plans applicable to areas within the coastal zone--
    (1) Existing on January 1 of the year in which the state's 
management program is submitted to the Secretary; and
    (2) Which have been developed by a local government, an areawide 
agency, a regional agency, or an interstate agency.
    (b) A State must insure that the contents of its management program 
has been coordinated with local, areawide and interstate plans 
applicable to areas within the coastal zone existing on January 1 of the 
year in which the State's management program is submitted to the 
Assistant Administrator for approval. To document this coordination, the 
management program must:
    (1) Identify local governments, areawide agencies and regional or 
interstate agencies which have plans affecting the coastal zone in 
effect on January 1 of the year in which the management program is 
submitted;

[[Page 218]]

    (2) List or provide a summary of contacts with these entities for 
the purpose of coordinating the management program with plans adopted by 
a governmental entity as of January 1 of the year in which the 
management program is submitted. At a minimum, the following plans, 
affecting a State coastal zone, shall be reviewed: Land use plans 
prepared pursuant to section 701 of the Housing and Urban Development 
Act of 1968, as amended; State and areawide waste treatment facility or 
management plans prepared pursuant to sections 201 and 208 of the Clean 
Water Act, as amended; plans and designations made pursuant to the 
National Flood Insurance Act of 1968, as amended, and the Flood Disaster 
Protection Act of 1973, as amended; hazard mitigation plans prepared 
pursuant to section 409 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act; any applicable interstate energy plans or 
programs developed pursuant to section 309 of the Act; regional and 
interstate highway plans; plans developed by Regional Action Planning 
Commission; and fishery management plans developed pursuant to the 
Fisheries Conservation and Management Act.
    (3) Identify conflicts with those plans of a regulatory nature that 
are unresolved at the time of program submission and the means that can 
be used to resolve these conflicts.



Sec. 923.57  Continuing consultation.

    (a) As required by subsection 306(d)(3)(B) of the Act, a State must 
establish an effective mechanism for continuing consultation and 
coordination between the management agency designated pursuant to 
paragraph (6) of section 306(d) of the Act and with local governments, 
interstate agencies, regional agencies, and areawide agencies within the 
coastal zone to assure the full participation of those local governments 
and agencies in carrying out the purposes of this Act.
    (b) The management program must establish a procedure whereby local 
governments with zoning authority are notified of State management 
program decisions which would conflict with any local zoning ordinance 
decision.
    (1) ``Management program decision'' refers to any major, 
discretionary policy decisions on the part of a management agency, such 
as the determination of permissible land and water uses, the designation 
of areas or particular concern or areas for preservation or restoration, 
or the decision to acquire property for public uses. Regulatory actions 
which are taken pursuant to these major decisions are not subject to the 
State-local consultation mechanisms. A State management program decision 
is in conflict with a local zoning ordinance if the decision is 
contradictory to that ordinance. A State management program decision 
that consists of additional but not contradictory requirements is not in 
conflict with a local zoning ordinance, decision or other action;
    (2) ``Local government'' refers to these defined in section 304(11) 
of the Act which have some form of zoning authority.
    (3) ``Local zoning ordinance, decision or other action'' refers to 
any local government land or water use action which regulates or 
restricts the construction, alteration of use of land, water or 
structures thereon or thereunder. These actions include zoning 
ordinances, master plans and official maps. A local government has the 
right to comment on a State management program decision when such 
decision conflicts with the above specified actions;
    (4) Notification must be in writing and must inform the local 
government of its right to submit comments to the State management 
agency in the event the proposed State management program decision 
conflicts with a local zoning ordinance, decision or other action. The 
effect of providing such notice is to stay State action to implement its 
management decision for at least a 30-day period unless the local 
government waives its right to comment.
    (5) ``Waiver'' of the right of local government to comment (thereby 
permitting a State agency to proceed immediately with implementation of 
the management program decision) shall result:

[[Page 219]]

    (i) Following State agency receipt of a written statement from a 
local government indicating that it either:
    (A) Waives its right to comment; or
    (B) Concurs with the management program decision; or
    (C) Intends to take action which conflicts or interferes with the 
management program decision; or
    (ii) Following a public statement by a local government to the same 
effect as paragraph (b)(5)(i) of this section; or
    (iii) Following an action by a local government that conflicts or 
interferes with the management program decision.
    (6) The management program shall include procedures to be followed 
by a management agency in considering a local government's comments. 
These procedures shall include, at a minimum, circumstances under which 
the agency will exercise its discretion to hold a public hearing. Where 
public hearings will be held, the program must set forth notice and 
other hearing procedures that will be followed. Following State agency 
consideration of local comments (when a discretionary public hearing is 
not held) or following public hearing, the management agency shall 
provide a written response to the affected local government, affected 
local government, within a reasonable period of time and prior to 
implementation of the management program decision, on the results of the 
agency's consideration of public comments.



Sec. 923.58  Public hearings.

    The management program must be developed and adopted after the 
holding of public hearings. A State must:
    (a) Hold a minimum of two public hearings during the course of 
program development, at least one of which will be on the total scope of 
the coastal management program. Hearings on the total management program 
do not have to be held on the actual document submitted to the Assistant 
Administrator for section 306 approval. However, such hearing(s) must 
cover the substance and content of the proposed management program in 
such a manner that the general public, and particularly affected 
parties, have a reasonable opportunity to understand the impacts of the 
management program. If the hearing(s) are not on the management document 
per se, all requests for such document must be honored and comments on 
the document received prior to submission of the document to the 
Assistant Administrator must be considered;
    (b) Provide a minimum of 30 days public notice of hearing dates and 
locations;
    (c) Make available for public review, at the time of public notice, 
all agency materials pertinent to the hearings; and
    (d) Include a transcript or summary of the public hearing(s) with 
the State's program document or submit same within thirty (30) days 
following submittal of the program to the Assistant Administrator. At 
the same time this transcript or summary is submitted to the Assistant 
Administrator, it must be made available, upon request, to the public.



                  Subpart G_Review/Approval Procedures

    Source: 61 FR 33815, June 28, 1996, unless otherwise noted.



Sec. 923.60  Review/approval procedures.

    (a) All state management program submissions must contain an 
environmental assessment at the time of submission of the management 
program to OCRM for threshold review. In accordance with regulations 
implementing the National Environmental Policy Act of 1969, as amended, 
OCRM will assist the State by outlining the types of information 
required. (See 40 CFR Sec. 1506.5 (a) and (b).)
    (b) Upon submission by a State of its draft management program, OCRM 
will determine if it adequately meets the requirements of the Act and 
this part. Assuming positive findings are made and major revisions to 
the State's draft management program are not required, OCRM will prepare 
draft and final environmental impact statements, in accordance with 
National Environmental Policy Act requirements. Because the review 
process involves preparation and dissemination of draft and final 
environmental impact statements and lengthy Federal agency review; 
states should anticipate that it will take at

[[Page 220]]

least 7 months between the time a state first submits a draft management 
program to OCRM for threshold review and the point at which the 
Assistant Administrator makes a final decision on whether to approve the 
management program. Certain factors will contribute to lengthening or 
shortening this time table; these factors are discussed in OCRM guidance 
on the review/approval process. The OCRM guidance also recommends a 
format for the program document submitted to the Assistant Administrator 
for review and approval.



 Subpart H_Amendments to and Termination of Approved Management Programs

    Source: 61 FR 33815, June 28, 1996, unless otherwise noted.



Sec. 923.80  General.

    (a) This subpart establishes the criteria and procedures by which 
amendments, modifications or other changes to approved management 
programs may be made. This subpart also establishes the conditions and 
procedures by which administrative funding may be terminated for 
programmatic reasons.
    (b) Any coastal state may amend or modify a management program which 
it has submitted and which has been approved by the Assistant 
Administrator under this subsection, subject to the conditions provided 
for subsection 306(e) of the Act.
    (c) As required by subsection 312(d) of the Act, the Assistant 
Administrator shall withdraw approval of the management program of any 
coastal state and shall withdraw financial assistance available to that 
state under this title as well as any unexpended portion of such 
assistance, it the Assistant Administrator determines that the coastal 
state has failed to take the actions referred to in subsection 
312(c)(2)(A) of the Act.
    (d) For purposes of this subpart, amendments are defined as 
substantial changes in one or more of the following coastal management 
program areas:
    (1) Uses subject to management;
    (2) Special management areas;
    (3) Boundaries;
    (4) Authorities and organization; and
    (5) Coordination, public involvement and the national interest.
    (e) OCRM will provide guidance on program changes. The five program 
management areas identified in Sec. 923.80(d) are also discussed in 
subpart B through F of this part.



Sec. 923.81  Requests for amendments.

    (a) Requests for amendments shall be submitted to the Assistant 
Administrator by the Governor of a coastal state with an approved 
management program or by the head of the state agency (designated 
pursuant to subsection 306(d)(6) of the Act) if the Governor had 
delegated this responsibility and such delegation is part of the 
approved management program. Whenever possible, requests should be 
submitted prior to final State action to implement the amendment. At 
least one public hearing must be held on the proposed amendment, 
pursuant to subsection 306(d)(4) of the Act. Pursuant to section 311 of 
the Act, notice of such public hearing(s) must be announced at least 30 
days prior to the hearing date. At the time of the announcement, 
relevant agency materials pertinent to the hearing must be made 
available to the public.
    (b) Amendment requests must contain the following:
    (1) A description of the proposed change, including specific pages 
and text of the management program that will be changed if the amendment 
is approved by the Assistant Administrator. This description shall also 
identify any enforceable policies to be added to the management program;
    (2) An explanation of why the change is necessary and appropriate, 
including a discussion of the following factors, as relevant; changes in 
coastal zone needs, problems, issues, or priorities. This discussion 
also shall identify which findings, if any made by the Assistant 
Administrator in approving the management program may need to be 
modified if the amendment is approved;
    (3) A copy of public notice(s) announcing the public hearing(s) on 
the proposed amendments;
    (4) A summary of the hearing(s) comments:

[[Page 221]]

    (i) Where OCRM is providing Federal agency review concurrent with 
the notice period for the State's public hearing, this summary of 
hearing(s) comments may be submitted to the Assistant Administrator 
within 60 days after the hearing;
    (ii) Where hearing(s) summaries are submitted as a supplement to the 
amendment request (as in the case described in paragraph (b)(1) of this 
section), the Assistant Administrator will not take final action to 
approve or disapprove an amendment request until the hearing(s) 
summaries have been received and reviewed; and
    (5) Documentation of opportunities provided relevant Federal, State, 
regional and local agencies, port authorities and other interested 
public and private parties to participate in the development and 
approval at the State level of the proposed amendment.

[61 FR 33815, June 28, 1996; 61 FR 36965, July 15, 1996]



Sec. 923.82  Amendment review/approval procedures.

    (a) Upon submission by a State of its amendment request, OCRM will 
review the request to determine preliminarily if the management program, 
if changed according to the amendment request, still will constitute an 
approvable program. In making this determination, OCRM will determine 
whether the state has satisfied the applicable program approvability 
criteria of subsection 306(d) of the Act.
    (b) If the Assistant Administrator, as a preliminary matter, 
determines that the management program, if changed, would no longer 
constitute an approvable program, or if any of the procedural 
requirements of section 306(d) of the Act have not been met, the 
Assistant Administrator shall advise the state in writing of the reasons 
why the amendment request cannot be considered.
    (c) If the Assistant Administrator, as a preliminary matter, 
determines that the management program, if changed, would still 
constitute an approvable program and that the procedural requirements of 
section 306(d) of the Act have been met, the Assistant Administrator 
will then determine, pursuant to the National Environmental Policy Act 
of 1969, as amended, whether an environmental impact statement (EIS) is 
required.



Sec. 923.83  Mediation of amendments.

    (a) Section 307(h)(2) of the Act provides for mediation of ``serious 
disagreements'' between a Federal agency and a coastal State during 
administration of an approved management program. Accordingly mediation 
is available to states or federal agencies when a serious disagreement 
regarding a proposed amendment arises.
    (b) Mediation may be requested by a Governor or head of a state 
agency designated pursuant to subsection 306(d)(6) or by the head of a 
relevant federal agency. Mediation is a voluntary process in which the 
Secretary of Commerce attempts to mediate between disagreeing parties 
over major problems. (See Sec. 923.54).



Sec. 923.84  Routine program changes.

    (a) Further detailing of a State's program that is the result of 
implementing provisions approved as part of a State's approved 
management program, that does not result in the type of action described 
in Sec. 923.80(d), will be considered a routine program change. While a 
routine change is not subject to the amendment procedures contained in 
Sec. Sec. 923.81 through 923.82, it is subject to mediation provisions 
of Sec. 923.83.
    (b)(1) States must notify OCRM of routine program change actions in 
order that OCRM may review the action to ensure it does not constitute 
an amendment. The state notification shall identify any enforceable 
policies to be added to the management program, and explain why the 
program change will not result in the type of action described in Sec. 
923.80(d).
    (i) States have the option of notifying OCRM of routine changes on a 
case-by-case basis, periodically throughout the year, or annually.
    (ii) In determining when and how often to notify OCRM of such 
actions, States should be aware that Federal consistency will apply only 
after the notice required by paragraph (b)(4) of this section has been 
provided.

[[Page 222]]

    (2) Concurrent with notifying OCRM, States must provide notice to 
the general public and affected parties, including local governments, 
other State agencies and regional offices of relevant federal agencies 
of the notification given OCRM.
    (i) This notice must:
    (A) Describe the nature of the routine program change and identify 
any enforceable policies to be added to the management program if the 
State's request is approved;
    (B) Indicate that the State considers it to be a routine program 
change and has requested OCRM's concurrence in that determination; and
    (C) Indicate that any comments on whether or not the action does or 
does not constitute a routine program change may be submitted to OCRM 
within 3 weeks of the date of issuance of the notice.
    (ii) Where relevant Federal agencies do not maintain regional 
offices, notice must be provided to the headquarters office.
    (3) Within 4 weeks of receipt of notice from a State, OCRM will 
inform the State whether it concurs that the action constitutes a 
routine program change. Failure to notify a State in writing within 4 
weeks of receipt of notice shall be considered concurrence.
    (4) Where OCRM concurs, a State then must provide notice of this 
fact to the general public and affected parties, including local 
governments, other State agencies and relevant Federal agencies.
    (i) This notice must:
    (A) Indicate the date on which the State received concurrence from 
OCRM that the action constitutes a routine program change;
    (B) Reference the earlier notice (required in paragraph (b)(2) of 
this section) for a description of the content of the action; and
    (C) Indicate if Federal consistency applies as of the date of the 
notice called for in this paragraph.
    (ii) Federal consistency shall not be required until this notice has 
been provided.
    (5) Where OCRM does not concur, a State will be advised to:
    (i) submit the action as an amendment, subject to the provisions of 
Sec. Sec. 923.81 through 923.82; or
    (ii) resubmit the routine program change with additional information 
requested by OCRM concerning how the program will be changed as a result 
of the action.

[61 FR 33815, June 28, 1996; 61 FR 36965, July 15, 1996]



 Subpart I_Applications for Program Development or Implementation Grants

    Source: 61 FR 33816, June 28, 1996, unless otherwise noted.



Sec. 923.90  General.

    (a) The primary purpose of development grants made pursuant to 
section 305 of the Act is to assist coastal States in the development of 
comprehensive coastal management programs that can be approved by the 
Assistant Administrator. The primary purpose of implementation grants 
made pursuant to section 306 of the Act is to assist coastal States in 
implementing coastal management programs following their approval, 
including especially administrative actions to implement enforceable 
program policies, authorities and other management techniques. The 
purpose of the guidelines in this subpart is to define the procedures by 
which grantees apply for and administer grants under the Act. These 
guidelines shall be used and interpreted in conjunction with applicable 
Federal laws and policies, Department of Commerce grants management 
regulations, policies and procedures, and any other applicable 
directives from the NOAA Grants Management Division and OCRM program 
offices.
    (b) Grants awarded to a State must be expended for the development 
or administration, as appropriate, of a management program that meets 
the requirements of the Act, and in accordance with the terms of the 
award.
    (c) All applications for funding under section 305 or 306 of the 
Act, including proposed work programs, funding priorities and 
allocations are subject to the

[[Page 223]]

discretion of the Assistant Administrator.
    (d) For purposes of this subpart, the term development grant means a 
grant awarded pursuant to subsection 305(a) of the Act. ``Administrative 
grant'' and ``implementation grant'' are used interchangeably and mean 
grants awarded pursuant to subsection 306(a) of the Act.
    (e) All application and preapplication forms are to be requested 
from and submitted to: National Oceanic and Atmospheric Administration, 
Office of Ocean and Coastal Resource Management, Coastal Programs 
Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.



Sec. 923.91  State responsibility.

    (a) Applications for program grants are required to be submitted by 
the Governor of a participating state or by the head of the state entity 
designated by the Governor pursuant to subsection 306(d)(6) of the Act.
    (b) In the case of a section 305 grant, the application must 
designate a single state agency or entity to receive development grants 
and to be responsible for development of the State's coastal management 
program. The designee need not be that entity designated by the Governor 
pursuant to subsection 306(d)(6) of the Act as a single agency to 
receive and administer implementation grants.
    (c) One State application will cover all program activities for 
which program development or implementation funds under this Act and 
matching State funds are provided, irrespective of whether these 
activities will be carried out by State agencies, areawide or regional 
agencies, local governments, or interstate entities.
    (d) The designated state entity shall be fiscally responsible for 
all expenditures made under the grant, including expenditures by 
subgrantees and contractors.



Sec. 923.92  Allocation.

    (a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act 
foster intergovernmental cooperation in that a state, in accordance with 
its coastal zone management program, may allocate some of its coastal 
zone management responsibilities to several agencies, including local 
governments, areawide agencies, regional agencies and interstate 
agencies. Such allocations provide for continuing consultation and more 
effective participation and cooperation among state and local 
governments, interstate, regional and areawide agencies.
    (b) A State may allocate a portion or portions of its grant to other 
State agencies, local governments, areawide or regional agencies, 
interstate entities, or Indian tribes, if the work to result from such 
allocation(s) will contribute to the effective development or 
implementation of the State's management program.
    (1) Local governments. Should a State desire to allocate a portion 
of its grant to a local government, units of general-purpose local 
government are preferred over special-purpose units of local government. 
Where a State will be relying on direct State controls as provided for 
in subsection 306(d)(11)(B) of the Act, pass-throughs to local 
governments for local planning, regulatory or administrative efforts 
under a section 306 grant cannot be made, unless they are subject to 
adequate State overview and are part of the approved management program. 
Where the approved management program provides for other specified local 
activities or one-time projects, again subject to adequate State 
overview, then a portion of administrative grant funds may be allocated 
to local governments.
    (2) Indian Tribes. Tribal participation in coastal management 
efforts may be supported and encouraged through a State's program. 
Individual tribes or groups of tribes may be considered regional 
agencies and may be allocated a portion of a State's grant for the 
development of independent tribal coastal management programs or the 
implementation of specific management projects provided that:
    (i) The State certifies that such tribal programs or projects are 
compatible with its approved coastal management policies; and
    (ii) On excluded tribal lands, the State demonstrates that the 
tribal program or project would or could directly affect the State's 
coastal zone.

[[Page 224]]



Sec. 923.93  Eligible implementation costs.

    (a) Costs claimed must be beneficial and necessary to the objectives 
of the grant project. As used herein the terms cost and grant project 
pertain to both the Federal and the matching share. Allowability of 
costs will be determined in accordance with the provisions of OMB 
Circular A-87: Cost Principles for State, Local and Indian Tribal 
Governments.
    (b) Federal funds awarded pursuant to section 306 of the Act may not 
be used for land acquisition purposes and may not be used for 
construction purposes. These costs may be eligible, however, pursuant to 
section 306A of the Act.
    (c) The primary purpose for which implementation funds, pursuant to 
section 306 of the Act, are to be used is to assure effective 
implementation and administration of the management program, including 
especially administrative actions to implement enforceable program 
policies, authorities and other management techniques. Implementation 
activities should focus on achieving the policies of the Act.
    (d) Section 306 funding in support of any of these purposes may be 
used to fund, among other things:
    (1) Personnel costs,
    (2) Supplies and overhead,
    (3) Equipment, and
    (4) Feasibility studies and preliminary engineering reports.
    (e) States are encouraged to coordinate administrative funding 
requests with funding possibilities pursuant to sections 306A, 308, 309, 
310 and 315 of the Act, as well as with funding possibilities pursuant 
to section 6217 of the Coastal Zone Act Reauthorization Amendments of 
1990. When in doubt as to the appropriate section of the Act under which 
to request funding, States should consult with OCRM. States should 
consult with OCRM on technical aspects of consolidating requests into a 
single application.



Sec. 923.94  Application for program development or implementation 
grants.

    (a) OMB Standard Form 424 (4-92) and the NOAA Application Kit for 
Federal Assistance constitute the formal application. An original and 
two (2) copies must be submitted 45 days prior to the desired grant 
beginning date. The application must be accompanied by evidence of 
compliance with E.O. 12372 requirements including the resolution of any 
problems raised by the proposed project. The administrative requirements 
for grants and subawards, under this program, to state, local and Indian 
tribal governments are set out in 15 CFR part 24. The administrative 
requirements for other entities are prescribed under OMB Circular A-110: 
Administrative Requirements for Grants and Agreements with Institutions 
of Higher Education, Hospitals and Other Non-Profit Organizations.
    (b) Costs claimed as charges to the grant project must be beneficial 
and necessary to the objectives of the grant project. As used herein, 
the terms ``cost'' and ``grant project'' pertain to both the Federal 
amount awarded and the non-federal matching share. Allowability of costs 
will be determined in accordance with the provisions of OMB Circular A-
87: Cost Principles for State, Local and Indian Tribal Governments. 
Eligible implementation costs also shall be determined in accordance 
with Sec. 923.93 of these regulations. Allowability of costs for non-
profit organizations will be determined in accordance with OMB Circular 
A-122: Cost Principles for Non-Profit Organizations. Allowability of 
costs for institutions of higher education will be determined in 
accordance with OMB Circular A-21: Cost Principles for Educational 
Institutions.
    (c) In the grant application, the applicant must describe clearly 
and briefly the activities that will be undertaken with grant funds in 
support of implementation and administration of the management program. 
This description must include:
    (1) An identification of those elements of the approved management 
program that are to be supported in whole or in part by the Federal and 
the matching share,
    (2) A clear statement of the major tasks required to implement each 
element,
    (3) For each task the application must:
    (i) Specify how it will be accomplished and by whom;

[[Page 225]]

    (ii) Identify any sub-awardees (other State agencies, local 
governments, individuals, etc.) that will be allocated responsibility 
for carrying out all or portions of the task, and indicate the estimated 
cost of the sub-awards for each allocation; and
    (iii) Indicate the estimated total cost.
    (4) The sum of all task costs in paragraph (c)(3) of this section 
should equal the total estimated grant project cost.
    (d) For program development grants, when evaluating whether a State 
is making satisfactory progress toward completion of an approvable 
management program which is necessary to establish eligibility for 
subsequent grants, the Assistant Administrator will consider:
    (1) The progress made toward meeting management program goals and 
objectives;
    (2) The progress demonstrated in completing the past year's work 
program;
    (3) The cumulative progress toward meeting the requirements for 
preliminary or final approval of a coastal management program;
    (4) The applicability of the proposed work program to fulfillment of 
the requirements for final approval; and
    (5) The effectiveness of mechanisms for insuring public 
participation and consultation with affected Federal, State, regional 
and local agencies in program development.



Sec. 923.95  Approval of applications.

    (a) The application for a grant by any coastal State which complies 
with the policies and requirements of the Act and these guidelines shall 
be approved by the NOAA Grants Officer, upon recommendation by the 
Assistant Administrator, assuming available funding.
    (b) Should an application be found deficient, the Assistant 
Administrator will notify the applicant in detail of any deficiency when 
an application fails to conform to the requirements of the Act or these 
regulations. Conferences may be held on these matters. Corrections or 
adjustments to the application will provide the basis for resubmittal of 
the application for further consideration and review.
    (c) The NOAA Grants Officer, upon recommendation by the Assistant 
Administrator, may waive appropriate administrative requirements 
contained in this subpart, upon finding of extenuating circumstances 
relating to applications for assistance.



Sec. 923.96  Grant amendments.

    (a) Actions that require an amendment to a grant award such as a 
request for additional Federal funds, changes in the amount of the non-
Federal share, changes in the approved project budget as specified in 15 
CFR part 24, or extension of the grant period must be submitted to the 
Assistant Administrator and approved in writing by the NOAA Grants 
Officer prior to initiation of the contemplated change. Such requests 
should be submitted at least 30 days prior to the proposed effective 
date of the change and, if appropriate, accompanied by evidence of 
compliance with E.O. 12372 requirements.
    (b) NOAA shall acknowledge receipt of the grantee's request within 
the ten (10) working days of receipt of the correspondence. This 
notification shall indicate NOAA's decision regarding the request; or 
indicate a time-frame within which a decision will be made.



    Subpart J_Allocation of Section 306 Program Administration Grants



Sec. 923.110  Allocation formula.

    (a) As required by subsection 306(a), the Secretary may make grants 
to any coastal state for the purpose of administering that state's 
management program, if the state matches any such grant according to the 
following ratios of Federal-to-state contributions for the applicable 
fiscal year:
    (1) For those states for which programs were approved prior to 
enactment of the Coastal Zone Act Reauthorization Amendments of 1990, 1 
to 1 for any fiscal year.
    (2) For programs approved after enactment of the Coastal Zone Act 
Reauthorization Amendments of 1990, 4 to 1 for the first fiscal year, 
2.3 to 1 for the second fiscal year, 1.5 to 1 for the third fiscal year, 
and 1 to 1 for each fiscal year thereafter.

[[Page 226]]

    (3) As required by subsection 306(b), the Secretary may make a grant 
to a coastal state under subsection 306(a) only if the Secretary finds 
that the management program of the coastal state meets all applicable 
requirements of this title and has been approved in accordance with 
subsection 306(d).
    (4) As required by subsection 306(c), grants under this section 
shall be allocated to coastal states under approved programs based on 
rules and regulations promulgated by the Secretary which shall take into 
account the extent and nature of the shoreline and area covered by the 
program, population of the area, and other relevant factors. The 
Secretary shall establish, after consulting with the coastal states, 
maximum and minimum grants for any fiscal year to promote equity between 
coastal states and effective coastal management.
    (b) Minimum/maximum allocations. The Assistant Administrator shall 
establish minimum and maximum state allocations annually, after 
consultation with the coastal states.
    (c) Allocation formula factors and weighting. Each State eligible to 
receive a financial assistance award shall be allocated an amount of the 
total available Federal funding based on:
    (1) A minimum share (established by the Assistant Administrator) of 
the total funding available for allocation to eligible State coastal 
management programs, plus
    (2) A proportionate share of the remainder to be divided as follows:
    (i) Sixty percent will be allocated based on each eligible State's 
proportionate share of the length of tidal shoreline and/or Great Lake 
shoreline mileage of all participating States based on the most recently 
available data from or accepted by the National Ocean Survey, and
    (ii) Forty percent will be allocated on each eligible State's 
proportionate share of the aggregate population of all coastal counties 
contained in whole or in part within the designated coastal boundary of 
all eligible State coastal programs based on official data or the most 
recent U.S. census.
    (3) Should any State's base allocation exceed the maximum 
established by the Assistant Administrator, the excess amount shall be 
subtracted from the established maximum and redistributed 
proportionately among those eligible States with allocations not 
exceeding the established maximum.
    (d) Use of the allocation formula. The allocation formula shall be 
used to establish base level allocations for each State coastal 
management program eligible to receive Federal funding.
    (e) Adjustment for phase down of Federal funding. The Assistant 
Administrator may adjust base level allocations as necessary to 
implement a phase down of Federal financial support. Any such adjustment 
shall be implemented in a manner which gives some priority to recently 
approved State coastal management programs. Options for implementation 
of a phase down will be submitted to the States for review and comment.
    (f) Calculation of financial assistance award levels. Actual 
financial assistance award levels will be set from base level 
allocations, any adjustments under paragraph (e) above, and in 
accordance with the provisions of Section 312(c) and (d).

(Secs. 306 and 317 of the Coastal Zone Management Act)

[47 FR 21021, May 17, 1982, as amended at 59 FR 27985, May 31, 1994. 
Redesignated at 61 FR 33818, June 28, 1996]



            Subpart K_Coastal Zone Enhancement Grants Program

    Authority: Section 309 of the Coastal Zone Management Act, as 
amended (16 U.S.C. 1456).

    Source: 57 FR 31116, July 14, 1992, unless otherwise noted. 
Redesignated at 61 FR 33818, June 28, 1996.



Sec. 923.121  General.

    (a) The purpose of this subpart is to set forth the criteria and 
procedures for awarding coastal zone enhancement grants under section 
309 of the Coastal Zone Management Act, as amended (16 U.S.C. 1456). 
This subpart describes the criteria States must address in developing 
and implementing coastal zone enhancement objectives, the procedures for 
allocating section 309 funds between weighted formula and individual 
review of proposals of special

[[Page 227]]

merit, how the amount of section 309 weighted formula grants will be 
determined, the criteria NOAA will use to evaluate and rank individual 
proposals of special merit, and the procedures for applying for 
financial assistance under section 309. This subpart also allows use of 
section 309 funds for implementation of program changes for up to 2 
fiscal years following the fiscal year in which a program change was 
approved.
    (b) A coastal State with an approved program under section 306 of 
the Coastal Zone Management Act (CZMA), as amended (16 U.S.C. 1455), is 
eligible for grants under this subpart if the State meets the following 
requirements:
    (1) The State must have a NOAA approved Assessment and Strategy, 
submitted in accordance with NOAA guidance and 923.128;
    (2) The State must be found to be adhering to its approved program 
and must be making satisfactory progress in performing grant tasks under 
section 306, as indicated by not being under interim or final sanctions; 
and
    (3) The State must be making satisfactory progress in carrying out 
its previous year's award under section 309.
    (c) If the Assistant Administrator finds that a State is not 
undertaking the actions committed to under the terms of a section 309 
grant, the Assistant Administrator shall suspend the State's eligibility 
for future funding under this section for at least one year.
    (d) A State's eligibility for future funding under this section will 
be restored after the State demonstrates, to the satisfaction of the 
Assistant Administrator, that it will conform with the requirements 
under this part.
    (e) Funds awarded to States under section 309 are for the 
enhancement of existing coastal zone management programs. A State which 
reduces overall State financial support for its CZM program as a result 
of having been awarded section 309 funding may lose eligibility for 
funding under section 309 in subsequent years.
    (f) All applications for funding under section 309 of the CZMA, as 
amended, including proposed work programs, funding priorities and 
funding awards, are subject to the administrative discretion of the 
Assistant Administrator and any additional NOAA guidance.
    (g) Grants awarded under section 309 may be used:
    (1) To support up to 100 percent of the allowable costs of approved 
projects under section 309 of the CZMA, as amended; or
    (2) To implement program changes approved by the Secretary for up to 
two fiscal years following the fiscal year in which a program change was 
approved.
    (h) All application forms are to be requested from and submitted to: 
National Oceanic and Atmospheric Administration, Office of Ocean and 
Coastal Resource Management, Coastal Programs Division, 1305 East-West 
Highway (N/ORM3), Silver Spring, MD 20910.

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
June 28, 1996; 62 FR 12541, Mar. 17, 1997]



Sec. 923.122  Objectives.

    (a) The objective of assistance provided under this part is to 
encourage each State with a federally-approved coastal management 
program to continually improve its program in specified areas of 
national importance. The Secretary is authorized to make grants to a 
coastal State for the development and submission for Federal approval of 
program changes that support attainment of one or more coastal zone 
enhancement objectives.
    (b) As required by section 309(a) of the Act, for purposes of this 
part, the term coastal zone enhancement objective means any of the 
following objectives:
    (1) Protection, restoration, or enhancement of the existing coastal 
wetlands base, or creation of new coastal wetlands.
    (2) Preventing or significantly reducing threats to life and 
destruction of property by eliminating development and redevelopment in 
high-hazard areas, managing development in other hazard areas, and 
anticipating and managing the effects of potential sea level rise and 
Great Lakes level rise.
    (3) Attaining increased opportunities for public access, taking into 
account current and future public access needs,

[[Page 228]]

to coastal areas of recreational, historical, aesthetic, ecological, or 
cultural value.
    (4) Reducing marine debris entering the Nation's coastal and ocean 
environment by managing uses and activities that contribute to the entry 
of such debris.
    (5) Development and adoption of procedures to assess, consider, and 
control cumulative and secondary impacts of coastal growth and 
development, including the collective effect on various individual uses 
or activities on coastal resources, such as coastal wetlands and fishery 
resources.
    (6) Preparing and implementing special area management plans for 
important coastal areas.
    (7) Planning for the use of ocean resources.
    (8) Adoption of procedures and enforceable policies to help 
facilitate the siting of energy facilities and Government facilities and 
energy-related activities and Government activities which may be of 
greater than local significance.
    (9) Adoption of procedures and policies to evaluate and facilitate 
the siting of public and private aquaculture facilities in the coastal 
zone, which will enable States to formulate, administer, and implement 
strategic plans for marine aquaculture.

[57 FR 31116, July 14, 1992. Redesignated at 61 FR 33818, June 28, 1996, 
as amended at 62 FR 12541, Mar. 17, 1997]



Sec. 923.123  Definitions.

    (a) Program change means ``routine program change'' as defined in 15 
CFR 923.84 and ``amendment'' as defined in 15 CFR 923.80, and includes 
the following:
    (1) A change to coastal zone boundaries that will improve a State's 
ability to achieve one or more of the coastal zone enhancement 
objectives.
    (2) New or revised authorities, including statutes, regulations, 
enforceable policies, administrative decisions, executive orders, and 
memoranda of agreement/understanding, that will improve a State's 
ability to achieve one or more of the coastal zone enhancement 
objectives.
    (3) New or revised local coastal programs and implementing 
ordinances that will improve a State's ability to achieve one or more of 
the coastal zone enhancement objectives.
    (4) New or revised coastal land acquisition, management and 
restoration programs that improve a State's ability to attain one or 
more of the coastal zone enhancement objectives.
    (5) New or revised Special Area Management Plans or plans for Areas 
of Particular Concern (APC), including enforceable policies and other 
necessary implementing mechanisms or criteria and procedures for 
designating and managing APCs that will improve a State's ability to 
achieve one or more of the coastal zone enhancement objectives.
    (6) New or revised guidelines, procedures and policy documents which 
are formally adopted by a State and provide specific interpretations of 
enforceable CZM policies to applicants, local governments and other 
agencies that will result in meaningful improvements in coastal resource 
management and that will improve a State's ability to attain one or more 
of the coastal zone enhancement objectives.
    (b) Assessment means a public document, prepared by a State and 
approved by NOAA in accordance with guidance on Assessments and 
Strategies issued by NOAA (hereafter referred to as the guidance \1\), 
that identifies the State's priority needs for improvement with regard 
to the coastal zone enhancement objectives. The Assessment determines 
the extent to which problems and opportunities exist with regard to each 
of the coastal zone enhancement objectives and the effectiveness of 
efforts to address those problems. The Assessment includes the factual 
basis for NOAA and the States to determine the priority needs for 
improvement of management programs in accordance with this part.
---------------------------------------------------------------------------

    \1\ NOAA guidance is available from the Office of Ocean and Coastal 
Resource Management, Coastal Programs Division, 1305 East-West Highway 
(N/ORM3), Silver Spring, MD 20910.
---------------------------------------------------------------------------

    (c) Strategy means a comprehensive, multi-year statement of goals 
and the methods for their attainment, prepared by a State in accordance 
with NOAA guidance and these regulations and approved by NOAA, that sets 
forth the

[[Page 229]]

specific program changes the State will seek to achieve in one or more 
of the coastal zone enhancement objectives. The Strategy will address 
only the priority needs for improvement identified by the Assistant 
Administrator, after careful consultation with the State. The strategy 
will include specific task descriptions, cost estimates and milestones, 
as appropriate.
    (d) Weighted Formula Project means a project or task for which NOAA 
awards funding based on the criteria at Sec. 923.125(a). Such tasks are 
essential to meeting the milestones and objectives of each state's 
strategy. As funding for weighted formula tasks is more predictable than 
for projects of special merit, basic functions necessary to achieve the 
objectives of the strategy, such as hiring of full time staff should be 
included in weighted formula tasks.
    (e) Projects of Special Merit (PSM) means a project or task that 
NOAA will rank and evaluate based on criteria at Sec. 923.125(b). As 
PSM funds will be awarded competitively on an annual basis, these 
projects should further the objectives of the strategy but may not be 
essential to meeting specific benchmarks in the strategy. PSM projects 
should not be dependent on long term levels of funding to succeed.
    (f) Fiscal needs means the extent to which a State must rely solely 
on Federal funds to complete a project under section 309 because State 
funds are not otherwise available.
    (g) Technical needs means the extent to which a State lacks trained 
personnel or equipment or access to trained personnel or equipment to 
complete a project under section 309.
    (h) Assistant Administrator means the Assistant Administrator for 
Ocean Services and Coastal Zone Management, or the NOAA Official 
responsible for directing the Federal Coastal Zone Management Program.

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 923.124  Allocation of section 309 funds.

    (a)(1) As required by section 309(e) of the Act, a State will not be 
required to contribute any portion of the cost of any proposal for which 
funding is awarded under this section.
    (2) As required by section 309(f) of the Act, beginning in fiscal 
year 1991, not less than 10 percent and not more than 20 percent of the 
amounts appropriated to implement sections 306 and 306A of the Act shall 
be retained by the Secretary for use in implementing this section, up to 
a maximum of $10,000,000 annually.
    (b) The Assistant Administrator will annually determine the amount 
of funds to be devoted to section 309, which shall be not less than 10 
percent nor more than 20 percent of the total amount appropriated under 
section 318(a)(2) of the Coastal Zone Management Act, as amended (16 
U.S.C. 1464), taking into account the total amount appropriated under 
section 318(a)(2). The total amount of funds to be devoted to section 
309 shall not exceed $10,000,000 annually.
    (c) Of the total amount determined in paragraph (b) of this section, 
the Assistant Administrator will annually determine the proportion to be 
awarded to eligible coastal States by weighted formula and the 
proportion to be awarded to eligible coastal States for projects of 
special merit. This determination will take into account the total 
amount appropriated under section 318(a)(2) of the CZMA, as amended.
    (d) Weighted formula funding. (1)(i) A weighted formula funding 
target will be determined for each State that meets the eligibility 
requirements at Sec. 923.121(b). The weighted formula funding target 
will be the State base allocation determined by the application of the 
formula at Sec. 923.110(c), multiplied by a weighting factor derived 
from the Assistant Administrator's evaluation and ranking of the quality 
of the State's Strategy (as described in (d)(1) of this section), as 
supported by the State's Assessment.
    (ii) The application of the weighting factor may result in a 
weighted formula funding target that is higher or lower than the State's 
base allocation. Each State's weighted formula funding target will be 
adjusted to reflect the funds available.
    (iii) The Assistant Administrator may establish minimum and maximum 
weighted formula funding targets under Sec. 923.124(d).

[[Page 230]]

    (2) The Assistant Administrator will determine each State's 
weighting factor based on an evaluation and ranking of the State's 
Strategy that takes into consideration the following:
    (i) The scope and value of the proposed program change(s) contained 
in the Strategy in terms of improved coastal resource management;
    (ii) The technical merits of the Strategy in terms of project design 
and cost effectiveness;
    (iii) The likelihood of success that the State will have in 
attaining the proposed program change(s), including an evaluation of the 
State's past performance and support for the Strategy; and,
    (iv) The fiscal and technical needs of the State.
    (3) Each State will be notified individually of its weighting 
factor, the reasons for assigning this weighting factor, and any changes 
thereto. In consultation with the Assistant Administrator, a State may 
choose to make substantive changes to its approved Assessment and 
Strategy to improve its weighting factor, in accordance with the 
procedures at Sec. 923.128.
    (e) Funding for projects of special merit. The Assistant 
Administrator will award the remaining section 309 funds, which are not 
awarded under Sec. 923.124(d), to States based on an annual evaluation 
and ranking of projects of special merit, as defined in Sec. 
923.123(d). Funding of projects of special merit will be limited to the 
highest ranked projects based on the criteria at Sec. 923.125(b).
    (f) The Assistant Administrator will notify each State annually of 
the total amount of funds to be devoted to section 309 pursuant to Sec. 
923.124(b), the proportion to be awarded by weighted formula pursuant to 
Sec. 923.124(c), the State's weighted formula funding target pursuant 
to Sec. 923.124(d), and the total amount of funds available for funding 
for projects of special merit pursuant to Sec. 923.124(e).

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 923.125  Criteria for section 309 project selection.

    (a) Section 309 criteria for weighted formula funding. (1) For those 
projects that will be funded by weighted formula, the Assistant 
Administrator will determine that:
    (i) The project is consistent with the State's approved Assessment 
and Strategy and advances the attainment of the objectives of the 
Strategy;
    (ii) Costs are reasonable and necessary to achieve the objectives of 
both the project and the Strategy. Allowability of costs will be 
determined in accordance with the provisions of OMB Circular A-87: Cost 
Principles for State and Local Governments
    (iii) The project is technically sound;
    (iv) The State has an effective plan to ensure proper and efficient 
administration of the project; and
    (v) The State has submitted the required project information as 
specified in Sec. 923.126(b)(1).
    (2) In reviewing projects that will be considered under the weighted 
formula, the Assistant Administrator will take into consideration the 
fiscal and technical needs of proposing States and the overall merit of 
each proposal in terms of benefits to the public.
    (b) Section 309 criteria for evaluation and ranking of projects of 
special merit. (1) After determining those projects that will be funded 
under weighted formula funding, the Assistant Administrator will 
evaluate and rank State funding proposals of special merit which may be 
funded under 15 CFR 932.4(e).
    (2) In addition to meeting the criteria in paragraph (a)(1) of this 
section, proposals will be evaluated and ranked under this subsection 
using the following criteria:
    (i) Merit. (90 points) The Assistant Administrator will review each 
application to determine the following:
    (A) Degree to which the project significantly advances the program 
improvements and leads to a program change identified in the State's 
Strategy. In making this determination, the Assistant Administrator 
shall consider the weighting factor derived from the evaluation of the 
quality of the State's Strategy, as supported by the State's Assessment, 
relative to the weighting factors assigned to other eligible States;

[[Page 231]]

    (B) Overall benefit of the project to the public relative to the 
project's cost;
    (C) Innovativeness of the proposal;
    (D) Transferability of the results to problems in other coastal 
States; and
    (E) The State's past performance under section 309.
    (ii) Fiscal needs. (5 points) The Assistant Administrator will 
review each application to determine the ``fiscal needs'' of a State as 
defined in Sec. 923.123(e).
    (iii) Technical needs. (5 points) The Assistant Administrator will 
review each application to determine the ``technical needs'' of a State 
as defined in Sec. 923.123(f).
    (c) Section 309 funds not awarded to States under Sec. 923.125(a) 
will be awarded to States under Sec. 923.125(b).

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 923.126  Pre-application procedures.

    (a) Pre-submission consultation. Each State is strongly encouraged 
to consult with the Assistant Administrator prior to the submission of 
its draft proposal (see Sec. 923.126(b)) and formal application for 
section 309 funding. The purpose of the consultation will be to 
determine whether the proposed projects are consistent with the purposes 
and objectives of section 309 and with the State's approved Strategy, to 
resolve any questions concerning eligibility for funding under section 
309 (see Sec. 923.121(b)), and to discuss preliminarily the State's 
recommendations regarding which projects should be funded by weighted 
formula and which projects should be individually evaluated and ranked 
as projects of special merit.
    (b) Draft proposals. States shall submit draft proposals for section 
309 funding annually on a schedule to be determined by the Assistant 
Administrator. These draft proposals shall contain all of the 
information needed for final application, including the following:
    (1) A clear and concise description of the projects that the State 
proposes to be funded under section 309. This description shall explain 
the relationship of each proposed project to the State's approved 
Assessment and Strategy and how each proposed project will accomplish 
all or part of a program change that the State has identified in its 
Strategy. In addition, each project description shall include:
    (i) A specific timetable for completion of each project;
    (ii) A description of the activities that will be undertaken to 
complete each project and by whom;
    (iii) The identification of any subawardees, pursuant to Sec. 
923.94(d)(3)(ii); and
    (iv) The estimated total cost for each project.
    (2) Section 309 funds may be used for any of the following allowable 
uses which support the attainment of a program change:
    (i) Personnel costs;
    (ii) Supplies and overhead;
    (iii) Travel;
    (iv) Equipment (pursuant to 15 CFR part 24);
    (v) Projects, studies and reports; and
    (vi) Contractual costs including subcontracts, subawards, personal 
service contracts with individuals, memoranda of agreement/
understanding, and other forms of passthrough funding for the purpose of 
carrying out the provisions of section 309.
    (3) Funds may not be used for land acquisition or low cost 
construction projects.
    (4) The State may recommend which projects should be funded by 
weighted formula under Sec. 923.125(a) and which projects should be 
funded as projects of special merit under Sec. 923.125(b).
    (5) The draft proposal shall contain documentation of fiscal needs 
and technical needs, if any. This documentation shall include:
    (i) For fiscal needs, information on the current State budget 
(surplus or deficit), the budget of the applying agency (increase or 
decrease over previous fiscal year), future budget projections, and what 
efforts have been made by the applying agency, if any, to secure 
additional State funds from the Legislature and/or from off-budget 
sources such as user fees; and
    (ii) For technical needs, identification of the technical knowledge, 
skills and equipment that are needed to carry out proposed projects and 
that are not available to the applying agency, and what efforts the 
applying agency has

[[Page 232]]

made, if any, to obtain the trained personnel and equipment it needs 
(for example, through agreements with other State agencies).
    (6) The Assistant Administrator may request additional documentation 
of fiscal and technical needs.
    (7) Following the first year of funding under section 309, the draft 
proposal shall describe how the past year's work contributed to the 
attainment of a program change as defined in Sec. 923.123(a) in one or 
more of the coastal zone enhancement objectives.
    (8) If the sum of estimated project costs for projects the State 
recommends be funded under Sec. 923.125(a) exceeds the State's weighted 
formula funding target pursuant to Sec. 923.124(d), NOAA shall 
determine, in consultation with the State, which projects are 
appropriate for funding with weighted formula funds.
    (c) Review of draft proposals. (1) The Assistant Administrator will 
make the final determination of which projects should be funded by 
weighted formula and which projects should be funded as projects of 
special merit, taking into account the State's recommendations.
    (2) The Assistant Administrator may seek advice from technical 
experts in the fields of the coastal zone enhancement objectives as to 
the technical soundness and overall merit of section 309 project 
proposals.
    (3) The Assistant Administrator will make the final determinations 
on project selection using the criteria at Sec. 923.125(a) and evaluate 
and rank projects of special merit based on the criteria at Sec. 
923.125(b).
    (4) If the Assistant Administrator determines that a State's project 
proposal(s) for weighted formula funding fails to meet the criteria at 
Sec. 923.125(a), the Assistant Administrator may either reduce or deny 
the amount available to the State under Sec. 923.124(d).
    (5) Each state will be notified of the results of the review of 
draft proposals, as described in paragraphs (c) (3) and (4) of this 
section, in time to include approved section 309 projects in their 
applications for financial assistance pursuant to subpart I of 15 CFR 
part 923.

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 923.127  Formal application for financial assistance and application 
review and approval procedures.

    (a) Applications for financial assistance under this part must be 
developed and submitted on the same schedule as applications for 
financial assistance under subpart I of 15 CFR part 923.
    (b) Applications for financial assistance under this part must be in 
a separate section of the application and must contain the information 
specified at Sec. 923.126(b)(1) for each approved section 309 project.
    (c) Applications will be reviewed for conformance with the 
regulations at subpart I of 15 CFR part 923.
    (d) States will be notified of their section 309 awards at the time 
they are notified of their section 306/306A awards.
    (e) If the Assistant Administrator seeks technical advice pursuant 
to Sec. 923.126(c)(2), anonymous copies of the project reviews provided 
to the Assistant Administrator on projects proposed by a State will be 
made available to the State upon request after October 1 of each year.

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 923.128  Revisions to assessments and strategies.

    (a) A State, in consultation with the Assistant Administrator, may 
propose to revise its approved Strategy. Revision(s) to an approved 
Strategy must be submitted to and approved by the Assistant 
Administrator prior to the initiation of the contemplated change.
    (b) The Assistant Administrator will review such proposed 
revision(s) and determine if public review and comment is required. This 
determination will be based on the extent to which the proposed 
revision(s) changes the original scope of the State's Strategy.
    (c) If the Assistant Administrator determines that public review and 
comment is necessary, he/she will notify the State of his/her 
determination. The State will be required to provide public review and 
comment in accordance with NOAA guidance.
    (d) A State that wants to revise substantively the program changes 
identified in its approved Strategy or to address new enhancement 
objectives not

[[Page 233]]

identified as a priority in the original Assessment, also must revise 
the Assessment through a public process as described in NOAA's guidance.
    (e) The Assistant Administrator, in consultation with the State, may 
reduce a state's weighting factor assigned to its Strategy as a result 
of failure to meet the milestones in its Strategy.
    (f) The Assistant Administrator will notify the State of his/her 
decision to approve or deny the proposed revision(s) to the Strategy, 
and any change in the weighting factor assigned to its Strategy.



                     Subpart L_Review of Performance

    Authority: Section 312 of the Coastal Zone Management Act, as 
amended (16 U.S.C. 1458).



Sec. 923.131  General.

    This subpart sets forth the requirements for review of approved 
State coastal zone management (CZM) programs pursuant to section 312 of 
the Act (16 U.S.C. 1458). This subpart defines ``continuing review'' and 
other important terms, and sets forth the procedures for:
    (a) Conducting continuing reviews of approved State CZM programs;
    (b) Providing for public participation;
    (c) Invoking interim sanctions for non-adherence to an approved 
coastal zone management program or a portion of such program; and
    (d) Withdrawing program approval and financial assistance.

[57 FR 31113, July 14, 1992. Redesignated and amended at 61 FR 33818, 
June 28, 1996]



Sec. 923.132  Definitions.

    (a) Continuing review means monitoring State performance on an 
ongoing basis. As part of the continuing review, evaluations of approved 
CZM programs will be conducted and written findings will be produced at 
least once every three years.
    (b) Adherence means to comply with the approved CZM program and 
financial assistance award or work program.
    (c) Interim sanction means suspension and redirection of any portion 
of financial assistance extended to any coastal State under this title, 
if the Secretary determines that the coastal State is failing to adhere 
to the management program or a State plan developed to manage a national 
estuarine reserve, or a portion of the program or plan approved by the 
Secretary, or the terms of any grant or cooperative agreement funded 
under this title.
    (d) Approved CZM program means those elements of the program 
approved by the Secretary, under 15 CFR part 923 (Development and 
Approval Provisions), including any changes to those elements made by 
approved amendments and routine program implementation.
    (e) Financial assistance award means a legal instrument that creates 
a relationship between the Federal government and another entity 
(recipient). The principal purpose of the award is the transfer of money 
or services in order to accomplish a public purpose authorized by 
Federal statute. The term ``financial assistance award'' encompasses 
grants, loans, and cooperative agreements. The following elements 
constitute the award:
    (1) The work program described in the approved application;
    (2) The budget;
    (3) The standard terms and conditions of the award;
    (4) Any special award conditions included with the award;
    (5) The statutes and regulations under which the award is 
authorized; and
    (6) Applicable OMB cost principles and administrative requirements.
    (f) Work program means a description of the tasks to be undertaken 
by a State for a given time period for the purpose of implementing and 
enforcing an approved CZM program. The work program is submitted as a 
part of a Federal financial assistance application, or separately in the 
absence of Federal financial assistance.
    (g) Assistant Administrator means the Assistant Administrator for 
Ocean Services and Coastal Zone Management, or the NOAA Official 
responsible

[[Page 234]]

for directing the Federal Coastal Zone Management Program.

[47 FR 21021, May 17, 1982, as amended at 57 FR 31113, July 14, 1992. 
Redesignated at 61 FR 33818, June 28, 1996]



Sec. 923.133  Procedure for conducting continuing reviews of approved 
State CZM programs.

    (a) As required by section 312(a), the Secretary shall conduct a 
continuing review of the performance of coastal States with respect to 
coastal management. Each review shall include a written evaluation with 
an assessment and detailed findings concerning the extent to which the 
State has implemented and enforced the program approved by the 
Secretary, addressed the coastal management needs identified in section 
303(2)(A) through (K), and adhered to the terms of any grant, loan, or 
cooperative agreement funded under this title (16 U.S.C. 1451-1464).
    (b) Continuing review procedures. (1) Each State will submit a 
financial assistance application or work program, whichever is 
applicable, on a timetable negotiated with the Assistant Administrator, 
describing the tasks to be undertaken by the State for the purpose of 
implementing and enforcing its approved CZM program.
    (2) For the purpose of evaluation, the States will submit 
performance reports as specified in the Special Award Conditions, or, if 
the State is not receiving an award, as negotiated with the Assistant 
Administrator. The reports will address all areas identified in each 
State's Performance Report Guidelines.
    (3) The Assistant Administrator will collect information on the 
State CZM programs on a continuing basis. At the beginning of each 
evaluation, the Assistant Administrator will analyze available 
information, identify information gaps, and formulate any additional 
information needs that will be the subject of a supplemental information 
request to the State.
    (4) The Assistant Administrator may conduct a site visit as a part 
of the evaluation.
    (5) Draft findings of the evaluation will be transmitted to the 
State. The State will have a minimum of two weeks from receipt of the 
draft findings to review them and provide comments to the Assistant 
Administrator. This review time may be extended upon request from the 
State.
    (6) Within two weeks from receipt of the draft findings, a State may 
request a meeting with the Assistant Administrator to discuss the draft 
findings and the State's comments.
    (7) The Assistant Administrator will issue final findings to the 
State CZM program manager and the head of the State CZM agency within 
120 days of the last public meeting in the State. Copies of the final 
findings will be sent to all persons and organizations who participated 
in the evaluation. Participants may be asked to complete a card or sign-
in sheet provided by the evaluation team indicating that they wish to 
receive the final findings. Notice of the availability of the final 
findings will also be published in the Federal Register.
    (8) The final findings will contain a section entitled ``Response to 
Written Comments.'' This section will include a summary of all written 
comments received during the evaluation and NOAA's response to the 
comments. If appropriate, NOAA's response will indicate whether NOAA 
agrees or disagrees with the comment and how the comment has been 
addressed in the final findings.
    (9) The Assistant Administrator may conduct issue or problem-
specific evaluations between scheduled evaluations of approved State CZM 
programs. Such issue or problem-specific evaluations will be conducted 
to follow-up on potentially serious problems or issues identified in the 
most recent scheduled evaluation or to evaluate evidence of potentially 
serious problems or issues that may arise during day-to-day monitoring 
of State performance of grants tasks or other program implementation 
activities in the interim between scheduled evaluations. If the 
Assistant Administrator conducts an issue or problem specific 
evaluation, he/she will comply with the procedures and public 
participation requirements of Sec. Sec. 923.133 and 923.134.
    (c) Requirements for continuing review of approved State CZM 
programs.
    (1) Scope of continuing reviews. The continuing review of a State's 
approved

[[Page 235]]

CZM program will include an evaluation of the extent to which the State 
has:
    (i) Implemented and enforced the program approved by the Secretary;
    (ii) Addressed the coastal management needs identified in section 
303(2) (A)-(K) (16 U.S.C. 1452); and
    (iii) Adhered to the terms of financial assistance awards.
    (2) Procedure for assessing adherence to the approved CZM program. 
(i) In reviewing adherence of a State to its approved CZM program, the 
Assistant Administrator will evaluate all aspects of the ``approved CZM 
program'' as defined in Sec. 923.132(d). The evaluation will examine 
the extent to which:
    (A) The State is implementing and enforcing its approved CZM 
program;
    (B) The management agency is effectively playing a leadership role 
in coastal issues, monitoring the actions of appropriate State and local 
agencies for compliance with the approved CZM program, and assuring the 
opportunity for full participation of all interested entities in CZM 
program implementation; and
    (C) The management agency is effectively carrying out the provisions 
of Federal consistency.
    (ii) The findings concerning the State's adherence to its approved 
CZM program will be used in negotiating the next financial assistance 
award or work program, whichever is applicable.
    (3) Procedure for assessing how the State has addressed the coastal 
management needs identified in section 303(2) (A)-(K). The assessment of 
the extent to which the State has addressed the coastal management needs 
identified in section 303(2) (A)-(K) will occur as follows:
    (i) The State, in its performance report, will provide the Assistant 
Administrator with a listing of all actions it is taking during the 
performance report period to address the national coastal management 
needs and how these actions relate to conditions in the State and the 
objectives and priorities in the State CZM program.
    (ii) The Assistant Administrator, in the evaluation findings, will 
assess the extent to which the State's actions are targeted to meeting 
identified ``needs'' and the effectiveness of the actions in addressing 
those needs. Based on this assessment, the Assistant Administrator will 
make findings and recommendations of the extent to which each State is 
addressing the coastal management needs identified in section 303.
    (iii) The findings concerning how the State has addressed the 
coastal management needs of section 303 will be used by the Assistant 
Administrator in negotiating the next financial assistance award.
    (4) Procedure for assessing adherence to the terms of financial 
assistance awards. (i) Adherence to financial and administrative terms 
of each financial assistance award will be determined by the NOAA Grants 
Office and the Department of Commerce Inspector General. Adherence to 
programmatic terms of each financial assistance award will be determined 
by the Assistant Administrator and the NOAA Grants Office. These 
determinations will be made in accordance with the requirements outlined 
in these regulations, the findings of a financial audit of the award, 
and the following criteria:
    (A) Compliance with the statute, regulations, and applicable OMB 
circulars;
    (B) Submission of required reports and satisfactory completion of 
work products as described in the approved application and within the 
timeframe specified;
    (C) Compliance with Standard Terms and Conditions and Special Award 
Conditions within the specified timeframes;
    (D) Use of award funds only for approved projects; and
    (E) Substantive modification of approved projects only with the 
prior agreement of NOAA.
    (ii) The findings concerning adherence to the terms of financial 
assistance awards will be used in negotiating the next financial 
assistance award, if any.
    (d) Requirements for continuing review of State coastal energy 
impact programs.
    (1) Scope of continuing reviews. The continuing review of State 
coastal energy impact programs will include the following elements:

[[Page 236]]

    (i) An evaluation of the State's adherence to the terms of financial 
assistance awards;
    (ii) An evaluation of the relationship between coastal energy impact 
projects and the approved CZM program;
    (iii) A description of energy activities in coastal areas and the 
impact resulting from these activities; and
    (iv) An evaluation of the effectiveness of the coastal energy impact 
program in dealing with these consequences.
    (2) Procedure for assessing adherence to the terms of financial 
assistance awards. See Sec. 923.133(c)(4).

[47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. 
Redesignated and amended at 61 FR 33818, June 28, 1996]



Sec. 923.134  Public participation.

    (a) As required by section 312(b) of the Act, in evaluating a 
coastal State's performance, the Secretary shall conduct the evaluation 
in an open and public manner, and provide full opportunity for public 
participation, including holding public meetings in the State being 
evaluated and providing opportunities for the submission of written and 
oral comments by the public. The Secretary shall provide the public with 
at least 45 days notice of such public meetings by placing a notice in 
the Federal Register, by publication of timely notices in newspapers of 
general circulation within the State being evaluated, and by 
communications with persons and organizations known to be interested in 
the evaluation. Each evaluation shall be prepared in report form and 
shall include written responses to the written comments received during 
the evaluation process.
    (b) Requirements. (1) The Assistant Administrator will publish a 
Notice of Intent to Evaluate in the Federal Register at least 45 days 
before the public meeting(s). The notice will include a Statement of the 
availability of the State's performance report and the supplemental 
information request.
    (2) Each State will issue a notice of the public meeting(s) in its 
evaluation by placing a notice in the newspaper(s) of largest 
circulation in the coastal area where the meeting(s) is being held and 
by taking other reasonable action to communicate with persons and 
organizations known to be interested in the evaluation, such as sending 
a notice of the meeting(s) to persons on its mailing list and publishing 
a notice in its newsletter, at least 45 days before the date of the 
public meeting(s). The State will provide a copy of such notice to the 
Assistant Administrator. States are encouraged to republish the 
newspaper notice at least 15 days before the date of the public 
meeting(s). The State will inform the public that oral or written 
comments will be accepted and that attendance at the public meeting(s) 
is not necessary for submission of written comments.
    (3) Notice of the availability of final findings will be published 
in the Federal Register. The notice will state that copies of the final 
findings will be available to the public upon written request. Copies of 
the final findings will be sent to persons and organizations who 
participated in the evaluation, in accordance with 923.133(b)(7).

[47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. 
Redesignated and amended at 61 FR 33818, June 28, 1996]



Sec. 923.135  Enforcement.

    (a) Procedures and criteria for invoking and lifting interim 
sanctions. (1) As required by section 312(c) of the Act:
    (i) The Secretary may suspend payment of any portion of financial 
assistance extended to any coastal State, and may withdraw any 
unexpended portion of such assistance, if the Secretary determines that 
the coastal State is failing to adhere to--
    (A) The management program or a State plan developed to manage a 
national estuarine reserve established under section 315 of the Act (16 
U.S.C. 1461), or a portion of the program or plan approved by the 
Secretary; or
    (B) The terms of any grant or cooperative agreement funded under 
this title (16 U.S.C. 1451-1464).
    (ii) Financial assistance may not be suspended under paragraph 
(a)(1)(i) of this section unless the Secretary provides the Governor of 
the coastal State with--
    (A) Written specifications and a schedule for the actions that 
should be taken by the State in order that such

[[Page 237]]

suspension of financial assistance may be withdrawn; and
    (B) Written specifications stating how those funds from the 
suspended financial assistance shall be expended by the coastal State to 
take the actions referred to in paragraph (a)(1)(ii)(A) of this section.
    (iii) The suspension of financial assistance may not last for less 
than 6 months or more than 36 months after the date of suspension.
    (2) Requirements. (i) The Assistant Administrator will identify the 
need for interim sanctions through the continuing review process. The 
Assistant Administrator will use the criteria at Sec. 923.135(a)(3) in 
determining when to invoke interim sanctions.
    (ii) The Assistant Administrator will issue the State a preliminary 
finding of non-adherence with the approved CZM program, or a portion 
thereof, and/or with a term or terms of a grant or cooperative 
agreement. This preliminary finding of non-adherence may be contained in 
the draft evaluation findings, or in a preliminary notification letter 
to the State CZM program manager. If the preliminary finding is 
contained in a preliminary notification letter, the Assistant 
Administrator will comply with the applicable public participation 
requirements of section 312(b) and NOAA's regulations at Sec. 923.134. 
The draft evaluation findings or preliminary notification letter 
containing a preliminary finding of non-adherence will explain that if 
the finding of non-adherence is issued, the State is subject to 
suspension of financial assistance and, if the State fails to take the 
actions specified pursuant to section 312(c) and this part, to 
withdrawal of program approval and financial assistance.
    (iii) The State will be given 30 days from receipt of the draft 
evaluation findings or preliminary notification letter to comment on and 
rebut the preliminary finding of non-adherence. During this 30-day 
period, the State may request up to 15 additional days to respond, for a 
maximum of 45 days from receipt of the draft evaluation findings or 
preliminary notification letter.
    (iv) After considering the State's comments, the Assistant 
Administrator will decide whether or not to issue a final finding of 
non-adherence. If the Assistant Administrator decides to issue a final 
finding of non-adherence, he/she will do so in the final evaluation 
findings issued pursuant to section 312(b) or in a final notification 
letter as provided by paragraph (a)(2)(ii) of this section. The 
Assistant Administrator may invoke interim sanctions provided by section 
312(c) immediately or at any time after issuing the final evaluation 
findings or final notification letter containing the finding of non-
adherence, but not later than the next regularly scheduled evaluation.
    (v) If the Assistant Administrator decides to invoke interim 
sanctions, he/she will do so by sending the final evaluation findings or 
final notification letter to the Governor of the State and the State CZM 
program manager. The final evaluation findings or final notification 
letter will contain the information required in section 312(c)(2) (A) 
and (B). This information will include the amount of financial 
assistance to be suspended and redirected, the actions the State should 
take in order to have the suspension withdrawn, how the suspended funds 
shall be expended to take the required actions, and a schedule for 
taking the required actions. The final evaluation findings or final 
notification letter wi