[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2010 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          

          15


          Part 800 to End

          Revised as of January 1, 2010


          Commerce and Foreign Trade
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2010
          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.................................................      vi

  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                                                 441
          Chapter XIII--East-West Foreign Trade Board              455
          Chapter XIV--Minority Business Development Agency        459
    SUBTITLE C--Regulations Relating to Foreign Trade 
      Agreements
          Chapter XX--Office of the United States Trade 
          Representative                                           467
    SUBTITLE D--Regulations Relating to Telecommunications and 
      Information
          Chapter XXIII--National Telecommunications and 
          Information Administration, Department of Commerce       521

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  Finding Aids:
      Table of CFR Titles and Chapters........................     541
      Alphabetical List of Agencies Appearing in the CFR......     561
      List of CFR Sections Affected...........................     571

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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.

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

[[Page vi]]



                               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, 2010), 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

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Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
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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 
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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 eleven separate 
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Sections Affected'' is published at the end of each CFR volume.

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This material, like any other properly issued regulation, has the force 
of law.
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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 
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    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
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publication in accordance with 1 CFR part 51.
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Records Administration, Washington DC 20408, or call 202-741-6010.

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and Finding Aids. This volume contains the Parallel Table of Authorities 
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alphabetical list of agencies publishing in the CFR are also included in 
this volume.
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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

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in the Code of Federal Regulations.

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2010.







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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, 2010.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

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                  TITLE 15--COMMERCE AND FOREIGN TRADE




                    (This book contains part 800-end)

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

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

                                                                    Part

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
800             [Reserved]

801             Survey of international trade in services 
                    between U.S. and foreign persons........           7
806             Direct investment surveys...................          19
807             Public information..........................          36

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                           PART 800 [RESERVED]



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-120, Benchmark Survey of 
          Transactions in Selected Services and Intangible Assets with 
          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.
801.12 Rules and regulations for the BE-140, Benchmark Survey of 
          Insurance Transactions by U.S. Insurance Companies with 
          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).

[[Page 8]]

    (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. 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

[[Page 9]]

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.
    (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.

[[Page 10]]



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 persons be conducted, but not more frequently than every 5 
years. General reporting requirements, exemption levels, and the years 
of coverage for the BE-120 survey may be found in Sec. 801.10; general 
reporting requirements, exemption levels, and the years of coverage for 
the BE-80 survey may be found in Sec. 801.11; and general reporting 
requirements, exemption levels, and the years for coverage for the BE-
140 survey may be found in Sec. 801.12: 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) [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:

[[Page 11]]

    (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 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-185, Quarterly Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Foreign Persons:
    (i) A BE-185, Quarterly Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Foreign Persons, will be 
conducted covering the first quarter of the 2007 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 
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 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 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. Quarterly reports for a year may be required retroactively 
when it is determined that the exemption level has been exceeded.
    (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 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 to 
expected to exceed these amounts in the current fiscal year, a person is 
requested to provide an estimate of the

[[Page 12]]

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 judgment 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-185 definition of financial services provider. The definition 
of financial services provider used for this survey is identical in 
coverage to Sector 52 B 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 B 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-185 survey covers the 
following types of financial services transactions (purchases and/or 
sales) between U.S. financial services providers and 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.
    (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

[[Page 13]]

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-125, Quarterly Survey of Transactions in Selected Services 
and Intangible Assets with Foreign Persons:
    (i) A BE-125, Quarterly Survey of Transactions in Selected Services 
and Intangible Assets with Foreign Persons, will be conducted covering 
the first quarter of the 2007 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 or 
intangible assets to foreign persons that exceeded $6 million for the 
previous fiscal year or are expected to exceed that amount during the 
current fiscal year; or (b) had purchases of covered services or 
intangible assets from 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 or intangible assets to 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 or intangible assets 
from 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-125 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)(1) of this section and is not filing information on a 
voluntary basis must complete Parts 1 and 2 of the survey. This 
requirement is necessary to ensure compliance with the reporting 
requirements and efficient administration of the survey by eliminating 
unnecessary follow-up contact.
    (C) Covered services and intangible assets. The BE-125 survey is 
intended to collect information on U.S. international trade in all types 
of services and intangible assets for which information is not collected 
in other BEA surveys and is not available to BEA from other sources. The 
major types of services transactions not covered by the BE-125 survey 
are travel, transportation, insurance (except for purchases of primary 
insurance), financial services (except for purchases by non-financial 
firms), and expenditures by students and medical patients who are 
studying or seeking treatment in a country different from their country 
of residence. Covered services are: Advertising services; accounting, 
auditing,

[[Page 14]]

and bookkeeping services; auxiliary insurance services; computer and 
data processing services; construction services; data base and other 
information services; educational and training services; engineering, 
architectural, and surveying services; financial services (purchases 
only, by companies or parts of companies that are not financial services 
providers); industrial engineering services; industrial-type 
maintenance, installation, alteration, and training services; legal 
services; management, consulting, and public relations services 
(including allocated expenses); merchanting services (sales only); 
mining services; operational leasing services; other trade-related 
services; performing arts, sports, and other live performances, 
presentations, and events; premiums paid on purchases of primary 
insurance; losses recovered on purchases of primary insurance; research, 
development, and testing services; telecommunications services; and 
other selected services. ``Other selected services'' includes, but is 
not limited to: Agricultural services; account collection services; 
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); 
employment agencies and temporary help supply services; language 
translation services; mailing, reproduction, and commercial art; 
management of health care facilities; salvage services; satellite 
photography and remote sensing/satellite imagery services; security 
services; space transport (includes satellite launches, transport of 
goods and people for scientific experiments, and space passenger 
transport); transcription services; and waste treatment and depollution 
services. The intangible assets covered by the BE-125 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]
    (7) BE-150, Quarterly Survey of Cross-Border Credit, Debit, and 
Charge Card Transactions:
    (i) A BE-150, Quarterly Survey of Cross-Border Credit, Debit, and 
Charge Card Transactions will be conducted covering the first quarter of 
the 2009 calendar year and every quarter thereafter.
    (A) Who must report. A BE-150 report is required from each U.S. 
company that operates networks for clearing and settling credit card 
transactions made by U.S. cardholders in foreign countries and by 
foreign cardholders in the United States. Each reporting company must 
complete all applicable parts of the BE-150 form before transmitting it 
to BEA. Issuing banks, acquiring banks, and individual cardholders are 
not required to report.
    (B) Covered transactions. The BE-150 survey collects aggregate 
information on the use of credit, debit, and charge cards by U.S. 
cardholders when traveling abroad and foreign cardholders when traveling 
in the United States. Data are collected by the type of transaction, by 
type of card, by spending category, and by country.
    (ii) [Reserved]

[51 FR 7772, Mar. 6, 1986, as amended at 59 FR 53935, Oct. 27, 1994; 68 
FR 69956, Dec. 16, 2003; 68 FR 75409, 75411, Dec. 31, 2003; 69 FR 50064, 
Aug. 13, 2004; 70 FR 48271, Aug. 17, 2005; 72 FR 5168, 5170, Feb. 5, 
2007; 74 FR 15844, Apr. 8, 2009; 74 FR 41036, Aug. 14, 2009]



Sec. 801.10  Rules and regulations for the BE-120, Benchmark Survey of
Transactions in Selected Services and Intangible Assets with Foreign Persons.

    The BE-120, Benchmark Survey of Transactions in Selected Services 
and Intangible Assets with Foreign Persons, will be conducted covering 
fiscal

[[Page 15]]

year 2006 and every fifth year thereafter. All legal authorities, 
provisions, definitions, and requirements contained in Sec. 801.1 
through 801.9(a) are applicable to this survey. Additional rules and 
regulations for the BE-120 survey are given in paragraphs (a) through 
(c) of this section. More detailed instructions and descriptions of the 
individual types of transactions covered are given on the report form 
itself.
    (a) The BE-120 survey consists of two parts and three 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 three schedules covers one or more 
types of transactions 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-120 report is 
required from each U.S. person that had sales to foreign persons that 
exceeded $2 million during the fiscal year covered of any of the types 
of services or intangible assets listed in paragraph (c) of this 
section, or had purchases from foreign persons that exceeded $1 million 
during the fiscal year covered of any of the types of services or 
intangible assets listed in paragraph (c) of this section.
    (i) 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 records search. Because the 
reporting threshold ($2 million for sales and $1 million for purchases) 
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) U.S. persons that file pursuant to this mandatory reporting 
requirement must complete Parts I and II of Form BE-120 and all 
applicable schedules. The total amounts of transactions applicable to a 
particular schedule are to be entered in the appropriate column(s) and, 
except for sales of merchanting services, these amounts must be 
distributed among the countries involved in the transactions. For sales 
of merchanting services, the data are not required to be reported by 
individual foreign country, although this information may be provided 
voluntarily.
    (iii) Application of the exemption levels to each covered 
transaction is indicated on the schedule for that particular type of 
transaction. It should be noted that an item other than sales or 
purchases may be used as the measure of a given type of transaction for 
purposes of determining whether the threshold for mandatory reporting of 
the transaction 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 transactions listed in paragraph (c) of this section are $2 
million or less for sales or $1 million or less for purchases, the U.S. 
person is requested to provide an estimate of the total for each type of 
transaction. Provision of this information is voluntary. The estimates 
may be judgmental, that is, based on recall, without conducting a 
detailed records search. Because the exemption 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.
    (3) Any U.S. person that receives the BE-120 survey form from BEA, 
but is not reporting data in either the mandatory or voluntary section 
of the form, must nevertheless provide information on the reason for not 
reporting. This requirement is necessary to ensure compliance with 
reporting requirements and efficient administration of the Act by 
eliminating unnecessary follow-up contact.
    (c) Covered types of services and intangible assets. The BE-120 
survey is intended to collect information on U.S. international trade in 
all types of services and intangible assets for which information is not 
collected in other BEA surveys and is not available to BEA from other 
sources. The major types of services transactions not covered by the BE-
120 survey are travel, transportation, insurance (except for

[[Page 16]]

purchases of primary insurance), financial services (except for 
purchases by non-financial firms), and expenditures by students and 
medical patients who are studying or seeking treatment in a country 
different from their country of residence. Covered services are: 
Advertising services; accounting, auditing, and bookkeeping services; 
auxiliary insurance services; computer and data processing services; 
construction services; data base and other information services; 
educational and training services; engineering, architectural, and 
surveying services; financial services (purchases only, by companies or 
parts of companies that are not financial services providers); 
industrial engineering services; industrial-type maintenance, 
installation, alteration, and training services; legal services; 
management, consulting, and public relations services (including 
allocated expenses); merchanting services (sales only); mining services; 
operational leasing services; other trade-related services; performing 
arts, sports, and other live performances, presentations, and events; 
premiums paid on purchases of primary insurance; losses recovered on 
purchases of primary insurance; research, development, and testing 
services; telecommunications services; and other selected services. 
``Other selected services'' includes, but is not limited to: Account 
collection services; 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); 
employment agencies and temporary help supply services; language 
translation services; mailing, reproduction, and commercial art; medical 
services (non-patient--e.g., laboratory or diagnostic services); salvage 
services; satellite photography and remote sensing/satellite imagery 
services; security services; space transport (includes satellite 
launches, transport of goods and people for scientific experiments, and 
space passenger transport); transcription services; and waste treatment 
and depollution services. The intangible assets covered by the BE-120 
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.

[71 FR 75419, Dec. 15, 2006]



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

[[Page 17]]

$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 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)

[[Page 18]]

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]



Sec. 801.12  Rules and regulations for the BE-140, Benchmark Survey 
of Insurance Transactions by U.S. Insurance Companies with Foreign Persons.

    (a) The BE-140, Benchmark Survey of Insurance Transactions by U.S. 
Insurance Companies with Foreign Persons, will be conducted covering 
calendar year 2008 and every fifth year thereafter. All legal 
authorities, provisions, definitions, and requirements contained in 
Sec. 801.1 through Sec. 801.9(a) are applicable to this survey. More 
detailed instructions and descriptions of the individual types of 
transactions covered are given on the report form itself. The BE-140 
consists of three parts and two schedules. Part 1 requests information 
on whom to consult concerning questions about the report and the 
certification section. Part 2 requests information about the reporting 
insurance company. Part 3 requests information needed to determine 
whether a report is required, the types of transactions that would be 
reported, and which schedules apply. Each of the two schedules covers 
the types of insurance services to be reported and the ownership 
relationship between the U.S. insurance company and foreign transactor 
and is to be completed only if the U.S. insurance company has 
transactions of the types covered by the particular schedule.
    (b) Who must report--(1) Mandatory reporting. A BE-140 report is 
required from each U.S. insurance company with respect to the 
transactions listed below, if any of the eight items was greater than $2 
million or less than negative $2 million for the calendar year covered 
by the survey on an accrual basis:
    (i) Premiums earned, and
    (ii) Losses, on reinsurance assumed;
    (iii) Premiums incurred, and
    (iv) Losses, on reinsurance ceded;
    (v) Premiums earned, and
    (vi) Losses, on primary insurance sold;
    (vii) Sales of, and
    (viii) Purchases of, auxiliary insurance services.
    U.S. insurance companies that file pursuant to this mandatory 
reporting requirement must complete parts 1 through 3 of Form BE-140 and 
all applicable schedules. The total amounts of transactions applicable 
to a particular schedule are to be entered in the appropriate column(s) 
and these amounts must be distributed among the countries involved in 
the transactions.
    (2) Voluntary reporting. If, during the calendar year covered, the 
U.S. insurance company's transactions do not exceed the exemption level 
for any of the types of transactions covered by the survey, the U.S. 
person is requested to provide an estimate of the total for each type of 
transaction. Submission of this information is voluntary. The estimates 
may be judgmental, that is, based on recall, without conducting a 
detailed records search.
    (3) Any U.S. insurance company that receives the BE-140 survey form 
from BEA, but is not reporting data in either the mandatory or voluntary 
section of the form, must complete Parts 1 through 3 of the survey. This 
requirement is necessary to ensure compliance with reporting 
requirements and efficient administration of the Act by eliminating 
unnecessary follow-up contact.
    (c) Covered types of insurance transactions. The BE-140 survey is 
intended to collect information on U.S. international insurance 
transactions. The types of insurance transactions covered

[[Page 19]]

are: Reinsurance assumed from or ceded to insurance companies resident 
abroad, primary insurance sold to foreign persons, and receipts and 
payments of auxiliary insurance services.

[74 FR 41036, Aug. 14, 2009]



PART 806_DIRECT INVESTMENT SURVEYS--Table of Contents




Sec.
806.1 Purpose.
806.2 Recordkeeping requirements.
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--2004.
806.17 Rules and regulations for BE-12, 2007 Benchmark Survey of Foreign 
          Direct Investment in the United States.
806.18 OMB control numbers assigned to the Paperwork Reduction Act.

    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.

[[Page 20]]



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).
    (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

[[Page 21]]

business enterprise, or an equivalent ownership interest in an 
unincorporated business enterprise, which is located outside that 
country;
    (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 22]]

    (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 23]]

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 24]]

    (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 25]]

    (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 $40,000,000 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 Form(s) BE-11B(LF)(Long Form), BE-
11B(SF)(Short Form), BE-11B(FN), BE-11B(EZ), and/or BE-11C, is required 
of each U.S. Reporter that, at the end of the Reporter's fiscal year, 
had a foreign affiliate reportable on Form BE-11B(LF), (SF), (FN), (EZ), 
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 
U.S. person having a foreign affiliate reportable on Form BE-11B(LF), 
(SF), (FN), (EZ), 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. 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 a separate Form BE-11A. The 
nonbanking U.S. operations not owned by the bank must also file on a 
Form BE-11A.
    (A) If for a 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 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), (SF), (FN), (EZ), or BE-11C as 
applicable, for each nonexempt foreign affiliate.
    (B) If for a U.S. Reporter no one of the three items listed in 
paragraph (f)(3)(i)(A) of this section was greater than $150 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 31 and Part IV. It must also file a Form BE-11B(LF), (SF), (FN), 
(EZ), or BE-11C as applicable, for each nonexempt foreign affiliate.
    (ii) Forms BE-11B(LF), (SF), and (EZ) (Report for Majority-owned 
Nonbank Foreign Affiliate of Nonbank U.S. Reporter).
    (A) A BE-11B(LF)(Long Form) must 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

[[Page 26]]

operating revenues excluding sales taxes, or net income after provision 
for foreign income taxes--was greater than $225 million (positive or 
negative) at the end of, or for, the affiliate's fiscal year, unless the 
nonbank foreign affiliate is selected to be reported on Form BE-11B(EZ).
    (B) A BE-11B(SF)(Short Form) must be filed for each majority-owned 
nonbank foreign affiliate of a nonbank U.S. Reporter for which any one 
of the three items listed in paragraph (f)(3)(ii)(A) of this section was 
greater than $60 million (positive or negative), but for which no one of 
these items was greater than $225 million (positive or negative), at the 
end of, or for, the affiliate's fiscal year, unless the nonbank foreign 
affiliate is selected to be reported on Form BE-11B(EZ).
    (C) A BE-11B(EZ) must be filed for each nonbank foreign affiliate of 
a nonbank U.S. Reporter that is selected to be reported on this form in 
lieu of Form BE-11B(LF) or Form BE-11B(SF).
    (iii) Form BE-11B(FN) (Report for Foreign Affiliate of Bank U.S. 
Reporter and Bank Affiliate of Nonbank U.S. Reporter) must be filed for 
1) each foreign affiliate (bank and nonbank) of a bank U.S. Reporter for 
which any one of the three items listed in paragraph (f)(3)(ii)(A) of 
this section was greater than $250 million (positive or negative) at the 
end of, or for, the affiliate's fiscal year and 2) each bank foreign 
affiliate of a nonbank U.S. Reporter for which any one of the three 
items listed in paragraph (f)(3)(ii)(A) of this section was greater than 
$250 million (positive or negative) at the end of, or for, the 
affiliate's fiscal year.
    (iv) Form BE-11C (Report for Minority-owned Nonbank Foreign 
Affiliate of Nonbank U.S. Reporter) must be filed for each minority-
owned nonbank foreign affiliate of a nonbank U.S. Reporter 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 $60 million (positive or negative) at the 
end of, or for, the affiliate's fiscal year.
    (v) Based on the preceding, an affiliate is exempt from being 
reported if it meets any one of the following criteria:
    (A) For nonbank affiliates of nonbank U.S. Reporters, none of the 
three items listed in paragraph (f)(3)(ii)(A) of this section exceeds 
$60 million (positive or negative). However, affiliates that were 
established or acquired during the year and for which at least one of 
these items was greater than $10 million but not over $60 million must 
be listed, and key data items reported, on a supplement schedule on Form 
BE-11A.
    (B) For affiliates of bank U.S. Reporters and bank affiliates of 
nonbank U.S. Reporters, none of the three items listed in paragraph 
(f)(3)(ii)(A) of this section exceeds $250 million (positive or 
negative). However, affiliates that were established or acquired during 
the year and for which at least one of these items was greater than $10 
million but not over $250 million must be listed, and key data items 
reported, on a supplement schedule on Form BE-11A.
    (C) For nonbank foreign affiliates of nonbank U.S. Reporters, for 
fiscal year 2007 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).
    (D) For fiscal years other than 2007, it is less than 20 percent 
owned, directly or indirectly, by all U.S. Reporters of the affiliate 
combined.
    (vi) Notwithstanding paragraph (f)(3)(v) of this section, a Form BE-
11B(LF), (SF), (FN), (EZ) or BE-11C must be filed for a foreign 
affiliate of the U.S. Reporter that owns another non-exempt 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,

[[Page 27]]

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 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]

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



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

[[Page 28]]

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 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.

[[Page 29]]

    (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 exceeding an exemption level of $40 million. 
Form BE-15A must be filed by each 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 $275 
million (positive or negative). Form BE-15B must be filed by each 
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 $120 
million (positive or negative) but no one item exceeds $275 million 
(positive or negative), and by each 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 U.S. income taxes--exceeds $120 
million (positive or negative). Form BE-15(EZ) must be filed every other 
year by each 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 $40 million 
(positive or negative) but no one item exceeds $120 million (positive or 
negative). U.S. affiliates will be mailed Form BE-15(EZ) in years when 
they are required to file; in alternate years, these U.S. affiliates 
will be mailed a letter confirming that they are not required to file 
and asking them to update their contact information with BEA. A BE-15 
Claim for Exemption must be filed by each U.S. affiliate to claim 
exemption from filing a BE-15A, BE-15B, or BE-15(EZ). Following an 
initial filing, the BE-15 Claim for Exemption is not required annually 
from those 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

[[Page 30]]

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 
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

[[Page 31]]

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; 53 FR 1016, Jan. 15, 1988; 63 FR 16892, Apr. 7, 1998; 68 
FR 3813, Jan. 27, 2003; 68 FR 67940, Dec. 5, 2003; 74 FR 8004, Feb. 23, 
2009]

    Effective Date Note: At 74 FR 65019, Dec. 9, 2009, Sec. 806.15 was 
amended by revising paragraph (h), effective Jan. 8, 2010. For the 
convenience of the user, the revised text is set forth as follows:



Sec. 806.15  Foreign direct investment in the United States.

                                * * * * *

    (h) Quarterly report form. BE-605, Quarterly Survey of Foreign 
Direct Investment in the United States--Transactions of U.S. Affiliate 
with Foreign Parent: One report is required for each U.S. affiliate 
exceeding an exemption level of $60 million.

                                * * * * *



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,

[[Page 32]]

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 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.

[[Page 33]]

    (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 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.

[69 FR 70545, Dec. 7, 2004]

    Effective Date Note: At 74 FR 66233, Dec. 15, 2009, Sec. 806.16 was 
revised, effective Jan. 14, 2010. For the convenience of the user, the 
revised text is set forth as follows:

[[Page 34]]



Sec. 806.16  Rules and regulations for BE-10, Benchmark Survey of U.S. 
          Direct Investment Abroad--2009.

    A BE-10, Benchmark Survey of U.S. Direct Investment Abroad will be 
conducted covering 2009. 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 (d) 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--2009, contained herein, 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 and Form(s) BE-10B, BE-10C, and/or BE-10D) by May 28, 2010, or June 
30, 2010, 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, including a 
branch--at any time during the U.S. person's 2009 fiscal year.
    (2) If the U.S. person had no foreign affiliates during its 2009 
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 2009 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 2009 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, 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.
    (c) Forms to be filed--(1) Form BE-10A must be completed by a U.S. 
Reporter. 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 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 
$300 million (positive or negative) at any time during the Reporter's 
2009 fiscal year, the U.S. Reporter must file a complete Form BE-10A. It 
must also file Form(s) BE-10B, C, and/or D, as appropriate, for its 
foreign affiliates.
    (ii) If for a U.S. Reporter none of the three items listed in 
paragraph (c)(1)(i) of this section was greater than $300 million 
(positive or negative) at any time during the Reporter's 2009 fiscal 
year, the U.S. Reporter is required to file on Form BE-10A only certain 
items as designated on the form. It must also file Form(s) BE-10B, C, 
and/or D for its foreign affiliates.
    (2) Form BE-10B must be filed for each majority-owned foreign 
affiliate, whether held directly or indirectly, for which any of the 
following three items--total assets, sales or gross operating revenues 
excluding sales taxes, or net income after provision for foreign income 
taxes--was greater than $80 million (positive or negative) at any time 
during the affiliate's 2009 fiscal year. Additional items must be filed 
for affiliates with assets, sales, or net income greater than $300 
million (positive or negative).
    (3) Form BE-10C must be reported:
    (i) For each majority-owned foreign affiliate, whether held directly 
or indirectly, for which any one of the three items listed in paragraph 
(c)(2) of this section was greater than $25 million but for which none 
of these items was greater than $80 million (positive or negative), at 
any time during the affiliate's 2009 fiscal year, and
    (ii) For each minority-owned foreign affiliate, whether held 
directly or indirectly, for which any one of the three items listed in 
(c)(2) of this section was greater than $25 million (positive or 
negative), at any time during the affiliate's 2009 fiscal year.
    (4) Form BE-10D must be filed for majority- or minority-owned 
foreign affiliates, whether held directly or indirectly, for which none 
of the three items listed in paragraph (c)(2) of this section was 
greater than $25 million (positive or negative) at any time during the 
affiliate's 2009 fiscal year. Form BE-10D is a schedule; a U.S. Reporter 
would submit one or more pages of the form depending on the number of 
affiliates that are required to be filed on this form.

[[Page 35]]

    (d) Due date. A fully completed and certified BE-10 report 
comprising Form BE-10A and Form(s) BE-10B, C, and/or D (as required) is 
due to be filed with BEA not later than May 28, 2010 for those U.S. 
Reporters filing fewer than 50, and June 30, 2010 for those U.S. 
Reporters filing 50 or more, foreign affiliate Forms BE-10B, C, and/or 
D. If the U.S. person had no foreign affiliates during its 2009 fiscal 
year, it must file a BE-10 Claim for Not Filing by May 28, 2010.



Sec. 806.17  Rules and regulations for BE-12, 2007 Benchmark Survey
of Foreign Direct Investment in the United States.

    A BE-12, Benchmark Survey of Foreign Direct Investment in the United 
States will be conducted covering 2007. All legal authorities, 
provisions, definitions, and requirements contained in Sec. 806.1 
through Sec. 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, 2007 Benchmark Survey of 
Foreign Direct Investment in the United States, contained in this 
section, whether or not they are contacted by BEA. Also, a person, or 
their agent, contacted by BEA about reporting in this survey, either by 
sending them a report form or by written inquiry, must respond pursuant 
to Sec. 806.4. This may be accomplished by:
    (1) Filing the properly completed BE-12 report--Form BE-12(LF), Form 
BE-12(SF), Form BE-12 Mini, or Form BE-12 Bank, by May 31, 2008, as 
required;
    (2) Completing and returning the Form BE-12 Claim for Not Filing by 
May 31, 2008; or
    (3) Certifying in writing, by May 31, 2008, to the fact that the 
person is not a U.S. affiliate of a foreign person and not subject to 
the reporting requirements of the BE-12 survey.
    (b) Who must report. A BE-12 report is required for each U.S. 
affiliate, that is, 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 in an incorporated U.S. 
business enterprise, or an equivalent interest in an unincorporated U.S. 
business enterprise, at the end of the business enterprise's fiscal year 
that ended in calendar year 2007. A BE-12 report is required even if the 
foreign person's ownership interest in the U.S. business enterprise was 
established or acquired during the 2007 reporting year. Beneficial, not 
record, ownership is the basis of the reporting criteria.
    (c) Forms to be filed--(1) Form BE-12(LF) (Long Form) must be 
completed by a U.S. affiliate that was majority-owned by one or more 
foreign parents (for purposes of this survey, 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 and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, any one of the following three items 
for the U.S. affiliate (not just the foreign parent's share), was 
greater than $175 million (positive or negative) at the end of, or for, 
its fiscal year that ended in calendar year 2007:
    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes; or
    (C) Net income after provision for U.S. income taxes.
    (2) Form BE-12(SF) (Short Form) must be completed by a U.S. 
affiliate if:
    (i) It is not a bank and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, any one of the three items listed in 
paragraph (c)(1)(ii) of this section for a majority-owned U.S. affiliate 
(not just the foreign parent's share), was greater than $40 million 
(positive or negative) but none of these items was greater than $175 
million (positive or negative) at the end of, or for, its fiscal year 
that ended in calendar year 2007.
    (iii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, any one of the three items listed in 
paragraph

[[Page 36]]

(c)(1)(ii) of this section for a minority-owned U.S. affiliate (not just 
the foreign parent's share), was greater than $40 million (positive or 
negative) at the end of, or for, its fiscal year that ended in calendar 
year 2007. (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.)
    (3) Form BE-12 Mini must be completed by a U.S. affiliate if:
    (i) It is not a bank, and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) On a fully consolidated basis, or, in the case of real estate 
investment, on an aggregated basis, none of the three items listed in 
paragraph (c)(1)(ii) of this section for a U.S. affiliate (not just the 
foreign parent's share), was greater than $40 million (positive or 
negative) at the end of, or for, its fiscal year that ended in calendar 
year 2007.
    (4) Form BE-12 Bank must be completed by a U.S. affiliate if:
    (i) The U.S. affiliate is a bank. For purposes of the BE-12 survey, 
a ``bank'' is a business entity 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, bank holding companies and financial holding 
companies under the Gramm-Leach-Bliley Act, including all subsidiaries 
or units of a bank holding company or financial holding company, and
    (ii) On a fully consolidated basis any one of the three items listed 
in paragraph (c)(1)(ii) of this section for a U.S. affiliate (not just 
the foreign parent's share), was greater than $15 million (positive or 
negative) at the end of, or for, its fiscal year that ended in calendar 
year 2007.
    (5) Form BE-12 Claim for Not Filing will be provided for response by 
persons that are not subject to the reporting requirements of the BE-12 
survey but have been contacted by BEA concerning their reporting status.
    (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 on the same type of report that would have been 
required if the real estate holdings were aggregated.
    (e) Due date. A fully completed and certified Form BE-12(LF), BE-
12(SF), BE-12 Mini, BE-12 Bank, or Form BE-12 Claim for Not Filing is 
due to be filed with BEA not later than May 31, 2008.

[72 FR 72919, Dec. 26, 2007]



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

    (a) Purpose. This section complies with the requirements of section 
3507 (f) of the Paperwork Reduction Act (PRA) which requires 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
                                                                    0042
                                                                    0053
------------------------------------------------------------------------


[72 FR 72919, Dec. 26, 2007]



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

[[Page 37]]

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............................          44
905             Use in enforcement proceedings of 
                    information collected by voluntary 
                    fishery data collectors.................          74
908             Maintaining records and submitting reports 
                    on weather modification activities......          75
909             Marine debris...............................          81
911             Policies and procedures concerning use of 
                    the NOAA space-based data collection 
                    systems.................................          81
917             National sea grant program funding 
                    regulations.............................          88
918             Sea grants..................................          95
           SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT
921             National Estuarine Research Reserve System 
                    regulations.............................         100
922             National Marine Sanctuary Program 
                    regulations.............................         124
923             Coastal Zone Management Program regulations.         213
930             Federal consistency with approved coastal 
                    management programs.....................         253
932-933

[Reserved]

        SUBCHAPTER C--REGULATIONS OF THE NATIONAL WEATHER SERVICE
946             Modernization of the National Weather 
                    Service.................................         295
   SUBCHAPTER D--GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE
950             Environmental data and information..........         308
960             Licensing of private remote sensing systems.         312

[[Page 40]]

970             Deep seabed mining regulations for 
                    exploration licenses....................         329
971             Deep seabed mining regulations for 
                    commercial recovery permits.............         361
               SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
990             Natural resource damage assessments.........         401
SUBCHAPTER F--QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA 
                   HYDROGRAPHIC PRODUCTS AND SERVICES
995             Certification requirements for distributors 
                    of NOAA hydrographic products...........         420
996             Quality assurance and certification 
                    requirements for NOAA hydrographic 
                    products and services...................         432

[[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
  224.105(c)..............................  -0580
  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
  270.3...................................  -0556
  270.6...................................  -0556
  270.8...................................  -0556
  270.10..................................  -0556
  270.12..................................  -0556
  270.13..................................  -0556
  270.14..................................  -0556
  270.15..................................  -0556
  270.19..................................  -0556
  270.20..................................  -0556
  270.23..................................  -0556
  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
  300.45..................................  -0218
  300.65 introductory text; (h)(1)(ii) and  -0460
   (iii); and (i).
  300.65(d)...............................  -0575
  300.65(h)(1)(i).........................  -0460 and -0512
  300.65(j), (k), and (l).................  -0512
  300.103(a)..............................  -0194
  300.104(d)..............................  -0194
  300.104(e)..............................  -0194
  300.105(c)..............................  -0194
  300.106(e)..............................  -0194
  300.107.................................  -0194

[[Page 42]]

 
  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
  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
  622.5(a)(1)(vii)........................  -0591
  622.6...................................  -0358 and -0359
  622.8...................................  -0205
  622.9...................................  -0205
  622.15..................................  -0013 and -0262
  622.16..................................  -0551
  622.18..................................  -0205
  622.19..................................  -0205
  622.20..................................  -0587
  622.40(a)(2)............................  -0205
  622.40(d)(2)............................  -0013
  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, -0212, -0489, and -
                                             0529
  648.5...................................  -0202
  648.6...................................  -0202 and -0555
  648.7...................................  -0018, -0202, -0212, -0229,
                                             and -0590
  648.8...................................  -0350
  648.9...................................  -0202, -0404, -0489, -0501,
                                             and -0529
  648.10..................................  -0202, -0489, -0501, and -
                                             0529
  648.11..................................  -0202, -0546, and -0555
  648.13..................................  -0391 and -0481
  648.14..................................  -0202, -0212, -0469, -0489,
                                             0501, and -0502
  648.15..................................  -0202
  648.15(b)...............................  -0558
  648.17..................................  -0202
  648.53..................................  -0202 and -0491
  648.54..................................  -0202
  648.56..................................  -0321
  648.58..................................  -0202 and -0416
  648.60..................................  -0491 and -0541
  648.70..................................  -0238
  648.74..................................  -0240
  648.76..................................  -0202
  648.80..................................  -0202, -0422, -0489, and -
                                             0521
  648.81..................................  -0202, -0412, and -0489
  648.82..................................  -0202, -0457, -0489, and -
                                             0521
  648.84..................................  -0202 and -0351
  648.85..................................  -0212, -0489, -0501, and -
                                             0502
  648.86..................................  -0202, -0391, -0457, and -
                                             0489
  648.87..................................  -0489
  648.88..................................  -0489
  648.89..................................  -0412 and -0489
  648.91..................................  -0202
  648.92..................................  -0202 and -0561
  648.93..................................  -0202
  648.94..................................  -0202 and -0489
  648.95..................................  -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
  648.207.................................  -0348-0043, 0348-0044, 0348-
                                             0040, and 0348-0046
  648.262.................................  -0202
  648.264.................................  -0351
  648.291.................................  -0590
  648.322.................................  -0480 and -0489
  654.6...................................  -0358 and -0359
  660.303.................................  -0271
  660.305.................................  -0355
  660.322.................................  -0352
  660.323.................................  -0243
  660.333.................................  -0203
  660.504.................................  -0361

[[Page 43]]

 
  660.512.................................  -0204
  660.704.................................  -0361
  660.707.................................  -0204
  660.708.................................  -0498
  660.712(d) and (f)......................  -0498
  661.4...................................  -0222
  661.20..................................  -0222
  663.4...................................  -0271
  663.10..................................  -0203
  663.11..................................  -0203
  663.22..................................  -0305
  663.33..................................  -0203
  665.13..................................  -0490, -0586, and -0589
  665.14..................................  -0214, -0586, and -0589
  665.16..................................  -0360, -0586, and -0589
  665.17..................................  -0214 and -0490
  665.19..................................  -0441 and -0584
  665.21(k)...............................  -0490 and -0589
  665.23..................................  -0214
  665.24..................................  -0360
  665.27..................................  -0490
  665.28..................................  -0214
  665.35..................................  -0456
  665.41..................................  -0490 and -0586
  665.43..................................  -0214
  665.48..................................  -0360
  665.61..................................  -0490 and -0584
  665.63..................................  -0214
  665.65..................................  -0214
  665.81..................................  -0490
  665.602.................................  -0463
  665.604.................................  -0462
  665.606.................................  -0360
  679.4(b), (f), (h), and (i).............  -0206
  679.4(d) and (e)........................  -0272
  679.4(g)................................  -0334
  679.4(k)................................  -0334, -0545, and -0565
  679.4(l)................................  -0393
  679.4(m)(2).............................  -0513
  679.4(m)(4).............................  -0513
  679.4(n)................................  -0545
  679.4(o)................................  -0565
  679.5(a)................................  -0213, -0269, -0272, and -
                                             0401
  679.5(b), (h), and (k)..................  -0213
  679.5(c)................................  -0213, -0272, -0330, -0513,
                                             and -0515
  679.5(d)................................  -0213, -0272, and -0513
  679.5(e) and (f)........................  -0213, -0272, -0330, -0401,
                                             0513, and -0515
  679.5(g)................................  -0213, -0272, and -0330
  679.5(l)(1) through (l)(5)..............  -0272
  679.5(l)(7).............................  -0398
  679.5(n)................................  -0269
  679.5(o)................................  -0401
  679.5(p)................................  -0428
  679.5(q)................................  -0513
  679.5(r)................................  -0213, -0445, and -0545
  679.5(s)................................  -0213, -0445, and -0565
  679.6...................................  -0206
  679.20(a)(8)(iii).......................  -0206
  679.24(a)...............................  -0353
  679.26..................................  -0316
  679.27(j)(5)............................  -0213, -0330, and -0565
  679.28(a)...............................  -0213 and -0330
  679.28(b), (c), (d), and (e)............  -0330
  679.28(g)...............................  -0330
  679.28(h)...............................  -0213 and -0515
  679.30..................................  -0269
  679.32(c) and (e).......................  -0213 and -0269
  679.32(d)...............................  -0213, -0269 and -0330
  679.32(f)...............................  -0213, -0269, and -0272
  679.40..................................  -0272
  679.41..................................  -0272
  679.42..................................  -0272
  679.43..................................  -0272, -0318, -0334, -0398,
                                             0401, -0545, -0565, and -
                                             0569
  679.45..................................  -0398
  679.50..................................  -0318
  679.61(c), (d), (e), and (f)............  -0401
  679.62..................................  -0393
  679.63..................................  -0213 and -0330
  679.80..................................  -0545
  679.81..................................  -0545
  679.82..................................  -0545
  679.83..................................  -0545
  679.84..................................  -0213, -0330, and -0545
  679.90..................................  -0565
  679.91..................................  -0565
  679.93..................................  -0213, -0330 and -0565
  679.94..................................  -0564
  680.4(a), (b)(2), and (c) through (m)...  -0514
  680.4(b)(1).............................  -0514, -0576
  680.4(b)(3) and (n).....................  -0576
  680.5(a) and (h) through (l)............  -0213
  680.5(b)................................  -0515
  680.5(e) and (f)........................  -0570
  680.5(g)................................  -0514
  680.5(m)................................  -0514
  680.6...................................  -0518
  680.20..................................  -0516
  680.21..................................  -0514
  680.23(d)(1) and (d)(2).................  -0445
  680.23(e), (f), and (g).................  -0330
  680.40(f), (g), (h), (i), (j), (k), (l),  -0514
   and (m).
  680.41..................................  -0514
  680.43..................................  -0514
  680.44..................................  -0514
  697.4(a), (d) and (e)...................  -0202
  697.5...................................  -0202
  697.6...................................  -0202
  697.7...................................  -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.

[[Page 44]]



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 and acronyms.
904.3 Filing and service of notices, documents, and other papers.
904.4 Computation of time periods.
904.5 Appearances.

                        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.
904.104 Final administrative decision.
904.105 Payment of final civil penalty.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing civil penalties.

                 Subpart C_Hearing and Appeal Procedures

                                 General

904.200 Scope and applicability.
904.201 Hearing requests and case docketing.
904.202 Filing of documents.
904.203 [Reserved]
904.204 Duties and powers of Judge.
904.205 Disqualification of Judge.
904.206 Pleadings, motions, and service.
904.207 Amendment of pleading or record.
904.208 Extensions of time.
904.209 Expedited administrative 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.
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 Closing of record.
904.254 Interlocutory review.
904.255 Ex parte communications.

                              Post-Hearing

904.260 Recordation of hearing.
904.261 Post-hearing briefs.

                                Decision

904.270 Record of decision.
904.271 Initial 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 permit sanctions or denials.
904.302 Notice of permit sanction (NOPS).
904.303 Notice of intent to deny permit (NIDP).
904.304 Opportunity for hearing.
904.305 Final administrative decision.

                   Permit Sanctions for Noncompliance

904.310 Nature of permit sanctions.
904.311 Compliance.

                     Permit Sanctions for Violations

904.320 Nature of permit 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 violation.
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 of seized property.
904.503 Appraisement.
904.504 Administrative forfeiture proceedings.
904.505 Summary sale.
904.506 Remission of forfeiture and restoration of proceeds of sale.
904.507 Recovery of certain storage costs.
904.508 Voluntary forfeiture by abandonment.
904.509 Disposal of forfeited property.
904.510 Return of seized property.


[[Page 45]]


    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. 5001-5012; 16 U.S.C. 3631-3644; 42 U.S.C. 9101 
et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971k; 16 U.S.C. 781 et 
seq.; 16 U.S.C. 2401-2413; 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. 5601 et seq.; Pub. L. 105-277; 16 U.S.C. 1822 note, 
Section 801(f); 16 U.S.C. 2465(a); 16 U.S.C. 5103(b); 16 U.S.C. 1385 et 
seq.; 16 U.S.C. 1822 note (Section 4006); 16 U.S.C. 4001-4017; 22 U.S.C. 
1980(g); 16 U.S.C. 5506(a); 16 U.S.C. 5601-5612; 16 U.S.C. 1822; 16 
U.S.C. 973-973(r); 15 U.S.C. 330-330(e).

    Source: 71 FR 12448, Mar. 10, 2006, 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 this 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) American Fisheries Act of 1998, Public Law 105-277;
    (2) Anadromous Fish Products Act, 16 U.S.C. 1822 note, Section 
801(f);
    (3) Antarctic Conservation Act of 1978, 16 U.S.C. 2401-2413;
    (4) Antarctic Marine Living Resources Convention Act of 1984, 16 
U.S.C. 2431-2444;
    (5) Antarctic Protection Act of 1990, 16 U.S.C. 2465(a);
    (6) Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. 
5103(b);
    (7) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601-3608;
    (8) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
    (9) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971k;
    (10) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.;
    (11) Dolphin Protection Consumer Information Act, 16 U.S.C. 1385 et 
seq.;
    (12) Driftnet Impact Monitoring, Assessment, and Control Act, 16 
U.S.C. 1822 note (Section 4006);
    (13) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
    (14) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;
    (15) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001-4017;
    (16) Fisherman's Protective Act of 1967, 22 U.S.C. 1980(g);
    (17) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151-1175;
    (18) High Seas Fishing Compliance Act, 16 U.S.C. 5506(a);
    (19) Lacey Act Amendments of 1981, 16 U.S.C. 3371-3378;
    (20) Land Remote-Sensing Policy Act of 1992, 15 U.S.C. 5601 et seq.;
    (21) Magnuson-Stevens Fishery Conservation and Management Act, 16 
U.S.C. 1801-1882;
    (22) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;
    (23) National Marine Sanctuaries Act, 16 U.S.C. 1431-1439;
    (24) North Pacific Anadromous Stocks Convention Act of 1992, 16 
U.S.C. 5001-5012;
    (25) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k;
    (26) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. 
5601-5612;
    (27) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et 
seq.;
    (28) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631-3644;
    (29) Shark Finning Prohibition Act, 16 U.S.C. 1822;
    (30) South Pacific Tuna Act of 1988, 16 U.S.C. 973-973(r);
    (31) Sponge Act, 16 U.S.C. 781 et seq.;
    (32) Tuna Conventions Act of 1950, 16 U.S.C. 951-961;
    (33) Weather Modification Reporting Act, 15 U.S.C. 330-330e; and
    (34) Whaling Convention Act of 1949, 16 U.S.C. 916-916l.
    (d) The procedures set forth in this part are intended to apply to 
administrative proceedings under these and any other statutes or 
authorities administered by NOAA.

[[Page 46]]



Sec. 904.2  Definitions and acronyms.

    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).
    ALJ Docketing Center means the Docketing Center of the Office of 
Administrative Law Judges.
    Applicable statute means a statute cited in Sec. 904.1(c), and any 
regulations issued by NOAA to implement it.
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the USCG;
    (2) Any special agent or fishery enforcement officer of NMFS;
    (3) Any officer designated by the head of any Federal or state 
agency that has entered into an agreement with the Secretary to enforce 
the provisions of any statute administered by NOAA; or
    (4) Any USCG personnel accompanying and acting under the direction 
of any person described in paragraph (1) of this definition.
    Citation means a written warning (see section 311(c) of the 
Magnuson-Stevens 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)).
    Civil penalty means a civil administrative monetary penalty assessed 
under the civil administrative process described in this part.
    Decision means an initial or final administrative 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 U.S. Government by court order or by order of the 
Administrator under a statute.
    Hearing means a civil administrative hearing on a NOVA, NOPS and/or 
NIDP.
    Initial decision means a decision of the Judge that, under 
applicable statute and regulation, is subject to review by the 
Administrator.
    Judge means Administrative Law Judge.
    NIDP means Notice of Intent to Deny Permit.
    NMFS means the National Marine Fisheries Service.
    NOAA (see Agency) means either the Administrator or a designee 
acting on behalf of the Administrator.
    NOPS means Notice of Permit Sanction.
    NOVA means Notice of Violation and Assessment of civil penalty.
    Party means the respondent and the Agency; a joint and several 
respondent, vessel owner, or permit holder, if they enter an appearance; 
and any other person allowed to participate under Sec. 904.204(b).
    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.
    Permit sanction means suspension, revocation, or modification of a 
permit (see Sec. 904.320).
    PPIP means Preliminary Position on Issues and Procedures.
    Respondent means a person issued a written warning, NOVA, NOPS, NIDP 
or other notice.
    Settlement agreement means any agreement resolving all or part of an 
administrative or judicial action. The terms of such an agreement may 
include, but are not limited to, payment of a civil penalty, and/or 
imposition of a permit sanction.
    USCG means the U.S. Coast Guard.

[[Page 47]]

    Vessel owner means the owner of any vessel that may be liable in rem 
for any civil penalty, or whose permit may be subject to sanction in 
proceedings under this part.
    Written warning means a notice in writing to a person that a 
violation has been documented against the person or against the vessel 
which is owned or operated by the person, where no civil penalty or 
permit sanction is imposed or assessed.



Sec. 904.3  Filing and service of notices, documents, and other papers.

    (a) Service of a NOVA (Sec. 904.101), NOPS (Sec. 904.302), NIDP 
(Sec. 904.303), Notice of Proposed Forfeiture (Sec. 904.504), Notice 
of Seizure (Sec. 904.501), Notice of Summary Sale (Sec. 904.505) or 
Written Warning (Sec. 904.402) may be made by certified mail (return 
receipt requested), facsimile, electronic transmission, or third party 
commercial carrier to an addressee's last known address or by personal 
delivery. Service of a notice under this subpart will be considered 
effective upon receipt.
    (b) Service of documents and papers, other than such Notices as 
described in paragraph (a) of this section, may be made by first class 
mail (postage prepaid), facsimile, electronic transmission, or third 
party commercial carrier, to an addressee's last known address or by 
personal delivery. Service of documents and papers will be considered 
effective upon the date of postmark (or as otherwise shown for 
government-franked mail), facsimile transmission, delivery to third 
party commercial carrier, electronic transmission or upon personal 
delivery.
    (c) Whenever this part requires service of a NOVA, NOPS, NIDP, 
document, or other paper, such service may effectively be made on the 
agent for service of process, on the attorney for the person to be 
served, or other representative. Refusal by the person to be served 
(including an agent, attorney, or representative) 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. In cases where 
certified notification is returned unclaimed, service will be considered 
effective if the U.S. Postal Service provides an affidavit stating that 
the party was receiving mail at the same address during the period when 
certified service was attempted.
    (d) Any documents or pleadings filed or served must be signed:
    (1) By the person or persons filing the same,
    (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.



Sec. 904.4  Computation of time periods.

    For a NOVA, NOPS or NIDP, the 30 day response period begins to run 
on the date the notice is received. All other time periods begin to run 
on the day following the service 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, in which event 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.



Sec. 904.5  Appearances.

    (a) A party may appear in person or by or with counsel or other 
representative.
    (b) Whenever an attorney or other representative contacts the Agency 
on behalf of another person with regard to any matter that has resulted 
in, or may result in, a written warning, a NOVA, NOPS, NIDP, or a 
forfeiture proceeding, that attorney or other representative shall file 
a Notice of Appearance with the Agency. Such notice shall indicate the 
name of the person on whose behalf the appearance is made.
    (c) Each attorney or other representative who represents a party in 
any hearing shall file a written Notice of

[[Page 48]]

Appearance with the Judge. Such notice shall indicate the name of the 
case, the docket number, and the party on whose behalf the appearance is 
made.



                        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 upon the respondent(s). 
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;
    (4) The amount of the civil penalty assessed; and
    (5) Information concerning 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 Sec. 904.201(a);
    (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 a final 
administrative decision in accordance with Sec. 904.104.
    (b) The respondent 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.
    (c) The respondent 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.



Sec. 904.103  Hearing.

    (a) Any hearing request under Sec. 904.102(a)(3) is governed by the 
hearing and review procedures set forth in subpart C of this part.
    (b) [Reserved]



Sec. 904.104  Final administrative decision.

    (a) If no request for hearing is timely filed as provided in Sec. 
904.201(a), the NOVA becomes effective as the final administrative 
decision and order of NOAA 30 days after service of the NOVA or on the 
last day of any delay period granted.

[[Page 49]]

    (b) If a request for hearing is timely filed in accordance with 
Sec. 904.201(a), the date of the final administrative decision is as 
provided in subpart C of this part.



Sec. 904.105  Payment of final civil penalty.

    (a) Respondent must make full payment of the civil penalty within 30 
days of the date upon which the NOVA becomes effective as the final 
administrative decision and order of NOAA under Sec. 904.104 or the 
date of the final administrative decision as provided in subpart C of 
this part. 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 
U.S. currency in the amount of the assessment to the ``Department of 
Commerce/NOAA,'' by credit card, or as otherwise directed.
    (b) Upon any failure to pay the civil penalty assessed, NOAA may 
request the U.S. Department of Justice to recover the amount assessed in 
any appropriate district court of the United States, may act under Sec. 
904.106, or may commence any other lawful action.



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 assessed, or 
which is subject to assessment, except as stated in paragraph (d) of 
this section.
    (b) The compromise authority of NOAA under this section may be 
exercised either upon the initiative of NOAA or in response to a request 
by the respondent or a representative subject to the requirements of 
Sec. 904.5. 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 a NOVA becomes final.
    (d) NOAA will not compromise, modify, or remit a civil penalty 
assessed, or subject to assessment, under the Deep Seabed Hard Mineral 
Resources Act while an action to review or recover the civil 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 joint and several respondent is 
liable for the entire penalty but, in total, no more than the amount 
finally assessed may be collected from the respondents.
    (b) A hearing request by one joint and several respondent is 
considered a request by the other joint and several respondent(s). 
Agency counsel, having received a hearing request from one joint and 
several respondent, will send a copy of it to the other joint and 
several respondent(s) in the case. However, if the requesting joint and 
several respondent settles with the Agency prior to the hearing, upon 
notification by the Agency, any remaining joint and several 
respondent(s) must affirmatively request a hearing within the time 
period specified or the case will be removed from the court's docket as 
provided in Sec. 904.213.
    (c) A final administrative decision by the Judge or the 
Administrator after a hearing requested by one joint and several 
respondent is binding on all parties including all other joint and 
several respondent(s), whether or not they entered an appearance unless 
they have otherwise resolved the matter through settlement with the 
Agency.



Sec. 904.108  Factors considered in assessing civil penalties.

    (a) Factors to be taken into account in assessing a civil 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 violations, and 
ability to pay; and such other matters as justice may require.
    (b) NOAA may, in consideration of a respondent's ability to pay, 
increase or decrease a civil penalty from an amount that would otherwise 
be warranted by the other relevant factors. A civil penalty may be 
increased if a respondent's ability to pay is such that a higher civil 
penalty is necessary to deter future violations, or for commercial 
violators, to make a civil penalty more than a cost of doing business. A 
civil penalty may be decreased if the

[[Page 50]]

respondent establishes that he or she is unable to pay an otherwise 
appropriate civil penalty amount.
    (c) Except as provided in paragraph (g) of this section, if a 
respondent asserts that a civil 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 civil 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 tax 
returns; past, present, and future 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 
civil 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 civil 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 as possible after the 
receipt of the NOVA. If a respondent has requested a hearing on the 
violation alleged in the NOVA and wants the initial decision of the 
Judge to consider his or her inability to pay, verifiable, complete, and 
accurate financial information must be submitted to Agency counsel at 
least 30 days in advance of the hearing, except where the applicable 
statute expressly provides for a different time period. No information 
regarding the respondent's ability to pay submitted by the respondent 
less than 30 days in advance of the hearing will be admitted at the 
hearing or considered in the initial decision of the Judge, unless the 
Judge rules otherwise. If the Judge decides to admit any information 
related to the respondent's ability to pay submitted less than 30 days 
in advance of the hearing, Agency Counsel will have 30 days to respond 
to the submission from the date of admission. 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 
prior to or at the hearing.
    (g) Whenever a statute requires NOAA to take into consideration a 
respondent's ability to pay when assessing a civil penalty, NOAA will 
take into consideration information available to it concerning a 
respondent's ability to pay. In all cases, the NOVA will advise, in 
accordance with Sec. 904.102, that the respondent may seek to have the 
civil penalty amount modified by Agency counsel on the basis that he or 
she does not have the ability to pay the civil penalty assessed. A 
request to have the civil penalty amount modified on this basis must be 
made in accordance with Sec. 904.102 and should be accompanied by 
supporting financial information. Agency counsel may request that the 
respondent submit such additional verifiable, complete and accurate 
financial information as Agency counsel determines is necessary to 
evaluate the respondent's financial condition (such as by responding to 
a financial information 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

[[Page 51]]

basis for inferring that such information would not have supported the 
respondent's assertion of inability to pay the civil penalty assessed in 
the NOVA.
    (h) Whenever a statute requires NOAA to take into consideration a 
respondent's ability to pay when assessing a civil penalty and the 
respondent has requested a hearing on the violation 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 civil penalty. Agency counsel may obtain such financial 
information through discovery procedures under Sec. 904.240, 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 civil penalty, or result in respondent 
being barred from asserting financial hardship.



                 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 administrative decisions 
of NOAA 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) The Judge is delegated authority to make the initial or final 
administrative decision of the Agency 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 constitutional issues or challenges to the 
validity of regulations promulgated by the Agency or statutes 
administered by NOAA.
    (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  Hearing requests and case docketing.

    (a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the 
request must be dated and in writing, and must be served either in 
person or mailed to the Agency counsel specified in the notice. The 
respondent must either attach a copy of the NOVA, NOPS or NIDP or refer 
to the relevant NOAA case number. Agency counsel will promptly forward 
the request for hearing to the ALJ Docketing Center.
    (b) If a written application is made to NOAA after the expiration of 
the time period established in this part for the required filing of 
hearing requests, Agency counsel will promptly forward the request for 
hearing along with a motion in opposition, documentation of service and 
any other relevant materials to the ALJ Docketing Center for a 
determination on whether such request shall be considered timely filed. 
Determinations by the ALJ regarding untimely hearing requests under this 
section shall be in writing.
    (c) Upon its receipt for filing in the ALJ Docketing Center, each 
request for hearing will be promptly 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 the ALJ Docketing Center and 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.

[[Page 52]]



Sec. 904.203  [Reserved]



Sec. 904.204  Duties and powers of Judge.

    The Judge has all powers and responsibilities necessary to preside 
over the parties and the hearing, to hold prehearing conferences, to 
conduct the hearing, and to render decisions 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 timeliness of hearing requests pursuant to Sec. 
904.201(b);
    (b) Rule on a request to participate as a party in the hearing 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 determination and 
whether the requester can be expected to contribute materially to the 
disposition of the proceedings);
    (c) 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;
    (d) Schedule and regulate the course of the hearing and the conduct 
of the participants and the media, including the power to rule on 
motions to close the hearing 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;
    (e) Administer oaths and affirmations to witnesses;
    (f) Rule on contested 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);
    (g) Rule on motions, procedural requests, and similar matters;
    (h) Receive, exclude, limit, and otherwise rule on offers of proof 
and evidence;
    (i) Examine and cross-examine witnesses and introduce into the 
record on the Judge's own initiative documentary or other evidence;
    (j) 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;
    (k) 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;
    (l) Take official notice of any matter not appearing in evidence 
that is among traditional matters of judicial notice; 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;
    (m) For stated good reason(s), assess a civil penalty de novo 
without being bound by the civil penalty assessed in the NOVA;
    (n) Prepare and submit a decision or other appropriate disposition 
document and certify the record;
    (o) Award attorney fees and expenses as provided by applicable 
statute or regulation;
    (p) Grant preliminary or interim relief; or
    (q) Impose, upon the motion of any party, or sua sponte, appropriate 
sanctions.
    (1) Sanctions may be imposed when any party, or any person 
representing a party, in an administrative proceeding under this part 
has failed to comply with this part, or any order issued under this 
part, and such failure to comply:
    (i) Materially injures or prejudices another party by causing 
additional expenses; prejudicial delay; or other injury or prejudice;
    (ii) Is a clear and unexcused violation of this part, or any order 
issued under this part; or

[[Page 53]]

    (iii) Unduly delays the administrative proceeding.
    (2) Sanctions that may be imposed include, but are not limited to, 
one or more of the following:
    (i) Issuing an order against the party;
    (ii) Rejecting or striking any testimony or documentary evidence 
offered, or other papers filed, by the party;
    (iii) Expelling the party from the administrative proceedings;
    (iv) Precluding the party from contesting specific issues or 
findings;
    (v) Precluding the party from making a late filing or conditioning a 
late filing on any terms that are just;
    (vi) Assessing reasonable expenses, incurred by any other party as a 
result of the improper action or failure to act; and
    (vii) Taking any other action, or imposing any restriction or 
sanction, authorized by applicable statute or regulation, deemed 
appropriate by the Judge.
    (3) No sanction authorized by this section, other than refusal to 
accept late filings, shall be imposed without prior notice to all 
parties and an opportunity for any party against whom sanctions would be 
imposed to be heard. Such opportunity to be heard may be on such notice, 
and the response may be in such form as the Judge directs and may be 
limited to an opportunity for a party or a party's representative to 
respond orally immediately after the act or inaction is noted by the 
Judge.
    (4) The imposition of sanctions is subject to interlocutory review 
pursuant to Sec. 904.254 in the same manner as any other ruling.
    (5) Nothing in this section shall be read as precluding the Judge 
from taking any other action, or imposing any restriction or sanction, 
authorized by applicable statute or regulation.



Sec. 904.205  Disqualification of Judge.

    (a) The Judge may withdraw voluntarily from an administrative 
proceeding 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 Judge and a copy served upon the ALJ Docketing Center and 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(b).
    (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, 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 service of the 
motion. 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.

[[Page 54]]

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 raised in the answer may be served within 15 
days after service of an answer. The Judge has discretion to dispense 
with the reply. No further responses are permitted.



Sec. 904.207  Amendment of pleading or record.

    (a) A party may amend its pleading as a matter of course at least 20 
days prior to a hearing. Within 20 days prior to a hearing a party may 
amend its pleading only by leave of the Judge or by written consent of 
the adverse party; leave shall be freely given when justice so requires. 
A party shall plead in response to an amended pleading within the time 
remaining for response to the original pleading or within 10 days after 
service of the amended pleading, whichever period is longer, unless the 
Judge otherwise orders.
    (b) 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.
    (c) Harmless errors in pleadings or elsewhere in the record 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, 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 administrative 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 administrative proceeding. A motion by a party 
to expedite the administrative proceeding may, at the discretion of the 
Judge, be made orally or in writing with concurrent actual notice to all 
parties. Upon granting a motion to expedite the scheduling of an 
administrative proceeding, the Judge may expedite pleading schedules, 
prehearing conferences and the hearing, as appropriate. If a motion for 
an expedited administrative proceeding is granted, a hearing on the 
merits may not be scheduled with less than 5 business 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 administrative proceeding if:
    (a) Jointly requested by every party to the administrative 
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.



Sec. 904.211  Failure to appear.

    (a) If, after proper service of notice, any party appears at the 
hearing and an opposing party fails to appear, the Judge is authorized 
to:
    (1) Dismiss the case with prejudice, where the Agency is a non-
appearing party; or
    (2) Where the respondents have failed to appear, find the facts as 
alleged in the NOVA, NOPS and/or NIDP and enter a default judgment 
against the respondents.
    (b) Following an order of default judgment, a non-appearing party 
may file a petition for reconsideration, in accordance with Sec. 
904.272. Only petitions citing reasons for non-appearance, as opposed to 
arguing the merits of the case, will be considered.
    (c) The Judge will place in the record all the facts concerning the 
issuance and service of the notice of time and place of hearing.
    (d) 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.
    (e) Failure to appear at a hearing shall not be deemed to be a 
waiver of the right to be served with a copy of the Judge's decision.



Sec. 904.212  Failure to prosecute or defend.

    (a) Whenever the record discloses the failure of any party to file 
documents,

[[Page 55]]

respond to orders or notices from the Judge, or otherwise indicates an 
intention on the part of any party not to participate further in the 
administrative proceeding, the Judge may issue:
    (1) An order requiring any party to show why the matter that is the 
subject of the failure to respond should not be disposed of adversely to 
that party's interest;
    (2) An order requiring any party to certify intent to appear at any 
scheduled hearing; or
    (3) Any order, except dismissal, as is necessary for the just and 
expeditious resolution of the case.
    (b) [Reserved]



Sec. 904.213  Settlements.

    If settlement is reached before the Judge has certified the record, 
the Judge shall remove the case from the docket upon notification by the 
Agency.



Sec. 904.214  Stipulations.

    The parties may, by stipulation, agree upon any matters involved in 
the administrative 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 Chief Administrative Law Judge may order that two or more 
administrative proceedings that involve substantially the same parties 
or the same issues be consolidated and/or heard together, either upon 
request of a party or sua sponte.



Sec. 904.216  Prehearing conferences.

    (a) Prior to any hearing or at any other time deemed appropriate, 
the Judge may, upon his or her own initiative, or upon the application 
of any party, direct the parties to appear for a conference or arrange a 
telephone conference. The Judge shall provide at least 24 hours notice 
of the conference to the parties, and shall record such conference by 
audio recording or court reporter, 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 administrative 
proceeding;
    (6) The distribution to the parties and the Judge prior to the 
hearing of written testimony and exhibits in order to expedite the 
hearing; or
    (7) Such other matters as may aid in the disposition of the 
administrative proceeding, including the status of settlement 
discussions.
    (b) The Judge in his or her discretion may issue an order showing 
the matters disposed of in such conference, and shall provide a 
transcript of the conference upon the request of a party.

                                Discovery



Sec. 904.240  Discovery generally.

    (a) Preliminary position on issues and procedures (PPIP). Prior to 
hearing the Judge will ordinarily require the parties to submit a 
written PPIP. Except for information regarding a respondent's ability to 
pay an assessed civil penalty, this PPIP will normally obviate the need 
for further discovery.
    (1) The PPIP shall include the following information: A factual 
summary of the case; a summary of all factual and legal issues in 
dispute; a list of all defenses that will be asserted, together with a 
summary of all factual and legal bases supporting each defense; a list 
of all potential witnesses, together with a summary of their anticipated 
testimony; and a list of all potential exhibits.
    (2) The PPIP shall be signed by the party and by an attorney, if one 
is retained. The PPIP shall be served upon all parties, along with a 
copy of each potential exhibit listed in the PPIP.
    (3) A party has the affirmative obligation to supplement the PPIP as 
available information or documentation relevant to the stated charges or 
defenses becomes known to the party.

[[Page 56]]

    (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 civil 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 the 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 provision 
of this section, including any PPIP, 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 of secondary evidence to show what the withheld admission, 
testimony, documents, or other evidence would have shown; or
    (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.



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 on any 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,

[[Page 57]]

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(a).
    (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 5 days of 
service of the questions.
    (d) Use of depositions at hearing. (1) At hearing, part or all of 
any 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.

    (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 must be 
signed by the party or 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 sufficient 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 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

[[Page 58]]

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 15 
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, the 
requesting party may request the U.S. Department of Justice 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 shall be responsible for scheduling the hearing. With 
due regard for the convenience of the parties, their representatives, or 
witnesses, the Judge shall fix the time, place and date for the hearing 
and shall notify all parties of the same. The Judge will promptly serve 
on the parties notice of the time and place of hearing. The hearing will 
not be held less than 20 days after service of the notice of hearing 
unless the hearing is expedited as provided under paragraph (c) of this 
section.
    (b) A request for a change in the time, place, or date of the 
hearing may be granted by the Judge.
    (c) Upon the consent of each party to the administrative proceeding, 
the Judge may order that one or more issues be heard on submissions or 
affidavits if it appears that such issues may be resolved by means of 
written materials and that efficient disposition of those issues can be 
made without an in-person hearing.
    (d) At any time after commencement of an administrative proceeding, 
any party may move to expedite the scheduling of the administrative 
proceeding as provided in Sec. 904.209.



Sec. 904.251  Evidence.

    (a) In general. (1) 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 Sec. 904.204.
    (2) 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 
administrative proceedings, and hearsay evidence is not inadmissible as 
such.
    (3) In any case involving a charged violation of law in which the 
respondent has admitted an allegation, evidence may be taken to 
establish matters of aggravation or mitigation.
    (b) Objections and offers of proof. (1) A party shall state the 
grounds for objection to the admission or exclusion of evidence. Rulings 
on all objections shall appear in the record. Only objections made 
before the Judge may be raised on appeal.
    (2) Whenever evidence is excluded from the record, the party 
offering

[[Page 59]]

such evidence may make an offer of proof, which shall be included in the 
record.
    (c) Testimony. (1) Testimony may be received into evidence by the 
following means:
    (i) Oral presentation; and
    (ii) Subject to the discretion of the Judge, written affidavit, 
telephone, video or other electronic media.
    (2) Regardless of form, all testimony shall be under oath or 
affirmation requiring the witness to declare that the witness will 
testify truthfully, and subject to cross examination.
    (d) Exhibits and documents. (1) All exhibits shall be numbered and 
marked with a designation identifying the sponsor. To prove the content 
of an exhibit, the original writing, recording or photograph is required 
except that a duplicate or copy is admissible to the same extent as an 
original unless a genuine question is raised as to the authenticity of 
the original or, given the circumstances, it would be unfair to admit 
the duplicate in lieu of the original. The original is not required, and 
other evidence of the contents of a writing, recording, or photograph is 
admissible if the original is lost or destroyed, not obtainable, in the 
possession of the opponent, or not closely related to a controlling 
issue. Each exhibit offered in evidence or marked for identification 
shall be filed and retained in the record of decision, unless the Judge 
permits the substitution of copies for the original document.
    (2) In addition to the requirements set forth in Sec. 
904.240(a)(2), parties shall exchange all remaining exhibits that will 
be offered at hearing prior to the beginning of the hearing, except for 
good cause or as otherwise directed by the Judge. Exhibits that are not 
exchanged as required may be denied admission into evidence. This 
requirement does not apply to demonstrative evidence.
    (e) Physical evidence. (1) Photographs or videos or other electronic 
media may be substituted for physical evidence at the discretion of the 
Judge.
    (2) Except upon the Judge's order, or upon request by a party, 
physical evidence will be retained after the hearing by the Agency.
    (f) Stipulations. The parties may, by written stipulation at any 
stage of the administrative proceeding or orally at the hearing, agree 
upon any matters. Stipulations may be received in evidence before or 
during the hearing and, when received in evidence, shall be binding on 
the parties to the stipulation.
    (g) Official notice. The Judge may take official notice of such 
matters as might be judicially noticed by the courts or of other facts 
within the specialized knowledge of the agency as an expert body. Where 
a decision or part thereof rests on official notice of a material fact 
not appearing in the evidence in the record, the fact of official notice 
shall be so stated in the decision, and any party, upon timely request, 
shall be afforded an opportunity to show the contrary.
    (h) Confidential and sensitive information. (1) The Judge may limit 
introduction of evidence or issue protective orders that are required to 
prevent undue disclosure of classified, confidential, or sensitive 
matters, which include, but are not limited to, matters of a national 
security, business, personal, or proprietary nature. Where the Judge 
determines that information in documents containing classified, 
confidential, or sensitive matters should be made available to another 
party, the Judge may direct the offering party to prepare an 
unclassified or non-sensitive summary or extract of the original. The 
summary or extract may be admitted as evidence in the record.
    (2) If the Judge determines that the procedure described in 
paragraph (h)(1) of this section is inadequate and that classified or 
otherwise sensitive matters must form part of the record in order to 
avoid prejudice to a party, the Judge may advise the parties and provide 
opportunity for arrangements to permit a party or representative to have 
access to such matters.
    (i) Foreign law. (1) 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.
    (2) Exhibits in a foreign language must be translated into English 
before

[[Page 60]]

such exhibits are offered into evidence. Copies of both the untranslated 
and translated versions of the proposed exhibits, along with the name 
and qualifications of the translator, must be served on the opposing 
party at least 10 days prior to the hearing unless the parties otherwise 
agree.



Sec. 904.252  Witnesses.

    (a) Fees. Witnesses, other than employees of a Federal agency, 
summoned in an administrative proceeding, including discovery, shall 
receive the same fees and mileage as witnesses in the courts of the 
United States.
    (b) Witness counsel. 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.
    (c) Witness exclusion. Witnesses who are not parties may be excluded 
from the hearing room prior to the taking of their testimony. An 
authorized officer is considered a party for the purposes of this 
subsection.
    (d) Oath or affirmation. Witnesses shall testify under oath or 
affirmation requiring the witness to declare that the witness will 
testify truthfully.
    (e) Failure or refusal to testify. If a witness fails or refuses to 
testify, the failure or refusal to answer any question found by the 
Judge to be proper may be grounds for striking all or part of the 
testimony given by the witness, or any other action deemed appropriate 
by the Judge.
    (f) Testimony in a foreign language. 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 should be court certified under 28 U.S.C. 1827.



Sec. 904.253  Closing of record.

    At the conclusion of the hearing, the evidentiary record shall be 
closed unless the Judge directs otherwise. Once the record is closed, no 
additional evidence shall be accepted except upon a showing that the 
evidence is material and that there was good cause for failure to 
produce it in a timely fashion. The Judge shall reflect in the record, 
however, any approved correction to the transcript.



Sec. 904.254  Interlocutory review.

    (a) Application for interlocutory review shall be made to the Judge. 
The application shall not be certified to the Administrator except when 
the Judge determines that:
    (1) The ruling involves a dispositive question of law or policy 
about which there is substantial ground for difference of opinion; or
    (2) An immediate ruling will materially advance the completion of 
the proceeding; or
    (3) The denial of an immediate ruling will cause irreparable harm to 
a party or the public.
    (b) Any application for interlocutory review shall:
    (1) Be filed with the Judge within 30 days after the Judge's ruling;
    (2) Designate the ruling or part thereof from which appeal is being 
taken;
    (3) Set forth the ground on which the appeal lies; and
    (4) Present the points of fact and law relied upon in support of the 
position taken.
    (c) Any party that opposes the application may file a response 
within 20 days after service of the application.
    (d) The certification to the Administrator by the Judge shall stay 
proceedings before the Judge until the matter under interlocutory review 
is decided.



Sec. 904.255  Ex parte communications.

    (a) Except to the extent required for disposition of ex parte 
matters as authorized by law, the Judge may not consult a person or 
party on any matter relevant to the merits of the administrative 
proceeding, unless there has been notice and opportunity for all parties 
to participate.
    (b) Except to the extent required for the disposition of ex parte 
matters as authorized by law:
    (1) No interested person outside the Agency shall make or knowingly 
cause to be made to the Judge, the Administrator, or any Agency employee 
who is

[[Page 61]]

or may reasonably be expected to be involved in the decisional process 
of the administrative proceeding an ex parte communication relevant to 
the merits of the adjudication; and
    (2) Neither the Administrator, the Judge, nor any Agency employee 
who is or may reasonably be expected to be involved in the decisional 
process of the administrative proceeding, shall make or knowingly cause 
to be made to any interested person outside the agency an ex parte 
communication relevant to the merits of the administrative proceeding.
    (c) The Administrator, the Judge, or any Agency employee who is or 
may reasonably be expected to be involved in the decisional process who 
receives, makes, or knowingly causes to be made a communication 
prohibited by this rule shall place in the record of decision:
    (1) All such written communications;
    (2) Memoranda stating the substance of all such oral communications; 
and
    (3) All written responses, and memoranda stating the substance of 
all oral responses, to the materials described in paragraphs (c)(1) and 
(c)(2) of this section.
    (d)(1) Paragraphs (a), (b) and (c) 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 U.S. 
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.
    (e) Upon receipt of a communication made, or knowingly caused to be 
made, by a party in violation of this section the Judge may, to the 
extent consistent with the interests of justice, national security, the 
policy of underlying statutes, require the party to show cause why its 
claim or interest in the adjudication should not be dismissed, denied, 
disregarded, or otherwise adversely affected by reason of such 
violation.
    (f) The prohibitions of this rule shall apply beginning after 
issuance of a NOVA, NOPS, NIDP or any other notice and until a final 
administrative decision is rendered, but in no event shall they begin to 
apply later than the time at which an administrative proceeding is 
noticed for hearing unless the person responsible for the communication 
has knowledge that it will be noticed, in which case the prohibitions 
shall apply beginning at the time of her/his acquisition of such 
knowledge.

                              Post-Hearing



Sec. 904.260  Recordation of hearing.

    (a) All hearings shall be recorded.
    (b) The official transcript of testimony taken, together with any 
exhibits, briefs, or memoranda of law filed therewith, will be filed 
with the ALJ Docketing Center. Transcripts of testimony will be 
available in any hearing and will be supplied to the parties at the cost 
of the Agency.
    (c) 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 administrative 
proceeding.



Sec. 904.261  Post-hearing briefs.

    (a) The parties may file post-hearing briefs that include proposed 
findings of fact and conclusions of law within 30 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.
    (b) The Judge, in his or her discretion, may establish a different 
date for filing either initial briefs or reply briefs with the court.
    (c) In cases involving few parties, limited issues, and short 
hearings, the Judge may require or a party may request that any proposed 
findings and conclusions and reasons in support be

[[Page 62]]

presented orally at the close of a hearing. In granting such cases, the 
Judge will advise the parties in advance of hearing.

                                Decision



Sec. 904.270  Record of decision.

    (a) The exclusive record of decision consists of the official 
transcript of testimony and administrative proceedings; exhibits 
admitted into evidence; briefs, pleadings, and other documents filed in 
the administrative proceeding; and descriptions or copies of matters, 
facts, or documents officially noticed in the administrative 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 administrative proceeding, which place of storage need not 
necessarily be located physically within the ALJ Docketing Center.



Sec. 904.271  Initial 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 bases therefor, on 
all material issues of fact, law, or discretion presented on the record;
    (2) An order as to the final disposition of the case, including any 
appropriate ruling, order, sanction, relief, or denial thereof;
    (3) The date upon which the decision will become effective; and
    (4) A statement of further right to appeal.
    (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. In such cases, the Judge may 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, the Assistant General Counsel for Enforcement and Litigation, 
and the Administrator by certified mail (return receipt requested), 
facsimile, electronic transmission or third party commercial carrier to 
an addressee's last known address or by personal delivery and upon 
request will promptly certify to the Administrator the record, including 
the original copy of the decision, as complete and accurate.
    (d) An initial decision becomes effective as the final 
administrative decision of NOAA 60 days after service, unless:
    (1) Otherwise provided by statute or regulations;
    (2) The Judge grants a petition for reconsideration under Sec. 
904.272; or
    (3) A petition for discretionary review is filed or the 
Administrator issues an order to review upon his/her own initiative 
under Sec. 904.273.



Sec. 904.272  Petition for reconsideration.

    Unless an order or initial decision of the Judge specifically 
provides otherwise, any party may file a petition for reconsideration of 
an order or initial decision issued by the Judge. Such petitions must 
state the matter claimed to have been erroneously decided, and the 
alleged errors and relief sought must be specified with particularity. 
Petitions must be filed within 20 days after the service of such order 
or initial decision. The filing of a petition for reconsideration shall 
operate as a stay of an order or initial decision or its effectiveness 
date unless specifically so ordered by the Judge. Within 15 days after 
the petition is filed, any party to the administrative proceeding may 
file an answer in support or in opposition.



Sec. 904.273  Administrative review of decision.

    (a) Subject to the requirements of this section, any party who 
wishes to seek review of an initial decision of a Judge must petition 
for review of the initial decision within 30 days after the date the 
decision is served. The petition must be served on the Administrator by 
registered or certified mail,

[[Page 63]]

return receipt requested at the following address: Administrator, 
National Oceanic and Atmospheric Administration, Department of Commerce, 
Room 5128, 14th Street and Constitution Avenue, NW., Washington, DC 
20230. Copies of the petition for review, and all other documents and 
materials required in paragraph (d) of this section, must be served on 
all parties and the Assistant General Counsel for Enforcement and 
Litigation at the following address: Assistant General Counsel for 
Enforcement and Litigation, National Oceanic and Atmospheric 
Administration, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910.
    (b) The Administrator may elect to issue an order to review the 
initial decision without petition and may affirm, reverse, modify or 
remand the Judge's initial decision. Any such order must be issued 
within 60 days after the date the initial decision is served.
    (c) Review by the Administrator of an initial decision is 
discretionary and is not a matter of right. If a party files a timely 
petition for discretionary review, or review is timely undertaken on the 
Administrator's own initiative, the effectiveness of the initial 
decision is stayed until further order of the Administrator or until the 
initial decision becomes final pursuant to paragraph (h) of this 
section.
    (d) A petition for review must comply with the following 
requirements regarding format and content:
    (1) The petition must include a concise statement of the case, which 
must contain a statement of facts relevant to the issues submitted for 
review, and a summary of the argument, which must contain a succinct, 
clear and accurate statement of the arguments made in the body of the 
petition;
    (2) The petition must set forth, in detail, specific objections to 
the initial decision, the bases for review, and the relief requested;
    (3) Each issue raised in the petition must be separately numbered, 
concisely stated, and supported by detailed citations to specific pages 
in the record, and to statutes, regulations, and principal authorities. 
Petitions may not refer to or incorporate by reference entire documents 
or transcripts;
    (4) A copy of the Judge's initial decision must be attached to the 
petition;
    (5) Copies of all cited portions of the record must be attached to 
the petition;
    (6) A petition, exclusive of attachments and authorities, must not 
exceed 20 pages in length and must be in the form articulated in section 
904.206(b); and
    (7) Issues of fact or law not argued before the Judge may not be 
raised in the petition unless such issues were raised for the first time 
in the Judge's 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) The Administrator may deny a petition for review that is 
untimely or fails to comply with the format and content requirements in 
paragraph (d) of this section without further review.
    (f) No oral argument on petitions for discretionary review will be 
allowed.
    (g) Within 30 days after service of a petition for discretionary 
review, any party may file and serve an answer in support or in 
opposition. An answer must comport with the format and content 
requirements in paragraphs (d)(5) through (d)(7) of this section and set 
forth detailed responses to the specific objections, bases for review 
and relief requested in the petition. No further replies are allowed, 
unless requested by the Administrator.
    (h) If the Administrator has taken no action in response to the 
petition within 120 days after the petition is served, said petition 
shall be deemed denied and the Judge's initial decision shall become the 
final agency decision with an effective date 150 days after the petition 
is served.
    (i) If the Administrator issues an order denying discretionary 
review, the 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 agency decision. The Administrator need not give reasons for 
denying review.
    (j) If the Administrator grants discretionary review or elects to 
review the

[[Page 64]]

initial decision without petition, the Administrator will issue an order 
to that effect. Such order may identify issues to be briefed and a 
briefing schedule. Such issues may include one or more of the issues 
raised in the petition for review and any other matters the 
Administrator wishes to review. Only those issues identified in the 
order may be argued in any briefs permitted under the order. The 
Administrator may choose to not order any additional briefing, and may 
instead make a final determination based on any petitions for review, 
any responses and the existing record.
    (k) If the Administrator grants or elects to take discretionary 
review, and after expiration of the period for filing any additional 
briefs under paragraph (j) 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, and is a final agency action 
for purposes of judicial review; except that an Administrator's decision 
to remand the initial decision to the Judge is not final agency action.
    (l) An initial decision shall not be subject to judicial review 
unless:
    (1) The party seeking judicial review has exhausted its opportunity 
for administrative review by filing a petition for review with the 
Administrator in compliance with this section, and
    (2) The Administrator has issued a final ruling on the petition that 
constitutes final agency action under paragraph (k) of this section or 
the Judge's initial decision has become the final agency decision under 
paragraph (h) of this section.
    (m) For purposes of any subsequent judicial review of the agency 
decision, any issues that are not identified in any petition for review, 
in any answer in support or opposition, by the Administrator, or in any 
modifications to the initial decision are waived.
    (n) If an action is filed for judicial review of a final agency 
decision, and the decision is vacated or remanded by a court, the 
Administrator shall issue an order addressing further administrative 
proceedings in the matter. Such order may include a remand to the Chief 
Administrative Law Judge for further proceedings consistent with the 
judicial decision, or further briefing before the Administrator on any 
issues the Administrator deems appropriate.



                 Subpart D_Permit Sanctions and Denials

                                 General



Sec. 904.300  Scope and applicability.

    (a) This subpart sets forth 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. 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 of this part 
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.



Sec. 904.301  Bases for permit 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 
include but are not limited to the following:
    (1) The commission of any violation prohibited by any statute 
administered by NOAA, including violation of any 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;
    (3) The failure to pay a criminal fine imposed or to satisfy any 
other liability incurred in a judicial proceeding

[[Page 65]]

under any of the statutes administered by NOAA; or
    (4) The failure to comply with any term of a settlement agreement.
    (b) A permit sanction may be imposed, or a permit denied, under this 
subpart with respect to the particular permit pertaining to the 
violation or nonpayment, and may also be applied to any NOAA permit held 
or sought by the permit holder or successor in interest to the permit, 
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 
Exclusive Economic Zone with Captain X aboard. (See Sec. 904.320(c)).
    (c) A permit sanction may not be extinguished by sale or transfer. A 
vessel's permit sanction is not extinguished by sale or transfer of the 
vessel, nor by dissolution or reincorporation of a vessel owner 
corporation, and shall remain with the vessel until lifted by NOAA.



Sec. 904.302  Notice of permit sanction (NOPS).

    (a) A NOPS will be served on the permit holder as provided in Sec. 
904.3. 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 permit sanction to be imposed, the 
bases for the permit sanction, and any opportunity for a hearing. It 
will state the effective date of the permit sanction, which will 
ordinarily not be earlier than 30 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 permit sanction has taken 
effect. The effectiveness of the permit sanction, however, does not 
depend on surrender of the permit.



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

    (a) NOAA may issue a NIDP if the permit applicant has been charged 
with a violation of a statute, regulation, or permit administered by 
NOAA, for failure to pay a civil penalty or criminal fine, or for 
failure to comply with any term of a settlement agreement.
    (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. 
904.3.
    (c) NOAA will not refund any fee(s) submitted with a permit 
application if a NIDP is issued.
    (d) A 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, as governed by Sec. 904.201.
    (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 an 
administrative or judicial proceeding, whether or not the permit holder 
did participate, and whether or not such a hearing was held.



Sec. 904.305  Final administrative decision.

    (a) If no request for hearing is timely filed as provided in Sec. 
904.201(a), the NOPS or NIDP becomes effective as the final 
administrative decision and order

[[Page 66]]

of NOAA 30 days after service of the NOPS or NIDP or on the last day of 
any delay period granted.
    (b) If a request for hearing is timely filed in accordance with 
Sec. 904.201(a), the date of the final administrative decision is as 
provided in subpart C of this part.

                   Permit Sanctions for Noncompliance



Sec. 904.310  Nature of permit sanctions.

    (a) NOAA may suspend, modify, or deny 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 civil penalty, or has failed to comply with any term of a 
settlement 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-Stevens 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 of the conditions in paragraph (a) of this section is 
applicable.



Sec. 904.311  Compliance.

    If the permit holder pays the criminal fine or civil 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 
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.

                     Permit Sanction for Violations



Sec. 904.320  Nature of permit 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-Stevens 
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 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, a 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:
    (1) After review of the factual basis of the alleged violation, 
following an opportunity for the parties to submit

[[Page 67]]

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 violation.

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



Sec. 904.402  Procedures.

    (a) Any person authorized to enforce the laws listed in Sec. 
904.1(c) or Agency counsel may issue a written warning to a respondent 
as provided in Sec. 904.3.
    (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 respondent of its effect in the event of a future 
violation; and
    (4) Inform the respondent 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 respondent 
previously committed a similar violation for which a written warning was 
issued or other enforcement action was taken, NOAA may withdraw the 
warning and commence other administrative or judicial proceedings.



Sec. 904.403  Review and appeal of a written warning.

    (a) If a respondent receives a written warning from an authorized 
officer, the respondent may seek review by Agency counsel. The request 
for review must be in writing and must present the facts and 
circumstances that explain or deny the violation described in the 
written warning. The request for review must be filed at the NOAA Office 
of the Assistant General Counsel for Enforcement and Litigation, 8484 
Georgia Avenue, Suite 400, Silver Spring, MD 20910, within 60 days of 
receipt of the written warning. Agency counsel may, in his or her 
discretion, affirm, vacate, or modify the written warning and will 
notify the respondent of his or her determination. The Agency counsel's 
determination constitutes the final agency action, unless it is appealed 
pursuant to paragraph (b) of this section.
    (b) If a respondent receives a written warning from Agency counsel, 
or receives a determination from Agency counsel affirming a written 
warning issued by an authorized officer, the respondent may appeal to 
the NOAA Deputy General Counsel. The appeal must be filed at the NOAA 
Office of the General Counsel, Herbert Hoover Office Building, 14th & 
Constitution Avenue, NW., Washington, DC 20230, within 60 days of 
receipt of the written warning issued by Agency counsel, or the 
determination from Agency counsel affirming a written warning issued by 
an authorized officer.

[[Page 68]]

    (1) An appeal from an Agency counsel issued written warning must be 
in writing and must present the facts and circumstances that explain or 
deny the violation described in the written warning.
    (2) An appeal from an Agency counsel's determination affirming a 
written warning issued by an authorized officer must be in writing and 
include a copy of the Agency counsel's determination affirming the 
written warning.
    (c) The NOAA Deputy General Counsel may, in his or her discretion, 
affirm, vacate, or modify the written warning and will notify the 
respondent of the determination. The NOAA Deputy General Counsel's 
determination constitutes the final agency action.



               Subpart F_Seizure and Forfeiture Procedures



Sec. 904.500  Purpose and scope.

    (a) This subpart sets forth procedures governing the release, 
abandonment, forfeiture, remission of forfeiture, or return of seized 
property (including 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 of this part. 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.

    Within 60 days from the date of the seizure, NOAA will serve the 
Notice of Seizure as provided in Sec. 904.3 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. In cases where 
the property is seized by a state or local law enforcement agency; a 
Notice of Seizure will be given in the above manner within 90 days from 
the date of the seizure. The Notice will describe the seized property 
and state the time, place and reason for the seizure, including the 
provisions of law alleged to have been violated. The Notice will inform 
each interested party of his or her right to file a claim to the seized 
property, and state a date by which a claim must be filed, which may not 
be less than 35 days after service of the Notice. The Notice may be 
combined with a Notice of the sale of perishable fish issued under Sec. 
904.505. If a claim is filed the case will be referred promptly to the 
U.S. Department of Justice for institution of judicial proceedings.



Sec. 904.502  Bonded release of seized property.

    (a) As authorized by applicable statute, at any time after seizure 
of any property, 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. 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.
    (b) Property may be released under this section only if possession 
thereof will not violate or frustrate the purpose or policy of any 
applicable law or regulation. Property that will not be released 
includes, but is not limited to:
    (1) Property in which NOAA is not satisfied that the requester has a 
substantial interest;
    (2) Property whose entry into the commerce of the United States is 
prohibited;
    (3) Live animals, except in the interest of the animals' welfare; or
    (4) 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.
    (c) If NOAA grants the request, the amount paid by the requester 
will be deposited in a NOAA expense 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 requester 
constitutes a waiver by requester of any claim rising from the seizure 
and custody of the property. NOAA will maintain the money so deposited 
pending further order of NOAA,

[[Page 69]]

order of a court, or disposition by applicable administrative 
proceedings.
    (d) A request for release need not be in any particular form, but 
must set forth the following:
    (1) A description of the property seized;
    (2) The date and place of the seizure;
    (3) The requester's interest in the property, supported as 
appropriate by bills of sale, contracts, mortgages, or other 
satisfactory evidence;
    (4) The facts and circumstances relied upon by the requester to 
justify the remission or mitigation;
    (5) An offer of payment to protect the United States' interest that 
requester makes in return for release;
    (6) The signature of the requester, his or her attorney, or other 
authorized agent; and
    (7) A request 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).



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.



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 $500,000 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, U.S. 
District Court, or the U.S. 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, as provided in Sec. 
904.3, on each person whose identity, address 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, including the 
provisions of law allegedly violated; and
    (iii) Describe the rights of an interested person to file a claim to 
the property (including the right 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 30 days of the date the final 
Notice was published or posted. The claim must state the claimant's 
interest in the property.
    (ii) Filing a claim does not entitle the claimant to possession of 
the property. However, it does stop administrative forfeiture 
proceedings.
    (iii) If the claim is timely filed in accordance with this section, 
NOAA will refer the matter to the U.S. Department of Justice to 
institute forfeiture proceedings in the appropriate U.S. District Court.
    (4) If a claim is not filed within 30 days of the date the final 
Notice is published or posted in accordance with this section, NOAA will 
declare the property forfeited. The Declaration of Forfeiture will be in 
writing and will be served as provided in Sec. 904.3, on each person 
whose identity and address and prior interest in the seized property are 
known or easily ascertainable. The Declaration will describe the 
property and state the time, place, and reason for its seizure, 
including the provisions

[[Page 70]]

of law violated. The Declaration will identify the Notice of Proposed 
Forfeiture, describing the dates and manner of publication of the Notice 
and any efforts made to serve the Notice as provided in Sec. 904.3. The 
Declaration will state that in response to the Notice a proper claim was 
not timely received by the proper office from any claimant, and that 
therefore all potential claimants are deemed to admit the truth of the 
allegations of the Notice. The Declaration shall conclude with an order 
of condemnation and forfeiture of the property to the United States for 
disposition according to law. All forfeited property will be subject to 
disposition as authorized by law and regulations of NOAA.
    (5) If the appraised value of the property is more than $500,000, or 
a timely and satisfactory claim for property appraised at $500,000 or 
less is submitted to NOAA, the matter will be referred to the U.S. 
Department of Justice to institute in rem proceedings in the appropriate 
U.S. 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 as provided under Sec. 904.3, 
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 same 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.
    (e) Seizure and sale of fish is without prejudice to any other 
remedy or sanction authorized by law.



Sec. 904.506  Remission of forfeiture and restoration of proceeds of sale.

    (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, and from potential 
forfeiture of seized property, under any statute administered by NOAA 
that authorizes the remission or mitigation of forfeitures.
    (2) Although NOAA may properly consider a petition for remission or 
mitigation of forfeiture and restoration of proceeds of sale along with 
other consequences of a violation, the remission or mitigation of a 
forfeiture and restoration of proceeds is not dispositive of any 
criminal charge filed, civil penalty assessed, or permit sanction 
proposed, unless NOAA expressly so states. Remission or mitigation of 
forfeiture and restoration of proceeds 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) 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 U.S. Government for any costs that by law may be paid from 
such sums.
    (4) If NOAA remits the forfeiture and the forfeited property has not 
been sold, then restoration may be conditioned upon payment of any 
applicable costs as defined in this subpart.
    (b) Petition for relief from forfeiture. (1) Any person claiming an 
interest in any property which has been or may be administratively 
forfeited under the provisions of this section may, at any time after 
seizure of the property, but no later than 90 days after the date of

[[Page 71]]

forfeiture, petition the Assistant General Counsel for Enforcement and 
Litigation, NOAA/GCEL, 8484 Georgia Avenue, Suite 400, Silver Spring, 
Maryland 20910, for a remission or mitigation of the forfeiture and 
restoration of the proceeds of such sale, or such part thereof as may be 
claimed by the petitioner.
    (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 of forfeiture and restoration of 
proceeds. If the claim is made after the property is forfeited, the 
petitioner must provide satisfactory proof that the petitioner did not 
know of the seizure prior to the declaration or condemnation of 
forfeiture, was in such circumstances as prevented him or her from 
knowing of the same, and that such forfeiture was incurred without any 
willful negligence or intention to violate the applicable statute on the 
part of the petitioner; and
    (v) The signature of the petitioner, his or her attorney, or other 
authorized agent.
    (3) NOAA will not consider a petition for remission or mitigation of 
forfeiture and restoration of proceeds while a forfeiture proceeding is 
pending in Federal court. Once such a case is referred to the U.S. 
Department of Justice for institution of judicial proceedings, and until 
the proceedings are completed, any petition received by NOAA will be 
forwarded to the U.S. Department of Justice for consideration.
    (4) 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) Determination of petition. (1) After investigation under 
paragraph (c) of this section, NOAA will make a determination on the 
matter and notify the petitioner. NOAA may remit or mitigate the 
forfeiture, on such terms and conditions as are deemed reasonable and 
just under the applicable statute and the circumstances.
    (2) Unless NOAA determines no valid purpose would be served, NOAA 
will condition a determination to remit or mitigate a forfeiture upon 
the petitioner's submission of 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 and restoration 
of proceeds. 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 determination. A determination by NOAA to 
remit or mitigate the forfeiture and restore the proceeds upon stated 
conditions, as upon payment of a specified amount, will be effective for 
60 days after the date of the determination. If the petitioner does not 
comply with the conditions within that period in a manner prescribed by 
the determination, or make arrangements satisfactory to NOAA for later 
compliance, the remission or mitigation and restoration of proceeds will 
be void, and judicial or administrative forfeiture proceedings will be 
instituted or resumed.
    (f) Appropriated property. If forfeited property that is the subject 
of a claim for restoration of proceeds has been appropriated for 
official use, retention by the U.S. Government will be regarded as a 
sale for the purposes of this section.



Sec. 904.507  Recovery of certain storage costs.

    If any fish, wildlife, or evidentiary property is seized and 
forfeited under the Endangered Species Act, 16 U.S.C.

[[Page 72]]

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



Sec. 904.508  Voluntary forfeiture by abandonment.

    (a) The owner of seized property may voluntarily forfeit all right, 
title, and interest in the property by abandoning it to NOAA. Voluntary 
forfeiture by abandonment under this section may be accomplished by 
various means, including, but not limited to: expressly waiving any 
claim to the property by voluntarily relinquishing any right, title, and 
interest by written agreement or otherwise; or refusing or otherwise 
avoiding delivery of returned property; or failing to respond within 90 
days of service of any certified or registered notice regarding a return 
of seized property issued under Sec. 904.510(b).
    (b) Property will be declared finally forfeited by abandonment, 
without recourse, upon a finding of abandonment by NOAA.



Sec. 904.509  Disposal of forfeited property.

    (a) Delivery to Administrator. Upon forfeiture of any fish, 
wildlife, parts or products thereof, or other property to the United 
States, including 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) Disposal. Disposal may be accomplished by one of the following 
means unless the property is the subject of a petition for remission or 
mitigation of forfeiture or disposed of by court order:
    (1) Return to the wild;
    (2) Use by NOAA or transfer to another government agency for 
official use;
    (3) Donation or loan;
    (4) Sale; or
    (5) Destruction.
    (c) Purposes of disposal. Disposal procedures may be used to 
alleviate overcrowding of evidence storage facilities; to avoid the 
accumulation of seized property where disposal is not otherwise 
accomplished by court order; to address the needs of governmental 
agencies and other institutions and organizations for such property for 
scientific, educational, and public display purposes; and for other 
valid reasons. In no case will property be used for personal purposes, 
either by loan recipients or government personnel.
    (d) Disposal of evidence. Property that is 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 property may be authorized 
for disposal sooner.
    (e) Loans--(1) To institutions. Property approved for disposal may 
be loaned to institutions or organizations requesting such property for 
scientific, educational, or public display purposes. Property will be 
loaned only after execution of a loan agreement which provides, among 
other things, that the loaned property will be used only for 
noncommercial scientific, educational, or public display purposes, and 
that it will remain the property of the U.S.

[[Page 73]]

Government, which may demand its return at any time. Parties requesting 
the loan of property must demonstrate the ability to provide adequate 
care and security for the property. 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. Property generally will not be loaned to 
individuals not affiliated with an institution or organization unless it 
is clear that the property 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 property will be 
chosen so as to assure a wide distribution of the property 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 
property 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 property 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.
    (4) Loan agreement. Property will be transferred under a loan 
agreement executed by the Administrator and the borrower. Any attempt on 
the part of the borrower to retransfer property, even to another 
institution for related purposes, will violate and invalidate the loan 
agreement, and entitle the United States to immediate repossession of 
the property, 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 civil penalties provided by the laws 
governing possession and transfer of the property.
    (5) Temporary reloans; documents to accompany property. 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 property whenever it is temporarily reloaned 
or is shipped or transported across state or international boundaries.
    (f) Sale. (1) Any fish, wildlife, parts or products thereof, and 
other property which has been voluntarily forfeited by abandonment to 
NOAA may be sold or offered for sale, with the exception of any species 
or property which is otherwise prohibited from being sold at the time it 
is to be sold or offered for sale.
    (2) Property will be sold in accordance with current Federal 
Property Management Regulations (41 CFR chapter 101) or U.S. Customs 
laws and regulations, except that NOAA may:
    (i) Sell at fair market value perishable fish pursuant to the 
summary sales provisions of 15 CFR 904.505; and
    (ii) Sell, destroy, or otherwise dispose of property for which it is 
determined the expense of keeping it is disproportionate to the value 
thereof.
    (3) The proceeds of sale may be used to reimburse NOAA for any costs 
which by law NOAA is authorized to recover or to pay any rewards which 
by law may be paid from sums that NOAA receives.
    (g) Destruction. (1) Property not otherwise disposed of may be 
destroyed.
    (2) Destruction will be accomplished in accordance with the 
requirements of 41 CFR parts 101 through 145.
    (3) When destroyed, the fact, manner, and date of destruction and 
the type and quantity destroyed must be certified by the official 
actually destroying the property.
    (4) No duly authorized officer of NOAA shall be liable for the 
destruction or other disposition of property made pursuant to this 
section.

[[Page 74]]

    (h) Recordkeeping. A disposal form will be completed each time 
property is disposed of pursuant to the policy and procedure established 
herein, and will be retained in the case file for the property. These 
forms will be available to the public.



Sec. 904.510  Return of seized property.

    (a) Return. In cases where NOAA, in its sole discretion, determines 
that forfeiture of seized property would not be in the best interest of 
the U.S. Government, NOAA will make a reasonable attempt to determine 
the party that the facts of record indicate has a predominant ownership 
interest in the seized property and, provided such a determination can 
be made, will arrange for return of the seized property to that party by 
appropriate means.
    (b) Notice. NOAA will serve a Notice of the Return of property as 
provided by Sec. 904.3, to the owner, consignee, or other party the 
facts of record indicate has an interest in the seized property. The 
Notice will describe the seized property, state the time, place, and 
reason for the seizure and return, and will identify the owner or 
consignee, and if appropriate, the bailee of the seized property. The 
Notice of the return also will state that the party to whom the property 
is being returned is responsible for any distribution of the property to 
any party who holds a valid claim, right, title or interest in receiving 
the property, in whole or in part. The Notice also will provide that on 
presentation of the Notice and proper identification, and the signing of 
a receipt provided by NOAA, the seized property is authorized to be 
released.



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, 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;

[[Page 75]]

    (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.



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.

[[Page 76]]

    (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 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

[[Page 77]]

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 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:

[[Page 78]]

    (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.
    (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

[[Page 79]]

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.



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

[[Page 80]]

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 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

[[Page 81]]

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_MARINE DEBRIS--Table of Contents




    Authority: 33 U.S.C. 1951-1958 (2006).



Sec. 909.1  Definition of marine debris for the purposes of the Marine
Debris Research, Prevention, and Reduction Act.

    (a) Marine debris. For the purposes of the Marine Debris Research, 
Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine 
debris is defined as any persistent solid material that is manufactured 
or processed and directly or indirectly, intentionally or 
unintentionally, disposed of or abandoned into the marine environment or 
the Great Lakes.
    (b) NOAA and the Coast Guard have jointly promulgated the definition 
of marine debris in this part. Coast Guard's regulation may be found in 
33 CFR 151.3000.

[74 FR 45560, Sept. 3, 2009]



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.
911.8 Technical requirements.

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


[[Page 82]]


    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 Participating Agency, 
Japan or a European Organization for the Exploitation of Meteorological 
Satellites (EUMETSAT) member state; or also, in

[[Page 83]]

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 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

[[Page 84]]

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 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

[[Page 85]]

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 86]]



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


[68 FR 45161, Aug. 1, 2003]

[[Page 87]]



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


[68 FR 45162, Aug. 1, 2003]

[[Page 88]]



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 89]]

    (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 90]]

    (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 91]]

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.

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    (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 93]]

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 94]]

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 95]]



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 96]]

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 97]]

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 98]]

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 99]]

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.

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           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 101]]

    (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 102]]

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 103]]

    (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 104]]

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 105]]



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 106]]

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 107]]

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 108]]

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 109]]

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 110]]

    (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 111]]



         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 112]]

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 113]]

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 114]]

    (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 115]]

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 116]]

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 117]]

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.



    Sec. 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 118]]

                               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.

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[GRAPHIC] [TIFF OMITTED] TC12SE91.000



 Sec. 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 120]]

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

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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 122]]

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

[[Page 123]]

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 124]]

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 125]]

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 Definitions.
922.72 Prohibited or otherwise regulated activities--Sanctuary-wide.
922.73 Additional prohibited or otherwise regulated activities--marine 
          reserves and marine conservation area.
922.74 Permit procedures and issuance criteria.

Appendix A to Subpart G of Part 922--Channel Islands National Marine 
          Sanctuary Boundary Coordinates
Appendix B to Subpart G of Part 922--Marine Reserve Boundaries
Appendix C to Subpart G of Part 922--Marine Conservation Area Boundary

       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 issuance criteria.
922.84 Certification of other permits.

Appendix A to Subpart H of Part 922--Gulf of the Farallones National 
          Marine Sanctuary Boundary Coordinates
Appendix B to Subpart H of Part 922--2 nmi From the Farallon Islands 
          Boundary Coordinates
Appendix C to Subpart H of Part 922--No-Anchoring Seagrass Protection 
          Zones in Tomales Bay

             Subpart I_Gray's Reef National Marine Sanctuary

922.90 Boundary.
922.91 Definitions.
922.92 Prohibited or otherwise regulated activities.
922.93 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 Definitions.
922.112 Prohibited or otherwise regulated activities.
922.113 Permit procedures and issuance criteria.

Appendix A to Subpart K of Part 922--Cordell Bank National Marine 
          Sanctuary Boundary Coordinates
Appendix B to Subpart K of Part 922--Line Representing the 50-Fathom 
          Isobath Surrounding Cordell Bank

         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--Zones Within the Sanctuary Where 
          Overflights Below 1000 Feet Are Prohibited
Appendix C to Subpart M of Part 922--Dredged Material Disposal Sites 
          Within the Sanctuary
Appendix D to Subpart M of Part 922--Dredged Material Disposal Sites 
          Adjacent to the Monterey Bay National Marine Sanctuary
Appendix E to Subpart M of Part 922--Motorized Personal Watercraft Zones 
          and Access Routes Within the Sanctuary
Appendix F to Subpart M of Part 922--Davidson Seamount Management Zone

[[Page 126]]

           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.

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 [Reserved]

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

   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 and at 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

[[Page 127]]

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, 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,

[[Page 128]]

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.
    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.

[[Page 129]]

    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 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

[[Page 130]]

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 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.

[[Page 131]]



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 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

[[Page 132]]

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]



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

[[Page 133]]

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 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

[[Page 134]]

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 
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,

[[Page 135]]

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
    (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.

[[Page 136]]



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;
    (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 approximately 1,110 square nautical miles (nmi) of coastal 
and ocean

[[Page 137]]

waters, and the submerged lands thereunder, off the southern coast of 
California. The Sanctuary boundary begins at the Mean High Water Line of 
and extends seaward to a distance of approximately six nmi from the 
following islands and offshore rocks: San Miguel Island, Santa Cruz 
Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, 
Richardson Rock, and Castle Rock (the Islands). The seaward boundary 
coordinates are listed in Appendix A to this subpart.

[74 FR 3260, Jan. 16, 2009]



Sec. 922.71  Definitions.

    In addition to those definitions found at 15 CFR 922.3, the 
following definitions apply to this subpart:
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Graywater means galley, bath, or shower water.
    Introduced species means any species (including but not limited to 
any of its biological matter capable of propagation) that is non-native 
to the ecosystems of the Sanctuary; or any organism into which altered 
genetic matter, or genetic matter from another species, has been 
transferred in order that the host organism acquires the genetic traits 
of the transferred genes.
    Motorized personal watercraft means a vessel, usually less than 16 
feet in length, which uses an inboard, internal combustion engine 
powering a water jet pump as its primary source of propulsion. The 
vessel is intended to be operated by a person or persons sitting, 
standing or kneeling on the vessel, rather than within the confines of 
the hull. The length is measured from end to end over the deck excluding 
sheer, meaning a straight line measurement of the overall length from 
the foremost part of the vessel to the aftermost part of the vessel, 
measured parallel to the centerline. Bow sprits, bumpkins, rudders, 
outboard motor brackets, and similar fittings or attachments, are not 
included in the measurement. Length is stated in feet and inches.
    Oceangoing ship means a private, commercial, government, or military 
vessel of 300 gross registered tons or more, not including cruise ships.
    Pelagic finfish are defined as: Northern anchovy (Engraulis mordax), 
barracudas (Sphyraena spp.), billfishes (family Istiophoridae), 
dolphinfish (Coryphaena hippurus), Pacific herring (Clupea pallasi), 
jack mackerel (Trachurus symmetricus), Pacific mackerel (Scomber 
japonicus), salmon (Oncorhynchus spp.), Pacific sardine (Sardinops 
sagax), blue shark (Prionace glauca), salmon shark (Lamna ditropis), 
shortfin mako shark (Isurus oxyrinchus), thresher sharks (Alopias spp.), 
swordfish (Xiphias gladius), tunas (family Scombridae), and yellowtail 
(Seriola lalandi).
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely covered and lashed 
to a deck or bulkhead, tied down, unbaited, unloaded, or partially 
disassembled (such as spear shafts being kept separate from spear guns).

[74 FR 3260, Jan. 16, 2009]



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

    (a) Except as specified in paragraphs (b) through (e) of this 
section, the following activities are prohibited and thus unlawful for 
any person to conduct or cause to be conducted:
    (1) Exploring for, developing, or producing hydrocarbons within the 
Sanctuary, except pursuant to leases executed prior to March 30, 1981, 
and except the laying of pipeline pursuant to exploring for, developing, 
or producing hydrocarbons.
    (2) Exploring for, developing, or producing minerals within the 
Sanctuary, except producing by-products incidental to hydrocarbon 
production allowed by paragraph (a)(1) of this section.
    (3)(i) Discharging or depositing from within or into the Sanctuary 
any material or other matter except:
    (A) Fish, fish parts, or chumming materials (bait) used in or 
resulting from lawful fishing activity within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity within the Sanctuary;
    (B) For a vessel less than 300 gross registered tons (GRT), or an 
oceangoing ship without sufficient holding tank capacity to hold sewage 
while within the Sanctuary, biodegradable

[[Page 138]]

effluent generated incidental to vessel use by an operable Type I or II 
marine sanitation device (U.S. Coast Guard classification) approved in 
accordance with section 312 of the Federal Water Pollution Control Act, 
as amended, (FWPCA), 33 U.S.C. 1321 et seq. Vessel operators must lock 
all marine sanitation devices in a manner that prevents discharge or 
deposit of untreated sewage;
    (C) Biodegradable matter from:
    (1) Vessel deck wash down;
    (2) Vessel engine cooling water;
    (3) Graywater from a vessel less than 300 gross registered tons;
    (4) Graywater from an oceangoing ship without sufficient holding 
tank capacity to hold graywater while within the Sanctuary;
    (D) Vessel engine or generator exhaust;
    (E) Effluent routinely and necessarily discharged or deposited 
incidental to hydrocarbon exploration, development, or production 
allowed by paragraph (a)(1) of this section; or
    (F) Discharge allowed under section 312(n) of the FWPCA.
    (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)(3)(i)(B) through (F) of this section and fish, 
fish parts, or chumming materials (bait) used in or resulting from 
lawful fishing activity beyond the boundary of the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity there.
    (4) Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing or placing any structure, 
material, or other matter on or in the submerged lands of the Sanctuary, 
except as incidental to and necessary to:
    (i) Anchor a vessel;
    (ii) Install an authorized navigational aid;
    (iii) Conduct lawful fishing activity;
    (iv) Lay pipeline pursuant to exploring for, developing, or 
producing hydrocarbons; or
    (v) Explore for, develop, or produce hydrocarbons as allowed by 
paragraph (a)(1) of this section.
    (5) Abandoning any structure, material, or other matter on or in the 
submerged lands of the Sanctuary.
    (6) Except to transport persons or supplies to or from any Island, 
operating within one nmi of any Island any vessel engaged in the trade 
of carrying cargo, including, but not limited to, tankers and other bulk 
carriers and barges, any vessel engaged in the trade of servicing 
offshore installations, or any vessel of three hundred gross registered 
tons or more, except fishing or kelp harvesting vessels.
    (7) Disturbing a seabird or marine mammal by flying a motorized 
aircraft at less than 1,000 feet over the waters within one nmi of any 
Island, except (if allowed under paragraph (a)(9) of this section):
    (i) To engage in kelp bed surveys; or
    (ii) to transport persons or supplies to or from an Island.
    (8) Moving, removing, injuring, or possessing, or attempting to 
move, remove, injure, or possess a Sanctuary historical resource.
    (9) Taking any marine mammal, sea turtle, or seabird within or above 
the Sanctuary, except as authorized by the Marine Mammal Protection Act, 
as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as 
amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as 
amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, 
promulgated under the MMPA, ESA, or MBTA.
    (10) Possessing within the Sanctuary (regardless of where taken 
from, moved, or removed from) any marine mammal, sea turtle, or seabird, 
except as authorized by the MMPA, ESA, MBTA, or any regulation, as 
amended, promulgated under the MMPA, ESA, or MBTA.
    (11) Marking, defacing, damaging, moving, removing, or tampering 
with any sign, notice, or placard, whether temporary or permanent, or 
any monument, stake, post, or other boundary marker related to the 
Sanctuary.
    (12) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped

[[Page 139]]

bass (Morone saxatilis) released during catch and release fishing 
activity.
    (13) Operating a motorized personal watercraft within waters of the 
Sanctuary that are coextensive with the Channel Islands National Park, 
established by 16 U.S.C. 410(ff).
    (b)(1) The prohibitions in paragraphs (a)(3) through (13) of this 
section and in Sec. 922.73 do not apply to military activities carried 
out by DOD as of the effective date of these regulations and 
specifically identified in section 3.5.9 (Department of Defense 
Activities) of the Final Channel Islands National Marine Sanctuary 
Management Plan/Final Environmental Impact Statement (FMP/FEIS), Volume 
II: Environmental Impact Statement, 2008, authored and published by NOAA 
(``pre-existing activities''). Copies of the document are available from 
the Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa 
Barbara, CA 93109. Other military activities carried out by DOD may be 
exempted by the Director after consultation between the Director and 
DOD.
    (2) A military activity carried out by DOD as of the effective date 
of these regulations and specifically identified in the section entitled 
``Department of Defense Activities'' of the FMP/FEIS is not considered a 
pre-existing activity if:
    (i) It is modified in such a way that requires the preparation of an 
environmental assessment or environmental impact statement under the 
National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to a 
Sanctuary resource or quality;
    (ii) It is modified, including but not limited to changes in 
location or frequency, in such a way that its possible adverse effects 
on Sanctuary resources or qualities are significantly greater than 
previously considered for the unmodified activity;
    (iii) It is modified, including but not limited to changes in 
location or frequency, in such a way that its possible adverse effects 
on Sanctuary resources or qualities are significantly different in 
manner than previously considered for the unmodified activity; or
    (iv) There are new circumstances or information relevant to a 
Sanctuary resource or quality that were not addressed in the FMP/FEIS.
    (3) In the event of destruction of, loss of, or injury to a 
Sanctuary resource or quality resulting from an incident, including, but 
not limited to, discharges, deposits, and groundings, caused by a DOD 
activity, DOD, in coordination with the Director, must promptly prevent 
and mitigate further damage and must restore or replace the Sanctuary 
resource or quality in a manner approved by the Director.
    (4) All DOD activities must be carried out in a manner that avoids 
to the maximum extent practicable any adverse impacts on Sanctuary 
resources and qualities.
    (c) The prohibitions in paragraphs (a)(3) through (10), (a)(12), and 
(a)(13) of this section and in Sec. 922.73 do not apply to any activity 
conducted under and in accordance with the scope, purpose, terms, and 
conditions of a National Marine Sanctuary permit issued pursuant to 15 
CFR 922.48 and 922.74.
    (d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) 
of this section and in Sec. 922.73 do not apply to any activity 
necessary to respond to an emergency threatening life, property, or the 
environment.
    (e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) 
of this section and in Sec. 922.73 do not apply to any activity 
necessary for valid law enforcement purposes in the Sanctuary.

[74 FR 3260, Jan. 16, 2009]



Sec. 922.73  Additional prohibited or otherwise regulated 
activities--marine reserves and marine conservation area.

    (a) Marine reserves. Unless prohibited by 50 CFR part 660 (Fisheries 
off West Coast States), the following activities are prohibited and thus 
unlawful for any person to conduct or cause to be conducted within a 
marine reserve described in Appendix B to this subpart, except as 
specified in paragraphs (b) through (e) of Sec. 922.72:
    (1) Harvesting, removing, taking, injuring, destroying, collecting, 
moving, or causing the loss of any Sanctuary resource, or attempting any 
of these activities.

[[Page 140]]

    (2) Possessing fishing gear on board a vessel unless such gear is 
stowed and not available for immediate use.
    (3) Possessing any Sanctuary resource, except legally harvested fish 
on board a vessel at anchor or in transit.
    (b) Marine conservation area. Unless prohibited by 50 CFR part 660 
(Fisheries off West Coast States), the following activities are 
prohibited and thus unlawful for any person to conduct or cause to be 
conducted within the marine conservation area described in Appendix C to 
this subpart, except as specified in paragraphs (b) through (e) of Sec. 
922.72:
    (1) Harvesting, removing, taking, injuring, destroying, collecting, 
moving, or causing the loss of any Sanctuary resource, or attempting any 
of these activities, except:
    (i) Recreational fishing for pelagic finfish; or
    (ii) Commercial and recreational fishing for lobster.
    (2) Possessing fishing gear on board a vessel, except legal fishing 
gear used to fish for lobster or pelagic finfish, unless such gear is 
stowed and not available for immediate use.
    (3) Possessing any Sanctuary resource, except legally harvested 
fish.

[74 FR 3260, Jan. 16, 2009]



Sec. 922.74  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec. 
922.72(a)(3) through (10), (a)(12), and (a)(13), and Sec. 922.73, if 
such activity is specifically authorized by, and conducted in accordance 
with the scope, purpose, terms, and conditions of, a permit issued under 
Sec. 922.48 and this section.
    (b) The Director, at his or her sole discretion, may issue a permit, 
subject to terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec. 922.72(a)(3) through (10), 
(a)(12), and (a)(13), and Sec. 922.73, if the Director finds that the 
activity:
    (1) Is appropriate research designed to further understanding of 
Sanctuary resources and qualities;
    (2) Will further the educational value of the Sanctuary;
    (3) Will further salvage or recovery operations in or near the 
Sanctuary in connection with a recent air or marine casualty;
    (4) Will assist in managing the Sanctuary; or
    (5) Will further salvage or recovery operations in connection with 
an abandoned shipwreck in the Sanctuary title to which is held by the 
State of California.
    (c) The Director may not issue a permit under Sec. 922.48 and this 
section unless the Director also finds that:
    (1) The proposed activity will have at most short-term and 
negligible adverse effects on Sanctuary resources and qualities;
    (2) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (3) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (4) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (5) The methods and procedures proposed by the applicant are 
appropriate to achieve the goals of the proposed activity, especially in 
relation to the potential effects of the proposed activity on Sanctuary 
resources and qualities;
    (6) 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 potential 
indirect, secondary, or cumulative effects of the activity, and the 
duration of such effects;
    (7) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary as a source of recreation and as a 
source of educational and scientific information, considering the extent 
to which the conduct of the activity may result in conflicts between 
different users of the Sanctuary and the duration of such effects;
    (8) It is necessary to conduct the proposed activity within the 
Sanctuary;
    (9) The reasonably expected end value of the proposed activity 
furthers Sanctuary goals and purposes and outweighs any potential 
adverse effects on Sanctuary resources and qualities from the conduct of 
the activity; and

[[Page 141]]

    (10) Any other matters the Director deems appropriate do not make 
the issuance of a permit for the proposed activity inappropriate.
    (d) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: Manager, 
Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa 
Barbara, CA 93109.
    (2) In addition to the information listed in Sec. 922.48(b), all 
applications must include information the Director needs to make the 
findings in paragraphs (b) and (c) of this section.
    (e) In addition to any other terms and conditions that the Director 
deems appropriate, a permit issued pursuant to this section must require 
that the permittee agree to hold the United States harmless against any 
claims arising out of the conduct of the permitted activities.

[74 FR 3260, Jan. 16, 2009]



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

    [Coordinates listed in this Appendix are unprojected (Geographic) 
and based on the North American Datum of 1983.]

------------------------------------------------------------------------
                Point                   Latitude (N)      Longitude (W)
------------------------------------------------------------------------
1...................................         33.94138        -119.27422
2...................................         33.96776        -119.25010
3...................................         34.02607        -119.23642
4...................................         34.07339        -119.25686
5...................................         34.10185        -119.29178
6...................................         34.11523        -119.33040
7...................................         34.11611        -119.39120
8...................................         34.11434        -119.40212
9...................................         34.11712        -119.42896
10..................................         34.11664        -119.44844
11..................................         34.13389        -119.48081
12..................................         34.13825        -119.49198
13..................................         34.14784        -119.51194
14..................................         34.15086        -119.54670
15..................................         34.15450        -119.54670
16..................................         34.15450        -119.59170
17..................................         34.15142        -119.61254
18..................................         34.13411        -119.66024
19..................................         34.14635        -119.69780
20..................................         34.15988        -119.76688
21..................................         34.15906        -119.77800
22..................................         34.15928        -119.79327
23..................................         34.16213        -119.80347
24..................................         34.16962        -119.83643
25..................................         34.17266        -119.85240
26..................................         34.17588        -119.88903
27..................................         34.17682        -119.93357
28..................................         34.17258        -119.95830
29..................................         34.13535        -120.01964
30..................................         34.13698        -120.04206
31..................................         34.12994        -120.08582
32..................................         34.12481        -120.11104
33..................................         34.12519        -120.16076
34..................................         34.11008        -120.21190
35..................................         34.11128        -120.22707
36..................................         34.13632        -120.25292
37..................................         34.15341        -120.28627
38..................................         34.16408        -120.29310
39..................................         34.17704        -120.30670
40..................................         34.20492        -120.30670
41..................................         34.20492        -120.38830
42..................................         34.20707        -120.41801
43..................................         34.20520        -120.42859
44..................................         34.19254        -120.46041
45..................................         34.20540        -120.50728
46..................................         34.20486        -120.53987
47..................................         34.18182        -120.60041
48..................................         34.10208        -120.64208
49..................................         34.08151        -120.63894
50..................................         34.05848        -120.62862
51..................................         34.01940        -120.58567
52..................................         34.01349        -120.57464
53..................................         33.98698        -120.56582
54..................................         33.95039        -120.53282
55..................................         33.92694        -120.46132
56..................................         33.92501        -120.42170
57..................................         33.91403        -120.37585
58..................................         33.91712        -120.32506
59..................................         33.90956        -120.30857
60..................................         33.88976        -120.29540
61..................................         33.84444        -120.25482
62..................................         33.83146        -120.22927
63..................................         33.81763        -120.20284
64..................................         33.81003        -120.18731
65..................................         33.79425        -120.13422
66..................................         33.79379        -120.10207
67..................................         33.79983        -120.06995
68..................................         33.81076        -120.04351
69..................................         33.81450        -120.03158
70..................................         33.84125        -119.96508
71..................................         33.84865        -119.92316
72..................................         33.86993        -119.88330
73..................................         33.86195        -119.88330
74..................................         33.86195        -119.80000
75..................................         33.86110        -119.79017
76..................................         33.86351        -119.77130
77..................................         33.85995        -119.74390
78..................................         33.86233        -119.68783
79..................................         33.87330        -119.65504
80..................................         33.88594        -119.62617
81..................................         33.88688        -119.59423
82..................................         33.88809        -119.58278
83..................................         33.89414        -119.54861
84..................................         33.90064        -119.51936
85..................................         33.90198        -119.51609
86..................................         33.90198        -119.43311
87..................................         33.90584        -119.43311
88..................................         33.90424        -119.42422
89..................................         33.90219        -119.40730
90..................................         33.90131        -119.38373
91..................................         33.90398        -119.36333
92..................................         33.90635        -119.35345
93..................................         33.91304        -119.33280
94..................................         33.91829        -119.32206
95..................................         33.48250        -119.16874
96..................................         33.44235        -119.16797
97..................................         33.40555        -119.14878
98..................................         33.39059        -119.13283
99..................................         33.36804        -119.08891
100.................................         33.36375        -119.06803
101.................................         33.36241        -119.04812
102.................................         33.36320        -119.03670
103.................................         33.36320        -118.90879
104.................................         33.47500        -118.90879
105.................................         33.48414        -118.90712
106.................................         33.52444        -118.91492

[[Page 142]]

 
107.................................         33.53834        -118.92271
108.................................         33.58616        -118.99540
109.................................         33.59018        -119.02374
110.................................         33.58516        -119.06745
111.................................         33.58011        -119.08521
112.................................         33.54367        -119.14460
113.................................         33.51161        -119.16367
------------------------------------------------------------------------


[72 FR 29233, May 24, 2007]



   Sec. Appendix B to Subpart G of Part 922--Marine Reserve Boundaries

    [Coordinates listed in this Appendix are unprojected (Geographic) 
and based on the North American Datum of 1983.]

         B.1. Richardson Rock (San Miguel Island) Marine Reserve

    The Richardson Rock Marine Reserve (Richardson Rock) boundary is 
defined by the 3 nmi State boundary, the coordinates provided in Table 
B-1, and the following textual description.
    The Richardson Rock boundary extends from Point 1 to Point 2 along a 
straight line. It then extends from Point 2 to Point 3 along a straight 
line. The boundary then extends along a straight line from Point 3 to 
the 3 nmi State boundary established under the Submerged Lands Act (3 
nmi State boundary) where a line defined by connecting Point 3 and Point 
4 with a straight line intersects the 3 nmi State boundary. The boundary 
then extends northwestward and then eastward along the 3 nmi State 
boundary until it intersects the line defined by connecting Point 5 and 
Point 6 with a straight line. At that intersection, the boundary extends 
from the 3 nmi SLA boundary to Point 6 along a straight line.

      Table B-1--Richardson Rock (San Miguel Island) Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  34.17333 [deg]N       120.60483
                                                                 [deg]W
2.....................................  34.17333 [deg]N       120.47000
                                                                 [deg]W
3.....................................  34.12900 [deg]N       120.47000
                                                                 [deg]W
4.....................................  34.03685 [deg]N       120.52120
                                                                 [deg]W
5.....................................  34.03685 [deg]N       120.60483
                                                                 [deg]W
6.....................................  34.17333 [deg]N       120.60483
                                                                 [deg]W
------------------------------------------------------------------------

          B.2. Harris Point (San Miguel Island) Marine Reserve

    The Harris Point Marine Reserve (Harris Point) boundary is defined 
by the 3 nmi State boundary, the coordinates provided in Table B-2, and 
the following textual description.
    The Harris Point boundary extends from Point 1 to Point 2 along a 
straight line. It then extends along a straight line from Point 2 to the 
3 nmi State boundary where a line defined by connecting Point 2 and 
Point 3 with a straight line intersects the 3 nmi State boundary. The 
boundary then follows the 3 nmi State boundary northwestward until it 
intersects the line defined by connecting Point 4 and Point 5 with a 
straight line. At that intersection, the boundary extends from the 3 nmi 
State boundary to Point 5 along a straight line.

       Table B-2--Harris Point (San Miguel Island) Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  34.20492 [deg]N       120.38830
                                                                 [deg]W
2.....................................  34.20492 [deg]N       120.30670
                                                                 [deg]W
3.....................................  34.10260 [deg]N       120.30670
                                                                 [deg]W
4.....................................  34.15200 [deg]N       120.38830
                                                                 [deg]W
5.....................................  34.20492 [deg]N       120.38830
                                                                 [deg]W
------------------------------------------------------------------------

           B.3. South Point (Santa Rosa Island) Marine Reserve

    The South Point Marine Reserve (South Point) boundary is defined by 
the 3 nmi State boundary, the coordinates provided in Table B-3, and the 
following textual description.
    The South Point boundary extends from Point 1 to Point 2 along a 
straight line. It then extends along a straight line from Point 2 to the 
3 nmi State boundary where a line defined by connecting Point 2 and 
Point 3 with a straight line intersects the 3 nmi State boundary. The 
boundary follows the 3 nmi State boundary southeastward until it 
intersects the line defined by connecting Point 4 and Point 5 along a 
straight line. At that intersection, the boundary extends from the 3 nmi 
State boundary to Point 5 along a straight line.

        Table B-3--South Point (Santa Rosa Island) Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  33.84000 [deg]N       120.10830
                                                                 [deg]W
2.....................................  33.84000 [deg]N       120.16670
                                                                 [deg]W
3.....................................  33.86110 [deg]N       120.16670
                                                                 [deg]W
4.....................................  33.84700 [deg]N       120.10830
                                                                 [deg]W
5.....................................  33.84000 [deg]N       120.10830
                                                                 [deg]W
------------------------------------------------------------------------

           B.4. Gull Island (Santa Cruz Island) Marine Reserve

    The Gull Island Marine Reserve (Gull Island) boundary is defined by 
the 3 nmi State boundary, the coordinates provided in Table B-4, and the 
following textual description.
    The Gull Island boundary extends from Point 1 to Point 2 along a 
straight line. It then extends along a straight line from Point 2 to the 
3 nmi State boundary where a line defined by connecting Point 2 and 
Point 3 with a straight line intersects the 3 nmi State boundary. The 
boundary then follows the 3 nmi State boundary westward until it

[[Page 143]]

intersects the line defined by connecting Point 4 and Point 5 with a 
straight line. At that intersection, the boundary extends from the 3 nmi 
State boundary to Point 5 along a straight line.

        Table B-4--Gull Island (Santa Cruz Island) Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  33.86195 [deg]N       119.80000
                                                                 [deg]W
2.....................................  33.86195 [deg]N       119.88330
                                                                 [deg]W
3.....................................  33.92690 [deg]N       119.88330
                                                                 [deg]W
4.....................................  33.90700 [deg]N       119.80000
                                                                 [deg]W
5.....................................  33.86195 [deg]N       119.80000
                                                                 [deg]W
------------------------------------------------------------------------

            B.5. Scorpion (Santa Cruz Island) Marine Reserve

    The Scorpion Marine Reserve (Scorpion) boundary is defined by the 3 
nmi State boundary, the coordinates provided in Table B-5, and the 
following textual description.
    The Scorpion boundary extends from Point 1 to Point 2 along a 
straight line. It then extends along a straight line from Point 2 to the 
3 nmi State boundary where a line defined by connecting Point 2 and 
Point 3 with a straight line intersects the 3 nmi State boundary. The 
boundary then follows the 3 nmi State boundary westward until it 
intersects the line defined by connecting Point 4 and Point 5 with a 
straight line. At that intersection, the boundary extends from the 3 nmi 
State boundary to Point 5 along a straight line.

         Table B-5--Scorpion (Santa Cruz Island) Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  34.15450 [deg]N       119.59170
                                                                 [deg]W
2.....................................  34.15450 [deg]N       119.54670
                                                                 [deg]W
3.....................................  34.10140 [deg]N       119.54670
                                                                 [deg]W
4.....................................  34.10060 [deg]N       119.59170
                                                                 [deg]W
5.....................................  34.15450 [deg]N       119.59170
                                                                 [deg]W
------------------------------------------------------------------------

                      B.6. Footprint Marine Reserve

    The Footprint Marine Reserve (Footprint) boundary is defined by the 
3 nmi State boundary, the coordinates provided in Table B-6, and the 
following textual description.
    The Footprint boundary extends from Point 1 to Point 2 along a 
straight line. It then extends along a straight line from Point 2 to the 
3 nmi State boundary where a line defined by connecting Point 2 and 
Point 3 with a straight line intersects the 3 nmi State boundary. The 
boundary follows the 3 nmi State boundary northeastward and then 
southeastward until it intersects the line defined by connecting Point 4 
and Point 5 along a straight line. At that intersection, the boundary 
extends from the 3 nmi State boundary to Point 5 along a straight line.

                   Table B-6--Footprint Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  33.90198 [deg]N       119.43311
                                                                 [deg]W
2.....................................  33.90198 [deg]N       119.51609
                                                                 [deg]W
3.....................................  33.96120 [deg]N       119.51609
                                                                 [deg]W
4.....................................  33.95710 [deg]N       119.43311
                                                                 [deg]W
5.....................................  33.90198 [deg]N       119.43311
                                                                 [deg]W
------------------------------------------------------------------------

                   B.7. Anacapa Island Marine Reserve

    The Anacapa Island Marine Reserve (Anacapa Island) boundary is 
defined by the 3 nmi State boundary, the coordinates provided in Table 
B-7, and the following textual description.
    The Anacapa Island boundary extends from Point 1 to Point 2 along a 
straight line. It then extends to the 3 nmi State boundary where a line 
defined by connecting Point 2 and Pont 3 with a straight line intersects 
the 3 nmi State boundary. The boundary follows the 3 nmi State boundary 
westward until it intersects the line defined by connecting Point 4 and 
Point 5 with a straight line. At that intersection, the boundary extends 
from the 3 nmi State boundary to Point 5 along a straight line.

                Table B-7--Anacapa Island Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  34.08330 [deg]N       119.41000
                                                                 [deg]W
2.....................................  34.08330 [deg]N       119.35670
                                                                 [deg]W
3.....................................  34.06450 [deg]N       119.35670
                                                                 [deg]W
4.....................................  34.06210 [deg]N       119.41000
                                                                 [deg]W
5.....................................  34.08330 [deg]N       119.41000
                                                                 [deg]W
------------------------------------------------------------------------

                 B.8. Santa Barbara Island Marine Reserve

    The Santa Barbara Island Marine Reserve (Santa Barbara) boundary is 
defined by the 3 nmi State boundary, the coordinates provided in Table 
B-8, and the following textual description.
    The Santa Barbara boundary extends from Point 1 to Point 2 along a 
straight line. It then extends along a straight line from Point 2 to the 
3 nmi State boundary where a line defined by connecting Point 2 and 
Point 3 with a straight line intersects the 3 nmi State boundary. The 
boundary follows the 3 nmi State boundary northeastward until it 
intersects the line defined by connecting Point 4 and Point 5 with a 
straight line. At that intersection, the boundary extends from the 3 nmi 
State boundary to Point 5 along a straight line. The boundary then 
extends from Point 5 to Point 6 along a straight line.

             Table B-8--Santa Barbara Island Marine Reserve
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  33.36320 [deg]N       118.90879
                                                                 [deg]W
2.....................................  33.36320 [deg]N       119.03670
                                                                 [deg]W
3.....................................  33.41680 [deg]N       119.03670
                                                                 [deg]W

[[Page 144]]

 
4.....................................  33.47500 [deg]N       118.97080
                                                                 [deg]W
5.....................................  33.47500 [deg]N       118.90879
                                                                 [deg]W
6.....................................  33.36320 [deg]N       118.90879
                                                                 [deg]W
------------------------------------------------------------------------


[72 FR 29233, May 24, 2007]



   Sec. Appendix C to Subpart G of Part 922--Marine Conservation Area 
                                Boundary

              C.1. Anacapa Island Marine Conservation Area

    The Anacapa Island Marine Conservation Area (AIMCA) boundary is 
defined by the 3 nmi State boundary, the coordinates provided in Table 
C-1, and the following textual description.
    The AIMCA boundary extends from Point 1 to Point 2 along a straight 
line. It then extends to the 3 nmi State boundary where a line defined 
by connecting Point 2 and Point 3 with a straight line intersects the 3 
nmi State boundary. The boundary follows the 3 nmi State boundary 
westward until it intersects the line defined by connecting Point 4 and 
Point 5 with a straight line. At that intersection, the boundary extends 
from the 3 nmi State boundary to Point 5 along a straight line.

           Table C-1--Anacapa Island Marine Conservation Area
------------------------------------------------------------------------
                 Point                      Latitude        Longitude
------------------------------------------------------------------------
1.....................................  34.08330 [deg]N       119.44500
                                                                 [deg]W
2.....................................  34.08330 [deg]N       119.41000
                                                                 [deg]W
3.....................................  34.06210 [deg]N       119.41000
                                                                 [deg]W
4.....................................  34.06300 [deg]N       119.44500
                                                                 [deg]W
5.....................................  34.08330 [deg]N       119.44500
                                                                 [deg]W
------------------------------------------------------------------------


[72 FR 29233, May 24, 2007; 72 FR 42317, Aug. 2, 2007]



       Subpart H_Gulf of the Farallones National Marine Sanctuary

    Source: 73 FR 70529, Nov. 20, 2008, unless otherwise noted.



Sec. 922.80  Boundary.

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



Sec. 922.81  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Areas of Special Biological Significance (ASBS) are those areas 
designated by California's State Water Resources

[[Page 145]]

Control Board as requiring protection of species or biological 
communities to the extent that alteration of natural water quality is 
undesirable. ASBS are a subset of State Water Quality Protection Areas 
established pursuant to California Public Resources Code section 36700 
et seq.
    Attract or attracting means the conduct of any activity that lures 
or may lure any animal in the Sanctuary by using food, bait, chum, dyes, 
decoys (e.g., surfboards or body boards used as decoys), acoustics or 
any other means, except the mere presence of human beings (e.g., 
swimmers, divers, boaters, kayakers, surfers).
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Deserting means leaving a vessel aground or adrift without 
notification to the Director of the vessel going aground or becoming 
adrift within 12 hours of its discovery and developing and presenting to 
the Director a preliminary salvage plan within 24 hours of such 
notification, after expressing or otherwise manifesting intention not to 
undertake or to cease salvage efforts, or when the owner/operator cannot 
after reasonable efforts by the Director be reached within 12 hours of 
the vessel's condition being reported to authorities; or leaving a 
vessel at anchor when its condition creates potential for a grounding, 
discharge, or deposit and the owner/operator fails to secure the vessel 
in a timely manner.
    Harmful matter means any substance, or combination of substances, 
that because of its quantity, concentration, or physical, chemical, or 
infectious characteristics may pose a present or potential threat to 
Sanctuary resources or qualities, including but not limited to: fishing 
nets, fishing line, hooks, fuel, oil, and those contaminants (regardless 
of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive 
Environmental Response, Compensation and Liability Act at 40 CFR 302.4.
    Introduced species means any species (including, but not limited to, 
any of its biological matter capable of propagation) that is non-native 
to the ecosystems of the Sanctuary; or any organism into which altered 
genetic matter, or genetic matter from another species, has been 
transferred in order that the host organism acquires the genetic traits 
of the transferred genes.
    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.
    Routine maintenance means customary and standard procedures for 
maintaining docks or piers.
    Seagrass means any species of marine angiosperms (flowering plants) 
that inhabit portions of the submerged lands in the Sanctuary. Those 
species include, but are not limited to: Zostera asiatica and Zostera 
marina.



Sec. 922.82  Prohibited or otherwise regulated activities.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1) Exploring for, developing, or producing oil or gas except that 
pipelines related to hydrocarbon operations adjacent to the Sanctuary 
may be placed at a distance greater than 2 nmi from the Farallon 
Islands, Bolinas Lagoon and Areas of Special Biological Significance 
(ASBS) where certified to have no significant effect on Sanctuary 
resources in accordance with Sec. 922.84.
    (2) Discharging or depositing from within or into the Sanctuary, 
other than from a cruise ship, any material or other matter except:
    (i) Fish, fish parts, or chumming materials (bait) used in or 
resulting from lawful fishing activity within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity within the Sanctuary;
    (ii) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the Sanctuary, clean effluent generated 
incidental to vessel use by an operable Type I or II marine sanitation 
device (U.S. Coast Guard classification) that is approved in accordance 
with section 312 of the Federal

[[Page 146]]

Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel 
operators must lock all marine sanitation devices in a manner that 
prevents discharge or deposit of untreated sewage;
    (iii) Clean vessel deck wash down, clean vessel engine cooling 
water, clean vessel generator cooling water, clean bilge water, or 
anchor wash; or
    (iv) Vessel engine or generator exhaust.
    (3) Discharging or depositing, from within or into the Sanctuary, 
any material or other matter from a cruise ship except clean vessel 
engine cooling water, clean vessel generator cooling water, clean bilge 
water, or anchor wash.
    (4) 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 for the 
exclusions listed in paragraphs (a)(2)(i) through (iv) and (a)(3) of 
this section.
    (5) Constructing any structure other than a navigation aid on or in 
the submerged lands of the Sanctuary; placing or abandoning any 
structure on or in the submerged lands of the Sanctuary; or drilling 
into, dredging, or otherwise altering the submerged lands of the 
Sanctuary in any way, except:
    (i) By anchoring vessels (in a manner not otherwise prohibited by 
this part (see Sec. 922.82(a)(16));
    (ii) While conducting lawful fishing activities;
    (iii) The laying of pipelines related to hydrocarbon operations in 
leases adjacent to the Sanctuary in accordance with paragraph (a)(1) of 
this section;
    (iv) Routine maintenance and construction of docks and piers on 
Tomales Bay; or
    (v) Mariculture activities conducted pursuant to a valid lease, 
permit, license or other authorization issued by the State of 
California.
    (6) Operating any vessel engaged in the trade of carrying cargo 
within an area extending 2 nmi from the Farallon Islands, Bolinas Lagoon 
or any ASBS. This includes but is not limited to tankers and other bulk 
carriers and barges, or any vessel engaged in the trade of servicing 
offshore installations, except to transport persons or supplies to or 
from the Islands or mainland areas adjacent to Sanctuary waters or any 
ASBS. In no event shall this section be construed to limit access for 
fishing, recreational or research vessels.
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft for emergency search and 
rescue missions or law enforcement operations (other than routine 
training activities) carried out by the National Park Service, U.S. 
Coast Guard, Fire or Police Departments or other Federal, State or local 
jurisdictions.
    (8) Disturbing birds or marine mammals by flying motorized aircraft 
at less than 1000 feet over the waters within one nmi of the Farallon 
Islands, Bolinas Lagoon, or any ASBS except to transport persons or 
supplies to or from the Islands or for enforcement purposes.
    (9) Possessing, moving, removing, or injuring, or attempting to 
possess, move, remove or injure, a Sanctuary historical resource.
    (10) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except:
    (i) Striped bass (Morone saxatilis) released during catch and 
release fishing activity; or
    (ii) Species cultivated by mariculture activities in Tomales Bay 
pursuant to a valid lease, permit, license or other authorization issued 
by the State of California and in effect on the effective date of the 
final regulation.
    (11) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as authorized by the Marine Mammal Protection Act, 
as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act 
(ESA), as amended, 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as 
amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, 
promulgated under the MMPA, ESA, or MBTA.
    (12) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), any marine mammal, sea turtle, or bird taken, 
except as authorized by the MMPA, ESA, MBTA, by any regulation, as 
amended, promulgated under the MMPA, ESA, or

[[Page 147]]

MBTA, or as necessary for valid law enforcement purposes.
    (13) Attracting a white shark in the Sanctuary; or approaching 
within 50 meters of any white shark within the line approximating 2 nmi 
around the Farallon Islands. The coordinates for the line approximating 
2 nmi around the Farallon Islands are listed in Appendix B to this 
subpart.
    (14) Deserting a vessel aground, at anchor, or adrift in the 
Sanctuary.
    (15) Leaving harmful matter aboard a grounded or deserted vessel in 
the Sanctuary.
    (16) Anchoring a vessel in a designated seagrass protection zone in 
Tomales Bay, except as necessary for mariculture operations conducted 
pursuant to a valid lease, permit or license. The coordinates for the 
no-anchoring seagrass protection zones are listed in Appendix C to this 
subpart.
    (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 shall be determined in consultation 
between the Director and the Department of Defense.
    (c) The prohibitions in paragraph (a) of this section do not apply 
to activities necessary to respond to an emergency threatening life, 
property, or the environment, or except as may be permitted by the 
Director in accordance with Sec. 922.48 and Sec. 922.83.



Sec. 922.83  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.82 if 
such activity is specifically authorized by, and conducted in accordance 
with the scope, purpose, terms and conditions of, a permit issued under 
Sec. 922.48 and this section.
    (b) The Director, at his or her discretion, may issue a National 
Marine Sanctuary permit under this section, subject to terms and 
conditions as he or she deems appropriate, if the Director finds that 
the activity will:
    (1) Further research or monitoring related to Sanctuary resources 
and qualities;
    (2) Further the educational value of the Sanctuary;
    (3) Further salvage or recovery operations; or
    (4) Assist in managing the Sanctuary.
    (c) In deciding whether to issue a permit, the Director shall 
consider factors such as:
    (1) The applicant is qualified to conduct and complete the proposed 
activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The methods and procedures proposed by the applicant are 
appropriate to achieve the goals of the proposed activity, especially in 
relation to the potential effects of the proposed activity on Sanctuary 
resources and qualities;
    (4) 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 potential 
indirect, secondary or cumulative effects of the activity, and the 
duration of such effects;
    (5) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary, considering the extent to which the 
conduct of the activity may result in conflicts between different users 
of the Sanctuary, and the duration of such effects;
    (6) It is necessary to conduct the proposed activity within the 
Sanctuary;
    (7) The reasonably expected end value of the proposed activity to 
the furtherance of Sanctuary goals and purposes outweighs any potential 
adverse effects on Sanctuary resources and qualities from the conduct of 
the activity; and
    (8) Any other factors as the Director deems appropriate.
    (d) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: 
Superintendent, Gulf of the Farallones National Marine Sanctuary, 991 
Marine Dr., The Presidio, San Francisco, CA 94129.
    (2) In addition to the information listed in Sec. 922.48(b), all 
applications

[[Page 148]]

must include information to be considered by the Director in paragraph 
(b) and (c) of this section.
    (e) The permittee must agree to hold the United States harmless 
against any claims arising out of the conduct of the permitted 
activities.



Sec. 922.84  Certification of other permits.

    A permit, license, or other authorization allowing: the laying of 
any pipeline related to hydrocarbon operations in leases adjacent to the 
Sanctuary and placed at a distance greater than 2 nmi from the Farallon 
Islands, Bolinas Lagoon, and any ASBS must be 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. 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. 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 proposed permit and the necessary supporting 
data. 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.



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

    Coordinates listed in this Appendix are unprojected (Geographic) and 
based on the North American Datum of 1983.

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
             Sanctuary Boundary
1..........................................     38.29896      -123.05989
2..........................................     38.26390      -123.18138
3..........................................     38.21001      -123.11913
4..........................................     38.16576      -123.09207
5..........................................     38.14072      -123.08237
6..........................................     38.12829      -123.08742
7..........................................     38.10215      -123.09804
8..........................................     38.09069      -123.10387
9..........................................     38.07898      -123.10924
10.........................................     38.06505      -123.11711
11.........................................     38.05202      -123.12827
12.........................................     37.99227      -123.14137
13.........................................     37.98947      -123.23615
14.........................................     37.95880      -123.32312
15.........................................     37.90464      -123.38958
16.........................................     37.83480      -123.42579
17.........................................     37.76687      -123.42694
18.........................................     37.75932      -123.42686
19.........................................     37.68892      -123.39274
20.........................................     37.63356      -123.32819
21.........................................     37.60123      -123.24292
22.........................................     37.59165      -123.22641
23.........................................     37.56305      -123.19859
24.........................................     37.52001      -123.12879
25.........................................     37.50819      -123.09617
26.........................................     37.49418      -123.00770
27.........................................     37.50948      -122.90614
28.........................................     37.52988      -122.85988
29.........................................     37.57147      -122.80399
30.........................................     37.61622      -122.76937
31.........................................     37.66641      -122.75105
------------------------------------------------------------------------



   Sec. Appendix B to Subpart H of Part 922--2 nmi From the Farallon 
                      Islands Boundary Coordinates

    Coordinates listed in this Appendix are unprojected (Geographic) and 
based on the North American Datum of 1983.

------------------------------------------------------------------------
   Point ID No. (2 nmi from the Farallon
             Islands Boundary)                 Latitude      Longitude
------------------------------------------------------------------------
0..........................................     37.77670      -123.14954
1..........................................     37.78563      -123.14632
2..........................................     37.79566      -123.13764
3..........................................     37.80296      -123.12521
4..........................................     37.80609      -123.11189
5..........................................     37.80572      -123.09847
6..........................................     37.80157      -123.08484
7..........................................     37.79776      -123.07836
8..........................................     37.79368      -123.06992
9..........................................     37.78702      -123.06076
10.........................................     37.77905      -123.05474
11.........................................     37.77014      -123.05169
12.........................................     37.76201      -123.05151
13.........................................     37.75758      -123.05248
14.........................................     37.76078      -123.04115
15.........................................     37.76151      -123.02803
16.........................................     37.75898      -123.01527
17.........................................     37.75267      -123.00303
18.........................................     37.74341      -122.99425
19.........................................     37.73634      -122.99017
20.........................................     37.73036      -122.97601
21.........................................     37.72042      -122.96548
22.........................................     37.70870      -122.95890
23.........................................     37.69737      -122.95720
24.........................................     37.68759      -122.95882
25.........................................     37.67768      -122.96469
26.........................................     37.66905      -122.97427
27.........................................     37.66352      -122.98478
28.........................................     37.66037      -122.99741
29.........................................     37.66029      -123.00991
30.........................................     37.66290      -123.02133
31.........................................     37.67102      -123.03830
32.........................................     37.67755      -123.04612
33.........................................     37.68844      -123.05334

[[Page 149]]

 
34.........................................     37.69940      -123.05567
35.........................................     37.71127      -123.06858
36.........................................     37.72101      -123.07329
37.........................................     37.73167      -123.07399
38.........................................     37.73473      -123.07340
39.........................................     37.73074      -123.08620
40.........................................     37.73010      -123.09787
41.........................................     37.73265      -123.11296
42.........................................     37.73685      -123.12315
43.........................................     37.74273      -123.13124
44.........................................     37.74725      -123.13762
45.........................................     37.75467      -123.14466
46.........................................     37.76448      -123.14917
47.........................................     37.77670      -123.14954
------------------------------------------------------------------------



    Sec. Appendix C to Subpart H of Part 922--No-Anchoring Seagrass 
                     Protection Zones in Tomales Bay

    Coordinates listed in this Appendix are unprojected (Geographic) and 
based on the North American Datum of 1983.
    Table C-1: Zone 1:
    Zone 1 is an area of approximately 39.9 hectares offshore south of 
Millerton Point. The eastern boundary is a straight line that connects 
points 1 and 2 listed in the coordinate table below. The southern 
boundary is a straight line that connects points 2 and 3, the western 
boundary is a straight line that connects points 3 and 4 and the 
northern boundary is a straight line that connects point 4 to point 5. 
All coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 1 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.10571.........  -122.84565
2...............................  38.09888.........  -122.83603
3...............................  38.09878.........  -122.84431
4...............................  38.10514.........  -122.84904
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 2: Zone 2 is an area of approximately 50.3 hectares that begins 
just south of Marconi and extends approximately 3 kilometers south along 
the eastern shore of Tomales Bay. The eastern boundary is the mean high 
water (MHW) line from point 1 to point 2 listed in the coordinate table 
below. The southern boundary is a straight line that connects point 2 to 
point 3. The western boundary is a series of straight lines that connect 
points 3 through 6 in sequence and then connects point 6 to point 1. All 
coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 2 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.14071.........  -122.87440
2...............................  38.11386.........  -122.85851
3...............................  38.11899.........  -122.86731
4...............................  38.12563.........  -122.86480
5...............................  38.12724.........  -122.86488
6...............................  38.13326.........  -122.87178
7...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 3: Zone 3 is an area of approximately 4.6 hectares that begins 
just south of Marshall and extends approximately 1 kilometer south along 
the eastern shore of Tomales Bay. The eastern boundary is the mean high 
water (MHW) line from point 1 to point 2 listed in the coordinate table 
below. The southern boundary is a straight line that connects point 2 to 
point 3, the western boundary is a straight line that connects point 3 
to point 4, and the northern boundary is a straight line that connects 
point 4 to point 5. All coordinates are in the Geographic Coordinate 
System relative to the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 3 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.16031.........  -122.89442
2...............................  38.15285.........  -122.88991
3...............................  38.15250.........  -122.89042
4...............................  38.15956.........  -122.89573
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 4: Zone 4 is an area of approximately 61.8 hectares that begins 
just north of Nicks Cove and extends approximately 5 kilometers south 
along the eastern shore of Tomales Bay to just south of Cypress Grove. 
The eastern boundary is the mean high water (MHW) line from point 1 to 
point 2 listed in the coordinate table below. The southern boundary is a 
straight line that connects point 2 to point 3. The western boundary is 
a series of straight lines that connect points 3 through 9 in sequence. 
The northern boundary is a straight line that connects point 9 to point 
10. All coordinates are in the Geographic Coordinate System relative to 
the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 4 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.20073.........  -122.92181
2...............................  38.16259.........  -122.89627
3...............................  38.16227.........  -122.89650
4...............................  38.16535.........  -122.90308
5...............................  38.16869.........  -122.90475
6...............................  38.17450.........  -122.90545
7...............................  38.17919.........  -122.91021
8...............................  38.18651.........  -122.91404
9...............................  38.18881.........  -122.91740
10..............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 5: Zone 5 is an area of approximately 461.4 hectares that 
begins east of Lawsons Landing and extends approximately 5 kilometers 
east and south along the eastern shore of Tomales Bay but excludes areas 
adjacent (approximately 600 meters) to the mouth of Walker Creek. The 
boundary follows the mean high water (MHW) mark from point 1 and trends 
in a southeast direction to point 2 listed in the coordinate table 
below.

[[Page 150]]

From point 2 the boundary trends westward in a straight line to point 3, 
then trends southward in a straight line to point 4 and then trends 
eastward in a straight line to point 5. The boundary follows the mean 
high water line from point 5 southward to point 6. The southern boundary 
is a straight line that connects point 6 to point 7. The eastern 
boundary is a series of straight lines that connect points 7 to 9 in 
sequence and then connects point 9 to point 10. All coordinates are in 
the Geographic Coordinate System relative to the North American Datum of 
1983.

------------------------------------------------------------------------
         Zone 5 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.23122.........  -122.96300
2...............................  38.21599.........  -122.93749
3...............................  38.20938.........  -122.94153
4...............................  38.20366.........  -122.93246
5...............................  38.20515.........  -122.92453
6...............................  38.20073.........  -122.92181
7...............................  38.19405.........  -122.93477
8...............................  38.20436.........  -122.94305
9...............................  38.21727.........  -122.96225
10..............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 6: Zone 6 is an area of approximately 3.94 hectares in the 
vicinity of Indian Beach along the western shore of Tomales Bay. The 
western boundary follows the mean high water (MHW) line from point 1 
northward to point 2 listed in the coordinate table below. The northern 
boundary is a straight line that connects point 2 to point 3. The 
eastern boundary is a straight line that connects point 3 to point 4. 
The southern boundary is a straight line that connects point 4 to point 
5. All coordinates are in the Geographic Coordinate System relative to 
the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 6 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.13811.........  -122.89603
2...............................  38.14040.........  -122.89676
3...............................  38.14103.........  -122.89537
4...............................  38.13919.........  -122.89391
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 7: Zone 7 is an area of approximately 32.16 hectares that 
begins just south of Pebble Beach and extends approximately 3 kilometers 
south along the western shore of Tomales Bay. The western boundary is 
the mean high water (MHW) line from point 1 to point 2 listed in the 
coordinate table below. The northern boundary is a straight line that 
connects point 2 to point 3. The eastern boundary is a series of 
straight lines that connect points 3 through 7 in sequence. The southern 
boundary is a straight line that connects point 7 to point 8. All 
coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 7 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.11034.........  -122.86544
2...............................  38.13008.........  -122.88742
3...............................  38.13067.........  -122.88620
4...............................  38.12362.........  -122.87984
5...............................  38.11916.........  -122.87491
6...............................  38.11486.........  -122.86896
7...............................  38.11096.........  -122.86468
8...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------



             Subpart I_Gray's Reef National Marine Sanctuary

    Source: 71 FR 60063, Oct. 12, 2006, unless otherwise noted.



Sec. 922.90  Boundary.

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


Datum: NAD83

Geographic Coordinate System

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



Sec. 922.91  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Handline means fishing gear that is set and pulled by hand and 
consists of one vertical line to which may be attached leader lines with 
hooks.
    Rod and reel means a rod and reel unit that is not attached to a 
vessel, or, if attached, is readily removable, from which a line and 
attached hook(s) are deployed. The line is payed out from and retrieved 
on the reel manually or electrically.
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely

[[Page 151]]

covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, 
partially disassembled, or stowed for transit.



Sec. 922.92  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense (subject to the 
terms and conditions of Article 5, Section 2 of the Designation 
Document) or to respond to an emergency threatening life, property, or 
the environment, or except as may be permitted by the Director in 
accordance with Sec. 922.48 and Sec. 922.93, the following activities 
are unlawful for any person to conduct or to cause to be conducted 
within the Sanctuary:
    (1) Dredging, drilling into, or otherwise altering in any way the 
submerged lands of the Sanctuary (including bottom formations).
    (2) Constructing any structure other than a navigation aid, or 
constructing, placing, or abandoning any structure, material, or other 
matter on the submerged lands of the Sanctuary.
    (3) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts, bait, or chumming materials;
    (ii) Effluent from marine sanitation devices; and
    (iii) Vessel cooling water.
    (4) Operating a watercraft other than in accordance with the Federal 
rules and regulations that would apply if there were no Sanctuary.
    (5)(i) Injuring, catching, harvesting, or collecting, or attempting 
to injure, catch, harvest, or collect, any marine organism, or any part 
thereof, living or dead, within the Sanctuary by any means except by use 
of rod and reel, handline, or spearfishing gear without powerheads. (ii) 
There shall be a rebuttable presumption that any marine organism or part 
thereof referenced in this paragraph found in the possession of a person 
within the Sanctuary has been collected from the Sanctuary.
    (6) Except for possessing fishing gear stowed and not available for 
immediate use, possessing or using within the Sanctuary any fishing gear 
or means except rod and reel, handline, or spearfishing gear without 
powerheads.
    (7) Using underwater any explosives, or devices that produce 
electric charges underwater.
    (8) Breaking, cutting, damaging, taking, or removing any bottom 
formation.
    (9) Moving, removing, damaging, or possessing, or attempting to 
move, remove, damage, or possess, any Sanctuary historical resource.
    (10) Anchoring any vessel in the Sanctuary, except as provided in 
Sec. 922.92 when responding to an emergency threatening life, property, 
or the environment.
    (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.



Sec. 922.93  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 
922.92(a)(1) through (10) if conducted in accordance within the 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, National Marine Sanctuary Program, ATTN: Manager, Gray's Reef 
National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
    (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. 922.92(a)(1) through (10). The 
Director must also find that the activity will:
    (1) Further research related to the resources and qualities of the 
Sanctuary;
    (2) Further the educational, natural, or historical resource value 
of the Sanctuary;
    (3) Further salvage or recovery operations in connection with a 
recent air or marine casualty; or
    (4) Assist in managing the Sanctuary.
    (d) The Director shall not issue a permit unless the Director also 
finds that:

[[Page 152]]

    (1) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (4) The methods and procedures proposed by the applicant are 
appropriate to achieve the proposed activity's goals in relation to the 
activity's impacts on Sanctuary resources and qualities;
    (5) 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;
    (6) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary as a source of recreation, or as a 
source of educational or scientific information considering the extent 
to which the conduct of the activity may result in conflicts between 
different users of the Sanctuary, and the duration of such effects;
    (7) It is necessary to conduct the proposed activity within the 
Sanctuary to achieve its purposes;
    (8) 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; and
    (9) There are no other factors that make the issuance of a permit 
for the activity inappropriate.
    (e) 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.
    (f) The Director shall, 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.
    (g) The Director may, inter alia, make it a condition of any permit 
issued to require the submission of one or more reports of the status 
and progress of such activity.
    (h) 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.



            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

[[Page 153]]

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.
    (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

[[Page 154]]

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, 
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

    Source: 73 FR 70533, Nov. 20, 2008, unless otherwise noted.



Sec. 922.110  Boundary.

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



Sec. 922.111  Definitions.

    In addition to the definitions found in Sec. 922.3, the following 
definitions apply to this subpart:
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Harmful matter means any substance, or combination of substances, 
that because of its quantity, concentration, or physical, chemical, or 
infectious characteristics may pose a present or potential threat to 
Sanctuary resources or qualities, including but not limited to: fishing 
nets, fishing line, hooks, fuel, oil, and those contaminants (regardless 
of quantity) listed pursuant to 42 U.S.C.
    Introduced species means any species (including, but not limited to, 
any of

[[Page 155]]

its biological matter capable of propagation) that is non-native to the 
ecosystems of the Sanctuary; or any organism into which altered genetic 
matter, or genetic matter from another species, has been transferred in 
order that the host organism acquires the genetic traits of the 
transferred genes.



Sec. 922.112  Prohibited or otherwise regulated activities.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1)(i) Discharging or depositing from within or into the Sanctuary, 
other than from a cruise ship, any material or other matter except:
    (A) Fish, fish parts, or chumming materials (bait), used in or 
resulting from lawful fishing activity within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity within the Sanctuary;
    (B) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the Sanctuary, clean effluent generated 
incidental to vessel use and generated by an operable Type I or II 
marine sanitation device (U.S. Coast Guard classification) approved in 
accordance with section 312 of the Federal Water Pollution Control Act, 
as amended, (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all 
marine sanitation devices in a manner that prevents discharge or deposit 
of untreated sewage;
    (C) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor wash; 
or
    (D) Vessel engine or generator exhaust.
    (ii) Discharging or depositing, from within or into the Sanctuary, 
any material or other matter from a cruise ship except clean vessel 
engine cooling water, clean vessel generator cooling water, clean bilge 
water, or anchor wash.
    (iii) 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 as listed 
in paragraphs (a)(1)(i) and (a)(1)(ii) of this section.
    (2) On or within the line representing the 50-fathom isobath 
surrounding Cordell Bank, removing, taking, or injuring or attempting to 
remove, take, or injure benthic invertebrates or algae located on 
Cordell Bank. This prohibition does not apply to use of bottom contact 
gear used during fishing activities, which is prohibited pursuant to 50 
CFR part 660 (Fisheries off West Coast States). The coordinates for the 
line representing the 50-fathom isobath are listed in Appendix B to this 
subpart. 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.
    (3) Exploring for, or developing or producing, oil, gas, or minerals 
in any area of the Sanctuary.
    (4)(i) On or within the line representing the 50-fathom isobath 
surrounding Cordell Bank, drilling into, dredging, or otherwise altering 
the submerged lands; or constructing, placing, or abandoning any 
structure, material or other matter on or in the submerged lands. This 
prohibition does not apply to use of bottom contact gear used during 
fishing activities, which is prohibited pursuant to 50 CFR part 660 
(Fisheries off West Coast States). The coordinates for the line 
representing the 50-fathom isobath are listed in Appendix B to this 
subpart.
    (ii) In the Sanctuary beyond the line representing the 50-fathom 
isobath surrounding Cordell Bank, drilling into, dredging, or otherwise 
altering the submerged lands; or constructing, placing, or abandoning 
any structure, material or matter on the submerged lands except as 
incidental and necessary for anchoring any vessel or lawful use of any 
fishing gear during normal fishing activities. The coordinates for the 
line representing the 50-fathom isobath are listed in Appendix B to this 
subpart.
    (5) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as authorized by the Marine Mammal Protection Act, 
as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as 
amended, (ESA), 16 U.S.C. 1531 et seq.,

[[Page 156]]

Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or 
any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
    (6) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), any marine mammal, sea turtle or bird taken, 
except as authorized by the MMPA, ESA, MBTA, by any regulation, as 
amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for 
valid law enforcement purposes.
    (7) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped bass (Morone saxatilis) 
released during catch and release fishing activity.
    (b) The prohibitions in paragraph (a) of this section do not apply 
to activities necessary to respond to an emergency threatening life, 
property or the environment, or except as may be permitted by the 
Director in accordance with Sec. 922.48 and Sec. 922.113.
    (c) 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.
    (d) 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. 922.113  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.112 if 
such activity is specifically authorized by, and conducted in accordance 
with the scope, purpose, terms and conditions of, a permit issued under 
Sec. 922.48 and this section.
    (b) The Director, at his or her discretion, may issue a national 
marine sanctuary permit under this section, subject to terms and 
conditions, as he or she deems appropriate, if the Director finds that 
the activity will:
    (1) Further research or monitoring related to Sanctuary resources 
and qualities;
    (2) Further the educational value the Sanctuary;
    (3) Further salvage or recovery operations in or near the Sanctuary 
in connection with a recent air or marine casualty; or
    (4) Assist in managing the Sanctuary.
    (c) In deciding whether to issue a permit, the Director shall 
consider such factors as:
    (1) The applicant is qualified to conduct and complete the proposed 
activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The methods and procedures proposed by the applicant are 
appropriate to achieve the goals of the proposed activity, especially in 
relation to the potential effects of the proposed activity on Sanctuary 
resources and qualities;
    (4) 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 potential 
indirect, secondary or cumulative effects of the activity, and the 
duration of such effects;
    (5) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary, considering the extent to which the 
conduct of the activity may result in conflicts between different users 
of the Sanctuary, and the duration of such effects;
    (6) It is necessary to conduct the proposed activity within the 
Sanctuary;
    (7) The reasonably expected end value of the proposed activity to 
the furtherance of Sanctuary goals and purposes outweighs any potential 
adverse effects on Sanctuary resources and qualities from the conduct of 
the activity; and
    (8) Any other factors as the Director deems appropriate.

[[Page 157]]

    (d) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: 
Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, 
Olema, CA 94950.
    (2) In addition to the information listed in Sec. 922.48(b), all 
applications must include information to be considered by the Director 
in paragraph (b) and (c) of this section.
    (e) The permittee must agree to hold the United States harmless 
against any claims arising out of the conduct of the permitted 
activities.



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

    Coordinates listed in this Appendix are unprojected (Geographic 
Coordinate System) and based on the North American Datum of 1983 
(NAD83).

                     Sanctuary Boundary Coordinates
------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     38.26390      -123.18138
2..........................................     38.13219      -123.64265
3..........................................     38.11256      -123.63344
4..........................................     38.08289      -123.62065
5..........................................     38.07451      -123.62162
6..........................................     38.06188      -123.61546
7..........................................     38.05308      -123.60549
8..........................................     38.04614      -123.60611
9..........................................     38.03409      -123.59904
10.........................................     38.02419      -123.59864
11.........................................     38.02286      -123.61531
12.........................................     38.01987      -123.62450
13.........................................     38.01366      -123.62494
14.........................................     37.99847      -123.61331
15.........................................     37.98678      -123.59988
16.........................................     37.97761      -123.58746
17.........................................     37.96683      -123.57859
18.........................................     37.95528      -123.56199
19.........................................     37.94901      -123.54777
20.........................................     37.93858      -123.54701
21.........................................     37.92288      -123.54360
22.........................................     37.90725      -123.53937
23.........................................     37.88541      -123.52967
24.........................................     37.87637      -123.52192
25.........................................     37.86189      -123.52197
26.........................................     37.84988      -123.51749
27.........................................     37.82296      -123.49280
28.........................................     37.81365      -123.47906
29.........................................     37.81026      -123.46897
30.........................................     37.80094      -123.47313
31.........................................     37.79487      -123.46721
32.........................................     37.78383      -123.45466
33.........................................     37.78109      -123.44694
34.........................................     37.77033      -123.43466
35.........................................     37.76687      -123.42694
36.........................................     37.83480      -123.42579
37.........................................     37.90464      -123.38958
38.........................................     37.95880      -123.32312
39.........................................     37.98947      -123.23615
40.........................................     37.99227      -123.14137
41.........................................     38.05202      -123.12827
42.........................................     38.06505      -123.11711
43.........................................     38.07898      -123.10924
44.........................................     38.09069      -123.10387
45.........................................     38.10215      -123.09804
46.........................................     38.12829      -123.08742
47.........................................     38.14072      -123.08237
48.........................................     38.16576      -123.09207
49.........................................     38.21001      -123.11913
50.........................................     38.26390      -123.18138
------------------------------------------------------------------------



   Sec. Appendix B to Subpart K of Part 922--Line Representing the 50-
                 Fathom Isobath Surrounding Cordell Bank

    Coordinates listed in this Appendix are unprojected (Geographic 
Coordinate System) and based on the North American Datum of 1983 
(NAD83).

                     Cordell Bank Fifty Fathom Line
------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     37.96034      -123.40371
2..........................................     37.96172      -123.42081
3..........................................     37.99110      -123.44379
4..........................................     38.00406      -123.46443
5..........................................     38.01637      -123.46076
6..........................................     38.04684      -123.47920
7..........................................     38.07106      -123.48754
8..........................................     38.07588      -123.47195
9..........................................     38.06451      -123.46146
10.........................................     38.07123      -123.44467
11.........................................     38.04446      -123.40286
12.........................................     38.01442      -123.38588
13.........................................     37.98859      -123.37533
14.........................................     37.97071      -123.38605
------------------------------------------------------------------------



         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 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

[[Page 158]]

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.
    (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

[[Page 159]]

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, 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.

[[Page 160]]

    (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]



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

[[Page 161]]



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


[65 FR 81178, Dec. 22, 2000]

[[Page 162]]



Sec. 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

    Source: 73 FR 70535, Nov. 20, 2008, unless otherwise noted.



Sec. 922.130  Boundary.

    The Monterey Bay National Marine Sanctuary (Sanctuary) consists of 
two separate areas. (a) The first area consists of an area of 
approximately 4016 square nautical miles (nmi) of coastal and ocean 
waters, and submerged lands thereunder, in and surrounding Monterey Bay 
off the central coast of California. The northern terminus of the 
Sanctuary boundary is located along the southern boundary of the Gulf of 
the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky 
Point just south of Stinson Beach in Marin County. The Sanctuary 
boundary follows the GFNMS boundary westward to a point approximately 29 
nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary 
then extends southward in a series of arcs,

[[Page 163]]

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



Sec. 922.131  Definitions.

    In addition to those definitions found at 15 CFR 922.3, the 
following definitions apply to this subpart:
    Attract or attracting means the conduct of any activity that lures 
or may lure any animal by using food, bait, chum, dyes, decoys, 
acoustics, or any other means, except the mere presence of human beings 
(e.g., swimmers, divers, boaters, kayakers, surfers).
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Davidson Seamount Management Zone means the area bounded by geodetic 
lines connecting a rectangle centered on the top of the Davidson 
Seamount, and consists of approximately 585 square nmi of ocean waters 
and the submerged lands thereunder. The shoreward boundary of this 
portion of the Sanctuary is located approximately 65 nmi off the coast 
of San Simeon in San Luis Obispo County. Exact coordinates for the 
Davidson Seamount Management Zone boundary are provided in Appendix F to 
this subpart.
    Deserting means leaving a vessel aground or adrift without 
notification to the Director of the vessel going aground or becoming 
adrift within 12 hours of its discovery and developing and presenting to 
the Director a preliminary salvage plan within 24 hours of such 
notification, after expressing or otherwise manifesting intention not to 
undertake or to cease salvage efforts, or when the owner/operator cannot 
after reasonable efforts by the Director be reached within 12 hours of 
the vessel's condition being reported to authorities; or leaving a 
vessel at anchor when its condition creates potential for a grounding, 
discharge, or deposit and the owner/operator fails to secure the vessel 
in a timely manner.
    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 15 CFR 922.132(a)(1), that is no greater than 36 
inches in length and has no moving parts (e.g., dive knife, pry bar, or 
abalone iron). Pneumatic, mechanical, electrical, hydraulic, or 
explosive tools are, therefore, examples of what does not meet this 
definition.
    Harmful matter means any substance, or combination of substances, 
that because of its quantity, concentration, or physical, chemical, or 
infectious characteristics may pose a present or potential threat to 
Sanctuary resources or qualities, including but not limited to: Fishing 
nets, fishing line, hooks,

[[Page 164]]

fuel, oil, and those contaminants (regardless of quantity) listed 
pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental 
Response, Compensation and Liability Act at 40 CFR 302.4.
    Introduced species means: Any species (including but not limited to 
any of its biological matter capable of propagation) that is non-native 
to the ecosystems of the Sanctuary; or any organism into which altered 
genetic matter, or genetic matter from another species, has been 
transferred in order that the host organism acquires the genetic traits 
of the transferred genes.
    Motorized personal watercraft (MPWC) means any vessel, propelled by 
machinery, that is designed to be operated by standing, sitting, or 
kneeling on, astride, or behind the vessel, in contrast to the 
conventional manner, where the operator stands or sits inside the 
vessel; any vessel less than 20 feet in length overall as manufactured 
and propelled by machinery and that has been exempted from compliance 
with the U.S. Coast Guard's Maximum Capacities Marking for Load Capacity 
regulation found at 33 CFR Parts 181 and 183, except submarines; or any 
other vessel that is less than 20 feet in length overall as 
manufactured, and is propelled by a water jet pump or drive.



Sec. 922.132  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (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) 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 35.92222 N latitude parallel (coastal 
reference point: Beach access stairway at south Sand Dollar Beach), the 
35.88889 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 submerged lands of the 
Sanctuary may be collected;
    (ii) No tool may be used to collect jade except:
    (A) A hand tool (as defined at 15 CFR 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 person may apply 
for a permit to collect such a loose piece by following the procedures 
in 15 CFR 922.133.
    (2)(i) Discharging or depositing from within or into the Sanctuary, 
other than from a cruise ship, any material or other matter, except:
    (A) Fish, fish parts, chumming materials, or bait used in or 
resulting from lawful fishing activities within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activities within the Sanctuary;
    (B) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the Sanctuary, clean effluent generated 
incidental to vessel use by an operable Type I or II marine sanitation 
device (U.S. Coast Guard classification) approved in accordance with 
section 312 of the Federal Water Pollution Control Act, as amended 
(FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine 
sanitation devices in a manner that prevents discharge or deposit of 
untreated sewage;
    (C) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor wash;
    (D) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding capacity to hold 
graywater while within the Sanctuary, clean graywater as defined by 
section 312 of the FWPCA;
    (E) Vessel engine or generator exhaust; or

[[Page 165]]

    (F) 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. Authorized 
disposal sites within the Sanctuary are described in Appendix C to this 
subpart.
    (ii) Discharging or depositing from within or into the Sanctuary any 
material or other matter from a cruise ship except clean vessel engine 
cooling water, clean vessel generator cooling water, clean bilge water, 
or anchor wash.
    (iii) 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 (E) and (a)(2)(ii) of this 
section and dredged material deposited at the authorized disposal sites 
described in Appendix D 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) Possessing, moving, removing, or injuring, or attempting to 
possess, 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 lawful fishing 
activities.
    (4) Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing, placing, or abandoning any 
structure, material, or other matter on or in the submerged lands of the 
Sanctuary, except as incidental and necessary to:
    (i) Conduct lawful fishing activities;
    (ii) Anchor a vessel;
    (iii) Conduct aquaculture or kelp harvesting;
    (iv) Install an authorized navigational aid;
    (v) Conduct harbor maintenance in an area necessarily associated 
with a Federal Project in existence on January 1, 1993, including 
dredging of entrance channels and repair, replacement, or rehabilitation 
of breakwaters and jetties;
    (vi) Construct, repair, replace, or rehabilitate a dock or pier; or
    (vii) Collect 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 or in the submerged lands of the 
Sanctuary, other than temporary placement of an authorized hand tool as 
provided in paragraph (a)(1) of this section. The exceptions listed in 
paragraphs (a)(4)(ii) through (a)(4)(vii) of this section do not apply 
within the Davidson Seamount Management Zone.
    (5) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as authorized by the Marine Mammal Protection Act, 
as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as 
amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as 
amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, 
promulgated under the MMPA, ESA, or MBTA.
    (6) Flying motorized aircraft, except as necessary for valid law 
enforcement purposes, at less than 1,000 feet above any of the four 
zones within the Sanctuary described in Appendix B to this subpart.
    (7) Operating motorized personal watercraft within the Sanctuary 
except within the five designated zones and access routes within the 
Sanctuary described in Appendix E to this subpart. Zone Five (at Pillar 
Point) exists only when a High Surf Warning has been issued by the 
National Weather Service and is in effect for San Mateo County, and only 
during December, January, and February.
    (8) Possessing within the Sanctuary (regardless of where taken, 
moved, or removed from), any marine mammal, sea turtle, or bird, except 
as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, 
promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law 
enforcement purposes.
    (9) Deserting a vessel aground, at anchor, or adrift in the 
Sanctuary.

[[Page 166]]

    (10) Leaving harmful matter aboard a grounded or deserted vessel in 
the Sanctuary.
    (11)(i) Moving, removing, taking, collecting, catching, harvesting, 
disturbing, breaking, cutting, or otherwise injuring, or attempting to 
move, remove, take, collect, catch, harvest, disturb, break, cut, or 
otherwise injure, any Sanctuary resource located more that 3,000 feet 
below the sea surface within the Davidson Seamount Management Zone. This 
prohibition does not apply to fishing below 3000 feet within the 
Davidson Seamount Management Zone, which is prohibited pursuant to 50 
CFR part 660 (Fisheries off West Coast States).
    (ii) Possessing any Sanctuary resource the source of which is more 
than 3,000 feet below the sea surface within the Davidson Seamount 
Management Zone. This prohibition does not apply to possession of fish 
resulting from fishing below 3000 feet within the Davidson Seamount 
Management Zone, which is prohibited pursuant to 50 CFR part 660 
(Fisheries off West Coast States).
    (12) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped bass (Morone saxatilis) 
released during catch and release fishing activity.
    (13) Attracting any white shark within the Sanctuary.
    (14) 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)(2) through (11) of this 
section do not apply to an activity necessary to respond to an emergency 
threatening life, property, or the environment.
    (c)(1) All Department of Defense activities must 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 (12) 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, Monterey, CA 93940.) For 
purposes of the Davidson Seamount Management Zone, these activities are 
listed in the 2008 Final Environmental Impact Statement. New activities 
may be exempted from the prohibitions in paragraphs (a)(2) through (12) 
of this section by the Director after consultation between the Director 
and the Department of Defense.
    (2) In the event of destruction of, loss of, or injury to a 
Sanctuary resource or quality resulting from an incident, including but 
not limited to discharges, deposits, and groundings, caused by a 
Department of Defense activity, the Department of Defense, in 
coordination with the Director, must promptly prevent and mitigate 
further damage and must restore or replace the Sanctuary resource or 
quality in a manner approved by the Director.
    (d) The prohibitions in paragraph (a)(1) of this section as it 
pertains to jade collection in the Sanctuary, and paragraphs (a)(2) 
through (11) and (a)(13) of this section, do not apply to any activity 
conducted under and in accordance with the scope, purpose, terms, and 
conditions of a National Marine Sanctuary permit issued pursuant to 15 
CFR 922.48 and 922.133 or a Special Use permit issued pursuant to 
section 310 of the Act.
    (e) The prohibitions in paragraphs (a)(2) through (a)(8) of this 
section do not apply to any activity authorized by any lease, permit, 
license, approval, or other authorization issued after the effective 
date of Sanctuary designation (January 1, 1993) and issued by any 
Federal, State, or local authority of competent jurisdiction, provided 
that the applicant complies with 15 CFR 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

[[Page 167]]

authorizations issued after the effective date of Sanctuary designation.
    (f) Notwithstanding paragraphs (d) and (e) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 15 
CFR 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 15 CFR 922.47, of valid authorizations in 
existence on January 1, 1993 and issued by other authorities of 
competent jurisdiction); or the disposal of dredged material within the 
Sanctuary other than at sites authorized by EPA (in consultation with 
COE) prior to January 1, 1993. Any purported authorizations issued by 
other authorities within the Sanctuary shall be invalid.



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 (11), and Sec. 922.132(a)(13), if such activity 
is specifically authorized by, and conducted in accordance with the 
scope, purpose, terms, and conditions of, a permit issued under this 
section and 15 CFR 922.48.
    (b) The Director, at his or her sole discretion, may issue a permit, 
subject to 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 (11), and 
Sec. 922.132(a)(13), if the Director finds that the activity will have 
at most short-term and negligible adverse effects on Sanctuary resources 
and qualities and:
    (1) Is research designed to further understanding of Sanctuary 
resources and qualities;
    (2) Will further the educational, natural, or historical value of 
the Sanctuary;
    (3) Will further salvage or recovery operations within or near the 
Sanctuary in connection with a recent air or marine casualty;
    (4) Will assist in managing the Sanctuary;
    (5) Will further salvage or recovery operations in connection with 
an abandoned shipwreck in the Sanctuary title to which is held by the 
State of California; or
    (6) Will 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).
    (c) In deciding whether to issue a permit, the Director shall 
consider such factors as:
    (1) Will the activity be conducted by an applicant that is 
professionally qualified to conduct and complete the activity;
    (2) Will the activity be conducted by an applicant with adequate 
financial resources available to conduct and complete the activity;
    (3) Is the activity proposed for no longer than necessary to achieve 
its stated purpose;
    (4) Must the activity be conducted within the Sanctuary;
    (5) Will the activity be conducted using methods and procedures that 
are appropriate to achieve the goals of the proposed activity, 
especially in relation to the potential effects of the proposed activity 
on Sanctuary resources and qualities;
    (6) Will the activity 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 potential indirect, 
secondary, or cumulative effects of the activity, and the duration of 
such effects;
    (7) Will the activity be conducted in a manner compatible with the 
value of the Sanctuary as a source of recreation and as a source of 
educational and scientific information, considering the extent to which 
the conduct of the activity may result in conflicts between different 
users of the Sanctuary and the duration of such effects; and
    (8) Does the reasonably expected end value of the activity to the 
furtherance of the Sanctuary goals and objectives

[[Page 168]]

outweigh any potential adverse effects on Sanctuary resources and 
qualities from the conduct of the activity.
    (d) For jade collection, preference will be given for applications 
proposing to collect loose pieces of jade for research or educational 
purposes.
    (e) The Director may consider such other factors as he or she deems 
appropriate.
    (f) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: 
Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam Street, 
Monterey, CA 93940.
    (2) In addition to the information listed in 15 CFR 922.48(b), all 
applications must include information the Director needs to make the 
findings in paragraph (b) of this section and information to be 
considered by the Director pursuant to paragraph (c) of this section.
    (g) In addition to any other terms and conditions that the Director 
deems appropriate, a permit issued pursuant to this section must require 
that the permittee agree to hold the United States harmless against any 
claims arising out of the conduct of the permitted activities.



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 section 13377 of the California 
Water Code; and
    (ii) Waste Discharge Requirements issued by the State of California 
under section 13263 of the California Water Code.
    (2) The MOA specifies how the process of 15 CFR 922.49 will be 
administered within State waters within the Sanctuary in coordination 
with the State permit program.



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

    [Coordinates in this appendix are unprojected (Geographic Coordinate 
System) and are calculated using the North American Datum of 1983]

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
                            Seaward Boundary
------------------------------------------------------------------------
1..........................................     37.88163      -122.62788
2..........................................     37.66641      -122.75105
3..........................................     37.61622      -122.76937
4..........................................     37.57147      -122.80399
5..........................................     37.52988      -122.85988
6..........................................     37.50948      -122.90614
7..........................................     37.49418      -123.00770
8..........................................     37.50819      -123.09617
9..........................................     37.52001      -123.12879
10.........................................     37.45304      -123.14009
11.........................................     37.34316      -123.13170
12.........................................     37.23062      -123.10431
13.........................................     37.13021      -123.02864
14.........................................     37.06295      -122.91261
15.........................................     37.03509      -122.77639
16.........................................     36.92155      -122.80595
17.........................................     36.80632      -122.81564
18.........................................     36.69192      -122.80539
19.........................................     36.57938      -122.77416
20.........................................     36.47338      -122.72568
21.........................................     36.37242      -122.65789
22.........................................     36.27887      -122.57410
23.........................................     36.19571      -122.47699
24.........................................     36.12414      -122.36527
25.........................................     36.06864      -122.24438
26.........................................     36.02451      -122.11672
27.........................................     35.99596      -121.98232
28.........................................     35.98309      -121.84069
29.........................................     35.98157      -121.75634
30.........................................     35.92933      -121.71119
31.........................................     35.83773      -121.71922
32.........................................     35.72063      -121.71216
33.........................................     35.59497      -121.69030
34.........................................     35.55327      -121.63048
35.........................................     35.55485      -121.09803
36.........................................     37.59437      -122.52082
37.........................................     37.61367      -122.61673
38.........................................     37.76694      -122.65011
39.........................................     37.81760      -122.53048
------------------------------------------------------------------------
                            Harbor Exclusions
------------------------------------------------------------------------
40.........................................     37.49414      -122.48483
41.........................................     37.49540      -122.48576
42.........................................     36.96082      -122.00175
43.........................................     36.96143      -122.00112
44.........................................     36.80684      -121.79145
45.........................................     36.80133      -121.79047
46.........................................     36.60837      -121.88970
47.........................................     36.60580      -121.88965
------------------------------------------------------------------------



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

    The four zones are:

[[Page 169]]

    (1) From mean high water out to three nautical miles (NM) between a 
line extending from Point Santa Cruz on a southwesterly heading bearing 
of 220[deg] true and a line extending from 2.0 nmi north of Pescadero 
Point on a southwesterly heading bearing of 240[deg] true;
    (2) From mean high water out to three nmi between a line extending 
from the Carmel River mouth on a westerly heading bearing of 270[deg] 
true and a line extending due west along latitude 35.55488[deg] off of 
Cambria;
    (3) From mean high water and within a five nmi arc drawn from a 
center point at the end of Moss Landing Pier as it appeared on the most 
current NOAA nautical charts as of January 1, 1993; and
    (4) Over the waters of Elkhorn Slough east of the Highway One bridge 
to Elkhorn Road.



  Sec. Appendix C to Subpart M of Part 922--Dredged Material Disposal 
                       Sites Within the Sanctuary

    [Coordinates in this appendix are unprojected (Geographic Coordinate 
System) and are calculated using the North American Datum of 1983]

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
            Santa Cruz Harbor/Twin Lakes Dredge Disposal Site
------------------------------------------------------------------------
1..........................................      36.9625      -122.00056
2..........................................      36.9625      -121.99861
3..........................................     36.96139      -121.99833
4..........................................     36.96139      -122.00083
------------------------------------------------------------------------
                       SF-12 Dredge Disposal Site
------------------------------------------------------------------------
1..........................................     36.80207      -121.79207
2..........................................     36.80157      -121.79218
3..........................................     36.80172      -121.79325
4..........................................     36.80243      -121.79295
------------------------------------------------------------------------
                       SF-14 Dredge Disposal Site
------------------------------------------------------------------------
                     (circle with 500 yard radius)
1..........................................     36.79799      -121.81907
------------------------------------------------------------------------
              Monterey Harbor/Wharf II Dredge Disposal Site
------------------------------------------------------------------------
1..........................................     36.60297      -121.88942
2..........................................     36.60283      -121.88787
3..........................................     36.60092      -121.88827
4..........................................     36.60120      -121.88978
------------------------------------------------------------------------



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

    [Coordinates in this appendix are unprojected (Geographic Coordinate 
System) and are calculated using the 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 ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     37.76458      -122.56900
2..........................................     37.74963      -122.62281
3..........................................     37.74152      -122.61932
4..........................................     37.75677      -122.56482
5..........................................     37.76458      -122.56900
------------------------------------------------------------------------



Sec. Appendix E to Subpart M of Part 922--Motorized Personal Watercraft 
              Zones and Access Routes Within the Sanctuary

    [Coordinates in this appendix are unprojected (Geographic Coordinate 
System) and are calculated using the North American Datum of 1983]
    The five zones and access routes are:
    (1) The approximately one [1.0] NM2 area off Pillar Point Harbor 
from harbor launch ramps, through harbor entrance to the northern 
boundary of Zone One:

------------------------------------------------------------------------
                  Point ID No.                    Latitude    Longitude
------------------------------------------------------------------------
1 (flashing 5-second breakwater entrance light    37.49395    -122.48477
 and horn located at the seaward end of the
 outer west breakwater)........................
2 (bell buoy)..................................   37.48167    -122.48333
3..............................................   37.48000    -122.46667
4..............................................   37.49333    -122.46667
------------------------------------------------------------------------

    (2) The approximately five [5.0] NM2 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] true (180[deg] magnetic) to the whistle buoy at 
36.93833N, 122.01000 W. Zone Two is bounded by:

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     36.91667      -122.03333
2..........................................     36.91667      -121.96667
3..........................................     36.94167      -121.96667
4..........................................     36.94167      -122.03333
------------------------------------------------------------------------

    (3) The approximately six [6.0] NM2 area off of Moss Landing Harbor 
from harbor launch ramps, through harbor entrance, and then along a 100 
yard wide access route west along a bearing of approximately 270[deg] 
true (255[deg] magnetic) due west to the eastern boundary of Zone Three 
bounded by:

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     36.83333      -121.82167
2..........................................     36.83333      -121.84667
3..........................................     36.77833      -121.84667
4..........................................     36.77833      -121.81667
5 (bell buoy)..............................     36.79833      -121.80167
6..........................................     36.81500      -121.80333
------------------------------------------------------------------------

    (4) The approximately five [5.0] NM2 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

[[Page 170]]

access route due north to the southern boundary of Zone Four bounded by:

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     36.64500      -121.92333
2..........................................     36.61500      -121.87500
3..........................................     36.63833      -121.85500
4..........................................     36.66667      -121.90667
------------------------------------------------------------------------

    (5) The approximately one-tenth [0.10] NM2 area near Pillar Point 
from Pillar Point Harbor entrance along a 100 yard wide access route 
southeast along a true bearing of approximately 174[deg] true (159[deg] 
magnetic) to the bell buoy (identified as ``Buoy 3'') at 37.48154 N, 
122.48156 W and then along a 100 yard wide access route northwest along 
a true bearing of approximately 284[deg] true (269[deg] magnetic) to the 
gong buoy (identified as ``Buoy 1'') at 37.48625 N, 122.50603 W, the 
southwest boundary of Zone Five. Zone Five exists only when a High Surf 
Warning has been issued by the National Weather Service and is in effect 
for San Mateo County and only during December, January, and February. 
Zone Five is bounded by:

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1 (gong buoy identified as ``Buoy 1'').....     37.48625      -122.50603
2..........................................     37.49305      -122.50603
3 (sail rock)..............................     37.49305      -122.50105
4..........................................     37.48625      -122.50105
------------------------------------------------------------------------



 Sec. Appendix F to Subpart M of Part 922--Davidson Seamount Management 
                                  Zone

    [Coordinates in this appendix are unprojected (Geographic Coordinate 
System) and are calculated using the North American Datum of 1983]

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     35.90000      -123.00000
2..........................................     35.90000      -122.50000
3..........................................     35.50000      -122.50000
4..........................................     35.50000      -123.00000
------------------------------------------------------------------------



           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:

[[Page 171]]

    (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.
    (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,

[[Page 172]]

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 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.

[[Page 173]]



   Sec. 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]
------------------------------------------------------------------------



            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;

[[Page 174]]

    (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.
    (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:

[[Page 175]]

    (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 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,

[[Page 176]]

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 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.

[[Page 177]]



Sec. 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.



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

[[Page 178]]

the qualities, values, or purposes for which the Sanctuary is 
designated.
    Airboat means a vessel operated by means of a motor driven propeller 
that pushes air for momentum.
    Areas To Be Avoided means the areas in which vessel operations are 
prohibited pursuant to section 6(a)(1) of the FKNMSPA (see Sec. 
922.164(a)). Appendix VII to this subpart sets forth the geographic 
coordinates of these areas, including any modifications thereto made in 
accordance with section 6(a)(3) of the FKNMSPA.
    Closed means all entry or use is prohibited.
    Coral means but is not limited to the corals of the Class Hydrozoa 
(stinging and hydrocorals); Class Anthozoa, Subclass Hexacorallia, Order 
Scleractinia (stony corals); Class Anthozoa, Subclass Ceriantipatharia, 
Order Antipatharia (black corals); and Class Anthozoa, Subclass 
Ocotocorallia, Order Gorgonacea, species Gorgonia ventalina and Gorgonia 
flabellum (sea fans).
    Coral area means marine habitat where coral growth abounds including 
patch reefs, outer bank reefs, deepwater banks, and hardbottoms.
    Coral reefs means the hard bottoms, deep-water banks, patch reefs, 
and outer bank reefs.
    Ecological Reserve means an area of the Sanctuary consisting of 
contiguous, diverse habitats, within which uses are subject to 
conditions, restrictions and prohibitions, including access 
restrictions, intended to minimize human influences, to provide natural 
spawning, nursery, and permanent residence areas for the replenishment 
and genetic protection of marine life, and also to protect and preserve 
natural assemblages of habitats and species within areas representing a 
broad diversity of resources and habitats found within the Sanctuary. 
Appendix IV to this subpart sets forth the geographic coordinates of 
these areas.
    Existing Management Area means an area of the Sanctuary that is 
within or is a resource management area established by NOAA or by 
another Federal authority of competent jurisdiction as of the effective 
date of these regulations where protections above and beyond those 
provided by Sanctuary-wide prohibitions and restrictions are needed to 
adequately protect resources. Appendix II to this subpart sets forth the 
geographic coordinates of these areas.
    Exotic species means a species of plant, invertebrate, fish, 
amphibian, reptile or mammal whose natural zoogeographic range would not 
have included the waters of the Atlantic Ocean, Caribbean, or Gulf of 
Mexico without passive or active introduction to such area through 
anthropogenic means.
    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

[[Page 179]]

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 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

[[Page 180]]

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.
    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; 74 
FR 38094, July 31, 2009]



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, touching, 
breaking, cutting,

[[Page 181]]

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 622.
    (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;
    (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 yards of the red and white ``divers down'' flag (or 
the blue

[[Page 182]]

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, 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 68B-42 of the Florida 
Administrative Code, 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 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. 922.49, 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 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.
    (d)(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

[[Page 183]]

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 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.
    (e) 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.
    (f) Notwithstanding paragraph (b) of this section and paragraph (a) 
of Sec. 922.168, in no event may the Director issue a permit under 
Sec. 922.166 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.
    (g) 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.

[62 FR 32161, June 12, 1997, as amended at 74 FR 38094, July 31, 2009]



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

[[Page 184]]

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.
    (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.

[[Page 185]]

    (d) Ecological Reserves, Sanctuary Preservation Areas, and Special 
Use (Research only) Areas. (1) The following activities are prohibited 
within the Ecological Reserves described in Appendix IV to this subpart, 
within the Sanctuary Preservation Areas described in Appendix V to this 
subpart, and within the Special Use (Research only Areas) described in 
Appendix VI 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, 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

[[Page 186]]

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 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:

[[Page 187]]

    (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 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.
    (5) In addition to paragraph (e)(3) of this section no person shall 
conduct activities listed in paragraph (d) of this section in 
``Research-only Areas.''
    (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; 74 FR 38095, July 31, 2009]



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;

[[Page 188]]

    (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 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

[[Page 189]]

    (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.
    (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

[[Page 190]]

    (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.
    (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

[[Page 191]]

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.
    (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

[[Page 192]]

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 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  [Reserved]



 Sec. 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,

[[Page 193]]

    (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;
    (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]



  Sec. 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.

[[Page 194]]

 
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.
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.
------------------------------------------------------------------------


[[Page 195]]



 Sec. 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:

                             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]



 Sec. 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.

[[Page 196]]

 
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.
------------------------------------------------------------------------


                            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.

[[Page 197]]



                              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]



 Sec. 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.
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]



Sec. 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.

[[Page 198]]

 
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]



   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

[[Page 199]]

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 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

[[Page 200]]

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 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.;

[[Page 201]]

    (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 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

[[Page 202]]

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.



  Sec. 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 
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 203]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.000

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

[[Page 204]]

[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 205]]

 
 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 206]]

[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 207]]

 
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 208]]

    (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 209]]

    (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 210]]

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 211]]

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 212]]



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.



 Sec. 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]
------------------------------------------------------------------------



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 213]]

    (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 214]]

                  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 215]]

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 216]]

    (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 217]]

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 218]]

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 219]]

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 220]]

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 221]]

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 222]]

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 223]]

    (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 224]]

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 225]]

    (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 226]]

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 227]]

    (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 228]]

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 229]]

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 230]]

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 231]]

    (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 232]]

    (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 233]]

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 234]]

    (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 235]]

    (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 236]]

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 237]]



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;

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    (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