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



[[Page 5997]]

Vol. 78

Monday,

No. 18

January 28, 2013

Part III





 Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 922





Amendments to National Marine Sanctuary Regulations; Proposed Rule

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

[[Page 5998]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

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


Amendments to National Marine Sanctuary Regulations

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

ACTION: Proposed rule; request for public comments.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Electronic Access

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

I. Background

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

II. Summary of the Proposed Amendments

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

[[Page 5999]]

A. General Regulations

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

C. Boundary Descriptions

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

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

D. Definitions

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

[[Page 6001]]

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

[[Page 6002]]

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

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

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

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

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

[[Page 6003]]

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

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

D. Permitting Regulations

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

[[Page 6004]]

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

[[Page 6005]]

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

E. Other Conforming and Administrative Changes

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

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

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


[[Page 6006]]



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

[[Page 6007]]

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

III. Request for Comments

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

[[Page 6008]]

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

IV. Classification

A. National Environmental Policy Act

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

B. Executive Orders 12866 and 13563

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

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

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

D. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism

[[Page 6009]]

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

E. Paperwork Reduction Act

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

F. Regulatory Flexibility Act

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

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

List of Subjects in 15 CFR Part 922

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

David M. Kennedy,
Assistant Administrator for Ocean Services and Coastal Zone Management.
    Accordingly, for the reasons set forth above, NOAA proposes to 
amend 15 CFR part 922 as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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

0
2. Revise part 922 Subpart A to read as follows:
Subpart A--General and Regulations of General Applicability
Sec.
922.1 Purposes and applicability of the regulations.
922.2 Mission, goal, and special policies.
922.3 Issuance of regulations for fishing.
922.4 Boundaries.
922.5 Allowed activities.
922.6 Prohibited or otherwise regulated activities.
922.7 Emergency regulations.
922.8 Penalties.
922.9 Response costs and damages.
922.10 Pre-existing authorizations or rights and certifications of 
pre-existing authorizations or rights.
922.11 Definitions.
922.12 Site Evaluation List (SEL).

Subpart A--General and Regulations of General Applicability


Sec.  922.1  Purposes and applicability of the regulations.

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

[[Page 6010]]

integrity and continued availability of the conservation, recreational, 
ecological, historical, scientific, educational, cultural, 
archeological and aesthetic resources and qualities of these areas.
    (b) The regulations of this part are binding on any person subject 
to the jurisdiction of the United States. Designation of a national 
marine sanctuary beyond the U.S. territorial sea does not constitute 
any claim to territorial jurisdiction on the part of the United States. 
The regulations of this part shall be applied in accordance with 
generally recognized principles of international law, and in accordance 
with treaties, conventions, and other agreements to which the United 
States is a party. No regulation of this part shall apply to a person 
who is not a citizen, national, or resident alien of the United States, 
unless in accordance with:
    (1) Generally recognized principles of international law;
    (2) An agreement between the United States and the foreign state of 
which the person is a citizen; or
    (3) An agreement between the United States and the flag state of 
the foreign vessel, if the person is a crew member of the vessel.
    (c) Unless noted otherwise, the regulations in Subparts A and D 
apply to all national marine sanctuaries immediately upon designation.


Sec.  922.2  Mission, goal, and special policies.

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


Sec.  922.3  Issuance of regulations for fishing.

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


Sec.  922.4  Boundaries.

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


Sec.  922.5  Allowed activities.

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


Sec.  922.6  Prohibited or otherwise regulated activities.

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


Sec.  922.7  Emergency regulations.

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


Sec.  922.8  Penalties.

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


Sec.  922.9  Response costs and damages.

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

[[Page 6011]]

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


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

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


Sec.  922.11  Definitions.

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

[[Page 6012]]

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

[[Page 6013]]

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


Sec.  922.12  Site Evaluation List (SEL)

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

Subpart B--[RESERVED]

0
4. Remove and reserve part 922 subpart C.

Subpart C--[RESERVED]

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

Subpart D--National Marine Sanctuary Permitting


Sec.  922.30  National Marine Sanctuary general permits.

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


Sec.  922.31  National Marine Sanctuary special use permits.

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


Sec.  922.32  Application requirements and procedures.

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

[[Page 6014]]

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


Sec.  922.33  Review procedures and evaluation.

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


Sec.  922.34  Permit amendments, including renewals.

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


Sec.  922.35  Special Use Permit fees.

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

[[Page 6015]]

Sec.  922.36  National Marine Sanctuary authorizations.

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


Sec.  922.37  Appeals of permitting decisions.

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

[[Page 6016]]

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

Subpart E-- [RESERVED]

Subpart F--Monitor National Marine Sanctuary

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


Sec.  922.60  Boundary.

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


Sec.  922.62  Permit procedures.

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

Subpart G--Channel Islands National Marine Sanctuary

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


Sec.  922.70  Boundary.

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

0
10. Remove and reserve Sec.  922.71.


Sec.  922.71  [Reserved]

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


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

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


Sec.  922.74  Permit procedures.

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

Subpart H--Gulf of the Farallones National Marine Sanctuary

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


Sec.  922.80  Boundary.

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

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


Sec.  922.81  Definitions.

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

[[Page 6017]]

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

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


Sec.  922.82  Prohibited or otherwise regulated activities.

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


Sec.  922.83  Permit procedures.

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

Subpart I--Gray's Reef National Marine Sanctuary

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


Sec.  922.90  Boundary.

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


Datum: NAD83

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

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


Sec.  922.91  Definitions.

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


Sec.  922.92  Prohibited or otherwise regulated activities.

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


Sec.  922.93  Permit procedures.

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

Subpart J--National Marine Sanctuary of American Samoa

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


Sec.  922.101  Boundary.

    The Sanctuary is comprised of six distinct units, forming a network 
of marine protected areas around the islands of the Territory of 
American Samoa. Tables containing the exact coordinates of each point 
described below can be found in Appendix to Subpart J--National Marine 
Sanctuary of American Samoa Boundary Coordinates.
    (a) Fagatele Bay Unit. The Fagatele Bay unit is approximately a 
0.189 square nautical miles (nmi\2\) coastal embayment formed by a 
collapsed volcanic crater on the island of Tutuila, Territory of 
American Samoa and includes Fagatele Bay in its entirety. The landward 
boundary is defined by the mean high high water (MHHW) line of Fagatele 
Bay until the point at which it intersects the seaward boundary of the 
Sanctuary as defined by a straight line between Fagatele Point (S 
14.36527 degrees, W 170.76932 degrees) and Steps Point (S 14.37291 
degrees, W 170.76056 degrees) from the point at which it intersects the 
mean high high water line seaward.
* * * * *
0
22. Revise Sec.  922.102 to read as follows:


Sec.  922.102  Definitions.

    In addition to those definitions found at Sec.  922.11, the 
following definitions apply to this subpart:
    Live rock means any Coral, basalt rock, or other natural structure 
with any living organisms growing in or on the Coral, basalt rock, or 
structure.
0
23. Revise Sec.  922.103 paragraph (e) to read as follows:


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

* * * * *
    (e) The prohibitions in paragraphs (a)(2) through (15) of this 
section, Sec.  922.104, and Sec.  922.105 do not apply to any activity 
conducted under and in accordance with the scope, purpose, terms, and 
conditions of a National Marine Sanctuary permit issued pursuant to 
subpart D of this part and Sec.  922.107.
0
24. Revise Sec.  922.107 to read as follows:
    (a) Any person in possession of a valid permit issued by the 
Director, in consultation with the ASDOC, in accordance with this 
section and subpart D of the part may conduct an activity otherwise 
prohibited by Sec.  922.103, Sec.  922.104, and Sec.  922.105 in the 
Sanctuary.
    (b) Permit applications shall be addressed to the Director, Office 
of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, 
American Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 
96799.

Subpart K--Cordell Bank National Marine Sanctuary

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

[[Page 6018]]

Sec.  922.110  Boundary.

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

0
26. Remove and reserve Sec.  922.111.


Sec.  922.111  [Reserved]

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


Sec.  922.112  Prohibited or otherwise regulated activities.

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


Sec.  922.113  Permit procedures.

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

Subpart L--Flower Garden Banks National Marine Sanctuary

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


Sec.  922.120  Boundary.

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


Sec.  922.121  Definitions.

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


Sec.  922.122  Prohibited or otherwise regulated activities.

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


Sec.  922.123  Permit procedures.

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

Subpart M--Monterey Bay National Marine Sanctuary

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


Sec.  922.130  Boundary.

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

[[Page 6019]]

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

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


Sec.  922.131  Definitions.

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


Sec.  922.132  Prohibited or otherwise regulated activities.

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


Sec.  922.133  Permit procedures.

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

Subpart N--Stellwagen Bank National Marine Sanctuary

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


Sec.  922.140  Boundary.

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

[[Page 6020]]

Sec.  922.141  Definitions.

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


Sec.  922.142  Prohibited or otherwise regulated activities:

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


Sec.  922.143  Permit procedures.

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

Subpart O--Olympic Coast National Marine Sanctuary

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


Sec.  922.150  Boundary.

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


Sec.  922.151  Definitions.

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


Sec.  922.152  Prohibited or otherwise regulated activities:

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


Sec.  922.153  Permit procedures.

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

Subpart P--Florida Keys National Marine Sanctuary

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

[[Page 6021]]

Sec.  922.161  Boundary.

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


Sec.  922.162  Definitions.

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

[[Page 6022]]

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


Sec.  922.163  Prohibited activities--Sanctuary-wide.

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


Sec.  922.164  Additional activity regulations by Sanctuary area.

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

[[Page 6023]]

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

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


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

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

Subpart Q--Hawaiian Islands Humpback Whale National Marine 
Sanctuary

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


Sec.  922.181  Boundary.

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

[[Page 6024]]

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


Sec.  922.182  Definitions.

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

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

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


Sec.  922.190  Boundary.

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

0
55. Remove and reserve Sec.  922.194.


Sec.  922.194  [Reserved].

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

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