Title 15—Commerce and Foreign Trade--Volume 1
PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
§ 922.164   Additional activity regulations by Sanctuary area.
In addition to the prohibitions set forth in § 922.163, which apply throughout the Sanctuary, the following regulations apply with respect to activities conducted within the Sanctuary areas described in this section and in Appendix (II) through (VII) to this subpart. Activities located within two or more overlapping Sanctuary areas are concurrently subject to the regulations applicable to each overlapping area.
(a) Areas to be avoided. Operating a tank vessel or a vessel greater than 50 meters in registered length is prohibited in all areas to be avoided, except if such vessel is a public vessel and its operation is essential for national defense, law enforcement, or responses to emergencies that threaten life, property, or the environment. Appendix VII to this subpart sets forth the geographic coordinates of these areas.
(b) Existing management areas —(1) Key Largo and Looe Key Management Areas. The following activities are prohibited within the Key Largo and Looe Key Management Areas (also known as the Key Largo and Looe Key National Marine Sanctuaries) described in appendix II to this subpart:
(i) Removing, taking, damaging, harmfully disturbing, breaking, cutting, spearing or similarly injuring any coral or other marine invertebrate, or any plant, soil, rock, or other material, except commercial taking of spiny lobster and stone crab by trap and recreational taking of spiny lobster by hand or by hand gear which is consistent with these regulations and the applicable regulations implementing the applicable Fishery Management Plan.
(ii) Taking any tropical fish.
(iii) Fishing with wire fish traps, bottom trawls, dredges, fish sleds, or similar vessel-towed or anchored bottom fishing gear or nets.
(iv) Fishing with, carrying or possessing, except while passing through without interruption or for law enforcement purposes: pole spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber powered arbaletes, pneumatic and spring-loaded guns or similar devices known as spearguns.
(2) Great White Heron and Key West National Wildlife Refuge Management Areas. Operating a personal watercraft, operating an airboat, or water skiing except within Township 66 South, Range 29 East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East, Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all Tallahassee Meridian, are prohibited within the marine portions of the Great White Heron and Key West National Wildlife Refuge Management Areas described in appendix II to this subpart.
(c) Wildlife management areas. (1) Marine portions of the Wildlife Management Areas listed in appendix III to this subpart or portions thereof may be designated “idle speed only/no-wake,” “no-motor” or “no-access buffer” zones or “closed”. The Director, in cooperation with other Federal, State, or local resource management authorities, as appropriate, shall post signs conspicuously, using mounting posts, buoys, or other means according to location and purpose, at appropriate intervals and locations, clearly delineating an area as an “idle speed only/no wake”, a “no-motor”, or a “no-access buffer” zone or as “closed”, and allowing instant, long-range recognition by boaters. Such signs shall display the official logo of the Sanctuary.
(2) The following activities are prohibited within the marine portions of the Wildlife Management Areas listed in appendix III to this subpart:
(i) In those marine portions of any Wildlife Management Area designated an “idle speed only/no wake” zone in appendix III to this subpart, operating a vessel at a speed greater that idle speed only/no wake.
(ii) In those marine portions of any Wildlife Management Area designated a “no-motor” zone in appendix III to this subpart, using internal combustion motors or engines for any purposes. A vessel with an internal combustion motor or engine may access a “no-motor” zone only through the use of a push pole, paddle, sail, electric motor or similar means of propulsion.
(iii) In those marine portions of any Wildlife Management Area designated a “no-access buffer” zone in appendix III of this subpart, entering the area by vessel.
(iv) In those marine portions of any Wildlife Management Area designated as closed in appendix III of this subpart, entering or using the area.
(3) The Director shall coordinate with other Federal, State, or local resource management authorities, as appropriate, in the establishment and enforcement of access restrictions described in paragraph (c)(2) (i)-(iv) of this section in the marine portions of Wildlife Management Areas.
(4) The Director may modify the number and location of access restrictions described in paragraph (c)(2) (i)-(iv) of this section within the marine portions of a Wildlife Management Area if the Director finds that such action is reasonably necessary to minimize disturbances to Sanctuary wildlife, or to ensure protection and preservation of Sanctuary wildlife consistent with the purposes of the Sanctuary designation and other applicable law governing the protection and preservation of wildlife resources in the Sanctuary. The Director will effect such modification by:
(i) Publishing in the Federal Register, after notice and an opportunity for public comments in accordance, an amendment to the list of such areas set forth in appendix III to this subpart, and a notice regarding the time and place where maps depicting the precise locations of such restrictions will be made available for public inspection, and
(ii) Posting official signs delineating such restrictions in accordance with paragraph (c)(1) of this section.
(d) Ecological Reserves, Sanctuary Preservation Areas, and Special Use (Research only) Areas. (1) The following activities are prohibited within the Ecological Reserves described in appendix IV to this subpart, within the Sanctuary Preservation Areas described in appendix V to this subpart, and within the Special Use (Research only Areas) described in appendix VI to this subpart:
(i) Discharging or depositing any material or other matter except cooling water or engine exhaust.
(ii) Possessing, moving, harvesting, removing, taking, damaging, disturbing, breaking, cutting, spearing, or otherwise injuring any coral, marine invertebrate, fish, bottom formation, algae, seagrass or other living or dead organism, including shells, or attempting any of these activities. However, fish, invertebrates, and marine plants may be possessed aboard a vessel in an Ecological Reserve or Sanctuary Preservation Area, provided such resources can be shown not to have been harvested within, removed from, or taken within, the Ecological Reserve or Sanctuary Preservation Area, as applicable, by being stowed in a cabin, locker, or similar storage area prior to entering and during transit through such reserves or areas, provided further that in an Ecological Reserve or Sanctuary Preservation Area located in Florida State waters, such vessel is in continuous transit through the Ecological Reserve or Sanctuary Preservation Area.
(iii) Except for catch and release fishing by trolling in the Conch Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any means. However, gear capable of harvesting fish may be aboard a vessel in an Ecological Reserve or Sanctuary Preservation Area, provided such gear is not available for immediate use when entering and during transit through such Ecological Reserve or Sanctuary Preservation Area, and no presumption of fishing activity shall be drawn therefrom.
(iv) Touching living or dead coral, including but not limited to, standing on a living or dead coral formation.
(v) Anchoring in the Tortugas Ecological Reserve. In all other Ecological Reserves and Sanctuary Preservation Areas, placing any anchor in a way that allows the anchor or any portion of the anchor apparatus (including the anchor, chain or rope) to touch living or dead coral, or any attached living organism. When anchoring dive boats, the first diver down must inspect the anchor to ensure that it is not touching living or dead coral, and will not shift in such a way as to touch such coral or other attached organism. No further diving shall take place until the anchor is placed in accordance with these requirements.
(vi) Except in the Tortugas Ecological Reserve where mooring buoys must be used, anchoring instead of mooring when a mooring buoy is available or anchoring in other than a designated anchoring area when such areas have been designated and are available.
(vii) Except for passage without interruption through the area, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of this section, violating a temporary access restriction imposed by the Director pursuant to paragraph (d)(2) of this section.
(viii) Except for passage without interruption through the area, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of this section: entering the Tortugas South area of the Tortugas Ecological Reserve; or entering the Tortugas North area of the Tortugas Ecological Reserve without a valid access permit issued pursuant to § 922.167 or entering or leaving the Tortugas North area with a valid access permit issued pursuant to § 922.167 without notifying FKNMS staff at the Dry Tortugas National Park office by telephone or radio no less than 30 minutes and no more than 6 hours, before entering and upon leaving the Tortugas Ecological Reserve.
(ix) Tying a vessel greater than 100 feet (30.48 meters) LOA, or tying more than one vessel (other than vessels carried on board a vessel) if the combined lengths would exceed 100 feet (30.48 meters) LOA, to a mooring buoy or to a vessel tied to a mooring buoy in the Tortugas Ecological Reserve.
(2) The Director may temporarily restrict access to any portion of any Sanctuary Preservation Area or Ecological Reserve if the Director, on the basis of the best available data, information and studies, determines that a concentration of use appears to be causing or contributing to significant degradation of the living resources of the area and that such action is reasonably necessary to allow for recovery of the living resources of such area. The Director will provide for continuous monitoring of the area during the pendency of the restriction. The Director will provide public notice of the restriction by publishing a notice in the Federal Register, and by such other means as the Director may deem appropriate. The Director may only restrict access to an area for a period of 60 days, with one additional 60 day renewal. The Director may restrict access to an area for a longer period pursuant to a notice and opportunity for public comment rulemaking under the Administrative Procedure Act. Such restriction will be kept to the minimum amount of area necessary to achieve the purposes thereof.
(e) Special-use Areas. (1) The Director may set aside discrete areas of the Sanctuary as Special-use Areas, and, by designation pursuant to this paragraph, impose the access and use restrictions specified in paragraph (e)(3) of this section. Special-use Areas are described in appendix VI to this subpart, in accordance with the following designations and corresponding objectives:
(i) “Recovery area” to provide for the recovery of Sanctuary resources from degradation or other injury attributable to human uses;
(ii) “Restoration area” to provide for restoration of degraded or otherwise injured Sanctuary resources;
(iii) “Research-only area” to provide for scientific research or education relating to protection and management, through the issuance of a Sanctuary General permit for research pursuant to § 922.166 of these regulations; and
(iv) “Facilitated-use area” to provide for the prevention of use or user conflicts or the facilitation of access and use, or to promote public use and understanding, of Sanctuary resources through the issuance of special-use permits.
(2) A Special-use Area shall be no larger than the size the Director deems reasonably necessary to accomplish the applicable objective.
(3) Persons conducting activities within any Special-use Area shall comply with the access and use restrictions specified in this paragraph and made applicable to such area by means of its designation as a “recovery area,” “restoration area,” “research-only area,” or “facilitated-use area.” Except for passage without interruption through the area or for law enforcement purposes, no person may enter a Special-use Area except to conduct or cause to be conducted the following activities:
(i) In such area designated as a “recovery area” or a “restoration area”, habitat manipulation related to restoration of degraded or otherwise injured Sanctuary resources, or activities reasonably necessary to monitor recovery of degraded or otherwise injured Sanctuary resources;
(ii) In such area designated as a “research only area”, scientific research or educational use specifically authorized by and conducted in accordance with the scope, purpose, terms and conditions of a valid National Marine Sanctuary General or Historical Resources permit, or
(iii) In such area designated as a “facilitated-use area”, activities specified by the Director or specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a valid Special-use permit.
(4)(i) The Director may modify the number of, location of, or designations applicable to, Special-use Areas by publishing in the Federal Register, after notice and an opportunity for public comment in accordance with the Administrative Procedure Act, an amendment to appendix VI to this subpart, except that, with respect to such areas designated as a “recovery area,” “restoration area,” or “research only area,” the Director may modify the number of, location of, or designation applicable to, such areas by publishing a notice of such action in the Federal Register if the Director determines that immediate action is reasonably necessary to:
(A) Prevent significant injury to Sanctuary resources where circumstances create an imminent risk to such resources;
(B) Initiate restoration activity where a delay in time would significantly impair the ability of such restoration activity to succeed;
(C) Initiate research activity where an unforeseen natural event produces an opportunity for scientific research that may be lost if research is not initiated immediately.
(ii) If the Director determines that a notice of modification must be promulgated immediately in accordance with paragraph (e)(4)(i) of this section, the Director will, as part of the same notice, invite public comment and specify that comments will be received for 15 days after the effective date of the notice. As soon as practicable after the end of the comment period, the Director will either rescind, modify or allow the modification to remain unchanged through notice in the Federal Register.
(5) In addition to paragraph (e)(3) of this section no person shall conduct activities listed in paragraph (d) of this section in “Research-only Areas.”
(f) Additional Wildlife Management Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-use Areas, and additional restrictions in such areas, shall not take effect in Florida State waters unless first approved by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida.
(g) Anchoring on Tortugas Bank. Vessels 50 meters or greater in registered length, are prohibited from anchoring on the portion of Tortugas Bank within the Florida Keys National Marine Sanctuary west of the Dry Tortugas National Park that is outside of the Tortugas Ecological Reserve. The boundary of the area closed to anchoring by vessels 50 meters or greater in registered length is formed by connecting in succession the points at the following coordinates (based on the North American Datum of 1983):
§ 922.165   Emergency regulations.
Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. Emergency regulations shall not take effect in Florida territorial waters until approved by the Governor of the State of Florida. Any temporary regulation may be in effect for up to 60 days, with one 60-day extension. Additional or extended action will require notice and comment rulemaking under the Administrative Procedure Act, notice in local newspapers, notice to Mariners, and press releases.
§ 922.166   Permits other than for access to the Tortugas Ecological Reserve—application procedures and issuance criteria.
(a) A person may conduct an activity otherwise prohibited by § 922.163 or § 922.164 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.
(1) 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 33040.
(2) For activities proposed to be conducted within any of the areas described in § 922.164 (b) through (e), the Director shall not issue a permit unless he or she further finds that such activities will further and are consistent with the purposes for which such area was established, as described in §§ 922.162 and 922.164 and in the management plan for the Sanctuary.
(3) A person may conduct an activity otherwise prohibited by § 922.163 or § 922.164, if such 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, and any additional permit issuance criteria and requirements in paragraphs (b), (c), (f), and (i) through (m) of this section.
(b) National Marine Sanctuary Survey/Inventory of Historical Resources Permit. (1) A person may conduct an activity prohibited by §§ 922.163 or 922.164 involving the survey/inventory of Sanctuary historical resources if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Survey/Inventory of Historical Resources permit issued under this paragraph (b). Such permit is not required if such survey/inventory activity does not involve any activity prohibited by §§ 922.163 or 922.164. Thus, survey/inventory activities that are non-intrusive, do not include any excavation, removal, or recovery of historical resources, and do not result in destruction of, loss of, or injury to Sanctuary resources or qualities do not require a permit. However, if a survey/inventory activity will involve test excavations or removal of artifacts or materials for evaluative purposes, a Survey/Inventory of Historical Resources permit is required. Regardless of whether a Survey/Inventory permit is required, a person may request such permit. Persons who have demonstrated their professional abilities under a Survey/Inventory permit will be given preference over other persons in consideration of the issuance of a Research/Recovery permit. While a Survey/Inventory permit does not grant any rights with regards to areas subject to pre-existing rights of access which are still valid, once a permit is issued for an area, other survey/inventory permits will not be issued for the same area during the period for which the permit is valid.
(2) The Director, at his or her discretion, may issue a Survey/Inventory permit under this paragraph (b), subject to such terms and conditions as he or she deems appropriate, if the Director finds that such activity:
(i) Satisfies the requirements for a permit issued under paragraph (a)(3) of this section;
(ii) Either will be non-intrusive, not include any excavation, removal, or recovery of historical resources, and not result in destruction of, loss of, or injury to Sanctuary resources or qualities, or if intrusive, will involve no more than the minimum manual alteration of the seabed and/or the removal of artifacts or other material necessary for evaluative purposes and will cause no significant adverse impacts on Sanctuary resources or qualities; and
(iii) That such activity will be conducted in accordance with all requirements of the Programmatic Agreement for the Management of Submerged Cultural Resources in the Florida Keys National Marine Sanctuary among NOAA, the Advisory Council on Historic Preservation, and the State of Florida (hereinafter SCR Agreement), and that such permit issuance is in accordance with such SCR Agreement. Copies of the SCR Agreement may also be examined at, and obtained from, the Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD 20910; or from the Florida Keys National Marine Sanctuary Office, P.O. Box 500368, Marathon, FL 33050.
(c) National Marine Sanctuary Research/Recovery of Sanctuary Historical Resources Permit. (1) A person may conduct any activity prohibited by §§ 922.163 or 922.164 involving the research/recovery of Sanctuary historical resources if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Research/Recovery of Historical Resources permit issued under this paragraph (c).
(2) The Director, at his or her discretion, may issue a Research/Recovery of Historical Resources permit, under this paragraph (c), and subject to such terms and conditions as he or she deems appropriate, if the Director finds that:
(i) Such activity satisfies the requirements for a permit issued under paragraph (a)(3) of this section;
(ii) The recovery of the resource is in the public interest as described in the SCR Agreement;
(iii) Recovery of the resource is part of research to preserve historic information for public use; and
(iv) Recovery of the resource is necessary or appropriate to protect the resource, preserve historical information, and/or further the policies and purposes of the NMSA and the FKNMSPA, and that such permit issuance is in accordance with, and that the activity will be conducted in accordance with, all requirements of the SCR Agreement.
(d) National Marine Sanctuary Special-use Permit. (1) A person may conduct any commercial or concession-type activity prohibited by §§ 922.163 or 922.164, if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Special-use permit issued under this paragraph (d). A Special-use permit is required for the deaccession/transfer of Sanctuary historical resources.
(2) The Director, at his or her discretion, may issue a Special-use permit in accordance with this paragraph (d), and subject to such terms and conditions as he or she deems appropriate and the mandatory terms and conditions of section 310 of the NMSA, if the Director finds that issuance of such permit is reasonably necessary to: establish conditions of access to and use of any Sanctuary resource; or promote public use and understanding of any Sanctuary resources. No permit may be issued unless the activity is compatible with the purposes for which the Sanctuary was designated and can be conducted in a manner that does not destroy, cause the loss of, or injure any Sanctuary resource, and if for the deaccession/transfer of Sanctuary Historical Resources, unless such permit issuance is in accordance with, and that the activity will be conducted in accordance with, all requirements of the SCR Agreement.
(3) The Director may assess and collect fees for the conduct of any activity authorized by a Special-use permit issued pursuant to this paragraph (d). No Special-use permit shall be effective until all assessed fees are paid, unless otherwise provided by the Director by a fee schedule set forth as a permit condition. In assessing a fee, the Director shall include:
(i) All costs incurred, or expected to be incurred, in reviewing and processing the permit application, including, but not limited to, costs for:
(A) Number of personnel;
(B) Personnel hours;
(C) Equipment;
(D) Biological assessments;
(E) Copying; and
(F) Overhead directly related to reviewing and processing the permit application;
(ii) All costs incurred, or expected to be incurred, as a direct result of the conduct of the activity for which the Special-use permit is being issued, including, but not limited to:
(A) The cost of monitoring the conduct both during the activity and after the activity is completed in order to assess the impacts to Sanctuary resources and qualities;
(B) The use of an official NOAA observer, including travel and expenses and personnel hours; and
(C) Overhead costs directly related to the permitted activity; and
(iii) An amount which represents the fair market value of the use of the Sanctuary resource and a reasonable return to the United States Government.
(4) Nothing in this paragraph (d) shall be considered to require a person to obtain a permit under this paragraph for the conduct of any fishing activities within the Sanctuary.
(e) Applications. (1) Applications for permits should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O. Box 500368, Marathon, FL 33050. All applications must include:
(i) A detailed description of the proposed activity including a timetable for completion of the activity and the equipment, personnel and methodology to be employed;
(ii) The qualifications and experience of all personnel;
(iii) The financial resources available to the applicant to conduct and complete the proposed activity;
(iv) A statement as to why it is necessary to conduct the activity within the Sanctuary;
(v) The potential impacts of the activity, if any, on Sanctuary resources and qualities;
(vi) The benefit to be derived from the activity; and
(vii) Such other information as the Director may request depending on the type of activity. Copies of all other required licenses, permits, approvals, or other authorizations must be attached to the application.
(2) Upon receipt of an application, the Director may request such additional information from the applicant as he or she deems reasonably necessary to act on the application and may seek the views of any persons. The Director may require a site visit as part of the permit evaluation. Unless otherwise specified, the information requested must be received by the Director within 30 days of the postmark date of the request. Failure to provide such additional information on a timely basis may be deemed by the Director to constitute abandonment or withdrawal of the permit application.
(f) A permit may be issued for a period not exceeding five years. All permits will be reviewed annually to determine the permittee's compliance with permit scope, purpose, terms and conditions and progress toward reaching the stated goals and appropriate action taken under paragraph (g) of this section if warranted. A permittee may request permit renewal pursuant to the same procedures for applying for a new permit. Upon the permittee's request for renewal, the Director shall review all reports submitted by the permittee as required by the permit conditions. In order to renew the permit, the Director must find that the:
(1) Activity will continue to further the purposes for which the Sanctuary was designated in accordance with the criteria applicable to the initial issuance of the permit;
(2) Permittee has at no time violated the permit, or these regulations; and
(3) The activity has not resulted in any unforeseen adverse impacts to Sanctuary resources or qualities.
(g) The Director may amend, suspend, or revoke a permit for good cause. The Director may deny a permit application, in whole or in part, if it is determined that the permittee or applicant has acted in violation of a previous permit, of these regulations, of the NMSA or FKNMSPA, or for other good cause. Any such action shall be communicated in writing to the permittee or applicant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for enforcement reasons are set forth in Subpart D of 15 CFR part 904.
(h) The applicant for or holder of a National Marine Sanctuary permit may appeal the denial, conditioning, amendment, suspension or revocation of the permit in accordance with the procedures set forth in § 922.50.
(i) A permit issued pursuant to this section other than a Special-use permit is nontransferable. Special-use permits may be transferred, sold, or assigned with the written approval of the Director. The permittee shall provide the Director with written notice of any proposed transfer, sale, or assignment no less than 30 days prior to its proposed consummation. Transfers, sales, or assignments consummated in violation of this requirement shall be considered a material breach of the Special-use permit, and the permit shall be considered void as of the consummation of any such transfer, sale, or assignment.
(j) The permit or a copy thereof shall be maintained in legible condition on board all vessels or aircraft used in the conduct of the permitted activity and be displayed for inspection upon the request of any authorized officer.
(k) Any permit issued pursuant to this section shall be subject to the following terms and conditions:
(1) All permitted activities shall be conducted in a manner that does not destroy, cause the loss of, or injure Sanctuary resources or qualities, except to the extent that such may be specifically authorized.
(2) The permittee agrees to hold the United States harmless against any claims arising out of the conduct of the permitted activities.
(3) All necessary Federal, State, and local permits from all agencies with jurisdiction over the proposed activities shall be secured before commencing field operations.
(l) In addition to the terms and conditions listed in paragraph (k) of this section, any permit authorizing the research/recovery of historical resources shall be subject to the following terms and conditions:
(1) A professional archaeologist shall be in charge of planning, field recovery operations, and research analysis.
(2) An agreement with a conservation laboratory shall be in place before field recovery operations are begun, and an approved nautical conservator shall be in charge of planning, conducting, and supervising the conservation of any artifacts and other materials recovered.
(3) A curation agreement with a museum or facility for curation, public access and periodic public display, and maintenance of the recovered historical resources shall be in place before commencing field operations (such agreement for the curation and display of recovered historical resources may provide for the release of public artifacts for deaccession/transfer if such deaccession/transfer is consistent with preservation, research, education, or other purposes of the designation and management of the Sanctuary. Deaccession/transfer of historical resources requires a Special-use permit issued pursuant to paragraph (d) and such deaccession/transfer shall be executed in accordance with the requirements of the SCR Agreement).
(4) The site's archaeological information is fully documented, including measured drawings, site maps drawn to professional standards, and photographic records.
(m) In addition to the terms and conditions listed in paragraph (k) and (l) of this section, any permit issued pursuant to this section is subject to such other terms and conditions, including conditions governing access to, or use of, Sanctuary resources, as the Director deems reasonably necessary or appropriate and in furtherance of the purposes for which the Sanctuary is designated. Such terms and conditions may include, but are not limited to:
(1) Any data or information obtained under the permit shall be made available to the public.
(2) A NOAA official shall be allowed to observe any activity conducted under the permit.
(3) The permittee shall submit one or more reports on the status, progress, or results of any activity authorized by the permit.
(4) The permittee shall submit an annual report to the Director not later than December 31 of each year on activities conducted pursuant to the permit. The report shall describe all activities conducted under the permit and all revenues derived from such activities during the year and/or term of the permit.
(5) The permittee shall purchase and maintain general liability insurance or other acceptable security against potential claims for destruction, loss of, or injury to Sanctuary resources arising out of the permitted activities. The amount of insurance or security should be commensurate with an estimated value of the Sanctuary resources in the permitted area. A copy of the insurance policy or security instrument shall be submitted to the Director.
§ 922.167   Permits for access to the Tortugas Ecological Reserve.
(a) A person may enter the Tortugas North area of the Tortugas Ecological Reserve other than for passage without interruption through the reserve, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of § 922.164 , if authorized by a valid access permit issued pursuant to § 922.167.
(b)(1) Access permits must be requested at least 72 hours but no longer than one month before the date the permit is desired to be effective. Access permits do not require written applications or the payment of any fee. Permits may be requested via telephone or radio by contacting FKNMS at any of the following numbers:
(2) The following information must be provided, as applicable:
(i) Vessel name.
(ii) Name, address, and telephone number of owner and operator.
(iii) Name, address, and telephone number of applicant.
(iv) USCG documentation, state license, or registration number.
(v) Home port.
(vi) Length of vessel and propulsion type ( i.e., motor or sail).
(vii) Number of divers.
(viii) Requested effective date and duration of permit (2 weeks, maximum).
(c) The Sanctuary Superintendent will issue a permit to the owner or to the owner's representative for the vessel when all applicable information has been provided. The Sanctuary Superintendent will provide a permit number to the applicant and confirm the effective date and duration period of the permit. Written confirmation of permit issuance will be provided upon request.
§ 922.168   [Reserved]
§ 922.180   Purpose.
(a) The purpose of the regulations in this subpart is to implement the designation of the Hawaiian Islands Humpback Whale National Marine Sanctuary by regulating activities affecting the resources of the Sanctuary or any of the qualities, values, or purposes for which the Sanctuary was designated, in order to protect, preserve, and manage the conservation, ecological, recreational, research, educational, historical, cultural, and aesthetic resources and qualities of the area. The regulations are intended to supplement and complement existing regulatory authorities; to facilitate to the extent compatible with the primary objective of protecting the humpback whale and its habitat, all public and private uses of the Sanctuary, including uses of Hawaiian natives customarily and traditionally exercised for subsistence, cultural, and religious purposes, as well as education, research, recreation, commercial and military activities; to reduce conflicts between compatible uses; to maintain, restore, and enhance the humpback whale and its habitat; to contribute to the maintenance of natural assemblages of humpback whales for future generations; to provide a place for humpback whales that are dependent on their Hawaiian Islands wintering habitat for reproductive activities, including breeding, calving, and nursing, and for the long-term survival of their species; and to achieve the other purposes and policies of the HINMSA and NMSA.
(b) These regulations may be modified to fulfill the Secretary's responsibilities for the Sanctuary, including the provision of additional protections for humpback whales and their habitat, if reasonably necessary, and the conservation and management of other marine resources, qualities and ecosystems of the Sanctuary determined to be of national significance. The Secretary shall consult with the Governor of the State of Hawaii on any modification to the regulations contained in this part. For any modification of the regulations contained in this part that would constitute a change in a term of the designation, as contained in the Designation Document for the Sanctuary, the Secretary shall follow the applicable requirements of sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the HINMSA.
(c) Section 304(e) of the NMSA requires the Secretary to review management plans and regulations every five years, and make necessary revisions. Upon completion of the five year review of the Sanctuary management plan and regulations, the Secretary will repropose the Sanctuary management plan and regulations in their entirety with any proposed changes thereto. The Governor of the State of Hawaii will have the opportunity to review the re-proposed management plan and regulations before they take effect and if the Governor certifies any term or terms of such management plan or regulations as unacceptable, the unacceptable term or terms will not take effect in State waters of the Sanctuary.
§ 922.181   Boundary.
(a) Except for excluded areas described in paragraph (b) of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary encompasses approximately 1,032 square nautical miles (nmi 2 ) (1,366 sq. mi.), 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:
(1) To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai;
(2) To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu;
(3) To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and westward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters seaward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui;
(4) To the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward;
(5) To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii.
(b) Excluded from the Sanctuary boundary are the following commercial ports and small boat harbors:
(c) The coordinates of the lateral extents of each boundary area within the Sanctuary boundary appear in appendix A of this subpart Q.
§ 922.182   Definitions.
(a) Acts means the Hawaiian Islands National Marine Sanctuary Act (HINMSA; sections 2301-2307 of Pub. L. 102-587), and the National Marine Sanctuaries Act (NMSA; also known as Title III of the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16 U.S.C. 1431 et seq. ).
Adverse impact means an impact that independently or cumulatively damages, diminishes, degrades, impairs, destroys, or otherwise harms.
Alteration of the seabed means drilling into, dredging, or otherwise altering a natural physical characteristic of the seabed of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary.
Habitat means those areas that provide space for individual and population growth and normal behavior of humpback whales, and include sites used for reproductive activities, including breeding, calving and nursing.
Military activities means those military activities conducted by or under the auspices of the Department of Defense and any combined military activities carried out by the Department of Defense and the military forces of a foreign nation.
Sanctuary means the Hawaiian Islands Humpback Whale National Marine Sanctuary.
Sanctuary resource means any humpback whale, or the humpback whale's habitat within the Sanctuary.
Shoreline means the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.
Take or taking a humpback whale means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure a humpback whale, or to attempt to engage in any such conduct. The term includes, but is not limited to, any of the following activities: collecting any dead or injured humpback whale, or any part thereof; restraining or detaining any humpback whale, or any part thereof, no matter how temporarily; tagging any humpback whale; operating a vessel or aircraft or doing any other act that results in the disturbing or molesting of any humpback whale.
(b) Other terms appearing in the regulations in this subpart are defined at 15 CFR 922.11, 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.
§ 922.183   Allowed activities.
(a) All activities except those prohibited by § 922.184 may be undertaken in the Sanctuary subject to any emergency regulations promulgated pursuant to § 922.185, subject to the interagency cooperation provisions of section 304(d) of the NMSA [16 U.S.C. 1434(d)] and § 922.187 of this subpart, and subject to the liability established by section 312 of the NMSA and § 922.46 of this part. All activities are also subject to all prohibitions, restrictions, and conditions validly imposed by any other Federal, State, or county authority of competent jurisdiction.
(b) Included as activities allowed under the first sentence of paragraph (a) of this § 922.183 are all classes of military activities, internal or external to the Sanctuary, that are being or have been conducted before the effective date of these regulations, as identified in the Final Environmental Impact Statement/Management Plan. Paragraphs (a)(1) through (a)(5) of § 922.184 do not apply to these classes of activities, nor are these activities subject to further consultation under section 304(d) of the NMSA.
(c) Military activities proposed after the effective date of these regulations are also included as allowed activities under the first sentence of paragraph (a) of this § 922.183. Paragraphs (a)(1) through (a)(5) of § 922.184 apply to these classes of activities unless—
(1) They are not subject to consultation under section 304(d) of the NMSA and § 922.187 of this subpart, or
(2) Upon consultation under section 304(d) of the NMSA and § 922.187 of this subpart, NOAA's findings and recommendations include a statement that paragraphs (a)(1) through (a)(5) of § 922.184 do not apply to the military activity.
(d) If a military activity described in paragraphs (b) or (c)(2) of this § 922.183 is modified such that it is likely to destroy, cause the loss of, or injure a Sanctuary resource in a manner significantly greater than was considered in a previous consultation under section 304(d) of the NMSA and § 922.187 of this subpart, or if the modified activity is likely to destroy, cause the loss of, or injure any Sanctuary resource not considered in a previous consultation under section 304(d) of the NMSA and § 922.187 of this subpart, the modified activity will be treated as a new military activity under paragraph (c) of this section.
(e) If a proposed military activity subject to section 304(d) of the NMSA and § 922.187 of this subpart is necessary to respond to an emergency situation and the Secretary of Defense determines in writing that failure to undertake the proposed activity during the period of consultation would impair the national defense, the Secretary of the military department concerned may request the Director that the activity proceed during consultation. If the Director denies such a request, the Secretary of the military department concerned may decide to proceed with the activity. In such case, the Secretary of the military department concerned shall provide the Director with a written statement describing the effects of the activity on Sanctuary resources once the activity is completed.
§ 922.184   Prohibited activities.
(a) The following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted.
(1) Approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale except as authorized under the Marine Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., and the Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq.;
(2) Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except as necessary for takeoff or landing from an airport or runway, or as authorized under the MMPA and the ESA;
(3) Taking any humpback whale in the Sanctuary except as authorized under the MMPA and the ESA;
(4) Possessing within the Sanctuary (regardless of where taken) any living or dead humpback whale or part thereof taken in violation of the MMPA or the ESA;
(5) Discharging or depositing any material or other matter in the Sanctuary; altering the seabed of the Sanctuary; or discharging or depositing any material or other matter outside the Sanctuary if the discharge or deposit subsequently enters and injures a humpback whale or humpback whale habitat, provided that such activity:
(i) Requires a Federal or State permit, license, lease, or other authorization; and
(ii) Is conducted:
(A) Without such permit, license, lease, or other authorization, or
(B) not in compliance with the terms or conditions of such permit, license, lease, or other authorization.
(6) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of either of the Acts or any regulations issued under either of the Acts.
(b) The prohibitions in paragraphs (a)(1) through (a)(5) of this § 922.184 do not apply to activities necessary to respond to emergencies threatening life, property or the environment; or to activities necessary for valid law enforcement purposes. However, while such activities are not subject to paragraphs (a)(1) through (a)(5) of this § 922.184, this paragraph (b) does not exempt the activity from the underlying prohibition or restriction under other applicable laws and regulations (e.g., MMPA, ESA, and CWA).
(c) Any Sanctuary fishery regulations shall not take effect in Hawaii State waters until established by the State Board of Land and Natural Resources.
§ 922.185   Emergency regulations.
Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. Before issuance of such regulations the Director shall consult to the extent practicable with any relevant Federal agency and the Governor of the State of Hawaii. Emergency regulations shall not take effect in State waters of the Sanctuary until approved by the Governor of Hawaii.
§ 922.186   Penalties; appeals.
(a) Pursuant to section 307 of the NMSA, each violation of either of the Acts, or any regulation in this subpart is subject to a civil penalty of not more than $100,000. Each such violation is subject to forfeiture of property or Sanctuary resources seized in accordance with section 307 of the NMSA. Each day of a continuing violation constitutes a separate violation.
(b) Regulations setting forth the procedures governing the administrative proceedings for assessment of civil penalties for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR Part 904.
(c) A person subject to an action taken for enforcement reasons for violation of these regulations or either of the Acts may appeal pursuant to the applicable procedures in 15 CFR Part 904.
§ 922.187   Interagency Cooperation.
Under section 304(d) of the NMSA, Federal agency actions internal or external to a national marine sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource are subject to consultation with the Director. The Federal agency proposing an action shall determine whether the activity is likely to destroy, cause the loss of, or injure a Sanctuary resource. To the extent practicable, consultation procedures under section 304(d) of the NMSA may be consolidated with interagency cooperation procedures required by other statutes, such as the ESA. The Director will attempt to provide coordinated review and analysis of all environmental requirements.
§ 922.190   Boundary.
(a) Except as provided in paragraph (b) of this section, the Thunder Bay National Marine Sanctuary and Underwater Preserve (Sanctuary) consists of an area of approximately 3,247 square nautical miles (nmi 2 ) (4,300 sq. mi.) of waters of Lake Huron and the submerged lands thereunder, over, around, and under the underwater cultural resources in Thunder Bay. The eastern boundary of the sanctuary begins at the intersection of the southern Alcona County boundary and the U.S./Canada international boundary (Point 1). The eastern boundary of the sanctuary approximates the international boundary passing through Points 2-5. The boundary continues west through Point 6 and then back to the northeast until it intersects with the 45.83333° N line of latitude at Point 7. The northern boundary follows the line of latitude 45.83333° N westward until it intersects the −84.33333° W line of longitude at Point 8. The western boundary extends south along the −84.33333° W line of longitude towards Point 9 until it intersects the ordinary high water mark at Cordwood Point. From there, the western boundary follows the ordinary high water mark as defined by Part 325, Great Lakes Submerged Lands, of P.A. 451 (1994), as amended, cutting across the mouths of rivers and streams until it intersects the line formed between Point 10 and Point 11 south of Rogers City, MI. From there the boundary moves offshore through Points 11-15 in order until it intersects the ordinary high water mark along the line formed between Point 15 and Point 16. At this intersection the boundary continues to follow the ordinary high water mark south until it intersects with the line formed between Point 17 and Point 18 near Stoneport Harbor Light in Presque Isle, MI.
From there the boundary moves offshore through Points 18-20 in order until it intersects the ordinary high water mark along the line formed between Point 20 and Point 21. At this intersection the boundary continues to follow the ordinary high water mark south until it intersects the line formed between Point 22 and Point 23 near the Lafarge dock in Alpena, MI. At this intersection the boundary moves towards Point 23 until it intersects the ordinary high water mark. At this intersection the boundary follows the ordinary high water mark south until it intersects the southern Alcona County boundary along the lined formed between Point 24 and Point 25 in Greenbush, MI. Finally, at this intersection the boundary moves eastward and offshore until it reaches Point 25.
(b) Excluded from the Sanctuary boundary are the following ports:
(1) Rogers City;
(2) Presque Isle; and
(3) Alpena.
(c) The coordinates of each boundary area appear in appendix A of this subpart.
§ 922.191   Definitions.
(a) The following terms are defined for purposes of Subpart R:
Minor project means any project listed in appendix B to this Subpart.
Programmatic Agreement means the agreement among NOAA, the Federal Advisory Council on Historic Preservation, and the State of Michigan, developed pursuant to the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et seq. and section 106 of the National Historic Preservation Act of 1966 as amended, 16 U.S.C. 470 et seq., which, in part, sets forth the procedures for review and approval of State Permits that authorize activities prohibited by the Sanctuary regulations.
State Archaeologist means the State Archaeologist, Michigan Historical Center, Michigan Department of State.
State Permit means any lease, permit, license, approval, or other authorization issued by the State of Michigan for the conduct of activities or projects within the Thunder Bay National Marine Sanctuary and Underwater Preserve that are prohibited by the regulations at § 922.193.
Traditional fishing means those commercial, recreational, and subsistence fishing activities that were customarily conducted within the Sanctuary prior to its designation or expansion, as identified in the relevant Final Environmental Impact Statement and Management Plan for this Sanctuary. Traditional fishing includes tribal fishing rights as provided for in the 1836 Treaty of Washington and subsequent court decisions related to the Treaty.
Treaty fishing rights means those rights reserved in the 1836 Treaty of Washington and in subsequent court decisions related to the Treaty.
Underwater cultural resource means:
(1) Any sunken watercraft, including a ship, boat, canoe, skiff, raft, or barge; the rigging, gear, fittings, trappings, and equipment of any sunken watercraft; the personal property of the officers, crew, and passengers of any sunken watercraft; and the cargo of any sunken watercraft, that sank prior to the effective date of Sanctuary designation; and
(2) Any of the above that sinks on or after the date of Sanctuary designation determined to be an underwater cultural resource by the Director pursuant to § 922.198. Underwater cultural resource also means any historical remnant of docks or piers or associated material, or materials resulting from activities of historic and prehistoric Native Americans.
(b) Other terms appearing in the regulations are defined at 15 CFR part 922 subpart A, and/or in the National Marine Sanctuaries Act, as amended, 16 U.S.C. 1431 et seq.
§ 922.192   Joint Management Committee.
(a) A state/federal Joint Management Committee shall be established to oversee and engage in decision-making authority for the Thunder Bay National Marine Sanctuary and Underwater Preserve.
(b) The Joint Management Committee shall be comprised of one Federal employee named by the NOAA Administrator and one state employee named by the Governor of Michigan. The Federal employee cannot be the sanctuary manager (the individual who exercises day-to-day management over the Sanctuary) and must have a civil service grade higher than that of the sanctuary manager.
(c) The Joint Management Committee shall:
(1) Develop a position description for, recruit prospective candidates for the position of, interview candidates for the position of, and take part in the annual performance evaluation of, the sanctuary manager;
(2) Approve revisions to the Management Plan;
(3) Approve annual work plans;
(4) Approve, on an annual basis, the expenditure of allocated state and federal funds and other sources of revenue for the Thunder Bay National Marine Sanctuary and Underwater Preserve, in accordance with the Management Plan and the annual work plans; and
(5) Make decisions on other key issues related to management of the Thunder Bay National Marine Sanctuary and Underwater Preserve.
(d) The Joint Management Committee shall meet as agreed to by the members but not less than once annually.
(e) If the Joint Management Committee is unable to reach agreement on an issue, the members shall follow the “Consultation and Conflict Resolution” procedures set forth in the Interlocal Agreement between NOAA and the State of Michigan.
(f) The Joint Management Committee may invite affected public parties to participate in selected aspects of Sanctuary management as:
(1) Parties to the Interlocal Agreement pursuant to the Michigan Urban Cooperation Act of 1967, MCL 124.501 et seq.; and/or
(2) Pursuant to the NMSA.
§ 922.193   Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (b) through (d) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Recovering, altering, destroying, possessing, or attempting to recover, alter, destroy, or possess an underwater cultural resource.
(2) Drilling into, dredging or otherwise altering the lakebottom associated with underwater cultural resources, including contextual information; or constructing, placing or abandoning any structure, material or other matter on the lakebottom associated with underwater cultural resources, except as an incidental result of:
(i) Anchoring vessels;
(ii) Traditional fishing operations; or
(iii) Minor projects (as defined in appendix B of this subpart) that do not adversely affect underwater cultural resources.
(3) Using grappling hooks or other anchoring devices on underwater cultural resource sites that are marked with a mooring buoy.
(4) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulations issued under the Act.
(b) Members of a federally-recognized Indian tribe may exercise treaty-secured rights, subject to the requirements of other applicable law, without regard to the requirements of this subpart. The Director may consult with the governing body of a tribe regarding ways the tribe may exercise such rights consistent with the purposes of the Sanctuary, provided that the rights are authorized by the tribe by regulation, license, or permit.
(c) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to valid law enforcement activities, or any activity necessary to respond to an emergency threatening life or the environment.
(d) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to any activity:
(1) Specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued pursuant to § 922.195 or a special use permit issued pursuant to subpart D of this part.
(2) [Reserved]
§ 922.194   [Reserved]
§ 922.195   Permit procedures.
(a) A person may conduct an activity otherwise prohibited by § 922.193(a)(1) through (3), if the activity is specifically authorized by and conducted in accordance with the scope, purpose, terms and conditions of a State Permit provided that:
(1) The State Archaeologist certifies to NOAA that the activity authorized under the State Permit will be conducted consistent with the Programmatic Agreement, in which case such State Permit shall be deemed to have met the requirements of subpart D of this part; or
(2) In the case where the State Archaeologist does not certify that the activity to be authorized under a State Permit will be conducted consistent with the Programmatic Agreement, the person complies with the requirements of subpart D of this part.
(b) In instances where the conduct of an activity is prohibited by § 922.193(a)(1) through (3) 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) and (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 paragraph (d)(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.
§ 922.196   Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss of, or injury to an underwater cultural resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Governor of Michigan.
(b) Emergency regulations remain in effect until a date fixed in the rule or six months after the effective date, whichever is earlier. The rule may be extended once for not more than six months.
§ 922.197   Effect on affected federally-recognized Indian tribes.
The exercise of treaty fishing rights is not modified, altered, or in any way affected by the regulations promulgated in this Subpart. The Director shall consult with the governing body of each federally-recognized Indian tribe mentioned in the 1836 Treaty of Washington and in subsequent court decisions related to the Treaty regarding any matter which might affect the ability of the Tribe's members to participate in treaty fishing activities in the Sanctuary.
§ 922.198   Procedures for determining watercraft and related items which sink on or after the date of Sanctuary designation to be an underwater cultural resource.
The Director, in consultation with the State of Michigan, appropriate federal agencies, and the governing body of any affected federally-recognized tribe, may determine, after providing 45 days for public comment, that any sunken watercraft, including a ship, boat, canoe, skiff, raft, or barge; the rigging, gear, fittings, trappings, and equipment of any sunken watercraft; the personal property of the officers, crew, and passengers of any sunken watercraft; and the cargo of any sunken watercraft, that sinks on or after the date of Sanctuary designation, to be an underwater cultural resource if such is determined by the Director to be 50 years or older and of special national significance due to architectural significance or association with individuals or events that are significant to local or national history.
§ 922.200   Boundary.
The Mallows Bay-Potomac River National Marine Sanctuary consists of an area of approximately 18 square miles of waters of the state of Maryland and the submerged lands thereunder, over, around, and under the underwater cultural resources in the Potomac River. The precise boundary coordinates are listed in appendix A to this subpart. The western boundary of the sanctuary approximates the border between the Commonwealth of Virginia and the State of Maryland along the western side of the Potomac River and begins at Point 1 north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point. From this point the boundary continues to the north approximating the border between Virginia and Maryland cutting across the mouths of streams and creeks passing through the points in numerical order until it reaches Point 40 north of Tank Creek. From this point the sanctuary boundary continues east across the Potomac River in a straight line towards Point 41 until it intersects the Maryland shoreline just north of Sandy Point in Charles County, Maryland. From this intersection the sanctuary boundary then follows the Maryland shoreline south around Mallows Bay, Blue Banks, and Wades Bay cutting across the mouths of creeks and streams along the eastern shoreline of the Potomac River until it intersects the line formed between Point 42 and Point 43 just south of Smith Point. Finally, from this intersection the sanctuary boundary crosses the Potomac River to the west in a straight line until it reaches Point 43 north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point.
§ 922.201   Definitions.
(a) The following terms are defined for purposes of this subpart:
(1) Sanctuary resource means any historical resource with the Sanctuary boundaries, as defined in § 922.3. This includes, but is not limited to, any sunken watercraft and any associated rigging, gear, fittings, trappings, and equipment; the personal property of the officers, crew, and passengers, and any cargo; and any submerged or partially submerged prehistoric, historic, cultural remains, such as docks, piers, fishing-related remains (e.g., weirs, fish-traps) or other cultural heritage materials. Sanctuary resource also means any archaeological, historical, and cultural remains associated with or representative of historic or prehistoric American Indians and historic groups or peoples and their activities.
(2) Traditional fishing means those commercial, recreational, and subsistence fishing activities that were customarily conducted within the Sanctuary prior to its designation or expansion, as identified in the relevant Final Environmental Impact Statement and Management Plan for this Sanctuary.
(b) All other terms appearing in the regulations in this subpart are defined at § 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.
§ 922.202   Joint management.
NOAA has primary responsibility for the management of the Sanctuary pursuant to the Act. However, NOAA shall co-manage the Sanctuary in collaboration with the State of Maryland and Charles County. The Director shall enter into a Memorandum of Agreement regarding this collaboration that shall address, but not be limited to, such aspects as areas of mutual concern, including Sanctuary programs, permitting, activities, development, and threats to Sanctuary resources.
§ 922.203   Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (b) and (c) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Moving, removing, recovering, altering, destroying, possessing, or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a Sanctuary resource, except as an incidental result of traditional fishing. This prohibition does not apply to possessing historical resources removed from the Sanctuary area before the effective date of the Sanctuary designation.
(2) Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or permanent, or with any monuments, stakes, posts, buoys, or other boundary markers related to the Sanctuary.
(3) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or any permit issued under the Act.
(b) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to any activity necessary to respond to an emergency threatening life, property or the environment; or to activities necessary for valid law enforcement purposes.
(c)(1) All military activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impact on sanctuary resources and qualities.
(2) Any existing military activity conducted by DoD prior to the effective date of the regulations in this subpart and as specifically identified in the Final Environmental Impact Statement and Final Management Plan for the Sanctuary (FEIS/FMP) is allowed to continue in the Sanctuary. The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to those existing military activities or to the following military activities conducted by DoD:
(i) Low-level overflight of military aircraft operated by DoD;
(ii) The designation of new units of special use airspace;
(iii) The use or establishment of military flight training routes;
(iv) Air or ground access to existing or new electronic tracking communications sites associated with special use airspace or military flight training routes; or
(v) Activities to reduce or eliminate a threat to human life or property presented by unexploded ordnances or munitions.
(3) New military activities that do not violate the prohibitions in paragraphs (a)(1) through (3) of this section are allowed. Any new military activity that is likely to violate sanctuary prohibitions may become exempt through consultation between the Director and DoD pursuant to section 304(d) of the NMSA. For purposes of this paragraph (c)(3), the term “new military activity” includes but is not limited to, any existing military activity that is modified in any way (including change in location, frequency, duration, or technology used) that is likely to destroy, cause the loss of, or injure a sanctuary resource, or is likely to destroy, cause the loss of, or injure a sanctuary resource in a manner or to an extent that was not considered in a previous consultation under section 304(d) of the NMSA.
(4) In the event of destruction of, loss of, or injury to a sanctuary resource or quality resulting from an incident, including but not limited to spills and groundings caused by DoD, the cognizant component shall promptly coordinate with the Director for the purpose of taking appropriate actions to prevent, respond to or mitigate the harm and, if possible, restore or replace the sanctuary resource or quality.
§ 922.204   Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities, other than DoD activities, are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Governor of Maryland or her/his designee or designated agency.
(b) Emergency regulations remain in effect until a date fixed in the rule or six months after the effective date, whichever is earlier. The rule may be extended once for not more than six months.
§ 922.205   Permit procedures.
(a) A person may conduct an activity otherwise prohibited by § 922.203(a)(1) and (2) 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, Mallows Bay-Potomac River National Marine Sanctuary, 1305 East-West Highway, Silver Spring, MD 20910.
§ 922.206   Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.
(a) A person may conduct an activity prohibited by § 922.203(a)(1) through (3) if such activity is specifically authorized by a valid Federal, state, or local lease, permit, license, approval, or other authorization, or tribal right of subsistence use or access in existence prior to the effective date of sanctuary designation and within the sanctuary designated area and complies with § 922.10 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section.
(b) In considering whether to make the certifications called for in this section, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate.
(c) The Director may amend, suspend, or revoke any certification made under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken.
(d) Requests for findings or certifications should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, Mallows Bay-Potomac National Marine Sanctuary, 1305 East West Hwy., 11th Floor, Silver Spring, MD 20910. A copy of the lease, permit, license, approval, or other authorization must accompany the request.
(e) For an activity described in paragraph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.203(a)(1) through (3) provided that:
(1) The holder of such authorization or right notifies the Director, in writing, within 180 days of the Federal Register notification announcing of effective date of the Sanctuary designation, of the existence of such authorization or right and requests certification of such authorization or right;
(2) The holder complies with the other provisions of this section; and
(3) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.
(f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohibited by § 922.203 may conduct the activity without being in violation of applicable provisions of § 922.203, pending final agency action on his or her certification request, provided the holder is otherwise in compliance with this section.
(g) The Director may request additional information from the certification requester as he or she deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the postmark date of the request. The Director may seek the views of any persons on the certification request.
(h) The Director may amend any certification made under this section whenever additional information becomes available that he/she determines justifies such an amendment.
(i) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
(j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.37.
(k) Any time limit prescribed in or established under this section may be extended by the Director for good cause.
§ 922.210   Boundary.
Wisconsin Shipwreck Coast National Marine Sanctuary consists of an area of approximately 726 square nautical miles (962 square miles) of Lake Michigan waters within the State of Wisconsin and the submerged lands thereunder, over, around, and under the submerged underwater cultural resources in Lake Michigan. The precise boundary coordinates are listed in Appendix A to this subpart. The eastern boundary of the sanctuary begins approximately 9.3 miles east of the Wisconsin shoreline (as defined by the low water datum) in Lake Michigan at Point 1 north of the border between Manitowoc and Kewaunee County. From Point 1 the boundary continues SSW in a straight line to Point 2 and then SW to Point 3 which is located in Lake Michigan approximately 16.3 miles east of a point on the shoreline roughly equidistant between the borders of northern Mequon, WI and southern Port Washington, WI. From Point 3 the boundary continues west towards Point 4 until it intersects the shoreline at the low water datum approximately 2.5 miles north of the northern border of Mequon, WI. From this intersection the boundary continues north following the shoreline at the low water datum, cutting across the mouths of creeks and streams until it intersects the line segment formed between Point 5 and Point 6 at the end of the southern breakwater at the mouth of Sauk Creek at Port Washington. From this intersection the boundary continues to Point 6 through Point 9 in numerical order. From Point 9 the boundary continues towards Point 10 until it intersects the shoreline at the low water datum at the end of the northern breakwater at the mouth of Sauk Creek. From this intersection the boundary continues north following the shoreline at the low water datum cutting across the mouths of creeks and streams until it intersects the line segment formed between Point 11 and Point 12 at the end of the southern breakwater at the mouth of the Sheboygan River. From this intersection the boundary continues to Point 12 through Point 17 in numerical order.
From Point 17 the boundary continues towards Point 18 until it intersects the shoreline at the low water datum at the end of the northern breakwater at the mouth of the Sheboygan River. From this intersection the boundary continues north along the shoreline at the low water datum cutting across the mouths of creeks and streams until it intersects the line segment formed between Point 19 and Point 20 at the end of the southern breakwater at the mouth of Manitowoc Harbor. From this intersection the boundary continues to Point 20 through Point 23 in numerical order. From Point 23 the boundary continues towards Point 24 until it intersects the shoreline at the low water datum at the end of the northern breakwater at the mouth of the Sheboygan River. From this intersection the boundary continues north following the shoreline at the low water datum cutting across the mouths of creeks and streams until it intersects the line segment formed between Point 25 and Point 26 at the end of the western breakwater at the mouth of East Twin River. From this intersection the boundary continues to Point 27 through Point 31 in numerical order.
From Point 31 the boundary continues towards Point 32 until it intersects the shoreline at the low water datum at the end of the eastern breakwater at the mouth of East Twin River. From this intersection the boundary continues NE following the shoreline at the low water datum cutting across the mouths of creeks and streams around Rawley Point and then continues NNW past the county border between Manitowoc and Kewaunee County until it intersects the line segment formed between Point 33 and Point 34 along the shoreline at the low water datum just south of the mouth of the unnamed stream near the intersection of Sandy Bar Road and Lakeview Road near Carlton, WI. Finally, from this intersection at the shoreline at the low water datum the boundary moves east across Lake Michigan to Point 34.
§ 922.211   Definitions.
(a) The following terms are defined for purposes of this subpart:
(1) Sanctuary resource means all prehistoric, historic, archaeological, and cultural sites and artifacts within the sanctuary boundary, including all shipwreck sites.
(2) Shipwreck site means any historic sunken watercraft, its components, cargo, contents, and associated debris field.
(b) All other terms appearing in the regulations in this subpart are defined at § 922.3, and/or in the Marine Protection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq.
§ 922.212   Co-management.
NOAA has primary responsibility for the management of the Sanctuary pursuant to the Act. However, as the Sanctuary is in state waters, NOAA will co-manage the Sanctuary in collaboration with the State of Wisconsin. The Director may enter into a Memorandum of Agreement regarding this collaboration that may address, but not be limited to, such aspects as areas of mutual concern, including Sanctuary resource protection, programs, permitting, activities, development, and threats to Sanctuary resources.
§ 922.213   Prohibited or otherwise regulated activities.
(a) Except as specified in paragraph (b) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Moving, removing, recovering, altering, destroying, possessing, or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a sanctuary resource.
(2) Grappling into or anchoring on shipwreck sites.
(3) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or any permit issued under the Act.
(b) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment; or to activities necessary for valid law enforcement purposes.
§ 922.214   Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Governor of Wisconsin or her/his designee or designated agency.
(b) Emergency regulations remain in effect until a date fixed in the rule or six months after the effective date, whichever is earlier. The rule may be extended once for not more than six months.
§ 922.215   Permit procedures.
(a) A person may conduct an activity otherwise prohibited by § 922.213(a)(1) and (2) 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, Wisconsin Shipwreck Coast National Marine Sanctuary, 1305 East-West Highway, Silver Spring, MD 20910.
§ 922.216   Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.
(a) A person may conduct an activity prohibited by § 922.213(a)(1) through (3) if such activity is specifically authorized by a valid Federal, state, or local lease, permit, license, approval, or other authorization, or tribal right of subsistence use or access in existence prior to the effective date of sanctuary designation and within the sanctuary designated area and complies with § 922.10 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section.
(b) In considering whether to make the certifications called for in this section, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate.
(c) The Director may amend, suspend, or revoke any certification made under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken.
(d) Requests for findings or certifications should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, Wisconsin Shipwreck Coast National Marine Sanctuary, 1305 East-West Hwy., 11th Floor, Silver Spring, MD 20910. A copy of the lease, permit, license, approval, or other authorization must accompany the request.
(e) For an activity described in paragraph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.213(a)(1) through (3) provided that:
(1) The holder of such authorization or right notifies the Director, in writing, 180 days of the Federal Register document announcing of effective date of the Sanctuary designation, of the existence of such authorization or right and requests certification of such authorization or right;
(2) The holder complies with the other provisions of this section; and
(3) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.
(f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohibited by § 922.213 may conduct the activity without being in violation of applicable provisions of § 922.213, pending final agency action on his or her certification request, provided the holder is otherwise in compliance with this section.
(g) The Director may request additional information from the certification requester as he or she deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the postmark date of the request. The Director may seek the views of any persons on the certification request.
(h) The Director may amend any certification made under this section whenever additional information becomes available that he/she determines justifies such an amendment.
(i) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
(j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.37.
(k) Any time limit prescribed in or established under this section may be extended by the Director for good cause.
§ 922.220   Boundary.
Lake Ontario National Marine Sanctuary consists of an area of approximately 1,300 square nautical miles (1,722 square miles) of Lake Ontario waters within New York State and the submerged lands thereunder; over, around, and under the submerged underwater cultural and historical resources in Lake Ontario. The precise boundary coordinates are listed in appendix A to this subpart. The western boundary of the sanctuary begins at approximately the border between Wayne County and Monroe County where the shoreline (defined here and throughout the remainder of this boundary description as the low water datum) intersects the line segment formed between Point 1 and Point 2. From this intersection the sanctuary boundary continues north into Lake Ontario to Point 2 and then to each successive point in numerical order to Point 7. From Point 7 the sanctuary boundary continues east to each successive point in numerical order to Point 10. From Point 10 the boundary continues roughly to the northeast to Point 11 and then to Point 12 just southeast of Wolfe Island, ON, Canada and the end of 5th Line Road. From Point 12 the boundary continues roughly southeast towards Point 13 until it intersects the shoreline at the low water datum at Tibbetts Point near the Tibbetts Point Lighthouse southwest of Cape Vincent, New York. From this intersection the boundary follows the shoreline roughly to the southeast around Tibbetts Point and then continues roughly to the southeast around Wilson Point and Dablon Point until it intersects the line segment formed between Point 14 and Point 15 at the Rt. 6 bridge at the upper end of Mud Bay. From this intersection the boundary continues towards Point 15 until it intersects the shoreline at approximately the mouth of Kents Creek. From this intersection the boundary follows the shoreline to the southwest around Baird Point continuing roughly southeast cutting across the mouths of creeks and streams around Point Peninsula and along western and then northern Chaumont Bay until it intersects the line segment formed between Point 16 and Point 17. From this intersection the boundary continues across the Chaumont River towards Point 17 until it intersects the shoreline near the eastern side of the West Main Street bridge. From this intersection the boundary follows the shoreline around eastern Chaumont Bay, Point Salubrious, and Guffin Bay cutting across the mouths of rivers, streams, and creeks and then around Pillar Point and Everleigh Point and up the western side of Black River Bay until it intersects the line segment formed between Point 18 and Point 19 at approximately the mouth of Black River. From this intersection the boundary continues across the Black River towards Point 19 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly southwest along the eastern side of Black River Bay and then southwest along the eastern side of Henderson Bay continuing around Stony Point and then roughly south cutting across the mouths of rivers, streams, creeks, and ponds until it intersects the line segment formed between Point 20 and Point 21 at the mouth of the Salmon River near Port Ontario. From this intersection the boundary continues to Point 21 and each successive point in numerical order to Point 24. From Point 24 the boundary continues towards Point 25 until it intersects the shoreline. From this intersection the boundary follows the shoreline south and then west around Mexico Bay cutting across the mouths of rivers, streams, creeks, and ponds until it intersects the line segment formed between Point 26 and Point 27 just east of Oswego Harbor. From this intersection the boundary continues towards Point 27 until it intersects the shoreline at the eastern breakwater of Oswego Harbor. From this intersection the boundary follows the lakeward shoreline northwest along the breakwater until it intersects the line segment formed between Point 28 and Point 29. From this intersection the boundary continues across the mouth of Oswego Harbor to Point 29 and each successive point in numerical order to Point 34. From Point 34 the boundary continues towards Point 35 until it intersects the shoreline at the end of the western breakwater of Oswego Harbor. From this intersection the boundary follows the lakeward shoreline roughly to the southwest cutting across the mouths of rivers, streams, creeks, and ponds until it intersects the line segment formed between Point 36 and Point 37 on the eastern side of the mouth of The Pond. From this intersection the boundary continues across the mouth of The Pond towards Point 37 until it intersects the shoreline on the western side. From this intersection the boundary follows the shoreline west and then north to the intersection of the line segment formed between Point 38 and Pont 39 at the northern end of the eastern breakwater of Little Sodus Bay. From this intersection the boundary continues across the mouth of Little Sodus Bay to Point 39 and each successive point in numerical order to Point 42. From Point 42 the boundary continues towards Point 43 until it intersects the shoreline at the northern end of the western breakwater of Little Sodus Bay. From this intersection the boundary follows the lakeward shoreline roughly west until it intersects the line segment formed between Point 44 and Point 45 on the eastern side of the mouth of Blind Sodus Bay. From this intersection the boundary continues to the intersection of the shoreline and the line segment formed between Point 46 and Point 47 on the western side of the mouth of Blind Sodus Bay. From this intersection the boundary follows the shoreline roughly southwest cutting across the mouths of rivers, streams, creeks, and ponds until it intersects the line segment formed between Point 48 and the intersection of the shoreline and the line segment formed between Point 49 and Point 50 on the eastern side of the mouth of Port Bay. From this intersection on the eastern side of the mouth of Port Bay the boundary continues to the intersection of the shoreline and the line segment formed between Point 49 and 50 on the western side of the mouth of Port Bay. From this intersection the boundary follows the shoreline roughly west until it intersects the line segment formed between Point 51 and the intersection of the shoreline and the line segment formed between Point 52 and Point 53 on the eastern side of the mouth of East Bay. From this intersection on the eastern side of the mouth of East Bay the boundary continues to the intersection of the shoreline and the line segment formed between Point 52 and Point 53 on the western side of the mouth of East Bay. From this intersection the boundary follows the shoreline roughly west until it interests the line segment formed between Point 54 and Point 55 at the northern end of the eastern breakwater of Sodus Bay. From this intersection the boundary continues across the mouth of Sodus Bay to Point 55 and each successive point in numerical order to Point 61. From Point 61 the boundary continues towards Point 62 until it intersects the shoreline at the northern end of the western breakwater of Sodus Bay. From this intersection the boundary follows the shoreline roughly west cutting across the mouths of rivers, streams, creeks, and ponds until it intersects the line segment formed between Point 63 and Point 64 south of the mouth of Salmon Creek near Pultneyville, NY. From this intersection the boundary continues to Point 64 and each successive point in numerical order to Point 69. From Point 69 the boundary continues towards Point 70 until it intersects the shoreline north of the mouth of Salmon Creek. From this intersection the boundary follows the shoreline roughly west until it intersects the line segment formed between Point 71 and Point 72 at the eastern side of the R.E. Ginna Nuclear Power Plant water outfall. From this intersection the boundary continues towards Point 72 until it intersects the shoreline on the western side of the R.E. Ginna Nuclear Power Plant water outfall. From this intersection the boundary follows the shoreline west cutting across the mouths of rivers, streams, creeks, and ponds until it intersects the line segment formed between Point 73 and Point 74 where it ends. The inner landward sanctuary boundary is defined by and follows the shoreline as defined by the low water datum where not already specified in the boundary description above. The Tibbetts Point Anchorage Area is excluded from the sanctuary area described above, and its boundary begins at Point TPAA1 and continues to each successive point in numerical order until ending at Point TPAA7.
§ 922.221   Definitions.
The following terms are defined for purposes of this subpart U:
Sanctuary resource means all historical resources as defined at 15 CFR 922.11, which includes any pre-contact and historic sites, structures, districts, objects, and shipwreck sites within sanctuary boundaries.
Shipwreck site means all archaeological and material remains associated with sunken watercraft or aircraft that are historical resources, including associated components, cargo, contents, artifacts, or debris fields that may be exposed or buried within the lake bed.
Tethered underwater mobile system means remotely operated vehicles and other systems with onboard propulsion systems that utilize a tether connected to a station-holding (e.g.byanchor, dynamic positioning, or manual vessel operation) surface support vessel.
§ 922.222   Co-management.
(a) NOAA has primary responsibility for the management of the Sanctuary pursuant to the Act. However, as the Sanctuary is in State waters, NOAA will co-manage Lake Ontario National Marine Sanctuary in collaboration with New York State. The Director may enter into a Memorandum of Agreement regarding this collaboration that may address, but not be limited to, such aspects as areas of mutual concern, including sanctuary resource protection, programs, permitting, activities, development, and threats to sanctuary resources.
(b) Furthermore, sunken military craft are administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act. The Director will enter into a Memorandum of Agreement regarding collaboration with other federal agencies charged with implementing the Sunken Military Craft Act that may address aspects of managing and protecting sunken military craft. The Director will request approval from the Secretary concerned for any terms and conditions of ONMS authorizations that may involve sunken military craft.
§ 922.223   Prohibited or otherwise regulated activities.
(a) Except as specified in paragraph (b) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Moving, removing, recovering, altering, destroying, possessing or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a sanctuary resource.
(2) Possessing, selling, offering for sale, purchasing, importing, exporting, exchanging, delivering, carrying, transporting, or shipping by any means any sanctuary resource within or outside of the sanctuary.
(3) Grappling into or anchoring on shipwreck sites.
(4) Deploying a tethered underwater mobile system at shipwreck sites.
(5) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or any permit issued under the Act.
(b) The prohibitions in paragraphs (a)(1) through (5) of this section do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment; or to activities necessary for valid law enforcement purposes.
§ 922.224   Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Governor of New York or her/his designee or designated agency.
(b) Emergency regulations remain in effect until a date fixed in the rule or six months after the effective date, whichever is earlier. The rule may be extended once for not more than six months.
§ 922.225   Permit procedures and review criteria.
(a) A person may conduct an activity otherwise prohibited by § 922.223(a)(1) through (4) 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, Lake Ontario National Marine Sanctuary, 1305 East-West Highway, Silver Spring, MD 20910.
§ 922.226   Certification of preexisting leases, licenses, permits, approvals, other authorizations, or right to conduct a prohibited activity.
(a) A person may conduct an activity prohibited by § 922.223(a)(1) through (4) within the sanctuary if such activity is specifically authorized by a valid Federal, State, or local lease, permit, license, or right of subsistence use or of access that is in existence on the effective date of sanctuary designation, provided that the holder of the lease, permit, license, or right of subsistence use or of access complies with § 922.10 and provided that:
(1) The holder of such authorization or right notifies the Director, in writing, within 90 days of the effective date of the sanctuary designation of the existence and location of such authorization or right and requests certification of such authorization or right; and
(2) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the sanctuary was designated.
(b) Requests for certifications shall be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, Lake Ontario National Marine Sanctuary, 1305 East-West Hwy., 10th Floor, Silver Spring, MD 20910 or sent by electronic means as defined in the instructions for the ONMS permit application. A copy of the lease, permit, license, or right of subsistence use or of access must accompany the request.
(c) A certification requester with an authorization or right described in paragraph (a) of this section authorizing an activity prohibited by § 922.223(a)(1) through (4) may continue to conduct the activity without being in violation of applicable provisions of § 922.223(a)(1) through (4), pending the Director's review of and decision regarding his or her certification request.
(d) The Director may request additional information from the certification requester as the Director deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the sanctuary was designated. The Director must receive the information requested within 45 days of the date of the Director's request for information. Failure to provide the requested information within this time frame may be grounds for denial by the Director of the certification request.
(e) In considering whether to issue a certification, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate by the Director.
(f) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
(g) The Director may amend, suspend, or revoke any certification issued under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the certification holder and the agency that issued the underlying lease, permit, license, or right of subsistence use or of access, and shall set forth reason(s) for the action taken.
(h) The Director may amend any certification issued under this section whenever additional information becomes available that he or she determines justifies such an amendment.
(i) The certification holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth at § 922.37.
(j) Any time limit prescribed in or established under this section may be extended by the Director for good cause.
(k) It is unlawful for any person to violate any terms and conditions in a certification issued under this section.
§ 922.227   Effect on affected federally recognized Nations and Tribes.
The exercise of treaty rights for federally recognized Nations and Tribes and their citizens is not modified, altered, or in any way affected by the regulations promulgated in this subpart. The Director shall consult with the governing body of each federally-recognized Nation and Tribe protected by the 1794 Treaty of Canandaigua regarding any matter which might affect the ability of the Nation and Tribe's citizens to participate in activities protected by that treaty in the Sanctuary.
§  922.230   Boundary.
Chumash Heritage National Marine Sanctuary covers 4,543 mi 2 (3,431 nmi 2 ) of coastal and ocean waters and the submerged lands thereunder, spanning 116 miles along the central California coast off the counties of San Luis Obispo and Santa Barbara. The sanctuary spans a maximum distance of 60 miles from shore, and reaches a maximum depth of 11,580 feet below sea level. Describing the boundary in a clockwise fashion, the Final Preferred Alternative starts along the coast approximately two miles southeast of the breakwater for the Diablo Canyon Power Plant marina, then runs south along the mean high water line through San Luis Obispo County and northern and western Santa Barbara County to the eastern end of the Naples Marine Conservation Area on the Gaviota Coast. Along this stretch, the harbor areas at Port San Luis and Vandenberg Space Force Base near Point Arguello are excluded from the sanctuary. Offshore, the boundary extends from the western edge of Channel Islands National Marine Sanctuary, around important features like Rodriguez Seamount, most of Arguello Canyon, and about half of the Santa Lucia Bank and part of its escarpment. At a point approximately 55 miles offshore of the Santa Maria River mouth, the boundary extends east 43 miles, then due north for 12 miles to the point of origin south of the Diablo Canyon Power Plant marina. This narrative boundary description is provided to facilitate public understanding, but please refer to the formal boundary description and the precise boundary coordinates in Appendix A to this subpart.
§  922.231   Definitions.
In addition to the definitions found in § 922.11, the following terms are defined for purposes of this subpart:
Beneficial use of dredged material means the use of dredged material removed from the public harbor adjacent to the Sanctuary (Port San Luis) that is determined by the Director to be suitable as a resource for habitat protection or restoration purposes. Beneficial use of dredged material is not disposal of dredged material.
Rodriguez Seamount Management Zone means the area bounded by geodetic lines connecting a heptagon generally centered on the top of the Rodriguez Seamount, and consists of approximately 570 mi 2 (430 nmi 2 ) of ocean waters and the submerged lands thereunder. The northeast corner of this zone is located approximately 27 miles southwest of Point Conception off the coast of Santa Barbara County. Exact coordinates for the Rodriguez Seamount Management Zone boundary are provided in appendix B to this subpart.
§ 922.232   Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (b) through (e) and paragraph (g) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Exploring for, developing, or producing oil, gas, or minerals within the Sanctuary, except for oil and gas production, which includes well abandonment, pursuant to existing leases or lease units in effect on the effective date of Sanctuary designation (Nov. 30, 2024).
(2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter, except:
(A) Fish, fish parts, chumming materials, or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activities within the Sanctuary;
(B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
(C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
(D) For a vessel less than 300 GRT, or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;
(E) Vessel engine or generator exhaust;
(F) Beyond 3 nautical miles from shore, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use by a U.S. Coast Guard vessel without sufficient holding tank capacity and without a Type I or II marine sanitation device; and beyond 12 nautical miles from shore, ammunition, pyrotechnics, or other materials directly related to training for search and rescue and live ammunition activities conducted by U.S. Coast Guard vessels and aircraft;
(G) Dredged material deposited at disposal sites within the Sanctuary authorized by the U.S. Environmental Protection Agency (EPA), in consultation with the U.S. Army Corps of Engineers, prior to the effective date of Sanctuary designation (Nov. 30, 2024); or
(H) Discharges incidental and necessary to oil and gas production within or into reservoirs contained within existing leases or lease units in effect on the effective date of Sanctuary designation (Nov. 30, 2024) from Platform Irene or Platform Heritage, including well abandonment.
(ii) Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator exhaust, clean bilge water, or anchor wash.
(iii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except material or other matter listed as exceptions in paragraphs (a)(2)(i)(A) through (F) and (a)(2)(ii) of this section.
(3) Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental and necessary to:
(i) Conduct lawful fishing activities or lawful kelp harvesting;
(ii) Anchor a vessel;
(iii) Install or maintain an authorized navigational aid;
(iv) Repair, replace, or rehabilitate an existing dock, pier, breakwater, or jetty;
(v) Conduct maintenance dredging of entrance channels for harbors in existence prior to the effective date of Sanctuary designation (Nov. 30, 2024); or,
(vi) Drill, maintain, or abandon a well necessary for purposes related to oil and gas production pursuant to existing leases or lease units in effect on the effective date of Sanctuary designation (Nov. 30, 2024) from Platform Irene or Platform Heritage.
(vii) The exceptions listed in paragraphs (a)(3)(ii) through (vi) of this section do not apply in the Rodriguez Seamount Management Zone, the boundary of which is defined in appendix B to this subpart.
(4) Moving, removing, or injuring, or attempting to move, remove, or injure, a Sanctuary historical resource; or possessing or attempting to possess a Sanctuary historical resource, except as necessary for valid law enforcement purposes. This prohibition does not apply to, moving, removing, or injury resulting incidentally from lawful kelp harvesting or lawful fishing activities.
(5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended (MBTA), 16 U.S.C. 703 et seq., or any regulation promulgated under the MMPA, ESA, or MBTA.
(6) Possessing within the Sanctuary (regardless of where taken, moved, or removed from), any marine mammal, sea turtle, or bird, except as authorized by the MMPA, ESA, MBTA, by any regulation promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
(7) Deserting a vessel aground, at anchor, or adrift in the Sanctuary or leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary.
(8) Attracting any white shark within the Sanctuary.
(9)(i) Moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more than 1,500 ft. below the sea surface within the Rodriguez Seamount Management Zone, as defined in appendix B to this subpart. This prohibition does not apply to lawful fishing, which is regulated pursuant to 50 CFR part 660.
(ii) Possessing any Sanctuary resource, the source of which is more than 1,500 ft. below the sea surface within the Rodriguez Seamount Management Zone, except as necessary for valid law enforcement purposes. This prohibition does not apply to possession of fish resulting from lawful fishing, which is regulated pursuant to 50 CFR part 660.
(10) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass ( Morone saxatilis ) released during catch and release fishing activity.
(11) Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
(b) The prohibitions in paragraphs (a)(2) through (7) and (9) of this section do not apply to an activity necessary to respond to an emergency threatening life, property, or the environment.
(c)(1) The prohibitions in paragraphs (a)(2) through (7) and (9) and (10) of this section do not apply to existing activities carried out or approved by the Department of Defense that were conducted prior to the effective date of this designation (Nov. 30, 2024), as specifically identified in section 4.9 or appendix I to the final environmental impact statement for Chumash Heritage National Marine Sanctuary (for availability, see https://sanctuaries.noaa.gov/chumash-heritage/ ). New activities may be exempted from the prohibitions in paragraphs (a)(2) through (7) and (9) and (10) of this section by the Director after consultation between the Director and the Department of Defense. All Department of Defense activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities.
(2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings caused by the Department of Defense, the Department of Defense shall promptly coordinate with the Director for the purpose of taking appropriate actions to respond to and mitigate the harm and, if practicable, restore or replace the Sanctuary resource or quality.
(d) The prohibitions in paragraphs (a)(2) through (9) of this section do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary general permit issued pursuant to subpart D of this part and § 922.233, or a special use permit issued pursuant to subpart D of this part.
(e) The prohibitions in paragraphs (a)(2) through (9) of this section, and paragraph (a)(10) of this section regarding any introduced species of shellfish that NOAA and the State of California have determined is non-invasive and will not cause significant adverse effects to Sanctuary resources or qualities, and that is cultivated in State waters as part of commercial shellfish aquaculture activities, do not apply to any activity authorized by any lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation (Nov. 30, 2024) and issued by any Federal, State, or local authority of competent jurisdiction, provided that the applicant complies with § 922.36, the Director notifies the applicant and authorizing agency that the Director does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date of Sanctuary designation.
(f)(1) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a National Marine Sanctuary general permit under subpart D of this part and § 922.233, or an ONMS authorization or special use permit under subpart D of this part authorizing, or otherwise approve:
(i) The exploration for, development, or production of oil, gas, or minerals within the Sanctuary;
(ii) The discharge of untreated or primary-treated sewage within the Sanctuary (except by certification, pursuant to §§ 922.10 and 922.234, of valid authorizations in existence prior to the effective date of designation (Nov. 30, 2024) and issued by other authorities of competent jurisdiction); or
(iii) The disposal of dredged material within the Sanctuary other than at sites authorized by the U.S. Environmental Protection Agency prior to the effective date of designation (Nov. 30, 2024). For the purposes of this subpart, the disposal of dredged material does not include the beneficial use of dredged material, as defined at § 922.231, related to dredging activity at Port San Luis.
(2) Any purported authorizations issued by other authorities within the Sanctuary shall be invalid.
(g) A person may conduct an activity prohibited by paragraphs (a)(2) through (10) of this section within the Sanctuary if such activity is specifically authorized by a valid Federal, State, or local lease, permit, license, or right of subsistence use or of access that is in existence on the effective date of Sanctuary designation (Nov. 30, 2024) and within the sanctuary designated area and complies with § 922.10, provided that the holder of the lease, permit, license, or right of subsistence use or of access complies with the certification procedures for CHNMS as outlined in § 922.234.
§ 922.233   Permit procedures.
(a) A person may conduct an activity prohibited by § 922.232(a)(2) through (9), if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a sanctuary general permit issued under this section and subpart D of this part.
(b) Applications for permits should be addressed to the West Coast Regional Office, Office of National Marine Sanctuaries; ATTN: Superintendent, Chumash Heritage National Marine Sanctuary, 99 Pacific Street, Suite 100F, Monterey, CA 93940.
§ 922.234   Certification of preexisting leases, licenses, permits, approvals, other authorizations, or other rights to conduct a prohibited activity.
(a) To obtain a certification of an activity that is specifically authorized by a valid Federal, State, or local lease, permit, license, approval, other authorization or right of subsistence use or access (hereafter in this subsection “permit or right”) in existence on the effective date of Sanctuary designation (Nov. 30, 2024) and within the sanctuary designated area, pursuant to §§ 922.10 and 922.232(g), the holder of such permit or right shall:
(1) Notify the Director, in writing, within 120 days of the effective date of Sanctuary designation (Nov. 30, 2024) of the existence and location of such permit or right and requests certification of such permit or right; and
(2) Comply with any terms and conditions on the exercise of such permit or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.
(3) Address any requests for certifications to: West Coast Regional Office, Office of National Marine Sanctuaries; ATTN: Superintendent, Chumash Heritage National Marine Sanctuary, 99 Pacific Street, Suite 100F, Monterey, CA 93940, or send by electronic means as defined in the instructions for the ONMS permit application. A copy of the permit or right must accompany the request.
(b) A holder requesting certification of a permit or right described in § 922.232(g) may continue to conduct the activity without being in violation of Sanctuary prohibitions pending the Director's review of and decision regarding the holder's certification request, provided the holder is otherwise in compliance with this section.
(c) The Director may request additional information from the holder requesting certification as the Director deems reasonably necessary to condition appropriately the exercise of the certified permit or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the date of the Director's request for information. Failure to provide the requested information within this time frame may be grounds for denial by the Director of the certification request.
(d) In considering whether to impose appropriate conditions when issuing a certification, the Director may seek and consider the views of any other person or entity.
(e) Upon completion of review of the permit or right and information received with respect thereto, the Director shall communicate, in writing, any decision to impose appropriate conditions on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified permit, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
(f) The Director may amend, suspend, or revoke any certification issued under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification, or whenever the underlying permit or right on which the certification was issued has been amended, suspended or revoked. Any such action shall be forwarded in writing to both the certification holder and the agency that issued the underlying permit or right, and shall set forth reason(s) for the action taken.
(g) The holder may appeal any action conditioning a certification, or after issuance of a certification, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.37.
(h) Any time limit prescribed in or established under this section may be extended by the Director for good cause.
(i) It is unlawful for any person to violate any terms and conditions in a certification issued under this section.
§ 922.235   Memoranda of Agreement with partner agencies.
(a) Introduced species aquaculture projects. (1) NOAA would describe in a Memorandum of Agreement (MOA) with the State of California how NOAA will coordinate review of any proposed introduction of non-invasive introduced species from a proposed commercial shellfish aquaculture activity in State waters when considering an authorization under § 922.232(e).
(2) The MOA would specify how the process of § 922.36 in subpart D will be administered within State waters within the sanctuary in coordination with State permit and lease programs as administered by the California Fish and Game Commission, the Department of Fish and Wildlife and the California Coastal Commission.
(b) Sunken military craft. Sunken military craft are administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act. The Director will enter into a MOA regarding collaboration with other Federal agencies charged with implementing the Sunken Military Craft Act that may address aspects of managing and protecting sunken military craft. The Director will request approval from the Secretary concerned for any terms and conditions of ONMS authorizations that may involve sunken military craft.
§ 922.240   Boundary.
Papahānaumokuākea National Marine Sanctuary consists of an area of approximately 582,570 square miles (439,910 square nautical miles) of Pacific Ocean waters surrounding the Northwestern Hawaiian Islands and the submerged lands thereunder. The precise boundary coordinates are listed in appendix A to this subpart. The outer seaward sanctuary boundary begins approximately 200 nautical miles SW of Kure Atoll at Point 1 and continues from this point roughly north to each successive point in numerical order to Point 232 which is approximately 204 nautical miles north of Kure Atoll. From Point 232 the sanctuary boundary continues roughly ESE to each successive point in numerical order to Point 609 which is approximately 200 nautical miles NE of Necker Island. From Point 609 the sanctuary boundary continues south to Point 610 which is approximately 90 nautical miles ENE of Necker Island. From Point 610 the sanctuary boundary continues roughly east and then SE and south to Point 635 which is approximately 50 nautical miles east of Nihoa. From Point 635 the sanctuary boundary continues roughly south and then SW and west to each successive point in numerical order to Point 662 which is approximately 71 nautical miles SW of Nihoa. From Point 662 the sanctuary boundary continues south to Point 663 which is approximately 236 nautical miles SSW of Nihoa. From Point 663 the sanctuary boundary continues roughly NW to each successive point in numerical order to Point 703 which is approximately 200 nautical miles SSE of Necker Island. From Point 703 the boundary continues roughly NW to each successive point in numerical order to Point 1128 where it ends approximately 200 nautical miles SW of Kure Atoll. The inner landward boundary of the sanctuary follows the shoreline as defined by the State of Hawai'i (HAR § 13-222).
§ 922.241   Definitions.
In addition to those definitions found at § 922.11, the following definitions apply to this subpart. To the extent that a term appears in § 922.11 and this section, the definition in this section governs.
Areas to be avoided (ATBA) means the four areas, as adopted by the International Maritime Organization, that should be avoided by vessels that are conducting passage without interruption through the sanctuary. The precise boundary coordinates for the ATBAs are listed in appendix E to this subpart.
Bottomfish species means all species of bottomfish as defined at 50 CFR 665.201.
Categories of hazardous cargoes means goods classified in the International Maritime Dangerous Goods (IMDG) Code; substances classified in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) and chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code); oils as defined in MARPOL Annex I; noxious liquid substances as defined in MARPOL Annex II; harmful substances as defined in MARPOL Annex III; and radioactive materials specified in the International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Waste on Board Ships (INF Code).
Commercial fishing means, as defined in the Magnuson-Stevens Fishery Conservation and Management Act, fishing in which the fish harvested, either in whole or in part, are intended to enter commerce or enter commerce through sale, barter, or trade.
Ecological integrity means a condition determined to be characteristic of an ecosystem that has the ability to maintain the function, structure, and abundance of natural biological communities, including rates of change in response to natural environmental variation.
Midway Atoll Special Management Area means the area of the sanctuary surrounding Midway Atoll out to a distance of 12 nautical miles. The coordinates are listed in appendix C to this subpart.
Native Hawaiian practices means cultural activities conducted for the purposes of perpetuating traditional knowledge, caring for and protecting the environment and strengthening cultural and spiritual connections to the Northwestern Hawaiian Islands that have demonstrable benefits to the Native Hawaiian community. This may include, but is not limited to, the non-commercial use of sanctuary resources for direct personal consumption while in the sanctuary.
Non-commercial fishing means fishing that does not meet the definition of commercial fishing in the Magnuson-Stevens Fishery Conservation and Management Act, and includes, but is not limited to, sustenance, subsistence, traditional indigenous, and recreational fishing.
Office of Law Enforcement (OLE) means NOAA, National Marine Fisheries Service, Office of Law Enforcement.
Outer Sanctuary Zone means the waters and submerged lands extending from approximately 50 nautical miles from all islands and emergent lands of the Northwestern Hawaiian Islands to the extent of the seaward limit of the United States Exclusive Economic Zone (U.S. EEZ) west of 163° West Longitude. The precise boundary coordinates for the Outer Sanctuary Zone are listed in appendix B to this subpart.
Particularly Sensitive Sea Area (PSSA) means an area that needs special protection through action by the International Maritime Organization because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities.
Pelagic species means Western Pacific Pelagic Management Unit Species as defined at 50 CFR 665.800.
Pono means appropriate, correct, and deemed necessary by traditional standards in Hawaiian culture.
Recreational activity means an activity conducted for personal enjoyment that does not result in the extraction of sanctuary resources and that does not involve a fee-for-service transaction. This includes, but is not limited to, wildlife viewing, SCUBA diving, snorkeling, and boating.
Reporting area means the area of the sanctuary that extends outward ten nautical miles from the Particularly Sensitive Sea Area boundary, as designated by the International Maritime Organization, and excludes the Areas to be Avoided that fall within the Particularly Sensitive Sea Area boundary. The precise boundary coordinates for the reporting area are listed in appendix E to this subpart.
Scientific instrument means a device, vehicle, or tool used for scientific purposes and is inclusive of structures, materials, or other matter incidental to proper use of such device, vehicle, or tool.
Special Preservation Area (SPA) means discrete, biologically important areas of the sanctuary within which uses are subject to certain conditions, restrictions, and prohibitions, including but not limited to access restrictions. The coordinates are listed in appendix D to this subpart.
Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, or partially disassembled ( e.g., spear shafts being kept separate from spearguns).
Sustenance fishing means fishing for bottomfish or pelagic species in which all catch is consumed within the sanctuary, and that is incidental to an activity permitted under this part.
Vessel monitoring system (VMS) means a mobile transceiver unit as described in § 922.246 and approved by NOAA's Office of Law Enforcement for use on vessels permitted to access the sanctuary, as required by this part.
§ 922.242   Cooperative management.
(a) NOAA has primary responsibility for the management of the sanctuary pursuant to the National Marine Sanctuaries Act. As the sanctuary includes State waters, NOAA will co-manage Papahānaumokuākea National Marine Sanctuary with the State of Hawai'i.
(b) NOAA will also manage the sanctuary in partnership with the U.S. Fish and Wildlife Service and the Office of Hawaiian Affairs.
(c) Nothing in these regulations or establishment of the national marine sanctuary shall diminish U.S. Fish and Wildlife Service's authority to administer Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge under the National Wildlife Refuge System Administration Act, as amended, and other U.S. Fish and Wildlife Service authorities. Where Papahānaumokuākea National Marine Sanctuary overlays Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge, NOAA will implement the National Marine Sanctuaries Act to provide supplemental authority to protect resources.
(d) NOAA, in exercising its management authority under National Marine Sanctuaries Act Section 304(d), recognizes U.S. Fish and Wildlife Service's management authority over Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge under the National Wildlife Refuge System Administration Act, as amended.
§ 922.243   Access.
(a) Access to the Sanctuary is prohibited and thus unlawful except:
(1) When conducting emergency response actions, law enforcement activities, and activities and exercises of the Armed Forces in accordance with § 922.244(b) and (c);
(2) Pursuant to a permit issued under § 922.245;
(3) When conducting non-commercial fishing activities in the Outer Sanctuary Zone authorized under the Magnuson-Stevens Fishery Conservation and Management Act in accordance with § 922.244 (d);
(4) When conducting scientific exploration or research activities by or for the Secretary of Commerce or the Secretary of the Interior in the Outer Sanctuary Zone in accordance with § 922.244 (f).
(5) When conducting passage without interruption in accordance with paragraphs (b), (c), and (d) of this section.
(b) A vessel may pass without interruption through the sanctuary without requiring a permit as long as the vessel does not stop or engage in the prohibited activities listed in § 922.244 within the sanctuary.
(c) For areas of the sanctuary that are contained within the reporting area surrounding the Particularly Sensitive Sea Area (PSSA) designated by the International Maritime Organization (IMO), a ship reporting system (CORAL SHIPREP) specified below shall be in effect. The coordinates for the Reporting Area are listed in appendix E to this subpart.
(1) The following vessels, except vessels entitled to sovereign immunity under international law, passing through the reporting area of the sanctuary without interruption, must participate in the ship reporting system as specified in paragraphs (c)(2) through (6) of this section:
(i) Vessels of the United States of any size;
(ii) All other ships 300 gross tonnage or greater that are entering or departing a United States port or place; and
(iii) All other ships of any size entering or departing a United States port or place and experiencing an emergency while transiting through the reporting area.
(2) All vessels passing through the reporting area of the sanctuary without interruption other than those described in paragraph (c)(1) of this section are encouraged to participate in the ship reporting system set forth in paragraphs (c)(2) through (6) of this section.
(3) Immediately upon entering the reporting area, vessels described in paragraph (c)(1) of this section must provide the following information by email sent to nwhi.notifications@noaa.gov in the IMO standard reporting format and data syntax shown in appendix F to this subpart:
(i) Vessel name, call sign or ship station identity, flag, and IMO identification number if applicable, and either Federal documentation or State registration number if applicable;
(ii) Date, time (UTC) and month of entry;
(iii) Position;
(iv) True course;
(v) Speed in knots and tenths;
(vi) Destination and estimated time of arrival;
(vii) Intended route through the reporting area;
(viii) Vessel draft (in meters);
(ix) Categories of hazardous cargoes on board;
(x) Any vessel defects or deficiencies that restrict maneuverability or impair normal navigation;
(xi) Any pollution incident or goods lost overboard within the PSSA, the reporting area, or the U.S. EEZ;
(xii) Contact information for the vessel's agent or owner;
(xiii) Vessel size (length overall, gross tonnage) and type; and
(xiv) Total number of persons on board.
(4) Immediately upon leaving the reporting area, vessels described in paragraph (c)(1) of this section must provide the following information by email sent to nwhi.notifications@noaa.gov in the IMO standard reporting format and data syntax shown in appendix F to this subpart:
(i) Vessel name, call sign or ship station identity, flag, and IMO identification number if applicable, and either Federal documentation or State registration number if applicable;
(ii) Date, time (UTC), and month of exit;
(iii) Position; and
(iv) Any pollution incident or goods lost overboard within the PSSA, the reporting area, or the U.S. EEZ.
(5) For vessels that are not equipped with on-board email capability, advanced notice of entrance (as outlined in paragraph (c)(3) of this section) shall be provided at least 72 hours, but not more than one month, prior to entering the reporting area. Notification of departure (as outlined in paragraph (c)(4) of this section) must be provided within 12 hours of leaving the reporting area. Notification under this paragraph may be made by email, telephone, or fax, by contacting:
(i) Email: nwhi.notifications@noaa.gov;
(ii) Telephone: 1-808-395-6944 or 1-866-478-6944; or
(iii) Fax: 1-808-455-3093.
(6) Further reports shall be made by the vessels described in paragraph (c)(1) of this section, and are encouraged for the vessels described in paragraph (c)(2) of this section, whenever there is a change in navigation status or circumstances, particularly in relation to the intended route, defects or deficiencies, pollution incidents, or goods lost overboard.
§ 922.244   Prohibited or otherwise regulated activities.
(a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the sanctuary, except as specified in paragraphs (b) through (f) of this section:
(1) Exploring for, developing, or producing oil, gas, or minerals, or any energy development activities;
(2) Using or attempting to use poisons, electrical charges, or explosives in the collection or harvest of a sanctuary resource;
(3) Introducing or otherwise releasing an introduced species from within or into the sanctuary;
(4) Deserting a vessel;
(5) Anchoring on or having a vessel anchored on any living or dead coral with an anchor, anchor chain, or anchor rope;
(6) Commercial fishing, or possessing commercial fishing gear except when stowed and not available for immediate use;
(7) Failing to comply with the vessel monitoring system requirements in violation of § 922.246.
(8) Failing to comply with ship reporting requirements in violation of § 922.243.
(9) Non-commercial fishing, or possessing non-commercial fishing gear except when stowed and not available for immediate use;
(10) Drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands;
(11) Removing, moving, taking, harvesting, possessing, injuring, disturbing, or damaging; or attempting to remove, move, take, harvest, possess, injure, disturb, or damage any living or nonliving sanctuary resource;
(12) Attracting any living sanctuary resource;
(13) Touching coral, living or dead;
(14) Swimming, snorkeling, or closed or open circuit SCUBA diving;
(15) Discharging or depositing any material or other matter into the sanctuary, or discharging or depositing any material or other matter outside of the sanctuary that subsequently enters the sanctuary and injures or has the potential to injure any resources of the sanctuary, except for:
(i) Fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity, provided that such discharge or deposit is during the conduct of lawful fishing activity within the sanctuary;
(ii) Discharge incidental to vessel operations such as approved marine sanitation device effluent, cooling water, and engine exhaust, consistent with Federal statute or regulation; and
(iii) Within Special Preservation Areas or the Midway Atoll Special Management Area, discharging or depositing material or other matter is limited to vessel engine cooling water, weather deck runoff, and vessel engine exhaust, consistent with Federal statute or regulation.
(16) Anchoring a vessel.
(b) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to emergencies threatening life, property, or the environment, or to activities necessary for law enforcement purposes.
(c) The prohibitions in paragraph (a) of this section do not apply to activities and exercises of the U.S. Armed Forces (including those carried out by the U.S. Coast Guard). This includes the U.S. Armed Forces' response to emergencies posing an unacceptable threat to human health or safety or to the marine environment and admitting of no other feasible solution. All activities and exercises of the U.S. Armed Forces shall be carried out in a manner that avoids, to the extent practicable and consistent with operational requirements, adverse impacts on sanctuary resources and qualities. These regulations shall not limit or otherwise affect the U.S. Armed Forces discretion to use, maintain, improve, manage, or control any property under their administrative control or otherwise limit the availability of such property for military mission purposes, including, but not limited to, defensive areas and airspace reservations.
(d) The prohibitions in paragraph (a)(9) through (12), and (a)(14) of this section do not apply to non-commercial fishing activities in the Outer Sanctuary Zone authorized under the Magnuson-Stevens Fishery Conservation and Management Act provided that:
(1) Fish harvested, either in whole or in part, are not intended to enter commerce and shall not enter commerce through sale, barter, or trade, and that the resource is managed sustainably;
(2) Fish harvested, either in whole or in part, are not intended to be sold and shall not be sold for any purposes, including, but not limited to, cost-recovery; and
(3) The activities under paragraph (a)(9) through (12), and (a)(14) are only conducted as incidental to and necessary to conduct lawful non-commercial fishing activity.
(e) The prohibitions in paragraphs (a)(9) through (16) of this section, do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a sanctuary general permit, or special use permit issued pursuant to subpart D of this part. In no event, may the Director issue a National Marine Sanctuary general permit or special use permit authorizing or otherwise approving activities listed in paragraph (a)(10) of this section for anything other than scientific instruments, when the activity occurs within the Outer Sanctuary Zone.
(f) The prohibitions in paragraph (a) of this section shall not restrict scientific exploration or research activities by or for the Secretary of Commerce or the Secretary of the Interior when the activity occurs within the Outer Sanctuary Zone.
§ 922.245   Permit procedures and criteria.
(a) A person may conduct an activity otherwise prohibited by § 922.244(a)(9) through (16), if such 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, and any additional permit issuance criteria and requirements in paragraphs (a)(1) and (a)(2) of this section.
(1) Native Hawaiian Practices
(i) The activity is non-commercial and will not involve the sale of any organism or material collected;
(ii) The purpose and intent of this activity is appropriate and deemed necessary by traditional standards in the Native Hawaiian culture (pono), and demonstrates an understanding of, and background in, the traditional practice, and its associated values and protocols;
(iii) The activity benefits the resources of the Northwestern Hawaiian Islands and the Native Hawaiian community;
(iv) The activity supports or advances the perpetuation of traditional knowledge and ancestral connections of Native Hawaiians to the Northwestern Hawaiian Islands; and
(v) Any living sanctuary resource harvested from the sanctuary will be consumed or utilized in the sanctuary.
(2) Recreation permits
(i) The activity is limited to the Midway Atoll Special Management Area.
(ii) The activity is for the purpose of recreational activities as defined in § 922.241;
(iii) The activity is not associated with any for-hire operation;
(iv) The activity does not involve any extractive use; and
(b) Applications for permits should be addressed to the NOAA Inouye Regional Center, Office of National Marine Sanctuaries; ATT: Permit Coordinator, Papahānaumokuākea, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
(c) The Secretary of Commerce may authorize sustenance fishing outside of any Special Preservation Area as a term or condition of any general permit or special use permit issued under this section and subpart D of this part. Sustenance fishing in the Midway Atoll Special Management Area shall not be allowed unless the activity has been determined by the Director of the U.S. Fish and Wildlife Service or their designee to be compatible with the purposes for which the Midway Atoll National Wildlife Refuge was established. Sustenance fishing must be conducted in a manner compatible with this part, including considering the extent to which the conduct of the activity may diminish Sanctuary resources, qualities, and ecological integrity, as well as any indirect, secondary, or cumulative effects of the activity and the duration of such effects. The Secretary of Commerce may develop procedures for systematic reporting of sustenance fishing.
(d) In addition to other applicable permit issuance criteria and requirements, a permit may not be issued under this section unless the applicant's vessel has been outfitted with a VMS unit approved by OLE and the applicant complies with the requirements of § 922.246.
§ 922.246   Requirements for a vessel monitoring system.
(a) Requirement for use. An owner or operator of a vessel that has been issued a general permit or special use permit under § 922.245 and subpart D of this part must ensure that such vessel is operating a NOAA OLE type-approved VMS on board when operating within the sanctuary. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and OLE as provided by an OLE-approved communication service provider. As a condition of authorized access to the sanctuary, a vessel owner or operator subject to the requirements for a VMS in this section must allow OLE, the U.S. Coast Guard, and their authorized officers and designees access to the vessel's position data obtained from the VMS. NOAA may have access to, and use of, collected data for scientific, statistical, and management purposes, and to monitor implementation of this subpart.
(b) Installing and activating the VMS. (1) OLE has approval authority over the type of VMS used and the installation and operation of the VMS unit.
(2) The owner or operator of a vessel must coordinate with OLE to install and activate an approved VMS prior to operating within the sanctuary. For the purposes of this section, the following contact information applies:
(i) OLE. Address: 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818; telephone: 808-725-6100; facsimile: 808-725-6199; email: pidvms@noaa.gov; business hours: Monday through Friday, except Federal holidays, 8 a.m. to 4:30 p.m., Hawaii Standard Time.
(ii) VMS Helpdesk. Telephone: 888-219-9228; email: ole.helpdesk@noaa.gov; business hours: Monday through Friday, except Federal holidays, 7 a.m. to 11 p.m., Eastern Time.
(c) Interruption of operation of the VMS. When a vessel's VMS is not operating properly within the sanctuary, the owner or operator must immediately contact OLE, and follow instructions from that office. If notified by OLE that a vessel's VMS is not operating properly, the owner and operator must follow instructions from that office. In either event, such instructions may include, but are not limited to, manually communicating a vessel's location as directed by OLE; or exiting the sanctuary until the VMS is operable.
(d) Activities Regarding VMS For Vessels Operating in the Sanctuary. The following activities regarding vessel monitoring systems are prohibited and thus unlawful for any person to conduct or cause to be conducted:
(1) Operating any vessel within the sanctuary without an OLE type-approved VMS;
(2) Failing to install, activate, repair, or replace a VMS prior to entering the sanctuary;
(3) Failing to operate and maintain a VMS on board the vessel;
(4) Tampering with, damaging, destroying, altering, or in any way distorting, rendering useless, inoperative, ineffective, or inaccurate the VMS, or VMS signal, or attempting any of the same;
(5) Failing to contact OLE or follow OLE instructions when automatic position reporting has been interrupted;
(6) Registering a VMS to more than one vessel permitted to operate within the sanctuary at the same time;
(7) Connecting or leaving connected additional equipment to a VMS unit without the prior approval of OLE; and
(8) Making a false statement, oral or written, to an authorized officer regarding the installation, use, operation, or maintenance of a VMS unit-or communication service provider.
§ 922.247   Sunken military craft.
Sunken military craft are administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act (Pub. L. 108-375, Title XIV, sections 1401 to 1408; 10 U.S.C. 113 note). The Director will enter into a Memorandum of Agreement regarding collaboration with other Federal agencies charged with implementing the Sunken Military Craft Act that may address aspects of managing and protecting sunken military craft. The Director will request approval from the Secretary concerned for any terms and conditions of ONMS permits that may involve sunken military craft.