39042 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 922

[Docket No. 970404078–0176–02]

RIN 0648–AE41

Thunder Bay National Marine

Sanctuary and Underwater Preserve

Regulations

AGENCY: Marine Sanctuaries Division

(MSD), Office of Ocean and Coastal

Resource Management (OCRM),

National Ocean Service (NOS), National

Oceanic and Atmospheric

Administration (NOAA), Department of

Commerce (DOC).

ACTION: Final rule and summary of final

management plan.

SUMMARY: NOAA issues final regulations

to implement the designation of the

Thunder Bay National Marine Sanctuary

and Underwater Preserve, which

encompasses an area of State of

Michigan waters over and surrounding

Thunder Bay, and the submerged lands

thereunder including the Bay, in

western Lake Huron, by regulating

activities affecting Sanctuary resources,

as defined by and consistent with the

provisions of the Designation

Document. In addition, this document

publishes the Designation Document

and summarizes the final management

plan for the Sanctuary, detailing the

goals and objectives, management

responsibilities, research activities,

interpretive and educational programs,

and enforcement activities for the area.

The National Marine Sanctuaries Act

requires the Secretary of Commerce to

issue final regulations to implement the

designation of a National Marine

Sanctuary. The intended effect of these

regulations is to protect the Sanctuary’s

resources, which are limited to

underwater cultural resources.

EFFECTIVE DATE: Pursuant to section

304(b) of the National Marine

Sanctuaries Act (NMSA) (16 U.S.C.

1434(b)), the designation and

regulations shall take effect and become

final after the close of a review period

of forty-five days of continuous session

of Congress beginning on the day on

which this document is published

unless, the Governor of the State of

Michigan certifies to the Secretary of

Commerce that the designation or any of

its terms is unacceptable, in which case

the designation or any unacceptable

term shall not take effect.

Announcement of the effective date of

the final regulations will be published

in the Federal Register.

ADDRESSES: Copies of the Final

Environmental Impact Statement/

Management Plan (FEIS/MP) prepared

for the designation are available upon

request to the Marine Sanctuaries

Division, Office of Ocean and Coastal

Resource Management, National Ocean

Service, National Oceanic and

Atmospheric Administration, 1305 EastWest Highway, 11th Floor, Silver

Spring, MD 20910 (301) 713–3125.

Comments regarding the collection-ofinformation requirements contained in

this rule should be sent to the Office of

Information and Regulatory Affairs,

Office of Management and Budget,

Washington, DC 20503 (Attn: Desk

Officer for NOAA) and to Richard

Roberts, NOAA, Work Station 8118,

1305 East-West Highway, Silver Spring,

MD 20910.

FOR FURTHER INFORMATION CONTACT: Ms.

Ellen Brody, (734) 741–2270.

SUPPLEMENTARY INFORMATION:

I. Background

On June 23, 1997, NOAA published a

notice in the Federal Register proposing

the designation of an approximately 808

square-mile (2093 square-kilometer)

area of waters encompassing and

surrounding Thunder Bay, Lake Huron,

Michigan, and the submerged lands

thereunder as a National Marine

Sanctuary (62 FR 33768), based upon

the national significance of the area’s

collection of underwater cultural

resources (primarily shipwrecks). The

Thunder Bay region contains more than

160 shipwrecks that span more than a

century of Great Lakes maritime history.

Following publication of the Federal

Register notice and in response to the

State of Michigan, NOAA agreed to

reduce the size of the Sanctuary to

approximately 448 square miles (1169

square kilometers). This smaller area

contains approximately known and

suspected 116 shipwrecks. Collectively,

Thunder Bay’s shipwrecks present a

microcosm of the Great Lakes

commercial shipping industry. Based on

studies undertaken to date, there is

strong evidence of Thunder Bay’s

national historical significance, as the

sunken vessels reflect transitions in ship

architecture and construction methods,

from wooden sailboats to early ironhulled steamers. Additional significance

is attached to the collection (or number)

of shipwrecks in the Thunder Bay

region, if not to individual vessel

characteristics. A large array of

shipwrecks exists in the Thunder Bay

region, including virtually all types of

vessels used on the open Great Lakes.

These vessels were engaged in nearly

every type of trade, thereby linking

Thunder Bay inextricably to Great Lakes

commerce. Encompassing an extensive

array of historical themes, Thunder

Bay’s collection of shipwrecks presents

a broad history of Great Lakes culture

and commerce, and from even the most

general of observations, may be

considered nationally significant

historically. A recent study also has

investigated the potential of Thunder

Bay for possible National Historic

Landmark status (Preliminary

Comparative and Theme Study of

National Historic Landmark Potential

for Thunder Bay, Michigan, Martin,

1996).

The designation of this Sanctuary

establishes a partnership between

NOAA and the State of Michigan to

jointly provide long-term protective

management to Thunder Bay’s

underwater cultural resources. The June

23, 1997 notice also announced the

availability of the Draft Environmental

Impact Statement/Draft Management

Plan (DEIS/DMP) prepared for the

proposed designation, and provided a

public comment period on the DEIS/

DMP of approximately three months.

Public hearings to receive comments on

the proposed designation, proposed

regulations, and DEIS/DMP were

conducted in Harrisville; Alpena; and

Rogers City, MI during September 8–10,

1997. All comments received by NOAA

in response to the Federal Register

notice, and to the public hearings were

considered and, where appropriate,

were incorporated. A summary of

significant comments on the DEIS/DMP

and proposed regulations and NOAA’s

responses to them follow.

Following publication of the FEIS/

MP, the State of Michigan and NOAA

engaged in detailed discussions about

the terms of designation. These

discussions focused on the name and

boundary of the sanctuary, staffing

arrangements, funding commitments,

and formal agreements between NOAA

and the State. NOAA and the State

agreed to reduce the boundary, change

the name of the sanctuary, and create

the Joint Management Committee.

NOAA and the State also agreed to enter

into a formal agreement, referred to in

this document as a draft Memorandum

of Understanding (MOU). This

agreement, which will be an interlocal

agreement as described in Michigan’s

Urban Cooperation Act, will detail the

relationship between the two parties,

and will be based on the draft MOU

described in the FEIS/MP.

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39043

Federal Presence in State Waters; State

Sovereignty

1. Comment: The Thunder Bay

Underwater Preserve provides adequate

protection to the Bay’s underwater

cultural resources; there is no need to

duplicate efforts.

Response: State of Michigan law

protecting the State’s underwater

preserves (Part 761, Aboriginal Records

and Antiquities of Public Act 451, as

amended), provides a basic level of

protection for abandoned property (the

State’s term for underwater cultural

resources). However, the Sanctuary

encompasses an area of approximately

158 square miles (409 square

kilometers) outside the Preserve as well

as provides additional protection and

resources for the Preserve.

Although the Thunder Bay

Underwater Preserve has existed since

1981, the State has been unable to

provide the necessary financial

resources or staff to comprehensively

manage it. Thus, while the Thunder Bay

Underwater Preserve provides for the

protection of underwater cultural

resources therein, designation as a

National Marine Sanctuary will provide

increased resources to carry out the

research, education and enforcement

activities necessary to more fully know,

understand and protect these resources.

With the designation of a National

Marine Sanctuary, NOAA and the State

will become partners in managing the

Sanctuary area (which almost fully

encompasses the existing Preserve and

protects an additional area) by

providing, with Sanctuary Program and

collaborative partnership funding,

support for these types of activities.

NOAA, as a partner, will supplement

and complement State and/or local

efforts to provide protection to, and

education and research on, Thunder

Bay’s underwater cultural resources.

The Sanctuary regulations provide

additional protection for the existing

Preserve’s underwater cultural

resources. The State only protects

abandoned property, while Sanctuary

designation protects all underwater

cultural resources. This additional

protection applies to non-abandoned

shipwrecks, as well as historical

remnants of docks and piers (see

Section 5, Regulatory Alternatives, of

the Final Environmental Impact

Statement/Management Plan, for a more

complete discussion of the differences

between State law and Sanctuary

regulations).

Designation of the Sanctuary is

intended to build on and strengthen the

Thunder Bay Underwater Preserve.

Because the Thunder Bay National

Marine Sanctuary and Underwater

Preserve is an equal partnership with

the State of Michigan, NOAA and the

State will work together to ensure that

they do not duplicate each other’s

efforts. Given the additional financial

resources and legal authorities NOAA

has to offer, joint management between

the State of Michigan and NOAA will

provide opportunities that neither could

offer on its own. There are numerous

benefits associated with a National

Marine Sanctuary, including enhanced

opportunities for research and long-term

monitoring, additional development of

educational materials, and increased

support for enforcement. The

designation of an area as a Sanctuary

draws attention to the fact that the area

is nationally significant and worth

protecting on a national level.

2. Comment: Any Federal government

program or involvement in Alpena or

surrounding communities is an

intrusion into sovereign State waters.

Designation of the Sanctuary will result

in the loss of State control of Lake

Huron, and a takeover of both

management and regulation of the

Thunder Bay area by the Federal

government.

Response: As has been discussed and

demonstrated throughout the Sanctuary

feasibility process, the Thunder Bay

National Marine Sanctuary and

Underwater Preserve will not change

the ownership or control of State lands

or waters; that is, no loss of State

sovereignty will occur as a result of

designation of a National Marine

Sanctuary. NOAA and the State agree

that the State’s jurisdiction and rights

will be maintained and will not be

relinquished. NOAA will not intrude

upon or change existing State or local

authorities. All existing State laws,

regulations, and authorities will remain

in effect. An MOU for the joint

management of the Thunder Bay

National Marine Sanctuary and

Underwater Preserve between the State

of Michigan and NOAA will contain

several provisions to address this

concern. A key provision will state:

‘‘The State of Michigan has not

conveyed title to or relinquished its

sovereign authority over any Stateowned submerged lands or other Stateowned resources, by agreeing to include

those submerged lands and resources

within the Sanctuary boundary.’’

3. Comment: The Sanctuary should

have a provision requiring a review after

five years to determine whether the

State of Michigan still supports

Sanctuary designation.

Response: Section 304(e) of NMSA

requires the Secretary of Commerce to

review the sanctuary management plan

and implementing regulations every five

years and revise the management plan

as necessary. The MOU between NOAA

and the State of Michigan will contain

a provision requiring the Secretary to redesignate the Sanctuary and re-propose

the management plan and regulations in

their entirety as part of the first five-year

review. The Governor of the State of

Michigan will have the opportunity to

review the designation, management

plan and regulations in their entirety

and indicate if any or all of the terms

are unacceptable, in which case, the

unacceptable terms will not take effect.

In subsequent reviews, NOAA is not

required to re-propose the entire

Sanctuary but only those changes to the

management plan and regulations that

are subject to the Governor’s approval.

Regulations

Introduction

There were a number of comments

related to the breadth and nature of the

proposed Sanctuary regulations. In

response to public comments, NOAA

made several changes to the regulations.

The first change is the definition of

‘‘underwater cultural resources.’’

Several comments noted that the

definition was vague and too broad.

NOAA, therefore, revised the definition

to make it more consistent with the

State definition of ‘‘abandoned

property’’ and provide more

predictability to Sanctuary users as to

what resources the Sanctuary is

managing and protecting. The second

change is the wording of one of the

prohibitions in the Sanctuary

regulations. To clarify what activities

are prohibited, NOAA included

language in the final regulations that is

similar to language in Part 761,

Aboriginal Records and Antiquities of

Public Act 451, as amended. The

prohibition now reads, ‘‘recovering,

altering, destroying, possessing, or

attempting to recover, alter, destroy, or

possess an underwater cultural

resource.’’ The third change was to add

a prohibition on the use of grappling

hooks and other anchoring devices on

underwater cultural resource sites that

are marked with a mooring buoy.

The Sanctuary regulations are limited

to regulating only four categories of

activities: (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

39044 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

the lakebottom associated with

underwater cultural resources (except as

an incidental result of anchoring

vessels; traditional fishing operations; or

minor projects 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; and (4) interfering

with, obstructing, delaying or

preventing an investigation, search,

seizure or disposition of seized property

in connection with enforcement of the

NMSA or any regulations issued under

the NMSA. The regulations prohibit

these four categories of activities.

The Designation Document, which is

in essence the constitution for the

Sanctuary, contains a section limiting

the scope of activities which the

Sanctuary can regulate, on other than a

temporary emergency basis, to these

four categories. In order for an activity

outside the scope of the activities listed

for possible regulation in the

Designation Document to be regulated

other than on a temporary emergency

basis, the Designation Document would

have to be revised following the

designation process set forth in Section

304 of the NMSA. This process includes

extensive public involvement and

review, as well as input and opportunity

to veto by the Governor. In order for a

temporary emergency regulation to be

imposed, the Governor must approve. In

order for an activity within the scope of

activities listed for possible regulation

in the Designation Document to be

regulated or for an existing regulation

affecting such an activity to be revised,

the procedures of the Administrative

Procedure Act would have to be

followed, and under the terms of the

MOU that NOAA and the State will

enter into the Governor would have the

opportunity to veto the regulation.

The Sanctuary regulations are

different from the State law governing

the State’s underwater cultural

resources in four ways: (1) The

Sanctuary regulations apply to all

shipwrecks, not just those that are

abandoned; (2) The use of grappling

hooks or other anchoring devices is

prohibited on underwater cultural

resource sites that are marked with a

mooring buoy; (3) ‘‘Hand-taking’’ of

artifacts outside the Thunder Bay

Underwater Preserve, but still within

the Sanctuary boundary, is prohibited;

and (4) Permit applications to conduct

a prohibited activity are more detailed

to satisfy the Federal Archaeology

Program guidelines.

4. Comment: Fishing should not be

regulated or restricted by the Sanctuary.

Fishing in Thunder Bay could be

affected by designation of a National

Marine Sanctuary.

Response: Commercial and

recreational fishing activities (including

fishery-related research and stocking

programs) are not included within the

Designation Document’s scope of

possible activities that could be

regulated as part of the Sanctuary

regime. See introduction to regulationrelated comments and responses. Of

course, fishing within Thunder Bay is

subject to State regulation and to nonsanctuary Federal regulation under such

authorities as the Endangered Species

Act. For example, State regulations

require all but diving-tending vessels to

not be operated within 200 feet of a

buoyed diver’s flag. The regulation of

who may use the Thunder Bay National

Marine Sanctuary and Underwater

Preserve and for what purpose is not

included within the scope of possible

regulated activities.

If a fishing activity alters a Sanctuary

underwater cultural resource (an act

that is prohibited by 15 CFR

922.193(a)(1)), the fishing activity

would be in violation of the Sanctuary

regulations regardless of whether it is a

traditional fishing activity (defined in

15 CFR 922.191). However, traditional

fishing activities are exempt from the

prohibition on altering the lakebottom

(15 CFR 922.193(a)(2)). A permit would

be necessary to conduct a prohibited

activity.

5. Comment: The Sanctuary should

not restrict diving and access to

shipwrecks.

Response: Non-consumptive access to

shipwrecks and non-consumptive

commercial and recreational diving are

not included within the Designation

Document’s scope of possible activities

that could be regulated as part of the

Sanctuary regime. See introduction to

regulation-related comments and

responses. Of course, diving within

Thunder Bay is subject to State

regulation, such as the requirement to

fly a ‘‘divers’’ flag when diving. No

Sanctuary permits are required to dive

in the Sanctuary. However, the

recovery, alteration, destruction, or

possession of underwater cultural

resources (i.e., the consumption of

underwater cultural resources) is

prohibited.

It will be the policy of the Thunder

Bay National Marine Sanctuary and

Underwater Preserve to foster free and

open access to all underwater cultural

resources. This is the philosophy of the

National Marine Sanctuary Program.

Non-consumptive diving is allowed and

encouraged in all National Marine

Sanctuaries. For example, the Florida

Keys National Marine Sanctuary has

constructed a ‘‘shipwreck trail,’’ which

encourages access to the shipwrecks.

Even on the Monitor (the Civil War

ironclad off the coast of North Carolina),

which is too deep for most recreational

divers, licensed dive operators have

been allowed to conduct nonconsumptive dives.

On rare occasions, the Thunder Bay

National Marine Sanctuary and

Underwater Preserve may need to place

temporary emergency limits on access to

a shipwreck (e.g., if a historically

significant shipwreck is newly

discovered and NOAA and the State

need to document the artifacts). The

only way in which NOAA could do this

would be through the imposition of an

emergency regulation pursuant to 15

CFR 922.196. In accordance with the

regulations and the MOU that will be

entered into, NOAA cannot impose a

temporary emergency regulation

without the approval of the Governor.

In the event that NOAA imposes some

type of restriction on access to allow

documentation of a newly-discovered

shipwreck, NOAA envisions using

volunteer divers who are trained to

assist the agency in collecting

information.

6. Comment: The Sanctuary should

not prohibit anchoring at shipwreck

sites.

Response: Due to damage to

underwater cultural resources that

could be caused by grappling hooks or

anchoring devices, and in response to a

recommendation from the Sanctuary

Advisory Council (SAC), NOAA added

a prohibition on the use of grappling

hooks or other anchoring devices on

underwater cultural resource sites that

are marked with a mooring buoy (15

CFR 922.193(a)(3)). If a site is not

marked with a mooring buoy, grappling

hooks or anchoring devices may be

employed. However, because of the

potential of damaging an underwater

cultural resource, NOAA recommends

that such devices only be used at a nonmooring buoy-marked site when there is

no alternative. In such case, the person

intending to use an anchoring device

should consult with the Sanctuary

manager to determine ways of avoiding

damage to the underwater cultural

resource at the site (e.g., obtaining

information about how the anchoring

device should be placed and oriented to

avoid damaging vulnerable parts of the

resource).

The State of Michigan considers

damage to abandoned property caused

by grappling hooks a violation of Part

761, Aboriginal Records and Antiquities

of Public Act 451 (1994), as amended.

Therefore, the Sanctuary regulation is

fully consistent with state law.

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39045

As discussed in the response to

comment 23, a high priority activity

once the Sanctuary is designated is the

placement of mooring buoys at all

shipwreck sites where a mooring buoy

may feasibly be placed. This will allow

safe access for divers, allow boats to tie

up to the mooring buoys, and eliminate

the need for anchoring on the

lakebottom.

7. Comment: The Sanctuary should

not restrict or regulate private

archaeological surveys.

Response: The Sanctuary regulations

prohibit the recovering, altering,

destroying, or possession of any

underwater cultural resource regardless

of how that recovering, altering,

destroying, or possession occurs (e.g.,

through the conduct of a private

archaeological survey). Even if the

conduct of private archaeological

surveys is not expected to alter or

otherwise adversely impact an

underwater cultural resource, NOAA

encourages the surveyor to consult with

the Sanctuary manager. In general,

NOAA and the State encourage research

and documentation on underwater

cultural resources, as long as the activity

does not violate the Sanctuary

regulations. If an activity would violate

a Sanctuary prohibition, a Sanctuary

permit authorizing the activity must

first be obtained.

8. Comment: The Sanctuary should

not restrict commercial diving charter

operations.

Response: See response to comment 5.

The regulations do not place any

restrictions on the number of

commercial dive charter operations in

the Sanctuary, nor do they require dive

charters to have a license or to register

their boats for use in the Sanctuary.

NOAA will not charge a user fee for

commercial diving charter operations.

NOAA and the State will work in

partnership with dive operators to

educate divers about the Sanctuary.

9. Comment: The Sanctuary should

not require registration for divers or

boats.

Response: The regulations do not

require divers or boat operators to

register to be in Sanctuary waters.

NOAA will not charge a user fee for

divers or boat operators.

10. Comment: The Sanctuary should

not grant leases or issue permits for the

removal of oil and/or gas from locations

under the bottomlands within the

Sanctuary boundary.

Response: The State, not the

Sanctuary, has ownership rights to and

leasing authority over oil, gas, and

mineral resources lying beneath the

lakebottom. The need to obtain a

Sanctuary permit would arise only if the

State grants a lease for the removal of oil

and/or gas and that activity would affect

underwater cultural resources. If such

activity would not impact underwater

cultural resources, no Sanctuary permit

would be required.

The Sanctuary regulations include a

prohibition on 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

that do not adversely affect underwater

cultural resources. Any person

conducting an activity that adversely

impacts underwater cultural resources

would be required to obtain a permit

pursuant to the Sanctuary regulations.

Any such permit would have to meet

the requirements of Section 922.195.

11. Comment: The Sanctuary should

not restrict property rights and land use.

Response: The Sanctuary will have no

effect on existing property rights or on

existing land uses. The landward

boundary of the Sanctuary extends

along the ordinary high water mark

between the north and south Alpena

County lines. The MOU will contain the

following provision: ‘‘NOAA does not

have the ability to, and therefore cannot,

acquire land to regulate activities

landward of the ordinary high water

mark (e.g., limiting public access from

the shore to Lake Huron). NOAA does

have authority to co-manage activities

lakeward of the ordinary high water

mark pursuant to the Sanctuary

regulations.’’

12. Comment: The Sanctuary should

not regulate hunting activities.

Response: Hunting is not included

within the Designation Document’s

scope of possible activities that could be

regulated as part of the Sanctuary

regime. See introduction to regulationrelated comments and responses. Any

hunting activity on land would be

outside the Sanctuary boundary and

therefore not affected at all by the

Sanctuary regulations. Waterfowl

hunting on the water is outside the

scope of possible activities that could be

regulated as part of the Sanctuary

regime.

13. Comment: The Sanctuary should

not impose more regulations in the

future.

Response: The Sanctuary has a very

narrow management focus on

underwater cultural resources, with

virtually no effect on individual

activities in Thunder Bay unless these

activities would cause a violation of one

of the four categorical prohibitions in

the regulations.

The Designation Document, which is

in essence the constitution for the

Sanctuary, contains a section limiting

the scope of activities which the

Sanctuary can regulate, on other than a

temporary emergency basis, to these

four categories. In order for an activity

outside the scope of the activities listed

for possible regulation in the

Designation Document to be regulated

other than on a temporary emergency

basis, the Designation Document would

have to be revised following the

designation process set forth in Section

304 of the NMSA. This process includes

extensive public involvement and

review, as well as input and opportunity

to veto by the Governor. In order for a

temporary emergency regulation to be

imposed, the Governor must approve. In

order for an activity within the scope of

activities listed for possible regulation

in the Designation Document to be

regulated or for an existing regulation

affecting such an activity to be revised,

the procedures of the Administrative

Procedure Act would have to be

followed and under the terms of the

MOU that will be entered into the

Governor would have the opportunity to

veto the regulation.

14. Comment: The definition of

traditional fishing does not specifically

reference tribal fishing.

Response: NOAA included in the

proposed Sanctuary regulations a

definition of ‘‘traditional fishing’’

because it is an activity that is exempt

from 15 CFR 922.193(a)(2), alteration of

the lakebottom. NOAA agrees that even

though tribal fishing is prohibited in

this area under the 1985 Consent

Agreement, it is an activity that was

‘‘customarily conducted within the

Sanctuary prior to its designation.’’

NOAA, therefore, has clarified in the

final regulations that tribal fishing falls

under the definition of traditional

fishing.

15. Comment: The Sanctuary should

not be allowed to issue emergency

regulations.

Response: Pursuant to 15 CFR

922.196, an activity may be temporarily

regulated in an emergency to prevent or

minimize the destruction of, loss of, or

injury to a Sanctuary resource.

Eliminating this authority would

jeopardize the Sanctuary’s ability to

react and respond quickly to emergency

situations threatening Sanctuary

resources. Although the provision for

emergency temporary regulation is

vitally important to ensure the

Program’s ability to respond to

emergency situations, the mechanism is

39046 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

very rarely used. The Designation

Document and the regulations require

that NOAA obtain the approval of the

Governor prior to an emergency

regulation taking effect. The MOU

between NOAA and the State will

contain the same provision.

16. Comment: Exempt from

prosecution charter boat operators and

personal sport divers who dive a wreck

without a mooring buoy, if the reason

for the absence of a buoy is that it has

not been set, or that it has been

accidentally destroyed.

Response: The regulations for the

Thunder Bay National Marine Sanctuary

and Underwater Preserve do not require

that divers use mooring buoys. The

regulations at 15 CFR 922.193(a)(3),

however, prohibit the use of grappling

hooks or other anchoring devices on

underwater cultural resource sites that

are marked with a mooring buoy. If the

site does not have a mooring buoy, there

is no prohibition on the use of grappling

hooks or anchoring devices. See

response to Comment 6. As discussed in

Comment 23, it will be a priority of the

Thunder Bay National Marine Sanctuary

and Underwater Preserve to install and

maintain a mooring buoy system.

17. Comment: Adopt Sanctuary

regulations that mirror the State of

Michigan regulations protecting

underwater cultural resources, per

Alternative A, Regulatory Alternatives.

Response: NOAA’s preferred

regulatory alternative is Alternative B

(see Section 5 of the FEIS/MP), which

is to adopt Sanctuary regulations

consistent with the purpose and intent

of State regulations under Part 761,

Aboriginal Records and Antiquities, of

P.A. 451 (1994), as amended, and Part

325, Great Lakes Submerged Lands, of

P.A. 451 (1994), as amended. The

primary advantage of Alternative B is

that protective coverage is extended to

all shipwrecks within the Sanctuary

boundary; not just to ‘‘abandoned’’

shipwrecks, as defined under State law

and the federal Abandoned Shipwreck

Act. In effect, adoption of Alternative B

will serve as a safety net for State

underwater cultural resources that

might be unprotected under either State

law or the Abandoned Shipwreck Act.

NOAA has revised the Sanctuary

regulations to reflect the language in the

State law. For example, NOAA changed

the definition of ‘‘underwater cultural

resources’’ to a definition that uses

terms similar to the State definition of

‘‘abandoned property’’ (which is the

State term for underwater cultural

resources). NOAA also changed the

wording of a prohibited activity (15 CFR

922.193(a)(1)) to more closely reflect the

State prohibition under Part 761,

Aboriginal Records and Antiquities of

P.A. 451 (1994), as amended. Therefore,

while NOAA is still adopting Regulatory

Alternative B, this alternative is closer

to Regulatory Alternative A than it was

in the DEIS/DMP.

18. Comment: What procedures are in

place to ensure that NOAA cannot make

unilateral changes to the Sanctuary (e.g.,

changing the scope of regulations)?

Response: See response to comment

13.

Extent of Underwater Cultural

Resources in the Boundary

19. Comment: The collection of

underwater cultural resources

(primarily shipwrecks) in Thunder Bay

is not ‘‘nationally significant,’’ and thus

does not qualify for National Marine

Sanctuary status.

Response: The collection of

approximately 116 shipwrecks both

known and thought to be located within

the boundary of the Thunder Bay

National Marine Sanctuary and

Underwater Preserve represents a large

diversity of vessels that navigated the

Great Lakes in the 19th and 20th

centuries. Collectively, these

shipwrecks reflect transitions in ship

architecture and construction methods,

from wooden sailing boats to early steelhulled steamers. In addition to

representing important transitions in

ship architecture and construction, the

collection also conveys many stories of

Great Lakes transportation and

commerce over the past two hundred

years.

Section 303(a)(2) of the NMSA

requires that in order to be designated

as a National Marine Sanctuary an area

contain resources or human-use values

of special national significance. NOAA

funded a study to determine whether

the underwater cultural resources of the

Thunder Bay region are nationally

significant. There is strong evidence,

based on this study, of national historic

significance attached to this collection

of underwater cultural resources located

in the Thunder Bay area (See

Preliminary Comparative and Theme

Study of National Historic Landmark

Potential for Thunder Bay, Martin

1996). Martin (1996) indicated that the

collection of shipwrecks would likely

qualify as a National Historic Landmark.

In addition, several of the known

shipwrecks individually have potential

national historic significance, e.g., Isaac

M. Scott, which foundered in the Great

Storm of 1913 (See Section 4, E. of the

FEIS/MP for a complete discussion of

these shipwrecks).

20. Comment: The number of

shipwrecks occurring outside Alpena

County does not warrant extension of

the Sanctuary boundary beyond Alpena

County.

Response: Although the majority of

known and suspected shipwrecks occur

in waters off Alpena County, there are

also a significant number of known or

suspected shipwrecks occurring in

waters off both Alcona and Presque Isle

Counties, notably near the lighthouses

at both locations. (See Figure 5.4 of the

FEIS/MP, ‘‘Approximate Locations of

Shipwrecks in the Thunder Bay

Region’’). As described in Table 5.1 of

the FEIS/MP, ‘‘Number of known,

probable, and suspected shipwrecks,’’

the greatest increase occurs from

Boundary B (Alpena County lines) and

Boundary C (Presque Isle Lighthouse as

the northern boundary and Sturgeon

Point Lighthouse as the southern

boundary C NOAA’s preferred

boundary). The number of known,

probable, and suspected shipwrecks

increases from 116 in Boundary B to 160

in Boundary C.

In response to a request by the State

of Michigan, however, NOAA reduced

the size of the boundary from 808

square miles (2093 square kilometers) to

448 square miles (1169 square

kilometers). The revised boundary still

uses the 83 degrees longitude as the

lakeward boundary, but uses the Alpena

County lines as the north and south

landward boundary points. The State

requested a smaller boundary due to the

higher concentration of shipwrecks in

this area and fewer local governments

with whom to coordinate. NOAA agreed

to the adoption of Boundary B with the

stipulation that an inventory will be

conducted of shipwrecks in the larger

area (the additional 360 square miles

(932 square kilometers)) to determine if

boundary expansion is warranted after

five years. The Governor has veto

authority over boundary expansion.

To achieve the uniformity of

regulations, the State intends to make

the boundary of the existing state

Underwater Preserve coterminous with

the National Marine Sanctuary.

21. Comment: The National Marine

Sanctuary Program should not be

supporting sanctuaries that only protect

cultural resources.

Response: Section 301(a)(2) of the

NMSA states ‘‘the Congress finds that

certain areas of the marine environment

possess conservation, recreational,

ecological, historical, research,

educational, or esthetic qualities which

give them special national, and in some

cases, international significance.’’ The

Secretary of Commerce is not required

to designate national marine sanctuaries

based upon a finding that all of these

listed criteria are present. A sanctuary

may be designated based on the national

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39047

significance of any one of the listed

criteria, provided that the requirements

of sections 303 and 304 of the NMSA

are met.

22. Comment: Arrange the boundaries

of the Sanctuary to include only areas

with a high concentration of known and

probable wrecks.

Response: It would be very difficult

administratively to manage a Sanctuary

with many noncontiguous areas as

envisioned in this comment. While it is

estimated the Sanctuary contains

approximately 116 shipwrecks, and

some of these have been identified,

many more are thought to be in the

Thunder Bay area and have yet to be

located and documented. Provided a

shipwreck lies within the boundary of

the contiguous area, it is subject to all

Sanctuary protections. If as the

commenter suggests, a sanctuary was

designated consisting of noncontiguous

boundaries lying around each known

wreck, in order to protect additional

wrecks, the expensive and cumbersome

sanctuary designation process would

have to be repeated.

Management of Shipwrecks

23. Comment: Use State and federal

funds to maintain mooring buoys,

anchored within 50 feet of each dive

site, from May 1st to October 31st of

each year, on all identified wrecks

within the Sanctuary that are within 130

feet of the surface. Fit the anchor line

for each buoy with a permanent

guideline that maintains a depth of ±5

feet from the shallowest point of the

dive site.

Response: The placement of mooring

buoys is an important element of

ensuring safe and open public access to

Thunder Bay’s underwater cultural

resources, while also ensuring the

protection of these resources. NOAA

and the State will pursue placing

mooring buoys at identified dive sites,

and will also pursue collaboration with

private and/or other governmental

sources of support to implement full

mooring buoy placement and

maintenance, as appropriate. The

specifics of mooring buoy placement

will be addressed following designation,

in part through findings and

assessments resulting from Sanctuary

inventory surveys. As with any activity,

however, the placement and

maintenance of mooring buoys will be

subject to available funding.

24. Comment: Regularly publicize

coordinates of existing and newly-found

shipwrecks, dates of upcoming studies

of wrecks and other research projects,

and results of completed and ongoing

research projects.

Response: Consistent with goals of the

National Marine Sanctuary Program

Strategic Plan, NOAA promotes

‘‘coordinated research and monitoring

efforts throughout the Program.’’ As

discussed in the Management Plan (see

Section 3 of the FEIS/MP), goals of the

research/monitoring program at

Thunder Bay include inventory and

assessment of Sanctuary resources, and

development of collaborative programs

with other agencies, businesses, and

organizations.

NOAA has authority under Section

304 of the National Historic

Preservation Act and Section 9(a) of the

Archaeological Resource and Protection

Act to withhold the location of certain

shipwrecks. It will be the policy of the

Thunder Bay National Marine Sanctuary

and Underwater Preserve to make these

coordinates available to the public.

However, for safety or enforcement

purposes, exact locations of newly

discovered shipwrecks may not be

reported immediately.

Dates of Sanctuary-funded or

Sanctuary-permitted studies of

shipwrecks and other research projects

will be available to the interested

public, once those dates are established.

Finally, results of completed research

also will be made available to the

interested public; progress on ongoing

research projects will also be made

available to the public, as appropriate.

25. Comment: Use State and federal

funds, and/or assistance in fundraising,

to purchase and install a hyperbaric

chamber near the Sanctuary.

Response: Decisions related to the

purchase and installation of a

hyperbaric chamber near the Sanctuary

to support Sanctuary research/

monitoring programs will be made as

annual detailed research plans for the

Sanctuary are developed. Such plans

also will include discussion of funding

for various equipment and supplies.

NOAA acknowledges the importance of

having a hyperbaric chamber in close

proximity to the Thunder Bay National

Marine Sanctuary and Underwater

Preserve.

26. Comment: Provide incentives and

mechanisms to encourage private

individuals and companies to explore

shipwrecks not yet discovered; and to

share information and documentation

they already have, or gather in the

future, on shipwrecks in the area.

Response: Among the highest

priorities to ensure effective Sanctuary

management are research and inventory

activities to establish baseline

information on the location and status

of underwater cultural resources. There

will be no restrictions on divers or other

public access to known or suspected

shipwrecks within the Sanctuary,

provided diving activity is conducted in

a manner that complies with Sanctuary

and other valid regulations. Individuals

will be encouraged to explore the

Sanctuary for the potential discovery of

underwater cultural resources, and to

share this information and

documentation. NOAA and the State

will facilitate these efforts by

developing and providing information

forums and written and/or visual

materials for the public.

27. Comment: Provide State and

federal support for selecting,

purchasing, cleaning up, and scuttling

additional vessels within the Sanctuary.

Response: The selection, purchase,

clean-up and scuttling of ‘‘additional’’

vessels within the Sanctuary will not be

a management activity for the

Sanctuary. The purpose of the

Sanctuary is to manage and protect

existing shipwrecks within the

Sanctuary boundary.

Development of Educational Programs

28. Comment: Develop joint State and

federal public education programs,

including a web page on the Internet, to

promote understanding of the resources

available in the Sanctuary to the public

of the State, nation, and world.

Response: Development of joint State

and federal public education and

interpretive programs on the maritime

heritage of the Thunder Bay area are

contemplated in the Management Plan

(see Section 3, Management Plan, FEIS/

MP). Part of such programs will include

further and continuing development

and maintenance of a web page. A web

page has already been developed

containing preliminary information

about the site and its progress toward

National Marine Sanctuary designation.

The web page address is: http://

www.glerl.noaa.gov/glsr/thunderbay.

29. Comment: Provide joint federal

and State support for local educational

opportunities to all ages and types of

schools about aspects of marine and

ecological sciences and history in the

Thunder Bay area; train educators in the

use of that programming.

Response: As generally described in

Section 3, Management Plan, the

Sanctuary’s goals for education include

development and implementation of

science-based programs that promote

awareness and understanding of the

Thunder Bay area’s underwater cultural

resources and maritime heritage. The

primary purpose of the Thunder Bay

National Marine Sanctuary and

Underwater Preserve is to provide

comprehensive, long-term protection—

through education, research and

management programs—for the

39048 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

nationally-significant collection of

underwater cultural resources found in

the Thunder Bay area. Given this

singular management focus,

development and support for

programming (and training in the use of

that programming) to educate children,

college students, and the public about

aspects of marine and ecological science

and history in the Thunder Bay area

will not be a high management priority

for the Sanctuary, unless such inquiries

relate to maritime heritage (e.g., the

effects of zebra mussels on shipwrecks).

30. Comment: Provide that the

Sanctuary Manager or designee shall

make presentations as requested to

community organizations on the

functions, budget, and staff of the

Sanctuary.

Response: Success of the Thunder Bay

National Marine Sanctuary and

Underwater Preserve will depend in

large part upon its integration into the

local and surrounding communities.

Outreach and communication efforts

made by the Sanctuary staff to those

communities will support such

integration. In coordination with its

State partners and others, the Sanctuary

Manager will be available to make

presentations to community

organizations on Sanctuary activities,

programs and administration.

31. Comment: Provide publicity and

mechanisms to invite and incorporate

the involvement of local residents, who

have appropriate credentials and

experience, in Sanctuary research

projects.

Response: A Sanctuary Research Plan

will be developed, identifying research

and monitoring activity priorities. As

Sanctuary funds are available, some

may be competitively awarded to

support these research and/or

monitoring projects. The funds will be

awarded to individuals with appropriate

credentials and experience from local

residents and those from outside the

area.

32. Comment: Provide specific

mechanisms for involving the diving

community in planning and conducting

research and educational projects

related to the Sanctuary.

Response: As with area residents

interested in potential Sanctuary

research and educational projects, the

Sanctuary will make information and

opportunities for planned research and

education projects known to the diving

community. One way for interested area

residents and representatives of the

diving community to become involved

in helping to plan for such projects is

through the SAC and its subcommittees.

The SAC will advise and provide

recommendations to the Sanctuary

Manager regarding development of

priorities for annual research and

education plans. In other sanctuaries,

NOAA depends on the experience and

expertise of divers to provide input to

the Sanctuary Manager. NOAA and the

State will place a high priority on

building a strong relationship with local

and regional divers.

33. Comment: Use federal and State

funds to document the cultural

resources within the Sanctuary and to

provide at least one public resource

center through each tourist season.

Response: The identification and

documentation of underwater cultural

resources within the Sanctuary clearly

are priority items for planning site

management, which includes the

provision of complete, current

information to the user and other

interested publics. NOAA and the State

will pursue development of a Maritime

Heritage Center with other agencies,

businesses, and organizations. This type

of Center would provide the public with

information on the Sanctuary, its

resources, and the maritime heritage of

the Thunder Bay area.

User Fees

34. Comment: A number of

commenters expressed concern that user

fees may be imposed on various

Sanctuary users, such as those engaged

in fishing, diving or boating activities.

Response: NOAA will not impose

user fees on any activity within the

Sanctuary. The MOU between NOAA

and the State of Michigan will contain

a provision stating that any user fee

would be subject to a veto by the

Governor of Michigan.

Conflict Resolution

35. Comment: Tribal participation

must be included in the conflict

resolution procedures.

Response: NOAA agrees that tribal

interests should be considered in the

conflict resolution process. The MOU

between the State of Michigan and

NOAA will set forth a conflict

resolution process. The ChippewaOttawa Fishery Treaty Management

Authority and other tribes may enter

into a separate MOU(s) with NOAA

and/or the State to address such

concerns.

36. Comment: How will the Sanctuary

deal with potential conflicts between

fishermen and divers?

Response: State regulations require

divers to fly a ‘‘divers’’ flag and for all

vessels not tendering the divers to not

be operated within 200 feet of the flag.

This should minimize conflicts between

fisherman and divers with minimal

interference and inconvenience to

fishermen. Accordingly, there would

not appear to be a need for separate

Sanctuary regulations on this subject

matter. If conflicts do arise, there will be

a framework for conflict resolution in

the MOU. The SAC or other local forum

will be critical to the resolution of this

type of conflict.

Economic Impact Assessment

37. Comment: There is an error in the

Economic Impact Assessment regarding

the transcription of projected use data

from one table to another.

Response: The DEIS/DMP contained a

word processing error in Table 1 of

Appendix F and Table 6.1 in Volume 1

of the Draft EIS/DMP (i.e., the use

projections for bird watching [overnight

trips] were inadvertently duplicated for

kayaking/canoeing [day trips]). The

word processing error resulted in trip

figures after bird watching (overnight

trips) to be ‘‘thrown off’’ by one line.

The Total party trips in Table 1 and

Table 6.1 should be 6,150 for FY97;

9,200 for FY98; 14,175 for FY99; 23,000

for FY00; and 31,700 for FY01 (as

shown on the last line of Table 2 in

Appendix F). The use projections in

Table 1 and Table 6.1 should have been

consistent with Table 2 in Appendix F

of the DEIS/DMP. This correction was

made in the FEIS/MP.

38. Comment: The use of kayaking,

bird watching and sightseeing as

categories for tourism in the economic

impact assessment is not appropriate

because the Sanctuary is limited to the

protection of underwater cultural

resources.

Response: Section 6 of the DEIS/DMP

(the economic impact assessment)

included bird watching, kayaking/

canoeing, and sightseers in the impact

calculations for an ‘‘underwater’’

sanctuary for several reasons. First, the

Sanctuary will interpret and promote

the entire ‘‘maritime cultural

landscape’’ in partnership with the

community and state, and the landscape

includes resources other than

shipwrecks. Second, a certain segment

of visitors will be attracted to the region

simply because there is a National

Marine Sanctuary there. They may be

primarily interested in cultural heritage,

but can realistically be assumed to

participate also in recreation associated

with natural heritage (in addition, some

of this ‘‘natural’’ heritage is an

important component of the maritime

cultural landscape). Finally, social

research involving heritage tourism

indicates that a primary motivation for

visitation is history and human heritage,

but that these visitors also participate in

other outdoor recreation activities.

These are supported by social research

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39049

in heritage tourism; aggregate trends and

projections of use for bird watching,

canoeing/kayaking, and sightseeing (i.e.,

nature-based tourism along the

shorelands and from boats); and some

results from the Florida Keys recreation

and tourism study (Leeworthy et al.

1996).

39. Comment: The impact of

increased visitors on the area’s local

infrastructure and on the environment is

not adequately addressed.

Response: The economic impact

assessment was limited in scope due to

financial constraints and availability of

data. However, NOAA does not believe

the projected increase in visitation

would cause stresses on the area’s

infrastructure. The City of Alpena is

growing, with new businesses and

stores locating there. This growth,

which is not a result of the Sanctuary,

will prepare the City for increased

visitation.

Other

40. Comment: Is State or local

matching funding required for the

Sanctuary?

Response: The NMSA does not

require any State and/or local support

for Sanctuary programs and activities.

The MOU will contain the following

statement to address this concern: ‘‘No

local funding is required to implement

the Management Plan, its implementing

regulations, or any provisions of this

MOU.’’ Initial NOAA funding levels for

the Sanctuary will be at least $250,000

annually. This figure could be higher or

lower depending on appropriations. The

State of Michigan, as a joint manager of

the sanctuary/preserve, has also

committed to provide financial support.

In addition to this level of support, there

are opportunities for revenue

enhancement and cost-sharing with a

variety of agencies, organizations,

institutions, businesses and individuals,

to assist in meeting Sanctuary Program

objectives. NOAA and the State will

continue to promote and encourage

means such as partnerships and

sponsorships, to raise additional

support for Sanctuary programs.

41. Comment: Involve the existing

SAC in reviewing and revising the MOU

to ensure that it accurately addresses

local concerns.

Response: Prior to the release of this

FEIS/MP, the SAC was requested to

review and make recommendations to

NOAA regarding the MOU. Before the

FEIS/MP release, the SAC also reviewed

and endorsed the Programmatic

Agreement among NOAA, the State of

Michigan and the Advisory Council on

Historic Preservation. The SAC’s

involvement has been critical in shaping

the terms and scope of the Sanctuary.

42. Comment: Who on the state or

local level would be responsible for

enforcement of the Sanctuary

regulations? The Final Management

Plan should include a provision for

funding enforcement activities.

Response: Enforcement of Sanctuary

regulations will be discussed in the

MOU, and the MOU will provide for

possible deputization of State of

Michigan, Michigan State Police, and

county marine sheriff enforcement

personnel, for the enforcement of

Sanctuary regulations. NOAA envisions

developing a separate MOU for

enforcement. Under such an agreement,

the appropriate State agency would be

recognized as the lead enforcement

entity, and provisions for necessary

cost-sharing for law enforcement

activities would be made.

43. Comment: NOAA needs to address

the impacts of zebra mussels on

shipwrecks.

Response: NOAA recognizes that

zebra mussels will be a management

concern for the Sanctuary. If this is

determined to be a priority research

activity, funds will be allocated to

examine the impact of zebra mussels on

shipwrecks.

44. Comment: The availability of the

open water placement site for future

placement of clean dredged materials is

critical for continued maintenance of

the Federal navigation channel at

Alpena Harbor.

Response: NOAA recognizes the

importance of maintaining the

navigation channel at Alpena Harbor; it

is not aware of adverse impacts to

underwater cultural resources caused by

the open water placement site. Unless

there are adverse impacts, the Sanctuary

will not impose restrictions on the

continued availability of the open water

placement site currently used by the

Corps for placement of clean dredged

materials resulting from periodic

maintenance dredging of navigation

channels and harbors located on Lake

Huron.

45. Comment: Safety of Sanctuary

users should be considered in light of

commercial shipping traffic in Thunder

Bay. Mooring buoys should be kept out

of commercial course lines.

Response: After Sanctuary

designation, NOAA and the State will

work with the U.S. Coast Guard and the

Lake Carriers’ Association to develop a

safe and effective mooring buoy system,

as well as to ensure that mooring buoys

are not placed in major shipping

channels.

46. Comment: In the event of an oil

spill, NOAA should comply with U.S.

Coast Guard Area Contingency Plan.

Response: After designation, NOAA

will work closely with the U.S. Coast

Guard to ensure that NOAA is aware of,

and part of, the Area Contingency Plan.

NOAA added information in Section 4

of the FEIS/MP on the Area Contingency

Plan.

47. Comment: Why isn’t the Fame

included in the list of shipwrecks?

Response: Upon further research, it is

apparent that the ship came to rest on

the shores of Presque Isle. The ship’s

unusually accident-prone history,

including its stranding in Thunder Bay

early in its career, likely contributed to

the confusion regarding its eventual

fate. It appears that few remains of the

vessel probably exist at the location of

its loss because of salvage and shoreland

development activities. Due to the

adoption of a smaller boundary,

however, the Fame will be outside the

Sanctuary boundary.

II. Designation Document

Section 304(a)(4) of the Act requires

that the terms of designation set forth

the geographic area included within the

Sanctuary; the characteristics of the area

that give it conservation, recreational,

ecological, historical, research,

educational, or esthetic value; and the

types of activities subject to regulation

by the Secretary to protect those

characteristics. This section also

specifies that the terms of the

designation may be modified only by

the same procedures by which the

original designation is made. Thus the

terms of designation serve as a

constitution for the Sanctuary.

The Designation Document for the

Thunder Bay National Marine Sanctuary

and Underwater Preserve follows:

Designation Document for the Proposed

Thunder Bay National Marine Sanctuary

and Underwater Preserve

Under the authority of the National Marine

Sanctuaries Act, as amended (the ‘‘Act’’ or

‘‘NMSA’’), 16 U.S.C. 1431 et seq., Thunder

Bay and its surrounding waters offshore of

Michigan, and the submerged lands under

Thunder Bay and its surrounding waters, as

described in Article II, are hereby designated

as the Thunder Bay National Marine

Sanctuary and Underwater Preserve for the

purposes of providing long-term protection

and management to the conservation,

recreational, research, educational, and

historical resources and qualities of the area.

Section 304(a)(4) of the NMSA requires

that the terms of designation include the

geographic area included within the

Sanctuary; the characteristics of the area that

give it conservation, recreational, ecological,

historical, research, educational, or esthetic

value; and the types of activities that will be

39050 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

subject to regulation by the Secretary of

Commerce to protect those characteristics.

The terms of designation may be modified

only by the procedures provided in Section

304(a) of the Act (the same procedures by

which the original designation is made).

Thus, the terms of designation serve as a

constitution for the Sanctuary.

Article I. Effect of Designation

The NMSA authorizes the issuance of such

regulations as are necessary and reasonable

to implement the designation, including

managing and protecting the conservation,

recreational, historical, research, and

educational resources and qualities of the

Thunder Bay National Marine Sanctuary and

Underwater Preserve (the ‘‘Sanctuary’’).

Section 1 of Article IV of this Designation

Document lists those activities that may be

regulated on the effective date of designation,

or at some later date, in order to protect

Sanctuary resources and qualities. Listing

does not necessarily mean that an activity

will be regulated; however, if an activity is

not listed it may not be regulated, except on

an emergency basis, unless Section 1 of

Article IV is amended to include the type of

activity by the same procedures by which the

original Sanctuary designation was made, as

outlined in Section 304(a) of the NMSA.

Article II. Description of the Area

The Thunder Bay National Marine

Sanctuary and Underwater Preserve consists

of an area of approximately 448 square miles

of waters of Lake Huron and the submerged

lands thereunder, over, around, and under

the underwater cultural resources in Thunder

Bay. The boundary forms an approximately

rectangular area by extending along the

ordinary high water mark of the Michigan

shoreline from the northern and southern

boundaries of Alpena County, cutting across

the mouths of rivers and streams, and

lakeward from those points along latitude

lines to longitude 83 degrees west. The

coordinates of the boundary are set forth in

Appendix A to the regulations.

Article III. Characteristics of the Area That

Give It Particular Value

Thunder Bay and its surrounding waters

contain approximately 116 shipwrecks

spanning more than a century of Great Lakes

maritime history. Virtually every type of

vessel used on open Great Lakes waters has

been documented in the Thunder Bay region,

linking Thunder Bay inextricably to Great

Lakes commerce. Most of the Great Lakes

trades had a national, and sometimes an

international, significance, and resulted in

uniquely-designed vessels. Although not all

of Thunder Bay’s shipwrecks have been

identified, studies undertaken to date

indicate strong evidence of the Bay’s national

historic significance. The sunken vessels

reflect transitions in ship architecture and

construction methods, from wooden sailboats

to early iron-hulled steamers.

Several major conclusions regarding

Thunder Bay’s shipwrecks may be drawn

from research and analysis undertaken to

date: they are representative of the

composition of the Great Lakes merchant

marine from 1840 to 1970; they provide

information on the various phases of

American westward expansion; they provide

information on the growth of American

extraction and use of natural resources; they

illustrate various phases of American

industrialization; one shipwreck (Isaac M.

Scott) may be used to study and interpret a

specific event (the Great Storm of 1913) that

had strong repercussions regionally,

nationally, and internationally; and they

provide interpretive material for

understanding American foreign

intercontinental trade within the Great Lakes.

Thunder Bay was established as the first

State of Michigan Underwater Preserve in

1981 to protect underwater cultural

resources. Increasing public interest in

underwater cultural resources underscores

the importance of continued efforts to

discover, explore, document, study and to

provide long-term, comprehensive protection

for the Bay’s shipwrecks and other

underwater cultural resources.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation.

The following activities are subject to

regulation under the NMSA, including

prohibition, to the extent necessary and

reasonable to ensure the protection and

management of the conservation,

recreational, historical, research and

educational resources and qualities of the

area:

a. Recovering, altering, destroying,

possessing, or attempting to recover, alter,

destroy or possess, an underwater cultural

resource;

b. 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 (as

defined in the regulations); or

(iii) Minor projects as defined upon

adoption of this regulation in R.322.1013 of

Part 325, Great Lakes Submerged Lands of

Public Act 451 (1994), as amended, that do

not adversely affect underwater cultural

resources (see Appendix B of Subpart R);

c. Using grappling hooks or other

anchoring devices on underwater cultural

resource sites that are marked with a mooring

buoy;

d. Interfering with, obstructing, delaying or

preventing an investigation, search, seizure

or disposition of seized property in

connection with enforcement of the NMSA or

any regulations issued under the NMSA.

Section 2. Consistency with International

Law. The regulations governing the activities

listed in Section 1 of this Article shall apply

to United States-flag vessels and to persons

who are citizens, nationals, or resident aliens

of the United States and shall apply to

foreign flagged vessels and persons who are

not citizens, nationals, or resident aliens of

the United States to the extent consistent

with generally recognized principles of

international law, and in accordance with

treaties, conventions, and other agreements

to which the United States is a party.

Section 3. Emergencies. Where necessary to

prevent or minimize the destruction of, loss

of, or injury to a Sanctuary resource or

quality; or minimize the imminent risk of

such destruction, loss, or injury, any and all

such activities, including those not listed in

Section 1, are subject to immediate

temporary regulation, including prohibition.

Any such emergency regulation shall not take

effect without the approval of the Governor

of Michigan.

Article V. Effect on Other Regulations,

Leases, Permits, Licenses, and Rights

Section 1. Fishing Regulations, Licenses,

and Permits. Fishing in the Sanctuary shall

not be regulated as part of the Sanctuary

management regime authorized by the Act.

However, fishing in the Sanctuary may be

regulated other than under the Act by

Federal, State, Tribal and local authorities of

competent jurisdiction, and designation of

the Sanctuary shall have no effect on any

regulation, permit, or license issued

thereunder.

Section 2. Other. If any valid regulation

issued by any Federal, State, or local

authority of competent jurisdiction,

regardless of when issued, conflicts with a

Sanctuary regulation, the regulation deemed

by the Director, Office of Ocean and Coastal

Resource Management, National Oceanic and

Atmospheric Administration, or his or her

designee, in consultation with the State of

Michigan, to be more protective of Sanctuary

resources shall govern.

Pursuant to Section 304(c)(1) of this Act,

16 U.S.C. 1434(c)(1), no valid lease, permit,

license, approval, or other authorization

issued by any Federal, State, or local

authority of competent jurisdiction, or any

right of subsistence use or access, may be

terminated by the Secretary of Commerce, or

his or her designee, as a result of this

designation, or as a result of any Sanctuary

regulation, if such lease, permit, license,

approval, or other authorization, or right of

subsistence use or access was issued or in

existence as of the effective date of this

designation. However, the Secretary of

Commerce, or his or her designee, in

consultation with the State of Michigan, may

regulate the exercise of such authorization or

right consistent with the purposes for which

the Sanctuary is designated.

Article VI. Alteration of This Designation

The terms of designation, as defined under

Section 304(e) of the Act, may be modified

only by the same procedures by which the

original designation is made, including

public hearings, consultations with

interested Federal, State, Tribal, regional, and

local authorities and agencies, review by the

appropriate Congressional committees, and

review and non-objection by the Governor of

the State of Michigan, and approval by the

Secretary of Commerce, or his or her

designee. End Designation Document.

III. Summary of the Final Management

Plan

The FEIS/MP for the Thunder Bay

National Marine Sanctuary and

Underwater Preserve recognizes the

need for a balanced approach to

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39051

management, which reflects the

multiple-use character of the area, as

well as the paramount need to protect

its resources. The Management Plan

guides management of the Sanctuary

during the first five years of operation.

In describing the Sanctuary’s location,

resources and uses, the Management

Plan discusses programs for resource

protection, research, and education/

interpretation, and details Federal and

State agency administrative roles and

responsibilities.

The Sanctuary Manager, within a year

of being hired, will submit a revised

Management Plan to the Joint

Management Committee for approval.

Revisions will be based on the

Management Plan published in the

FEIS, the State’s August 1999, ‘‘Thunder

Bay Underwater Park and National

Shipwreck Sanctuary: A Business Plan,’’

and on input from the SAC and other

affected parties.

Resource Protection

The highest priority management goal

is to protect the underwater cultural

resources of the Thunder Bay region, in

partnership with the State of Michigan,

to ensure the long-term use and integrity

of those resources for present and future

generations. Specific objectives to

achieve and maintain this goal are to:

(1) Coordinate management activities

with other government and nongovernment programs that protect

underwater cultural resources;

(2) Establish innovative partnerships

with local, state, federal, and tribal

agencies, organizations, and businesses

that support the resource protection

mission of the Sanctuary;

(3) Develop active and sustainable

community involvement through

diverse volunteer and private sector

initiatives;

(4) Establish an effective enforcement

program for Sanctuary regulations that

protect underwater cultural resources;

(5) Develop and implement effective

emergency response and resource

damage assessment programs; and

(6) Ensure that management decisions

are based on the best available

information, but where such

information is incomplete, follow those

options that best protect the Sanctuary’s

underwater cultural resources.

Research Program

Effective management of the

Sanctuary requires the initiation of a

Sanctuary research program that

supports the overriding management

goal of resource protection, through

effective and efficient research and

monitoring programs, which will:

(1) Inventory and assess Sanctuary

resources, and existing and potential

threats to those resources;

(2) Monitor Sanctuary resources to

ensure their long-term protection and

provide for evaluation of management

practices;

(3) Develop a research plan that

places the highest priority on research

addressing threats to Sanctuary

resources;

(4) Develop and encourage

collaborative programs with other

agencies, organizations and businesses;

(5) Identify and evaluate the values

associated with Sanctuary resources

(e.g., historical, recreational, economic,

aesthetic); and

(6) Encourage research targeted at

management issues such as resolving

multiple-use conflicts, and

understanding user impacts.

Education Program

In order to conduct meaningful

education programs that focus on

underwater cultural resources and the

maritime heritage of the region, the goal

of the Sanctuary’s education program is

to improve public awareness,

understanding and appreciation of these

resources. Management objectives

designed to meet this goal are to:

(1) Develop and implement sciencebased education programs that promote

awareness and understanding of the

Sanctuary’s underwater cultural

resources, Thunder Bay’s maritime

heritage, and the National Marine

Sanctuary Program;

(2) Provide educational leadership to

develop and implement collaborative

education programs that meet the needs

and interests of residents, local and

regional schools, and visitors to the

Sanctuary;

(3) Act as a clearinghouse of quality

education materials (e.g., curricula,

equipment, technology and expertise),

and assist in developing and

maintaining an inventory of existing

education programs so they are

accessible to educators;

(4) Encourage the involvement of

volunteers to help foster understanding

and participation in the protection and

stewardship of Sanctuary resources;

(5) Ensure that education programs

support overall management goals for

resource protection, research and

administration; and

(6) Facilitate the transfer of Sanctuary

information and experiences for use

locally, regionally, nationally, and

globally.

Visitor and Recreational Use

The Sanctuary Program’s goal for

visitor management and recreational

enhancement is to facilitate, to the

extent compatible with the primary

objective of resource protection, public

and private uses of Sanctuary resources

which are not prohibited pursuant to

other authorities.

Specific management objectives

include:

(1) Provide relevant information about

Sanctuary regulations, use policies and

standards;

(2) Collaborate with public and

private organizations in promoting

compatible uses of the Sanctuary;

(3) Encourage the public using the

Sanctuary to respect the sensitivity and

quality of Sanctuary resources; and

(4) Monitor and assess the levels of

uses to identify and control potential

degradation of Sanctuary resources, and

to minimize potential use conflicts.

Sanctuary Administration

The Sanctuary Administration

Program focuses on the roles and

responsibilities of the agencies,

organizations, and businesses that will

be involved in operation of the

Sanctuary. Successful operation of the

Sanctuary will be possible only through

cooperative efforts of appropriate local,

State, federal and tribal agencies,

organizations, and businesses. This

section also discusses potential

Sanctuary staff and facilities, including

staff roles, office establishment in

Alpena, with possible satellite offices (if

needed in the future), and development

of a Maritime Heritage Center to

enhance education opportunities for

both local residents and visitors to the

region. The selection of Alpena,

Michigan as the location of the

Sanctuary office is premised on its

central location on Thunder Bay.

The Sanctuary regulations require the

establishment of a state/federal Joint

Management Committee. The Joint

Management Committee, which will be

comprised of one State and one NOAA

representative, will exercise decisionmaking authority over key Sanctuary

management issues, such as approval of

the Management Plan, approval of

annual work plans, and approval, on an

annual basis, of the expenditure of

available funds.

The Sanctuary Advisory Council will

provide advice and recommendations to

the Sanctuary Manager and the Joint

Management Committee about issues

related to Sanctuary programs and

implementation. The existence of a SAC

encourages community participation in

the Sanctuary’s management.

Membership may not exceed fifteen

individuals, and members will be

mutually agreed upon by NOAA and the

State of Michigan.

39052 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

Finally, a five-year projection of

Sanctuary activities, necessary financial

obligations, and economic impacts of

the Sanctuary is provided.

IV. Summary of Regulations

The regulations set forth the boundary

of the Thunder Bay National Marine

Sanctuary and Underwater Preserve;

establish a state/federal Joint

Management Committee, prohibit a

narrow range of activities focused

exclusively on the protection of

Thunder Bay’s underwater cultural

resources; establish certification and

permitting procedures; provide for the

promulgation of emergency regulations;

provide for consultation affected

federally-recognized Indian tribes; and

specify procedures for giving a vessel 50

years or older that sinks in the

Sanctuary after the date of designation

the status of an underwater cultural

resource. Other provisions of the

existing National Marine Sanctuary

Program regulations also apply to the

Sanctuary. These include the

regulations for certification of existing

permits and other authorizations;

notification and review procedures to

conduct otherwise prohibited activities;

the maximum per day penalties for

violating Sanctuary regulations; and the

procedures applicable to administrative

appeals.

Specifically, the regulations revise the

regulations applicable to all National

Marine Sanctuaries to include the

Thunder Bay National Marine Sanctuary

and Underwater Preserve and add a new

Subpart R to Part 922, title 15, Code of

Federal Regulations, to provide the

regulations applicable just to the

Thunder Bay National Marine Sanctuary

and Underwater Preserve.

It is significant to note that the

definition for sanctuary resource in

section 922.3, the definition section

applicable to all National Marine

Sanctuaries, is revised to reflect the fact

that the only sanctuary resources in the

Thunder Bay National Marine Sanctuary

and Underwater Preserve are

underwater cultural resources.

In response to a request from the State

of Michigan, the name of the Sanctuary

has been changed from the ‘‘Thunder

Bay National Marine Sanctuary’’ to the

‘‘Thunder Bay National Marine

Sanctuary and Underwater Preserve.’’

This name change recognizes the State’s

designation of 290 square miles (751

square kilometers) of Thunder Bay as

the Thunder Bay Underwater Preserve

and the role of the State in jointly

managing the sanctuary/preserve with

NOAA.

Section 922.190 and Appendix A

following § 922.198 set forth the

boundary of the Sanctuary. In response

to concerns by the State of Michigan,

NOAA reduced the size of the boundary

from 808 square miles (2093 square

kilometers)(preferred boundary

alternative A) to 448 square miles (1169

square kilometers)(boundary alternative

B). The revised boundary still uses the

83 degrees longitude as the lakeward

boundary, but uses the Alpena County

lines as the north and south landward

boundary points. The State requested a

smaller boundary due to the higher

concentration of shipwrecks in this area

and fewer local governments with

whom to coordinate. NOAA agreed to

the adoption of boundary alternative B

with the stipulation that an inventory

will be conducted of shipwrecks in the

larger area (the additional 360 square

miles (932 square kilometers )) to

determine if boundary expansion may

be warranted after five years. The

Governor has veto authority over any

future boundary expansion.

Section 922.191 defines various terms

applicable specifically to the Thunder

Bay National Marine Sanctuary and

Underwater Preserve. Underwater

cultural resources are defined to be:

(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

includes any historical remnant of

docks or piers or associated material, or

materials resulting from activities of

historic and prehistoric Native

Americans.

The definition of ‘‘underwater

cultural resource’’ was modified from

the draft regulations. The revised

definition reflects terms that are similar

to the State of Michigan definition of

‘‘abandoned property.’’ NOAA modified

the definition to make it clearer to the

public the difference between State of

Michigan law and the Sanctuary

regulations.

NOAA also modified the definition of

traditional fishing to clarify that it

includes subsistence fishing and all

tribal fishing rights as provided for in

the 1836 Treaty of Washington and

subsequent court decisions related to

the Treaty.

State of Michigan agency

representatives suggested that NOAA

include resources that are significant

primarily due to their recreational

attraction and use within the definition

of underwater cultural resources,

similar to provisions of Part 761,

Aboriginal Records and Antiquities of

Public Law 451 (1994), as amended.

NOAA’s focus has been on those

resources that are significant due to

their historical, cultural, or

archaeological qualities. Many of the

resources within NOAA’s proposed

definition include sites that enjoy a

substantial amount of recreational use;

consequently NOAA has determined

that the proposed definition of

‘‘underwater cultural resource’’ does not

require expansion.

Other terms appearing in the

regulations are defined at 15 CFR part

922, subpart A, and/or in the Marine

Protection, Research and Sanctuaries

Act of 1972, as amended, 33 U.S.C. 1401

et seq., and 16 U.S.C. 1431 et seq.

Section 922.192 is added to establish

a state/federal Joint Management

Committee (JMC), in recognition that the

underwater cultural resources are in

State waters and located wholly on State

bottomlands. The JMC will ensure that

NOAA and the State of Michigan are

equal partners in management of the

sanctuary/preserve. The JMC, which

will be comprised of one State and one

NOAA representative (who 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 the

Sanctuary Manager)), will exercise

decision-making authority over key

sanctuary management issues, such as

approval of the Management Plan,

approval of annual work plans, and

approval, on an annual basis, of the

expenditure of available funds

consistent with those plans. In the event

of a disagreement between NOAA and

the State, the parties will adhere to the

conflict resolution procedures described

in the MOU.

The JMC is also given the

responsibility of developing a position

description, recruiting prospective

candidates, interviewing candidates,

and taking part in the annual

performance evaluation of the Sanctuary

Manager. While the Sanctuary Manager

will be a Federal civil servant (as are all

sanctuary managers) and thereby subject

to Federal civil service regulations

including those relating to hiring and

firing, the Sanctuary Manager must

satisfy the expectations of both parties.

Pursuant to Section 922.192(f),

membership in the JMC is limited to

NOAA and the State of Michigan.

However, the JMC may invite public

parties (e.g., local units of governments)

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39053

to participate in certain aspects of

sanctuary management, as appropriate.

The interlocal agreement between

NOAA and the State of Michigan (which

will be based on the draft MOU

published in the FEIS/MP) will describe

the process for becoming a party to the

interlocal agreement. Local governments

may also be members of the SAC, and

in that capacity will serve in an

advisory role on a range of Sanctuary

management issues.

Section 922.193 prohibits a narrow

range of activities and thus makes it

unlawful to conduct them. However, the

prohibited activities could be conducted

lawfully if:

(1) Necessary for law enforcement, or

to respond to an emergency threatening

life or the environment;

(2) Conducted pursuant to a valid

lease, permit, license, or other

authorization issued by any Federal,

State, or local authority of competent

jurisdiction, or to any valid right of

subsistence use or access, in existence

as of the effective date of this

designation subject to certification by

the Director of the Office of Ocean and

Coastal Resource Management under

§ 922.194 and § 922.47; or

(3) Conducted in accordance with the

scope, purpose, terms and conditions of

a State or Federal permit issued

pursuant to § 922.194, § 922.195, and

§ 922.49; a National Marine Sanctuary

permit issued pursuant to § 922.194,

§ 922.195, and § 922.49; or a Special Use

permit issued pursuant to Section 310 of

the NMSA.

The first activity prohibited is

recovering, altering, destroying,

possessing, or attempting to recover,

alter, destroy, or possess an underwater

cultural resource, from within the

boundary of the Sanctuary. The intent of

this regulation is to protect the

underwater cultural resources of the

Sanctuary for the benefit of the public

through, for example, education,

observation in situ, and research. To

clarify what types of activities are

subject to the Sanctuary regulations,

NOAA included language in the final

regulations that is similar to language in

State law—Part 761, Aboriginal Records

and Antiquities of Public Act 451, as

amended.

The second activity prohibited is

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: (a) Anchoring

vessels; (b) traditional fishing operations

(as defined in the regulations); or (c)

minor projects that the State

Archaeologist certifies will not

adversely affect underwater cultural

resources. Appendix B to Subpart R lists

the minor projects that may fall within

this latter exception (taken from the

current version of State administrative

rule—R 322.1013 of Part 325, Great

Lakes Submerged Lands of Public Act

451). The intent of this regulation is to

protect the underwater cultural

resources from the harmful effects of

activities such as, but not limited to,

dredging, excavations, drilling into the

lakebottom, and dumping of dredged

materials.

The third activity prohibited, which

was added to the final regulations, is

using grappling hooks or other

anchoring devices on underwater

cultural resource sites that are marked

with a mooring buoy. The intent of this

regulation is to prevent damage often

caused by grappling hooks or other

anchoring devices on underwater

cultural resources. The State of

Michigan also views damage caused by

grappling hooks and other anchoring

devices to be a violation of State law.

The fourth activity prohibited is

interfering with, obstructing, delaying or

preventing an investigation, search,

seizure or disposition of seized property

in connection with enforcement of the

NMSA or any regulations issued under

the NMSA.

Section 922.193(b) specifies that

members of federally-recognized Indian

tribes may exercise their treaty-secured

rights, subject to the requirements of

other applicable law, without regard to

the requirements of the prohibitions in

Section 922.193. The exercise of these

rights, however, must be authorized by

the tribe by regulation, license, or

permit. This provision was added to the

final regulations in response to

comments from federally-recognized

Indian tribes.

Section 922.194 provides for the

certification by the Director of OCRM of

activities conducted pursuant to a valid

lease, permit, license or other

authorization issued by any Federal,

State, or local authority of competent

jurisdiction, or any valid right of

subsistence use of access, in existence

as of the effective date of Sanctuary

designation.

Section 922.195 provides for the

conduct of activities prohibited by

Section 922.193(a)(1) through (3),

provided that the activity is conducted

in accordance with the scope, purpose,

manner, terms and conditions of a State

of Michigan permit (State permit),

certified by the State Archaeologist as

consistent with the Programmatic

Agreement among NOAA, the State, and

the Advisory Council on Historic

Preservation, developed pursuant to the

NMSA and Section 106 of the National

Historic Preservation Act (NHPA). Such

State permits are deemed to have met

the ‘‘authorization’’ requirements of 15

CFR 922.49 of the National Marine

Sanctuary Program regulations. If a State

permit is not certified as consistent with

the Programmatic Agreement, the

applicant would be required to follow

the procedures of 15 CFR 922.49 to

obtain an individual Sanctuary

authorization of the State permit. Such

activity would also be subject to section

106 of the NHPA. If there is only a

Federal permit applicable to the

activity, the applicant must follow the

procedures of 15 CFR 922.49 to obtain

an individual Sanctuary authorization

of the Federal permit, subject to section

106 of the NHPA. Finally, if there is no

State or Federal permit required to

conduct the prohibited activity, the

person must obtain a Sanctuary permit

pursuant to 15 CFR 922.48 of the NMSP

regulations to conduct such activity,

subject to section 106 of the NHPA. For

a proposed activity not prohibited by

Sanctuary regulations but that may

impact Sanctuary resources, NOAA may

review State permit applications for

such activity during identified public

comment periods and provide

comments to the Michigan Department

of Environmental Quality, the Michigan

Department of State, and other

management agencies, as appropriate.

Under Section 922.195, NOAA added

(d) and (e). Section 922.195 (d) specifies

that a permit may be issued if the

proposed activity satisfies the

requirements for permits, or if the

recovery of the underwater cultural

resource is in the public interest, is part

of research to preserve historic

information for public use, and is

necessary or appropriate to protect the

resource, preserve historical

information, or further the policies of

the Thunder Bay National Marine

Sanctuary and Underwater Preserve.

Section 922.195(e) describes the

permit application process and criteria.

The information required for submitting

a permit application is based on

requirements in the National Historic

Preservation Program.

At the request of the State of

Michigan, NOAA added Section

922.196, which provides for the

imposition, extension, or renewal of

Sanctuary emergency regulations.

Section 922.196 specifies that

emergency regulations may be imposed

to prevent or minimize the destruction

of, loss of, or injury to an underwater

cultural resource. Emergency

39054 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

regulations shall not take effect without

the approval of the Governor of

Michigan. They shall remain in effect

until a date fixed in the rule or six

months after the effective date,

whichever is earlier. The regulations

may be extended once for not more than

six months.

NOAA added Section 922.197, which

states that the Director shall regularly

consult with the governing bodies of

federally-recognized Indian tribes.

Section 922.198 specifies 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.

V. Miscellaneous Rulemaking

Requirements

National Marine Sanctuaries Act

Section 304 of the NMSA requires the

Secretary to submit this notice to the

appropriate Congressional Committees

and to the Governor of the State of

Michigan, on the same day this notice

is published. The required services are

being made.

National Environmental Policy Act

Section 304 of the NMSA, 16 U.S.C.

1434, requires the preparation of a final

environmental impact statement (FEIS),

as provided by the National

Environmental Policy Act of 1969, 42

U.S.C. 4321 et seq., and that the FEIS be

made available to the public. NOAA

published a FEIS/MP for the proposed

designation of the Thunder Bay

National Marine Sanctuary in June

1999. The FEIS/MP is available at the

addresses listed in the Addresses

section of this Notice of Final Rule.

Executive Order 12866: Regulatory

Impact

This regulatory action has been

determined to be not significant for

purposes of Executive Order 12866.

Executive Order 13132: Federalism

A Federalism Assessment (FA) was

prepared for the proposed designation

document, proposed management plan,

and proposed implementing regulations

in accordance with the then in effect

Executive Order 12612, Federalism

Considerations in Policy Formulation

Implementation (52 FR 41685, Oct. 26,

1987). The FA concluded that all were

fully consistent with the principles,

criteria, and requirements set forth in

section 2 through 5 of the Executive

Order. Copies of the FA are available

upon request from the Office of Ocean

and Coastal Resource Management at

the address listed above. Executive

Order 12612 was superseded on

November 2, 1999, by Executive Order

13132, Federalism. The new Executive

Order sets forth Fundamental

Federalism Principles (section 2) to

guide federal agencies in formulating

and implementing policies that have

federalism implications and Federalism

Policymaking Criteria (section 3) to

adhere to, the extent permitted by law,

when formulating and implementing

policies that have federalism

implications. Since these final

regulations do not preempt State law,

the requirements of section 4 and

section 6(c) of the Executive Order do

not apply.

Federalism Summary Impact Statement

Pursuant to the requirements of

section 6(b)(2), NOAA has consulted

regularly with the State of Michigan and

local elected officials since beginning

the designation process in 1991. On

average, NOAA staff met with State

agency staff and local governments once

every two months. These face-to-face

meetings were supplemented with at

least weekly telephone conversations to

discuss the sanctuary regulations, scope

of management, and State or local

concerns. During Fall 1997 and Summer

1998, NOAA staff met with the

Sanctuary Advisory Council (which

includes local elected officials) every

two weeks to obtain local input into the

sanctuary designation process. In

addition, there was correspondence

between NOAA and the State of

Michigan, including several letters

between U.S. Secretary of Commerce

William Daley and Michigan Governor

John Engler (dated January 24, 2000;

February 11, 2000; and May 8, 2000).

These communications are being made

available to the Director of the Office of

Management and Budget.

State and local concerns about the

Sanctuary related to federal government

intrusion in State waters, a fear that

activities (e.g., fishing and diving)

would be restricted, and questions about

the need for the Sanctuary to protect

underwater cultural resources when the

State already provides some protection.

NOAA addressed these concerns by

involving local citizens in writing a

draft MOU to address their concerns,

amending the Sanctuary regulations to

provide veto authority to the Governor

of Michigan on many aspects of

sanctuary management, agreeing to

establish the Joint Management

Committee to ensure equal governance

of the Sanctuary, and reducing the size

of the Sanctuary.

Regulatory Flexibility Act

The Assistant General Counsel for

Legislation and Regulations of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration when

this rule was proposed that it would not

have a significant economic impact on

a substantial number of small entities.

While minor modifications have been

made to the rule proposed, the basis for

that certification has not changed.

Accordingly, a Regulatory Flexibility

Analysis was not prepared.

Paperwork Reduction Act

Notwithstanding any other provisions

of the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with a collection-of-information, subject

to the requirements of the Paperwork

Reduction Act (PRA), 44 U.S.C. 3501 et

seq., unless that collection of

information displays a currently valid

Office of Management and Budget

(OMB) control number.

This rule contains a collection of

information requirement subject to the

requirements of the PRA. This

collection-of-information requirement

has been approved by OMB under OMB

control number 0648–0141. The

collection of information requirement

applies to persons seeking permits to

conduct otherwise prohibited activities

and is necessary to determine whether

the final activities are consistent with

the management goals for the Sanctuary.

The public reporting burden per

respondent for the collection of

information contained in this rule is

estimated to be: 1 hour for a general

permit; 15 minutes for a permit

amendment; 30 minutes for certification

of a preexisting lease, license, permit,

approval or authorization; 1 hour for a

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39055

notification of other Federal agency

permits; and 1.5 hours for appeals.

Send comments on the burden

estimate or on any other aspect of the

collection-of-information, and ways of

reducing the burden, to NOAA and

OMB (see ADDRESSES).

Unfunded Mandates Reform Act of 1995

This rule contains no Federal

mandates (under the regulatory

provisions of Title II of the Unfunded

Mandates Reform Act of 1995 (UMRA))

for State, local, and tribal governments

or the private sector. Thus, this rule is

not subject to the requirements of

sections 202 and 205 of the UMRA.

List of Subjects in CFR Part 922

Administrative practice and

procedure, Coastal zone, Education,

Environmental protection, Marine

resources, Natural resources, Penalties,

Recreation and recreation areas,

Reporting and record-keeping

requirements, Research.

(Federal Domestic Assistance Catalog

Number 11.429 Marine Sanctuary Program)

Dated: June 16, 2000.

John Oliver,

Chief Financial Officer, National Ocean

Service.

Accordingly, for the reasons set forth

above, 15 CFR part 922 is amended as

follows:

PART 922—AMENDED

1. The authority citation for part 922

continues to read as follows:

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

2. Section 922.1 is revised as follows:

§ 922.1 Applicability of regulations.

Unless noted otherwise, the

regulations in Subparts A, D and E

apply to all thirteen National Marine

Sanctuaries for which site-specific

regulations appear in Subparts F

through R, respectively. Subparts B and

C apply to the site evaluation list and to

the designation of future Sanctuaries.

3. Section 922.3 is revised to read as

follows:

§ 922.3 Definitions.

Sanctuary resource means any living

or non-living resource of a National

Marine Sanctuary that contributes to the

conservation, recreational, ecological,

historical, research, educational, or

aesthetic value of the Sanctuary,

including, but not limited to, the

substratum of the area of the Sanctuary,

other submerged features and the

surrounding seabed, carbonate rock,

corals and other bottom formations,

coralline algae and other marine plants

and algae, marine invertebrates, brineseep biota, phytoplankton, zooplankton,

fish, seabirds, sea turtles and other

marine reptiles, marine mammals and

historical resources. For Thunder Bay

National Marine Sanctuary and

Underwater Preserve, Sanctuary

resource means an underwater cultural

resource as defined at § 922.191.

4. Section 922.40 is revised to read as

follows:

§ 922.40 Purpose.

The purpose of the regulations in this

Subpart and in Subparts F through R is

to implement the designations of the

thirteen National Marine Sanctuaries for

which site specific regulations appear in

Subparts F through R, respectively, by

regulating activities affecting them,

consistent with their respective terms of

designation in order to protect, preserve

and manage and thereby ensure the

health, integrity and continued

availability of the conservation,

ecological, recreational, research,

educational, historical and aesthetic

resources and qualities of these areas.

Additional purposes of the regulations

implementing the designation of the

Florida Keys and Hawaiian Islands

Humpback Whale National Marine

Sanctuaries are found at §§ 922.160, and

922.180, respectively.

5. Section 922.41 is revised to read as

follows:

§ 922.41 Boundaries.

The boundary for each of the thirteen

National Marine Sanctuaries covered by

this part is described in Subparts F

through R, respectively.

6. Section 922.42 is revised to read as

follows:

§ 922.42 Allowed Activities.

All activities (e.g., fishing, boating,

diving, research, education) may be

conducted unless prohibited or

otherwise regulated in Subparts F

through R, subject to any emergency

regulations promulgated pursuant to

§§ 922.44, 922.111(c), 922.165, 922.186,

or 922.196, subject to all prohibitions,

regulations, restrictions, and conditions

validly imposed by any Federal, State,

or local authority of competent

jurisdiction, including Federal and State

fishery management authorities, and

subject to the provisions of section 312

of the National Marine Sanctuaries Act

(NMSA), (16 U.S.C. 1431 et seq.). The

Assistant Administrator may only

directly regulate fishing activities

pursuant to the procedure set forth in

section 304(a)(5) of the NMSA.

7. Section 922.43 is revised to read as

follows:

§ 922.43 Prohibited or otherwise regulated

activities.

Subparts F through R set forth sitespecific regulations applicable to the

activities specified therein.

8. Section 922.44 is revised to read as

follows:

§ 922.44 Emergency regulations.

Where necessary to prevent or

minimize the destruction of, loss of, or

injury to a Sanctuary resource or

quality, or minimize the imminent risk

of such destruction, loss, or injury, any

and all such activities are subject to

immediate temporary regulation,

including prohibition. The provisions of

this section do not apply to the Cordell

Bank, Florida Keys, Hawaiian Islands

Humpback Whale, and Thunder Bay

National Marine Sanctuaries. See

§§ 922.111(c), 922.165, and 922.186,

922.196, respectively, for the authority

to issue emergency regulations with

respect to those sanctuaries.

9. Section 922.47 is amended by

revising paragraph (b) as follows:

§ 922.47 Pre-existing authorizations or

rights and certifications of pre-existing

authorizations or rights.

* * * * *

(b) The prohibitions listed in Subparts

F through P, and Subpart R do not apply

to any activity authorized by a valid

lease, permit, license, approval or other

authorization in existence on the

effective date of Sanctuary designation,

or in the case of the Florida Keys

National Marine Sanctuary the effective

date of the regulations in Subpart P, and

issued by any Federal, State or local

authority of competent jurisdiction, or

by any valid right of subsistence use or

access in existence on the effective date

of Sanctuary designation, or in the case

of the Florida Keys National Marine

Sanctuary the effective date of the

regulations in Subpart P, provided that

the holder of such authorization or right

complies with certification procedures

and criteria promulgated at the time of

Sanctuary designation, or in the case of

the Florida Keys National Marine

Sanctuary the effective date of the

regulations in Subpart P, and with any

terms and conditions on the exercise of

such authorization or right imposed by

the Director as a condition of

certification as the Director deems

necessary to achieve the purposes for

which the Sanctuary was designated.

10. Section 922.48 is amended by

revising paragraphs (a), (b), (d) and (f) as

follows:

39056 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

§ 922.48 National marine sanctuary

permits—application procedures and

issuance criteria.

(a) A person may conduct an activity

prohibited by Subparts F through O, if

conducted in accordance with the

scope, purpose, terms and conditions of

a permit issued under this section and

Subparts F through O, as appropriate.

For the Florida Keys National Marine

Sanctuary, a person may conduct an

activity prohibited by Subpart P if

conducted in accordance with the

scope, purpose, terms and conditions of

a permit issued under § 922.166. For the

Thunder Bay National Marine Sanctuary

and Underwater Preserve, a person may

conduct an activity prohibited by

Subpart R in accordance with the scope,

purpose, terms and conditions of a

permit issued under § 922.195.

(b) Applications for permits to

conduct activities otherwise prohibited

by Subparts F through O should be

addressed to the Director and sent to the

address specified in Subparts F through

O, or Subpart R, as appropriate. An

application must include:

(1) A detailed description of the

proposed activity including a timetable

for completion;

(2) The equipment, personnel and

methodology to be employed;

(3) The qualifications and experience

of all personnel;

(4) The potential effects of the

activity, if any, on Sanctuary resources

and qualities; and (5) Copies of all other

required licenses, permits, approvals or

other authorizations.

* * * * *

(d) The Director, at his or her

discretion, may issue a permit, subject

to such terms and conditions as he or

she deems appropriate, to conduct a

prohibited activity, in accordance with

the criteria found in Subparts F through

O, or Subpart R, as appropriate. The

Director shall further impose, at a

minimum, the conditions set forth in

the relevant subpart.

* * * * *

(f) The Director may amend, suspend,

or revoke a permit issued pursuant to

this section for good cause. The Director

may deny a permit application pursuant

to this section, in whole or in part, if it

is determined that the permittee or

applicant has acted in violation of the

terms and conditions of a permit or of

the regulations set forth in this section

or Subparts F through O, Subpart R or

for other good cause. Any such action

shall be communicated in writing to the

permittee or applicant by certified mail

and shall set forth the reason(s) for the

action taken. Procedures governing

permit sanctions and denials for

enforcement reasons are set forth in

subpart D of 15 CFR part 904.

11. Paragraphs (a) through (c) of

section 922.49 are revised to read as

follows:

§ 922.49 Notification and review of

applications for leases, licenses, permits,

approvals or other authorizations to

conduct a prohibited activity.

(a) A person may conduct an activity

prohibited by Subparts L through P, or

Subpart R, if such activity is specifically

authorized by any valid Federal, State,

or local lease, permit, license, approval,

or other authorization issued after the

effective date of Sanctuary designation,

or in the case of the Florida Keys

National Marine Sanctuary after the

effective date of the regulations in

Subpart P, provided that:

(1) The applicant notifies the Director,

in writing, of the application for such

authorization (and of any application for

an amendment, renewal, or extension of

such authorization) within fifteen (15)

days of the date of filing of the

application or the effective date of

Sanctuary designation, or in the case of

the Florida Keys National Marine

Sanctuary the effective date of the

regulations in Subpart P, whichever is

later;

(2) The applicant complies with the

other provisions of this § 922.49;

(3) The Director notifies the applicant

and authorizing agency that he or she

does not object to issuance of the

authorization (or amendment, renewal,

or extension); and

(4) The applicant complies with any

terms and conditions the Director deems

reasonably necessary to protect

Sanctuary resources and qualities.

(b) Any potential applicant for an

authorization described in paragraph (a)

of this section may request the Director

to issue a finding as to whether the

activity for which an application is

intended to be made is prohibited by

Subparts L through P, or Subpart R, as

appropriate.

(c) Notification of filings of

applications should be sent to the

Director, Office of Ocean and Coastal

Resource Management at the address

specified in Subparts L through P, or

Subpart R, as appropriate. A copy of the

application must accompany the

notification.

* * * * *

12. Paragraph (a) of Section 922.50 is

revised to read as follows:

§ 922.50 Appeals of administrative action.

(a)(1) Except for permit actions taken

for enforcement reasons (see subpart D

of 15 CFR part 904 for applicable

procedures), an applicant for, or a

holder of, a National Marine Sanctuary

permit; an applicant for, or a holder of,

a Special Use permit issued pursuant to

section 310 of the Act; a person

requesting certification of an existing

lease, permit, license or right of

subsistence use or access under

§ 922.47; or, for those Sanctuaries

described in Subparts L through P and

Subpart R, an applicant for a lease,

permit, license or other authorization

issued by any Federal, State, or local

authority of competent jurisdiction

(hereinafter appellant) may appeal to

the Assistant Administrator:

(i) the granting, denial, conditioning,

amendment, suspension or revocation

by the Director of a National Marine

Sanctuary or Special Use permit;

(ii) the conditioning, amendment,

suspension or revocation of a

certification under § 922.47; or

(iii) for those Sanctuaries described in

Subparts L through P and Subpart R, the

objection to issuance of or the

imposition of terms and conditions on

a lease, permit, license or other

authorization issued by any Federal,

State, or local authority of competent

jurisdiction.

(b) For those National Marine

Sanctuaries described in Subparts F

through K, any interested person may

also appeal the same actions described

in § 922.50(a)(1)(i) and (ii). For appeals

arising from actions taken with respect

to these National Marine Sanctuaries,

the term ‘‘appellant’’ includes any such

interested persons.

* * * * *

Part 922 is amended by adding a new

subpart R immediately following

Subpart Q as follows:

Subpart R—Thunder Bay National Marine

Sanctuary and Underwater Preserve

Sec.

922.190 Boundary.

922.191 Definitions.

922.192 Joint Management Committee.

922.193 Prohibited or otherwise regulated

activities.

922.194 Certification of preexisting leases,

licenses, permits, approvals, other

authorizations, or rights to conduct a

prohibited activity.

922.195 Permit procedures and criteria.

922.196 Emergency regulations.

922.197 Consultation with affected

federally-recognized Indian tribes.

922.198 Procedures for determining

watercraft and related items which sink

on or after the date of Sanctuary

designation to be an underwater cultural

resource.

Appendix A to Subpart R of Part 922-

Thunder Bay National Marine Sanctuary

and Underwater Preserve Boundary

Coordinates

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39057

Appendix B to Subpart R of Part 922-Minor

Projects for Purposes of

§ 922.193(a)(2)(iii)

Subpart R—Thunder Bay National

Marine Sanctuary and Underwater

Preserve

§ 922.190 Boundary.

The Thunder Bay National Marine

Sanctuary and Underwater Preserve

(Sanctuary) consists of an area of

approximately 448 square miles (1169

square kilometers) of waters of Lake

Huron and the submerged lands

thereunder, over, around, and under the

underwater cultural resources in

Thunder Bay. The boundary forms an

approximately rectangular area by

extending along the ordinary high water

mark between the northern and

southern boundaries of Alpena County,

cutting across the mouths of rivers and

streams, and lakeward from those points

along latitude lines to longitude 83

degrees west. The coordinates of the

boundary are set forth in Appendix A to

this Subpart.

§ 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, as

identified in the Final Environmental

Impact Statement and Management Plan

for this Sanctuary. Copies of the Final

Environmental Impact Statement/

Management Plan (FEIS/MP) are

available upon request to the Marine

Sanctuaries Division, Office of Ocean

and Coastal Resource Management,

National Ocean Service, National

Oceanic and Atmospheric

Administration, 1305 East-West

Highway, 11th Floor, Silver Spring, MD

20910, (301) 713–3125.

Traditional fishing includes tribal

fishing rights as provided for in the

1836 Treaty of Washington and

subsequent court decisions related to

the Treaty.

Underwater cultural resource means:

(1) Any sunken watercraft, including

a ship, boat, canoe, skiff, raft, or barge;

the rigging, gear, fittings, trappings, and

equipment of any sunken watercraft; the

personal property of the officers, crew,

and passengers of any sunken

watercraft; and the cargo of any sunken

watercraft, that sank prior to the

effective date of Sanctuary designation;

and

(2) Any of the above that sinks on or

after the date of Sanctuary designation

determined to be an underwater cultural

resource by the Director pursuant to

§ 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

39058 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

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

section 310 of the NMSA.

(2) Specifically authorized by any

valid Federal, State, or local lease,

permit, license, approval, or other

authorization in existence on the

effective date of these regulations, or by

any valid right of subsistence use or

access in existence on the effective date

of these regulations, provided that the

holder of such authorization or right

complies with § 922.194 and § 922.47

and with any terms and conditions for

the exercise of such authorization or

right imposed by the Director as a

condition of certification as he or she

deems reasonably necessary to achieve

the purposes for which the Sanctuary

was designated.

§ 922.194 Certification of preexisting

leases, licenses, permits, approvals, other

authorizations, or rights to conduct a

prohibited activity.

(a) A person may conduct an activity

prohibited by § 922.193 (a)(1) through

(3) if such activity is specifically

authorized by a valid Federal, State, or

local lease, permit, license, approval, or

other authorization in existence on the

effective date of Sanctuary designation,

or by any valid right of subsistence use

or access in existence on the effective

date of Sanctuary designation, provided

that:

(1) for any State or local lease, permit,

license, approval, or other

authorization, or any right of

subsistence use, the State Archaeologist

certifies to the Director, within 90 days

of the effective date of designation, that

the activity authorized under the State

or local lease, permit, license, approval,

or other authorization, or any right of

subsistence use, is being conducted

consistent with the Programmatic

Agreement, in which case such activity

shall be deemed to have met the

requirements of this section and

§ 922.47; or

(2) In the case where either:

(i) The State Archaeologist does not

certify that the activity authorized under

a State or local lease, permit, license,

approval, or other authorization, or right

of subsistence use is being conducted

consistent with the Programmatic

Agreement; or

(ii) The activity is conducted pursuant

only to a Federal permit, the holder of

the authorization or right complies with

paragraphs (b) through (k) of this

section.

(b) For an activity described in

paragraph (a)(2) of this section, the

holder of the authorization or right may

conduct the activity prohibited by

§ 922.193 (a)(1) through (3) provided

that:

(1) The holder of such authorization

or right notifies the Director, in writing,

within 90 days of the effective date of

Sanctuary designation, of the existence

of such authorization or right and

requests certification of such

authorization or right;

(2) The holder complies with the

other provisions of § 922.194; and

(3) The holder complies with any

terms and conditions on the exercise of

such authorization or right imposed as

a condition of certification, by the

Director, to achieve the purposes for

which the Sanctuary was designated.

(c) The holder of an authorization or

right described in paragraph (a)(2) of

this section authorizing an activity

prohibited by § 922.193 may conduct

the activity without being in violation of

applicable provisions of § 922.193,

pending final agency action on his or

her certification request, provided the

holder is in compliance with this

§ 922.194.

(d) Any holder of an authorization or

right described in paragraph (a)(2) of

this section may request the Director to

issue a finding as to whether the activity

for which the authorization has been

issued, or the right given, is prohibited

by § 922.193, thus requiring certification

under this section.

(e) Requests for findings or

certifications should be addressed to the

Director, Office of Ocean and Coastal

Resource Management; ATTN:

Sanctuary Manager, Thunder Bay

National Marine Sanctuary and

Underwater Preserve, 1305 East-West

Highway, N/ORM, Silver Spring,

Maryland, 20910. A copy of the lease,

permit, license, approval, or other

authorization must accompany the

request.

(f) The Director may request

additional information from the

certification requester as he or she

deems reasonably necessary to

condition appropriately the exercise of

the certified authorization or right to

achieve the purposes for which the

Sanctuary was designated. The Director

must receive the information requested

within 45 days of the postmark date of

the request. The Director may seek the

views of any persons on the certification

request.

(g) The Director may amend any

certification made under this § 922.194

whenever additional information

becomes available justifying such an

amendment.

(h) Upon completion of review of the

authorization or right and information

received with respect thereto, the

Director shall communicate, in writing,

any decision on a certification request

or any action taken with respect to any

certification made under this § 922.194,

in writing, to both the holder of the

certified lease, permit, license, approval,

other authorization, or right, and the

issuing agency, and shall set forth the

reason(s) for the decision or action

taken.

(i) Any time limit prescribed in or

established under this § 922.194 may be

extended by the Director for good cause.

(j) The holder may appeal any action

conditioning, amending, suspending, or

revoking any certification in accordance

with the procedures set forth in

§ 922.50.

(k) Any amendment, renewal, or

extension made after the effective date

of Sanctuary designation, to a lease,

permit, license, approval, other

authorization or right is subject to the

provisions of § 922.195 and § 922.49.

(l) For any activity authorized

pursuant to § 922.193 (b), the holder of

such license or permit shall notify the

Director, in writing, within 90 days of

the effective date of Sanctuary

designation, of the existence of such

authorization or right.

§ 922.195 Permit procedures and criteria.

(a) A person may conduct an activity

prohibited by § 922.193 (a)(1) through

(3), if conducted in accordance with the

scope, purpose, terms and conditions of

a State Permit provided that:

(1) The State Archaeologist certifies to

NOAA that the activity authorized

under the State Permit will be

conducted consistent with the

Programmatic Agreement, in which case

such State Permit shall be deemed to

have met the requirements of § 922.49;

or

(2) In the case where the State

Archaeologist does not certify that the

activity to be authorized under a State

Permit will be conducted consistent

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 39059

with the Programmatic Agreement, the

person complies with the requirements

of § 922.49 of this part.

(b) If no State Permit is required to

conduct an activity prohibited by

§ 922.193 (a)(1) through (3) of this

subpart, a person may conduct such

activity if it is conducted in accordance

with the scope, purpose, terms and

conditions of a Federal permit, provided

that the person complies with the

provisions of § 922.49 of this part.

(c) In instances where the conduct of

an activity is prohibited by § 922.193

(a)(1) through (3) of this subpart is not

addressed under a State or other Federal

lease, license, permit or other

authorization, a person must obtain a

Sanctuary permit from NOAA pursuant

to § 922.48 (c) through (f) of this part

and the Programmatic Agreement in

order to conduct the activity.

(d) A permit for recovery of an

underwater cultural resource may be

issued if:

(1) The proposed activity satisfies the

requirements for permits described

under paragraphs (a) through (c) of this

section;

(2) The recovery of the underwater

cultural resource is in the public

interest;

(3) Recovery of the underwater

cultural resource is part of research to

preserve historic information for public

use; and

(4) Recovery of the underwater

cultural resource is necessary or

appropriate to protect the resource,

preserve historical information, or

further the policies of the Sanctuary.

(e) A person shall file an application

for a permit with the Michigan

Department of Environmental Quality,

Land and Water Management Division,

P.O. Box 30458, Lansing, MI, 48909-

7958. The application shall contain all

of the following information:

(1) The name and address of the

applicant;

(2) Research plan that describes in

detail the specific research objectives

and previous work done at the site. An

archaeological survey must be

conducted on a site before an

archaeological permit allowing

excavation can be issued;

(3) Description of significant previous

work in the area of interest, how the

proposed effort would enhance or

contribute to improving the state of

knowledge, why the proposed effort

should be performed in the Sanctuary,

and its potential benefits to the

Sanctuary;

(4) An operational plan that describes

the tasks required to accomplish the

project’s objectives and the professional

qualifications of those conducting and

supervising those tasks (see

§ 922.195(e)(9) of this section. The plan

must provide adequate description of

methods to be used for excavation,

recovery and the storage of artifacts and

related materials on site, and describe

the rationale for selecting the proposed

methods over any alternative methods;

(5) Archaeological recording,

including site maps, feature maps,

scaled photographs, and field notes;

(6) An excavation plan describing the

excavation, recovery and handling of

artifacts;

(7)(i) A conservation plan

documenting:

(A) The conservation facility’s

equipment;

(B) Ventilation temperature and

humidity control; and

(C) storage space.

(ii) Documentation of intended

conservation methods and processes

must also be included;

(8) A curation and display plan for the

curation of the conserved artifacts to

ensure the maintenance and safety of

the artifacts in keeping with the

Sanctuary’s federal stewardship

responsibilities under the Federal

Archaeology Program (36 CFR Part 79,

Curation of Federally-Owned and

Administered Archaeological

Collections); and

(9) Documentation of the professional

standards of an archaeologist

supervising the archaeological recovery

of historical artifacts. The minimum

professional qualifications in

archaeology are a graduate degree in

archaeology, anthropology, or closely

related field plus:

(i) At least one year of full-time

professional experience or equivalent

specialized training in archeological

research, administration or

management;

(ii) At least four months of supervised

field and analytic experience in general

North American archaeology;

(iii) Demonstrated ability to carry

research to completion; and

(iv) At least one year of full-time

professional experience at a supervisory

level in the study of archeological

resources in the underwater

environment.

§ 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 Consultation with affected

federally-recognized Indian tribes.

The Director shall regularly consult

with the governing bodies of affected

federally-recognized Indian tribes

regarding areas of mutual concern.

§ 922.198 Procedures for determining

watercraft and related items which sink on

or after the date of Sanctuary designation

to be an underwater cultural resource.

The Director, in consultation with the

State of Michigan, appropriate federal

agencies, and the governing body of any

affected federally-recognized tribe, may

determine, after providing 45 days for

public comment, that any sunken

watercraft, including a ship, boat, canoe,

skiff, raft, or barge; the rigging, gear,

fittings, trappings, and equipment of

any sunken watercraft; the personal

property of the officers, crew, and

passengers of any sunken watercraft;

and the cargo of any sunken watercraft,

that sinks on or after the date of

Sanctuary designation, to be an

underwater cultural resource if such is

determined by the Director to be 50

years or older and of special national

significance due to architectural

significance or association with

individuals or events that are significant

to local or national history.

Appendix A to Subpart R of Part 92—

Thunder Bay National Marine

Sanctuary and Underwater Preserve

Boundary Coordinates

[Based on North American Datum of

1983]

Point Latitude Longitude

1 ................ 45°12′25.5′′ 83°23′18.6′′

2 ................ 45°12′25.5′′ 83°00′00′′

3 ................ 44°51′30.5′′ 83°00′00′′

4 ................ 44°51′30.5′′ 83°19′17.3′′

Appendix B to Subpart R of Part 922—

Minor Projects for Purposes of

§ 922.193(a)(2)(iii)

Pursuant to Michigan State Administrative

Rule R 322.1013 of Part 325, Great Lakes

Submerged Lands of Public Act 451

(Michigan State Statute), the Michigan

Department of Environmental Quality

(Department) issues permits for projects that

are of a minor nature which are not

controversial, which have minimal adverse

environmental impact, which will be

constructed of clean, non-polluting materials,

which do not impair the use of the adjacent

bottomlands by the public, and which do not

39060 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

adversely affect riparian interests of adjacent

owners. The following projects are minor

projects:

(a) Noncommercial single piers, docks, and

boat hoists which meet the following design

criteria:

(i) are of a length or size not greater than

the length or size of similar structures in the

vicinity and on the watercourse involved;

and

(ii) provide for the free littoral flow of

water and drift material.

(b) Spring piles and pile clusters when

their design and purpose is usual for such

projects in the vicinity and on the

watercourse involved.

(c) Seawalls, bulkheads, and other

permanent revetment structures which meet

all of the following purpose and design

criteria:

(i) the proposed structure fulfills an

identifiable need for erosion protection, bank

stabilization, protection of uplands, or

improvements on uplands;

(ii) the structure will be constructed of

suitable materials free from pollutants, waste

metal products, debris, or organic materials;

(iii) the structure is not more than 300 feet

in length and is located in an area on the

body of water where other similar structures

already exist;

(iv) the placement of backfill or other fill

associated with the construction does not

exceed an average of 3 cubic yards per

running foot along the shoreline and a

maximum of 300 cubic yards; and

(v) the structure or any associated fill will

not be placed in a wetland area or placed in

any manner that impairs surface water flow

into or out of any wetland area.

(d) Groins 50 feet or less in length, as

measures from the toe to bluff, which meet

all of the following criteria:

(i) the groin is low profile, with the

lakeward end not more than 1 foot above the

existing water level; and

(ii) the groin is placed at least 1⁄2 of the

groin length from the adjacent property line

or closer with written approval of the

adjacent riparian.

(e) Filling for restoration of existing

permitted fill, fills placed incidental to

construction of other structures, and fills that

do not exceed 300 cubic yards as a single and

complete project, where the fill is of suitable

material free from pollutants, waste metal

products, debris, or organic materials.

(f) Dredging for the maintenance of

previously dredged areas or dredging of not

more than 300 cubic yards as a single and

complete project when both of the following

criteria are met:

(i) No reasonable expectation exists that

the materials to be dredged are polluted; and

(ii) All dredging materials will be removed

to an upland site exclusive of wetland areas.

(g) Structural repair of man-made

structures, except as exempted by Michigan

State Administrative Rule R 322.1008(3),

when their design and purpose meet both of

the following criteria:

(i) The repair does not alter the original use

of a recently serviceable structure; and

(ii) The repair will not adversely affect

public trust values or interests, including

navigation and water quality.

(h) Fish or wildlife habitat structures

which meet both of the following criteria:

(i) Are placed so the structures do not

impede or create a navigational hazard; and

(ii) Are anchored to the bottomlands.

(i) Scientific structures such as staff gauges,

water monitoring devices, water quality

testing devices, survey devices, and core

sampling devices, if the structures do not

impede or create a navigational hazard.

(j) Navigational aids which meet both of

the following criteria:

(i) Are approved by the United States Coast

Guard; and

(ii) Are approved under Michigan State Act

No. 303 of the Public Acts of 1967, as

amended, being Section 281.1001 et seq. of

the Michigan Compiled Laws, and known as

the Marine Safety Act.

(k) Extension of a project where work is

being performed under a current permit and

which will result in no damage to natural

resources.

(l) A sand trap wall which meets all of the

following criteria:

(i) The wall is 300 feet or less in length

along the shoreline;

(ii) The wall does not extend more than 30

feet lakeward of the toe of bluff;

(iii) The wall is low profile, that is, it is not

more than 1 foot above the existing water

level; and

(iv) The wall is constructed of wood or

steel or other non-polluting material.

(m) Physical removal of man-made

structures or natural obstructions which meet

all of the following criteria:

(i) The debris and spoils shall be removed

to an upland site, not in a wetland, in a

manner which will not allow erosion into

pubic waters;

(ii) The shoreline and bottom contours

shall be restored to an acceptable condition;

and

(iii) Upon completion of structure removal,

the site does not constitute a safety or

navigational hazard. Department staff shall

consider fisheries and wildlife resource

values when evaluating applications for

natural obstruction removal.

[FR Doc. 00–15638 Filed 6–19–00; 1:27 pm]

BILLING CODE 3510–22–P