29606 Federal Register / Vol. 87, No. 93 / Friday, May 13, 2022 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 922 

[Docket No. 220415–0098] 

RIN 0648–AV85 

Amendments to National Marine 

Sanctuary Regulations 

AGENCY: Office of National Marine 

Sanctuaries (ONMS), National Oceanic 

and Atmospheric Administration 

(NOAA), Department of Commerce 

(DOC). 

ACTION: Interim final rule; request for 

comments 

SUMMARY: The National Oceanic and 

Atmospheric Administration (NOAA) is 

amending the National Marine 

Sanctuaries program regulations. This 

interim final rule updates and 

reorganizes the existing regulations, 

eliminates redundancies across the 

sanctuary regulations, eliminates 

outmoded regulations, adopts standard 

boundary descriptions, and consolidates 

general regulations and permitting 

procedures. This rule adopts, with 

minor revisions and technical changes, 

the proposed rule previously published 

in the Federal Register on January 28, 

2013, and provides further opportunity 

for comment. 

DATES: 

Effective date: This interim final rule 

is effective on June 27, 2022. 

Comments due date: Comments must 

be received by NOAA on or before June 

13, 2022. 

ADDRESSES: You may submit comments, 

identified by NOAA–NOS–2011–0120, 

by the following method: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal. Go to 

https://www.regulations.gov and search 

for docket NOAA–NOS–2011–0120. 

Click the ‘‘Comment’’ icon, complete 

the required fields, and enter or attach 

your comments. 

Comments sent by any other method, 

to any other address or individual, or 

received after the end of the comment 

period, will not be considered by 

NOAA. All comments received are a 

part of the public record and will 

generally be posted for public viewing 

on www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address), confidential 

business information, or otherwise 

sensitive information submitted 

voluntarily by the sender will be 

publicly accessible. NOAA will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). 

FOR FURTHER INFORMATION CONTACT: 

Vicki Wedell, NOAA Office of National 

Marine Sanctuaries, (240) 533–0650, 

Vicki.Wedell@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background and Request for 

Comments 

In 1972, Congress passed the National 

Marine Sanctuaries Act (NMSA), which 

established the National Marine 

Sanctuary System (System). The NMSA 

authorizes the Secretary of Commerce 

(Secretary) to designate, manage, and 

protect, as a national marine sanctuary 

(NMS), any area of the marine 

environment that is of special national 

significance due to its conservation, 

recreational, ecological, historical, 

scientific, cultural, archeological, 

educational, or esthetic qualities (16 

U.S.C. 1431 et seq.). Since the NMSA 

was enacted, fifteen national marine 

sanctuaries have been designated. Dayto-day management of the System is 

delegated from the Secretary to NOAA’s 

Office of National Marine Sanctuaries 

(ONMS). Regulations implementing the 

NMSA are codified in Title 15, Part 922 

of the Code of Federal Regulations 

(CFR). Part 922 includes general 

regulations applicable to all sanctuaries 

(subparts A through E) and site-specific 

regulations that relate to each individual 

sanctuary (subparts F through T). 

As the System evolved and new 

sanctuaries were designated, 

corresponding changes were made to 

the general and site-specific regulations. 

In certain instances, these changes 

produced redundant, inconsistent, 

outdated, or conflicting regulatory 

provisions. This rule updates both the 

general and site-specific regulations, 

making them more consistent, uniform, 

concise, organized, and understandable 

by: 

• Reorganizing and consolidating 

existing general regulations published 

in subparts A (General), B (Sanctuary 

Nomination Process), C (Designation of 

National Marine Sanctuaries), D 

(Management Plan Development and 

Implementation, and E (Regulations of 

General Applicability) into a new 

subpart A (Regulations of General 

Applicability); 

• Updating and consolidating 

sanctuary permitting procedures and 

requirements into a new subpart D 

(National Marine Sanctuary Permitting), 

which applies to all sanctuaries unless 

expressly stated in subpart D or the sitespecific regulations; 

• Reserving subparts B, C, and E; and 

• Making non-substantive, 

administrative changes to the sitespecific sanctuary regulations set forth 

in subparts F through T of 15 CFR part 

922. 

This rulemaking was originally part of 

NOAA’s effort to carry out the directive 

set forth in Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review,’’ issued on January 18, 2011. 

This Executive Order directed all 

agencies to conduct a retrospective 

analysis of existing significant 

regulations and modify, repeal, or 

streamline (as deemed appropriate) any 

regulations that might be outmoded, 

ineffective, insufficient, or excessively 

burdensome. NOAA conducted a 

comprehensive review and analysis of 

the sanctuary regulations as directed 

and published a notice of proposed 

rulemaking (78 FR 5998, January 28, 

2013). The 60-day comment period on 

the proposed rule closed on March 29, 

2013. NOAA received 28 written public 

comments on the proposed rule, which 

may be viewed on www.regulations.gov, 

under docket ID NOAA–NOS–2011– 

0120. After reviewing the comments, 

NOAA in this interim final rule has 

made minor revisions and technical 

changes to the rule as proposed. NOAA 

responses to the public comments are 

set forth below in Section IV. Responses 

to Comments. 

Although several years have passed 

since the proposed rule was published, 

NOAA believes that the organizational 

and clarifying changes contained in the 

proposed rule remain relevant and 

useful, and will make it easier for 

stakeholders and the public to 

understand and navigate the NMSA 

regulations. Indeed, any changes in the 

NMS landscape since the proposed rule 

was published likely only makes this 

rule more useful. Nonetheless, in 

recognition of the time that has elapsed 

since the proposed rule, NOAA is 

issuing this rule as an Interim Final 

Rule, adopting a 45-day delay in the 

effective date, and seeking additional 

public comments to provide NOAA 

with a further opportunity to consider 

the potential impact, including any 

relevant new issues or concerns that 

may have arisen in the years since the 

rule was proposed. While this is an 

Interim Final Rule, NOAA is not relying 

on ‘‘good cause’’ under the 

Administrative Procedure Act, 5 U.S.C. 

553(b)(B) because NOAA has issued a 

proposed rule and responded to the 

comments received on the proposed 

rule. 

NOAA encourages interested persons 

to submit comments on this interim 

final rule. NOAA will consider all 

comments received during the comment 


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period, and may modify the rule in view 

of the comments, as appropriate. 

II. History of This Rulemaking and 

Summary of the Changes From the 

Proposed Rule to This Interim Final 

Rule 

In the proposed rule published in 

January 2013, NOAA anticipated that 

changes to the final rule might be 

necessary (78 FR 5998, January 28, 

2013). Scoping for regulatory revisions 

to the Florida Keys NMS, Thunder Bay 

NMS, Hawaiian Islands Humpback 

Whale NMS, and Monitor NMS were 

concurrently underway. In the years 

following the publication of the 

proposed rule, NOAA finalized other 

revisions to the general and site-specific 

sanctuary regulations as follows: 

2014: Amended the Thunder Bay 

regulations (79 FR 52960, September 5, 

2014); Established a new Sanctuary 

Nomination Process (79 FR 33851, June 

13, 2014); and Updated the regulations 

and management plan for Gray’s Reef 

NMS (79 FR 41879, July 18, 2014). 

2015 and 2018: Revised the Greater 

Farallones (formerly the Gulf of the 

Farallones) NMS and Cordell Bank NMS 

regulations (80 FR 13077, March 12, 

2015, 83 FR 55956, November 9, 2018). 

2016: Withdrew the Hawaiian 

Humpback Whale proposed 

amendments (81 FR 13303, March 14, 

2016). 

2019: Designated a new sanctuary, 

Mallows Bay-Potomac River NMS (84 

FR 32586, September 26, 2019). 

2021: Expanded Flower Garden Banks 

NMS (86 FR 4937, January 19, 2021); 

and designated a new sanctuary, 

Wisconsin Shipwreck Coast NMS (86 

FR 32737, June 23, 2021). 

During the intervening time between 

the proposed and this interim final rule, 

NOAA commenced several regulatory 

actions that took higher or competing 

precedence over finalizing this rule. 

NOAA geographically expanded and 

revised regulations for four sanctuaries 

(Thunder Bay NMS, Greater Farallones 

NMS, Cordell Bank NMS, and Flower 

Garden Banks NMS). NOAA also 

completed the management plan review 

and revised regulations for Gray’s Reef 

NMS. NOAA proposed and ultimately 

withdrew an expansion for Hawaiian 

Islands Humpback Whale NMS. NOAA 

also established a new sanctuary 

nomination process and designated two 

new sanctuaries (Mallows Bay-Potomac 

River and Wisconsin Shipwreck Coast 

NMS). Each of these rulemakings 

involve changes to the general and sitespecific regulations. As such, choosing 

an ideal time to finalize this regulatory 

action presented logistical challenges. In 

this rule, NOAA harmonizes the 

separate regulatory actions identified 

above and makes conforming changes to 

the general and site-specific regulations. 

As described below, the changes 

between the proposed rule and this rule 

fall into four distinct categories: A. 

Include Sanctuary Nomination 

Regulations in this Interim Final Rule; 

B. Definitions That Will Remain in the 

Site-Specific Regulations; C. Revisions 

to Florida Keys NMS Site-Specific 

Regulations; and D. Other Conforming, 

Technical, and Administrative Changes. 

A. Include Sanctuary Nomination 

Regulations in This Interim Final Rule 

The proposed rule, published in 

January 2013, included several revisions 

to the then-existing procedural 

sanctuary regulations governing the 

identification, evaluation, and 

designation of new sites as national 

marine sanctuaries. Specifically, NOAA 

sought to re-organize and modify the 

regulatory text in the then existing 

subpart B (Sanctuary Evaluation List), 

eliminate and reserve most of the then 

existing subpart C (Designation of 

National Marine Sanctuaries), and 

eliminate subpart D (Management Plan 

Development and Implementation). 

In a separate rulemaking finalized in 

2014, NOAA issued new regulations 

establishing the Sanctuary Nomination 

Process (SNP) (79 FR 33851, June 13, 

2014). The SNP final regulations 

eliminated the site evaluation list that 

was no longer active, and established a 

new process for communities to submit 

marine and Great Lakes sites for 

consideration as national marine 

sanctuaries. This final rule reorganizes 

the sanctuary regulations and includes, 

without change, the 2014 SNP final 

regulations. The SNP regulations 

currently set forth in subpart B, sections 

922.10 and 922.11, are being moved to 

subpart A, sections 922.12 and 922.13, 

respectively. The SNP regulations were 

promulgated in accordance with the 

APA, this rule is a simple recodification 

of the current SNP regulations, and is 

consistent with the underlying 

recodification effort described in the 

January 2013 proposed rule for this 

action. 

B. Definitions That Will Remain in the 

Site-Specific Regulations 

In the Federal Register notice 

published in January 2013, NOAA 

proposed to: 

• Consolidate, into the new subpart 

A, the site-specific definitions of 

‘‘motorized personal watercraft 

(MPWC)’’ and ‘‘personal watercraft;’’ 

• Move the definition of ‘‘oceangoing 

ship’’ from the site-specific regulations 

to the new subpart A; 

• Move the definition of ‘‘Federal 

project’’ from the site-specific 

regulations to the new subpart A; 

• Consolidate the site-specific 

definitions of ‘‘traditional fishing’’ into 

the new subpart A; and, 

• Consolidate site-specific definitions 

for the terms ‘‘stowed and not available 

for immediate use’’ and ‘‘not available 

for immediate use’’ into the new subpart 

A. 

For the reasons set forth below, 

NOAA is not consolidating these 

definitions into subpart A. Instead, each 

definition will remain unchanged in its 

respective site-specific regulatory 

section (subparts F through T). 

1. Motorized Personal Watercraft 

(MPWC) 

During the comment period, NOAA 

received public comments that revealed 

that consolidating the definitions of 

MPWC and ‘‘personal watercraft’’ could 

create undesirable inconsistencies 

under the site-specific regulations for 

Channel Islands NMS, Greater 

Farallones NMS, Monterey Bay NMS, 

and the Florida Keys NMS and expand 

the number and types of vessels that 

could potentially be banned or 

restricted (see Comment 18 in Section 

IV. Responses to Comments). This 

matter cannot be easily resolved in this 

rulemaking. As such, NOAA believes 

more time is needed to gather more 

information, engage stakeholders and 

the sanctuary advisory councils, 

develop an alternative consolidated 

definition, and thoroughly evaluate the 

environmental impacts associated with 

such a consolidated definition. 

Therefore, NOAA has decided not to 

consolidate the definitions of MPWC 

and ‘‘personal watercraft.’’ The existing 

definitions of MPWC set forth in 15 CFR 

922.71 (Channel Islands NMS), 922.81 

(Greater Farallones NMS), and 922.131 

(Monterey Bay NMS), and the existing 

definition of ‘‘personal watercraft’’ in 

922.162 (Florida Keys NMS) shall 

remain unchanged at this time. 

2. Oceangoing Ship 

Due to concerns raised during the 

comment period about the scope of the 

definition ‘‘oceangoing ship’’ and its 

potential application to Department of 

Defense vessels, NOAA is not moving 

‘‘oceangoing ship’’ from the site-specific 

regulations at 15 CFR 922.71 (Channel 

Islands NMS) to the general regulations 

in the new subpart A (see Comment 30 

in Section IV. Responses to Comments). 

The definition for ‘‘oceangoing ship’’ set 

forth in the site-specific regulations at 

15 CFR 922.71 shall remain unchanged 

at this time. 


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3. Federal Project 

NOAA is not moving ‘‘Federal 

project’’ set forth in the site-specific 

regulations at 15 CFR 922.132 

(Monterey Bay NMS) to the general 

regulations in the new subpart A 

because it might conflict with or create 

confusion with other similar terms, such 

as the undefined term ‘‘Federal water 

resource development projects,’’ used in 

the site-specific regulations at 922.163 

(Florida Keys NMS). Accordingly, the 

definition for ‘‘Federal project’’ set forth 

in the site-specific regulations at 15 CFR 

922.132 will remain unchanged and will 

not be moved to the general sanctuary 

definitions at 15 CFR 922.11 at this 

time. 

4. Traditional Fishing 

NOAA received adverse comments on 

its proposal to consolidate into the new 

subpart A the definitions of ‘‘traditional 

fishing,’’ which are found at 15 CFR 

922.141 (Stellwagen Bank NMS), 

922.162 (Florida Keys NMS), and 

922.191 (Thunder Bay NMS). The 

commenters indicated that it was 

inappropriate to apply the definition 

from Florida Keys, Thunder Bay, and 

Stellwagen Bank across the entire 

System because fishing conducted by 

certain Native Americans and 

indigenous people in the American 

Samoa or Hawaiian Island Humpback 

Whale sanctuaries likely do not meet 

the definition of ‘‘traditional fishing’’ 

(see Comment 17 in Section IV. 

Responses to Comments). NOAA agrees 

with the comment and is not 

consolidating the definition of 

‘‘traditional fishing’’ into the general 

regulations. At this time, the definition 

of ‘‘traditional fishing’’ will remain 

unchanged in the site-specific 

regulations for Stellwagen Bank, the 

Florida Keys, and Thunder Bay. 

5. Stowed and Not Available for 

Immediate Use 

NOAA decided not to adopt a single 

consolidated definition for the terms 

‘‘stowed and not available for 

immediate use’’ and ‘‘not available for 

immediate use.’’ The former terms and 

separate definitions will remain in the 

site-specific subparts for Channel 

Islands NMS and Gray’s Reef NMS. The 

latter term will remain in the sitespecific subpart for Florida Keys NMS. 

NOAA determined that there would 

have been substantive implications for 

certain prohibitions in Florida Keys 

NMS regulations that refer to the term 

‘‘not available for immediate use’’ that 

NOAA did not propose to update in the 

notice of proposed rulemaking. Because 

NOAA did not propose the associated 

revisions to those prohibitions, NOAA 

is not moving forward with the 

consolidated definition at this time. 

C. Revisions to Florida Keys NMS Site 

Specific Regulations 

In the Federal Register document 

published in January 2013, NOAA 

proposed to consolidate its sanctuary 

permitting procedures and review 

criteria in a new Subpart D, and revise 

and adopt uniform areal estimates and 

boundary coordinates. In August 2019, 

NOAA released a Draft Environmental 

Impact Statement (referred to as the 

‘‘Restoration Blueprint’’) as part of an 

ongoing process to propose changes to 

the Florida Keys NMS site-specific 

regulations (84 FR 45728, August 30, 

2019). Since NOAA is considering 

comprehensive changes to the Florida 

Keys NMS site-specific regulations, 

NOAA is not updating the Florida Keys 

NMS boundary coordinates or making 

technical corrections to the references to 

the Florida Administrative Code at this 

time. However, NOAA is updating the 

site-specific Florida Keys NMS 

regulations (15 CFR part 922, subpart P) 

to reference the general permitting 

regulations now in subpart D and is 

retaining certain site-specific permit 

language and review criteria set forth in 

subpart P. 

D. Other Conforming, Technical, and 

Administrative Changes 

The conforming, technical and 

administrative changes from the 

proposed rule that are described in this 

section merely recodify existing 

regulations or make technical 

corrections. 

• NOAA updates a statutory reference 

in the definition of ‘‘fish’’ to correctly 

refer to a specific section of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

where the term appears (16 U.S.C. 

1802(12)). 

• NOAA revises the definition of 

‘‘harmful matter’’ to include ‘‘hazardous 

substances defined by the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act, 42 U.S.C. 9601(14) and designated 

at 40 CFR 302.4.’’ The language in the 

proposed rule previously read ‘‘and 

those contaminants (regardless of 

quantity) listed pursuant to 42 U.S.C. 

9601(14) of the Comprehensive 

Environmental Response, Compensation 

and Liability Act at 40 CFR 302.4.’’ 

NOAA changes the definition to use the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act (CERCLA) term of art ‘‘hazardous 

substance.’’ The regulations 

implementing CERCLA cover 

designated hazardous substances that 

consist of ‘‘listed’’ and ‘‘unlisted 

substances.’’ NOAA did not intend to 

limit the scope of the harmful matter 

definition to only the listed CERCLA 

substances. NOAA also clarifies that 

this definition refers to harmful matter 

that poses the threat ‘‘of injury’’ to 

sanctuary resources or qualities. 

• NOAA updates references in the 

site-specific regulations from ‘‘seabed’’ 

to ‘‘submerged lands,’’ where 

appropriate. This technical amendment 

updates regulatory text to align with the 

sanctuaries’ terms of designation for 

those sites that now use the term 

‘‘submerged lands’’ (Channel Islands 

NMS, Greater Farallones NMS, Gray’s 

Reef NMS, Cordell Bank NMS, and 

Monterey Bay NMS). There are four 

sites (Flower Garden Banks NMS, 

Stellwagen Bank NMS, Hawaiian 

Islands Humpback Whale NMS, and 

Florida Keys NMS), whose terms of 

designation provide authority to 

regulate activities that affect the 

‘‘seabed.’’ For those four sites, NOAA is 

not changing the regulatory text and is 

keeping the term ‘‘seabed’’ in the sitespecific regulations. 

• NOAA corrects an inadvertent 

omission from the proposed rule which 

left out of proposed Subpart D— 

National Marine Sanctuary Permitting 

the regulatory provision at 15 CFR 

922.48(e) that states that permits are not 

transferable. The provision that permits 

are non-transferable has historically 

existed in all NOAA sanctuary 

regulations. The language was first 

introduced in 1975 with the interim 

final rule for the designation of Monitor 

NMS (40 FR 5349, 5350, February 5, 

1975). NOAA adopted the permit 

procedures in all subsequent sanctuary 

regulations and later consolidated them 

into 15 CFR part 922 in 1995 (60 FR 

66875, December 27, 1995). This final 

rule moves section 922.48(e) to section 

922.33(b). 

• NOAA updates the site-specific 

regulations for Greater Farallones NMS 

at 15 CFR 922.82(d), and Cordell Bank 

NMS at section 922.112(d) to reference 

the new subpart D on permit 

regulations. The proposed rule 

inadvertently omitted these conforming 

changes to the regulatory text for both 

sites (see 78 FR 6017, January 28, 2013). 

• NOAA amends the Gray’s Reef 

NMS site-specific regulations by: 

Revising paragraph (c) of section 922.92 

to reference the new subpart D on 

permit regulations; and corrects a crossreference in 922.93(a) which should 

refer to 922.92(a)(1) through (11) and the 

new subpart D. In 2014, the Gray’s Reef 

NMS site-specific regulations were 

revised to clarify the anchoring 


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prohibition and provide an exemption 

to allow the use of weighted marker 

buoys continuously tended by vessel 

operators during lawful fishing or 

diving activities in section 922.92 (79 

FR 41879, July 18, 2014). The crossreferences in section 922.93 were not 

updated during the publication of the 

2014 final rule for Gray’s Reef NMS, but 

are being updated now. 

• NOAA adds a cross-reference to 

section 922.36 in the Monterey Bay 

NMS site-specific regulations at 

paragraph 922.132(e). 

• NOAA clarifies in section 

922.37(a)(1) that an applicant or holder 

of a certification of any existing lease, 

permit, license or right of subsistence 

access pursuant to 922.10 may file an 

appeal of the conditioning, amendment, 

suspension or revocation of a 

certification. The proposed rule limited 

the appellant pool to any ‘‘person 

requesting certification.’’ The technical 

change makes clear that both applicants 

and holders of certifications may 

appeal, and makes the regulations 

consistent with existing practice. 

• NOAA removes the reference to 

certifications in section 922.163(f). The 

existing regulation contains a crossreference to an obsolete and outdated 

regulation that was re-designated (66 FR 

4370, January 17, 2001) and 

subsequently removed from the Florida 

Keys NMS site-specific regulations in 

2009 (74 FR 38093, July 31, 2009). 

• NOAA removes and reserves 

section 922.194 because the section is 

no longer applicable. Section 922.194 

gave the Director authority to allow 

certain otherwise prohibited activities to 

continue in the Thunder Bay NMS if 

such activity was specifically 

authorized by a valid Federal, state, or 

local lease, permit, license, approval or 

other authorization or valid right of 

subsistence use or access in existence 

on the effective date of sanctuary 

designation. This section is no longer 

applicable because the affected entities 

were allowed ninety (90) days from the 

designation of the sanctuary (September 

25, 2000) or expansion (February 3, 

2015) to notify the Director and request 

certification of any pre-existing and 

otherwise prohibited activities being 

conducted pursuant to a valid 

authorization in the sanctuary. The 

certification period has expired, and the 

implementing regulations are obsolete. 

• NOAA designated Mallows Bay— 

Potomac River NMS, which became 

effective in September 2019 (84 FR 

50736, September 26, 2019). The sitespecific regulations for Mallows Bay— 

Potomac River NMS are codified at 15 

CFR part 922, subpart S. References to 

the site-specific subparts in the new 

subpart A and subpart D are updated to 

reflect the addition of subpart S. 

Regulations on permit procedures set 

forth at section 922.205 are consolidated 

without change to the new subpart D. 

NOAA added an address for the 

submission of permit applications at 

paragraph 922.205(b). NOAA also 

corrected a reference in paragraph 

922.206(a) that should refer to section 

922.10 for certifications. 

• NOAA designated Wisconsin 

Shipwreck Coast NMS, which became 

effective on August 16, 2021 (86 FR 

45860, August 17, 2021). The sitespecific regulations for Wisconsin 

Shipwreck Coast NMS are codified at 15 

CFR part 922, subpart T. References to 

the site-specific subparts in the new 

subpart A and subpart D are updated to 

reflect the addition of subpart T. NOAA 

added an address to subpart T for the 

submission of permit applications at 

paragraph 922.215(b). Regulation on 

permit procedures set forth at 922.215 

are consolidated without change to the 

new subpart D. Site-specific regulations 

on certifications set forth at 922.216 are 

modified to make conforming edits to 

reference 922.10 for the program 

regulations on certifications and to 

reference 922.37 on the appeals process. 

• NOAA updates the office addresses 

for Monitor NMS (922.62(b)), Channel 

Islands NMS (922.74(b)), Monterey Bay 

NMS (922.132(c)(1)), Stellwagen Banks 

NMS (922.143(b)), Olympic Coast NMS 

(922.153(b)), and Florida Keys NMS 

(922.166(a)(1)). 

III. Summary of the Final Regulations 

A. Boundary Descriptions 

With this rule, NOAA is adopting a 

uniform standard for describing the 

overall area of each sanctuary. In 

addition to using the proposed unit of 

measurement of square nautical miles, 

abbreviated as nmi2, NOAA also 

provides in parentheses the area in 

square statute miles, abbreviated as sq. 

mi. The converter NOAA uses to 

convert nmi2 to sq. mi. is 1 nmi2 = 

1.3243 sq. mi. For example, the area 

estimate of Monterey Bay NMS will now 

read as ‘‘4601 nmi2 (6093 sq. mi.).’’ 

NOAA corrects the area estimate for 

Channel Islands NMS, which was 

mistakenly published in the proposed 

rule as 1128 nmi2 but should have been 

1110 nmi2. 

NOAA revises area estimates for 

Thunder Bay NMS, Greater Farallones 

NMS, and Cordell Bank NMS, in 

accordance with the final rules that 

expanded each sanctuary (79 FR 5291, 

September 5, 2014; 80 FR 13077, March 

12, 2015 respectively). 

NOAA retains the one-mile diameter 

boundary description for Monitor NMS 

because it is unique in that it is in a 

circle shape centered at specific 

coordinates. However, NOAA is 

currently considering revising the 

Monitor NMS boundary, which would 

be initiated through a separate 

rulemaking (81 FR 879, January 8, 

2016). 

With this rule, NOAA also converts 

the existing geographic coordinates to 

decimal degrees as calculated using the 

North American Datum of 1983. The 

conversion also includes updates to 

geographic coordinates for special zones 

of sanctuaries. The revised geographic 

coordinates discussed in this notice can 

be viewed and downloaded from 

https://sanctuaries.noaa.gov/library/ 

coordinates.html, or obtained upon 

request at the address listed in the 

ADDRESSES section of this final rule. 

B. Extend the Deadline for Draft 

Sanctuary Fishing Regulations 

With this rule, and as proposed in 

January 2013, NOAA moves the existing 

922.22(b) to the newly amended section 

922.3 and extends the deadline from 

120 days to 180 days for a Regional 

Fishery Management Council (RMFC) to 

respond to the Secretary’s request for 

draft sanctuary fishing regulations. 

NOAA believes this additional time 

provides the RMFC with a more realistic 

timeframe to meet, vote, and develop 

fishing regulations for the sanctuary. 

NOAA provides additional information 

in section IV. Responses to Comments 

(Comment 9). 

C. Definitions 

In this rule, section 922.3 is 

renumbered as section 922.11, and as 

previously explained above, NOAA 

revises the general and site-specific 

regulations to: (1) Eliminate a definition 

in the regulations that is not being used; 

(2) Create definitions for terms that are 

used throughout the sanctuary 

regulations but were not defined; (3) 

Modify proposed definitions based on 

public comment; (4) Move terms 

without change from site-specific 

definition sections to the new section 

922.11; (5) Amend definitions of 

existing terms; and, (6) Consolidate 

definitions. 

Unless otherwise noted, the newly 

defined terms and the consolidated 

definitions are used in multiple sitespecific regulations with consistency 

such that no impacts are anticipated. 

The definition for ‘‘Washington Coast 

treaty tribe’’ is the only term that is 

unique because it solely applies to the 

Olympic Coast National Marine 

Sanctuary. However, the definition for 


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‘‘Washington Coast Treaty tribe’’ 

appears in the general regulations to 

provide context since the term is 

referenced as a general permit category 

in section 922.30. 

1. Eliminate Two Definitions in the 

Regulations That Are Not Being Used 

In this rule and as stated in the 

proposed rule (78 FR 5998, January 28, 

2013), NOAA is eliminating the term 

‘‘fish waste’’ from the general 

definitions because it is not used in any 

of the general or site-specific 

regulations. NOAA also eliminates the 

definition for ‘‘tropical fish’’ in section 

922.11. As the only site that uses the 

term, the site-specific regulations for 

Florida Keys NMS will retain its 

definition of ‘‘tropical fish’’ at section 

922.162. The State of Florida manages 

marine life species, including tropical 

fish, as identified in Rule 68B–42.001 of 

the Florida Administrative Code. 

Because NOAA references the stateidentified species for the sanctuary’s 

definition of ‘‘tropical fish’’ in the 

Florida Keys NMS site-specific 

regulations, NOAA maintains 

unchanged a site-specific definition of 

‘‘tropical fish’’ at section 922.162. 

2. Create Definitions for Terms That Are 

Used Throughout the Sanctuary 

Regulations But Were Not Defined 

The terms ‘‘abandoning’’ and 

‘‘effective date’’ are two terms that are 

used throughout the existing sanctuary 

general and site-specific regulations, 

however, neither term was defined. In 

this interim final rule, and as stated in 

the proposed rule (78 FR 5998, January 

28, 2013), NOAA now defines both 

terms and adds them to section 922.11. 

(a) Abandoning 

In this rule, the definition of 

‘‘Abandoning’’ proposed in January 

2013 remains unchanged and is 

reflected in revised section 922.11.. 

(b) Effective Date 

In this rule, NOAA modifies the 

proposed definition of ‘‘effective date’’ 

to clarify and better track with related 

language in NMSA section 304(b) 

‘‘Taking effect of designations.’’ Section 

304(b) of the NMSA (16 U.S.C. 1434(b)) 

provides that a 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 date on 

which this federal rulemaking is 

published, unless the Governor of any 

State in which the national marine 

sanctuary is partially or entirely located 

certifies to the Secretary of Commerce 

during that same review period that the 

designation or any of its terms is 

unacceptable, in which case the 

designation or any unacceptable term 

shall not take effect. The delayed 

effective date for sanctuary designations 

under the NMSA is longer than that 

normally applied to final rules issued 

pursuant to section 4(d) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(d)). For other regulatory 

actions taken under the NMSA, which 

do not involve a designation or 

expansion, the normal APA rules 

concerning the effective date would 

continue to apply. As stated in the 

proposed rule (78 FR 5998, January 28, 

2013), NOAA added the term ‘‘effective 

date’’ to the definition section because 

‘‘effective date’’ was a term used 

throughout the sanctuary regulations 

which was not defined. The definition 

ensures that ‘‘effective date’’ is 

interpreted in a manner consistent with 

the NMSA. 

Since publication of the proposed 

rule, NOAA has completed several 

rulemakings involving sanctuary 

expansions and a sanctuary designation 

(see Section II. History of this 

Rulemaking and Summary of the 

Changes from the Proposed Rule to the 

Final Rule). These rulemakings required 

NOAA to interpret NMSA section 304(b) 

and apply its requirements in 

determining an ‘‘effective date’’ of the 

final regulations and ensure compliance 

with the NMSA. NOAA revises the 

definition to make technical changes to 

make the language more consistent with 

the statutory language in NMSA section 

304(b). NOAA clarifies that the effective 

date is the date described in the Federal 

Register notice promulgating the 

regulations or, for newly designated 

sanctuaries or any revisions to the terms 

of designation for existing sanctuaries, 

‘‘the date after the close of the review 

period of the 45th day of continuous 

session of Congress,’’ and that it follows 

the submission of the ‘‘Federal Register 

notice of the designation together with 

final regulations to implement the 

designation and any other matters 

required by law.’’ NOAA also removed 

the word ‘‘proposed’’ in the second 

sentence because it was confusing to use 

it in conjunction with describing final 

regulations for the designation of a new 

sanctuary or revising the terms of 

designation. 

The revised definition of ‘‘Effective 

Date’’ is reflected in revised section 

922.11. 

3. Modify Proposed Definitions Based 

on Public Comments 

NOAA modifies the general 

regulations’ proposed definitions for the 

terms ‘‘injure,’’ ‘‘sanctuary resource,’’ 

and ‘‘take or taking’’ based on public 

comments. 

(a) Injure or Injury 

NOAA updates the definition of 

‘‘injure’’ to also include ‘‘injury’’ 

because that term appears throughout 

the regulations. However, NOAA is no 

longer including the phrase ‘‘or 

impairment of a sanctuary resource 

service’’ found in the proposed 

definition of ‘‘injury.’’ NOAA received 

comments reflecting confusion about 

the purpose of this addition, including 

concerns that NOAA was seeking to 

expand its NMSA enforcement 

authorities. NOAA disagrees that this 

proposed language would have 

expanded NOAA’s authority, but finds 

that it is unnecessary to change the 

definition. As explained in the proposed 

rule, NOAA proposed to add 

‘‘impairment of a sanctuary resources 

service’’ to the definition of injury in 

order to recognize the importance of 

protecting sanctuary resource services. 

A resource service is a function 

performed by a sanctuary resource for 

the benefit of another sanctuary 

resource or the public (e.g., seagrass 

providing habitat and food for fish, or a 

coral reef providing recreational 

opportunities for members of the public 

who enjoy snorkeling). The statutory 

purpose of the NMSA already 

emphasizes the importance of 

‘‘maintain[ing] for future generations the 

habitat, and ecological services’’ of the 

living resources in the sanctuaries. 16 

U.S.C. 1431(a)(4). The statute also 

already provides NOAA the authority to 

seek damages for ‘‘lost use of a 

sanctuary resource,’’ which embodies 

the concept of losses of sanctuary 

resource services. 16 U.S.C. 1432(6). 

Despite this, NOAA has decided not to 

incorporate it into the regulations at this 

time, but NOAA will continue to work 

with agency partners and stakeholders 

to help them better understand the 

definition. 

The definition of ‘‘injure or injury’’ is 

reflected in revised section 922.11. 

(b) Sanctuary Resource 

NOAA updates the definition of 

‘‘sanctuary resource’’ by adding 

clarifying text ‘‘national marine’’ before 

‘‘sanctuary,’’ and including the terms 

‘‘maritime heritage, cultural, 

archeological, and scientific’’ resources 

for consistency with the statutory 

definition (see 16 U.S.C. 1432(8)). 

NOAA also updates the definition by 

replacing ‘‘the substratum of the area of 

the sanctuary’’ with ‘‘waters of the 

sanctuary, the seabed or submerged 

lands of the sanctuary.’’ NOAA added 

the term ‘‘seabed’’ in the previous 


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phrase to be inclusive of those sites that 

use that term in their site-specific 

regulations and terms of designation. 

Within this rule and as previously 

stated in the proposed rule, the 

definition of ‘‘sanctuary resource’’ is 

modified by replacing the term 

‘‘seabirds’’ with ‘‘birds.’’ When birds— 

seabirds, migratory birds, or water 

fowl—transit through the sanctuary they 

become part of the sanctuary resources 

that fall under the protection of NOAA 

consistent with the NMSA. Current 

prohibitions in four sanctuaries already 

regulate birds rather than limiting the 

class of protected animals to ‘‘seabirds’’ 

(Greater Farallones NMS, Cordell Bank 

NMS, Monterey Bay NMS, and Florida 

Keys NMS). The remaining four 

sanctuaries (Channel Islands NMS, NMS 

of American Samoa, Stellwagen Bank 

NMS, and Olympic Coast NMS) that 

discuss seabirds rather than birds in 

their prohibited activities sections 

already adopt by reference the list of 

protected species under the Migratory 

Bird Treaty Act (MBTA, listed at 50 CFR 

10.13), which does not distinguish 

between seabirds and non-seabirds. 

Therefore, NOAA finds that the class of 

protections does not change with this 

clarification, and that finalizing this 

update meets the purposes of E.O. 

13563 by streamlining the regulations to 

use consistent terms throughout. No 

new prohibitions are imposed with this 

update. 

Consistent with the January 13, 2013 

proposed rule, in this interim final rule, 

NOAA incorporates the phrase, ‘‘or 

parts or products thereof’’ after ‘‘any 

living or non-living resource of a 

national marine sanctuary.’’ This was 

added to ensure that protected resources 

are not dismembered and removed. 

NOAA harmonizes the definition with 

the sanctuary regulation of take, which 

includes ‘‘parts thereof.’’ In addition, 

NOAA includes reference to the newlydesignated Wisconsin Shipwreck Coast 

NMS. As a result of public comment, 

NOAA revised the definition of 

‘‘sanctuary resource’’ as reflected in 

revised section 922.11. 

(c) Take (Taking or Taken) of a Marine 

Mammal, Sea Turtle, or Bird 

The proposed rule sought to reformat 

and update the existing definition of 

‘‘take or taking.’’ The proposed 

definition of ‘‘take or taking’’ also 

included a fourth provision to clarify 

that the definition did not only apply to 

marine mammals, sea turtles, or birds, 

but also applied to other sanctuary 

resources. In response to public 

comments concerned that the proposed 

definition of ‘‘take or taking’’ expanded 

the scope of the existing regulatory 

prohibitions (see Comment 24 in 

Section IV. Responses to Comments), 

NOAA is revising the proposed 

definition by eliminating the fourth 

provision. For other site-specific 

regulations that prohibit take of other 

living or non-living sanctuary resources 

(e.g., 15 CFR 922.112(a); 922.132(11)(i); 

922.163(a)(2), (5); 922.164(d)(ii)), the 

plain language reading of the term ‘‘take 

(taking or taken)’’ will continue to 

apply. NOAA does not intend to expand 

the existing scope of the term ‘‘take.’’ 

With this rule, NOAA also clarifies 

that the term ‘‘take’’ is inclusive of the 

terms ‘‘taking’’ and ‘‘taken,’’ as both 

terms are used throughout the sitespecific regulations. For instance, 

Channel Islands NMS regulations at 15 

CFR 922.72(a)(9) and (10) identify the 

following as prohibited or otherwise 

regulatory activities, ‘‘[t]aking any 

marine mammal, sea turtle, or seabird 

within or above the Sanctuary’’ and 

‘‘[p]ossessing within the Sanctuary 

(regardless of where taken from, moved, 

or removed from) any marine mammal, 

sea turtle, or seabird.’’ Monterey Bay 

NMS, Stellwagen Banks NMS, Olympic 

Coast NMS, and Hawaiian Island 

Humpback Whale NMS all have similar 

prohibitions, which serve as additional 

examples. 

The revised definition of ‘‘take (taking 

or taken)’’ applies only to marine 

mammals, sea turtles and birds. The 

definition also incorporates ‘‘take’’ as 

that term is defined in section 3(19) of 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1532(19); ESA), 

‘‘take’’ as that term section 3(13) of the 

Marine Mammal Protection Act of 1972, 

as amended (16 U.S.C. 1362(13); 

MMPA), and activities prohibited by 

section 703 of the Migratory Bird Treaty 

Act of 1918, as amended (16 U.S.C. 703; 

MBTA). Eight sanctuaries (Channel 

Islands NMS, Greater Farallones NMS, 

Cordell Bank NMS, Monterey Bay NMS, 

Stellwagen Bank NMS, Olympic Coast 

NMS, Florida Keys NMS, and Hawaiian 

Islands Humpback Whale NMS) already 

incorporate one or more of these statutes 

in their site-specific regulations that 

prohibit ‘‘take.’’ Therefore, NOAA 

determined that the scope of the 

existing regulatory authority is not 

broadened by adopting the statutes by 

reference. 

NOAA also recognized that the 

proposed definition inadvertently 

omitted a provision that is contained in 

the existing definition. Therefore, 

NOAA adds to the revised definition of 

take the inadvertently-omitted provision 

concerning the collection, restraint or 

detainment, tagging, or operation of a 

vessel or aircraft that results in 

disturbance of molestation of any 

marine mammal, sea turtle, or bird. 

The revised definition is reflected in 

revised section 922.11. 

4. Move Terms Without Change From 

Site-Specific Definition Sections to the 

New Section 922.11 

In this rule and as stated in the 

proposed rule (78 FR 5998, January 28, 

2013), NOAA moves the following terms 

and corresponding definitions from sitespecific definition sections to section 

922.11 without change: ‘‘attract or 

attracting,’’ ‘‘clean,’’ ‘‘cruise ship,’’ and 

‘‘lawful fishing.’’ 

NOAA moves the definition for 

‘‘introduced species’’ from four sitespecific sanctuary regulations (Channel 

Islands NMS, Cordell Bank NMS, 

Greater Farallones NMS, and Monterey 

Bay NMS) without change, and from the 

NMS of American Samoa regulations 

with a technical modification that does 

not change the meaning or application 

of the definition. Specifically, this 

consolidated term was inadvertently 

omitted from the preamble discussion of 

the proposed rule, but was shown in the 

proposed list of definitions under the 

new section 922.11, and in the two 

sanctuaries that had definitions sections 

reprinted, the definition is shown as 

removed (Monterey Bay NMS and the 

NMS of American Samoa) (78 FR 5998, 

January 28, 2013). As such, NOAA 

finalizes the recodification of this 

definition to the general regulations 

with this action. 

5. Amend Definitions of Existing Terms 

In this rule and as stated in the 

proposed rule (78 FR 5998, January 28, 

2013), NOAA amends the definitions of 

the following existing terms in the 

general definitions section 922.11 as 

follows: 

(a) Benthic Community 

NOAA updates the regulatory 

definition of ‘‘benthic community’’ by 

adding ‘‘sea/ocean/lake’’ before 

‘‘bottom’’ to reflect the appropriate 

descriptive term, depending on the 

sanctuary. In this rule, NOAA defines 

the term ‘‘benthic community’’ is 

reflected in revised section 922.11. 

(b) Conventional Hook and Line Gear 

NOAA updates the term 

‘‘conventional hook and line gear’’ by 

removing the phrase ‘‘from aboard a 

vessel or’’ from the definition, and 

replacing the descriptor ‘‘hand- or 

electrically operated, hand-held or 

mounted’’ with ‘‘hand, electrically, or 

hydraulically operated, regardless of 

whether mounted,’’ and replacing the 

descriptor ‘‘fishing apparatus’’ with 


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‘‘fishing gear.’’ The change is designed 

to track common fishing practices (e.g., 

conventional hook and line fishing may 

occur from shore, from a bridge) and 

improve the description of the various 

fishing gear and methods captured in 

the definition of ‘‘conventional hook 

and line gear.’’ NOAA replaces the term 

‘‘bottom longline’’ with the term 

‘‘longline’’ in the last sentence of the 

definition of ‘‘conventional hook and 

line gear.’’ Since longline is a single line 

fitted with a series of offshoot lines 

along its entire length, it does not fit 

within the definition of ‘‘conventional 

hook and line gear.’’ By removing the 

word ‘‘bottom’’ from the definition, 

NOAA hopes to eliminate confusion 

that might exist and clarify that longline 

is not regarded as ‘‘conventional hook 

and line gear’’ particularly in Flower 

Garden Banks NMS. In Flower Garden 

Banks NMS, ‘‘conventional hook and 

line gear’’ is an exception to various 

regulatory prohibitions relating to the 

discharge or deposit of material within 

the sanctuary, injuring fish, whale shark 

and other sanctuary resources identified 

in the site-specific regulations at 

922.122(a)(3)(i)(A) and (a)(7)–(10). In 

this rule, ‘‘conventional hook and line 

gear’’ is reflected in revised section 

922.11. 

(c) Commercial Fishing 

NOAA modifies the term 

‘‘commercial fishing’’ to include the 

phrase ‘‘including any attempt to engage 

in such activity.’’ The modification 

clarifies that the term ‘‘commercial 

fishing’’ not only applies to an activity 

that results in the sale or trade of fish, 

shellfish, algae or corals, but also 

applies to ‘‘any attempt’’ to sell or trade 

fish, shellfish, algae or corals for profit. 

Commercial fishing is reflected in 

revised section 922.11. 

(d) Cultural Resource and Historic 

Resource 

NOAA does not add the phrase ‘‘but 

not limited to’’ in the definition of the 

terms ‘‘cultural resource’’ and 

‘‘historical resource.’’ Although the 

intent was to clarify that the list of 

resources are examples, the definitions 

are sufficiently broad to include the 

resources of concern to NOAA. The 

legal citation for the National Historic 

Preservation Act, which is already 

referenced in the existing definition, has 

been added to the definition of 

‘‘historical resource’’ as it relates to the 

use of the term ‘‘historic property.’’ 

NOAA also makes technical edits to 

make the terms and the examples 

drafted in the singular. The definition 

also clarifies that a ‘‘cultural resource’’ 

may be considered a ‘‘historical 

resource.’’ The two terms are reflected 

in revised section 922.11. 

(e) Director 

NOAA updates the office reference for 

the definition of ‘‘Director.’’ Under the 

previous definition, the term ‘‘Director’’ 

referred to the ‘‘Director of Ocean and 

Coastal Resource Management, NOAA 

or Designee.’’ Following organizational 

changes within NOAA, the definition is 

updated to refer to the ‘‘Director of the 

Office of National Marine Sanctuaries or 

designee’’ unless otherwise specified. 

The term ‘‘Director’’ is reflected in 

revised section 922.11. 

(f) Exclusive Economic Zone 

The definition of ‘‘exclusive economic 

zone’’ includes a direct reference to 

Proclamation 5030, dated March 10, 

1983, which establishes the exclusive 

economic zone. The term ‘‘Exclusive 

Economic Zone’’ is reflected in revised 

section 922.11. 

(g) Fish 

The Florida Keys NMS regulations 

site-specific definition of ‘‘fish’’ is being 

adopted in 922.11 because that 

definition is consistent with the 

definition of ‘‘fish’’ contained in the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSFCMA). NOAA also amends the 

statutory reference to point to the 

specific section of the MSFCMA where 

the term appears (16 U.S.C. 1802(12)). 

The term ‘‘fish’’ is reflected in revised 

section 922.11. 

(h) Indian Tribe 

NOAA moves the term ‘‘Indian tribe’’ 

found in the Olympic Coast NMS and 

Thunder Bay NMS regulations to the 

general regulations, and mirrors the 

definition provided in Executive Order 

13175. Updating the definition of 

‘‘Indian tribe’’ in the general regulations 

does not result in any change from a 

management perspective with regard to 

any existing sanctuary. 

(i) National Marine Sanctuary or 

Sanctuary 

The definition of ‘‘national marine 

sanctuary or sanctuary’’ clarifies that the 

area of the marine environment of 

special national significance can be 

designated by NOAA or Congress. 

(j) Regional Fishery Management 

Council 

In the definition of ‘‘Regional Fishery 

Management Council,’’ NOAA updates 

the legal citation to ‘‘section 302 of the 

Magnuson Fishery Conservation and 

Management Act.’’ In 2006, this Act was 

reauthorized and renamed, ‘‘the 

Magnuson-Stevens Fishery 

Conservation and Management Act. The 

term ‘‘Regional Fishery Management 

Council’’ is reflected in revised section 

922.11. 

(k) Sanctuary Quality 

NOAA updates the definition of 

‘‘sanctuary quality’’ by adding ‘‘national 

marine’’ before ‘‘sanctuary.’’ The revised 

definition is reflected in section 922.11. 

(l) Vessel 

NOAA modifies the definition of 

‘‘vessel’’ by adding a non-exhaustive list 

of examples at the end of the sentence. 

NOAA also eliminates a redundant 

phrase ‘‘capable of being used as a 

means of transportation in or on the 

waters of a Sanctuary’’ included in the 

list of examples for the term ‘‘vessel.’’ 

The purpose of the change is to provide 

law enforcement with guidance 

regarding the types of watercraft that are 

considered ‘‘vessels.’’ The revised 

definition is reflected in revised section 

922.11. 

6. Consolidate Definition 

(a) Deserting 

NOAA moves the term ‘‘deserting’’ 

from the Monterey Bay NMS and 

Greater Farallones NMS regulations to 

the new definition section at 922.11, 

and amends it to include the following 

descriptors, ‘‘wrecked, junked, or in a 

substantially dismantled condition.’’ 

These descriptors are intended to 

provide guidance to law enforcement in 

applying the regulations and to assist 

the public in better understanding the 

regulations. The term is currently used 

only in the regulatory prohibitions for 

these two sites. While adding the 

descriptors ‘‘wrecked, junked, or in a 

substantially dismantled condition’’ 

could be interpreted to expand the 

universe of activities that constitute 

deserting a vessel, NOAA’s intent is to 

provide additional examples without 

expanding the underlying meaning. 

NOAA made only grammatical changes 

between the proposed rule and this rule 

(i.e., a comma was changed to 

semicolon). The revised definition is 

reflected in revised section 922.11. 

D. Permit Categories and Review 

Procedures 

With this rule, NOAA eliminates the 

existing subpart D (Management Plan 

Development and Implementation) and 

replaces it with a new ‘‘Subpart D— 

National Marine Sanctuary Permitting.’’ 

ONMS permit review criteria and 

procedures were located in several 

different sections of the regulations: 

922.48 National Marine Sanctuary 

permits—application procedures and 


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issuance criteria; 922.49 Notification 

and review of applications for leases, 

licenses, permits, approvals, or other 

authorizations to conduct a prohibited 

activity; 922.50 Appeals of 

administrative action; and in subparts F 

through T in site-specific regulations. 

The rule consolidates most permitting 

regulations into a single subpart, and 

updates and clarifies ONMS permitting 

authority. NOAA makes several 

clarifications and technical revisions to 

the general sanctuary permitting 

procedures and criteria. In this section, 

NOAA also describes the details of the 

government-to-government consultation 

with the Washington Coast treaty tribes 

on the changes to the Olympic Coast 

NMS permit regulations. 

1. Clarifications and Technical 

Revisions 

• Section 922.10 provides the 

Director with authority to certify and 

regulate, but not terminate, the 

existence of any valid lease, permit, 

license, or right of subsistence use or of 

access that is in existence on the 

effective date of sanctuary designation. 

This rule revises section 922.10 to 

clarify that certification requirements 

are related to the effective date of final 

regulations for a designation or revised 

terms of designation. This is a technical 

amendment made to ensure that the 

terms used in the sanctuary regulations 

are consistent. NOAA clarifies that 

certification criteria and procedures 

apply to new designations, and also to 

changes to terms of designation, which 

include both newly regulated activities 

throughout a sanctuary or to regulations 

in newly expanded areas of an existing 

sanctuary. Certification criteria and 

procedures do not apply to previously 

regulated activities in pre-expansion 

areas. 

• NOAA clarifies that in addition to 

subpart D, site-specific subparts may 

also include applicable permit 

categories, review criteria, or other 

requirements. 

• NOAA makes a technical revision 

to remove ‘‘secondary’’ from types of 

adverse impacts NOAA considers in its 

permit review criteria. The revision 

more closely aligns with National 

Environmental Policy Act (NEPA) 

terminology and retains consideration of 

indirect and cumulative effects of 

permitted activities. 

• NOAA clarifies that a permit 

applicant’s proposed methods should 

‘‘avoid, minimize, or otherwise mitigate 

adverse effects as much as possible.’’ 

• NOAA makes a technical revision 

clarifying that the Director may make 

specific agreements with applicants for 

assessing and collecting special use 

permit (SUP) fees. 

• NOAA clarifies that permit 

applications may be submitted by 

electronic means (as opposed to just by 

email) in addition to submission by 

mail. This clarification is intended to 

facilitate NOAA’s plans to move 

forward with a web-based electronic 

application submission process in the 

future. 

• NOAA clarifies that the Director 

may authorize a person to conduct an 

activity prohibited by subparts L 

through P, subpart R, and subpart S, 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 

expansion. This form of approval, 

known as an ‘‘authorization,’’ is and 

will continue to be available in seven 

sanctuaries: Flower Garden Banks, 

Monterey Bay, Stellwagen Bank, 

Olympic Coast, Florida Keys, Thunder 

Bay, and Mallows Bay-Potomac River. 

• NOAA makes a technical revision 

to eliminate the term ‘‘renewal’’ from 

discussion of permit or authorization 

amendments. Permit or authorization 

amendments include requests for time 

extensions. 

2. General Permit Categories 

ONMS has four primary ways by 

which it may allow otherwise 

prohibited activities in existing 

sanctuaries: General permits, special use 

permits, certifications, and 

authorizations. Some sanctuaries (e.g., 

Thunder Bay NMS and Florida Keys 

NMS) also have site-specific permit 

categories described in their relevant 

subpart. General permits are divided 

into several categories that correspond 

with the primary purpose of the 

proposed activity. Most site-specific 

sanctuary regulations have at least three 

categories of general permits: (1) 

Management; (2) education; and, (3) 

research. NOAA consolidates these 

general permit categories into one 

section (922.30) and provides a single 

description of each permit category. 

Consolidating permit categories into 

subpart D does not preclude NOAA 

from creating or amending permit 

categories that only apply to a particular 

sanctuary. 

Some sanctuaries also have general 

permit categories for other types of 

activities, such as salvage or recovery 

operations (associated with an air or 

marine casualty); restoration of natural 

habitats, populations, or ecological 

processes; furthering the natural or 

historical resource value of a sanctuary; 

and response to the imminent risk of a 

sanctuary resource injury. Following 

consolidation of the general permit 

categories, these activities will be 

considered under a permit category 

determined appropriate for the 

proposed action (i.e., management, 

education, or research) and are not 

addressed as separate general permit 

categories. 

In addition, a few sanctuaries have 

site-specific categories, procedures, and 

criteria for permit issuance that are 

unique to that sanctuary. These sitespecific permit categories will continue 

to only apply to the specific sanctuary. 

However, three site-specific general 

permit categories are now moved to the 

general permit list at 922.30, including: 

• Monterey Bay NMS: Jade removal; 

• Olympic Coast NMS: Tribal selfdetermination; and, 

• Florida Keys NMS: Activity furthers 

sanctuary purposes to the extent 

compatible with the primary objective 

of resource protection. 

NOAA has become aware that certain 

conditions of the Monterey Bay NMS 

jade removal permit category previously 

codified at paragraphs 922.133(b)(6) and 

922.133(d) were inadvertently left out of 

the notice of proposed rulemaking. The 

language of the jade removal permit 

category in the proposed rule did not 

capture the phrase ‘‘without the use of 

pneumatic, mechanical, electrical, 

hydraulic or explosive tools,’’ which 

restricts the methods of jade removal in 

paragraph 922.133(b)(6). In addition, 

paragraph 922.133(d) states that 

‘‘preference will be given for 

applications proposing to collect loose 

pieces of jade for research or 

educational purposes.’’ NOAA has 

historically provided an exemption for 

limited, small-scale collection of jade in 

Monterey Bay NMS (63 FR 15083, 

March 30, 1998). NOAA did not intend 

to make substantive changes to the 

existing regulations currently codified at 

15 CFR 922.133(b)(5) and (d), and there 

were no comments on the proposed rule 

addressing these jade removal 

provisions, or any other indication 

among stakeholders that these 

provisions should be substantively 

changed. Therefore, NOAA is correcting 

an inadvertent omission to ensure that 

the jade removal can continue under the 

general permit category at section 

922.30(b)(4) in a manner that is 

consistent with historical practice in 

existence since 1998. 

As noted above, the Florida Keys 

NMS released a Draft Environmental 

Impact Statement (referred to as the 

‘‘Restoration Blueprint’’) in August 2019 

as part of an ongoing process to propose 

changes to the Florida Keys NMS sitespecific regulations (84 FR 45728, 


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29614 Federal Register / Vol. 87, No. 93 / Friday, May 13, 2022 / Rules and Regulations 

August 30, 2019). While NOAA is 

including in subpart D the Florida Keys 

NMS site-specific general permit 

category listed above, Florida Keys NMS 

has additional site-specific permit 

categories that are not changed by this 

rule and will remain at 922.166 and 

922.167. However, the Florida Keys 

NMS regulations and permit categories 

may be revised in the future through a 

separate rulemaking as part of the 

ongoing Restoration Blueprint process. 

3. Permit Review Criteria 

NOAA consolidates permit review 

criteria into subpart D to improve 

consistency and clarity. The list of 

permit review factors or criteria 

considered by the Director was not 

consistent across the sanctuary sitespecific regulations, nor was the 

regulatory text for the factors or criteria 

consistent. The sanctuary site-specific 

regulations also varied on whether the 

factors or criteria were affirmative 

findings that shall be met or whether 

they were simply considerations in 

making permit decisions. To achieve 

greater consistency, NOAA establishes a 

single list of nine review criteria and 

publishes it in subpart D. Eight criteria 

are applicable to all sanctuaries, while 

one is unique to Olympic Coast NMS 

(the activity as proposed shall not 

adversely affect Washington Coast treaty 

tribes). NOAA also eliminates sitespecific impact thresholds for permit 

issuance in favor of making the review 

criteria affirmative findings. The 

Director must still determine whether 

any additional site-specific review 

procedures or criteria were met prior to 

issuing a permit. For example, for 

Thunder Bay NMS, the permit 

procedures and review criteria in 

subpart R, section 922.195, will 

continue to apply. Likewise, the Florida 

Keys NMS site-specific permit 

procedures and review criteria in 

subpart P, sections 922.166 (b), (c), (d), 

(f) and (i) through (m) and 922.167 will 

continue to apply. Since NOAA is 

considering comprehensive changes to 

the Florida Keys NMS site-specific 

regulations, these site-specific permit 

procedures and review criteria may be 

revised in the future through a separate 

rulemaking as part of the ongoing 

Restoration Blueprint process. 

4. Appeals 

NOAA revises the appeal procedures 

and re-codifies the regulations into a 

new section 922.37. The regulations 

provide any applicant or holder of a 

sanctuary permit, special use permit, 

certification, or authorization with an 

opportunity to submit a written appeal 

to the Assistant Administrator for Ocean 

Services and Coastal Zone Management 

challenging the denial, conditioning, 

amendment, suspension or revocation of 

a general permit, special use permit, or 

authorization; or a certification. 

In this rule, NOAA makes the 

administrative appeal process consistent 

across the National Marine Sanctuary 

System by restricting the potential 

appellants to applicants for and holders 

of sanctuary permits, special use 

permits, certifications, or 

authorizations; and by removing the 

requirement for the Assistant 

Administrator to hold hearings for 

appeals of permit decisions for Monitor 

NMS. NOAA also makes minor, nonsubstantive edits to improve readability 

and understanding. NOAA did not 

receive any public comments on the 

proposed changes that make the appeal 

process consistent across the System. 

The previous regulations provided 

‘‘any interested party’’ with an 

opportunity to appeal sanctuary 

decisions issued by the Director in six 

sanctuaries (Monitor NMS, Channel 

Islands NMS, Greater Farallones NMS, 

Gray’s Reef, NMS of American Samoa, 

or Cordell Bank NMS). These interested 

party appeals are called ‘‘third party 

appeals.’’ A review of the regulatory 

history shows that the third party 

appeal provisions appear to have been 

carried over from the initial regulations 

implementing the designation of several 

of sites, including Channel Islands NMS 

(45 FR 65205, October 2, 1980), Greater 

Farallones NMS (46 FR 7941, January 

26, 1981), Gray’s Reef (46 FR 7946, 

January 26, 1981), NMS of American 

Samoa (51 FR 15883, April 29, 1986), 

and Cordell Bank NMS (54 FR 22425, 

May 24, 1989). However, the regulatory 

history of each site is silent as to this 

provision and provides no discernable 

reasons why NOAA supplied interested 

parties with opportunities to appeal 

sanctuary permit decisions in these sites 

and not others (78 FR 6005, January 26, 

2013). 

Sanctuary administrative appeals are 

commonly brought by applicants for or 

holders of sanctuary permits, special 

use permits, certifications, or 

authorizations (78 FR 6005, January 26, 

2013). Only two third party appeals 

have been filed by interested parties. 

Both third party appeals were filed in 

2014, involved the same appellant (a 

non-profit organization), and involved 

challenges to sanctuary permits issued 

to two separate recreational companies 

operating in the Greater Farallones 

NMS. The first third party appeal was 

decided against the appellant; and the 

second third party appeal was 

voluntarily withdrawn by the appellant. 

In light of the very limited number of 

times the third party appeal option has 

been invoked, and given the lack of 

discernible rationale for affording the 

opportunity for third party appeals in 

some sites and not others, the sanctuary 

appeal procedures are being amended to 

facilitate consistency by restricting the 

pool of potential appellants to 

applicants for, and holders of, sanctuary 

permits, special use permits, 

certifications, or authorizations. 

Interested third parties may provide 

input to the permit process through 

other mechanisms, including public 

review and comment of associated 

environmental analyses as part of the 

NEPA process or other statutory 

processes, as applicable. 

As explained in the proposed rule, 

only the Monitor NMS regulations 

required the Assistant Administrator to 

hold informal hearings during 

administrative appeals. Other sanctuary 

regulations provided the Assistant 

Administrator with discretion on 

whether to hold an informal hearing (78 

FR 6005). NOAA removes the hearing 

requirement for Monitor NMS and 

makes the appeal procedures for 

Monitor NMS consistent with that of all 

the other sanctuary sites. 

5. Special Use Permits 

In this rule, NOAA adds two new 

sections for special use permits and 

associated fees. NMSA section 310 

provides the Secretary of Commerce 

(Secretary) with authority to issue 

special use permits (SUPs) (16 U.S.C. 

1441). The Secretary has delegated 

authority to the ONMS Director to issue 

SUPs that authorize specific activities in 

a national marine sanctuary if such 

SUPs are necessary (1) to establish 

conditions of access to and use of any 

sanctuary resource, or (2) to promote 

public use and understanding of a 

sanctuary resource. The NMSA also 

provides ONMS with authority to assess 

and collect SUP fees. ONMS may collect 

fees to recover administrative costs, the 

cost of implementing the permit, and 

the fair market value of the use of 

sanctuary resources. The new special 

use permit fee regulations are set forth 

in a new section 922.35. 

ONMS publishes in the Federal 

Register all categories of activities that 

may qualify for a SUP (see e.g., 71 FR 

4898, January 30, 2006; 78 FR 25957, 

May 3, 2013; 82 FR 42298, September 7, 

2017). A few SUP categories are only 

applicable at specific sites. For example, 

the SUP category for recreational diving 

near the USS Monitor applies only in 

the Monitor NMS and the SUP category 

for the continued presence of a pipeline 

transporting seawater to or from a 

desalination facility applies only in 


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Monterey Bay NMS. Although all 

sanctuaries currently possess the 

authority to issue SUPs for certain 

activities as identified in the published 

SUP categories, the Florida Keys NMS is 

the only site that has site-specific 

implementing SUP regulations (15 CFR 

922.166(d)). In order to avoid 

substantive changes to the Florida Keys 

NMS-specific regulations pertaining to 

SUPs, 15 CFR 922.166(d) will remain 

unchanged by this rule. Any proposed 

changes to FKNMS SUP regulations will 

be addressed through the public review 

process for the Restoration Blueprint 

DEIS and the associated rulemaking. 

6. Application Requirements and 

Amendment Procedures 

Through this rule, NOAA clarifies 

permit application requirements and 

procedures and keeps the requirements 

themselves largely unchanged (78 FR 

6005, January 26, 2013). The changes 

clarify that the Director may refuse to 

further consider an incomplete 

application. Applications are deemed 

incomplete if an applicant fails to 

submit required or requested 

information, pay outstanding penalties, 

or comply with any permit previously 

issued to the applicant. In addition, the 

language in new section 922.34 

governing permit amendments has been 

revised to clarify that NOAA does not 

issue ‘‘renewal’’ permits, but has a 

longstanding practice of ‘‘amending’’ 

the expiration dates of existing permits 

provided the permit has not expired. 

7. Authorizations 

In this rule, NOAA moves the 

regulations regarding authorizations 

from section 922.49 to a new section 

922.36. The regulations provide the 

Director with authority to allow an 

otherwise prohibited activity ‘‘if such 

activity is specifically authorized by any 

valid Federal, State, or local lease, 

permit, license, approval, or other 

authorization.’’ An authorization is 

designed to streamline regulatory 

requirements by reducing the need for 

multiple permits (78 FR 6005, January 

26, 2013). NOAA also finalizes the 

requirement that the Director consider 

the permit review criteria in making 

decisions on authorizations. 

8. Consultation With Washington Coast 

Treaty Tribes on Permit Regulations 

Pursuant to Executive Order 13175, 

this rule was developed after 

meaningful consultation and 

collaboration with the tribal 

representatives from the Makah, Hoh, 

and Quileute Indian Tribes and the 

Quinault Indian Nation of the Olympic 

Coast Intergovernmental Policy Council 

(IPC). During the consultation, NOAA 

advised the IPC tribal representatives 

that this action would include nonsubstantive, technical changes to the 

existing permit regulations. In response 

to comments from the Makah Tribe, 

NOAA is including preamble text to 

clarify that the relocation of the tribal 

self-determination provision does not 

change the intent or application of this 

provision. 

In this rule, NOAA adds a defined 

term ‘‘Washington Coast treaty tribe,’’ 

moves the tribal self-determination 

permit category to the national 

permitting regulations, modifies a 

permit review criterion to require that 

permitted activities shall not have an 

adverse effect on Washington Coast 

treaty tribes, and adds the consideration 

of all permit review criteria (including 

the effect of the activity on tribes) to the 

permit procedures in subpart D. 

As noted above, NOAA has added the 

term ‘‘Washington Coast treaty tribe’’ to 

the general definitions in section 

922.11. The term was suggested as a 

result of consultation during the 

Olympic Coast NMS management plan 

review process. The new definition 

specifically refers to any of the four 

tribes currently identified in the existing 

Olympic Coast NMS regulations and is 

defined as ‘‘the Hoh, Makah, or Quileute 

Indian Tribes or the Quinault Indian 

Nation.’’ 

For Olympic Coast NMS specifically, 

NOAA retains the permit category for 

activities that further tribal selfdetermination. NOAA moves without 

change the tribal self-determination 

permit category to the new permitting 

section under subpart D. The permit 

category continues to read: ‘‘promote or 

enhance tribal self-determination, tribal 

government functions, the exercise of 

treaty rights or the economic 

development of the tribe, subsistence, 

ceremonial and spiritual activities, or 

the education or training of a tribal 

member.’’ As previously stated, the 

relocation of this permit category does 

not change the intent or application of 

this provision. 

NOAA eliminates the Olympic Coast 

NMS site-specific impact threshold that 

permitted activities must not 

‘‘substantially injure’’ sanctuary 

resources and qualities. The impact 

threshold is replaced by nine (9) 

affirmative findings as discussed earlier 

in the preamble to this rule. NOAA 

finds that this impact threshold is 

adequately captured in the findings that 

the activity must be (1) conducted in a 

manner compatible with the primary 

objective of resource protection, (4) the 

end value to the goals and objectives of 

the sanctuary outweighs potential 

adverse impacts, and (9) the activity 

does not adversely affect Washington 

Coast treaty tribes. The permit review 

criteria now require the Director to 

make affirmative findings, including 

that permitted activities would not 

adversely affect Washington Coast treaty 

tribes. 

NOAA believes the changes to the 

permit review requirements increase 

consideration of tribal interests. With 

this rule, the Director must consider all 

of the permit review criteria when 

evaluating authorization requests. This 

includes understanding whether an 

activity adversely affects Washington 

Coast treaty tribes. The previous 

regulations did not explicitly require the 

Director to consider tribal interests 

when issuing permits. Therefore, this 

regulatory action should further 

increase deliberate consideration of and 

adverse effects of permit decisions on 

tribal interests. 

Since the proposed rule published in 

the Federal Register, Olympic Coast 

NMS and the Makah Tribe also engaged 

in government-to-government 

consultation on tribal involvement in 

the consideration of Olympic Coast 

NMS permit applications and jointly 

developed a ‘‘Protocol for Permit 

Consultation’’ that specifies the 

procedures by which consultation and 

coordinated communication occurs 

between the Makah Tribe and the 

Olympic Coast NMS staff. Sanctuary 

staff and tribal representatives meet 

periodically to engage in permit 

consultations on ONMS permit 

applications, and the results of which 

are included in ONMS permit decision 

documents. In addition, the Makah 

Tribe and ONMS developed a protocol 

to engage in consultation as part of the 

NMSA section 304(d) interagency 

consultation process and have 

implemented it in two recent sanctuary 

consultations. Olympic Coast NMS 

regularly engages with the Washington 

Coast treaty tribes on various initiatives 

of mutual interest. The language that 

NOAA adopts in this rule has been 

vetted through public review and 

government-to-government consultation 

with the tribes. 

IV. Responses to Comments 

NOAA solicited public comments on 

the proposed rule, seeking to determine 

whether the proposed changes 

effectively streamlined or otherwise 

improved the regulations. NOAA also 

invited commenters to provide 

suggestions on how to make the 

regulations easier to understand. NOAA 

received written comments from 28 

individuals or entities on the proposed 

rule and grouped them into 46 


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categories below. NOAA’s response 

follows each comment. 

General 

1. Comment: Commenters 

commended NOAA’s efforts to 

streamline the regulations to create 

consistency across the national marine 

sanctuary general regulations and sitespecific regulations. They recognized it 

was complex work, in that the 

streamlining covered a wide range of 

regulations, including but not limited 

to, regulatory consolidation, elimination 

of regulations, amending regulatory 

procedures, and changes to regulatory 

definitions. In addition, commenters 

supported efforts to harmonize and 

consolidate definitions with broad 

applicability for the National Marine 

Sanctuary System. Commenters noted 

that definitions have important 

implications for sanctuary regulations 

and are key factors in determining 

access, restricted use, and user burdens. 

Response: NOAA agrees with the 

comment. 

NEPA Analysis 

2. Comment: Commenters 

recommended that NOAA prepare and 

release for further public comment an 

environmental assessment that analyzes 

the proposed regulatory changes and 

their effect on the human environment. 

Commenters stated that a proper 

analysis would allow the public to 

better understand the purpose and need 

for the proposed changes as well as the 

potential impacts. 

Response: NOAA determined that 

because this rule includes only 

technical and administrative changes to 

regulatory text it meets the definition in 

Appendix E of the NOAA NEPA 

Companion Manual under categorical 

exclusion reference number G7 

‘‘Preparation of policy directives, rules, 

regulations, and guidelines of an 

administrative, financial, legal, 

technical, or procedural nature, or for 

which the environmental effects are too 

broad, speculative or conjectural to lend 

themselves to meaningful analysis and 

will be subject later to the NEPA 

process, either collectively or on a caseby-case basis.’’ In considering the list of 

extraordinary circumstances, NOAA 

determined that none would be 

triggered by this rule. Therefore, NOAA 

determined that this rule would not 

result in significant effects to the human 

environment and is categorically 

excluded from the need to prepare an 

environmental assessment (EA). 

Executive Order 13563 

3. Comment: Commenters support the 

review per the direction of Executive 

Order (E.O.) 13563 ‘‘Improving 

Regulation and Regulatory Review.’’ 

However, commenters also noted that 

section 3 of E.O. 13563 advises against 

redundant regulations and requires 

agencies to attempt to promote 

coordination, simplification, and 

harmonization across regulatory 

regimes. Commenters questioned 

whether ONMS conducted such a 

review, or if it only looked at its own 

regulations. The commenters suggested 

that ONMS consider potential 

regulatory redundancies and 

management duplication within 

sanctuaries and with other agencies 

with statutory authority over marine 

resources. 

Response: ONMS consulted with 

other federal regulatory agencies, such 

as the NPS and NOAA’s National 

Marine Fisheries Service (NMFS), with 

which ONMS frequently cooperates and 

shares related jurisdiction. ONMS also 

used the draft proposed regulations to 

identify whether there were any other 

additional redundancies that could be 

addressed. NOAA is committed to 

conducting periodic evaluations of 

individual sites and management plan 

reviews consistent with NMSA section 

304(e) to revise the regulations and 

management plans as necessary to fulfill 

statutory mandates. The purpose and 

intent of E.O. 13563 is also considered 

as part of the management plan review 

process in each sanctuary. 

Consolidation of Subparts 

4. Comment: NOAA should not 

eliminate existing section 922.21, or the 

entirety of subpart C (Designation of 

National Marine Sanctuaries). 

Commenters contend that one of the 

purposes of regulations is to implement 

the provisions and requirements 

contained in Congressional statutes that 

are not only applicable to citizens, but 

to federal agencies as well. Commenters 

stated the regulations must maintain 

reference to the sanctuary designation 

requirements. Commenters also stated 

that the public generally does not read 

Congressional acts, so maintaining a 

reference to the sanctuary designation 

standards set forth in section 303 of the 

NMSA within the Code of Federal 

Regulations provides the public with a 

means to evaluate NOAA’s transparency 

and compliance with the NMSA in 

future sanctuary actions. 

Response: This comment is no longer 

relevant, and has been overtaken by 

intervening agency action. On June 13, 

2014, NOAA eliminated and reserved 

section 922.21 through a separate 

rulemaking that established the 

sanctuary nomination process (SNP) (79 

FR 33851, June 13, 2014). The 2014 SNP 

has been incorporated in this rule. 

5. Comment: NOAA should maintain 

section 922.30(b) of subpart D 

pertaining to development and 

implementation of site-specific 

contingency and emergency-response 

plans designed to protect sanctuary 

resources, including alert procedures 

and actions to be taken in the event of 

an emergency such as a shipwreck or an 

oil spill. 

Response: NOAA disagrees with this 

comment, and declines to retain section 

922.30. The previous section 922.30 was 

vague and provided no direct 

information to the public concerning 

sanctuary-related emergency response 

plans. NOAA maintains that under 

section 304(a)(2)(C) of the NMSA it 

retains the authority and ability to 

develop such plans as needed and does 

not require regulations to direct the 

development of specific contingency 

and emergency-response plans. 

Therefore, NOAA has decided to 

remove the previous section 922.30 

because it was duplicative of the 

statutory requirements. 

Submerged Lands 

6. Comment: Commenters noted that 

the term ‘‘submerged lands’’ carries a 

legal definition under the Submerged 

Lands Act, so NOAA should describe 

the impact of moving away from the 

term ‘‘seabed’’ and using ‘‘submerged 

lands’’ in its place. They stated that the 

public would benefit from more 

description with regard to States’ rights 

and ownership of submerged lands. 

Another commenter stated that in 

Hawaii, submerged lands are considered 

ceded lands, which are, among other 

things, held in trust for the betterment 

of Native Hawaiians. Another 

commenter stated that NOAA appeared 

pre-decisional in that four sites (Flower 

Garden Banks NMS, Stellwagen Bank 

NMS, Hawaiian Islands Humpback 

Whale NMS, and Florida Keys NMS) 

would likely move towards a submerged 

lands definition. 

Response: NOAA has consistently 

interpreted its authority under the 

NMSA as extending to submerged lands, 

and amendments to the NMSA in 1984 

(Pub. L. 98–498) clarified that 

submerged lands may be designated by 

the Secretary of Commerce as part of a 

national marine sanctuary (16 U.S.C. 

1432(3)). Therefore, there is no 

substantive change from moving away 

from the term ‘‘seabed.’’ 

NOAA updates references in certain 

site-specific regulations from ‘‘seabed’’ 

to ‘‘submerged lands’’ in order to align 

the regulations with the terms of 

designation for those particular sites 


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that now use the term ‘‘submerged 

lands’’ (Channel Islands NMS, Greater 

Farallones NMS, Gray’s Reef NMS, 

Cordell Bank NMS, and Monterey Bay 

NMS). NOAA has decided not to add 

‘‘or submerged lands’’ terminology to 

the site regulations for the following 

four sanctuaries—Flower Garden Banks 

NMS, Stellwagen Bank NMS, Olympic 

Coast NMS, and Florida Keys NMS— 

because the terms of designation for 

these sanctuaries use the term ‘‘seabed.’’ 

Updating the term ‘‘seabed’’ to 

‘‘submerged lands’’ for the sites that use 

‘‘submerged lands’’ in their terms of 

designation is not intended to result in 

any legal or substantive change to the 

regulations. 

A discussion of State’s rights in regard 

to submerged lands is beyond the scope 

of this rulemaking. However, the State 

of Hawaii and Native Hawaiians play an 

important role in the co-management of 

Hawaiian Islands Humpback Whale 

NMS. The sanctuary is co-managed 

through an agreement with the State of 

Hawaii and the sanctuary advisory 

council includes representation of 

Native Hawaiian interests. This 

coordination helps to ensure the views 

and concerns of Native Hawaiians are 

considered in the management of 

sanctuaries that overlap state submerged 

lands. 

Site Evaluation List (SEL) 

7. Comment: There was broad general 

support from the public for the proposal 

to remove the SEL requirement from 

section 922.10. Support was mainly 

from organizations and individuals who 

viewed the SEL requirement as an 

impediment to the potential nomination 

of noteworthy sites. 

Response: NOAA appreciates the 

support of the general public and 

organized groups that might wish to 

submit nominations to consider new 

sites for designation as national marine 

sanctuaries. In 1995, NOAA deactivated 

the SEL and no new areas could be 

added to the list for sanctuary 

consideration. Commenters supported 

the proposal to remove the SEL 

regulations because it would remove a 

barrier for potential nomination of 

noteworthy sites. Since the publication 

of the proposal to remove the SEL 

requirement, NOAA, in a subsequent 

action established the sanctuary 

nomination process (SNP) regulations in 

subpart B and removed the SEL 

regulatory language at that time (79 FR 

33851, June 13, 2014). As such, the SEL 

requirement has already been removed 

from the Part 922 regulations. 

8. Comment: A few commenters 

expressed concerns about amending the 

regulations for the SEL. They stated that 

there were no specific details as to how 

the additional method for identifying 

and nominating sites would work, what 

programmatic objectives NOAA would 

use to evaluate them, and urged NOAA 

to follow sections 303 and 304 of the 

NMSA for interagency review. Other 

commenters expressed concerns over 

agency resources available to identify 

and add new sanctuaries to the system. 

Response: As noted above, this 

comment is no longer relevant, and has 

been overtaken by intervening agency 

action. In June 2014, NOAA eliminated 

the SEL, and established the SNP, a 

community-driven nomination process 

for identifying and submitting to NOAA 

marine and Great Lakes sites for 

consideration as national marine 

sanctuaries. The SNP has been 

incorporated into this final rule, and is 

re-codified in new sections 922.12 and 

922.13 without any changes to the 

existing language. 

Fishing Regulations 

9. Comment: Some commenters 

supported providing additional time to 

the RFMCs to develop draft fishing 

regulations, from the proposed 120 days 

to 180 days. Other commenters 

suggested that 180 days may still not be 

long enough to develop draft fishing 

regulations, especially considering the 

requirements of the MSFCMA, and if 

the National Environmental Policy Act 

requirements are to be completed prior 

to final Council action as encouraged by 

a National Marine Fisheries Service 

Policy Directive (February 2013). 

Commenters suggested at least one year 

or more as a more appropriate time 

frame. 

Response: NOAA appreciates the 

administrative constraints of the RFMCs 

and attempted to relieve some of the 

burden by extending the timeline for 

developing draft fishing regulations. 

NOAA selected 180 days because 

typically two Council meetings can 

occur within this time frame, which 

allows the issue to be introduced at one 

meeting and a decision to be made at a 

second meeting. NOAA seeks to balance 

efficiency of its own rulemaking and 

environmental compliance processes 

with allowing sufficient time for the 

Councils to deliberate and develop draft 

fishing regulations, if they so choose. 

Therefore, no changes were made based 

on this comment. 

10. Comment: Other commenters 

reiterated that fish and continental shelf 

fishery resources under the authority of 

the Secretary of Commerce should be 

managed pursuant to the MSA, and the 

RFMCs should prepare fishing 

regulations within a sanctuary in 

accordance with sections 302 and 304 of 

the MSA. They believe that under the 

RFMC process, fishery resources are 

managed consistently throughout their 

range and with the best scientific 

information available. Commenters 

stated that sanctuaries have neither the 

scientific expertise nor transparent and 

inclusive public process to address 

fishery management issues. In addition, 

the MSA contains specific National 

Standards, guidelines, scientific and 

economic considerations, and clear 

requirements for public input that 

include but extend beyond NEPA 

considerations. 

Response: ONMS has not proposed 

any fishing regulations. The plain 

language of NMSA section 304(a)(5) 

provides clear guidance on the process 

for developing fishing regulations. The 

purpose of this action is merely to 

establish a clear schedule for the RFMCs 

to develop draft fishing regulations 

applicable in national marine 

sanctuaries. 

Definitions 

System-Wide Application 

11. Comment: NOAA should not 

establish definitions that apply nationwide. Commenters stated that 

sanctuaries by design are place-based 

and reflect local management objectives. 

They argue it is unclear what purpose 

nation-wide definitions serve for placebased sanctuaries. If anything, this may 

limit individual sanctuaries, and the 

local constituents and user groups they 

serve, from establishing local definitions 

that reflect the socio-cultural 

characteristics of a particular place or 

region. 

Response: NOAA appreciates the 

commenters’ concerns, but disagrees 

with the suggested approach. NOAA’s 

decision to adopt general definitions is 

dependent on whether the term at issue 

applies across the System (e.g., 

‘‘effective date’’ is a general term that 

applies to all sanctuaries). Whenever a 

term has limited application, NOAA has 

chosen to retain the site-specific 

definition, which only applies to the 

corresponding site and has no general, 

system-wide applicability (e.g., ‘‘No 

activity zone’’ in Flower Garden Banks 

NMS, and ‘‘Davidson Seamount 

Management Zone’’ in Monterey Bay 

NMS). 

Adopting Other Statutory Definitions 

12. Comment: Commenters were 

concerned that by adopting the 

definitions and, thereby, standards of 

several other statutes, NOAA may 

increase the overlap of regulatory 

programs. Commenters were concerned 

that this creates the potential for 


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duplicative and conflicting regulatory 

interpretations and outcomes, which 

increases litigation risk for the 

Department of Commerce, and for action 

proponent agencies. ONMS should seek 

to develop processes that complement, 

rather than overlap existing regulatory 

programs. 

Response: NOAA disagrees and 

believes that the proposed approach 

serves to provide certainty and remove 

the potential for conflicting regulatory 

requirements. In this rulemaking, 

NOAA adopts the definitions of ‘‘take’’ 

from other relevant statutes. Through 

this approach, if those referenced 

authorities change over time—either 

through an agency changing its 

interpretation or Congressional 

updates—NOAA would not have to 

make corresponding changes to the 

sanctuary regulations and consistency 

across the statutory regimes will be 

maintained. NOAA believes this 

increases consistency and efficiency for 

both the federal government and the 

regulated community. By referencing 

the other statutes explicitly, NOAA 

eliminates the potential for conflicting 

regulatory interpretations. Doing so also 

provides law enforcement agencies 

notice of what laws apply all in one 

place. NOAA believes this provides an 

important level of certainty to law 

enforcement that is consistent with the 

NMSA goal to provide for 

comprehensive and coordinated 

conservation and management of 

sanctuaries (16 U.S.C. 1431(b)(2)). 

13. Comment: Certain resources that 

may exist within sanctuary boundaries 

are already covered by the ESA, MMPA, 

and MBTA, and are not in need of 

protection under the NMSA via clauses 

(1), (2), and (3) of the proposed 

definition of ‘‘take or taking.’’ 

Commenters stated that ONMS should 

consider focusing protection resources 

on those areas not already protected 

through other regulatory programs. 

Response: NOAA already incorporates 

the ESA, MMPA, and MBTA in its 

general regulations and site-specific 

regulations. Additionally, there may be 

circumstances where pursuing a ‘‘take 

or taking’’ under the ESA, MMPA, or 

MBTA could generate greater litigation 

risk or jeopardize adequate redress. 

ONMS believes that the concurrent 

authority to pursue violations under the 

NMSA provides important flexibility for 

considered judgment and adequate 

assurance that NOAA is able to 

sufficiently deter the illegal taking of 

sanctuary resources. Moreover, 

strengthening protections over already 

protected resources does not preclude 

NOAA from augmenting safeguards for 

other resources not granted similar 

protections under other statutes. 

14. Comment: One commenter gave 

the following example: ‘‘Adoption of 

other statutory definitions creates a 

situation where NMFS could be 

required to formally consult with the 

ONMS in permitting or regulatory 

actions such as when issuing new 

regulations for resources protected 

under the ESA and MMPA.’’ The 

commenter stated that such an outcome 

appears to be contrary to the NMSA 

section 301(b)(2) which calls for 

‘‘coordinated conservation and 

management of [marine sanctuaries], 

and activities affecting them, in a 

manner which complements existing 

regulatory authorities.’’ 

Response: NOAA does not believe the 

incorporation of other definitions is 

duplicative or conflicting. NOAA 

currently cross references the ESA, 

MMPA, MBTA, and other statutes in the 

existing sanctuary regulations. NOAA 

believes that efficiency is increased by 

adopting other statutory actions, and 

achieves the directive under NMSA 

section 301(b)(2). Incorporation of other 

statutory definitions of ‘‘take’’ is 

unrelated to other federal agencies 

duties to consult with ONMS under 

NMSA section 304(d). NMSA section 

304(d) requires any federal agency 

(inclusive of other offices in NOAA) to 

consult with ONMS for actions that are 

likely to injure sanctuary resources. The 

regulatory definition of ‘‘injure’’ does 

not adopt by reference the other 

statutory definitions of ‘‘take.’’ 

15. Comment: In general, some 

commenters were concerned that 

adoption of terms ran a risk of these 

terms being used out of their original 

context and reasoning. For example, the 

commenters stated that apparently 

simple alterations to the definitions of 

‘‘injure,’’ ‘‘take or taking,’’ ‘‘harmful 

matter,’’ and ‘‘seabird’’ change 

standards and create cascading effects 

and considerable expansion of 

responsibilities. Commenters expressed 

concern that expanded responsibilities 

might lead to litigation against ONMS 

and proponent agencies. 

Response: As previously mentioned, 

in the existing sanctuary regulations, 

NOAA routinely cross references 

definitions as used in other statutes (see 

the existing definition of ‘‘take or 

taking’’ as set forth in 922.3). NOAA 

believes that referencing other statutes 

provides consistent terminology that 

benefits the public understanding and 

ability to comply with various Federal 

laws and regulations that overlap in one 

location. In addition, ONMS routinely 

works with partners on statutory and 

regulatory enforcement. These partners 

include the Fish and Wildlife Service 

(FWS), NMFS, the U.S. Coast Guard, the 

NPS, and state and local enforcement 

agencies. These partners have to 

reference different variations of 

definitions, and to correctly distinguish 

between them when issuing a citation. 

NOAA believes that adoption of 

uniform standards will help the many 

enforcement officers that use these 

definitions to more clearly and 

consistently identify violations, and 

should lead to greater overall protection 

of the resources under NOAA’s 

authority. 

As such, NOAA does not believe that 

the changes to definitions finalized in 

this action expand NOAA’s authority or 

create additional administrative or 

enforcement burden. However, in 

response to these concerns, NOAA has 

modified the definition of ‘‘injure or 

injury’’ to remove the phrase ‘‘or 

impairment of a sanctuary resource 

service.’’ NOAA has modified the 

definition of ‘‘take or taking’’ to ensure 

the existing scope of these definitions is 

not unintentionally expanded. 

Conventional Hook and Line Gear 

16. Comment: The definition of 

‘‘conventional hook and line gear’’ is too 

broad and appears to limit traditional 

fishing methods. For example, deepwater bottom fish hook and line gear 

includes branch lines with baited hooks 

and is a traditional fishing gear in 

Hawaii and other U.S. Pacific Islands, 

and in other areas fishers may use hook 

and line gear that include branch lines 

and baited hooks. The proposed 

definition does not include these 

methods, and also does not include 

vertical handline gear, vertical longline 

gear, shortlines, among others. 

Response: NOAA continues to believe 

that longline and shortline gear is not 

‘‘conventional hook and line gear’’ as 

the term is used in the existing sitespecific regulations for the Flower 

Garden Banks NMS, section 922.122. 

Additionally, none of the fishing 

activities in the Pacific Region 

mentioned by the commenter would be 

affected by the definition of this term 

because it only appears in the Flower 

Garden Banks NMS prohibition and 

does not appear in any other sitespecific regulations. If an activity is 

traditional fishing, then it is already 

included under the ‘‘traditional fishing’’ 

regulation, which is discussed further in 

the next comment. 

Traditional Fishing 

17. Comment: NOAA should not 

consolidate the term ‘‘traditional 

fishing’’ into a single definition. The 

commenters stated that under the 


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proposed definition, fishing conducted 

by Native Americans in sanctuaries on 

the West Coast, and by indigenous 

peoples in the American Samoa and 

Hawaiian Island Humpback Whale 

sanctuaries would not meet the 

definition of traditional fishing as many 

practices, some of which are only now 

being revitalized, are not identified in 

original sanctuary documents. 

Commenters suggested this was 

insensitive to indigenous cultures that 

have been fishing for thousands of years 

in areas that are now sanctuaries. The 

commenter states that furthermore, 

because the term is used only in the 

Florida Keys and Thunder Bay 

sanctuaries, it is not appropriate to 

apply this definition broadly to the 

entire sanctuary system. 

Response: NOAA appreciates the 

concerns raised by the commenters. 

Pursuant to E.O. 13175 Consultation 

and Coordination with Indian Tribal 

Governments, in 2012, NOAA also 

invited Federally-recognized Indian 

tribes in the state of Washington (in 

particular, the Hoh, Makah, and 

Quileute Indian tribes and the Quinault 

Indian Nation) to engage in 

consultation. After reviewing 

consultation feedback and public 

comments, NOAA has decided not to 

consolidate the definition of ‘‘traditional 

fishing.’’ The term ‘‘traditional fishing’’ 

as referenced in three sanctuaries 

(Florida Keys NMS, Thunder Bay NMS, 

and Stellwagen Bank NMS) will remain 

in their respective site-specific 

regulatory sections. 

Motorized Personal Watercraft (MPWC) 

18. Comment: Some commenters were 

concerned about the effort to 

standardize the definition of a 

motorized personal watercraft (MPWC). 

Although these commenters generally 

supported the creation of a standard 

definition of MPWC, the commenters 

revealed that consolidating the 

definition could create undesirable 

outcomes under the site-specific 

regulations for Channel Islands, Greater 

Farallones, Monterey Bay, and the 

Florida Keys and potentially expand the 

number and types of vessels that could 

be banned or restricted from operation 

in the Sanctuary System. Another 

commenter suggested that NOAA adopt 

the term ‘‘personal watercraft’’ instead 

of adopting ‘‘motorized personal 

watercraft.’’ 

Response: Having considered the 

comments provided on the proposal to 

consolidate the definition of MPWC and 

‘‘personal watercraft,’’ NOAA has 

determined that more time is needed to 

gather more information, engage 

stakeholders and the sanctuary advisory 

councils, develop alternative 

consolidated definitions of MPWC, and 

thoroughly evaluate the environmental 

impacts associated with said 

consolidated definitions. Therefore, 

NOAA has decided not to consolidate 

the definitions of MPWC or ‘‘personal 

watercraft’’ at this time. As a result, the 

existing definitions of MPWC set forth 

in 15 CFR 922.71 (Channel Islands 

NMS), 922.81 (Greater Farallones NMS), 

and 922.131 (Monterey Bay NMS), and 

the existing definition of ‘‘personal 

watercraft’’ in 922.162 (Florida Keys 

NMS) remain unchanged. 

Injure or Injury 

19. Comment: The commenters 

expressed concern that the proposed 

rule would expand the definition of 

‘‘injure’’ to include direct and indirect 

‘‘impairment of a sanctuary resource 

service.’’ The commenters were also 

concerned that the proposed change, if 

approved, would encompass short and 

long-term adverse changes to any 

chemical, biological or physical 

attribute or viability of a sanctuary 

resource and would not be limited to 

acts that cause loss or destruction. 

Commenters stated that this expanded 

definition of ‘‘injury’’ has been 

considered and rejected by Congress in 

past efforts to reauthorize the NMSA, 

and maintained that this is a broadening 

of the definition rather than a mere 

updating, as NOAA has indicated in the 

proposed rule. The commenters state 

that the proposal substantially enlarges 

the category of effects that constitute 

injury, and would change the type of 

cases or expand the pool of potential 

violations that are likely to be issued 

using this definition. Lastly, the 

commenters stated that while it is likely 

obvious to members of the public what 

it is to cause loss or outright destruction 

of a sanctuary resource, is it not clear 

what might constitute ‘‘indirect’’ injury. 

Another commenter noted that the 

phrase ‘‘or the impairment of a 

sanctuary resource service’’ is 

redundant and leads to confusion. The 

commenter stated that if a ‘‘resource 

service’’ is a function performed by a 

sanctuary resource for the benefit of 

another sanctuary resource or the 

public, then impairment to that 

sanctuary resource’s function would 

already constitute an injury to the 

resource itself. The commenter argues 

that an injury to the resource itself is 

already covered by the existing 

definition. 

Response: In response to comments, 

NOAA will update the existing 

definition of ‘‘injure’’ to include ‘‘injury 

’’ and move the definition from 15 CFR 

922.3 to 15 CFR 922.11. Additionally, 

NOAA is no longer including the phrase 

‘‘or impairment of a sanctuary resource 

service’’ found in the proposed 

definition of ‘‘injury.’’ The updated 

definition will read as follows: 

Injure or injury means to change 

adversely, either in the short or long 

term, a chemical, biological or physical 

attribute of, or the viability of. This 

includes, but is not limited to, to cause 

the loss of or destroy. 

NOAA acknowledges potential 

confusion created by the insertion of the 

term ‘‘impairment of a sanctuary 

resource service’’ in the first sentence of 

the proposed definition of ‘‘injure.’’ 

With that stated, NOAA’s proposed 

definition would not have expanded the 

definition of injury. NOAA merely 

attempted to clarify and codify existing 

statutory language and interpretation. 

The term ‘‘injure’’ is not limited to 

acts that cause the loss of, or destroy. 

The statutory prohibition found in 

NMSA section 306 establishes that it is 

unlawful to ‘‘destroy, cause the loss of, 

or injure any sanctuary resource.’’ In 

adopting this language, Congress makes 

clear that ‘‘injure’’ is distinct, and not 

limited to, acts that ‘‘destroy’’ or ‘‘cause 

the loss of’’ a resource. The plain 

language reading of the term ‘‘injure’’ 

includes to ‘‘impair the soundness of’’ 

(https://www.merriam-webster.com/ 

dictionary/injure). 

The inclusion of ‘‘impairment of a 

sanctuary resource service’’ is consistent 

with the statutory purpose of the 

NMSA, which establishes a National 

Marine Sanctuary System to ‘‘maintain 

for future generations the habitat, and 

ecological services’’ of the living 

resources in the sanctuaries, 16 U.S.C. 

1431(a)(4), and the definition of 

‘‘damage,’’ 16 U.S.C. 1432(6), which 

recognizes ‘‘lost use of a sanctuary 

resource’’ as being compensable. 

Additionally, the existing definition 

of injury codified at 15 CFR 922.3 

already establishes that ‘‘injure means to 

change adversely, in the short and long 

term, a chemical, biological, or physical 

attribute of, or viability of. This 

includes, but is not limited to, to cause 

the loss of or destroy.’’ Therefore, 

NOAA has not broadened the definition 

of ‘‘injury’’ to encompass ‘‘short and 

long term adverse changes to any 

chemical, biological or physical 

attribute or viability of a sanctuary 

resource.’’ The use of the phrase 

‘‘impairment of a sanctuary resource 

service’’ would have served as another 

example of what ‘‘to change adversely’’ 

means. 

While NOAA has decided to remove 

this phrase ‘‘impairment to a sanctuary 

resource service’’ from the proposed 

definition of injury, NOAA will 


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continue to work with agency partners 

and stakeholders to help them better 

understand the definition. 

Sanctuary Resource 

20. Comment: NOAA should modify 

the definition of ‘‘sanctuary resource’’ to 

incorporate the phrase, ‘‘or parts or 

products thereof’’ after ‘‘any living or 

non-living resource of a national marine 

sanctuary.’’ 

Response: ONMS agrees with this 

comment and has incorporated the 

phrase into the definition. 

21. Comment: Some commenters 

believe that: ‘‘fishery resources’’ should 

be specifically excluded from the 

definition of ‘‘sanctuary resources.’’ 

Response: NOAA maintains that fish 

and fisheries resources are some of the 

most significant resources in many 

sanctuaries, and as such, are appropriate 

for inclusion in the definition of 

‘‘sanctuary resources.’’ In addition, 

inclusion of these resources as 

‘‘sanctuary resources’’ is consistent with 

NMSA which contemplates fisheries 

regulation within the scope of NMSA 

regulatory authority (see 16 U.S.C. 

1434(a)(5)). 

22. Comment: Commenters were 

concerned that the inclusion of the 

seemingly innocuous phrase ‘‘any living 

or non-living resource of a national 

marine sanctuary’’ could have 

unintended consequences as animals 

and resources that may only pass 

through a sanctuary would now become 

a sanctuary resource. Excluding the 

phrase ‘‘or parts or products thereof’’ 

does not diminish or undermine 

protection for sanctuary resources that 

may be ‘‘dismembered and removed.’’ 

Response: The phrase ‘‘any living or 

non-living resource of a national marine 

sanctuary’’ is contained in the NMSA 

under the definitions at section 302(8). 

Therefore, excluding this phrase from 

the regulatory definition would be 

inconsistent with the NMSA. Since 

dead animals are captured in the phrase 

‘‘living or non-living,’’ NOAA includes 

the phrase ‘‘parts thereof’’ in the 

regulatory text. This is consistent with 

the approach taken by other federal 

agencies, such as FWS, NMFS, and NPS. 

A sanctuary resource needs only to 

contribute to the value of a sanctuary to 

be considered a ‘‘sanctuary resource.’’ 

Specifically, the NMSA states (16 U.S.C 

1432(8)) ‘‘sanctuary resource means any 

living or nonliving resource of a 

national marine sanctuary that 

contributes to the conservation, 

recreational, ecological, historical, 

educational, cultural, archeological, 

scientific, or aesthetic value of the 

sanctuary.’’ Therefore, a sanctuary 

resource may also be transitory. 

Take or Taking 

23. Comment: Several commenters 

expressed concerns about the revision of 

the definition of the term ‘‘take or 

taking.’’ Commenters stated that the 

term ‘‘take’’ could have a very low 

threshold for what activities could cause 

take (i.e., Level A and B harassment for 

incidental take pursuant to the MMPA). 

Commenters also stated that ‘‘take’’ as 

defined in regulations implementing the 

ESA and MBTA are more direct and 

obvious acts which ‘‘actually kills or 

injures wildlife’’ (in the case of species 

protected under the ESA); and ‘‘hunting, 

taking, capture, killing possession, sale, 

transportation of any . . . bird, or part, 

nest or egg’’ (in the case of birds 

protected under the MBTA). The 

apparent differences of definitions and 

applications of ‘‘take’’ standards 

concerned some commenters. 

Commenters stated that absent a clear 

indication of how NOAA’s Office of 

Law Enforcement would interpret an 

expanded definition, the proposal does 

not provide the public with transparent 

and fair warning. 

Response: NOAA asserts that, by 

adopting these statutes by reference, the 

revised definition improves clarity and 

consistency with the ESA, MMPA, and 

MBTA and does not change the 

threshold for take. Both the ESA and 

MMPA apply to incidental and direct 

takes and include both physical injury 

and behavioral harassment (see 

response to comment 14). NOAA 

believes that adopting other statutes by 

reference ensures consistency should 

either those statutes or their 

implementing regulations be modified. 

NOAA has determined that applying 

the definition to other sanctuary 

resources as originally proposed could 

be interpreted as expanding the 

applicable scope of take or taking in 

certain site-specific sanctuary 

regulations. As such, NOAA has 

decided not to apply the ‘‘take’’ 

definition to other sanctuary resources. 

Accordingly, the finalized definition is 

limited to marine mammals, sea turtles, 

and birds. NOAA also added additional 

language to capture a previously 

omitted phrase to ensure that there is no 

substantive difference between the 

previous definition and the definition 

established in this rule. The 

inadvertently omitted phrase ‘‘to tag any 

sea turtle, marine mammal, and bird’’ is 

also included in the definition of 

‘‘take’’. 

24. Comment: Some commenters also 

stated that instead of being a 

clarification, the proposed definition of 

‘‘take or taking’’ would expand the 

scope of the regulation beyond the 

authority of the NMSA. They said the 

proposed definition goes too far because 

some of the actions listed in the 

proposed fourth provision of the new 

definition (i.e., applying the take 

definition to other sanctuary resources) 

do not rise to the level of destruction, 

loss, or injury. Commenters stated that, 

when combined with existing sitespecific regulations prohibiting ‘‘take,’’ 

the new definition would extend 

greater-than ESA-, MMPA-, and MBTAlevel protections to resources not 

entitled to that level of protection under 

the NMSA (which prohibits destruction, 

loss, or injury). Some commenters 

expressed concern about the impact 

these changes would have on 

recreational fishing, which removes a 

species from a sanctuary’s waters. They 

questioned if fishing and fish that are 

released but subsequently die would be 

considered a take. Some commenters 

asserted that NOAA proposed the ‘‘take 

or taking’’ definition changes as a means 

of reducing human activity wherever 

possible. They assert this was missioncreep and protectionism that is counter 

to the ‘‘wise multiple use’’ concept 

promised to secure fishermen’s support 

for sanctuary creation. 

Response: NOAA does not finalize the 

proposed fourth provision related to 

take of other sanctuary resources. 

Consistent with the original definition 

of ‘‘take or taking,’’ NOAA limits the 

applicability of the definition to ‘‘take 

(taking or taken) of a marine mammal, 

sea turtle or bird.’’ NOAA also includes 

the provision ‘‘take also includes, but is 

not limited to, collection of any dead or 

injured marine mammal, sea turtle, or 

bird, or any part thereof; or restraint or 

detainment of any marine mammal, sea 

turtle, or bird, no matter how 

temporarily; tagging any marine 

mammal, sea turtle, or bird; or operating 

a vessel or aircraft or conduct any other 

act that results in the disturbance or 

molestation of any marine mammal, sea 

turtle, or bird.’’ This retains certain 

aspects of the original definition that 

were omitted from the proposed rule. 

While the general definition of take 

applies to classes of resources protected 

under the ESA, MMPA, or MBTA, some 

site-specific regulations prohibit ‘‘take’’ 

of other sanctuary resources. For other 

site-specific regulations that prohibit 

take of other living or non-living 

sanctuary resources beyond the classes 

of resources protected under the ESA, 

MMPA, or MBTA, the plain meaning of 

the term ‘‘take (taking or taken)’’ will 

continue to apply. For a discussion of 

the interrelationship between ‘‘take’’ 

and ‘‘injury’’ (see comment response 

14). 


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25. Comment: One commenter also 

expressed concerns that two new terms 

‘‘disturbance’’ and ‘‘molestation’’ were 

introduced in the fourth provision of the 

proposed definition. Commenters said 

these appear to describe a new legal 

standard that was not identified as a 

level or threshold of expected protection 

and are undefined in the proposed 

regulation. They stated these terms are 

subject to divergent interpretation, 

create ambiguity, and are more 

restrictive than even the lowest levels of 

protection identified in other resource 

protection statutes. 

Response: As discussed above, NOAA 

removes the fourth provision from the 

definition of take established in this 

rule. The terms ‘‘disturbance’’ and 

‘‘molestation’’ were already included in 

the original definition of ‘‘take or 

taking,’’ which states that take also 

includes, but is not limited to operating 

a vessel or aircraft or conducting ‘‘any 

other act that results in the disturbance 

or molestation of any marine mammal, 

sea turtle, or bird.’’ NOAA is retaining 

that provision in the final definition as 

to not substantively change the 

definition. 

Harmful Matter 

26. Comment: Commenters were 

concerned the proposed change was 

overbroad and left the door open for 

regulating any and all substances and 

discharges currently regulated by the 

Clean Water Act (CWA) and the Clean 

Air Act (CAA). Commenters suggested 

that the term should be substantially 

narrowed to a discrete and discernible 

list of substances known to present a 

substantial threat to the sanctuary 

resources identified in the NMSA. 

Response: NOAA understands the 

broad scope nature of the revised term, 

but due to the unique characteristics of 

each site, a single list of applicable 

substances is not appropriate. The 

intent of the clarification is mainly for 

prevention of harmful chemicals from 

entering sanctuaries, which are already 

prohibited in many cases. The 

definition of harmful matter includes 

those contaminants identified as 

hazardous substances pursuant to the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) (as designated at 40 CFR 

302.4). The intent of reference to the 

CERCLA regulatory definition of 

hazardous substances in the definition 

of harmful matter is to ensure that any 

subsequent updates to the CERCLA list 

at 40 CFR 302.4(a), or other definitional 

changes, are automatically included 

within the NMSA regulatory definition 

of harmful matter. NOAA is aware, and 

believes it appropriate, that substances 

and discharges currently regulated by 

the CWA and the CAA may also be 

‘‘harmful matter’’ pursuant to the NMSA 

regulatory definition. 

27. Comment: There was concern that 

the proposed definition of ‘‘harmful 

matter’’ would encompass the release of 

military expended materials within a 

sanctuary in the course of conducting 

training activities, and would 

substantially alter existing protections 

for military readiness activities. 

Commenters claim that the release of 

military expended materials is 

purposeful and is not debris, should not 

be considered a harmful matter across 

all sanctuaries, and regulation of these 

materials should not be expanded. 

Response: NOAA’s changes to the 

definition of the term ‘‘harmful matter’’ 

are limited to technical revisions that 

improve readability and do not 

substantively affect its application in 

the regulations. The revised definition 

also would not revise any existing 

exemptions for military activities that 

are currently contained in the existing 

site-specific regulations. 

Substituting ‘‘Bird’’ for ‘‘Seabird’’ 

28. Comment: Commenters expressed 

concern that substitution of the term 

‘‘bird’’ for ‘‘seabird’’ expands the 

statutory protection for all birds that 

transit through a sanctuary, under the 

theory that even temporary presence or 

transits make the birds a sanctuary 

resource. Commenters stated that this 

change would impermissibly enlarge the 

scope of the regulation beyond that 

authorized by the NMSA, which they 

believe only includes discrete areas of 

the marine environment. Commenters 

continued that seabirds are those 

adapted to life in the marine 

environment and routinely use 

sanctuary resource services for survival 

and arguably fit the statutory definition 

of a sanctuary resource. However, other 

migratory birds which temporarily 

transit through airspace over the 

sanctuary, are not adapted to the marine 

environment, or do not depend on the 

marine environment during their life 

cycle, do not fit the definition and 

should not be included. 

Response: The NMSA focuses upon 

protecting sanctuary resources, and 

authorizes the Secretary to regulate 

activities—both inside and, and in some 

cases, outside of a sanctuary—that affect 

sanctuary resources within a sanctuary. 

This authority was clarified in 1992 

with the enactment of the prohibitions 

found at section 306 of the Act (which 

was discussed in the accompanying 

legislative history at H.R. Rep. 102–565, 

§ 7 (Jun. 15, 1992)). Based upon this 

authority, sanctuaries have promulgated 

a variety of regulations that not only 

regulate activities that occur in 

sanctuaries, but also in limited cases, 

regulate some activities that occur 

outside a sanctuary, because they may 

impact sanctuary resources within 

sanctuary boundaries (e.g., discharges 

that are released outside of a sanctuary), 

or over a sanctuary (e.g., overflights on 

the west coast). 

The intent of this regulatory action is 

to remove inconsistencies and 

redundancies. In four sanctuaries 

(discussed in the preamble section 

II.C.1.e.2 above), prohibitions already 

regulate birds rather than limiting the 

class of protected animals to ‘‘seabirds.’’ 

In addition, the existing regulatory 

prohibitions already adopt by reference 

the list of protected species under the 

MBTA (listed at 50 CFR 10.13), which 

does not distinguish between a seabird 

and non-seabird. Therefore, NOAA 

continues to believe this action clarifies 

the term for the purposes of E.O. 13563, 

and NOAA has the requisite legal 

authority to promulgate the amended 

regulation. 

Oceangoing Ship 

29. Comment: Moving the definition 

of oceangoing ship—currently found 

only in existing subpart G, Channel 

Islands NMS—to the program-wide 

regulation, should reflect that 

prohibitions and other restrictions for 

oceangoing ships do not apply to 

Department of Defense activities (as 

explicitly stated in subpart G, section 

922.72(b)). Balancing national security 

and protection of important marine 

resources is best done where restrictions 

contemplated for public vessels are 

tailored to each sanctuary. However, the 

commenter agreed that subpart G can be 

hard to follow or can be misconstrued, 

and recommended that, consistent with 

the effort to streamline and improve 

organization, if the definition was 

moved as proposed, that ‘‘military 

vessels’’ should be removed from the 

definition. 

Response: NOAA has withdrawn this 

proposed action from this rule. 

30. Comment: One commenter 

applauded the efforts of ONMS, but 

opposed moving the definition of 

‘‘oceangoing ship.’’ They contended that 

ships and vessels that: (1) Never leave 

the Great Lakes; (2) are generally too 

large to exit the Great Lakes via the 

Welland Canal and St. Lawrence 

Seaway; and (3) are by law forbidden to 

operate on the oceans would be defined 

as an ‘‘oceangoing ship.’’ Therefore, 

ONMS should not move the definition 

of ‘‘oceangoing ship’’ from its current 

location in the regulations unless an 

exception is inserted in the definition as 


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to ships operated exclusively on the 

Great Lakes, comparable to the Note in 

33 CFR 151.05. 

Response: NOAA has withdrawn this 

proposed action from this rule. 

Permits 

Consolidation to Subpart D 

31. Comment: The Makah Tribe did 

not object to moving the tribal selfdetermination permit category to 

subpart D because there would be no 

operative change in the application of 

the provision within Olympic Coast 

NMS. However, the Tribe requested that 

NOAA further clarify that the relocation 

of the permit category does not change 

the intent or the application of this 

provision. 

Response: NOAA’s explanation in the 

proposed rule preamble did attempt to 

explain that the tribal self-determination 

permit category was moved without 

change. In response to comments from 

the Makah Tribe, NOAA has provided 

additional clarification in the preamble 

to this interim final rule to confirm that 

the no substantive change to the tribal 

self-determination permit category will 

result from this move to subpart D. 

32. Comment: The Makah believe that 

the Tribe should be afforded an 

opportunity to review any permit 

application for activities within or that 

have the potential to affect the Makah 

Usual and Accustomed area and consult 

with the Olympic Coast NMS. 

Response: Olympic Coast NMS and 

the Makah Tribe engaged in 

government-to-government consultation 

on this issue and jointly developed a 

Protocol for Permit Consultation that 

specifies the procedures by which 

consultation and coordinated 

communication will occur between the 

Makah Tribe and the Olympic Coast 

NMS staff. The sanctuary staff and tribal 

representatives meet periodically to 

engage in consultation on ONMS permit 

applications, the results of which are 

included in ONMS permit decision 

documents. In addition, the Makah 

Tribe and ONMS developed a protocol 

to engage in consultation as part of the 

NMSA section 304(d) interagency 

consultation process and have 

implemented it in two recent sanctuary 

consultations. Olympic Coast NMS 

regularly engages with the Washington 

Coast treaty tribes on various initiatives 

of mutual interest. 

33. Comment: The commenter 

indicates that the preamble for this 

action should clarify that the regulations 

do not limit the ability of sanctuaries to 

create site-specific permit categories. 

The commenter also believes that the 

review criteria for permits and 

authorizations need to be clarified. 

Response: NOAA has explained in the 

preamble of this rule that consolidating 

permit categories and criteria into 

subpart D does not prevent NOAA from 

creating or amending permit categories 

that would only apply to a particular 

sanctuary. 

NOAA consolidates permit review 

criteria into subpart D to improve 

consistency and clarity. The list of 

permit review factors or criteria 

considered by the Director was not 

consistent across the sanctuary sitespecific regulations, nor was the 

regulatory text for the factors or criteria 

consistent. The sanctuary site-specific 

regulations also varied on whether the 

factors or criteria were affirmative 

findings that shall be met or whether 

they were simply considerations in 

making permit decisions. To achieve 

greater consistency, NOAA establishes a 

single list of nine review criteria and 

publishes it in subpart D. Eight criteria 

are applicable to all sanctuaries, while 

one is unique to Olympic Coast NMS 

(the activity as proposed shall not 

adversely affect Washington Coast treaty 

tribes). NOAA also eliminates sitespecific impact thresholds for permit 

issuance in favor of making the review 

criteria affirmative findings. The 

Director must still determine whether 

any additional site-specific review 

procedures or criteria were met prior to 

issuing a permit. The regulation on 

authorizations in paragraph 922.36(c)(2) 

establishes that the permit review 

criteria set forth in 922.33(a) must also 

be considered by the Director when 

making decisions on authorizations. 

34. Comment: NOAA should clearly 

identify the process by which the 

ONMS Director can issue a special use 

permit. Specifically, NOAA should 

clarify what the public comment 

process is and whether the requirements 

of the National Environmental Policy 

Act (NEPA) are required. 

Response: NMSA section 310 

establishes the authority for ONMS to 

issue special use permits and requires 

the Secretary to provide appropriate 

public notice before identifying any 

category of activity subject to a special 

use permit. For established special use 

permit categories. For established 

special use permit categories the process 

for applying for special use permits and 

general permits are similar. Permit 

application and instructions can be 

found at https://sanctuaries.noaa.gov/ 

management/permits/. Special use 

permits must additionally meet 

requirements set forth in NMSA section 

310. The Director evaluates all activities 

that may require a permit in accordance 

with statutory and regulatory 

requirements. Permit decisions are 

federal actions that require compliance 

with NEPA and any applicable 

interagency or tribal consultations. 

Public comment is not required for the 

issuance of any ONMS general or 

special use permit. However, NOAA 

may choose to seek public comment as 

part of the NEPA process. 

35. Comment: NOAA should not 

allow the ONMS Director the authority 

to provide an authorization to allow an 

otherwise lawful activity that includes 

mandatory terms and conditions. NOAA 

should also explain the process the 

ONMS Director would use to establish 

terms and conditions and further 

explain how the public is involved in 

this process. 

Response: This rule does not change 

the authority of the ONMS Director to 

authorize a person to conduct an 

activity otherwise prohibited by 

subparts L through P or subparts R 

through S, if such activity is specifically 

allowed by any valid federal, state, or 

local lease, permit, license, approval, or 

other authorization. The authority for 

the ONMS Director to establish 

mandatory terms and conditions for 

authorizations has already been 

established in section 922.49(a)(4). 

Public comment is not required for the 

issuance of any ONMS permit, except as 

may be done as part of an 

environmental analysis completed for 

the purposes of NEPA. 

Other Topics 

Effective Date of Regulations 

36. Comment: The proposed rule and 

discussion do not explain how changes 

to the regulations will impact ongoing 

actions by federal agencies and actions 

proposed but not yet approved by action 

proponents before the effective date of 

these regulation changes. 

Response: Because the changes that 

are finalized with this action are 

administrative and technical in nature, 

and because no prohibitions were 

proposed, NOAA does not anticipate 

that the changes will have any impact 

on existing federal agency actions. 

There are several ONMS regulatory 

actions underway and ONMS intends to 

harmonize those regulations with this 

rule. 

37. Comment: NOAA should state that 

ongoing actions by federal agencies and 

those federal agency actions proposed 

before the effective date of these 

regulatory changes will not require 

amendment or consultation in 

accordance with the new regulations. 

Response: NOAA is not making any 

substantive change to any prohibitions 


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through this action. Therefore, NOAA 

does not anticipate any issues arising 

from the timing of this rule and 

activities currently conducted or 

proposed by federal agencies. 

Comments on Topics Not Affected by 

This Rulemaking 

NOAA received several additional 

comments, as described below, that it 

does not address in this rule as the 

comments pertain to matters that are 

beyond the scope of, and are not 

relevant to, this rulemaking. 

38. Comment: There are competing 

management jurisdictions between the 

NMSA and the MSFCMA when it comes 

to fishing regulations, with unnecessary 

duplication of bureaucracy and its 

related costs. The root cause of the 

specific problem appears in section 304 

of the NMSA whereby RFMCs are 

afforded the opportunity to prepare 

draft regulations using the MSA as 

guidance only ‘‘to the extent that the 

standards are consistent and compatible 

with the goals and objectives’’ and only 

during the sanctuary designation 

process. 

Response: The intent of this rulemaking is to update and reorganize the 

existing regulations, eliminate 

redundancies across the sanctuary 

regulations, eliminate outmoded 

regulations, adopt standard boundary 

descriptions, and consolidate general 

regulations and permitting procedures. 

The concerns raised by this comment, 

regarding the development of fishing 

regulations pursuant to section 304 of 

the NMSA, are best addressed by 

Congress through a separate process and 

are beyond the scope of this action. 

Therefore, no changes are being made to 

address the commenter’s concerns. 

39. Comment: All fisheries 

management should be vested in the 

RFMC process rather than in ONMS or 

individual sanctuaries. 

Response: The intent of this 

rulemaking is to update and reorganize 

the existing regulations, eliminate 

redundancies across the sanctuary 

regulations, eliminate outmoded 

regulations, adopt standard boundary 

descriptions, and consolidate general 

regulations and permitting procedures. 

The concerns raised by this comment 

suggests changes be made to all 

sanctuary regulation relevant to the 

management of fisheries activities and 

are beyond the scope of this rulemaking. 

Therefore, no changes are being made to 

address the commenter’s concerns. 

40. Comment: One commenter wanted 

to know if the public could petition 

NOAA to eliminate or reduce the size of 

a sanctuary, and what process would 

NOAA follow in considering such a 

petition. 

Response: Any modification to the 

geographic area of an existing sanctuary 

would be governed by section 304 of the 

NMSA and section 4 of the 

Administrative Procedure Act. No 

changes are being made in response to 

this comment. 

41. Comment: NOAA should consider 

changes to Charters and Protocols for 

sanctuary advisory councils (SACs). 

Currently, all of the functions of the 

SACs (e.g. member appointments, 

agendas, communications) are 

controlled by sanctuary management. 

The greatest strength of the sanctuaries 

comes from community and stakeholder 

support, and the structure of SAC 

governance works against achieving that 

support. 

Response: The comment proposes 

changes to SAC governing procedures. 

The intent of this rulemaking is to 

update and reorganize the existing 

regulations, eliminate redundancies 

across the sanctuary regulations, 

eliminate outmoded regulations, adopt 

standard boundary descriptions, and 

consolidate general regulations and 

permitting procedures. Significantly 

changing SAC governance is outside the 

scope of this rulemaking. Therefore, no 

changes are being made to address the 

commenter’s concerns. 

42. Comment: Sanctuaries should be 

tasked explicitly to utilize a robust and 

transparent peer review process for 

science products, including 

socioeconomic evaluations, in sanctuary 

decision-making. 

Response: ONMS makes sanctuary 

decisions in an open and transparent 

manner guided by the best scientific 

information and data available, 

employing sound methods to ensure 

scientific quality, objectivity, and 

integrity, and utilizing—where 

appropriate—peer review panels to 

ensure sanctuary decisions are informed 

by independent and diverse viewpoints 

in accordance with the Information 

Quality Act (Pub. L. 106–554), the 

Foundations for Evidence-Based 

Policymaking Act of 2018 (Pub. L. 115– 

435), and related-guidance issued by the 

Office of Management and Budget 

(OMB), the U.S. Department of 

Commerce (DOC), and NOAA. In doing 

so, ONMS follows OMB and NOAA 

policy on peer review for science 

products, including socioeconomic 

evaluations (https://www.noaa.gov/ 

organization/information-technology/ 

peer-review-plans and https://

www.noaa.gov/office-of-chiefinformation-officer/it-policy-oversight/ 

information-quality). A 2004 OMB 

memo describes how peer review 

enhances the quality and credibility of 

science products (https://

www.cio.noaa.gov/services_programs/ 

pdfs/OMB_Peer_Review_Bulletin_m05- 

03.pdf). More information on the ONMS 

conservation science division is 

available on our website, https://

sanctuaries.noaa.gov/science/. The 

intent of this rulemaking is to clarify 

existing sanctuary regulations. Adding 

an explicit science policy requirement 

to this rule would be outside its intent 

and scope. Therefore, no changes are 

being made to address the commenter’s 

concerns. 

43. Comment: NOAA should provide 

clarification in the regulations that 

permitting and authorizations do not 

apply to federal agency activities 

including Navy testing, training, or 

military readiness activities conducted 

in or around sanctuaries. 

Response: NOAA believes the 

requested clarification is unnecessary in 

this rulemaking. The existing sitespecific regulations adequately provide 

certain exemptions to the list of 

prohibited or otherwise regulated 

activities at each sanctuary site. For 

instance, the Department of Defense 

(DoD) exemptions for Channel Islands 

NMS are set forth at section 922.72(b), 

those for Greater Farallones are set forth 

at section 922.82(b), and those for Gray’s 

Reef NMS are set forth at section 

922.92(b). The site-specific regulations 

also provide exemptions for law 

enforcement and any activity necessary 

to respond to an emergency threatening 

life, property, or the environment, 

which might be carried out by a federal 

agency. Exemptions of this type are 

unique to each specific sanctuary. 

Providing a general exemption for all 

federal agency activities would be a 

substantive expansion of the existing 

site- specific exemptions and beyond 

the scope of this rulemaking. Therefore, 

no changes are being made in this 

rulemaking to address the commenter’s 

concerns. 

44. Comment: Under the definitions 

of sanctuary resources, the culture and 

heritage of fishing in coastal 

communities alongside national marine 

sanctuaries should be considered for 

protections just as are other living 

resources and habitats. 

Response: NOAA does not believe 

that changes to the definition of 

sanctuary resources are appropriate. 

Human uses are taken into 

consideration as part of the sanctuary 

designation and periodic management 

plan review processes performed under 

NMSA sections 303 and 304, and NEPA. 

Therefore, no changes are being made to 

address the commenter’s concerns. 


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1 In 1978, the White House Council on 

Environmental Quality (CEQ) issued regulations, 

codified at 40 CFR parts 1500–1508, to implement 

NEPA. 43 FR 55.977 (Nov. 29, 1978). Most recently, 

the CEQ updated the NEPA regulations. 85 FR 

43,304 (Jul. 16, 2020) (codified at 40 C.F.R parts 

1500–1508, 1515–1518). Pursuant to those updated 

NEPA regulations, NEPA reviews initiated prior to 

September 14, 2020 may be conducted using the 

1978 version of the regulations. The effective date 

of the 2020 CEQ NEPA Regulations was September 

14, 2020. This review began before January 13, 2013 

and the agency has decided to proceed under the 

1978 regulations. 

V. Classification 

A. National Environmental Policy Act 1

NOAA Administrative Order (NAO) 

216–6A and the Companion Manual for 

NAO 216–6A (https://

www.nepa.noaa.gov/docs/NOAA-NAO216-6A-Companion-Manual01132017.pdf) establish NOAA’s policy 

and procedures for compliance with 

NEPA and the associated Council on 

Environmental Quality’s regulations. 

NAO 216–6A, Environmental Review 

Procedures, requires all proposed 

actions to be reviewed with respect to 

environmental consequences on the 

human environment. 

In the proposed rule (78 FR 5998; 

January 28, 2013), NOAA stated that it 

was preparing a draft EA to analyze the 

potential environmental impacts of the 

proposed rulemaking and that the draft 

EA would be released for public 

comment. The analysis in the draft EA 

would have focused on analyzing the 

potential environmental impacts of the 

consolidated definition of MPWC. Based 

on public comment received on the 

proposed rule, NOAA decided to 

withdraw the proposal to consolidate 

the MPWC definition. As a result, 

NOAA determined that preparation of a 

draft EA was not necessary for this rule. 

NOAA determined that because the rule 

includes only technical and 

administrative changes to regulatory 

text it meets the definition in Appendix 

E of the NOAA NEPA Companion 

Manual under categorical exclusion 

reference number G7 ‘‘Preparation of 

policy directives, rules, regulations, and 

guidelines of an administrative, 

financial, legal, technical, or procedural 

nature, or for which the environmental 

effects are too broad, speculative or 

conjectural to lend themselves to 

meaningful analysis and will be subject 

later to the NEPA process, either 

collectively or on a case-by-case basis.’’ 

In considering the list of extraordinary 

circumstances, NOAA determined that 

none would be triggered by this final 

rule. Therefore, NOAA determined that 

this rule would not result in significant 

effects to the human environment and is 

categorically excluded from the need to 

prepare an EA. 

B. Executive Orders 12866 and 13563 

This rule has been determined to be 

significant within the meaning of 

Executive Order 12866. The rule is part 

of NOAA’s effort to carry out the 

directive under Executive Order 13563 

for retrospective regulatory review. 

C. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Pursuant to Executive Order 13175, 

NOAA has an obligation to consult with 

federally-recognized tribes on actions 

that may have tribal implications. 

NOAA determined that the amendments 

to the Olympic Coast NMS permitting 

regulations in the consolidation of 

permit procedures and review criteria 

into the new subpart D, although not 

resulting in a substantive change to 

permitting requirements, could be 

perceived as having tribal implications 

because some of the regulatory text is 

specific to the federally-recognized 

tribes along the Washington Coast 

(Coastal Treaty Tribes). Therefore, we 

have determined that this regulation has 

tribal implications as defined in 

Executive Order 13175. NOAA certifies 

that this final rule was developed after 

meaningful consultation and 

collaboration with tribal representatives 

in accordance with Executive Order 

13175. NOAA engaged in governmentto-government consultation with tribal 

representatives from the Makah, Hoh 

and Quileute Indian Tribes and the 

Quinault Indian Nation of the Olympic 

Coast Intergovernmental Policy Council 

(IPC). NOAA determined that this 

regulatory action did not have 

implications for any other federallyrecognized tribes at other sites. 

In January 2012, NOAA initiated a 

dialogue with the Coastal Treaty Tribes 

for a potential rulemaking action that 

would revise and consolidate programwide and site-specific regulations. 

ONMS staff presented initial items for 

consideration by the IPC and its 

members at a February 8, 2012 meeting. 

In May 2012, NOAA addressed initial 

concerns that were raised at the 

February meeting. At that time, NOAA 

provided a summary of the proposed 

regulatory changes, and invited the IPC 

members to consult if there were 

concerns about the general proposals. In 

October 2012, NOAA provided more 

detailed information including prerelease draft regulatory language for 

program-wide regulations and Olympic 

Coast NMS site-specific regulations that 

could be of interest to the tribes. After 

the proposed rule was published in the 

Federal Register, NOAA forwarded the 

notice to the Washington Coast treaty 

tribes on February 15, 2013. 

The Makah Tribe provided comments 

on the rulemaking raising three priority 

issues. In addition to the matter noted 

in the Response to Comment section of 

this action, the Makah Tribe reiterated 

its long-standing position about the role 

of RFMCs in fisheries management, 

which did not require action in this 

rulemaking. The Makah Tribe also 

expressed interest in improved tribal 

involvement in the consideration of 

Olympic Coast NMS permit 

applications. Since the publication of 

this proposed rule, Olympic Coast NMS 

and the Makah Tribe engaged in 

government-to-government consultation 

in the development of a joint ‘‘Protocol 

for Permit Consultation’’ that specifies 

the procedures by which consultation 

and coordinated communication will 

occur between the Makah Tribe and 

Olympic Coast NMS staff (dated April 

10, 2015). The sanctuary staff and tribal 

representatives meet periodically to 

engage in permit consultations on 

ONMS permit applications, and the 

results of which are included in ONMS 

permit decision documents. In addition, 

the Makah Tribe and ONMS developed 

a protocol to engage in consultation as 

part of the NMSA section 304(d) 

interagency consultation process and 

have implemented it in two recent 

sanctuary consultations. Olympic Coast 

NMS regularly engages with the 

Washington Coast treaty tribes on 

various initiatives of mutual interest. 

D. Executive Order 13132: Federalism 

Assessment 

NOAA has concluded this regulatory 

action does not have federalism 

implications sufficient to warrant 

preparation of a federalism assessment 

under Executive Order 13132. 

E. Paperwork Reduction Act 

This rule does not create any new 

information collection requirements, 

nor does it change existing information 

collection requirements approved by 

OMB (OMB Control Number 0648– 

0141) under the Paperwork Reduction 

Act of 1980, 44 U.S.C. 3501 et seq. 

(PRA). There are no changes to the 

reporting burden as a result of these 

regulatory changes. Notwithstanding 

any other provision of the law, no 

person is required to respond to, nor 

shall any person be subject to a penalty 

for failure to comply with, a collection 

of information subject to the 

requirements of the PRA, unless that 

collection of information displays a 

currently valid OMB Control Number. 


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1Based on the legislative history of the NMSA, 

NOAA has long interpreted the text of 16 U.S.C. 

1435(a) as encompassing international law, 

including customary international law. 

F. Regulatory Flexibility Act 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration (SBA) 

that this final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The factual basis for this certification is 

that the changes are administrative in 

nature and generally would not alter 

substantive legal obligations for the 

regulated community. Specifically: 

• Moving current sections of the 

regulations to different subparts and 

revising text as finalized in this rule will 

not substantively change the effect or 

impact of the regulations; 

• Making the technical corrections to 

citations and obsolete sections of the 

regulations in this rule will not 

substantively change the effect or 

impact of the regulations; and 

• Amending and consolidating the 

permitting regulations from many sitespecific regulations to a single subpart 

does not substantively change the 

requirements to apply for permits, nor 

does it change the burden on applicants 

who wish to apply for permits. 

Therefore, these changes should not 

alter the current operations of small 

businesses because the changes are 

administrative and technical in nature. 

NOAA did revise the permit appeals 

regulation to limit the pool of appellants 

of a permit decision to only applicants 

or holders of permits. To date, only two 

appeals have been filed by ‘‘any 

interested party.’’ NOAA did not receive 

any comments from the public or from 

any small businesses on this particular 

action. NOAA does not anticipate that 

limiting the appellant pool will 

adversely impact small businesses. 

NOAA believes the overall changes will 

provide consistency within the 

regulations across sanctuaries. 

Therefore, these changes should not 

impact the current operations of small 

business operators, and may improve 

ease of applying for permits by 

removing inconsistencies and confusion 

that might otherwise occur. Interested 

third parties may provide input to the 

permit process through other 

mechanisms, including public review 

and comment of associated 

environmental analyses as part of the 

NEPA process or other statutory 

processes, as applicable. 

The intent of this rulemaking is to 

update and reorganize the existing 

regulations, eliminate redundancies 

across the sanctuary regulations, 

eliminate outmoded regulations, adopt 

standard boundary descriptions, and 

consolidate general regulations and 

permitting procedures. The regulatory 

changes are not expected to have a 

significant impact on a substantial 

number of small business entities. As a 

result, a regulatory flexibility analysis is 

not required and none has been 

prepared. 

List of Subjects in 15 CFR Part 922 

Administrative practice and 

procedure, Amendments, Appeals, 

Appellant, Application requirements, 

Authorizations, Definitions, 

Designation, Environmental protection, 

Marine resources, Motorized personal 

watercraft, Natural resources, 

Permitting, Permit procedures, 

Prohibited activities, Special use permit, 

Stowed and not available for immediate 

use, Resources, Research, Traditional 

fishing, Water resources. 

Nicole R. LeBoeuf, 

Assistant Administrator for Ocean Services 

and Coastal Zone Management, National 

Ocean Service. 

Accordingly, for the reasons set forth 

above, NOAA is amending 15 CFR part 

922 as follows: 

PART 922—NATIONAL MARINE 

SANCTUARY PROGRAM 

REGULATIONS 

■ 1. The authority citation for part 922 

continues to read as follows: 

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

■ 2. Revise subpart A to read as follows: 

Subpart A—Regulations of General 

Applicability 

Sec. 

922.1 Purposes and applicability of the 

regulations. 

922.2 Mission, goals, and special policies. 

922.3 Issuance of regulations for fishing. 

922.4 Boundaries. 

922.5 Allowed activities. 

922.6 Prohibited or otherwise regulated 

activities. 

922.7 Emergency regulations. 

922.8 Penalties. 

922.9 Response costs and damages. 

922.10 Pre-existing authorizations or rights 

and certifications of pre-existing 

authorizations or rights. 

922.11 Definitions. 

922.12 Sanctuary nomination process. 

922.13 Selection of nominated areas for 

national marine sanctuary designation. 

§ 922.1 Purposes and applicability of the 

regulations. 

(a) The purposes of this part are: 

(1) To implement title III of the 

Marine Protection, Research, and 

Sanctuaries Act of 1972, as amended (16 

U.S.C. 1431 et seq., also known as the 

National Marine Sanctuaries Act 

(NMSA or Act)), the Florida Keys 

National Marine Sanctuary and 

Protection Act (FKNMSPA) (Pub. L. 

101–605) and the Hawaiian Islands 

National Marine Sanctuary Act (sections 

2301–2307 of Pub. L. 102–587); and 

(2) To implement the designations of 

the national marine sanctuaries, for 

which site specific regulations appear in 

subparts F through T, by regulating 

activities affecting them, consistent with 

their respective terms of designation, in 

order to protect, restore, preserve, 

manage, and thereby ensure the health, 

integrity and continued availability of 

the conservation, recreational, 

ecological, historical, scientific, 

educational, cultural, archeological and 

aesthetic resources and qualities of 

these areas. 

(b) The regulations of this part are 

binding on any person subject to the 

jurisdiction of the United States. 

Designation of a national marine 

sanctuary beyond the U.S. territorial sea 

does not constitute any claim to 

territorial jurisdiction on the part of the 

United States. The regulations of this 

part shall be applied in accordance with 

generally recognized principles of 

international law 1, and in accordance 

with treaties, conventions, and other 

agreements to which the United States 

is a party. No regulation of this part 

shall apply to a person who is not a 

citizen, national, or resident alien of the 

United States, unless in accordance 

with: 

(1) Generally recognized principles of 

international law; 

(2) An agreement between the United 

States and the foreign state of which the 

person is a citizen; or 

(3) An agreement between the United 

States and the flag state of the foreign 

vessel, if the person is a crew member 

of the vessel. 

(c) Unless noted otherwise, the 

regulations in Subparts A and D apply 

to all national marine sanctuaries 

immediately upon designation. 

§ 922.2 Mission, goals, and special 

policies. 

(a) In accordance with the standards 

set forth in the Act, the mission of the 

Office of National Marine Sanctuaries 

(Office) is to identify, designate, protect, 

restore, and manage areas of the marine 

environment of special national, and in 

some cases international, significance 

due to their conservation, recreational, 

ecological, historical, scientific, 

educational, cultural, archeological, or 

aesthetic resources and qualities. 


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(b) The goal of the Office is to carry 

out the mission of the Act in a manner 

consistent with the purposes and 

policies of the Act (16 U.S.C. 1431(b)); 

the Florida Keys National Marine 

Sanctuary and Protection Act (Pub. L. 

101–605) which designated Florida 

Keys National Marine Sanctuary; the 

Hawaiian Islands National Marine 

Sanctuary and Protection Act (Pub. L. 

102–587), which designated Hawaiian 

Islands Humpback Whale National 

Marine Sanctuary; the Oceans Act of 

1992 (Pub. L. 102–587), which 

designated Stellwagen Bank National 

Marine Sanctuary; and the National 

Marine Sanctuaries Preservation Act of 

1996 (Pub. L. 104–283), which added 

Stetson Bank to Flower Garden Banks 

National Marine Sanctuary. 

(c) Management efforts will be 

coordinated to the extent practicable 

with other countries managing marine 

protected areas; 

(d) Program regulations, policies, 

standards, guidelines, and procedures 

developed pursuant to the Act 

concerning the identification, 

evaluation, registration, and treatment 

of historical resources shall be 

consistent, to the extent practicable, 

with the declared national policy for the 

protection and preservation of these 

resources as stated in the National 

Historic Preservation Act of 1966, 54 

U.S.C. 300101 et seq., the Archeological 

and Historical Preservation Act of 1974, 

54 U.S.C. 312501 et seq., and the 

Archeological Resources Protection Act 

of 1979 (ARPA), 16 U.S.C. 470aa et seq. 

The same degree of regulatory 

protection and preservation planning 

policy extended to historical resources 

on land shall be extended, to the extent 

practicable, to historical resources in the 

marine environment within the 

boundaries of designated national 

marine sanctuaries. The management of 

historical resources under the authority 

of the Act shall be consistent, to the 

extent practicable, with the Federal 

archeological program by consulting the 

Uniform Regulations, ARPA (43 CFR 

part 7) and other relevant Federal 

regulations. The Secretary of the 

Interior’s Standards and Guidelines for 

Archeology may also be consulted for 

guidance. 

§ 922.3 Issuance of regulations for fishing. 

If a proposed Sanctuary includes 

waters within the exclusive economic 

zone, the Secretary shall notify the 

appropriate Regional Fishery 

Management Council(s). The 

appropriate Council(s) shall have one 

hundred and eighty (180) days from the 

date of such notification to make 

recommendations and, if appropriate, 

prepare draft fishing regulations for the 

area within the exclusive economic 

zone and submit them to the Secretary. 

In preparing its recommendations and 

draft regulations, the Council(s) shall 

use as guidance the national standards 

of section 301(a) of the MagnusonStevens Fishery Conservation and 

Management Act (16 U.S.C. 1851) to the 

extent that they are consistent and 

compatible with the goals and objectives 

of the proposed Sanctuary designation. 

Any fishing activities not proposed for 

regulation under section 304(a)(5) of the 

NMSA may be listed in the draft 

Sanctuary designation document as 

being subject to regulation, without 

following the procedures specified in 

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

Secretary subsequently determines that 

regulation of fishing is necessary, then 

NOAA will follow the procedures 

specified in section 304(a)(5) of the 

NMSA. 

§ 922.4 Boundaries. 

The boundaries for each of the fifteen 

National Marine Sanctuaries covered by 

this part are described in subparts F 

through T, respectively. 

§ 922.5 Allowed activities. 

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

diving, research, education) may be 

conducted unless prohibited or 

otherwise regulated in Subparts F 

through T, subject to any emergency 

regulations promulgated pursuant to 

§ 922.7, 922.112(b), 922.165, 922.185, 

922.196, 922.204, or 922.211 subject to 

all prohibitions, regulations, 

restrictions, and conditions validly 

imposed by any Federal, State, tribal, or 

local authority of competent 

jurisdiction, including, but not limited 

to, Federal, Tribal, and State fishery 

management authorities, and subject to 

the provisions of section 312 of the 

NMSA. The Director may only directly 

regulate fishing activities pursuant to 

the procedure set forth in section 

304(a)(5) of the NMSA. 

§ 922.6 Prohibited or otherwise regulated 

activities. 

Subparts F through T set forth sitespecific regulations applicable to the 

activities specified therein. 

§ 922.7 Emergency regulations. 

(a) 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. 

(b) This section does not apply to the 

following national marine sanctuaries 

with site-specific regulations that 

establish procedures for issuing 

emergency regulations: 

(1) Cordell Bank National Marine 

Sanctuary, § 922.112(e). 

(2) Florida Keys National Marine 

Sanctuary, § 922.165. 

(3) Hawaiian Islands Humpback 

Whale National Marine Sanctuary, 

§ 922.185. 

(4) Thunder Bay National Marine 

Sanctuary, § 922.196. 

(5) Mallows Bay-Potomac River 

National Marine Sanctuary, § 922.204. 

(6) Wisconsin Shipwreck Coast 

National Marine Sanctuary, § 922.211. 

§ 922.8 Penalties. 

(a) Each violation of the NMSA or the 

other statutes designating national 

marine sanctuaries listed in § 922 .2 (b), 

any regulation in this part or any permit 

issued pursuant thereto, is subject to a 

civil penalty. Each day of a continuing 

violation constitutes a separate 

violation. 

(b) Regulations setting forth the 

procedures governing administrative 

proceedings for assessment of civil 

penalties, permit sanctions and denials 

for enforcement reasons, issuance and 

use of written warnings, and release or 

forfeiture of seized property appear at 

15 CFR part 904. 

§ 922.9 Response costs and damages. 

Under section 312 of the Act, any 

person who destroys, causes the loss of, 

or injures any Sanctuary resource is 

liable to the United States for response 

costs and damages resulting from such 

destruction, loss, or injury. Any vessel 

used to destroy, cause the loss of, or 

injure any Sanctuary resource is liable 

in rem to the United States for response 

costs and damages resulting from such 

destruction, loss, or injury. 

§ 922.10 Pre-existing authorizations or 

rights and certifications of pre-existing 

authorizations or rights. 

Any valid lease, permit, license, or 

right of subsistence use or of access that 

is in existence on the effective date of 

final regulations for a designation or 

revised terms of designation of any 

National Marine Sanctuary may not be 

terminated by the Director. The Director 

may, however, regulate the exercise of 

such leases, permits, licenses, or rights 

consistent with the purposes for which 

the Sanctuary was designated. 

§ 922.11 Definitions. 

The following definitions shall apply 

to this part, unless modified by the 

definitions for a specific subpart or 

regulation: 

Abandoning means leaving without 

intent to remove any structure, material, 


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or other matter on or in the seabed or 

submerged lands of a Sanctuary. For 

Thunder Bay National Marine Sanctuary 

and Underwater Preserve, abandoning 

means leaving without intent to remove 

any structure, material or other matter 

on the lake bottom associated with 

underwater cultural resources. 

Act or NMSA means title III of the 

Marine Protection, Research, and 

Sanctuaries Act of 1972, as amended, 16 

U.S.C. 1431 et seq., also known as the 

National Marine Sanctuaries Act. 

Assistant Administrator means the 

Assistant Administrator for Ocean 

Services and Coastal Zone Management, 

National Oceanic and Atmospheric 

Administration (NOAA) or designee. 

Attract or attracting means the 

conduct of any activity that lures or may 

lure any animal by using food, bait, 

chum, dyes, decoys (e.g., surfboards or 

body boards used as decoys), acoustics 

or any other means, except the mere 

presence of human beings (e.g., 

swimmers, divers, boaters, kayakers, 

surfers). 

Benthic community means the 

assemblage of organisms, substrate, and 

structural formations found at or near 

the sea/ocean/lake bottom that is 

periodically or permanently covered by 

water. 

Clean means not containing 

detectable levels of harmful matter. 

Commercial fishing means any 

activity that results in the sale or trade 

for intended profit of fish, shellfish, 

algae, or corals, including any attempt 

to engage in such activity. 

Conventional hook and line gear 

means any fishing gear composed of a 

single line terminated by a combination 

of sinkers and hooks or lures and 

spooled upon a reel that may be hand, 

electrically, or hydraulically operated, 

regardless of whether mounted. This 

term does not include longlines. 

Cruise ship means any vessel with 

250 or more passenger berths for hire. 

Cultural resource means any 

historical or cultural feature, including 

archaeological sites, historic structures, 

shipwrecks, and artifacts. 

Deserting means leaving a vessel 

aground, adrift, wrecked, junked, or in 

a substantially dismantled condition 

without notification to the Director of 

the vessel going aground or becoming 

adrift, wrecked, junked, or substantially 

dismantled within 12 hours of its 

discovery and developing and 

presenting to the Director a preliminary 

salvage plan within 24 hours of such 

notification; after expressing or 

otherwise manifesting intention not to 

undertake or to cease salvage efforts, or 

when the owner/operator cannot after 

reasonable efforts by the Director be 

reached within 12 hours of the vessel’s 

condition being reported to authorities; 

or leaving a vessel at anchor when its 

condition creates potential for a 

grounding, discharge, or deposit and the 

owner/operator fails to secure the vessel 

in a timely manner. 

Director means, except where 

otherwise specified, the Director of the 

Office of National Marine Sanctuaries or 

designee. 

Effective date means the date of final 

regulations described and published in 

the Federal Register. For regulations 

governing the designation of a new 

sanctuary or revising terms of 

designation, effective date means the 

date after the close of the review period 

of the 45th day of continuous session of 

Congress following submission of the 

Federal Register notice of the 

designation together with final 

regulations to implement the 

designation and any other matters 

required by law, unless the Governor of 

any state in which the sanctuary is 

completely or partially located certifies 

that the designation or any of its terms 

is unacceptable pursuant to section 

304(b) of the National Marine 

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

1434(b)). 

Exclusive economic zone means the 

zone established by Proclamation 5030, 

dated March 10, 1983, and as defined in 

the Magnuson-Stevens Fishery 

Conservation and Management Act, as 

amended 16 U.S.C. 1801 et seq. 

Fish means finfish, mollusks, 

crustaceans, and all other forms of 

marine animal and plant life other than 

marine mammals and birds, as defined 

in the Magnuson-Stevens Fishery 

Conservation and Management Act, as 

amended (16 U.S.C. 1802(12)). 

Graywater means graywater as 

defined by section 312 of the Federal 

Water Pollution Control Act, as 

amended, 33 U.S.C. 1322. 

Harmful matter means any substance, 

or combination of substances, that 

because of its quantity, concentration, or 

physical, chemical, or infectious 

characteristics may pose a present or 

potential threat of injury to Sanctuary 

resources or qualities. Such substances 

or combination of substances may 

include, but is not limited to: fishing 

nets, fishing line, hooks, fuel, oil, and 

hazardous substances as defined by the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act, 42 U.S.C. 9601(14) and designated 

at 40 CFR 302.4. 

Historical resource means any 

resource possessing historical, cultural, 

archaeological or paleontological 

significance, including a site, contextual 

information, structure, district, and 

object significantly associated with or 

representative of earlier people, culture, 

maritime heritage, and human activities 

and events. Historical resource includes 

‘‘cultural resource,’’ ‘‘submerged 

cultural resource,’’ and ‘‘historical 

property’’ as that term is used in the 

National Historic Preservation Act, as 

amended, 54 U.S.C. 300101 et seq. and 

its implementing regulations, as 

amended. 

Indian tribe means an Indian or 

Alaska Native tribe, band, nation, 

pueblo, village, or community that the 

Secretary of the Interior acknowledges 

to exist as an Indian tribe pursuant to 

the Federally Recognized Indian Tribe 

List Act of 1994, 25 U.S.C. 5130. 

Injure or injury means to change 

adversely, either in the short or long 

term, a chemical, biological or physical 

attribute, or the viability, of a sanctuary 

resource. This includes, but is not 

limited to, to cause the loss of or 

destroy. 

Introduced species means any species 

(including, but not limited to, any of its 

biological matter capable of 

propagation) that is non-native to the 

ecosystems of the Sanctuary; or any 

organism into which altered genetic 

matter, or genetic matter from another 

species, has been transferred in order 

that the host organism acquires the 

genetic traits of the transferred genes. 

Inventory means a list of selected 

natural and historical resource sites 

selected by the Secretary as qualifying 

for further evaluation for possible 

designation as National Marine 

Sanctuaries. 

Lawful fishing means fishing 

authorized by a tribal, State or Federal 

entity with jurisdiction over the activity. 

Lightering means at-sea transfer of 

petroleum-based products, materials, or 

other matter from vessel to vessel. 

Marine means those areas of coastal 

and ocean waters, the Great Lakes and 

their connecting waters, and submerged 

lands over which the United States 

exercises jurisdiction, including the 

exclusive economic zone, consistent 

with international law. 

Mineral means clay, stone, sand, 

gravel, metalliferous ore, nonmetalliferous ore, or any other solid 

material or other matter of commercial 

value. 

National historic landmark means a 

district, site, building, structure or 

object designated as such by the 

Secretary of the Interior under the 

National Historic Landmarks Program 

(36 CFR part 65). 

National Marine Sanctuary or 

Sanctuary means an area of the marine 

environment of special national 

significance designated as such by the 


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National Oceanic and Atmospheric 

Administration (NOAA) pursuant to the 

Act or by Congress pursuant to 

legislation. 

Person means any private individual, 

partnership, corporation or other entity; 

or any officer, employee, agent, 

department, agency or instrumentality 

of the Federal government, of any State 

or local unit of government, or of any 

foreign government. 

Regional Fishery Management 

Council means any fishery council 

established under the MagnusonStevens Fishery Conservation and 

Management Act, 16 U.S.C. 1801 et seq. 

Sanctuary quality means any of those 

ambient conditions, physical-chemical 

characteristics and natural processes, 

the maintenance of which is essential to 

the ecological health of a national 

marine sanctuary, including, but not 

limited to, water quality, sediment 

quality, and air quality. 

Sanctuary resource means any living 

or non-living resource of a national 

marine sanctuary, or the parts or 

products thereof, that contributes to the 

conservation, recreational, ecological, 

historical, educational, cultural, 

archeological, scientific, or aesthetic 

value of the national marine sanctuary, 

including, but not limited to, waters of 

the sanctuary, the seabed or submerged 

lands of the sanctuary, other submerged 

features and the surrounding seabed, 

carbonate rock, corals and other bottom 

formations, coralline algae and other 

marine plants and algae, marine 

invertebrates, brine-seep biota, 

phytoplankton, zooplankton, fish, birds, 

sea turtles and other marine reptiles, 

marine mammals, and maritime 

heritage, cultural, archeological, and 

historical resources. For Thunder Bay 

National Marine Sanctuary and 

Underwater Preserve, Sanctuary 

resource is defined at § 922.191. For 

Hawaiian Islands Humpback Whale, 

Sanctuary resource is defined at 

§ 922.182. For Mallows Bay-Potomac 

River National Marine Sanctuary, 

Sanctuary resource is defined at 

§ 922.201(a). For Wisconsin Shipwreck 

Coast National Marine Sanctuary, 

sanctuary resource is defined at 

§ 922.211. 

Seagrass means any species of marine 

angiosperms (flowering plants) that 

inhabits a portion of the seabed in a 

national marine sanctuary. Those 

species include, but are not limited to: 

Zostera asiatica (Asian eelgrass), 

Zostera marina (eelgrass/common 

eelgrass); Thalassia testudinum (turtle 

grass); Syringodium filiforme (manatee 

grass); Halodule wrightii (shoal grass); 

Halophila decipiens (paddle grass), H. 

engelmannii (Engelmann’s seagrass), H. 

johnsonii (Johnson’s seagrass); and 

Ruppia maritima (widgeon grass). 

Secretary means the Secretary of the 

United States Department of Commerce, 

or designee. 

Shunt means to discharge expended 

drilling cuttings and fluids near the 

ocean seafloor. 

State means each of the several States, 

the District of Columbia, the 

Commonwealth of Puerto Rico, the 

Commonwealth of the Northern Mariana 

Islands, American Samoa, the United 

States Virgin Islands, Guam, and any 

other commonwealth, territory, or 

possession of the United States. 

Subsistence use means the customary 

and traditional use by rural residents of 

areas near or in the marine environment 

for direct personal or family 

consumption as food, shelter, fuel, 

clothing, tools, or transportation; for the 

making and selling of handicraft 

articles; and for barter, if for food or 

non-edible items other than money, if 

the exchange is of a limited and noncommercial nature. 

Take (taking or taken) of a marine 

mammal, sea turtle, or bird means: 

(1) Take as that term is defined in 

section 3(19) of the Endangered Species 

Act of 1973, as amended, 16 U.S.C. 

1532(19) (ESA); 

(2) Take as that term is defined in 

section 3(13) of the Marine Mammal 

Protection Act of 1972, as amended, 16 

U.S.C. 1362(13) (MMPA); or 

(3) Conducting an activity prohibited 

by section 703 of the Migratory Bird 

Treaty Act of 1918, as amended, 16 

U.S.C. 703 (MBTA). 

For purposes of paragraphs (1), (2), 

and (3) of this definition, take also 

includes, but is not limited to, 

collection of any dead or injured marine 

mammal, sea turtle, or bird, or any part 

thereof; or restraint or detainment of any 

marine mammal, sea turtle, or bird, no 

matter how temporarily; tagging any 

marine mammal, sea turtle, or bird, or 

operating a vessel or aircraft or 

conducting any other act that results in 

the disturbance or molestation of any 

marine mammal, sea turtle, or bird. 

Vessel means a watercraft of any 

description capable of being used as a 

means of transportation in or on the 

waters of a sanctuary. The term includes 

but is not limited to, motorized and 

non-motorized watercraft, personal 

watercraft, airboats, and float planes 

while maneuvering on the water. For 

purposes of this part, the terms 

‘‘vessel,’’ ‘‘watercraft,’’ and ‘‘boat’’ have 

the same meaning. 

Washington Coast treaty tribe means 

the Hoh, Makah, or Quileute Indian 

Tribes or the Quinault Indian Nation. 

§ 922.12 Sanctuary Nomination Process 

(a) Nomination process. The 

sanctuary nomination process (see 

National Marine Sanctuaries website 

www.sanctuaries.noaa.gov) is the means 

by which the public can submit areas of 

the marine and Great Lakes 

environments for consideration by 

NOAA as a national marine sanctuary. 

(b) National significance criteria. The 

Director will consider the following in 

determining if a nominated area is of 

special national significance: 

(1) The area’s natural resources and 

ecological qualities are of special 

significance and contribute to: 

Biological productivity or diversity; 

maintenance or enhancement of 

ecosystem structure and function; 

maintenance of ecologically or 

commercially important species or 

species assemblages; maintenance or 

enhancement of critical habitat, 

representative biogeographic 

assemblages, or both; or maintenance or 

enhancement of connectivity to other 

ecologically significant resources. 

(2) The area contains submerged 

maritime heritage resources of special 

historical, cultural, or archaeological 

significance, that: Individually or 

collectively are consistent with the 

criteria of eligibility or listing on the 

National Register of Historic Places; 

have met or which would meet the 

criteria for designation as a National 

Historic Landmark; or have special or 

sacred meaning to the indigenous 

people of the region or nation. 

(3) The area supports present and 

potential economic uses, such as: 

Tourism; commercial and recreational 

fishing; subsistence and traditional uses; 

diving; and other recreational uses that 

depend on conservation and 

management of the area’s resources. 

(4) The publicly-derived benefits of 

the area, such as aesthetic value, public 

recreation, and access to places depend 

on conservation and management of the 

area’s resources. 

(c) Management considerations. The 

Director will consider the following in 

determining the manageability of a 

nominated area: 

(1) The area provides or enhances 

opportunities for research in marine 

science, including marine archaeology. 

(2) The area provides or enhances 

opportunities for education, including 

the understanding and appreciation of 

the marine and Great Lakes 

environments. 

(3) Adverse impacts from current or 

future uses and activities threaten the 

area’s significance, values, qualities, and 

resources. 

(4) A national marine sanctuary 

would provide unique conservation and 


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management value for this area that also 

have beneficial values for adjacent 

areas. 

(5) The existing regulatory and 

management authorities for the area 

could be supplemented or 

complemented to meet the conservation 

and management goals for the area. 

(6) There are commitments or possible 

commitments for partnerships 

opportunities such as cost sharing, 

office space or exhibit space, vessel 

time, or other collaborations to aid 

conservation or management programs 

for the area. 

(7) There is community-based support 

for the nomination expressed by a broad 

range of interests, such as: Individuals 

or locally-based groups (e.g., friends of 

group, chamber of commerce); local, 

tribal, state, or national agencies; elected 

officials; or topic-based stakeholder 

groups, at the local, regional or national 

level (e.g., a local chapter of an 

environmental organization, a 

regionally-based fishing group, a 

national-level recreation or tourism 

organization, academia or science-based 

group, or an industry association). 

(d) Following evaluation of a 

nomination against the national 

significance criteria and management 

considerations, the Director may place 

nominated areas in a publicly available 

inventory for future consideration of 

designation as a national marine 

sanctuary. 

(e) A determination that a site is 

eligible for national marine sanctuary 

designation, by itself shall not subject 

the site to any regulatory control under 

the Act. Such controls may only be 

imposed after designation. 

§ 922.13 Selection of nominated areas for 

national marine sanctuary designation. 

(a) The Director may select a 

nominated area from the inventory for 

future consideration as a national 

marine sanctuary. 

(b) Selection of a nominated area from 

the inventory shall begin the formal 

sanctuary designation process. A notice 

of intent to prepare a draft 

environmental impact statement shall 

be published in the Federal Register 

and posted on the Office of National 

Marine Sanctuaries website. Any 

designation process will follow the 

procedures for designation and 

implementation set forth in section 304 

of the Act. 

Subpart B [Removed and Reserved] 

■ 3. Remove and reserve subpart B. 

Subpart C—[Removed and Reserved] 

■ 4. Remove and reserve part 922 

subpart C. 

■ 5. Revise subpart D to read as follows: 

Subpart D—National Marine Sanctuary 

Permitting 

Sec. 

922.30 National Marine Sanctuary general 

permits. 

922.31 National Marine Sanctuary special 

use permits. 

922.32 Application requirements and 

procedures. 

922.33 Review procedures and evaluation. 

922.34 Permit amendments. 

922.35 Special use permit fees. 

922.36 National Marine Sanctuary 

authorizations. 

922.37 Appeals of permitting decisions. 

§ 922.30 National Marine Sanctuary 

general permits. 

(a) Authority to issue general permits. 

The Director may allow a person to 

conduct an activity that would 

otherwise be prohibited by this part 

through issuance of a general permit, 

provided the applicant complies with: 

(1) The provisions of this subpart; and 

(2) The permit procedures and criteria 

for all national marine sanctuaries in 

which the proposed activity is to take 

place in accordance with relevant site 

specific regulations appearing in 

subparts F through T. 

(b) Sanctuary general permit 

categories. The Director may issue a 

sanctuary general permit under this 

subpart and the relevant site-specific 

subpart, subject to such terms and 

conditions as he or she deems 

appropriate, if the Director finds that the 

proposed activity falls within one of the 

following categories or a category in the 

relevant site-specific subpart: 

(1) Research—activities that constitute 

scientific research or scientific 

monitoring of a national marine 

sanctuary resource or quality; 

(2) Education—activities that enhance 

public awareness, understanding, or 

appreciation of a national marine 

sanctuary or national marine sanctuary 

resource or quality; 

(3) Management—activities that assist 

in managing a national marine 

sanctuary; 

(4) Jade removal—the removal of 

loose jade from the Jade Cove area, 

without the use of pneumatic, 

mechanical, electrical, hydraulic or 

explosive tools, within Monterey Bay 

National Marine Sanctuary that cannot 

be collected under 15 CFR 

922.132(a)(1)(ii) and (iii). Preference 

will be given for applications proposing 

to collect loose pieces of jade for 

research or educational purposes; 

(5) Tribal self-determination— 

activities conducted by a Washington 

Coast treaty tribe and/or its designee as 

certified by the governing body of the 

tribe to promote or enhance tribal selfdetermination, tribal government 

functions, the exercise of treaty rights, 

the economic development of the tribe, 

subsistence, ceremonial and spiritual 

activities, or the education or training of 

tribal members; and 

(6) Further FKNMS purposes— 

activities that further the purposes of 

Florida Keys National Marine 

Sanctuary, including those that facilitate 

multiple use of the sanctuary, to the 

extent compatible with the primary 

objective of resource protection. 

§ 922.31 National Marine Sanctuary special 

use permits. 

(a) In general. A person may conduct 

a specified special use permit activity, 

if such activity is specifically authorized 

by, and is conducted in accordance with 

the scope, purpose, manner, terms and 

conditions of, a special use permit 

issued under this section. 

(b) Authority to issue. The Director, at 

his or her discretion, may issue a special 

use permit in accordance with this 

subpart and section 310 of the Act (16 

U.S.C. 1441). 

(c) Public notice. The Director will not 

issue a special use permit for any 

category of activity unless the Director 

has published a notice in the Federal 

Register that such category of activity is 

subject to the requirements of section 

310 of the Act. 

(d) Fees. The Director may assess and 

collect fees for the conduct of any 

activity authorized by a special use 

permit issued pursuant to this section. 

The fee will be assessed in accordance 

with § 922.35. 

§ 922.32 Application requirements and 

procedures. 

(a) Submitting applications. Permit 

applications must be submitted by mail 

to the address listed in the subpart for 

the relevant national marine sanctuary 

or by electronic means as defined in the 

instructions for the ONMS permit 

application. Applicants proposing to 

conduct an activity in more than one 

national marine sanctuary should send 

the application to each NOAA office for 

the relevant national marine sanctuaries 

in which the activity is proposed. 

(b) Application requirements. All 

applications for a permit under this 

section must include the following 

information: 

(1) A detailed description of the 

proposed activity including: 

(i) A timetable for completion of the 

activity; 


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(ii) A detailed description of the 

proposed location for the activity; and 

(iii) The equipment, personnel and 

methodology to be employed; 

(2) The qualifications and experience 

of all personnel; 

(3) The financial resources available 

to the applicant to conduct and 

complete the proposed activity and 

comply with any terms and conditions 

deemed necessary; 

(4) A statement as to why it is 

necessary to conduct the activity within 

a national marine sanctuary; 

(5) A description of the potential 

impacts of the activity, if any, on 

sanctuary resources and qualities; 

(6) A description of the benefits the 

conduct of the activity would have for 

the national marine sanctuary or 

national marine sanctuary system; 

(7) Copies of all other required 

licenses, permits, approvals, or other 

authorizations; and 

(8) Such other information as the 

Director may request or is specified in 

the relevant subpart. 

(c) Additional information. Upon 

receipt of an application, and as part of 

the evaluation of the permit application, 

the Director may: 

(1) Request such additional 

information as he or she deems 

necessary to act on the application; 

(2) Require a site visit; and 

(3) Seek the views of any persons. 

(d) Time limit for submitting 

additional information. Unless 

otherwise specified in writing by the 

Director, any information requested by 

the Director under paragraph (c) of this 

section must be received by the Director 

within 30 days of the postmark date of 

the request or, if email, the date of the 

email. Failure to provide such 

additional information may be deemed 

by the Director to constitute withdrawal 

of the permit application. 

(e) Incomplete applications. The 

Director may consider an application 

incomplete, and therefore may refuse to 

further consider the application, if the 

applicant: 

(1) Has failed to submit any of the 

information required under paragraph 

(b); 

(2) Has failed to submit any of the 

information requested by the Director 

under paragraph (c) of this section; 

(3) Has failed to pay any outstanding 

penalties that resulted from a violation 

of this part; or 

(4) Has failed to fully comply with a 

permit issued pursuant to this subpart. 

§ 922.33 Review procedures and 

evaluation. 

(a) Review criteria. In addition to any 

relevant site-specific permit review 

criteria, the Director shall not issue a 

permit under this subpart or the 

relevant subpart, unless he or she also 

finds that: 

(1) The proposed activity will be 

conducted in a manner compatible with 

the primary objective of protection of 

national marine sanctuary resources and 

qualities, taking into account the 

following factors: The extent to which 

the conduct of the activity may 

diminish or enhance national marine 

sanctuary resources and qualities; and 

any indirect or cumulative effects of the 

activity; 

(2) It is necessary to conduct the 

proposed activity within the national 

marine sanctuary to achieve its stated 

purpose; 

(3) The methods and procedures 

proposed by the applicant are 

appropriate to achieve the proposed 

activity’s stated purpose and avoid, 

minimize, or otherwise mitigate adverse 

effects on sanctuary resources and 

qualities as much as possible; 

(4) The duration of the proposed 

activity and its effects are no longer than 

necessary to achieve the activity’s stated 

purpose; 

(5) The expected end value of the 

activity to the furtherance of national 

marine sanctuary goals and purposes 

outweighs any potential adverse 

impacts on sanctuary resources and 

qualities from the conduct of the 

activity; 

(6) The applicant is professionally 

qualified to conduct and complete the 

proposed activity; 

(7) The applicant has adequate 

financial resources available to conduct 

and complete the proposed activity and 

terms and conditions of the permit; 

(8) There are no other factors that 

would make the issuance of a permit for 

the activity inappropriate; and 

(9) For Olympic Coast National 

Marine Sanctuary, the activity as 

proposed does not adversely affect any 

Washington Coast treaty tribe. 

(b) Permit terms and conditions. The 

Director, at his or her discretion, may 

subject a permit issued under this 

subpart or other relevant subpart to such 

terms and conditions as he or she deems 

appropriate. A permit granted pursuant 

to this subpart is nontransferable. 

(c) Permit actions. The Director may 

amend, suspend, or revoke a permit 

issued pursuant to this part or other 

relevant subpart for good cause. 

Procedures governing permit sanctions 

and denials for enforcement reasons are 

set forth in subpart D of 15 CFR part 

904. 

(d) Denial of permit application. The 

Director may deny a permit application, 

in whole or in part, if it is determined 

that: 

(1) The proposed activity does not 

meet the review criteria specified in this 

subpart or the relevant subpart of any 

national marine sanctuary in which the 

proposed activity is to take place; 

(2) The permittee or applicant has 

acted in violation of the terms and 

conditions of a permit issued under this 

subpart or the relevant subpart of any 

national marine sanctuary in which the 

proposed activity is to take place; 

(3) The permittee or applicant has 

acted in violation of any regulation set 

forth in this subpart, the NMSA, or the 

FKNMSPA; 

(4) The proposed activity has resulted 

in unforeseen adverse impacts to 

Sanctuary resources or qualities; or 

(5) For other good cause. 

(e) Communication of actions and 

denials. Any action taken by the 

Director under paragraphs (c) and (d) of 

this section shall be communicated in 

writing to the permittee or applicant 

and shall set forth the reason(s) for the 

action taken. 

§ 922.34 Permit amendments. 

(a) Request for amendments. Any 

person who has been issued a permit 

under this part (a permittee) may 

request to amend the permit at any time 

while that permit is valid. For purposes 

of this section, a permit time extension 

is treated as a permit amendment. A 

request for permit amendment must be 

submitted to the same NOAA office(s) as 

the original permit and include 

sufficient information to describe the 

requested amendment and any 

additional supporting information. 

(b) Review of amendment requests. 

After receiving the permittee’s request 

for amendment, the Director will: 

(1) Review all reports submitted by 

the permittee as required by the permit 

terms and conditions; and 

(2) Request such additional 

information as may be necessary to 

evaluate the request. 

(c) Denial of amendment request. The 

Director may deny a permit amendment 

request, in whole or in part, if it is 

determined that: 

(1) The proposed activity does not 

meet the review criteria specified in this 

subpart or the relevant subpart of any 

national marine sanctuary in which the 

proposed activity is to take place; 

(2) The permittee or applicant has 

acted in violation of the terms or 

conditions of a permit issued under this 

subpart or the relevant subpart of any 

national marine sanctuary in which the 

proposed activity is to take place; 

(3) The permittee or applicant has 

acted in violation of any regulation set 


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forth in this subpart, the NMSA, or the 

FKNMSPA; 

(4) The proposed activity has resulted 

in unforeseen adverse impacts to 

Sanctuary resources or qualities; or 

(5) For other good cause. 

§ 922.35 Special Use Permit fees. 

(a) Authority to assess fees. The 

Director may assess a fee for the conduct 

of any activity authorized under a 

special use permit issued under 

§ 922.31. The Director may collect 

assessed fees through agreement with 

the permit applicant. No special use 

permit may be effective until all 

assessed fees are received unless 

otherwise provided by the Director by a 

fee schedule set forth as a permit 

condition. 

(b) Components of permit fees. A fee 

assessed under this section may 

include: 

(1) All costs incurred, or expected to 

be incurred, in reviewing and 

processing the permit application, 

including, but not limited to, costs for: 

(i) Personnel; 

(ii) Personnel hours; 

(iii) Equipment; 

(iv) Environmental analysis, 

assessment or consultation; 

(v) Copying; and 

(vi) Overhead costs directly related to 

reviewing and processing the permit 

application; 

(2) All costs incurred, or expected to 

be incurred, as a direct result of the 

conduct of the activity for which the 

permit is being issued, including, but 

not limited to: 

(i) The cost of monitoring the conduct 

both during the activity and after the 

activity is completed in order to assess 

the impacts to sanctuary resources and 

qualities; 

(ii) The use of an official NOAA 

observer, including travel and expenses 

and personnel hours; and 

(iii) Overhead costs directly related to 

the permitted activity; and 

(3) An amount which represents the 

fair market value of the use of the 

sanctuary resource. 

§ 922.36 National Marine Sanctuary 

authorizations. 

(a) Authority to issue authorizations. 

The Director may authorize a person to 

conduct an activity otherwise 

prohibited by subparts L through P or 

subpart R of this part, if such activity is 

specifically allowed by any valid 

federal, state, or local lease, permit, 

license, approval, or other authorization 

(hereafter called ‘‘agency approval’’) 

issued after the effective date of 

sanctuary designation or expansion, 

provided the applicant complies with 

the provisions of this section. Such an 

authorization by ONMS is hereafter 

referred to as an ‘‘ONMS authorization.’’ 

(b) Authorization notification to the 

Director—(1) Notification requirement. 

An applicant must notify the Director in 

writing of the request for an ONMS 

authorization of an agency approval. 

The Director may treat an amendment or 

extension of such an agency approval as 

constituting a new agency approval for 

purposes of this section. 

(i) Notification must occur within 

fifteen days after the date the applicant 

files of filing of the application for the 

agency approval. 

(ii) Notification must be sent to the 

Director, Office of National Marine 

Sanctuaries, to the attention of the 

relevant Sanctuary Superintendent(s) at 

the address specified in subparts L 

through P, or subpart R through S, as 

appropriate. 

(iii) A copy of the application for the 

agency approval must accompany the 

notification. 

(2) Director’s response to notification. 

The Director shall respond in writing to 

the applicant and provide periodic 

updates on pending ONMS 

authorization request. 

(c) Authorization review procedures 

and evaluation—(1) Additional 

information. The Director may request 

additional information from the 

applicant as the Director deems 

reasonably necessary to determine 

whether to issue an ONMS 

authorization and what terms and 

conditions are reasonably necessary to 

protect sanctuary resources and 

qualities. 

(i) The information requested must be 

received by the Director within 45 days 

of the postmark date of the Director’s 

request. 

(ii) The Director may seek the views 

of any persons on the application. 

(2) Review criteria. The Director shall 

consider the review criteria in 

§ 922.33(a)(1)–(9) when deciding 

whether to issue an ONMS 

authorization. 

(3) Director’s response. The Director 

shall respond in writing to the applicant 

to inform the applicant of the Director’s 

decision regarding the authorization 

request. 

(i) The Director may deny a request 

for an ONMS authorization and shall 

provide the reason(s) therefore. If the 

Director denies a request for an ONMS 

authorization, the applicant remains 

prohibited from conducting the activity 

in the sanctuary. 

(ii) The Director may issue an ONMS 

authorization containing terms and 

conditions deemed reasonably 

necessary to protect sanctuary resources 

and qualities. Failure to comply with an 

ONMS authorization constitutes a 

violation of the NMSA and these 

regulations, which may result in an 

enforcement action and assessment of 

penalties. 

(d) Authorization actions. The 

Director may amend, suspend, or revoke 

an ONMS authorization issued pursuant 

to this part for good cause. Procedures 

governing ONMS sanctions and denials 

for enforcement reasons are set forth in 

subpart D of 15 CFR part 904. 

(e) Communication of actions and 

denials. Any action taken by the 

Director under paragraphs (c) and (d) of 

this section to deny, amend, suspend, or 

revoke an ONMS authorization shall be 

communicated in writing to the 

permittee or applicant and shall set 

forth the reason(s) for the action taken. 

(f) Time limits. Any time limit 

prescribed in or established under 

§ 922.36 may be extended by the 

Director for good cause. 

§ 922.37 Appeals of permitting decisions. 

(a) Potential appellant. The following 

person may appeal an action listed in 

paragraph (b) of this section (hereinafter 

referred to as ‘‘appellant’’): 

(1) An applicant or holder of a 

certification of any existing lease, 

permit, license, or right of subsistence 

use or of access pursuant to § 922.10; 

(2) An applicant or a holder of a 

National Marine Sanctuary permit 

issued pursuant to § 922.30 or pursuant 

to site-specific regulations appearing in 

subparts F through T of this part; 

(3) An applicant or a holder of a 

special use permit issued pursuant to 

section 310 of the Act and § 922.31; and 

(4) An applicant or a holder of an 

ONMS authorization of an agency 

approval issued by any Federal, State, or 

local authority of competent jurisdiction 

pursuant to § 922.36. 

(b) Actions that may be appealed. An 

appellant may appeal the following 

actions to the Assistant Administrator: 

(1) The denial, conditioning, 

amendment, suspension, or revocation 

by the Director of a general permit 

pursuant to § 922.30 or other relevant 

subpart, special use permit pursuant to 

section 310 of the Act and § 922.31, or 

an ONMS authorization issued pursuant 

to § 922.36; or a certification under 

§ 922.10. 

(2) Reserved. 

(c) Appeal requirements. Appeals 

must be made in writing to the Assistant 

Administrator for Ocean Services and 

Coastal Zone Management, NOAA, 1305 

East-West Highway, 13th Floor, Silver 

Spring, MD 20910 and must: 

(1) State the action(s) by the Director 

being appealed; 


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(2) State the reason(s) for the appeal; 

and 

(3) Be received within 30 days of the 

appellant’s receipt of notice of the 

action by the Director. 

(d) Appeal procedures. (1) The 

Assistant Administrator may request the 

appellant submit such information as 

the Assistant Administrator deems 

necessary in order to render a decision 

on the appeal. The information 

requested must be received by the 

Assistant Administrator within 45 days 

of the postmark date of the request. 

(2) The Assistant Administrator may 

seek the views of any other persons 

when deciding an appeal. 

(3) The Assistant Administrator may 

hold an informal hearing. If an informal 

hearing is held: 

(i) The Assistant Administrator may 

designate an officer before whom the 

hearing shall be held; 

(ii) The hearing officer shall give 

notice in the Federal Register of the 

time, place and subject matter of the 

hearing; 

(iii) The appellant and Director may 

appear personally or by counsel at the 

hearing and submit such material and 

present such arguments as deemed 

appropriate by the hearing officer; and 

(iv) The hearing officer shall 

recommend a decision in writing to the 

Assistant Administrator within 60 days 

after the record for the hearing closes. 

(e) Deciding an appeal. (1) The 

Assistant Administrator shall decide the 

appeal using the same regulatory criteria 

as for the initial decision and shall base 

the appeal decision on the record before 

the Director and any information 

submitted at the Assistant 

Administrator’s request pursuant to 

paragraphs (d)(1) or (d)(2) of this 

section, regarding the appeal, and, if a 

hearing has been held, on the record 

before the hearing officer and the 

hearing officer’s recommended decision. 

(2) The Assistant Administrator shall 

notify the appellant of the final decision 

and the reason(s) therefore in writing. 

(3) The Assistant Administrator’s 

decision shall constitute final agency 

action for purposes of the 

Administrative Procedure Act. 

(f) Authority to extend time limits. 

Any time limit prescribed in or 

established under this section other 

than the 30-day limit for filing an appeal 

pursuant to paragraph (c)(3) of this 

section may be extended by the 

Assistant Administrator for good cause. 

Subpart E [Removed and Reserved] 

■ 6. Remove and reserve subpart E. 

Subpart F—Monitor National Marine 

Sanctuary 

■ 7. Revise § 922.60 to read as follows: 

§ 922.60 Boundary. 

The Monitor National Marine 

Sanctuary (Sanctuary) consists of a 

vertical water column in the Atlantic 

Ocean one mile in diameter (0.593 

square nautical miles (nmi2) or (0.785 

sq. mi.)) extending from the surface to 

the seabed, the center of which is at the 

following coordinates 35.00639, 

¥75.40889. 

■ 8. Revise § 922.62 to read as follows: 

§ 922.62 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.61 if such 

activity is specifically authorized by and 

conducted in accordance with the 

scope, purpose, terms and conditions of 

a permit issued under this section and 

subpart D of this part. 

(b) Applications for permits should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Monitor National 

Marine Sanctuary, c/o The Mariners’ 

Museum, 100 Museum Drive, Newport 

News, VA 23606. 

(c) In addition to the requirements of 

subpart D of this part, the Director may 

not issue a permit under this section 

unless the Director also finds that the 

extent to which the conduct of the 

proposed activity may diminish the 

value of the Monitor as a source of 

historic, cultural, aesthetic and/or 

maritime information is appropriate in 

relation to goals of the proposed 

activity. 

(d) In considering any application 

submitted pursuant to this section, the 

Director shall seek and consider the 

views of the Advisory Council on 

Historic Preservation. 

Subpart G—Channel Islands National 

Marine Sanctuary 

■ 9. Amend § 922.70 by revising the first 

sentence to read as follows: 

§ 922.70 Boundary. 

The Channel Islands National Marine 

Sanctuary (Sanctuary) consists of an 

area of approximately 1,110 square 

nautical miles (nmi2) (1,470 sq. mi.) of 

coastal and ocean waters, and the 

submerged lands thereunder, off the 

southern coast of California. * * * 

■ 10. Amend § 922.71 by: 

■ a. Revising the introductory text; and 

■ b. Removing the definitions of ‘‘Cruise 

ship’’, ‘‘Graywater’’, and ‘‘Introduced 

species’’. 

The revision reads as follows: 

§ 922.71 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

apply to this subpart: 

* * * * * 

■ 11. Amend § 922.72 by revising 

paragraph (c) to read as follows: 

§ 922.72 Prohibited or otherwise regulated 

activities—Sanctuary wide. 

* * * * * 

(c) The prohibitions in paragraphs 

(a)(3) through (a)(10), (a)(12), and (a)(13) 

of this section and in § 922.73 do not 

apply to any activity specifically 

authorized by and conducted in 

accordance with the scope, purpose, 

terms, and conditions of a National 

Marine Sanctuary permit issued 

pursuant to subpart D of this part and 

§ 922.74. 

* * * * * 

■ 12. Revise § 922.74 to read as follows: 

§ 922.74 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.72 or 

§ 922.73 if the activity is specifically 

authorized by and conducted in 

accordance with the scope, purpose, 

terms, and conditions of a permit issued 

under this section and subpart D of this 

part. 

(b) Permit applications should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Channel Islands 

National Marine Sanctuary, University 

of California Santa Barbara, Ocean 

Science Education Building 514, MC 

6155, Santa Barbara, CA 93106–6155. 

Subpart H—Greater Farallones 

National Marine Sanctuary 

■ 13. Amend § 922.80 by revising the 

first sentence in paragraph (a) to read as 

follows: 

§ 922.80 Boundary. 

(a) Greater Farallones National Marine 

Sanctuary (Sanctuary) encompasses an 

area of approximately 2,488 square 

nautical miles (nmi2) (3,295 sq. mi.) of 

coastal and ocean waters, and 

submerged lands thereunder, 

surrounding the Farallon Islands and 

Noonday Rock along the northern coast 

of California. * * * 

* * * * * 

■ 14. Amend § 922.81 by— 

■ a. Revising the introductory text of 

§ 922.81; and 

■ b. Removing the definitions of 

‘‘Attract or attracting’’, ‘‘Clean’’, 

‘‘Deserting’’, ‘‘Harmful matter’’, 

‘‘Introduced species’’, and ‘‘Seagrass’’. 


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The revision reads as follows: 

§ 922.81 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

apply to this subpart: 

* * * * * 

■ 15. Amend § 922.82 by revising 

paragraph (c) and (d) to read as follows: 

§ 922.82 Prohibited or otherwise regulated 

activities. 

* * * * * 

(c) The prohibitions in paragraph (a) 

of this section do not apply to activities 

necessary to respond to an emergency 

threatening life, property or the 

environment, or except as may be 

permitted by the Director in accordance 

with subpart D of this part. 

(d) The prohibitions in paragraphs 

(a)(2) through (9) and (a)(11) through 

(16) of this section do not apply to any 

activity executed in accordance with the 

scope, purpose, terms, and conditions of 

a National Marine Sanctuary permit 

issued in accordance with subpart D of 

this part and § 922.83, or a special use 

permit issued pursuant to subpart D of 

this part. 

■ 16. Revise § 922.83 to read as follows: 

§ 922.83 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.82 (a)(2) 

through (9) and (a)(11) through (16) if 

such activity is specifically authorized 

by and conducted in accordance with 

the scope, purpose, terms and 

conditions of a permit issued under this 

section and subpart D of this part. 

(b) Applications for permits should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Greater Farallones 

National Marine Sanctuary, 991 Marine 

Dr., The Presidio, San Francisco, CA 

94129. 

Subpart I—Gray’s Reef National Marine 

Sanctuary 

■ 17. Amend § 922.90 to read as follows: 

§ 922.90 Boundary. 

The Gray’s Reef National Marine 

Sanctuary (Sanctuary) consists of 

approximately 16.68 square nautical 

miles (nmi2) (22 sq. mi.) of ocean waters 

and the submerged lands thereunder, off 

the coast of Georgia. The Sanctuary 

boundary includes all waters and 

submerged lands within the geodetic 

lines connecting the following 

coordinates. (Coordinates listed are 

unprojected (geographic) and based on 

the North American Datum of 1983.): 

Point Latitude Longitude 

1 ................ 31.36273 ¥80.92120 

2 ................ 31.42106 ¥80.92120 

3 ................ 31.42106 ¥80.82814 

4 ................ 31.36273 ¥80.82814 

5 ................ 31.36273 ¥80.92120 

■ 18. Amend § 922.91 by revising the 

introductory text to read as follows: 

§ 922.91 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

apply to this subpart: 

* * * * * 

■ 19. Amend § 922.92 by revising 

paragraphs (a) and (c) as follows: 

§ 922.92 Prohibited or otherwise regulated 

activities. 

(a) Except as may be necessary for 

national defense (subject to the terms 

and conditions of Article 5, Section 2 of 

the Designation Document) or to 

respond to an emergency threatening 

life, property, or the environment, or 

except as may be permitted by the 

Director in accordance with subpart D of 

this part and § 922.93 and § 922.94, the 

following activities are unlawful for any 

person to conduct or to cause to be 

conducted within the Sanctuary: 

* * * * * 

(c) The prohibitions in this section 

and in § 922.94 do not apply to any 

activity conducted under and in 

accordance with the scope, purpose, 

terms, and conditions of a National 

Marine Sanctuary permit issued 

pursuant to subpart D of this part and 

§ 922.93. 

* * * * * 

■ 20. Revise § 922.93 to read as follows: 

§ 922.93 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.92(a)(1) 

through (11), and § 922.94 if the activity 

is specifically authorized by and 

conducted in accordance within the 

scope, purpose, terms and conditions of 

a permit issued under this section and 

subpart D of this part. 

(b) Applications for such permits 

should be addressed to the Director, 

Office of National Marine Sanctuaries; 

ATTN: Superintendent, Gray’s Reef 

National Marine Sanctuary, 10 Ocean 

Science Circle, Savannah, GA 31411. 

Subpart J—National Marine Sanctuary 

of American Samoa 

■ 21. Amend § 922.101 by revising the 

introductory text and paragraph (a) to 

read as follows: 

§ 922.101 Boundary. 

The Sanctuary is comprised of six 

distinct units, forming a network of 

marine protected areas around the 

islands of the Territory of American 

Samoa. Tables containing the exact 

coordinates of each point described 

below can be found in Appendix to 

Subpart J—National Marine Sanctuary 

of American Samoa Boundary 

Coordinates. The total areal estimate of 

the six units combined is 10,255 nmi2

(13,581 sq. mi.). 

(a) Fagatele Bay Unit. The Fagatele 

Bay unit is a coastal embayment formed 

by a collapsed volcanic crater on the 

island of Tutuila, Territory of American 

Samoa, and includes Fagatele Bay in its 

entirety. The landward boundary is 

defined by the mean high high water 

line of Fagatele Bay until the point at 

which it intersects the seaward 

boundary of the Sanctuary as defined by 

a straight line between Fagatele Point 

(¥14.36527, ¥170.76932) and Steps 

Point (¥14.37291, ¥170.76056) from 

the point at which it intersects the mean 

high high water line seaward. 

* * * * * 

■ 22. Amend § 922.102 by— 

■ a. Revising the introductory text of 

§ 922.102; and 

■ b. Removing the definitions of 

‘‘Clean’’, ‘‘Fishing’’, ‘‘Harmful matter’’, 

and ‘‘Introduced species’’. 

The revision reads as follows: 

§ 922.102 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

apply to this subpart: 

* * * * * 

■ 23. Amend § 922.103 by revising 

paragraph (e) to read as follows: 

§ 922.103 Prohibited or otherwise 

regulated activities—Sanctuary-wide. 

* * * * * 

(e) The prohibitions in paragraphs 

(a)(2) through (15) of this section, 

§ 922.104, and § 922.105 do not apply to 

any activity conducted under and in 

accordance with the scope, purpose, 

terms, and conditions of a National 

Marine Sanctuary permit issued 

pursuant to subpart D of this part and 

§ 922.107. 

■ 24. Revise § 922.107 to read as 

follows: 

§ 922.107 Permit procedures. 

(a) Any person in possession of a 

valid permit issued by the Director, in 

consultation with the ASDOC, in 

accordance with this section and 

subpart D of the part may conduct an 

activity otherwise prohibited by 


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§ 922.103, § 922.104, and § 922.105 in 

the Sanctuary. 

(b) Permit applications shall be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Sanctuary Superintendent, American 

Samoa National Marine Sanctuary, P.O. 

Box 4318, Pago Pago, AS 96799. 

Subpart K—Cordell Bank National 

Marine Sanctuary 

■ 25. Amend § 922.110 by revising the 

first sentence to read as follows: 

§ 922.110 Boundary. 

The Cordell Bank National Marine 

Sanctuary (Sanctuary) boundary 

encompasses a total area of 

approximately 971 square nautical miles 

(nmi2) (1,286 sq. mi.) of offshore ocean 

waters, and submerged lands 

thereunder, surrounding the submarine 

plateau known as Cordell Bank along 

the northern coast of California, 

approximately 45 nautical miles westnorthwest of San Francisco, California. 

* * * 

§ 922.111 [Removed and Reserved] 

■ 26. Remove and reserve § 922.111. 

■ 27. Amend § 922.112 by revising 

paragraphs (b) and (d) as follows: 

§ 922.112 Prohibited or otherwise 

regulated activities. 

* * * * * 

(b) The prohibitions in paragraph (a) 

of this section do not apply to activities 

necessary to respond to an emergency 

threatening life, property or the 

environment, or except as may be 

permitted by the Director in accordance 

with subpart D of this part and 

§ 922.113. 

* * * * * 

(d) The prohibitions in paragraphs 

(a)(2) through (7) of this section do not 

apply to any activity executed in 

accordance with the scope, purpose, 

terms, and conditions of a National 

Marine Sanctuary permit issued 

pursuant to subpart D of this part and 

§ 922.113, or a special use permit issued 

pursuant to subpart D of this part. 

* * * * * 

■ 28. Revise § 922.113 to read as 

follows: 

§ 922.113 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.112 (a)(2) 

through (7) if the activity is specifically 

authorized by and conducted in 

accordance with the scope, purpose, 

terms and conditions of a permit issued 

under this section and subpart D of this 

part. 

(b) Applications for permits should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Cordell Bank National 

Marine Sanctuary, P.O. Box 159, Olema, 

CA 94950. 

Subpart L—Flower Garden Banks 

National Marine Sanctuary 

■ 29. Revise § 922.120 to read as 

follows: 

§ 922.120 Boundary. 

The Flower Garden Banks National 

Marine Sanctuary (the Sanctuary) 

consists of three separate areas of ocean 

waters over and surrounding the East 

and West Flower Garden Banks and 

Stetson Bank, and the submerged lands 

thereunder including the Banks, in the 

northwestern Gulf of Mexico. The area 

designated at the East Bank is located 

approximately 120 nautical miles (nmi) 

south-southwest of Cameron, Louisiana, 

and encompasses 19.20 square nautical 

miles (nmi2) (25 sq. mi.). The area 

designated at the West Bank is located 

approximately 110 nmi southeast of 

Galveston, Texas, and encompasses 

22.61 nmi2 (30 sq. mi.). The area 

designated at Stetson Bank is located 

approximately 70 nmi southeast of 

Galveston, Texas, and encompasses 0.64 

nmi2 (0.84 sq. mi.). The three areas 

encompass a total of 42.5 nmi2 (56 sq. 

mi.). The boundary coordinates for each 

area are listed in appendix A to this 

subpart. 

■ 30. Amend § 922.121 by— 

■ a. Revise the introductory text of 

§ 922.121; and 

■ b. Removing the definitions of 

‘‘Attract or attracting’’ and ‘‘Clean’’. 

The revision reads as follows: 

§ 922.121 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

applies to this subpart: 

* * * * * 

■ 31. Amend § 922.122 by revising 

paragraphs (a)(7), (f) and (h) to read as 

follows: 

§ 922.122 Prohibited or otherwise 

regulated activities. 

(a) * * * 

(7) Injuring, catching, harvesting, 

collecting or feeding, or attempting to 

injure, catch, harvest, collect or feed, 

any fish within the Sanctuary by use of 

longlines, traps, nets, bottom trawls or 

any other gear, device, equipment or 

means except by use of conventional 

hook and line gear. 

* * * * * 

(f) The prohibitions in paragraphs 

(a)(2) through (10) of this section do not 

apply to any activity specifically 

authorized by and conducted in 

accordance with the scope, purpose, 

terms, and conditions of a National 

Marine Sanctuary permit or ONMS 

authorization issued pursuant to subpart 

D of this part and § 922.123 or a special 

use permit issued pursuant to subpart D 

of this part. 

* * * * * 

(h) Notwithstanding paragraphs (f) 

and (g) of this section, in no event may 

the Director issue a National Marine 

Sanctuary permit under subpart D of 

this part and § 922.123 authorizing, or 

otherwise approve, the exploration for, 

development of, or production of oil, 

gas, or minerals in a no-activity zone. 

Any leases, permits, approvals, or other 

authorizations authorizing the 

exploration for, development of, or 

production of oil, gas, or minerals in a 

no-activity zone and issued after 

January 18, 1994 shall be invalid. 

■ 32. Revise § 922.123 to read as 

follows: 

§ 922.123 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.122(a) (2) 

through (10) if such activity is 

specifically authorized by and 

conducted in accordance with the 

scope, purpose, terms, and conditions of 

a permit issued under this section and 

subpart D of this part. 

(b) Applications for such permits 

should be addressed to the Director, 

Office of National Marine Sanctuaries; 

ATTN: Superintendent, Flower Garden 

Banks National Marine Sanctuary, 4700 

Avenue U, Building 216, Galveston, TX 

77551. 

■ 33. Revise Appendix A to Subpart L 

of Part 922 to read as follows: 

Appendix A to Subpart L of Part 922— 

Flower Garden Banks National Marine 

Sanctuary Boundary Coordinates 

Coordinates listed in this Appendix 

are unprojected (geographic) and based 

on the North American Datum of 1983. 


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Point Latitude (N) Longitude (W) 

East Flower Garden Bank 

E–1 ............................................................................................................................................................... 27.88190 ¥93.62829 

E–2 ............................................................................................................................................................... 27.89328 ¥93.63997 

E–3 ............................................................................................................................................................... 27.92073 ¥93.64469 

E–4 ............................................................................................................................................................... 27.95880 ¥93.64273 

E–5 ............................................................................................................................................................... 27.97462 ¥93.62963 

E–6 ............................................................................................................................................................... 27.98399 ¥93.59230 

E–7 ............................................................................................................................................................... 27.98374 ¥93.58618 

E–8 ............................................................................................................................................................... 27.92315 ¥93.57092 

E–9 ............................................................................................................................................................... 27.90140 ¥93.57206 

E–10 ............................................................................................................................................................. 27.89102 ¥93.58487 

E–11 ............................................................................................................................................................. 27.88140 ¥93.61605 

West Flower Garden Bank 

W–1 .............................................................................................................................................................. 27.81976 ¥93.84607 

W–2 .............................................................................................................................................................. 27.83704 ¥93.86973 

W–3 .............................................................................................................................................................. 27.85384 ¥93.88117 

W–4 .............................................................................................................................................................. 27.85927 ¥93.88090 

W–5 .............................................................................................................................................................. 27.88080 ¥93.87371 

W–6 .............................................................................................................................................................. 27.91720 ¥93.82896 

W–7 .............................................................................................................................................................. 27.91647 ¥93.81059 

W–8 .............................................................................................................................................................. 27.91006 ¥93.78636 

W–9 .............................................................................................................................................................. 27.90438 ¥93.78051 

W–10 ............................................................................................................................................................ 27.89350 ¥93.78106 

W–11 ............................................................................................................................................................ 27.88287 ¥93.78773 

W–12 ............................................................................................................................................................ 27.84479 ¥93.78964 

W–13 ............................................................................................................................................................ 27.81997 ¥93.81202 

Stetson Bank 

S–1 ............................................................................................................................................................... 28.15862 ¥94.30888 

S–2 ............................................................................................................................................................... 28.16950 ¥94.30839 

S–3 ............................................................................................................................................................... 28.16884 ¥94.28997 

S–4 ............................................................................................................................................................... 28.15796 ¥94.29047 

Subpart M—Monterey Bay National 

Marine Sanctuary 

■ 34. Revise § 922.130 introductory text 

and the first sentence of paragraph (b) 

to read as follows: 

§ 922.130 Boundary. 

The Monterey Bay National Marine 

Sanctuary (Sanctuary) consists of two 

separate areas. The combined area of 

both parts is approximately 4,601 square 

nautical miles (nmi2) (6,093 sq. mi.). (a) 

The first area consists of an area of 

approximately 4,016 square nautical 

miles (nmi2) (5,318 sq. mi.) of coastal 

and ocean waters, and submerged lands 

thereunder, in and surrounding 

Monterey Bay off the central coast of 

California. 

* * * * * 

(b) The Davidson Seamount 

Management Zone is also part of the 

Sanctuary. This area, bounded by 

geodetic lines connecting a rectangle 

centered on the top of the Davidson 

Seamount, consists of approximately 

585 square nmi (nmi2) (774 sq. mi.) of 

ocean waters and the submerged lands 

thereunder. * * * 

■ 35. Amend § 922.131 by— 

■ a. Revising the introductory text of 

§ 922.131; and 

■ b. Removing the definitions of 

‘‘Attract or attracting’’, ‘‘Clean’’, ‘‘Cruise 

ship’’, ‘‘Deserting’’, ‘‘Harmful matter’’, 

and ‘‘Introduced species’’. 

The revision reads as follows: 

§ 922.131 Definitions. 

In addition to those definitions found 

at 15 CFR 922.11, the following 

definitions apply to this subpart: 

* * * * * 

■ 36. Amend § 922.132 by revising 

paragraphs (c)(1) and (d) through (f) to 

read as follows: 

§ 922.132 Prohibited or otherwise 

regulated activities. 

* * * * * 

(c)(1) All Department of Defense 

activities must be carried out in a 

manner that avoids to the maximum 

extent practicable any adverse impacts 

on Sanctuary resources and qualities. 

The prohibitions in paragraphs (a)(2) 

through (11) and (a)(13) of this section 

do not apply to existing military 

activities carried out by the Department 

of Defense, as specifically identified in 

the Final Environmental Impact 

Statement and Management Plan for the 

Proposed Monterey Bay National 

Marine Sanctuary (NOAA, 1992). 

(Copies of the FEIS/MP are available 

from the Monterey Bay National Marine 

Sanctuary, 99 Pacific Street, Bldg. 455A, 

Monterey, California 93940.) For 

purposes of the Davidson Seamount 

Management Zone, these activities are 

listed in the 2008 Final Environmental 

Impact Statement. New activities may 

be exempted from the prohibitions in 

paragraphs (a)(2) through (11) and 

(a)(13) of this section by the Director 

after consultation between the Director 

and the Department of Defense. 

* * * * * 

(d) The prohibitions in paragraph 

(a)(1) of this section as it pertains to jade 

collection in the Sanctuary, and 

paragraphs (a)(2) through (11) and 

(a)(13) of this section, do not apply to 

any activity specifically authorized by 

and conducted in accordance with the 

scope, purpose, terms, and conditions of 

a National Marine Sanctuary permit 

issued pursuant to subpart D of this part 

and § 922.133 or a special use permit 

issued pursuant to subpart D of this 

part. 

(e) The prohibitions in paragraphs 

(a)(2) through (a)(13) of this section do 

not apply to any activity authorized by 


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any lease, permit, license, approval, or 

other authorization issued after the 

effective date of Sanctuary designation 

(January 1, 1993) and issued by any 

Federal, State, or local authority of 

competent jurisdiction, provided that 

the applicant complies with § 922.36, 

the Director notifies the applicant and 

authorizing agency that he or she does 

not object to issuance of the 

authorization, and the applicant 

complies with any terms and conditions 

the Director deems necessary to protect 

Sanctuary resources and qualities. 

Amendments and extensions of 

authorizations in existence on the 

effective date of designation constitute 

authorizations issued after the effective 

date of Sanctuary designation. 

(f) Notwithstanding paragraphs (d) 

and (e) of this section, in no event may 

the Director issue a National Marine 

Sanctuary permit or ONMS 

authorization under subpart D of this 

part authorizing, or otherwise approve, 

the exploration for, development, or 

production of oil, gas, or minerals 

within the Sanctuary, except for the 

collection of jade pursuant to paragraph 

(a)(1) of this section; the discharge of 

primary-treated sewage within the 

Sanctuary (except by certification, 

pursuant to § 922.10, of valid 

authorizations in existence on January 

1, 1993 and issued by other authorities 

of competent jurisdiction); or the 

disposal of dredged material within the 

Sanctuary other than at sites authorized 

by EPA (in consultation with COE) 

before January 1, 1993. Any purported 

authorizations issued by other 

authorities within the Sanctuary shall 

be invalid. 

■ 37. Revise § 922.133 to read as 

follows: 

§ 922.133 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.132(a)(1) 

as it pertains to jade collection in the 

Sanctuary, § 922.132(a)(2) through (11), 

and (a)(13) if conducted under and in 

accordance with the scope, purpose, 

terms and conditions of a permit issued 

under this section and subpart D of this 

part. 

(b) Applications for permits should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Monterey Bay National 

Marine Sanctuary, 99 Pacific Street, 

Bldg. 455A, Monterey, California 93940. 

Subpart N—Stellwagen Bank National 

Marine Sanctuary 

■ 38. Amend § 922.140 by revising the 

first sentence in paragraph (a) and 

revising paragraph (b) to read as follows: 

§ 922.140 Boundary. 

(a) The Stellwagen Bank National 

Marine Sanctuary (Sanctuary) consists 

of an area of approximately 639 square 

nautical miles (nmi2) (846 sq. mi.) of 

Federal marine waters and the 

submerged lands thereunder, over and 

around Stellwagen Bank and other 

submerged features off the coast of 

Massachusetts. * * * 

(b) The Sanctuary boundary is 

identified by the following coordinates, 

indicating the most northeast, southeast, 

southwest, west-northwest, and northnorthwest points: 42.76672 ¥70.21664 

(NE); 42.09330 ¥70.03506 (SE); 

42.12924 ¥70.47043 (SW); 42.54830 

¥70.59737 (WNW); and 42.65123 

¥70.50262 (NNW). The western border 

is formed by a straight line connecting 

the most southwest and the westnorthwest points of the Sanctuary. At 

the most west-northwest point, the 

Sanctuary border follows a line 

contiguous with the three-mile 

jurisdictional boundary of 

Massachusetts to the most northnorthwest point. From this point, the 

northern border is formed by a straight 

line connecting the most northnorthwest point and the most northeast 

point. The eastern border is formed by 

a straight line connecting the most 

northeast and the most southeast points 

of the Sanctuary. The southern border 

follows a straight line between the most 

southwest point and a point located at 

42.11526 ¥70.27800. From that point, 

the southern border then continues in a 

west-to-east direction along a line 

contiguous with the three-mile 

jurisdictional boundary of 

Massachusetts until reaching the most 

southeast point of the Sanctuary. The 

boundary coordinates are listed in 

appendix A to this subpart. 

■ 39. Amend § 922.141 by revising the 

introductory text and the definition of 

‘‘Industrial material’’ to read as follows: 

§ 922.141 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

apply to this subpart: 

Industrial material means mineral, as 

defined in § 922.11. 

* * * * * 

■ 40. Amend § 922.142 by revising 

paragraphs (d) and (f) to read as follows: 

§ 922.142 Prohibited or otherwise 

regulated activities: 

* * * * * 

(d) The prohibitions in paragraphs (a) 

(1) and (3) through (7) of this section do 

not apply to any activity specifically 

authorized by and conducted in 

accordance with the scope, purpose, 

terms, and conditions of a National 

Marine Sanctuary permit issued 

pursuant to subpart D of this part and 

§ 922.143 or a special use permit issued 

pursuant to subpart D of this part. 

* * * * * 

(f) Notwithstanding paragraphs (d) 

and (e) of this section, in no event may 

the Director issue a permit under 

subpart D of this part and § 922.143, or 

under section 310 of the act, 

authorizing, or otherwise approving, the 

exploration for, development or 

production of industrial materials 

within the Sanctuary, or the disposal of 

dredged materials within the Sanctuary 

(except by a certification, pursuant to 

§ 922.10, of valid authorizations in 

existence on November 4, 1992) and any 

leases, licenses, permits, approvals or 

other authorizations authorizing the 

exploration for, development or 

production of industrial materials in the 

Sanctuary issued by other authorities 

after November 4, 1992, shall be invalid. 

■ 41. Revise § 922.143 to read as 

follows: 

§ 922.143 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.142 (a)(1) 

and (3) through (7) if conducted under 

and in accordance with the scope, 

purpose, terms and conditions of a 

permit issued under this section and 

subpart D of this part. 

(b) Applications for such permits 

should be addressed to the Director, 

Office of National Marine Sanctuaries; 

ATTN: Superintendent, Stellwagen 

Bank National Marine Sanctuary, 175 

Edward Foster Road, Scituate, MA 

02066. 

■ 42. Revise Appendix A to Subpart N 

of Part 922 to read as follows: 

Appendix A to Subpart N of Part 922— 

Stellwagen Bank National Marine 

Sanctuary Boundary Coordinates 

Coordinates listed in this Appendix 

are unprojected (geographic) and based 

on the North American Datum of 1983. 

Point Latitude Longitude 

E1 ........ 42.76672 ¥70.21664 

E2 ........ 42.09330 ¥70.03506 

E3 ........ 42.10239 ¥70.05434 

E4 ........ 42.10081 ¥70.06707 

E5 ........ 42.11752 ¥70.08658 

E6 ........ 42.12038 ¥70.10607 

E7 ........ 42.12675 ¥70.12388 

E8 ........ 42.12853 ¥70.14005 

E9 ........ 42.13342 ¥70.15497 

E10 ...... 42.13481 ¥70.17292 

E11 ...... 42.13210 ¥70.19605 

E12 ...... 42.13339 ¥70.21707 

E13 ...... 42.12970 ¥70.23889 

E14 ...... 42.12435 ¥70.25585 


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Point Latitude Longitude 

E15 ...... 42.11526 ¥70.27800 

E16 ...... 42.12924 ¥70.47043 

E17 ...... 42.54830 ¥70.59737 

E18 ...... 42.55850 ¥70.58697 

E19 ...... 42.56347 ¥70.58388 

E20 ...... 42.57522 ¥70.57254 

E21 ...... 42.58075 ¥70.55558 

E22 ...... 42.58790 ¥70.54179 

E23 ...... 42.59504 ¥70.52843 

E24 ...... 42.60651 ¥70.51587 

E25 ...... 42.62107 ¥70.50588 

E26 ...... 42.63312 ¥70.50132 

E27 ...... 42.64245 ¥70.50130 

E28 ...... 42.65123 ¥70.50262 

Subpart O—Olympic Coast National 

Marine Sanctuary 

■ 43. Amend § 922.150 by revising 

paragraph (a) to read as follows: 

§ 922.150 Boundary. 

(a) The Olympic Coast National 

Marine Sanctuary (Sanctuary) consists 

of an area of approximately 2,408 square 

nautical miles (nmi2) (3,188 sq. mi.) of 

coastal and ocean waters, and the 

submerged lands thereunder, off the 

central and northern coast of the State 

of Washington. 

* * * * * 

■ 44. Amend § 922.151 by— 

■ a. Revising the introductory text; and 

■ b. Removing the definitions of 

‘‘Clean’’, ‘‘Cruise ship’’, and ‘‘Harmful 

matter’’. 

The revision reads as follows: 

§ 922.151 Definitions. 

In addition to those definitions found 

at § 922.11, the following definitions 

apply to this subpart: 

* * * * * 

■ 45. Amend § 922.152 by revising 

paragraphs (a)(5) introductory text, (e) 

and (h) to read as follows: 

§ 922.152 Prohibited or otherwise 

regulated activities: 

(a) * * * 

(5) Drilling into, dredging or 

otherwise altering the seabed of the 

Sanctuary; or constructing, placing or 

abandoning any structure, material or 

other matter on the submerged lands of 

the Sanctuary, except as an incidental 

result of: 

* * * * * 

(e) The prohibitions in paragraphs 

(a)(2) through (8) of this section do not 

apply to any activity specifically 

authorized by and conducted under and 

in accordance with the scope, purpose, 

terms and conditions of a National 

Marine Sanctuary permit or an ONMS 

authorization issued pursuant to subpart 

D of this part and § 922.153 or a special 

use permit issued pursuant to subpart D 

of this part 

* * * * * 

(h) Notwithstanding paragraphs (e) 

and (g) of this section, in no event may 

the Director issue a National Marine 

Sanctuary permit or ONMS 

authorization under subpart D of this 

part and § 922.153 or a special use 

permit under section 310 of the Act 

authorizing, or otherwise approve: The 

exploration for, development or 

production of oil, gas or minerals within 

the Sanctuary; the discharge of primarytreated sewage within the Sanctuary 

(except by certification, pursuant to 

§ 922.10, of valid authorizations in 

existence on July 22, 1994 and issued by 

other authorities of competent 

jurisdiction); the disposal of dredged 

material within the Sanctuary other 

than in connection with beach 

nourishment projects related to the 

Quillayute River Navigation Project; or 

bombing activities within the Sanctuary. 

Any purported authorizations issued by 

other authorities after July 22, 1994 for 

any of these activities within the 

Sanctuary shall be invalid. 

■ 46. Revise § 922.153 to read as 

follows: 

§ 922.153 Permit procedures. 

(a) A person may conduct an activity 

prohibited by § 922.152 (a)(2) through 

(8) if conducted in accordance with the 

scope, purpose, terms and conditions of 

a permit or ONMS authorization issued 

under this section and subpart D of this 

part. 

(b) Applications for such permits or 

ONMS authorizations should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Olympic Coast 

National Marine Sanctuary, 115 E 

Railroad Ave., Suite 301, Port Angeles, 

WA 98362. 

(c) The Director shall obtain the 

express written consent of the governing 

body of an Indian tribe prior to issuing 

a permit, if the proposed activity 

involves or affects resources of cultural 

or historical significance to the tribe. 

(d) Removal or attempted removal of 

any Indian cultural resource or artifact 

may only occur with the express written 

consent of the governing body of the 

tribe or tribes to which such resource or 

artifact pertains, and certification by the 

Director that such activities occur in a 

manner that minimizes damage to the 

biological and archeological resources. 

Prior to permitting entry onto a 

significant cultural site designated by a 

tribal governing body, the Director shall 

require the express written consent of 

the governing body of the tribe or tribes 

to which such cultural site pertains. 

(e) Where the issuance or denial of a 

permit is requested by the governing 

body of a Washington Coast treaty tribe, 

the Director shall consider and protect 

the interests of the tribe to the fullest 

extent practicable in keeping with the 

purposes of the Sanctuary and his or her 

fiduciary duties to the tribe. 

■ 47. Revise Appendix A to Subpart O 

of Part 922 to read as follows: 

Appendix A to Subpart O of Part 922— 

Olympic Coast National Marine 

Sanctuary Boundary Coordinates 

Coordinates listed in this Appendix 

are unprojected (geographic) and based 

on the North American Datum of 1983. 

Point Latitude Longitude 

1 .......... 47.12917 ¥124.18389 

2 .......... 47.12917 ¥124.97000 

3 .......... 47.58472 ¥125.00000 

4 .......... 47.66806 ¥125.07889 

5 .......... 47.83361 ¥125.09500 

6 .......... 47.95361 ¥125.48694 

7 .......... 48.12583 ¥125.63889 

8 .......... 48.25000 ¥125.68167 

9 .......... 48.30589 ¥125.50081 

10 ........ 48.33756 ¥125.38136 

11 ........ 48.44617 ¥125.15469 

12 ........ 48.45256 ¥125.14164 

13 ........ 48.46894 ¥125.09775 

14 ........ 48.49533 ¥125.00303 

15 ........ 48.49894 ¥124.98886 

16 ........ 48.50367 ¥124.91581 

17 ........ 48.50589 ¥124.84053 

18 ........ 48.50283 ¥124.78831 

19 ........ 48.49344 ¥124.72725 

20 ........ 48.46889 ¥124.63694 

21 ........ 48.38806 ¥124.63694 

Subpart P—Florida Keys National 

Marine Sanctuary 

■ 48. Revise § 922.161 to read as 

follows: 

§ 922.161 Boundary. 

The sanctuary consists of an area of 

approximately 2,872 square nautical 

miles (nmi2) (3,803 sq. mi.) of coastal 

and ocean waters, and the submerged 

lands thereunder, surrounding the 

Florida Keys in Florida. Appendix I to 

this subpart sets forth the precise 

Sanctuary boundary. 

■ 49. Amend § 922.162 by— 

■ a. Revising paragraphs (a) 

introductory text and (b); and 

■ b. Removing the definition of ‘‘Fish’’. 

The revisions read as follows: 

§ 922.162 Definitions. 

(a) The following definitions apply to 

the Florida Keys National Marine 

Sanctuary regulations. To the extent that 

a term appears in § 922.11 and this 


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section, the definition in this section 

governs. 

* * * * * 

(b) Other terms appearing in the 

regulations in this part are defined at 

§ 922.11, and/or in the Marine 

Protection, Research, and Sanctuaries 

Act (MPRSA), as amended, 33 U.S.C. 

1401 et seq. and 16 U.S.C. 1431 et seq. 

■ 50. Amend § 922.163 by revising 

paragraphs (b), (c) and (f) to read as 

follows: 

§ 922.163 Prohibited activities— 

Sanctuary-wide. 

* * * * * 

(b) Notwithstanding the prohibitions 

in this section and in § 922.164, and any 

access and use restrictions imposed 

pursuant thereto, a person may conduct 

an activity specifically authorized by 

and conducted in accordance with the 

scope, purpose, terms, and conditions of 

a National Marine Sanctuary permit 

issued pursuant to § 922.166 and 

subpart D of this part. 

(c) Notwithstanding the prohibitions 

in this section and in § 922.164, and any 

access and use restrictions imposed 

pursuant thereto, a person may conduct 

an activity specifically authorized by 

any valid Federal, State, or local lease, 

permit, license, approval, or other 

authorization issued after the effective 

date of these regulations, provided that 

the applicant complies with § 922.36, 

the Director notifies the applicant and 

authorizing agency that he or she does 

not object to issuance of the 

authorization, and the applicant 

complies with any terms and conditions 

the Director deems reasonably necessary 

to protect Sanctuary resources and 

qualities. Amendments of 

authorizations in existence on the 

effective date of these regulations 

constitute authorizations issued after 

the effective date of these regulations. 

* * * * * 

(f) In no event may the Director issue 

a certification, authorization, or permit 

under §§ 922.10, 922.163(c), 922.166, 

and subpart D of this part, respectively, 

authorizing, or otherwise approving, the 

exploration for, leasing, development, or 

production of minerals or hydrocarbons 

within the Sanctuary, the disposal of 

dredged material within the Sanctuary 

other than in connection with beach 

renourishment or Sanctuary restoration 

projects, or the discharge of untreated or 

primary treated sewage, and any 

purported authorizations issued by 

other authorities for any of these 

activities within the Sanctuary shall be 

invalid. 

* * * * * 

■ 52. Amend § 922.166 by revising 

paragraph (a) and removing and 

reserving paragraphs (e), (g), and (h) to 

read as follows: 

§ 922.166 Permits other than for access to 

the Tortugas Ecological Reserve— 

application procedures and issuance 

criteria. 

(a) A person may conduct an activity 

otherwise prohibited by §§ 922.163 or 

922.164 if the activity is specifically 

allowed by and conducted in 

accordance with the scope, purpose, 

terms and conditions of a permit issued 

under this section and subpart D of this 

part. 

(1) Applications for permits should be 

addressed to the Director, Office of 

National Marine Sanctuaries; ATTN: 

Superintendent, Florida Keys National 

Marine Sanctuary, 33 East Quay Road, 

Key West, FL 33040. 

(2) For activities proposed to be 

conducted within any of the areas 

described in § 922.164 (b)–(e), the 

Director shall not issue a permit unless 

he or she further finds that such 

activities will further and are consistent 

with the purposes for which such area 

was established, as described in 

§§ 922.162 and 922.164 and in the 

management plan for the Sanctuary. 

(3) A person may conduct an activity 

otherwise prohibited by §§ 922.163 or 

922.164, if such activity is specifically 

allowed by and conducted in 

accordance with the scope, purpose, 

terms and conditions of a permit issued 

under this section and subpart D of this 

part, and any additional permit issuance 

criteria and requirements in 922.166(b), 

(c), (f) and (i) to (m). 

* * * * * 

Subpart Q—Hawaiian Islands 

Humpback Whale National Marine 

Sanctuary 

■ 53. Amend § 922.181 by revising 

paragraph (a) introductory text to read 

as follows: 

§ 922.181 Boundary. 

(a) Except for excluded areas 

described in paragraph (b) of this 

section, the Hawaiian Islands 

Humpback Whale National Marine 

Sanctuary encompasses approximately 

1,032 square nautical miles (nmi2) 

(1,366 sq. mi.), and consists of the 

submerged lands and waters off the 

coast of the Hawaiian Islands seaward 

from the shoreline, cutting across the 

mouths of rivers and streams: 

* * * * * 

■ 54. Amend § 922.182 by revising 

paragraph (b) to read as follows: 

§ 922.182 Definitions. 

* * * * * 

(b) Other terms appearing in the 

regulations in this subpart are defined at 

15 CFR 922.11, and/or in the Marine 

Protection, Research, and Sanctuaries 

Act, as amended, 33 U.S.C. 1401 et seq., 

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

■ 55. In Appendix A to Subpart Q of 

Part 922 amend section B by revising 

the table and amend section C by 

revising the table to read as follows: 

Appendix A to Subpart Q of Part 922— 

Hawaiian Islands Humpback Whale, 

National Marine Sanctuary Boundary 

Description and Coordinates of the 

Lateral Boundary Closures and 

Excluded Areas. 

* * * * * 

B. Lateral Closure Bounds for the 

Hawaiian Islands Humpback Whale 

National Marine Sanctuary Boundary 

(see Figure 2). 

* * * * * 

Bound No. 

(Fig. 2) Geographic name Number of points Latitude Longitude 

1a ...................... Kailiu Pt., Kauai ................................................................................ 2 22.22353 ¥159.58117 

1b ...................... Kailiu Pt., Kauai ................................................................................ ........................ 22.27597 ¥159.59983 

2a ...................... Mokolea Pt., Kauai ........................................................................... 2 22.22497 ¥159.38217 

2b ...................... Mokolea Pt., Kauai ........................................................................... ........................ 22.24872 ¥159.37203 

3a ...................... Puaena Pt., N. Oahu ........................................................................ 2 21.64017 ¥158.14056 

3b ...................... Puaena Pt., N. Oahu ........................................................................ ........................ 21.60233 ¥158.10681 

4a ...................... Mahie Pt., N. Oahu .......................................................................... 2 21.56036 ¥157.86442 

4b ...................... Mahie Pt., N. Oahu .......................................................................... ........................ 21.59228 ¥157.83486 

5a ...................... Kapahulu Groin, S. Oahu ................................................................. 3 21.25158 ¥157.84097 

5b ...................... Kapahulu Groin, S. Oahu ................................................................. ........................ 21.26836 ¥157.82381 

5c ...................... Kapahulu Groin, S. Oahu ................................................................. ........................ 21.26839 ¥157.82328 


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Bound No. 

(Fig. 2) Geographic name Number of points Latitude Longitude 

6a ...................... Makapuu Pt., S. Oahu ...................................................................... 2 21.31100 ¥157.64908 

6b ...................... Makapuu Pt., S. Oahu ...................................................................... ........................ 21.32908 ¥157.59614 

7a ...................... Ilio Pt, Molokai .................................................................................. 2 21.22381 ¥157.31272 

7b ...................... Ilio Pt, Molokai .................................................................................. ........................ 21.22417 ¥157.25400 

8a ...................... Pailolo Channel, C. Halawa to Lipoa Pt .......................................... 2 21.02494 ¥156.63944 

8b ...................... Pailolo Channel, C. Halaw to Lipoa Pt ............................................ ........................ 21.15819 ¥156.71033 

9a ...................... Hanamanoia Lighthouse, Maui ........................................................ 2 20.57272 ¥156.44753 

9b ...................... Hanamanoia Lighthouse, Maui ........................................................ ........................ 20.58289 ¥156.41256 

10a .................... 3 Nmi. closure around Kahoolawe ................................................... 51 20.59947 ¥156.49222 

10b .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.59997 ¥156.49250 

10c .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.60108 ¥156.49319 

10d .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.60183 ¥156.49358 

10e .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.60453 ¥156.49531 

10f ..................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.60714 ¥156.49719 

10g .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.60961 ¥156.49925 

10h .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.61108 ¥156.50061 

10i ..................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.61217 ¥156.50153 

10j ..................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.61411 ¥156.50336 

10k .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.61639 ¥156.50458 

10l ..................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63297 ¥156.50631 

10m ................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.62169 ¥156.50819 

10n .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.62417 ¥156.51022 

10o .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.62653 ¥156.51244 

10p .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.62872 ¥156.51483 

10q .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63081 ¥156.51733 

10r ..................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63233 ¥156.51944 

10s .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63306 ¥156.52033 

10t ..................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63500 ¥156.52297 

10u .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63572 ¥156.52411 

10v .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63633 ¥156.52497 

10w ................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63811 ¥156.52775 

10x .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63858 ¥156.52861 

10y .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.63983 ¥156.53011 

10z .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64175 ¥156.53278 

10aa .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64350 ¥156.53553 

10bb .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64511 ¥156.53842 

10cc .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64539 ¥156.53903 

10dd .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64622 ¥156.54053 

10ee .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64764 ¥156.54353 

10ff .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64889 ¥156.54658 

10gg .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.64994 ¥156.54975 

10hh .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65083 ¥156.55297 

10ii .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65111 ¥156.55436 

10jj .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65122 ¥156.55472 

10kk .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65147 ¥156.55586 

10ll .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65189 ¥156.55797 

10mm ................ 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65239 ¥156.56131 

10nn .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65247 ¥156.56233 

10oo .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65269 ¥156.56378 

10pp .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65281 ¥156.56494 

10qq .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65306 ¥156.56675 

10rr .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65336 ¥156.57011 

10ss .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65347 ¥156.57344 

10tt .................... 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65344 ¥156.57372 

10uu .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65350 ¥156.57514 

10vv .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65339 ¥156.57850 

10ww ................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65328 ¥156.57992 

10xx .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65325 ¥156.58025 

10yy .................. 3 Nmi. closure around Kahoolawe ................................................... ........................ 20.65314 ¥156.58217 

11a .................... Technical Closure ............................................................................. 2 20.69422 ¥156.61875 

11b .................... Technical Closure ............................................................................. ........................ 20.69583 ¥156.63433 

12a .................... Upolu Pt., Hawaii (Big Island) .......................................................... 2 20.26814 ¥155.85014 

12b .................... Upolu Pt., Hawaii (Big Island) .......................................................... ........................ 20.29997 ¥155.85478 

13a .................... Keahole Pt., Hawaii (Big Island) ...................................................... 2 19.72767 ¥156.06186 

13b .................... Keahole Pt., Hawaii (Big Island) ...................................................... ........................ 19.72819 ¥156.07069 

C. Excluded Ports and Harbors Bounds 

(see Figure 3). 

* * * * * 


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29640 Federal Register / Vol. 87, No. 93 / Friday, May 13, 2022 / Rules and Regulations 

Bound No. 

(Fig. 2) Geographic name Number of points Latitude Longitude 

14a .................... Kawaihae Harbor, Big Island exclusion ........................................... 2 20.03731 ¥155.83403 

14b .................... Kawaihae Harbor, Big Island exclusion ........................................... ........................ 20.04036 ¥155.83269 

15a .................... Haleolono Harbor, Molokai exclusion .............................................. 2 21.08431 ¥157.24961 

15b .................... Haleolono Harbor, Molokai exclusion .............................................. ........................ 21.08467 ¥157.24867 

16a .................... Kaunakakai Harbor, Molokai exclusion ............................................ 4 21.08719 ¥157.02658 

16b .................... Kaunakakai Harbor, Molokai exclusion ............................................ ........................ 21.08033 ¥157.03286 

16c .................... Kaunakakai Harbor, Molokai exclusion ............................................ ........................ 21.07736 ¥157.02811 

16d .................... Kaunakakai Harbor, Molokai exclusion ............................................ ........................ 21.08539 ¥157.02083 

17a .................... Kaumalapau Harbor, Lanai exclusion .............................................. 2 20.78589 ¥156.99228 

17b .................... Kaumalapau Harbor, Lanai exclusion .............................................. ........................ 20.78364 ¥156.99203 

18a .................... Manele Harbor, Lanai exclusion ...................................................... 2 20.74256 ¥156.88692 

18b .................... Manele Harbor, Lanai exclusion ...................................................... ........................ 20.74311 ¥156.88725 

19a .................... Lahaina Harbor, Maui exclusion ...................................................... 2 20.87175 ¥156.67917 

19b .................... Lahaina Harbor, Maui exclusion ...................................................... ........................ 20.87189 ¥156.67889 

20a .................... Maalaea Harbor, Maui exclusion ..................................................... 2 20.79225 ¥156.50972 

20b .................... Maalaea Harbor, Maui exclusion ..................................................... ........................ 20.79022 ¥156.51100 

21a .................... Western closure Kuapa Pond (Hawaii Kai), Oahu .......................... 2 21.28528 ¥157.71881 

21b .................... Western closure Kuapa Pond (Hawaii Kai), Oahu .......................... ........................ 21.28514 ¥157.71861 

22a .................... Eastern closure Kuapa Pond (Hawaii Kai), Oahu ........................... 2 21.28147 ¥157.71186 

22b .................... Eastern closure Kuapa Pond (Hawaii Kai), Oahu ........................... ........................ 21.28108 ¥157.71119 

Subpart R—Thunder Bay Bank 

National Marine Sanctuary And 

Underwater Preserve 

■ 56. Amend § 922.190 by revising 

paragraph (a) to read as follows: 

§ 922.190 Boundary. 

(a) Except as provided in paragraph 

(b) of this section, the Thunder Bay 

National Marine Sanctuary and 

Underwater Preserve (Sanctuary) 

consists of an area of approximately 

3,247 square nautical miles (nmi2) 

(4,300 sq. mi.) of waters of Lake Huron 

and the submerged lands thereunder, 

over, around, and under the underwater 

cultural resources in Thunder Bay. The 

eastern boundary of the sanctuary 

begins at the intersection of the 

southern Alcona County boundary and 

the U.S./Canada international boundary 

(Point 1). The eastern boundary of the 

sanctuary approximates the 

international boundary passing through 

Points 2–5. The boundary continues 

west through Point 6 and then back to 

the northeast until it intersects with the 

45.83333°N line of latitude at Point 7. 

The northern boundary follows the line 

of latitude 45.83333°N westward until it 

intersects the ¥84.33333°W line of 

longitude at Point 8. The western 

boundary extends south along the 

¥84.33333°W line of longitude towards 

Point 9 until it intersects the ordinary 

high water mark at Cordwood Point. 

From there, the western boundary 

follows the ordinary high water mark as 

defined by Part 325, Great Lakes 

Submerged Lands, of P.A. 451 (1994), as 

amended, cutting across the mouths of 

rivers and streams until it intersects the 

line formed between Point 10 and Point 

11 south of Rogers City, MI. From there 

the boundary moves offshore through 

Points 11–15 in order until it intersects 

the ordinary high water mark along the 

line formed between Point 15 and Point 

16. At this intersection the boundary 

continues to follow the ordinary high 

water mark south until it intersects with 

the line formed between Point 17 and 

Point 18 near Stoneport Harbor Light in 

Presque Isle, MI. 

* * * * * 

§ 922.194 [Removed and Reserved]. 

■ 57. Remove and reserve § 922.194. 

■ 58. Revise § 922.195 to read as 

follows: 

§ 922.195 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.193 (a)(1) 

through (3), if the activity is specifically 

authorized by and conducted in 

accordance with the scope, purpose, 

terms and conditions of a State Permit 

provided that: 

(1) The State Archaeologist certifies to 

NOAA that the activity authorized 

under the State Permit will be 

conducted consistent with the 

Programmatic Agreement, in which case 

such State Permit shall be deemed to 

have met the requirements of subpart D 

of this part; or 

(2) In the case where the State 

Archaeologist does not certify that the 

activity to be authorized under a State 

Permit will be conducted consistent 

with the Programmatic Agreement, the 

person complies with the requirements 

of subpart D of this part. 

(b) In instances where the conduct of 

an activity is prohibited by § 922.193 

(a)(1) through (3) is not addressed under 

a State or other Federal lease, license, 

permit or other authorization, a person 

may conduct such activity if it is 

specifically authorized by and 

conducted in accordance with the 

scope, purpose, terms, and conditions of 

a permit issued pursuant to subpart D of 

this part and the Programmatic 

Agreement. 

(c) A permit for recovery of an 

underwater cultural resource may be 

issued if: 

(1) The proposed activity satisfies the 

requirements for permits described 

under paragraphs (a) through (b) of this 

section and section 922.33; 

(2) The recovery of the underwater 

cultural resource is in the public 

interest; 

(3) Recovery of the underwater 

cultural resource is part of research to 

preserve historic information for public 

use; and 

(4) Recovery of the underwater 

cultural resource is necessary or 

appropriate to protect the resource, 

preserve historical information, or 

further the policies of the Sanctuary. 

(d) A person shall file an application 

for a permit with the Michigan 

Department of Environmental Quality, 

Land and Water Management Division, 

P.O. Box 30458, Lansing, MI, 48909– 

7958. The application shall contain all 

of the following information: 

(1) The name and address of the 

applicant; 

(2) Research plan that describes in 

detail the specific research objectives 

and previous work done at the site. An 

archaeological survey must be 

conducted on a site before an 

archaeological permit allowing 

excavation can be issued; 

(3) Description of significant previous 

work in the area of interest, how the 

proposed effort would enhance or 


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Federal Register / Vol. 87, No. 93 / Friday, May 13, 2022 / Rules and Regulations 29641 

contribute to improving the state of 

knowledge, why the proposed effort 

should be performed in the Sanctuary, 

and its potential benefits to the 

Sanctuary; 

(4) An operational plan that describes 

the tasks required to accomplish the 

project’s objectives and the professional 

qualifications of those conducting and 

supervising those tasks (see paragraph 

(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. 

■ 59. Revise Appendix A to Subpart R 

of Part 922 to read as follows: 

Appendix A to Subpart R of Part 922— 

Thunder Bay National Marine 

Sanctuary and Underwater Preserve 

Boundary Coordinates 

Coordinates listed in this Appendix 

are unprojected (geographic) and based 

on the North American Datum of 1983. 

Point Latitude Longitude 

1 .......... 45.20708 ¥83.38850 

2 .......... 45.20708 ¥83.00000 

3 .......... 44.85847 ¥83.00000 

4 .......... 44.85847 ¥83.32147 

Subpart S—Mallows Bay-Potomac 

River National Marine Sanctuary 

■ 60. Revise § 922.205 to read as 

follows: 

§ 922.205 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § 922.203 (a)(1) 

and (2) if conducted under and in 

accordance with the scope, purpose, 

terms and conditions of a permit issued 

under this section and subpart D of this 

part. 

(b) Applications for such permits 

should be addressed to the Director, 

Office of National Marine Sanctuaries; 

ATTN: Superintendent, Mallows Bay— 

Potomac River National Marine 

Sanctuary, 1305 East-West Highway, 

Silver Spring, MD 20910. 

■ 61. Amend § 922.206 by revising 

paragraphs (a) and (j) to read as follows: 

§ 922.206 Certification of preexisting 

leases, licenses, permits, approvals, other 

authorizations, or rights to conduct a 

prohibited activity. 

(a) A person may conduct an activity 

prohibited by § 922.203(a)(1) through (3) 

if such activity is specifically authorized 

by a valid Federal, state, or local lease, 

permit, license, approval, or other 

authorization, or tribal right of 

subsistence use or access in existence 

prior to the effective date of sanctuary 

designation and within the sanctuary 

designated area and complies with 

§ 922.10 and provided that the holder of 

the lease, permit, license, approval, or 

other authorization complies with the 

requirements of paragraph (e) of this 

section. 

* * * * * 

(j) The holder may appeal any action 

conditioning, amending, suspending, or 

revoking any certification in accordance 

with the procedures set forth in 

§ 922.37. 

* * * * * 

Subpart T—Wisconsin Shipwreck 

Coast National Marine Sanctuary 

■ 62. Revise § 922.215 to read as 

follows: 

§ 922.215 Permit procedures. 

(a) A person may conduct an activity 

otherwise prohibited by § § 922.213 (a) 

(1) and (2) if conducted under and in 

accordance with the scope, purpose, 

terms and conditions of a permit issued 

under this section and subpart D of this 

part. 

(b) Applications for such permits 

should be addressed to the Director, 

Office of National Marine Sanctuaries; 

ATTN: Superintendent, Wisconsin 

Shipwreck Coast National Marine 

Sanctuary, 1305 East-West Highway, 

Silver Spring, MD 20910. 

■ 63. Amend § 922.216 by revising 

paragraphs (a) and (j) to read as follows: 

§ 922.216 Certification of preexisting 

leases, licenses, permits, approvals, other 

authorizations, or rights to conduct a 

prohibited activity. 

(a) A person may conduct an activity 

prohibited by § 922.213(a)(1) through (3) 

if such activity is specifically authorized 

by a valid Federal, state, or local lease, 

permit, license, approval, or other 

authorization, or tribal right of 

subsistence use or access in existence 

prior to the effective date of sanctuary 

designation and within the sanctuary 

designated area and complies with 

§ 922.10 and provided that the holder of 

the lease, permit, license, approval, or 

other authorization complies with the 

requirements of paragraph (e) of this 

section. 

* * * * * 

(j) The holder may appeal any action 

conditioning, amending, suspending, or 

revoking any certification in accordance 

with the procedures set forth in 

§ 922.37. 

* * * * * 

[FR Doc. 2022–09626 Filed 5–12–22; 8:45 am] 

BILLING CODE 3510–NK–P 


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