  Dec. 12, 2019

      Title 15
      Commerce and Foreign Trade
      Part 800 to End
      Revised as of January 1, 2020
      Containing a codification of documents of general applicability and future effect
      As of January 1, 2020

        Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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      Table of Contents
      Page

        Explanation
        vi

        Title 15:

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

          Chapter VIII—Bureau of Economic Analysis, Department of Commerce
          5

          Chapter IX—National Oceanic and Atmospheric Administration, Department of Commerce
          19

          Chapter XI—National Technical Information Service, Department of Commerce
          463

          Chapter XIII—East-West Foreign Trade Board
          477

          Chapter XIV—Minority Business Development Agency
          481

          SUBTITLE C—Regulations Relating to Foreign Trade Agreements

          Chapter XX—Office of the United States Trade Representative
          489

          SUBTITLE D—Regulations Relating to Telecommunications and Information

          Chapter XXIII—National Telecommunications and Information Administration, Department of Commerce
          549

        Finding Aids:
        Table of CFR Titles and Chapters
        555
        Alphabetical List of Agencies Appearing in the CFR
        575

        List of CFR Sections Affected
        585

      Cite this Code: CFR

      To cite the regulations in this volume use title, part and section number. Thus, 15 CFR 801.1 refers to title 15, part 801, section 1.

      Explanation
      The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
      Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

        Title 1 through Title 16
        as of January 1
        Title 17 through Title 27
        as of April 1
        Title 28 through Title 41
        as of July 1
        Title 42 through Title 50
        as of October 1

      The appropriate revision date is printed on the cover of each volume.

        LEGAL STATUS
        The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).

        HOW TO USE THE CODE OF FEDERAL REGULATIONS
        The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.
        To determine whether a Code volume has been amended since its revision date (in this case, January 1, 2020), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.

        EFFECTIVE AND EXPIRATION DATES
        Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.

        OMB CONTROL NUMBERS

        The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.

        PAST PROVISIONS OF THE CODE
        Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a “List of CFR Sections Affected” is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

        “[RESERVED]” TERMINOLOGY
        The term “[Reserved]” is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a “[Reserved]” location at any time. Occasionally “[Reserved]” is used editorially to indicate that a portion of the CFR was left vacant and not dropped in error.

        INCORPORATION BY REFERENCE

          What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

          What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:
        (a) The incorporation will substantially reduce the volume of material published in the Federal Register.
        (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.
        (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

          What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010.

        CFR INDEXES AND TABULAR GUIDES

        A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

        An index to the text of “Title 3—The President” is carried within that volume.

        The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.
        A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

        REPUBLICATION OF MATERIAL
        There are no restrictions on the republication of material appearing in the Code of Federal Regulations.

        INQUIRIES
        For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.

        For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail fedreg.info@nara.gov.

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        ELECTRONIC SERVICES

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        The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) website for public law numbers, Federal Register finding aids, and related information. Connect to NARA's website at www.archives.gov/federal-register.

        The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

          Oliver A. Potts,

          Director,

          Office of the Federal Register

          January 1, 2020

      THIS TITLE
      Title 15—Commerce and Foreign Trade is composed of three volumes. The parts in these volumes are arranged in the following order: Parts 0-299, 300-799, and part 800-End. The first volume containing parts 0-299 is comprised of Subtitle A—Office of the Secretary of Commerce, Subtitle B, chapter I—Bureau of the Census, Department of Commerce, and chapter II—National Institute of Standards and Technology, Department of Commerce. The second volume containing parts 300-799 is comprised of chapter III—International Trade Administration, Department of Commerce, chapter IV—Foreign-Trade Zones Board, and chapter VII—Bureau of Industry and Security, Department of Commerce. The third volume containing part 800-End is comprised of chapter VIII—Bureau of Economic Analysis, Department of Commerce, chapter IX—National Oceanic and Atmospheric Administration, Department of Commerce, chapter XI—Technology Administration, Department of Commerce, chapter XIII—East-West Foreign Trade Board, chapter XIV—Minority Business Development Agency, chapter XX—Office of the United States Trade Representative, and chapter XXIII—National Telecommunications and Information Administration, Department of Commerce. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2020.
      For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

    15 CFR Ch. VIII (1-1-20 Edition)
    Bureau of Economic Analysis, Commerce

        Title 15—Commerce and Foreign Trade
        (This book contains part 800-end)

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

        Part

            chapter viii—Bureau of Economic Analysis, Department of Commerce
          801

            chapter ix—National Oceanic and Atmospheric Administration, Department of Commerce
          902

            chapter xi—National Technical Information Service, Department of Commerce
          1180

            chapter xiii—East-West Foreign Trade Board
          1300

            chapter xiv—Minority Business Development Agency
          1400

          SUBTITLE C—Regulations Relating to Foreign Trade Agreements

            chapter xx—Office of the United States Trade Representative
          2001

          SUBTITLE D—Regulations Relating to Telecommunications and Information

            chapter xxiii—National Telecommunications and Information Administration, Department of Commerce
          2301

      Subtitle B—Regulations Relating to Commerce and Foreign Trade (Continued)

            CHAPTER VIII—BUREAU OF ECONOMIC ANALYSIS, DEPARTMENT OF COMMERCE

          Part
          Page

            800
            [Reserved]
            801
            Survey of international trade in services between U.S. and foreign persons and surveys of direct investment
            7
            806-899
            [Reserved]

          PART 800 [RESERVED]

          Pt. 801
          PART 801—SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. AND FOREIGN PERSONS AND SURVEYS OF DIRECT INVESTMENT

            Sec.
            801.1
            Purpose.
            801.2
            Definitions.
            801.3
            Reporting requirements.
            801.4
            Recordkeeping requirements.
            801.5
            Confidentiality.
            801.6
            Penalties specified by law.
            801.7
            Rules and regulations for the BE-13, Survey of New Foreign Direct Investment in the United States.
            801.8
            Rules and regulations for the BE-10, Benchmark Survey of U.S. Direct Investment Abroad.
            801.9
            Rules and regulations for the BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons—2014.
            801.10
            Rules and regulations for BE-12, Benchmark Survey of Foreign Direct Investment in the United States—2017.
            801.11
            Rules and regulations for the BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons—2017.
            801.12
            Rules and regulations for the BE-140 Benchmark Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons—2018.

            Authority:
            5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 Comp. p. 173); and E.O. 12518 (3 CFR, 1985 Comp. p. 348).

            Source:
            77 FR 24374, Apr. 24, 2012, unless otherwise noted.

            § 801.1
            Purpose.
            The purpose of this part is to provide general information on international trade in services and direct investment data collection programs and analyses under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101 to 3108, as amended) (the Act). The purpose of the Act is to provide for the collection of comprehensive and reliable information pertaining to international investment, including international trade in services and direct investment, and to do so with a minimum of burden on respondents and with no unnecessary duplication of effort.

            § 801.2
            Definitions.
            For purposes of the Act and for reporting requirements under this part:
            (a) United States, when used in a geographic sense, means the several States, the District of Columbia, the Commonwealth of Puerto Rico, and all territories and possessions of the United States.
            (b) Foreign, when used in a geographic sense, means that which is situated outside the United States or which belongs to or is characteristic of a country other than the United States.
            (c) Person means any individual, branch, partnership, associated group, association, estate, trust, corporation, or other organization (whether or not organized under the laws of any State), and any government (including a foreign government, the United States Government, a State or local government, and any agency, corporation, financial institution, or other entity or instrumentality thereof, including a government-sponsored agency).
            (d) United States person means any person resident in the United States or subject to the jurisdiction of the United States.
            (e) Foreign person means any person resident outside the United States or subject to the jurisdiction of a country other than the United States.
            (f) Business enterprise means any organization, association, branch, or venture which exists for profit-making purposes or to otherwise secure economic advantage, and any ownership of any real estate.
            (g) Services are economic activities whose outputs are other than tangible goods. This term includes, but is not limited to, banking, other financial services, insurance, transportation, communications and data processing, retail and wholesale trade, advertising, accounting, construction, design, engineering, management consulting, real estate, professional services, entertainment, education, and health care.
            (h) International investment means:

            (1) The ownership or control, directly or indirectly, by contractual commitment or otherwise, by foreign persons of any interest in property in the United States, or of stock, other securities, or short- and long-term debt obligations of a United States person; and
            (2) The ownership or control, directly or indirectly, by contractual commitment or otherwise, by United States persons of any interest in property outside the United States, or of stock, other securities, or short- and long-term debt obligations of a foreign person.
            (i) Direct investment means the ownership or control, directly or indirectly, by one person of 10 percent or more of the voting securities of an incorporated business enterprise or an equivalent interest in an unincorporated business enterprise.

            § 801.3
            Reporting requirements.
            Except for surveys subject to rulemaking in §§ 801.7, 801.8, 801.9, 801.10, 801.11, and 801.12 reporting requirements for all other surveys conducted by the Bureau of Economic Analysis shall be as follows:

            (a) Notice of specific reporting requirements, including who is required to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be published by the Director of the Bureau of Economic Analysis in the Federal Register prior to the implementation of a survey;
            (b) In accordance with section 3104(b)(2) of title 22 of the United States Code, persons notified of these surveys and subject to the jurisdiction of the United States shall furnish, under oath, any report containing information which is determined to be necessary to carry out the surveys and studies provided for by the Act; and
            (c) Persons not notified in writing of their filing obligation by the Bureau of Economic Analysis are not required to complete the survey.
            [84 FR 27199, June 12, 2019]

            § 801.4
            Recordkeeping requirements.
            In accordance with section 3104(b)(1) of title 22 of the United States Code, persons subject to the jurisdiction of the United States shall maintain any information essential for carrying out the surveys and studies provided for by the Act.
            [79 FR 47575, Aug. 14, 2014, as amended at 79 FR 53291, Sept. 9, 2014; 79 FR 69759, Nov. 24, 2014]

            § 801.5
            Confidentiality.
            Information collected pursuant to 3104(c) of title 22 of the United States Code is confidential.
            (a) Access to this information shall be available only to officials and employees (including consultants and contractors and their employees) of agencies designated by the President to perform functions under the Act.
            (b) Subject to paragraph (d) of this section, the President may authorize the exchange of information between agencies or officials designated to perform functions under the Act.
            (c) Nothing in this part shall be construed to require any Federal agency to disclose information otherwise protected by law.
            (d) This information shall be used solely for analytical or statistical purposes or for a proceeding under § 801.6.
            (e) No official or employee (including consultants and contractors and their employees) shall publish or make available to any other person any information collected under the Act in such a manner that the person to whom the information relates can be specifically identified.
            (f) Reports and copies of reports prepared pursuant to the Act are confidential and their submission or disclosure shall not be compelled by any person without the prior written permission of the person filing the report and the customer of such person where the information supplied is identifiable as being derived from the records of such customer.

            § 801.6
            Penalties specified by law.
            (a) Civil penalties. Whoever fails to furnish any information required by the Act or to comply with any rule, regulation, order or instruction promulgated under the Act shall be subject to a civil penalty of not less than $2,500, and not more than $25,000, and to injunctive relief commanding such person to comply, or both (see 22 U.S.C. 3105(a) and (b)). These civil penalties are subject to inflationary adjustments (15 CFR 6.4.).
            (b) Criminal penalties. Whoever willfully fails to submit any information required by the Act or willfully violates any rule, regulation, order or instruction promulgated under the Act, upon conviction, shall be fined not more than $10,000 and, if an individual, may be imprisoned for not more than one year, or both. Any officer, director, employee, or agent of any corporation who knowingly participates in such violations, upon conviction, may be punished by a like fine, imprisonment or both (see 22 U.S.C. 3105(c)).

            § 801.7
            Rules and regulations for the BE-13, Survey of New Foreign Direct Investment in the United States.
            The BE-13, Survey of New Foreign Direct Investment in the United States, is conducted to collect data on the acquisition or establishment of U.S. business enterprises by foreign investors and the expansion of existing U.S. affiliates of foreign companies to establish new facilities where business is conducted. Foreign direct investment is defined as the ownership or control by one foreign person (foreign parent) of 10 percent or more of the voting securities of an incorporated U.S. business enterprise, or an equivalent interest of an unincorporated U.S. business enterprise, including a branch. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-13 survey are given in paragraphs (a) through (d) of this section. More detailed instructions are given on the report forms and instructions.
            (a) Response required. A response is required from persons subject to the reporting requirements of the BE-13, Survey of New Foreign Direct Investment in the United States, contained herein, whether or not they are contacted by BEA. Also, persons, or their agents, that are contacted by BEA about reporting in this survey, either by sending them a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by filing the properly completed BE-13 report (BE-13A, BE-13B, BE-13D, BE-13E, or BE-13 Claim for Exemption).
            (b) Who must report. A BE-13 report is required of any U.S. business enterprise, except certain private funds, see exception in paragraph (b)(4) of this section, in which:
            (1) A foreign direct investment in the United States relationship is created;
            (2) An existing U.S. affiliate of a foreign parent establishes a new U.S. business enterprise, expands its U.S. operations, or acquires a U.S. business enterprise, or;
            (3) BEA requests a cost update (Form BE-13E) for a U.S. business enterprise that previously filed Form BE-13B or BE-13D.
            (4) Certain private funds are exempt from reporting on the BE-13 survey. If a U.S. business enterprise is a private fund and its foreign parent does not own through the private fund 10 percent or more of the voting interest of a business enterprise that is not also a private fund or a holding company, the private fund is not required to file any BE-13 report except to indicate exemption from the survey if contacted by BEA.
            (c) Forms to be filed. Depending on the type of investment transaction, U.S. affiliates shall report their information on one of five forms—BE-13A, BE-13B, BE-13D, BE-13E, or BE-13 Claim for Exemption.
            (1) Form BE-13A—Report for a U.S. business enterprise when a foreign entity acquires a voting interest (directly, or indirectly through an existing U.S. affiliate) in that U.S. business enterprise including segments, operating units, or real estate; and
            (i) The total cost of the acquisition is greater than $3 million; and
            (ii) By this acquisition, the foreign entity now owns at least 10 percent of the voting interest (directly, or indirectly through an existing U.S. affiliate) in the acquired U.S. business enterprise.

            (2) Form BE-13B—Report for a U.S. business enterprise when it is established by a foreign entity or by an existing U.S. affiliate of a foreign parent; and

            (i) The expected total cost to establish the new U.S. business enterprise is greater than $3 million; and
            (ii) The foreign entity owns at least 10 percent of the voting interest (directly, or indirectly through an existing U.S. affiliate) in the new U.S. business enterprise.
            (3) Form BE-13D—Report for an existing U.S. affiliate of a foreign parent when it expands its operations to include a new facility where business is conducted and the expected total cost of the expansion is greater than $3 million.
            (4) Form BE-13E—Report for a U.S. business enterprise that previously filed Form BE-13B or BE-13D. Form BE-13E collects updated cost information and will be collected annually until the establishment or expansion of the U.S. business enterprise is complete.
            (5) Form BE-13 Claim for Exemption—Report for a U.S. business enterprise that:
            (i) Was contacted by BEA but does not meet the requirements for filing Forms BE-13A, BE-13B, or BE-13D; or
            (ii) Whether or not contacted by BEA, met all requirements for filing Forms BE-13A, BE-13B, or BE-13D except the $3 million reporting threshold.
            (d) Due date. The BE-13 forms are due no later than 45 calendar days after the acquisition is completed, the new U.S. business enterprise is established, the expansion is begun, the cost update is requested, or a notification letter is received from BEA by a U.S. business enterprise that does not meet the filing requirements for the survey.
            [81 FR 72521, Oct. 20, 2016]

            § 801.8
            Rules and regulations for the BE-10, Benchmark Survey of U.S. Direct Investment Abroad.
            A BE-10, Benchmark Survey of U.S. Direct Investment Abroad, will be conducted every five years and covers years ending in 4 and 9. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 and 801.2 and 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-10 survey are given in paragraphs (a) through (d) of this section. More detailed instructions are given on the report forms and instructions.
            (a) Response required. A response is required from persons subject to the reporting requirements of the BE-10, Benchmark Survey of U.S. Direct Investment Abroad, contained in this section, whether or not they are contacted by BEA. Also, a person, or their agent, contacted in writing by BEA about reporting in this survey must respond by filing a properly completed BE-10 report (BE-10A and BE-10B, BE-10C, BE-10D, and/or BE-10 Claim for Not Filing).
            (b) Who must report. A BE-10 report is required of any U.S. person that had a foreign affiliate—that is, that had direct or indirect ownership or control of at least 10 percent of the voting stock of an incorporated foreign business enterprise, or an equivalent interest in an unincorporated foreign business enterprise, including a branch—at the end of the U.S. person's fiscal year that ended in the calendar year covered by the survey. Foreign affiliates that are private funds and meet certain criteria are exempt from the BE-10 survey. Specifically, if a foreign affiliate meets all of the criteria in paragraphs (b)(1) though (3) of this section, the U.S. reporter is not required to file a BE-10 form for that affiliate except to indicate exemption from the survey if contacted by BEA:
            (1) The foreign affiliate is a private fund; and

            (2) The private fund foreign affiliate does not own, directly or indirectly through another business enterprise, an “operating company”—i.e., a business enterprise that is not a private fund or a holding company—in which the consolidated U.S. reporter owns at least 10 percent of the voting interest; and
            (3) If the U.S. reporter owns the private fund indirectly (through one or more other business enterprises), there are no “operating companies” between the consolidated U.S. reporter and the indirectly-owned foreign private fund.
            (c) Forms to be filed. (1) Form BE-10A must be completed by a U.S. reporter. Form BE-10A is required to cover the fully consolidated U.S. domestic business enterprise. It must also file Form(s) BE-10B, BE-10C, and/or BE-10D for its foreign affiliates, whether held directly or indirectly.
            (2) Form BE-10B must be filed for each majority-owned foreign affiliate (for purposes of this survey, a “majority-owned” foreign affiliate is one in which the combined direct and indirect ownership interest of all U.S. parents of the foreign affiliate exceeds 50 percent) for which any of the items in paragraph (c)(2)(i) through (iii) of this section (not just the U.S. reporter's share) was greater than $80 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey:
            (i) Total assets (without netting liabilities);
            (ii) Sales or gross operating revenues, excluding sales taxes; or
            (iii) Net income after provision for foreign income taxes.
            (3) Form BE-10C must be filed:
            (i) For each majority-owned foreign affiliate for which any one of the three items listed in paragraph (c)(2) of this section was greater than $25 million but for which none of these items was greater than $80 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey; and
            (ii) For each minority-owned foreign affiliate (for purposes of this survey, a “minority-owned” foreign affiliate is one in which the combined direct and indirect ownership interest of all U.S. parents of the foreign affiliate is 50 percent or less) for which any one of the three items listed in paragraph (c)(2) of this section was greater than $25 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey.
            (4) Form BE-10D must be filed for majority- or minority-owned foreign affiliates for which none of the three items listed in paragraph (c)(2) of this section was greater than $25 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey. Form BE-10D is a schedule; a U.S. reporter would submit one or more pages of the form depending on the number of affiliates that are required to be filed on this form.
            (5) BE-10 Claim for Not Filing will be provided for response by:
            (i) Persons that are not subject to the reporting requirements of the BE-10 survey but have been contacted by BEA concerning their reporting status; or
            (ii) U.S. reporters that have been contacted by BEA concerning their reporting status for foreign affiliates that are no longer subject to the reporting requirements of the BE-10 survey.
            (d) Due date. A fully completed and certified BE-10 report comprising Form BE-10A and Form(s) BE-10B, BE-10C, BE-10D, and/or BE-10 Claim for Not Filing (as required) is due to be filed with BEA not later than May 31 of the year after the year covered by the survey, for those U.S. reporters filing fewer than 50, and June 30, for those U.S. reporters filing 50 or more, foreign affiliate Forms BE-10B, BE-10C, and/or BE-10D.
            [84 FR 60915, Nov. 12, 2019]

            § 801.9
            Rules and regulations for the BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons—2014.
            A BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons will be conducted covering 2014. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-180 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report forms and in instructions accompanying the report forms.
            (a) Response required. A response is required from persons subject to the reporting requirements of the BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons—2014, contained herein, whether or not they are contacted by BEA to ensure complete coverage of financial services transactions between U.S. financial services providers and foreign persons. Also, a person, or its agent, that is contacted by BEA about reporting in this survey, either by sending a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:
            (1) Completing and returning the BE-180 survey by the due date; or,
            (2) If exempt, by completing pages one through five of the BE-180 survey and returning them to BEA.
            (b) Who must report. (1) A BE-180 report is required of each U.S. person that is a financial services provider or intermediary, or whose consolidated U.S. enterprise includes a separately organized subsidiary, or part, that is a financial services provider or intermediary, and that had transactions (either sales or purchases) directly with foreign persons in all financial services combined in excess of $3,000,000 during its fiscal year covered by the survey on an accrual basis. The $3,000,000 threshold should be applied to financial services transactions with foreign persons by all parts of the consolidated U.S. enterprise combined that are financial services providers or intermediaries. Because the $3,000,000 threshold applies separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both.
            (i) The determination of whether a U.S. financial services provider or intermediary is subject to this mandatory reporting requirement may be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.
            (ii) Reporters that file pursuant to this mandatory reporting requirement must provide data on total sales and/or purchases of each of the covered types of financial services transactions and must disaggregate the totals by country and by relationship to the foreign transactor (foreign affiliate, foreign parent group, or unaffiliated).
            (2) Voluntary reporting. If, during the fiscal year covered, sales or purchases of financial services by a firm that is a financial services provider or intermediary, or by a firm's subsidiaries, or parts, combined that are financial services providers or intermediaries, are $3,000,000 or less, the U.S. person is requested to provide an estimate of the total for each type of service. Provision of this information is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed records search. Because the $3,000,000 threshold applies separately to sales and purchases, this voluntary reporting option may apply only to sales, only to purchases, or to both.
            (3) Exemption claims. Any U.S. person that receives the BE-180 survey form from BEA, but is not subject to the mandatory reporting requirements and chooses not to report voluntarily, must file an exemption claim by completing pages one through five of the BE-180 survey and returning it to BEA. This requirement is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.
            (c) BE-180 definition of financial services provider. The definition of financial services provider used for this survey is identical to the definition of the term as used in the North American Industry Classification System, United States, 2012, Sector 52—Finance and Insurance, and holding companies that own or influence, and are principally engaged in making management decisions for these firms (part of Sector 55—Management of Companies and Enterprises). For example, companies and/or subsidiaries and other separable parts of companies in the following industries are defined as financial services providers: Depository credit intermediation and related activities (including commercial banking, savings institutions, credit unions, and other depository credit intermediation); non-depository credit intermediation (including credit card issuing, sales financing, and other non-depository credit intermediation); activities related to credit intermediation (including mortgage and nonmortgage loan brokers, financial transactions processing, reserve, and clearinghouse activities, and other activities related to credit intermediation); securities and commodity contracts intermediation and brokerage (including investment banking and securities dealing, securities brokerage, commodity contracts and dealing, and commodity contracts brokerage); securities and commodity exchanges; other financial investment activities (including miscellaneous intermediation, portfolio management, investment advice, and all other financial investment activities); insurance carriers; insurance agencies, brokerages, and other insurance related activities; insurance and employee benefit funds (including pension funds, health and welfare funds, and other insurance funds); other investment pools and finds (including open-end investment funds, trusts, estates, and agency accounts, real estate investment trusts, and other financial vehicles); and holding companies that own, or influence the management decisions of, firms principally engaged in the aforementioned activities.
            (d) Covered types of services. The BE-180 survey covers the following types of financial services transactions (sales or purchases) between U.S. financial services companies and foreign persons: brokerage services related to equity transactions; other brokerage services; underwriting and private placement services; financial management service (including fees for mutual funds, pension funds, exchange-traded funds, private equity funds, corporate portfolio, individual portfolio, hedge funds, trusts, and other); credit related services, except credit card services; credit card services; financial advisory and custody services; securities lending services; electronic funds transfer services; and other financial services.
            (e) Due date. A fully completed and certified BE-180 report, or qualifying exemption claim with pages one through five completed, is due to be filed with BEA not later than October 1, 2015.
            [80 FR 28820, May 20, 2015]

            § 801.10
            Rules and regulations for BE-12, Benchmark Survey of Foreign Direct Investment in the United States—2017.
            A BE-12, Benchmark Survey of Foreign Direct Investment in the United States, will be conducted covering 2017. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-12 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report forms and instructions.
            (a) Response required. A response is required from persons subject to the reporting requirements of the BE-12, Benchmark Survey of Foreign Direct Investment in the United States—2017, contained in this section, whether or not they are contacted by BEA. Also, a person, or their agent, contacted by BEA about reporting in this survey, either by sending them a report form or a written inquiry, must respond in writing pursuant to this section. This may be accomplished by filing a properly completed BE-12 report (BE-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing);
            (b) Who must report. A BE-12 report is required for each U.S. affiliate (except certain private funds as described below), that is, for each U.S. business enterprise in which a foreign person (foreign parent) owned or controlled, directly or indirectly, 10 percent or more of the voting securities in an incorporated U.S. business enterprise, or an equivalent interest in an unincorporated U.S. business enterprise, at the end of the business enterprise's fiscal year that ended in calendar year 2017. Certain private funds are exempt from reporting on the BE-12 survey. If a U.S. business meets ALL of the following 3 criteria, it is not required to file any BE-12 report except to indicate exemption from the survey if contacted by BEA: (1) The U.S. business enterprise is a private fund; (2) the private fund does not own, directly or indirectly through another business enterprise, an “operating company”—i.e., a business enterprise that is not a private fund or a holding company—in which the foreign parent owns at least 10 percent of the voting interest; AND (3) if the foreign parent owns the private fund indirectly (through one or more other U.S. business enterprises), there are no U.S. “operating companies” between the foreign parent and the indirectly-owned private fund.

            (c) Forms to be filed. (1) Form BE-12A must be completed by a U.S. affiliate that was majority-owned by one or more foreign parents (for purposes of this survey, a “majority-owned” U.S. affiliate is one in which the combined direct and indirect ownership interest of all foreign parents of the U.S. affiliate exceeds 50 percent) if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the following three items for the U.S. affiliate (not just the foreign parent's share) was greater than $300 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017:
            (i) Total assets (do not net out liabilities);
            (ii) Sales or gross operating revenues, excluding sales taxes; or
            (iii) Net income after provision for U.S. income taxes.
            (2) Form BE-12B must be completed by:
            (i) A majority-owned U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the three items listed in paragraph (c)(1) of this section (not just the foreign parent's share), was greater than $60 million (positive or negative) but none of these items was greater than $300 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017.
            (ii) A minority-owned U.S. affiliate (for purposes of this survey, a “minority-owned” U.S. affiliate is one in which the combined direct and indirect ownership interest of all foreign parents of the U.S. affiliate is 50 percent or less) if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the three items listed in paragraph (c)(1) of this section (not just the foreign parent's share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017.
            (3) Form BE-12C must be completed by a U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, none of the three items listed in paragraph (c)(1) of this section for a U.S. affiliate (not just the foreign parent's share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017.
            (4) BE-12 Claim for Not Filing will be provided for response by persons that are not subject to the reporting requirements of the BE-12 survey but have been contacted by BEA concerning their reporting status.
            (d) Aggregation of real estate investments. All real estate investments of a foreign person must be aggregated for the purpose of applying the reporting criteria. A single report form must be filed to report the aggregate holdings, unless written permission has been received from BEA to do otherwise. Those holdings not aggregated must be reported separately on the same type of report that would have been required if the real estate holdings were aggregated.
            (e) Due date. A fully completed and certified Form BE-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing is due to be filed with BEA not later than May 31, 2018 (or by June 30, 2018 for reporting companies that use BEA's eFile system).
            [82 FR 58553, Dec. 13, 2017]

            § 801.11
            Rules and regulations for the BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons—2017.
            The BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons will be conducted covering fiscal year 2017. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 and 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-120 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report form and in instructions accompanying the report form.
            (a) Response required. A response is required from persons subject to the reporting requirements of the BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons—2017, contained in this section, whether or not they are contacted by BEA. Also, a person, or its agent, that is contacted by BEA about reporting on this survey, either by sending them a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:
            (1) Completing and returning the BE-120 by the due date of the survey; or
            (2) If exempt, by completing the determination of reporting status section of the BE-120 survey and returning it to BEA by the due date of the survey.
            (b) Who must report. A BE-120 report is required of each U.S. person that had sales to foreign persons or purchases from foreign persons in the services and intellectual property categories covered by the survey during its 2017 fiscal year.
            (c) What must be reported. (1) A U.S. person that had combined sales to foreign persons that exceeded $2 million or combined purchases from foreign persons that exceeded $1 million in the services and intellectual property categories covered by the survey during its 2017 fiscal year, on an accrual basis, is required to provide data on total sales and/or purchases of each of the covered types of services and intellectual property transactions and must disaggregate the totals by country and by relationship to the foreign transactor (foreign affiliate, foreign parent group, or unaffiliated). The $2 million threshold for sales and the $1 million threshold for purchases should be applied to services and intellectual property transactions with foreign persons by all parts of the consolidated domestic U.S. Reporter. Because the $2 million threshold for sales and $1 million threshold for purchases apply separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both. The determination of whether a U.S. company is subject to this reporting requirement may be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.
            (2) A U.S. person that had combined sales to foreign persons that were $2 million or less or combined purchases from foreign persons that were $1 million or less in the intellectual property or services categories covered by the survey during its 2017 fiscal year, on an accrual basis, is required to provide the total sales and/or purchases for each type of transaction in which they engaged. The $2 million threshold for sales and the $1 million threshold for purchases should be applied to services and intellectual property transactions with foreign persons by all parts of the consolidated domestic U.S. Reporter. Because the $2 million threshold for sales and $1 million threshold for purchases apply separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both.
            (i) Voluntary reporting: If, during fiscal year 2017, combined sales were $2 million or less, on an accrual basis, the U.S. person may, in addition to providing the required total for each type of transaction, report sales at a country and affiliation level of detail on the applicable mandatory schedule(s). Provision of this additional detail is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed records search.
            (ii) If, during fiscal year 2017, combined purchases were $1 million or less, on an accrual basis, the U.S. person may, in addition to providing the required total for each type of transaction, report purchases at a country and affiliation level of detail on the applicable mandatory schedule(s). Provision of this additional detail is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed records search.

            (3) Exemption claims: Any U.S. person that receives the BE-120 survey form from BEA, but is not subject to the reporting requirements, must file an exemption claim by completing the determination of reporting status section of the BE-120 survey and returning it to BEA by the due date of the survey. This requirement is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.

            (d) Covered types of services. Services transactions covered by this survey consist of sales and purchases related to certain intellectual property rights (see paragraphs (d)(1) through (18) of this section for a list of intellectual property-related transactions covered by this survey) and sales and purchases of selected services (see paragraphs (d)(19) through (59) of this section for a list of services covered by this survey). The transactions (sales or purchases) between U.S. companies and foreign persons covered by the BE-120 survey are:
            (1) Rights related to the use of a patent, process, or trade secret to produce and/or distribute a product or service;
            (2) Outright sales of proprietary rights related to patents, processes, and trade secrets;
            (3) Rights to use books, music, etc., including end-user rights related to digital content;
            (4) Rights to reproduce and/or distribute books, music, etc.;
            (5) Outright sales of proprietary rights related to books, music, etc.;
            (6) Rights to use trademarks;
            (7) Outright sales of proprietary rights related to trademarks;
            (8) Rights to use recorded performances and events, including end-user rights related to digital content;
            (9) Rights to reproduce and/or distribute recorded performances and events;
            (10) Outright sales of proprietary rights related to recorded performances and events;
            (11) Rights to broadcast and record live performances and events;
            (12) Rights to reproduce and/or distribute general use computer software;
            (13) Outright sales of proprietary rights related to general use computer software;
            (14) Fees associated with business format franchising;
            (15) Outright sales of proprietary rights related to business format franchising;
            (16) Rights to use other intellectual property;
            (17) Rights to reproduce and/or distribute other intellectual property;
            (18) Outright sales of proprietary rights related to other intellectual property;
            (19) Accounting, auditing, and bookkeeping services;
            (20) Advertising services;
            (21) Auxiliary insurance services;
            (22) Computer software, including end-user licenses and customization services;
            (23) Cloud computing and data storage services;
            (24) Other computer services;
            (25) Construction services;
            (26) News agency services (excludes production costs related to news broadcasters);
            (27) Other information services;
            (28) Education services;
            (29) Architectural services;
            (30) Engineering services;
            (31) Surveying, cartography, certification, testing and technical inspection services;
            (32) Financial services;
            (33) Maintenance services;
            (34) Installation, alteration, and training services;
            (35) Legal services;
            (36) Market research services;
            (37) Public opinion polling services;
            (38) Other management, consulting, and public relations services;
            (39) Merchanting services (net receipts);
            (40) Mining services;
            (41) Operational leasing;
            (42) Trade-related services, other than merchanting services;
            (43) Artistic-related services;
            (44) Premiums paid on primary insurance;
            (45) Losses recovered on primary insurance;
            (46) Provision of customized and non-customized research and development services;
            (47) Other research and development services;
            (48) Telecommunications services;
            (49) Health services;
            (50) Heritage and recreational services;
            (51) Audiovisual and production services;
            (52) Contract manufacturing services;
            (53) Disbursements for sales promotion and representation;
            (54) Photographic services (including satellite photography services);
            (55) Space transport services;

            (56) Trade exhibition and sales convention services;

            (57) Agricultural services;
            (58) Waste treatment and depollution services; and
            (59) Other selected services n.i.e. (not included elsewhere).
            (e) Types of transactions excluded from the scope of this survey. (1) Sales and purchases of goods. Trade in goods involves products that have a physical form, and includes payments or receipts for electricity.
            (2) Sales and purchases of financial instruments, including stocks, bonds, financial derivatives, loans, mutual fund shares, and negotiable CDs. (However, securities brokerage is a service).
            (3) Income on financial instruments (interest, dividends, capital gain distributions, etc).
            (4) Compensation paid to, or received by, employees.
            (5) Penalties and fines and gifts or grants in the form of goods and cash (sometimes called “transfers”).
            (f) Due date. A fully completed and certified BE-120 report, or qualifying exemption claim with the determination of reporting status section completed, is due to be filed with BEA not later than June 29, 2018 (or by July 30, 2018 for respondents that use BEA's eFile system).
            [83 FR 4836, Feb. 2, 2018]

            § 801.12
            Rules and regulations for the BE-140 Benchmark Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons—2018.
            The BE-140 Benchmark Survey of Insurance Transactions by Insurance Companies with Foreign Persons will be conducted covering calendar year 2018. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-140 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report form and in instructions accompanying the report form.
            (a) Response required. A response is required from U.S. insurance companies subject to the reporting requirements of the BE-140 Benchmark Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons—2018, contained in this section, whether or not they are contacted by BEA. Also, a U.S. insurance company, or its agent, that is contacted by BEA about reporting on this survey, either by sending a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:
            (1) Completing and returning the BE-140 by the due date of the survey; or
            (2) If exempt, by completing the determination of reporting status section of the BE-140 survey and returning it to BEA by the due date of the survey.
            (b) Who must report. A BE-140 report is required of each U.S. insurance company that had insurance transactions with foreign persons in the categories covered by the survey during its 2018 calendar year.
            (c) What must be reported—(1) Transactions exceeding $2 million. A U.S. insurance company that had transactions with foreign persons that exceeded $2 million in at least one of the insurance categories covered by the survey during its 2018 calendar year, on an accrual basis, is required to provide data on the total transactions of each of the covered types of insurance transactions and must disaggregate the totals by country and by relationship to the foreign counterparty (foreign affiliate, foreign parent group, or unaffiliated). The determination of whether a U.S. insurance company is subject to this reporting requirement may be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.
            (2) Transactions $2 million or below. A U.S. insurance company that had transactions with foreign persons that were $2 million or less in each of the insurance categories covered by the survey during its 2018 calendar year, on an accrual basis, is required to provide the total for each type of transaction in which they engaged.
            (i) Voluntary reporting of insurance transactions. If, during calendar year 2018, total transactions were $2 million or less in each of the insurance categories covered by the survey, on an accrual basis, the U.S. insurance company may, in addition to providing the required total for each type of transaction, voluntarily report transactions at a country and affiliation level of detail on the applicable mandatory schedule(s).
            (ii) [Reserved]
            (3) Exemption claims. Any U.S. person that receives the BE-140 survey form from BEA, but is not subject to the reporting requirements, must file an exemption claim by completing the determination of reporting status section of the BE-140 survey and returning it to BEA by the due date of the survey. The requirement in this paragrpah (b)(3) is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.
            (d) Covered types of insurance services. Insurance services covered by the BE-140 survey consist of transactions between U.S. insurance companies and foreign persons for:
            (1) Premiums earned on reinsurance assumed from companies resident abroad;
            (2) Losses incurred on reinsurance assumed from companies resident abroad;
            (3) Premiums paid for reinsurance ceded to companies resident abroad;
            (4) Losses recovered on reinsurance ceded to companies resident abroad;
            (5) Premiums earned from direct insurance sold to foreign persons;
            (6) Losses incurred on direct insurance sold to foreign persons;
            (7) Receipts for auxiliary insurance services provided to foreign persons; and
            (8) Payments for auxiliary insurance services provided by foreign persons.
            (e) Types of transactions excluded from the scope of this survey. Premiums paid to, or losses received from, foreign insurance companies on direct insurance.
            (f) Due date. A fully completed and certified BE-140 report, or qualifying exemption claim with the determination of reporting status section completed, is due to be filed with BEA not later than September 30, 2019.
            [84 FR 27199, June 12, 2019]

          PARTS 806-899 [RESERVED]

        15 CFR Ch. IX (1-1-20 Edition)
        Nat'l Oceanic and Atmospheric Adm., Commerce

            CHAPTER IX—NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

            SUBCHAPTER A—GENERAL REGULATIONS

          Part
          Page

            900-901
            [Reserved]
            902
            NOAA information collection requirements under the Paperwork Reduction Act: OMB control numbers
            21
            903
            Public information
            25
            904
            Civil procedures
            25
            905
            Use in enforcement proceedings of information collected by voluntary fishery data collectors
            55
            906
            National Appeals Office rules of procedure
            56
            908
            Maintaining records and submitting reports on weather modification activities
            63
            909
            Marine debris
            69
            911
            Policies and procedures concerning use of the NOAA space-based data collection systems
            69
            917
            National sea grant program funding regulations
            76
            918
            Sea grants
            83

            SUBCHAPTER B—OCEAN AND COASTAL RESOURCE MANAGEMENT

            921
            National Estuarine Research Reserve System regulations
            88
            922
            National Marine Sanctuary Program regulations
            112
            923
            Coastal Zone Management Program regulations
            222
            930
            Federal consistency with approved coastal management programs
            267

            932-933
            [Reserved]

            SUBCHAPTER C—REGULATIONS OF THE NATIONAL WEATHER SERVICE

            946
            Modernization of the National Weather Service
            309

            SUBCHAPTER D—GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE

            950
            Environmental data and information
            322
            960
            Licensing of private remote sensing systems
            326
            970
            Deep seabed mining regulations for exploration licenses
            343
            971
            Deep seabed mining regulations for commercial recovery permits
            375

            SUBCHAPTER E—OIL POLLUTION ACT REGULATIONS

            990
            Natural resource damage assessments
            415

            SUBCHAPTER F—QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA HYDROGRAPHIC PRODUCTS AND SERVICES

            995
            Certification requirements for distributors of NOAA hydrographic products
            434
            996
            Quality assurance and certification requirements for NOAA hydrographic products and services
            446

            SUBCHAPTER G—REQUIREMENTS FOR CERTIFICATION BY NOAA OF NON-FEDERAL ASSETS INTO THE INTEGRATED COASTAL AND OCEAN OBSERVATION SYSTEM

            997
            Regional information coordination entities
            455
            998-999
            [Reserved]

          SUBCHAPTER A—GENERAL REGULATIONS

            PARTS 900-901 [RESERVED]

            Pt. 902
            PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

              Authority:
              44 U.S.C. 3501 et seq.

              § 902.1
              OMB control numbers assigned pursuant to the Paperwork Reduction Act.
              (a) Purpose. This part collects and displays the control numbers assigned to information collection requirements of the National Oceanic and Atmospheric Administration (NOAA) by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act (PRA). NOAA intends that this part comply with the requirements of section 3507(c)(B)(i) of the PRA, which requires that agencies inventory and display a current control number assigned by the Director of OMB for each agency information collection requirement.
              (b) Display.

                  CFR part or section where the information collection requirement is located
                  Current OMB control number (all numbers begin with 0648-)

                    15 CFR

                  Part 908
                  -0025

                  Part 911
                  -0157

                  917.11
                  -0008, -0019, and -0034

                  917.22
                  -0008, -0019, and -0034

                  917.30(b)
                  -0008, -0019, and -0034

                  917.41
                  -0008, -0019, and -0034

                  917.43(c)
                  -0119

                  918.7
                  -0147

                  Part 921, subpart B
                  -0121

                  Part 923
                  -0119

                  924.6
                  -0141

                  928.3
                  -0119

                  929.10
                  -0141

                  935.9
                  -0141

                  936.8
                  -0141

                  937.8
                  -0141

                  938.8
                  -0141

                  941.11
                  -0141

                  942.8
                  -0141

                  943.10
                  -0141

                  944.9
                  -0141

                  Part 960, subpart B
                  -0174

                  Part 970
                  -0145

                  Part 971
                  -0170

                  Part 981
                  -0144

                    50 CFR

                  216.22
                  -0178

                  216.23
                  -0179

                  216.24(f)(2)
                  -0387

                  216.24(h)(9)(iii)
                  -0651

                  216.26
                  -0084

                  216.27
                  -0084

                  216.33
                  -0084

                  216.37
                  -0084

                  216.38
                  -0084

                  216.39
                  -0084

                  216.41
                  -0084

                  216.45
                  -0084

                  216.74
                  -0699

                  216.104
                  -0151

                  216.106
                  -0151

                  216.108
                  -0151

                  216.145
                  -0151

                  222.301(i)
                  -0084

                  222.307
                  -0230

                  222.308
                  -0084

                  223.203(b)
                  -0399

                  223.206(a)
                  -0230

                  223.206(b) and (c)
                  -0178

                  223.207(e)
                  -0309

                  223.210
                  -0613

                  224.105(c)
                  -0580

                  229.4
                  -0293

                  229.5
                  -0292

                  229.6
                  -0292

                  230.8
                  -0311

                  253.15
                  -0012

                  259.30
                  -0090

                  259.35
                  -0041

                  260.15
                  -0266

                  260.36
                  -0266

                  260.37
                  -0266

                  260.96
                  -0266

                  260.97
                  -0266

                  260.103
                  -0266

                  270.3
                  -0556

                  270.6
                  -0556

                  270.8
                  -0556

                  270.10
                  -0556

                  270.12
                  -0556

                  270.13
                  -0556

                  270.14
                  -0556

                  270.15
                  -0556

                  270.19
                  -0556

                  270.20
                  -0556

                  270.23
                  -0556

                  296.5
                  -0082

                  300.22
                  -0148

                  300.22(b)(3)
                  -0387

                  300.24
                  -0202

                  300.25
                  -0239

                  300.26
                  -0690

                  300.26(c)
                  -0239

                  300.26(d)
                  -0239

                  300.27
                  -0040

                  300.32
                  -0218

                  300.34
                  -0218

                  300.35
                  -0361

                  300.45
                  -0218

                  300.65(c)(5)
                  -0575, -0592, -0665

                  300.65(d)
                  -0575, -0592

                  300.65(h) through (l)
                  -0512

                  300.67(a) through (j)
                  -0592

                  300.67(k) and (l)
                  -0592 and -0665

                  300.103(b) and (c)
                  -0194

                  300.104
                  -0194

                  300.105
                  -0194

                  300.106
                  -0194

                  300.107(c) and (l)
                  -0194

                  300.107(k)
                  -0724

                  300.108
                  -0194

                  300.109(c)
                  -0194

                  300.110(e)
                  -0194

                  300.111
                  -0194

                  300.112
                  -0194

                  300.113(a)
                  -0194

                  300.123
                  -0205

                  300.124(b)
                  -0016

                  300.125
                  -0358

                  300.152
                  -0228

                  300.153(b)
                  -0228

                  300.154(b)
                  -0228

                  300.154(c)
                  -0228

                  300.154(d)
                  -0228

                  300.206(b)(2)
                  -0651

                  300.207(c)
                  -0651

                  300.208(c)
                  -0651

                  300.209(c)
                  -0651

                  300.212
                  -0595

                  300.213
                  -0595

                  300.215
                  -0649

                  300.217
                  -0595

                  300.218
                  -0649

                  300.219
                  -0596

                  300.225
                  -0649

                  300.322
                  -0732

                  300.323
                  -0732

                  300.324
                  -0739

                  300.333
                  -0304

                  300.336
                  -0304

                  300.337
                  -0304

                  300.338
                  -0304

                  300.339
                  -0304

                  300.341
                  -0304

                  600.205
                  -0314

                  600.215
                  -0314

                  600.235
                  -0192

                  600.501
                  -0089

                  600.502
                  -0075

                  600.503
                  -0354 and -0356

                  600.504
                  -0075

                  600.506
                  -0075

                  600.507
                  -0075

                  600.508
                  -0329

                  600.510
                  -0075

                  600.512
                  -0309

                  600.520
                  -0075

                  600.630
                  -0314

                  600.725
                  -0346

                  600.745
                  -0309

                  600.747
                  -0346

                  600.1001
                  -0376

                  600.1003
                  -0376

                  600.1005
                  -0376

                  600.1006
                  -0376

                  600.1009
                  -0376

                  600.1010
                  -0376 and -0413

                  600.1011
                  -0376

                  600.1012
                  -0376

                  600.1013
                  -0376

                  600.1014
                  -0376

                  622.4
                  -0013 and -0205

                  622.5
                  -0016

                  622.5(a)(1)(vii)
                  -0591

                  622.6
                  -0358

                  622.8
                  -0205 and -0593

                  622.9
                  -0205

                  622.15
                  -0013 and -0262

                  622.16
                  -0551

                  622.18
                  -0205 and -0593

                  622.19
                  -0205

                  622.20
                  -0205

                  622.21
                  -0551

                  622.22
                  -0551

                  622.26
                  -0013 and -0016

                  622.27
                  -0593

                  622.28
                  -0544

                  622.40(a)(2)
                  -0205

                  622.40(d)(2)
                  -0013

                  622.41
                  -0345

                  622.41(a)
                  -0016 and -0305

                  622.41(g)(3)
                  -0345

                  622.45
                  -0365

                  622.45(a)
                  -0013

                  622.50
                  -0205

                  622.51
                  -0016

                  622.51(a)(2)
                  -0543

                  622.51(a)(3)
                  -0542

                  622.51(b)
                  -0013

                  622.52
                  -0593

                  622.53
                  -0345

                  622.70
                  -0205

                  622.71
                  -0016

                  622.75
                  -0205

                  622.90(a)
                  -0013

                  622.170
                  -0205

                  622.170(c)
                  -0013

                  622.171
                  -0205

                  622.172
                  -0013 and -0551

                  622.176
                  -0016

                  622.176(a)(2)
                  -0593

                  622.176(b)(2)
                  -0593

                  622.176(c)
                  -0013

                  622.176(d)
                  -0593

                  622.177
                  -0359

                  622.178
                  -0603

                  622.192(h)
                  -0365

                  622.200
                  -0205

                  622.200(c)
                  -0013

                  622.201
                  -0205

                  622.203
                  -0016

                  622.203(a)
                  -0591

                  622.203(b)
                  -0013

                  622.204
                  -0593

                  622.205
                  -0544

                  622.207
                  -0345

                  622.220
                  -0205

                  622.221
                  -0016

                  622.225
                  -0205

                  622.240
                  -0205

                  622.240(b)
                  -0013

                  622.241
                  -0205

                  622.242
                  -0016

                  622.242(b)
                  -0013

                  622.243
                  -0359

                  622.244
                  -0593

                  622.270
                  -0205

                  622.270(d)
                  -0013

                  622.271
                  -0016

                  622.271(c)
                  -0013

                  622.300
                  -0593

                  622.370
                  -0205

                  622.371
                  -0205

                  622.372
                  -0205

                  622.373
                  -0205

                  622.374
                  -0016

                  622.374(c)
                  -0013

                  622.376
                  -0359

                  622.400
                  -0205

                  622.402
                  -0358 and -0359

                  622.430
                  -0359

                  622.450
                  -0359

                  622.470
                  -0205

                  622.473
                  -0013

                  635.2
                  -0327

                  635.4(b)
                  -0327

                  635.4(c)
                  -0327

                  635.4(d)
                  -0327

                  635.4(e)(4)
                  -0205

                  635.4(g)
                  -0202 and -0205

                  635.4(j)
                  -0327

                  635.5(a)
                  -0371, -0328, and -0452

                  635.5(a)(4)
                  -0328

                  635.5(b)
                  -0013 and -0239

                  635.5(c)
                  -0328

                  635.5(d)
                  -0323

                  635.5(f)
                  -0380

                  635.6(c)
                  -0373

                  635.7(c)
                  -0374

                  635.9(e)
                  -0328

                  635.14(d)
                  -0677

                  635.15(a)(2), (c)(2) and (k)(4)
                  -0677

                  635.21(d)
                  -0202

                  635.26
                  -0247

                  635.31(b)
                  -0216

                  635.32
                  -0309

                  635.33
                  -0338

                  635.42
                  -0040

                  635.43
                  -0040

                  635.44
                  -0040

                  635.46
                  -0363

                  635.69(a) and (e)(4)
                  -0372

                  648.4
                  -0202, -0212, -0529, and -0679

                  648.5
                  -0202

                  648.6
                  -0202 and -0555

                  648.7
                  -0018, -0202, -0212, -0229, -0590, and -0605

                  648.8
                  -0350

                  648.9
                  -0202, -0404, and -0529

                  648.10
                  -0202, -0529, and -0605

                  648.11
                  -0202, -0546, -0555, and -0679

                  648.13
                  -0391 and -0481

                  648.14
                  -0202, -0212, -0469, -0602, and -0605

                  648.15
                  -0202

                  648.15(b)
                  -0558

                  648.17
                  -0202

                  648.26
                  -0601

                  648.53
                  -0202 and -0491

                  648.54
                  -0202

                  648.56
                  -0321

                  648.58
                  -0202 and -0416

                  648.60
                  -0491 and -0541

                  648.70
                  -0238

                  648.74
                  -0240

                  648.76
                  -0202

                  648.80
                  -0202, -0422, and -0602

                  648.81
                  -0202, -0412, and -0605

                  648.82
                  -0202 and -0605

                  648.84
                  -0202 and -0351

                  648.85
                  -0202, -0212, and -0605

                  648.86
                  -0202, -0391, and -0605

                  648.87
                  -0202 and -0605

                  648.88
                  -0202 and -0605

                  648.89
                  -0202, -0412, and -0605

                  648.90
                  -0202 and -0605

                  648.91
                  -0202

                  648.92
                  -0202 and -0561

                  648.93
                  -0202

                  648.94
                  -0202 and -0489

                  648.95
                  -0202

                  648.96
                  -0202

                  648.100
                  -0202

                  648.106
                  -0202

                  648.122
                  -0469

                  648.123
                  -0305

                  648.144
                  -0305

                  648.160
                  -0202

                  648.205
                  -0404

                  648.207
                  -0348-0043, 0348-0044, 0348-0040, and 0348-0046

                  648.262
                  -0202

                  648.264
                  -0351

                  648.291
                  -0590

                  648.322
                  -0480 and -0489

                  654.6
                  -0358 and -0359

                  660.13
                  -0573, -0619, and -0738

                  660.14
                  -0573

                  660.15
                  -0619 and -0738

                  660.16
                  -0593

                  660.17
                  -0619 and -0738

                  660.20
                  -0355

                  660.25
                  -0203, -0620, and -0737

                  660.113
                  -0271, -0573, -0618, -0619, and -0737

                  660.114
                  -0618

                  660.140
                  -0593, -0619, -0620, and -0737

                  660.150
                  -0593 and -0620

                  660.160
                  -0593 and -0620

                  660.216
                  -0593

                  660.219
                  -0352

                  660.316
                  -0593

                  660.319
                  -0352

                  660.404
                  -0433

                  660.408
                  -0433

                  660.504
                  -0361

                  660.512
                  -0204

                  660.704
                  -0361

                  660.705(l), (o), and (p)
                  -0498

                  660.707
                  -0204

                  660.708
                  -0498

                  660.712(d) and (f)
                  -0498

                  660.713(f)(2) through (g)(5)
                  -0498

                  663.4
                  -0271

                  663.10
                  -0203

                  663.11
                  -0203

                  663.22
                  -0305

                  663.33
                  -0203

                  665.13
                  -0463, -0490, -0577, -0584, -0586, -0589, and -0664

                  665.14
                  -0214, -0462, -0577, -0584, -0586, -0589, and -0664

                  665.16
                  -0361, -0584, -0586, -0589, and -0664

                  665.17
                  -0214 and -0490

                  665.19
                  -0441, -0519, and -0584

                  665.20
                  -0612

                  665.105
                  -0214

                  665.124
                  -0463

                  665.126
                  -0462

                  665.128
                  -0360

                  665.142
                  -0490 and -0586

                  665.144
                  -0214

                  665.145
                  -0214

                  665.162
                  -0490

                  665.203
                  -0490 and -0577

                  665.205
                  -0214

                  665.207
                  -0214

                  665.224
                  -0463

                  665.226
                  -0462

                  665.228
                  -0360

                  665.242
                  -0490 and -0586

                  665.244
                  -0214

                  665.246
                  -0360

                  665.247
                  -0214

                  665.262
                  -0490

                  665.404
                  -0490 and -0584

                  665.407
                  -0214

                  665.424
                  -0463

                  665.426
                  -0462

                  665.428
                  -0360

                  665.442
                  -0490 and -0586

                  665.444
                  -0214

                  665.445
                  -0214

                  665.462
                  -0490

                  665.603
                  -0490

                  665.606
                  -0214

                  665.624
                  -0463

                  665.628
                  -0360

                  665.642
                  -0490 and -0586

                  665.644
                  -0214

                  665.445
                  -0214

                  665.662
                  -0490

                  665.801
                  -0490 and -0589

                  665.803
                  -0214

                  665.804
                  -0360

                  665.807
                  -0490

                  665.808
                  -0214

                  665.815
                  -0456

                  665.819
                  -0689

                  665.905
                  -0664

                  665.935
                  -0664

                  665.965
                  -0664

                  679.4
                  -0206, -0272, -0334, -0393, -0513, -0545, -0565, -0665, and -0766

                  679.5(a)
                  -0213, -0269, and -0272

                  679.5(b), (h), and (k)
                  -0213

                  679.5(c), (e), and (f)
                  -0213, -0272, -0330, -0513, and -0515

                  679.5(e) and (f)
                  -0401

                  679.5(g)
                  -0213, -0272, and -0330

                  679.5(l)(1) through (l)(5)
                  -0272

                  679.5(l)(7)
                  -0711

                  679.5(l)(8)
                  -0665

                  679.5(n)
                  -0269

                  679.5(p)
                  -0428

                  679.5(q)
                  -0513

                  679.5(r)
                  -0213, -0445, and -0545

                  679.5(s)
                  -0213, -0445, and -0565

                  679.5(t)
                  -0665

                  679.5(u)
                  -0206 and -0711

                  679.5(v)
                  -0272

                  679.5(w)
                  -0272

                  679.6
                  -0206

                  679.7
                  -0206, -0269, -0272, -0316, -0318, -0330, -0334, -0393, -0445, -0513, -0514, -0545, -0565

                  679.7(a)(7)(i)
                  -0206

                  679.7(a)(7)(vii) through (ix)
                  -0334

                  679.7(b)(6) and (7) and (c)(3) and (c)(4)
                  -0206 and -0334

                  679.7(f)(1) through (f)(7) and (f)(9) through (16)
                  -0269 and -0272

                  679.7(f)(8)
                  -0206 and -0334

                  679.7(k)
                  -0393 and -0330

                  679.7(n)(1)
                  -0334

                  679.7(n)(2) and (n)(4) through (8)
                  -0545

                  679.7(n)(3)
                  -0445

                  679.20(a)(7)(viii)
                  -0743

                  679.20(a)(8)(iii)
                  -0206

                  679.21(f) and (g)
                  -0393 and -0401

                  679.22(a)
                  -0206

                  679.24
                  -0353

                  679.26
                  -0316

                  679.28(a)
                  -0213 and -0330

                  679.28(b) through (e) and (i)
                  -0330

                  679.28(f)
                  -0206 and -0445

                  679.28(h)
                  -0213 and -0515

                  679.28(j) and (k)
                  -0515

                  679.31(c)
                  -0269

                  679.32(c)(1) through (3)
                  -0269

                  679.32(c)(3)
                  -0269 and -0318

                  679.32(d)
                  -0269, -0318, and -0330

                  679.32(e)
                  -0269

                  679.33
                  -0711

                  679.40
                  -0272

                  679.41(a)
                  -0272, -0592

                  679.41(b), (c)(1) through (9), (d) through (f), (g)(1) through (4), (h) through (k), (m), and (n)
                  -0272

                  679.41(c)(10), (g)(5) through (8), and (l)
                  -0272 and -0665

                  679.42(a), and (c) through (j)
                  -0272 and -0665

                  679.42(b), (k)(2), and (l)
                  -0353

                  679.42(f)(1)
                  -0272, -0592

                  679.42(f)(6)
                  -0272, -0592, -0665

                  679.42(k)
                  -0445

                  679.43
                  -0272, -0318, -0334, -0401, -0545, -0565, -0569, and -0711

                  679.45
                  -0272, -0592, and -0711

                  679.50(a)
                  -0206, -0269, and -0272

                  679.51
                  -0206, -0269, -0272, -0318, -0401, -0513, -0545, and -0565

                  679.52
                  -0318

                  679.53
                  -0318

                  679.54
                  -0318

                  679.55
                  -0206, -0272, and -0711

                  679.61(a) through (f)
                  -0393 and -0401

                  679.62
                  -0393

                  679.63
                  -0213 and -0330

                  679.65
                  -0213, -0515, and -0633

                  679.66
                  -0711

                  679.67
                  -0711

                  679.80
                  -0545

                  679.81
                  -0545

                  679.82
                  -0545

                  679.83
                  -0545

                  679.84
                  -0213, -0330, and -0545

                  679.84(c)(7)
                  -0318

                  679.85
                  -0545

                  679.90
                  -0565

                  679.91
                  -0565

                  679.93
                  -0213, -0330, and -0565

                  679.93(c)(7)
                  -0318

                  679.94
                  -0564

                  679.95
                  -0711

                  679.100(a)
                  -0330 and -0515.

                  679.100(b)
                  -0318, -0330, and -0515.

                  679.100(c)
                  -0515

                  679.100(d)
                  -0330

                  679.110(a) through (f)
                  -0206, -0334, -0564, -0700

                  680.4(a) through (q)
                  -0514

                  680.5(a) and (h) through (l)
                  -0514

                  680.5(b)
                  -0515

                  680.5(f), (g), (m)
                  -0711.

                  680.6
                  -0518

                  680.20
                  -0516

                  680.21
                  -0514

                  680.22
                  -0334

                  680.23(d)(1) and (d)(2)
                  -0445

                  680.23(e), (f), and (g)
                  -0330

                  680.40(f), (g), (h), (i), (j), (k), (l), and (m)
                  -0514

                  680.41
                  -0514

                  680.42(a) and (b)
                  -0514

                  680.43
                  -0514

                  680.44
                  -0514

                  697.4(a), (d) and (e)
                  -0202

                  697.5
                  -0202

                  697.6
                  -0202

                  697.7
                  -0202

                  697.8
                  -0350

                  697.12
                  -0202

                  697.21
                  -0351

                  697.22
                  -0309

                  1 And -0305.

              [60 FR 39248, Aug. 2, 1995]

                Editorial Note:
                For Federal Register citations affecting § 902.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

                Editorial Note 2:
                At 79 FR 10010, Feb. 24, 2014, § 902.1 was amended by removing entries for 679.7(a)(7)(vii) through (ix), 679.7(n)(1)(x), 679.7(f), 679.7(f)(8)(ii), 679.7(k), 679.7(n)(4)(ii), and 679.20(a)(8)(ii) from the table in paragraph (b); however, the amendment could not be incorporated because none of these entries were in the table.

            Pt. 903
            PART 903—PUBLIC INFORMATION

              Authority:
              5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; Reorg. Plan No. 2 of 1965, 15 U.S.C. 311 note; 32 FR 9734, 31 FR 10752.

              § 903.1
              Access to information.
              The rules and procedures regarding public access to the records of the National Oceanic and Atmospheric Administration are found at 15 CFR part 4.
              [57 FR 35749, Aug. 11, 1992]

            Pt. 904
            PART 904—CIVIL PROCEDURES

                Subpart A—General
                Sec.
                904.1
                Purpose and scope.
                904.2
                Definitions and acronyms.
                904.3
                Filing and service of notices, documents, and other papers.
                904.4
                Computation of time periods.
                904.5
                Appearances.

                Subpart B—Civil Penalties
                904.100
                General.
                904.101
                Notice of violation and assessment (NOVA).
                904.102
                Procedures upon receipt of a NOVA.
                904.103
                Hearing.
                904.104
                Final administrative decision.
                904.105
                Payment of final civil penalty.
                904.106
                Compromise of civil penalty.
                904.107
                Joint and several respondents.
                904.108
                Factors considered in assessing civil penalties.

                Subpart C—Hearing and Appeal Procedures

                  General
                  904.200
                  Scope and applicability.
                  904.201
                  Hearing requests and case docketing.
                  904.202
                  Filing of documents.
                  904.203
                  [Reserved]
                  904.204
                  Duties and powers of Judge.
                  904.205
                  Disqualification of Judge.
                  904.206
                  Pleadings, motions, and service.
                  904.207
                  Amendment of pleading or record.
                  904.208
                  Extensions of time.
                  904.209
                  Expedited administrative proceedings.
                  904.210
                  Summary decision.
                  904.211
                  Failure to appear.
                  904.212
                  Failure to prosecute or defend.
                  904.213
                  Settlements.
                  904.214
                  Stipulations.
                  904.215
                  Consolidation.
                  904.216
                  Prehearing conferences.

                  Discovery
                  904.240
                  Discovery generally.
                  904.241
                  Depositions.
                  904.242
                  Interrogatories.
                  904.243
                  Admissions.
                  904.244
                  Production of documents and inspection.
                  904.245
                  Subpoenas.

                  Hearings
                  904.250
                  Notice of time and place of hearing.
                  904.251
                  Evidence.
                  904.252
                  Witnesses.
                  904.253
                  Closing of record.
                  904.254
                  Interlocutory review.
                  904.255

                    Ex parte communications.

                  Post-Hearing
                  904.260
                  Recordation of hearing.
                  904.261
                  Post-hearing briefs.

                  Decision
                  904.270
                  Record of decision.
                  904.271
                  Initial decision.
                  904.272
                  Petition for reconsideration.
                  904.273
                  Administrative review of decision.

                Subpart D—Permit Sanctions and Denials

                  General
                  904.300
                  Scope and applicability.
                  904.301
                  Bases for permit sanctions or denials.
                  904.302
                  Notice of permit sanction (NOPS).
                  904.303
                  Notice of intent to deny permit (NIDP).
                  904.304
                  Opportunity for hearing.
                  904.305
                  Final administrative decision.

                  Permit Sanctions for Noncompliance
                  904.310
                  Nature of permit sanctions.
                  904.311
                  Compliance.

                  Permit Sanctions for Violations
                  904.320
                  Nature of permit sanctions.
                  904.321
                  Reinstatement of permit.
                  904.322
                  Interim action.

                Subpart E—Written Warnings
                904.400
                Purpose and scope.
                904.401
                Written warning as a prior violation.
                904.402
                Procedures.
                904.403
                Review and appeal of a written warning.

                Subpart F—Seizure and Forfeiture Procedures
                904.500
                Purpose and scope.
                904.501
                Notice of seizure.
                904.502
                Bonded release of seized property.
                904.503
                Appraisement.
                904.504
                Administrative forfeiture proceedings.
                904.505
                Summary sale.
                904.506
                Remission of forfeiture and restoration of proceeds of sale.
                904.507
                Recovery of certain storage costs.
                904.508
                Voluntary forfeiture by abandonment.
                904.509
                Disposal of forfeited property.
                904.510
                Return of seized property.

              Authority:

              16 U.S.C. 1801-1882; 16 U.S.C. 1531-1543; 16 U.S.C. 1361-1407; 16 U.S.C. 3371-3378; 16 U.S.C. 1431-1439; 16 U.S.C. 773-773k; 16 U.S.C. 951-961; 16 U.S.C. 5001-5012; 16 U.S.C. 3631-3644; 42 U.S.C. 9101 et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971k; 16 U.S.C. 781 et seq.; 16 U.S.C. 2401-2413; 16 U.S.C. 2431-2444; 16 U.S.C. 972-972h; 16 U.S.C. 916-916l; 16 U.S.C. 1151-1175; 16 U.S.C. 3601-3608; 16 U.S.C. 1851 note; 15 U.S.C. 5601 et seq.; Pub. L. 105-277; 16 U.S.C. 1822 note, Section 801(f); 16 U.S.C. 2465(a); 16 U.S.C. 5103(b); 16 U.S.C. 1385 et seq.; 16 U.S.C. 1822 note (Section 4006); 16 U.S.C. 4001-4017; 22 U.S.C. 1980(g); 16 U.S.C. 5506(a); 16 U.S.C. 5601-5612; 16 U.S.C. 1822; 16 U.S.C. 973-973(r); 15 U.S.C. 330-330(e).

              Source:
              71 FR 12448, Mar. 10, 2006, unless otherwise noted.

              Subpart A—General

                § 904.1
                Purpose and scope.
                (a) This part sets forth the procedures governing NOAA's administrative proceedings for assessment of civil penalties, suspension, revocation, modification, or denial of permits, issuance and use of written warnings, and release or forfeiture of seized property.
                (b) This subpart defines terms appearing in this part and sets forth rules for the filing and service of documents in administrative proceedings covered by this part.
                (c) The following statutes authorize NOAA to assess civil penalties, impose permit sanctions, issue written warnings, and/or seize and forfeit property in response to violations of those statutes:
                (1) American Fisheries Act of 1998, Public Law 105-277;
                (2) Anadromous Fish Products Act, 16 U.S.C. 1822 note, Section 801(f);
                (3) Antarctic Conservation Act of 1978, 16 U.S.C. 2401-2413;
                (4) Antarctic Marine Living Resources Convention Act of 1984, 16 U.S.C. 2431-2444;
                (5) Antarctic Protection Act of 1990, 16 U.S.C. 2465(a);
                (6) Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. 5103(b);
                (7) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601-3608;
                (8) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
                (9) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971k;

                (10) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.;

                (11) Dolphin Protection Consumer Information Act, 16 U.S.C. 1385 et seq.;

                (12) Driftnet Impact Monitoring, Assessment, and Control Act, 16 U.S.C. 1822 note (Section 4006);
                (13) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
                (14) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;
                (15) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001-4017;
                (16) Fisherman's Protective Act of 1967, 22 U.S.C. 1980(g);

                (17) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151-1175;

                (18) High Seas Fishing Compliance Act, 16 U.S.C. 5506(a);
                (19) Lacey Act Amendments of 1981, 16 U.S.C. 3371-3378;

                (20) Land Remote-Sensing Policy Act of 1992, 15 U.S.C. 5601 et seq.;

                (21) Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801-1882;
                (22) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;
                (23) National Marine Sanctuaries Act, 16 U.S.C. 1431-1439;
                (24) North Pacific Anadromous Stocks Convention Act of 1992, 16 U.S.C. 5001-5012;
                (25) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k;
                (26) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. 5601-5612;

                (27) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et seq.;

                (28) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631-3644;
                (29) Shark Finning Prohibition Act, 16 U.S.C. 1822;
                (30) South Pacific Tuna Act of 1988, 16 U.S.C. 973-973(r);
                (31) Sponge Act, 16 U.S.C. 781 et seq.;

                (32) Tuna Conventions Act of 1950, 16 U.S.C. 951-961;
                (33) Weather Modification Reporting Act, 15 U.S.C. 330-330e; and
                (34) Whaling Convention Act of 1949, 16 U.S.C. 916-916l.
                (d) The procedures set forth in this part are intended to apply to administrative proceedings under these and any other statutes or authorities administered by NOAA.

                § 904.2
                Definitions and acronyms.
                Unless the context otherwise requires, or as otherwise noted, terms in this Part have the meanings prescribed in the applicable statute or regulation. In addition, the following definitions apply:

                  Administrator means the Administrator of NOAA or a designee.

                  Agency means the National Oceanic and Atmospheric Administration (NOAA).

                  ALJ Docketing Center means the Docketing Center of the Office of Administrative Law Judges.

                  Applicable statute means a statute cited in § 904.1(c), and any regulations issued by NOAA to implement it.

                  Authorized officer means:

                (1) Any commissioned, warrant, or petty officer of the USCG;
                (2) Any special agent or fishery enforcement officer of NMFS;
                (3) Any officer designated by the head of any Federal or state agency that has entered into an agreement with the Secretary to enforce the provisions of any statute administered by NOAA; or
                (4) Any USCG personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.

                  Citation means a written warning (see section 311(c) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1861(c), and section 11(c) of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773i(c)).

                  Civil penalty means a civil administrative monetary penalty assessed under the civil administrative process described in this part.

                  Decision means an initial or final administrative decision of the Judge.

                  Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but does not include inquiries regarding procedures, scheduling, and status.

                  Final administrative decision means an order or decision of NOAA assessing a civil penalty or permit sanction which is not subject to further Agency review under this part, and which is subject to collection proceedings or judicial review in an appropriate Federal district court as authorized by law.

                  Forfeiture includes, but is not limited to, surrender or relinquishment of any claim to an item by written agreement, or otherwise; or extinguishment of any claim to, and transfer of title to an item to the U.S. Government by court order or by order of the Administrator under a statute.

                  Hearing means a civil administrative hearing on a NOVA, NOPS and/or NIDP.

                  Initial decision means a decision of the Judge that, under applicable statute and regulation, is subject to review by the Administrator.

                  Judge means Administrative Law Judge.

                  NIDP means Notice of Intent to Deny Permit.

                  NMFS means the National Marine Fisheries Service.

                  NOAA (see Agency) means either the Administrator or a designee acting on behalf of the Administrator.

                  NOPS means Notice of Permit Sanction.

                  NOVA means Notice of Violation and Assessment of civil penalty.

                  Party means the respondent and the Agency; a joint and several respondent, vessel owner, or permit holder, if they enter an appearance; and any other person allowed to participate under § 904.204(b).

                  Permit means any license, permit, certificate, or other approval issued by NOAA under an applicable statute.

                  Permit holder means the holder of a permit or any agent or employee of the holder, and includes the owner and operator of a vessel for which the permit was issued.

                  Permit sanction means suspension, revocation, or modification of a permit (see § 904.320).

                  PPIP means Preliminary Position on Issues and Procedures.

                  Respondent means a person issued a written warning, NOVA, NOPS, NIDP or other notice.

                  Settlement agreement means any agreement resolving all or part of an administrative or judicial action. The terms of such an agreement may include, but are not limited to, payment of a civil penalty, and/or imposition of a permit sanction.

                  USCG means the U.S. Coast Guard.

                  Vessel owner means the owner of any vessel that may be liable in rem for any civil penalty, or whose permit may be subject to sanction in proceedings under this part.

                  Written warning means a notice in writing to a person that a violation has been documented against the person or against the vessel which is owned or operated by the person, where no civil penalty or permit sanction is imposed or assessed.

                § 904.3
                Filing and service of notices, documents, and other papers.
                (a) Service of a NOVA (§ 904.101), NOPS (§ 904.302), NIDP (§ 904.303), Notice of Proposed Forfeiture (§ 904.504), Notice of Seizure (§ 904.501), Notice of Summary Sale (§ 904.505) or Written Warning (§ 904.402) may be made by certified mail (return receipt requested), facsimile, electronic transmission, or third party commercial carrier to an addressee's last known address or by personal delivery. Service of a notice under this subpart will be considered effective upon receipt.
                (b) Service of documents and papers, other than such Notices as described in paragraph (a) of this section, may be made by first class mail (postage prepaid), facsimile, electronic transmission, or third party commercial carrier, to an addressee's last known address or by personal delivery. Service of documents and papers will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), facsimile transmission, delivery to third party commercial carrier, electronic transmission or upon personal delivery.
                (c) Whenever this part requires service of a NOVA, NOPS, NIDP, document, or other paper, such service may effectively be made on the agent for service of process, on the attorney for the person to be served, or other representative. Refusal by the person to be served (including an agent, attorney, or representative) of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal. In cases where certified notification is returned unclaimed, service will be considered effective if the U.S. Postal Service provides an affidavit stating that the party was receiving mail at the same address during the period when certified service was attempted.
                (d) Any documents or pleadings filed or served must be signed:
                (1) By the person or persons filing the same,
                (2) By an officer thereof if a corporation,

                (3) By an officer or authorized employee if a government instrumentality, or

                (4) By an attorney or other person having authority to sign.

                § 904.4
                Computation of time periods.
                For a NOVA, NOPS or NIDP, the 30 day response period begins to run on the date the notice is received. All other time periods begin to run on the day following the service date of the document, paper, or event that begins the time period. Saturdays, Sundays, and Federal holidays will be included in computing such time, except that when such time expires on a Saturday, Sunday, or Federal holiday, in which event such period will be extended to include the next business day. This method of computing time periods also applies to any act, such as paying a civil penalty, required by this part to take place within a specified period of time. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays will be excluded in the computation.

                § 904.5
                Appearances.
                (a) A party may appear in person or by or with counsel or other representative.
                (b) Whenever an attorney or other representative contacts the Agency on behalf of another person with regard to any matter that has resulted in, or may result in, a written warning, a NOVA, NOPS, NIDP, or a forfeiture proceeding, that attorney or other representative shall file a Notice of Appearance with the Agency. Such notice shall indicate the name of the person on whose behalf the appearance is made.
                (c) Each attorney or other representative who represents a party in any hearing shall file a written Notice of Appearance with the Judge. Such notice shall indicate the name of the case, the docket number, and the party on whose behalf the appearance is made.

              Subpart B—Civil Penalties

                § 904.100
                General.
                This subpart sets forth the procedures governing NOAA administrative proceedings for the assessment of civil penalties under the statutes cited in § 904.1(c).

                § 904.101
                Notice of violation and assessment (NOVA).
                (a) A NOVA will be issued by NOAA and served upon the respondent(s). The NOVA will contain:
                (1) A concise statement of the facts believed to show a violation;
                (2) A specific reference to the provisions of the Act, regulation, license, permit, agreement, or order allegedly violated;
                (3) The findings and conclusions upon which NOAA bases the assessment;
                (4) The amount of the civil penalty assessed; and
                (5) Information concerning the respondent's rights upon receipt of the NOVA, and will be accompanied by a copy of the regulations in this part governing the proceedings.
                (b) In assessing a civil penalty, NOAA will take into account information available to the Agency concerning any factor to be considered under the applicable statute, and any other information that justice or the purposes of the statute require.
                (c) The NOVA may also contain a proposal for compromise or settlement of the case. NOAA may also attach documents that illuminate the facts believed to show a violation.

                § 904.102
                Procedures upon receipt of a NOVA.
                (a) The respondent has 30 days from receipt of the NOVA in which to respond. During this time the respondent may:
                (1) Accept the penalty or compromise penalty, if any, by taking the actions specified in the NOVA;
                (2) Seek to have the NOVA amended, modified, or rescinded under paragraph (b) of this section;
                (3) Request a hearing under § 904.201(a);
                (4) Request an extension of time to respond under paragraph (c) of this section; or
                (5) Take no action, in which case the NOVA becomes a final administrative decision in accordance with § 904.104.

                (b) The respondent may seek amendment or modification of the NOVA to conform to the facts or law as that person sees them by notifying Agency counsel at the telephone number or address specified in the NOVA. If amendment or modification is sought, Agency counsel will either amend the NOVA or decline to amend it, and so notify the respondent.
                (c) The respondent may, within the 30 day period specified in paragraph (a) of this section, request an extension of time to respond. Agency counsel may grant an extension of up to 30 days unless he or she determines that the requester could, exercising reasonable diligence, respond within the 30 day period. If Agency counsel does not respond to the request within 48 hours of its receipt, the request is granted automatically for the extension requested, up to a maximum of 30 days. A telephonic response to the request within the 48 hour period is considered an effective response, and will be followed by written confirmation.
                (d) Agency counsel may, for good cause, grant an additional extension beyond the 30 day period specified in paragraph (c) of this section.

                § 904.103
                Hearing.
                (a) Any hearing request under § 904.102(a)(3) is governed by the hearing and review procedures set forth in subpart C of this part.
                (b) [Reserved]

                § 904.104
                Final administrative decision.
                (a) If no request for hearing is timely filed as provided in § 904.201(a), the NOVA becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOVA or on the last day of any delay period granted.
                (b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative decision is as provided in subpart C of this part.

                § 904.105
                Payment of final civil penalty.
                (a) Respondent must make full payment of the civil penalty within 30 days of the date upon which the NOVA becomes effective as the final administrative decision and order of NOAA under § 904.104 or the date of the final administrative decision as provided in subpart C of this part. Payment must be made by mailing or delivering to NOAA at the address specified in the NOVA a check or money order made payable in U.S. currency in the amount of the assessment to the “Department of Commerce/NOAA,” by credit card, or as otherwise directed.
                (b) Upon any failure to pay the civil penalty assessed, NOAA may request the U.S. Department of Justice to recover the amount assessed in any appropriate district court of the United States, may act under § 904.106, or may commence any other lawful action.

                § 904.106
                Compromise of civil penalty.
                (a) NOAA, in its sole discretion, may compromise, modify, remit, or mitigate, with or without conditions, any civil penalty assessed, or which is subject to assessment, except as stated in paragraph (d) of this section.
                (b) The compromise authority of NOAA under this section may be exercised either upon the initiative of NOAA or in response to a request by the respondent or a representative subject to the requirements of § 904.5. Any such request should be sent to Agency counsel at the address specified in the NOVA.
                (c) Neither the existence of the compromise authority of NOAA under this section nor NOAA's exercise thereof at any time changes the date upon which a NOVA becomes final.
                (d) NOAA will not compromise, modify, or remit a civil penalty assessed, or subject to assessment, under the Deep Seabed Hard Mineral Resources Act while an action to review or recover the civil penalty is pending in a court of the United States.

                § 904.107
                Joint and several respondents.
                (a) A NOVA may assess a civil penalty against two or more respondents jointly and severally. Each joint and several respondent is liable for the entire penalty but, in total, no more than the amount finally assessed may be collected from the respondents.

                (b) A hearing request by one joint and several respondent is considered a request by the other joint and several respondent(s). Agency counsel, having received a hearing request from one joint and several respondent, will send a copy of it to the other joint and several respondent(s) in the case. However, if the requesting joint and several respondent settles with the Agency prior to the hearing, upon notification by the Agency, any remaining joint and several respondent(s) must affirmatively request a hearing within the time period specified or the case will be removed from the court's docket as provided in § 904.213.
                (c) A final administrative decision by the Judge or the Administrator after a hearing requested by one joint and several respondent is binding on all parties including all other joint and several respondent(s), whether or not they entered an appearance unless they have otherwise resolved the matter through settlement with the Agency.

                § 904.108
                Factors considered in assessing civil penalties.
                (a) Factors to be taken into account in assessing a civil penalty, depending upon the statute in question, may include the nature, circumstances, extent, and gravity of the alleged violation; the respondent's degree of culpability, any history of prior violations, and ability to pay; and such other matters as justice may require.
                (b) NOAA may, in consideration of a respondent's ability to pay, increase or decrease a civil penalty from an amount that would otherwise be warranted by the other relevant factors. A civil penalty may be increased if a respondent's ability to pay is such that a higher civil penalty is necessary to deter future violations, or for commercial violators, to make a civil penalty more than a cost of doing business. A civil penalty may be decreased if the respondent establishes that he or she is unable to pay an otherwise appropriate civil penalty amount.
                (c) Except as provided in paragraph (g) of this section, if a respondent asserts that a civil penalty should be reduced because of an inability to pay, the respondent has the burden of proving such inability by providing verifiable, complete, and accurate financial information to NOAA. NOAA will not consider a respondent's inability to pay unless the respondent, upon request, submits such financial information as Agency counsel determines is adequate to evaluate the respondent's financial condition. Depending on the circumstances of the case, Agency counsel may require the respondent to complete a financial information request form, answer written interrogatories, or submit independent verification of his or her financial information. If the respondent does not submit the requested financial information, he or she will be presumed to have the ability to pay the civil penalty.
                (d) Financial information relevant to a respondent's ability to pay includes but is not limited to, the value of respondent's cash and liquid assets; ability to borrow; net worth; liabilities; income tax returns; past, present, and future income; prior and anticipated profits; expected cash flow; and the respondent's ability to pay in installments over time. A respondent will be considered able to pay a civil penalty even if he or she must take such actions as pay in installments over time, borrow money, liquidate assets, or reorganize his or her business. NOAA's consideration of a respondent's ability to pay does not preclude an assessment of a civil penalty in an amount that would cause or contribute to the bankruptcy or other discontinuation of the respondent's business.

                (e) Financial information regarding respondent's ability to pay should be submitted to Agency counsel as soon as possible after the receipt of the NOVA. If a respondent has requested a hearing on the violation alleged in the NOVA and wants the initial decision of the Judge to consider his or her inability to pay, verifiable, complete, and accurate financial information must be submitted to Agency counsel at least 30 days in advance of the hearing, except where the applicable statute expressly provides for a different time period. No information regarding the respondent's ability to pay submitted by the respondent less than 30 days in advance of the hearing will be admitted at the hearing or considered in the initial decision of the Judge, unless the Judge rules otherwise. If the Judge decides to admit any information related to the respondent's ability to pay submitted less than 30 days in advance of the hearing, Agency Counsel will have 30 days to respond to the submission from the date of admission. In deciding whether to submit such information, the respondent should keep in mind that the Judge may assess de novo a civil penalty either greater or smaller than that assessed in the NOVA.
                (f) Issues regarding ability to pay will not be considered in an administrative review of an initial decision if the financial information was not previously presented by the respondent to the Judge prior to or at the hearing.
                (g) Whenever a statute requires NOAA to take into consideration a respondent's ability to pay when assessing a civil penalty, NOAA will take into consideration information available to it concerning a respondent's ability to pay. In all cases, the NOVA will advise, in accordance with § 904.102, that the respondent may seek to have the civil penalty amount modified by Agency counsel on the basis that he or she does not have the ability to pay the civil penalty assessed. A request to have the civil penalty amount modified on this basis must be made in accordance with § 904.102 and should be accompanied by supporting financial information. Agency counsel may request that the respondent submit such additional verifiable, complete and accurate financial information as Agency counsel determines is necessary to evaluate the respondent's financial condition (such as by responding to a financial information request form or written interrogatories, or by authorizing independent verification of respondent's financial condition). A respondent's failure to provide the requested information may serve as the basis for inferring that such information would not have supported the respondent's assertion of inability to pay the civil penalty assessed in the NOVA.

                (h) Whenever a statute requires NOAA to take into consideration a respondent's ability to pay when assessing a civil penalty and the respondent has requested a hearing on the violation alleged in the NOVA, the Agency must submit information on the respondent's financial condition so that the Judge may consider that information, along with any other factors required to be considered, in the Judge's de novo assessment of a civil penalty. Agency counsel may obtain such financial information through discovery procedures under § 904.240, or otherwise. A respondent's refusal or failure to respond to such discovery requests may serve as the basis for inferring that such information would have been adverse to any claim by respondent of inability to pay the assessed civil penalty, or result in respondent being barred from asserting financial hardship.

              Subpart C—Hearing and Appeal Procedures

                General

                  § 904.200
                  Scope and applicability.
                  (a) This subpart sets forth the procedures governing the conduct of hearings and the issuance of initial and final administrative decisions of NOAA involving alleged violations of the laws cited in § 904.1(c) and regulations implementing these laws, including civil penalty assessments and permit sanctions and denials. By separate regulation, these rules may be applied to other proceedings.
                  (b) The Judge is delegated authority to make the initial or final administrative decision of the Agency in proceedings subject to the provisions of this subpart, and to take actions to promote the efficient and fair conduct of hearings as set out in this subpart. The Judge has no authority to rule on constitutional issues or challenges to the validity of regulations promulgated by the Agency or statutes administered by NOAA.
                  (c) This subpart is not an independent basis for claiming the right to a hearing but, instead, prescribes procedures for the conduct of hearings, the right to which is provided by other authority.

                  § 904.201
                  Hearing requests and case docketing.

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

                  § 904.202
                  Filing of documents.
                  (a) Pleadings, papers, and other documents in the proceeding must be filed in conformance with § 904.3 directly with the Judge, with copies served on the ALJ Docketing Center and all other parties.
                  (b) Unless otherwise ordered by the Judge, discovery requests and answers will be served on the opposing party and need not be filed with the Judge.

                  § 904.203
                  [Reserved]

                  § 904.204
                  Duties and powers of Judge.
                  The Judge has all powers and responsibilities necessary to preside over the parties and the hearing, to hold prehearing conferences, to conduct the hearing, and to render decisions in accordance with these regulations and 5 U.S.C. 554 through 557, including, but not limited to, the authority and duty to do the following:
                  (a) Rule on timeliness of hearing requests pursuant to § 904.201(b);
                  (b) Rule on a request to participate as a party in the hearing by allowing, denying, or limiting such participation (such ruling will consider views of the parties and be based on whether the requester could be directly and adversely affected by the determination and whether the requester can be expected to contribute materially to the disposition of the proceedings);
                  (c) Schedule the time, place, and manner of conducting the pre-hearing conference or hearing, continue the hearing from day to day, adjourn the hearing to a later date or a different place, and reopen the hearing at any time before issuance of the decision, all in the Judge's discretion, having due regard for the convenience and necessity of the parties and witnesses;
                  (d) Schedule and regulate the course of the hearing and the conduct of the participants and the media, including the power to rule on motions to close the hearing in the interests of justice; seal the record from public scrutiny to protect privileged information, trade secrets, and confidential commercial or financial information; and strike testimony of a witness who refuses to answer a question ruled to be proper;
                  (e) Administer oaths and affirmations to witnesses;
                  (f) Rule on contested discovery requests, establish discovery schedules, and, whenever the ends of justice would thereby be served, take or cause depositions or interrogatories to be taken and issue protective orders under § 904.251(h);
                  (g) Rule on motions, procedural requests, and similar matters;
                  (h) Receive, exclude, limit, and otherwise rule on offers of proof and evidence;
                  (i) Examine and cross-examine witnesses and introduce into the record on the Judge's own initiative documentary or other evidence;
                  (j) Rule on requests for appearance of witnesses or production of documents and take appropriate action upon failure of a party to effect the appearance or production of a witness or document ruled relevant and necessary to the proceeding; as authorized by law, issue subpoenas for the appearance of witnesses or production of documents;

                  (k) Require a party or witness at any time during the proceeding to state his or her position concerning any issue or his or her theory in support of such position;
                  (l) Take official notice of any matter not appearing in evidence that is among traditional matters of judicial notice; or of a non-privileged document required by law or regulation to be filed with or published by a duly constituted government body; or of any reasonably available public document; provided that the parties will be advised of the matter noticed and given reasonable opportunity to show the contrary;
                  (m) Assess a civil penalty or impose a permit sanction, condition, revocation, or denial of permit application, taking into account all of the factors required by applicable law;
                  (n) Prepare and submit a decision or other appropriate disposition document and certify the record;
                  (o) Award attorney fees and expenses as provided by applicable statute or regulation;
                  (p) Grant preliminary or interim relief; or
                  (q) Impose, upon the motion of any party, or sua sponte, appropriate sanctions.
                  (1) Sanctions may be imposed when any party, or any person representing a party, in an administrative proceeding under this part has failed to comply with this part, or any order issued under this part, and such failure to comply:
                  (i) Materially injures or prejudices another party by causing additional expenses; prejudicial delay; or other injury or prejudice;
                  (ii) Is a clear and unexcused violation of this part, or any order issued under this part; or
                  (iii) Unduly delays the administrative proceeding.
                  (2) Sanctions that may be imposed include, but are not limited to, one or more of the following:
                  (i) Issuing an order against the party;
                  (ii) Rejecting or striking any testimony or documentary evidence offered, or other papers filed, by the party;
                  (iii) Expelling the party from the administrative proceedings;
                  (iv) Precluding the party from contesting specific issues or findings;
                  (v) Precluding the party from making a late filing or conditioning a late filing on any terms that are just;
                  (vi) Assessing reasonable expenses, incurred by any other party as a result of the improper action or failure to act; and
                  (vii) Taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation, deemed appropriate by the Judge.
                  (3) No sanction authorized by this section, other than refusal to accept late filings, shall be imposed without prior notice to all parties and an opportunity for any party against whom sanctions would be imposed to be heard. Such opportunity to be heard may be on such notice, and the response may be in such form as the Judge directs and may be limited to an opportunity for a party or a party's representative to respond orally immediately after the act or inaction is noted by the Judge.
                  (4) The imposition of sanctions is subject to interlocutory review pursuant to § 904.254 in the same manner as any other ruling.
                  (5) Nothing in this section shall be read as precluding the Judge from taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation.
                  [71 FR 12448, Mar. 10, 2006, as amended at 75 FR 35632, June 23, 2010]

                  § 904.205
                  Disqualification of Judge.
                  (a) The Judge may withdraw voluntarily from an administrative proceeding when the Judge deems himself/herself disqualified.
                  (b) A party may in good faith request the Judge to withdraw on the grounds of personal bias or other disqualification. The party seeking the disqualification must file with the Judge a timely affidavit or statement setting forth in detail the facts alleged to constitute the grounds for disqualification, and the Judge will rule on the matter. If the Judge rules against disqualification, the Judge will place all matters relating to such claims of disqualification in the record.

                  § 904.206
                  Pleadings, motions, and service.
                  (a) The original of all pleadings and documents must be filed with the Judge and a copy served upon the ALJ Docketing Center and each party. All pleadings or documents when submitted for filing must show that service has been made upon all parties. Such service must be made in accordance with § 904.3(b).
                  (b) Pleadings and documents to be filed may be reproduced by printing or any other process, provided the copies are clear and legible; must be dated, the original signed in ink or as otherwise verified for electronic mail; and must show the docket description and title of the proceeding, and the title, if any, address, and telephone number of the signatory. If typewritten, the impression may be on only one side of the paper and must be double spaced, if possible, except that quotations may be single spaced and indented.
                  (c) Motions must normally be made in writing and must state clearly and concisely the purpose of and relief sought by the motion, the statutory or principal authority relied upon, and the facts claimed to constitute the grounds requiring the relief requested.
                  (d) Unless otherwise provided, the answer to any written motion, pleading, or petition must be served within 20 days after service of the motion. If a motion states that opposing counsel has no objection, it may be acted upon as soon as practicable, without awaiting the expiration of the 20 day period. Answers must be in writing, unless made in response to an oral motion made at a hearing; must fully and completely advise the parties and the Judge concerning the nature of the opposition; must admit or deny specifically and in detail each material allegation of the pleading answered; and must state clearly and concisely the facts and matters of law relied upon. Any new matter raised in an answer will be deemed controverted.
                  (e) A response to an answer will be called a reply. A short reply restricted to new matters raised in the answer may be served within 15 days after service of an answer. The Judge has discretion to dispense with the reply. No further responses are permitted.

                  § 904.207
                  Amendment of pleading or record.
                  (a) A party may amend its pleading as a matter of course at least 20 days prior to a hearing. Within 20 days prior to a hearing a party may amend its pleading only by leave of the Judge or by written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period is longer, unless the Judge otherwise orders.
                  (b) The Judge, upon his or her own initiative or upon application by a party, may order a party to make a more definite statement of any pleading.
                  (c) Harmless errors in pleadings or elsewhere in the record may be corrected (by deletion or substitution of words or figures), and broad discretion will be exercised by the Judge in permitting such corrections.

                  § 904.208
                  Extensions of time.
                  If appropriate and justified, the Judge may grant any request for an extension of time. Requests for extensions of time must, except in extraordinary circumstances, be made in writing.

                  § 904.209
                  Expedited administrative proceedings.
                  In the interests of justice and administrative efficiency, the Judge, on his or her own initiative or upon the application of any party, may expedite the administrative proceeding. A motion by a party to expedite the administrative proceeding may, at the discretion of the Judge, be made orally or in writing with concurrent actual notice to all parties. Upon granting a motion to expedite the scheduling of an administrative proceeding, the Judge may expedite pleading schedules, prehearing conferences and the hearing, as appropriate. If a motion for an expedited administrative proceeding is granted, a hearing on the merits may not be scheduled with less than 5 business days notice, unless all parties consent to an earlier hearing.

                  § 904.210
                  Summary decision.
                  The Judge may render a summary decision disposing of all or part of the administrative proceeding if:
                  (a) Jointly requested by every party to the administrative proceeding; and
                  (b) There is no genuine issue as to any material fact and a party is entitled to summary decision as a matter of law.

                  § 904.211
                  Failure to appear.
                  (a) If, after proper service of notice, any party appears at the hearing and an opposing party fails to appear, the Judge is authorized to:
                  (1) Dismiss the case with prejudice, where the Agency is a non-appearing party; or
                  (2) Where the respondents have failed to appear, find the facts as alleged in the NOVA, NOPS and/or NIDP and enter a default judgment against the respondents.
                  (b) Following an order of default judgment, a non-appearing party may file a petition for reconsideration, in accordance with § 904.272. Only petitions citing reasons for non-appearance, as opposed to arguing the merits of the case, will be considered.
                  (c) The Judge will place in the record all the facts concerning the issuance and service of the notice of time and place of hearing.
                  (d) The Judge may deem a failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the making of a decision on the record.
                  (e) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the Judge's decision.

                  § 904.212
                  Failure to prosecute or defend.
                  (a) Whenever the record discloses the failure of any party to file documents, respond to orders or notices from the Judge, or otherwise indicates an intention on the part of any party not to participate further in the administrative proceeding, the Judge may issue:
                  (1) An order requiring any party to show why the matter that is the subject of the failure to respond should not be disposed of adversely to that party's interest;
                  (2) An order requiring any party to certify intent to appear at any scheduled hearing; or
                  (3) Any order, except dismissal, as is necessary for the just and expeditious resolution of the case.
                  (b) [Reserved]

                  § 904.213
                  Settlements.
                  If settlement is reached before the Judge has certified the record, the Judge shall remove the case from the docket upon notification by the Agency.

                  § 904.214
                  Stipulations.
                  The parties may, by stipulation, agree upon any matters involved in the administrative proceeding and include such stipulations in the record with the consent of the Judge. Written stipulations must be signed and served upon all parties.

                  § 904.215
                  Consolidation.

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

                  § 904.216
                  Prehearing conferences.
                  (a) Prior to any hearing or at any other time deemed appropriate, the Judge may, upon his or her own initiative, or upon the application of any party, direct the parties to appear for a conference or arrange a telephone conference. The Judge shall provide at least 24 hours notice of the conference to the parties, and shall record such conference by audio recording or court reporter, to consider:
                  (1) Simplification or clarification of the issues or settlement of the case by consent;
                  (2) The possibility of obtaining stipulations, admissions, agreements, and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof;
                  (3) Agreements and rulings to facilitate the discovery process;

                  (4) Limitation of the number of expert witnesses or other avoidance of cumulative evidence;

                  (5) The procedure, course, and conduct of the administrative proceeding;
                  (6) The distribution to the parties and the Judge prior to the hearing of written testimony and exhibits in order to expedite the hearing; or
                  (7) Such other matters as may aid in the disposition of the administrative proceeding, including the status of settlement discussions.
                  (b) The Judge in his or her discretion may issue an order showing the matters disposed of in such conference, and shall provide a transcript of the conference upon the request of a party.

                Discovery

                  § 904.240
                  Discovery generally.
                  (a) Preliminary position on issues and procedures (PPIP). Prior to hearing the Judge will ordinarily require the parties to submit a written PPIP. Except for information regarding a respondent's ability to pay an assessed civil penalty, this PPIP will normally obviate the need for further discovery.
                  (1) The PPIP shall include the following information: A factual summary of the case; a summary of all factual and legal issues in dispute; a list of all defenses that will be asserted, together with a summary of all factual and legal bases supporting each defense; a list of all potential witnesses, together with a summary of their anticipated testimony; and a list of all potential exhibits.
                  (2) The PPIP shall be signed by the party and by an attorney, if one is retained. The PPIP shall be served upon all parties, along with a copy of each potential exhibit listed in the PPIP.
                  (3) A party has the affirmative obligation to supplement the PPIP as available information or documentation relevant to the stated charges or defenses becomes known to the party.
                  (b) Additional discovery. Upon written motion by a party, the Judge may allow additional discovery only upon a showing of relevance, need, and reasonable scope of the evidence sought, by one or more of the following methods: Deposition upon oral examination or written questions, written interrogatories, production of documents or things for inspection and other purposes, and requests for admission. With respect to information regarding a respondent's ability to pay an assessed civil penalty, the Agency may serve any discovery request (i.e., deposition, interrogatories, admissions, production of documents) directly upon the respondent without first seeking an order from the Judge.
                  (c) Time limits. Motions for depositions, interrogatories, admissions, or production of documents or things may not be filed within 20 days of the hearing except on order of the Judge for good cause shown. Oppositions to a discovery motion must be filed within 10 days of service unless otherwise provided in these rules or by the Judge.
                  (d) Oppositions. Oppositions to any discovery motion or portion thereof must state with particularity the grounds relied upon. Failure to object in a timely fashion constitutes waiver of the objection.
                  (e) Scope of discovery. The Judge may limit the scope, subject matter, method, time, or place of discovery. Unless otherwise limited by order of the Judge, the scope of discovery is as follows:
                  (1) In general. As allowed under paragraph (b) of this section, parties may obtain discovery of any matter, not privileged, that is relevant to the allegations of the charging document, to the proposed relief, or to the defenses of any respondent, or that appears reasonably calculated to lead to the discovery of admissible evidence.
                  (2) Hearing preparation: Materials. A party may not obtain discovery of materials prepared in anticipation of litigation except upon a showing that the party seeking discovery has a substantial need for the materials in preparation of his or her case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party are not discoverable under this section.
                  (3) Hearing preparation: Experts. A party may discover the substance of the facts and opinions to which an expert witness is expected to testify and a summary of the grounds for each opinion. A party may also discover facts known or opinions held by an expert consulted by another party in anticipation of litigation but not expected to be called as a witness upon a showing of exceptional circumstances making it impracticable for the party seeking discovery to obtain such facts or opinions by other means.
                  (f) Failure to comply. If a party fails to comply with any provision of this section, including any PPIP, subpoena or order concerning discovery, the Judge may, in the interest of justice:
                  (1) Infer that the admission, testimony, documents, or other evidence would have been adverse to the party;
                  (2) Rule that the matter or matters covered by the order or subpoena are established adversely to the party;
                  (3) Rule that the party may not introduce into evidence or otherwise rely upon, in support of any claim or defense, testimony by such party, officer, or agent, or the documents or other evidence;
                  (4) Rule that the party may not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence would have shown; or
                  (5) Strike part or all of a pleading (except a request for hearing), a motion or other submission by the party, concerning the matter or matters covered by the order or subpoena.

                  § 904.241
                  Depositions.
                  (a) Notice. If a motion for deposition is granted, and unless otherwise ordered by the Judge, the party taking the deposition of any person must serve on that person and on any other party written notice at least 15 days before the deposition would be taken (or 25 days if the deposition is to be taken outside the United States). The notice must state the name and address of each person to be examined, the time and place where the examination would be held, the name and mailing address of the person before whom the deposition would be taken, and the subject matter about which each person would be examined.
                  (b) Taking the deposition. Depositions may be taken before any officer authorized to administer oaths by the law of the United States or of the place where the examination is to be held, or before a person appointed by the Judge. Each deponent will be sworn, and any party has the right to cross-examine. Objections are not waived by failure to make them during the deposition unless the ground of the objection is one that might have been removed if presented at that time. The deposition will be recorded, transcribed, signed by the deponent, unless waived, and certified by the officer before whom the deposition was taken. All transcription costs associated with the testimony of a deponent will be borne by the party seeking the deposition. Each party will bear its own expense for any copies of the transcript. See also § 904.252(a).
                  (c) Alternative deposition methods. By order of the Judge, the parties may use other methods of deposing parties or witnesses, such as telephonic depositions or depositions upon written questions. Objections to the form of written questions are waived unless made within 5 days of service of the questions.
                  (d) Use of depositions at hearing. (1) At hearing, part or all of any deposition, so far as admissible under the rules of evidence applied as though the witness were then testifying, may be used against any party who was present or represented at the taking of the deposition or had reasonable notice.
                  (2) The deposition of a witness may be used by any party for any purpose if the Judge finds:
                  (i) That the witness is unable to attend due to death, age, health, imprisonment, disappearance or distance from the hearing site; or
                  (ii) That exceptional circumstances make it desirable, in the interest of justice, to allow the deposition to be used.
                  (3) If only part of a deposition is offered in evidence by a party, any party may introduce any other part.

                  § 904.242
                  Interrogatories.
                  (a) Use at hearing. If ordered by the Judge, any party may serve upon any other party written interrogatories. Answers may be used at hearing in the same manner as depositions under § 904.241(d).
                  (b) Answers and objections. Answers and objections must be made in writing under oath, and reasons for the objections must be stated. Answers must be signed by the person making them and objections must be signed by the party or attorney making them. Unless otherwise ordered, answers and objections must be served on all parties within 20 days after service of the interrogatories.
                  (c) Option to produce records. Where the answer to an interrogatory may be ascertained from the records of the party upon whom the interrogatory is served, it is sufficient to specify such records and afford the party serving the interrogatories an opportunity to examine them.

                  § 904.243
                  Admissions.
                  (a) Request. If ordered by the Judge, any party may serve on any other party a written request for admission of the truth of any relevant matter of fact set forth in the request, including the genuineness of any relevant document described in the request. Copies of documents must be served with the request. Each matter of which an admission is requested must be separately stated.
                  (b) Response. Each matter is admitted unless a written answer or objection is served within 20 days of service of the request, or within such other time as the Judge may allow. The answering party must specifically admit or deny each matter, or state the reasons why he or she cannot truthfully admit or deny it.
                  (c) Effect of admission. Any matter admitted is conclusively established unless the Judge on motion permits withdrawal or amendment of it for good cause shown.

                  § 904.244
                  Production of documents and inspection.
                  (a) Scope. If ordered by the Judge, any party may serve on any other party a request to produce a copy of any document or specifically designated category of documents, or to inspect, copy, photograph, or test any such document or tangible thing in the possession, custody, or control of the party upon whom the request is served.
                  (b) Procedure. The request must set forth:
                  (1) The items to be produced or inspected by item or by category, described with reasonable particularity, and
                  (2) A reasonable time, place, and manner for inspection. The party upon whom the request is served must serve within 20 days a response or objections, which must address each item or category and include copies of the requested documents.

                  § 904.245
                  Subpoenas.
                  (a) In general. Subpoenas for the attendance and testimony of witnesses and the production of documentary evidence for the purpose of discovery or hearing may be issued as authorized by the statute under which the proceeding is conducted.
                  (b) Timing. Applications for subpoenas must be submitted at least 15 days before the scheduled hearing or deposition.
                  (c) Motions to quash. Any person to whom a subpoena is directed or any party may move to quash or limit the subpoena within 10 days of its service or on or before the time specified for compliance, whichever is shorter. The Judge may quash or modify the subpoena.
                  (d) Enforcement. In case of disobedience to a subpoena, the requesting party may request the U.S. Department of Justice to invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.

                Hearings

                  § 904.250
                  Notice of time and place of hearing.

                  (a) The Judge shall be responsible for scheduling the hearing. With due regard for the convenience of the parties, their representatives, or witnesses, the Judge shall fix the time, place and date for the hearing and shall notify all parties of the same. The Judge will promptly serve on the parties notice of the time and place of hearing. The hearing will not be held less than 20 days after service of the notice of hearing unless the hearing is expedited as provided under paragraph (c) of this section.

                  (b) A request for a change in the time, place, or date of the hearing may be granted by the Judge.
                  (c) Upon the consent of each party to the administrative proceeding, the Judge may order that one or more issues be heard on submissions or affidavits if it appears that such issues may be resolved by means of written materials and that efficient disposition of those issues can be made without an in-person hearing.
                  (d) At any time after commencement of an administrative proceeding, any party may move to expedite the scheduling of the administrative proceeding as provided in § 904.209.

                  § 904.251
                  Evidence.
                  (a) In general. (1) At the hearing, every party has the right to present oral or documentary evidence in support of its case or defense, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. This paragraph may not be interpreted to diminish the powers and duties of the Judge under § 904.204.
                  (2) All evidence that is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, is admissible at the hearing. Formal rules of evidence do not necessarily apply to the administrative proceedings, and hearsay evidence is not inadmissible as such.
                  (3) In any case involving a charged violation of law in which the respondent has admitted an allegation, evidence may be taken to establish matters of aggravation or mitigation.
                  (b) Objections and offers of proof. (1) A party shall state the grounds for objection to the admission or exclusion of evidence. Rulings on all objections shall appear in the record. Only objections made before the Judge may be raised on appeal.
                  (2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record.
                  (c) Testimony. (1) Testimony may be received into evidence by the following means:
                  (i) Oral presentation; and
                  (ii) Subject to the discretion of the Judge, written affidavit, telephone, video or other electronic media.
                  (2) Regardless of form, all testimony shall be under oath or affirmation requiring the witness to declare that the witness will testify truthfully, and subject to cross examination.
                  (d) Exhibits and documents. (1) All exhibits shall be numbered and marked with a designation identifying the sponsor. To prove the content of an exhibit, the original writing, recording or photograph is required except that a duplicate or copy is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or, given the circumstances, it would be unfair to admit the duplicate in lieu of the original. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if the original is lost or destroyed, not obtainable, in the possession of the opponent, or not closely related to a controlling issue. Each exhibit offered in evidence or marked for identification shall be filed and retained in the record of decision, unless the Judge permits the substitution of copies for the original document.
                  (2) In addition to the requirements set forth in § 904.240(a)(2), parties shall exchange all remaining exhibits that will be offered at hearing prior to the beginning of the hearing, except for good cause or as otherwise directed by the Judge. Exhibits that are not exchanged as required may be denied admission into evidence. This requirement does not apply to demonstrative evidence.
                  (e) Physical evidence. (1) Photographs or videos or other electronic media may be substituted for physical evidence at the discretion of the Judge.
                  (2) Except upon the Judge's order, or upon request by a party, physical evidence will be retained after the hearing by the Agency.
                  (f) Stipulations. The parties may, by written stipulation at any stage of the administrative proceeding or orally at the hearing, agree upon any matters. Stipulations may be received in evidence before or during the hearing and, when received in evidence, shall be binding on the parties to the stipulation.
                  (g) Official notice. The Judge may take official notice of such matters as might be judicially noticed by the courts or of other facts within the specialized knowledge of the agency as an expert body. Where a decision or part thereof rests on official notice of a material fact not appearing in the evidence in the record, the fact of official notice shall be so stated in the decision, and any party, upon timely request, shall be afforded an opportunity to show the contrary.
                  (h) Confidential and sensitive information. (1) The Judge may limit introduction of evidence or issue protective orders that are required to prevent undue disclosure of classified, confidential, or sensitive matters, which include, but are not limited to, matters of a national security, business, personal, or proprietary nature. Where the Judge determines that information in documents containing classified, confidential, or sensitive matters should be made available to another party, the Judge may direct the offering party to prepare an unclassified or non-sensitive summary or extract of the original. The summary or extract may be admitted as evidence in the record.
                  (2) If the Judge determines that the procedure described in paragraph (h)(1) of this section is inadequate and that classified or otherwise sensitive matters must form part of the record in order to avoid prejudice to a party, the Judge may advise the parties and provide opportunity for arrangements to permit a party or representative to have access to such matters.
                  (i) Foreign law. (1) A party who intends to raise an issue concerning the law of a foreign country must give reasonable notice. The Judge, in determining foreign law, may consider any relevant material or source, whether or not submitted by a party.
                  (2) Exhibits in a foreign language must be translated into English before such exhibits are offered into evidence. Copies of both the untranslated and translated versions of the proposed exhibits, along with the name and qualifications of the translator, must be served on the opposing party at least 10 days prior to the hearing unless the parties otherwise agree.

                  § 904.252
                  Witnesses.
                  (a) Fees. Witnesses, other than employees of a Federal agency, summoned in an administrative proceeding, including discovery, shall receive the same fees and mileage as witnesses in the courts of the United States.
                  (b) Witness counsel. Any witness not a party may have personal counsel to advise him or her as to his or her rights, but such counsel may not otherwise participate in the hearing.
                  (c) Witness exclusion. Witnesses who are not parties may be excluded from the hearing room prior to the taking of their testimony. An authorized officer is considered a party for the purposes of this subsection.
                  (d) Oath or affirmation. Witnesses shall testify under oath or affirmation requiring the witness to declare that the witness will testify truthfully.
                  (e) Failure or refusal to testify. If a witness fails or refuses to testify, the failure or refusal to answer any question found by the Judge to be proper may be grounds for striking all or part of the testimony given by the witness, or any other action deemed appropriate by the Judge.
                  (f) Testimony in a foreign language. If a witness is expected to testify in a language other than the English language, the party sponsoring the witness must provide for the services of an interpreter and advise opposing counsel 10 days prior to the hearing concerning the extent to which interpreters are to be used. When available, the interpreter should be court certified under 28 U.S.C. 1827.

                  § 904.253
                  Closing of record.
                  At the conclusion of the hearing, the evidentiary record shall be closed unless the Judge directs otherwise. Once the record is closed, no additional evidence shall be accepted except upon a showing that the evidence is material and that there was good cause for failure to produce it in a timely fashion. The Judge shall reflect in the record, however, any approved correction to the transcript.

                  § 904.254
                  Interlocutory review.
                  (a) Application for interlocutory review shall be made to the Judge. The application shall not be certified to the Administrator except when the Judge determines that:
                  (1) The ruling involves a dispositive question of law or policy about which there is substantial ground for difference of opinion; or
                  (2) An immediate ruling will materially advance the completion of the proceeding; or
                  (3) The denial of an immediate ruling will cause irreparable harm to a party or the public.
                  (b) Any application for interlocutory review shall:
                  (1) Be filed with the Judge within 30 days after the Judge's ruling;
                  (2) Designate the ruling or part thereof from which appeal is being taken;
                  (3) Set forth the ground on which the appeal lies; and
                  (4) Present the points of fact and law relied upon in support of the position taken.
                  (c) Any party that opposes the application may file a response within 20 days after service of the application.
                  (d) The certification to the Administrator by the Judge shall stay proceedings before the Judge until the matter under interlocutory review is decided.

                  § 904.255

                    Ex parte communications.

                  (a) Except to the extent required for disposition of ex parte matters as authorized by law, the Judge may not consult a person or party on any matter relevant to the merits of the administrative proceeding, unless there has been notice and opportunity for all parties to participate.

                  (b) Except to the extent required for the disposition of ex parte matters as authorized by law:

                  (1) No interested person outside the Agency shall make or knowingly cause to be made to the Judge, the Administrator, or any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding an ex parte communication relevant to the merits of the adjudication; and

                  (2) Neither the Administrator, the Judge, nor any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the administrative proceeding.
                  (c) The Administrator, the Judge, or any Agency employee who is or may reasonably be expected to be involved in the decisional process who receives, makes, or knowingly causes to be made a communication prohibited by this rule shall place in the record of decision:
                  (1) All such written communications;
                  (2) Memoranda stating the substance of all such oral communications; and
                  (3) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (c)(1) and (c)(2) of this section.

                  (d)(1) Paragraphs (a), (b) and (c) of this section do not apply to communications concerning national defense or foreign policy matters. Such ex parte communications to or from an Agency employee on national defense or foreign policy matters, or from employees of the U.S. Government involving intergovernmental negotiations, are allowed if the communicator's position with respect to those matters cannot otherwise be fairly presented for reasons of foreign policy or national defense.
                  (2) Ex parte communications subject to this paragraph will be made a part of the record to the extent that they do not include information classified under an Executive order. Classified information will be included in a classified portion of the record that will be available for review only in accordance with applicable law.

                  (e) Upon receipt of a communication made, or knowingly caused to be made, by a party in violation of this section the Judge may, to the extent consistent with the interests of justice, national security, the policy of underlying statutes, require the party to show cause why its claim or interest in the adjudication should not be dismissed, denied, disregarded, or otherwise adversely affected by reason of such violation.
                  (f) The prohibitions of this rule shall apply beginning after issuance of a NOVA, NOPS, NIDP or any other notice and until a final administrative decision is rendered, but in no event shall they begin to apply later than the time at which an administrative proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of her/his acquisition of such knowledge.

                Post-Hearing

                  § 904.260
                  Recordation of hearing.
                  (a) All hearings shall be recorded.
                  (b) The official transcript of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith, will be filed with the ALJ Docketing Center. Transcripts of testimony will be available in any hearing and will be supplied to the parties at the cost of the Agency.
                  (c) The Judge may determine whether “ordinary copy”, “daily copy”, or other copy (as those terms are defined by contract) will be necessary and required for the proper conduct of the administrative proceeding.

                  § 904.261
                  Post-hearing briefs.
                  (a) The parties may file post-hearing briefs that include proposed findings of fact and conclusions of law within 30 days from service of the hearing transcript. Reply briefs may be submitted within 15 days after service of the proposed findings and conclusions to which they respond.
                  (b) The Judge, in his or her discretion, may establish a different date for filing either initial briefs or reply briefs with the court.
                  (c) In cases involving few parties, limited issues, and short hearings, the Judge may require or a party may request that any proposed findings and conclusions and reasons in support be presented orally at the close of a hearing. In granting such cases, the Judge will advise the parties in advance of hearing.

                Decision

                  § 904.270
                  Record of decision.

                  (a) The exclusive record of decision consists of the official transcript of testimony and administrative proceedings; exhibits admitted into evidence; briefs, pleadings, and other documents filed in the administrative proceeding; and descriptions or copies of matters, facts, or documents officially noticed in the administrative proceeding. Any other exhibits and records of any ex parte communications will accompany the record of decision.
                  (b) The Judge will arrange for appropriate storage of the records of any administrative proceeding, which place of storage need not necessarily be located physically within the ALJ Docketing Center.

                  § 904.271
                  Initial decision.
                  (a) After expiration of the period provided in § 904.261 for the filing of reply briefs (unless the parties have waived briefs or presented proposed findings orally at the hearing), the Judge will render a written decision upon the record in the case, setting forth:
                  (1) Findings and conclusions, and the reasons or bases therefor, on all material issues of fact, law, or discretion presented on the record;
                  (2) An order as to the final disposition of the case, including any appropriate ruling, order, sanction, relief, or denial thereof;
                  (3) The date upon which the decision will become effective; and
                  (4) A statement of further right to appeal.
                  (b) If the parties have presented oral proposed findings at the hearing or have waived presentation of proposed findings, the Judge may at the termination of the hearing announce the decision, subject to later issuance of a written decision under paragraph (a) of this section. In such cases, the Judge may direct the prevailing party to prepare proposed findings, conclusions, and an order.

                  (c) The Judge will serve the written decision on each of the parties, the Assistant General Counsel for Enforcement and Litigation, and the Administrator by certified mail (return receipt requested), facsimile, electronic transmission or third party commercial carrier to an addressee's last known address or by personal delivery and upon request will promptly certify to the Administrator the record, including the original copy of the decision, as complete and accurate.
                  (d) An initial decision becomes effective as the final administrative decision of NOAA 60 days after service, unless:
                  (1) Otherwise provided by statute or regulations;
                  (2) The Judge grants a petition for reconsideration under § 904.272; or
                  (3) A petition for discretionary review is filed or the Administrator issues an order to review upon his/her own initiative under § 904.273.

                  § 904.272
                  Petition for reconsideration.
                  Unless an order or initial decision of the Judge specifically provides otherwise, any party may file a petition for reconsideration of an order or initial decision issued by the Judge. Such petitions must state the matter claimed to have been erroneously decided, and the alleged errors and relief sought must be specified with particularity. Petitions must be filed within 20 days after the service of such order or initial decision. The filing of a petition for reconsideration shall operate as a stay of an order or initial decision or its effectiveness date unless specifically so ordered by the Judge. Within 15 days after the petition is filed, any party to the administrative proceeding may file an answer in support or in opposition.

                  § 904.273
                  Administrative review of decision.
                  (a) Subject to the requirements of this section, any party who wishes to seek review of an initial decision of a Judge must petition for review of the initial decision within 30 days after the date the decision is served. The petition must be served on the Administrator by registered or certified mail, return receipt requested at the following address: Administrator, National Oceanic and Atmospheric Administration, Department of Commerce, Room 5128, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Copies of the petition for review, and all other documents and materials required in paragraph (d) of this section, must be served on all parties and the Assistant General Counsel for Enforcement and Litigation at the following address: Assistant General Counsel for Enforcement and Litigation, National Oceanic and Atmospheric Administration, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910.
                  (b) The Administrator may elect to issue an order to review the initial decision without petition and may affirm, reverse, modify or remand the Judge's initial decision. Any such order must be issued within 60 days after the date the initial decision is served.
                  (c) Review by the Administrator of an initial decision is discretionary and is not a matter of right. If a party files a timely petition for discretionary review, or review is timely undertaken on the Administrator's own initiative, the effectiveness of the initial decision is stayed until further order of the Administrator or until the initial decision becomes final pursuant to paragraph (h) of this section.
                  (d) A petition for review must comply with the following requirements regarding format and content:
                  (1) The petition must include a concise statement of the case, which must contain a statement of facts relevant to the issues submitted for review, and a summary of the argument, which must contain a succinct, clear and accurate statement of the arguments made in the body of the petition;
                  (2) The petition must set forth, in detail, specific objections to the initial decision, the bases for review, and the relief requested;
                  (3) Each issue raised in the petition must be separately numbered, concisely stated, and supported by detailed citations to specific pages in the record, and to statutes, regulations, and principal authorities. Petitions may not refer to or incorporate by reference entire documents or transcripts;
                  (4) A copy of the Judge's initial decision must be attached to the petition;
                  (5) Copies of all cited portions of the record must be attached to the petition;

                  (6) A petition, exclusive of attachments and authorities, must not exceed 20 pages in length and must be in the form articulated in section 904.206(b); and
                  (7) Issues of fact or law not argued before the Judge may not be raised in the petition unless such issues were raised for the first time in the Judge's initial decision, or could not reasonably have been foreseen and raised by the parties during the hearing. The Administrator will not consider new or additional evidence that is not a part of the record before the Judge.
                  (e) The Administrator may deny a petition for review that is untimely or fails to comply with the format and content requirements in paragraph (d) of this section without further review.
                  (f) No oral argument on petitions for discretionary review will be allowed.
                  (g) Within 30 days after service of a petition for discretionary review, any party may file and serve an answer in support or in opposition. An answer must comport with the format and content requirements in paragraphs (d)(5) through (d)(7) of this section and set forth detailed responses to the specific objections, bases for review and relief requested in the petition. No further replies are allowed, unless requested by the Administrator.
                  (h) If the Administrator has taken no action in response to the petition within 120 days after the petition is served, said petition shall be deemed denied and the Judge's initial decision shall become the final agency decision with an effective date 150 days after the petition is served.
                  (i) If the Administrator issues an order denying discretionary review, the order will be served on all parties personally or by registered or certified mail, return receipt requested, and will specify the date upon which the Judge's decision will become effective as the final agency decision. The Administrator need not give reasons for denying review.
                  (j) If the Administrator grants discretionary review or elects to review the initial decision without petition, the Administrator will issue an order to that effect. Such order may identify issues to be briefed and a briefing schedule. Such issues may include one or more of the issues raised in the petition for review and any other matters the Administrator wishes to review. Only those issues identified in the order may be argued in any briefs permitted under the order. The Administrator may choose to not order any additional briefing, and may instead make a final determination based on any petitions for review, any responses and the existing record.
                  (k) If the Administrator grants or elects to take discretionary review, and after expiration of the period for filing any additional briefs under paragraph (j) of this section, the Administrator will render a written decision on the issues under review. The Administrator will transmit the decision to each of the parties by registered or certified mail, return receipt requested. The Administrator's decision becomes the final administrative decision on the date it is served, unless otherwise provided in the decision, and is a final agency action for purposes of judicial review; except that an Administrator's decision to remand the initial decision to the Judge is not final agency action.
                  (l) An initial decision shall not be subject to judicial review unless:
                  (1) The party seeking judicial review has exhausted its opportunity for administrative review by filing a petition for review with the Administrator in compliance with this section, and
                  (2) The Administrator has issued a final ruling on the petition that constitutes final agency action under paragraph (k) of this section or the Judge's initial decision has become the final agency decision under paragraph (h) of this section.
                  (m) For purposes of any subsequent judicial review of the agency decision, any issues that are not identified in any petition for review, in any answer in support or opposition, by the Administrator, or in any modifications to the initial decision are waived.

                  (n) If an action is filed for judicial review of a final agency decision, and the decision is vacated or remanded by a court, the Administrator shall issue an order addressing further administrative proceedings in the matter. Such order may include a remand to the Chief Administrative Law Judge for further proceedings consistent with the judicial decision, or further briefing before the Administrator on any issues the Administrator deems appropriate.

              Subpart D—Permit Sanctions and Denials

                General

                  § 904.300
                  Scope and applicability.
                  (a) This subpart sets forth procedures governing the suspension, revocation, modification, and denial of permits for reasons relating to enforcement of the statutes cited in § 904.1(c), except for the statutes listed in paragraph (b) of this section. Nothing in this subpart precludes sanction or denial of a permit for reasons not relating to enforcement. As appropriate, and unless otherwise specified in this subpart, the provisions of subparts A, B, and C of this part apply to this subpart.

                  (b) Regulations governing sanctions and denials of permits issued under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.) appear at 15 CFR part 970.

                  § 904.301
                  Bases for permit sanctions or denials.
                  (a) Unless otherwise specified in a settlement agreement, or otherwise provided in this subpart, NOAA may take action under this subpart with respect to any permit issued under the statutes cited in § 904.1(c). The bases for an action to sanction or deny a permit include but are not limited to the following:
                  (1) The commission of any violation prohibited by any statute administered by NOAA, including violation of any regulation promulgated or permit condition or restriction prescribed thereunder, by the permit holder or with the use of a permitted vessel;
                  (2) The failure to pay a civil penalty assessed under subparts B and C of this part;
                  (3) The failure to pay a criminal fine imposed or to satisfy any other liability incurred in a judicial proceeding under any of the statutes administered by NOAA; or
                  (4) The failure to comply with any term of a settlement agreement.
                  (b) A permit sanction may be imposed, or a permit denied, under this subpart with respect to the particular permit pertaining to the violation or nonpayment, and may also be applied to any NOAA permit held or sought by the permit holder or successor in interest to the permit, including permits for other activities or for other vessels. Examples of the application of this policy are the following:
                  (1) NOAA suspends Vessel A's fishing permit for nonpayment of a civil penalty pertaining to Vessel A. The owner of Vessel A buys Vessel B and applies for a permit for Vessel B to participate in the same or a different fishery. NOAA may withhold that permit until the sanction against Vessel A is lifted.
                  (2) NOAA revokes a Marine Mammal Protection Act permit for violation of its conditions. The permit holder subsequently applies for a permit under the Endangered Species Act. NOAA may deny the ESA application.
                  (3) Captain X, an officer in Country Y's fishing fleet, is found guilty of assaulting an enforcement officer. NOAA may impose a condition on the permits of Country Y's vessels that they may not fish in the Exclusive Economic Zone with Captain X aboard. (See § 904.320(c)).
                  (c) A permit sanction may not be extinguished by sale or transfer. A vessel's permit sanction is not extinguished by sale or transfer of the vessel, nor by dissolution or reincorporation of a vessel owner corporation, and shall remain with the vessel until lifted by NOAA.

                  § 904.302
                  Notice of permit sanction (NOPS).
                  (a) A NOPS will be served on the permit holder as provided in § 904.3. When a foreign fishing vessel is involved, service will be made on the agent authorized to receive and respond to any legal process for vessels of that country.
                  (b) The NOPS will set forth the permit sanction to be imposed, the bases for the permit sanction, and any opportunity for a hearing. It will state the effective date of the permit sanction, which will ordinarily not be earlier than 30 days after the date of receipt of the NOPS (see § 904.322).

                  (c) Upon demand by an authorized enforcement officer, a permit holder must surrender a permit against which a permit sanction has taken effect. The effectiveness of the permit sanction, however, does not depend on surrender of the permit.

                  § 904.303
                  Notice of intent to deny permit (NIDP).
                  (a) NOAA may issue a NIDP if the permit applicant has been charged with a violation of a statute, regulation, or permit administered by NOAA, for failure to pay a civil penalty or criminal fine, or for failure to comply with any term of a settlement agreement.
                  (b) The NIDP will set forth the basis for its issuance and any opportunity for a hearing, and will be served in accordance with § 904.3.
                  (c) NOAA will not refund any fee(s) submitted with a permit application if a NIDP is issued.
                  (d) A NIDP may be issued in conjunction with or independent of a NOPS. Nothing in this section should be interpreted to preclude NOAA from initiating a permit sanction action following issuance of the permit, or from withholding a permit under § 904.310(c) or § 904.320.

                  § 904.304
                  Opportunity for hearing.
                  (a) Except as provided in paragraph (b) of this section, the recipient of a NOPS or NIDP will be provided an opportunity for a hearing, as governed by § 904.201.
                  (b) There will be no opportunity for a hearing if, with respect to the violation that forms the basis for the NOPS or NIDP, the permit holder had a previous opportunity to participate as a party in an administrative or judicial proceeding, whether or not the permit holder did participate, and whether or not such a hearing was held.

                  § 904.305
                  Final administrative decision.
                  (a) If no request for hearing is timely filed as provided in § 904.201(a), the NOPS or NIDP becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOPS or NIDP or on the last day of any delay period granted.
                  (b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative decision is as provided in subpart C of this part.

                Permit Sanctions for Noncompliance

                  § 904.310
                  Nature of permit sanctions.
                  (a) NOAA may suspend, modify, or deny a permit if:
                  (1) A civil penalty has been assessed against the permit holder under subparts B and C of this part, but the permit holder has failed to pay the civil penalty, or has failed to comply with any term of a settlement agreement; or
                  (2) A criminal fine or other liability for violation of any of the statutes administered by NOAA has been imposed against the permit holder in a judicial proceeding, but payment has not been made.
                  (b) NOAA will suspend any permit issued to a foreign fishing vessel under section 204(b) of the Magnuson-Stevens Fishery Conservation and Management Act under the circumstances set forth in paragraph (a) of this section.
                  (c) NOAA will withhold any other permit for which the permit holder applies if either of the conditions in paragraph (a) of this section is applicable.

                  § 904.311
                  Compliance.
                  If the permit holder pays the criminal fine or civil penalty in full or agrees to terms satisfactory to NOAA for payment:
                  (a) The suspension will not take effect;
                  (b) Any permit suspended under § 904.310 will be reinstated by order of NOAA; or
                  (c) Any application by the permit holder may be granted if the permit holder is otherwise qualified to receive the permit.

                Permit Sanction for Violations

                  § 904.320
                  Nature of permit sanctions.
                  Subject to the requirements of this subpart, NOAA may take any of the following actions or combination of actions if a permit holder or permitted vessel violates a statute administered by NOAA, or any regulation promulgated or permit condition prescribed thereunder:
                  (a) Revocation. A permit may be cancelled, with or without prejudice to issuance of the permit in the future. Additional requirements for issuance of any future permit may be imposed.
                  (b) Suspension. A permit may be suspended either for a specified period of time or until stated requirements are met, or both. If contingent on stated requirements being met, the suspension is with prejudice to issuance of any permit until the requirements are met.
                  (c) Modification. A permit may be modified, as by imposing additional conditions and restrictions. If the permit was issued for a foreign fishing vessel under section 204(b) of the Magnuson-Stevens Fishery Conservation and Management Act, additional conditions and restrictions may be imposed on the application of the foreign nation involved and on any permits issued under such application.

                  § 904.321
                  Reinstatement of permit.
                  (a) A permit suspended for a specified period of time will be reinstated automatically at the end of the period.
                  (b) A permit suspended until stated requirements are met will be reinstated only by order of NOAA.

                  § 904.322
                  Interim action.
                  (a) To protect marine resources during the pendency of an action under this subpart, in cases of willfulness, or as otherwise required in the interest of public health, welfare, or safety, a Judge may order immediate suspension, modification, or withholding of a permit until a decision is made on the action proposed in a NOPS or NIDP.
                  (b) The Judge will order interim action under paragraph (a) of this section, only after finding that there exists probable cause to believe that the violation charged in the NOPS or NIDP was committed. The Judge's finding of probable cause, which will be summarized in the order, may be made:
                  (1) After review of the factual basis of the alleged violation, following an opportunity for the parties to submit their views (orally or in writing, in the Judge's discretion); or
                  (2) By adoption of an equivalent finding of probable cause or an admission in any administrative or judicial proceeding to which the recipient of the NOPS or NIDP was a party, including, but not limited to, a hearing to arrest or set bond for a vessel in a civil forfeiture action or an arraignment or other hearing in a criminal action. Adoption of a finding or admission under this paragraph may be made only after the Judge reviews pertinent portions of the transcript or other records, documents, or pleadings from the other proceeding.
                  (c) An order for interim action under paragraph (a) of this section is unappealable and will remain in effect until a decision is made on the NOPS or NIDP. Where such interim action has been taken, the Judge will expedite any hearing requested under § 904.304.

              Subpart E—Written Warnings

                § 904.400
                Purpose and scope.
                This subpart sets forth the policy and procedures governing the issuance and use of written warnings by persons authorized to enforce the statutes administered by NOAA, and the review of such warnings. A written warning may be issued in lieu of assessing a civil penalty or initiating criminal prosecution for violation of any of the laws cited in § 904.1(c).

                § 904.401
                Written warning as a prior violation.
                A written warning may be used as a basis for dealing more severely with a subsequent violation, including, but not limited to, a violation of the same statute or a violation involving an activity that is related to the prior violation.

                § 904.402
                Procedures.
                (a) Any person authorized to enforce the laws listed in § 904.1(c) or Agency counsel may issue a written warning to a respondent as provided in § 904.3.
                (b) The written warning will:
                (1) State that it is a “written warning”;
                (2) State the factual and statutory or regulatory basis for its issuance;
                (3) Advise the respondent of its effect in the event of a future violation; and
                (4) Inform the respondent of the right of review and appeal under § 904.403.

                (c) NOAA will maintain a record of written warnings that are issued.

                (d) If, within 120 days of the date of the written warning, further investigation indicates that the violation is more serious than realized at the time the written warning was issued, or that the respondent previously committed a similar violation for which a written warning was issued or other enforcement action was taken, NOAA may withdraw the warning and commence other administrative or judicial proceedings.

                § 904.403
                Review and appeal of a written warning.
                (a) If a respondent receives a written warning from an authorized officer, the respondent may seek review by Agency counsel. The request for review must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning. The request for review must be filed at the NOAA Office of the Assistant General Counsel for Enforcement and Litigation, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910, within 60 days of receipt of the written warning. Agency counsel may, in his or her discretion, affirm, vacate, or modify the written warning and will notify the respondent of his or her determination. The Agency counsel's determination constitutes the final agency action, unless it is appealed pursuant to paragraph (b) of this section.
                (b) If a respondent receives a written warning from Agency counsel, or receives a determination from Agency counsel affirming a written warning issued by an authorized officer, the respondent may appeal to the NOAA Deputy General Counsel. The appeal must be filed at the NOAA Office of the General Counsel, Herbert Hoover Office Building, 14th & Constitution Avenue, NW., Washington, DC 20230, within 60 days of receipt of the written warning issued by Agency counsel, or the determination from Agency counsel affirming a written warning issued by an authorized officer.
                (1) An appeal from an Agency counsel issued written warning must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning.
                (2) An appeal from an Agency counsel's determination affirming a written warning issued by an authorized officer must be in writing and include a copy of the Agency counsel's determination affirming the written warning.
                (c) The NOAA Deputy General Counsel may, in his or her discretion, affirm, vacate, or modify the written warning and will notify the respondent of the determination. The NOAA Deputy General Counsel's determination constitutes the final agency action.

              Subpart F—Seizure and Forfeiture Procedures

                § 904.500
                Purpose and scope.
                (a) This subpart sets forth procedures governing the release, abandonment, forfeiture, remission of forfeiture, or return of seized property (including property seized and held solely as evidence) that is subject to forfeiture under the various statutes administered by NOAA.
                (b) Except as provided in this subpart, these regulations apply to all seized property subject to forfeiture under the statutes listed in subpart A of this part. This subpart is in addition to, and not in contradiction of, any special rules regarding seizure, holding or disposition of property seized under these statutes.

                § 904.501
                Notice of seizure.

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

                § 904.502
                Bonded release of seized property.
                (a) As authorized by applicable statute, at any time after seizure of any property, NOAA may, in its sole discretion, release any seized property upon deposit with NOAA of the full value of the property or such lesser amount as NOAA deems sufficient to protect the interests served by the applicable statute. In addition, NOAA may, in its sole discretion, accept a bond or other security in place of fish, wildlife, or other property seized. The bond will contain such conditions as NOAA deems appropriate.
                (b) Property may be released under this section only if possession thereof will not violate or frustrate the purpose or policy of any applicable law or regulation. Property that will not be released includes, but is not limited to:
                (1) Property in which NOAA is not satisfied that the requester has a substantial interest;
                (2) Property whose entry into the commerce of the United States is prohibited;
                (3) Live animals, except in the interest of the animals' welfare; or
                (4) Property whose release appears to NOAA not to be in the best interest of the United States or serve the purposes of the applicable statute.
                (c) If NOAA grants the request, the amount paid by the requester will be deposited in a NOAA expense account. The amount so deposited will for all purposes be considered to represent the property seized and subject to forfeiture, and payment of the amount by requester constitutes a waiver by requester of any claim rising from the seizure and custody of the property. NOAA will maintain the money so deposited pending further order of NOAA, order of a court, or disposition by applicable administrative proceedings.
                (d) A request for release need not be in any particular form, but must set forth the following:
                (1) A description of the property seized;
                (2) The date and place of the seizure;
                (3) The requester's interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence;
                (4) The facts and circumstances relied upon by the requester to justify the remission or mitigation;
                (5) An offer of payment to protect the United States' interest that requester makes in return for release;
                (6) The signature of the requester, his or her attorney, or other authorized agent; and
                (7) A request to defer administrative or judicial forfeiture proceedings until completion of all other related judicial or administrative proceedings (including any associated civil penalty or permit sanction proceedings).

                § 904.503
                Appraisement.
                NOAA will appraise seized property to determine its domestic value. Domestic value means the price at which such or similar property is offered for sale at the time and place of appraisement in the ordinary course of trade. If there is no market for the seized property at the place of appraisement, the value in the principal market nearest the place of appraisement will be used. If the seized property may not lawfully be sold in the United States, its domestic value will be determined by other reasonable means.

                § 904.504
                Administrative forfeiture proceedings.
                (a) When authorized. This section applies to property that is determined under § 904.503 to have a value of $500,000 or less, and that is subject to administrative forfeiture under the applicable statute. This section does not apply to conveyances seized in connection with criminal proceedings.
                (b) Procedure. (1) NOAA will publish a Notice of Proposed Forfeiture once a week for at least three successive weeks in a newspaper of general circulation in the Federal judicial district in which the property was seized. However, if the value of the seized property does not exceed $1,000, the Notice may be published by posting for at least three successive weeks in a conspicuous place accessible to the public at the National Marine Fisheries Service Enforcement Office, U.S. District Court, or the U.S. Customs House nearest the place of seizure, with the date of posting indicated on the Notice. In addition, a reasonable effort will be made to serve the Notice, as provided in § 904.3, on each person whose identity, address and interest in the property are known or easily ascertainable.
                (2) The Notice of Proposed Forfeiture will:
                (i) Describe the seized property, including any applicable registration or serial numbers;
                (ii) State the time, place and reason for the seizure, including the provisions of law allegedly violated; and
                (iii) Describe the rights of an interested person to file a claim to the property (including the right to petition to remit or mitigate the forfeiture).
                (3)(i) Except as provided in paragraph (b)(4) of this section, any person claiming the seized property may file a claim with NOAA, at the address indicated in the Notice, within 30 days of the date the final Notice was published or posted. The claim must state the claimant's interest in the property.
                (ii) Filing a claim does not entitle the claimant to possession of the property. However, it does stop administrative forfeiture proceedings.
                (iii) If the claim is timely filed in accordance with this section, NOAA will refer the matter to the U.S. Department of Justice to institute forfeiture proceedings in the appropriate U.S. District Court.
                (4) If a claim is not filed within 30 days of the date the final Notice is published or posted in accordance with this section, NOAA will declare the property forfeited. The Declaration of Forfeiture will be in writing and will be served as provided in § 904.3, on each person whose identity and address and prior interest in the seized property are known or easily ascertainable. The Declaration will describe the property and state the time, place, and reason for its seizure, including the provisions of law violated. The Declaration will identify the Notice of Proposed Forfeiture, describing the dates and manner of publication of the Notice and any efforts made to serve the Notice as provided in § 904.3. The Declaration will state that in response to the Notice a proper claim was not timely received by the proper office from any claimant, and that therefore all potential claimants are deemed to admit the truth of the allegations of the Notice. The Declaration shall conclude with an order of condemnation and forfeiture of the property to the United States for disposition according to law. All forfeited property will be subject to disposition as authorized by law and regulations of NOAA.

                (5) If the appraised value of the property is more than $500,000, or a timely and satisfactory claim for property appraised at $500,000 or less is submitted to NOAA, the matter will be referred to the U.S. Department of Justice to institute in rem proceedings in the appropriate U.S. District Court.

                § 904.505
                Summary sale.
                (a) In view of the perishable nature of fish, any person authorized to enforce a statute administered by NOAA may, as authorized by law, sell or cause to be sold, and any person may purchase, for not less than its domestic fair market value, fish seized under such statute.
                (b) Any person purchasing fish subject to this section must deliver the proceeds of the sale to a person authorized to enforce a statute administered by NOAA immediately upon request of such authorized person. Anyone who does not so deliver the proceeds may be subject to penalties under the applicable statute or statutes.
                (c) NOAA will give Notice of the Sale as provided under § 904.3, to the owner or consignee, if known or easily ascertainable, or to any other party that the facts of record indicate has an interest in the seized fish, unless the owner or consignee or other interested party has otherwise been personally notified. Notice will be sent either prior to the sale, or as soon thereafter as practicable.

                (d) The proceeds of the sale, after deducting any reasonable costs of the sale, will be subject to any administrative or judicial proceedings in the same manner as the seized fish would have been, including an action in rem for the forfeiture of the proceeds. Pending disposition of such proceedings, the proceeds will, as appropriate, either be deposited in a NOAA suspense account or submitted to the appropriate court.
                (e) Seizure and sale of fish is without prejudice to any other remedy or sanction authorized by law.

                § 904.506
                Remission of forfeiture and restoration of proceeds of sale.
                (a) Application of this section. (1) This section establishes procedures for filing with NOAA a petition for relief from forfeitures incurred, or alleged to have been incurred, and from potential forfeiture of seized property, under any statute administered by NOAA that authorizes the remission or mitigation of forfeitures.
                (2) Although NOAA may properly consider a petition for remission or mitigation of forfeiture and restoration of proceeds of sale along with other consequences of a violation, the remission or mitigation of a forfeiture and restoration of proceeds is not dispositive of any criminal charge filed, civil penalty assessed, or permit sanction proposed, unless NOAA expressly so states. Remission or mitigation of forfeiture and restoration of proceeds is in the nature of executive clemency and is granted in the sole discretion of NOAA only when consistent with the purposes of the particular statute involved and this section.
                (3) If no petition is timely filed, or if the petition is denied, prior to depositing the proceeds NOAA may use the proceeds of sale to reimburse the U.S. Government for any costs that by law may be paid from such sums.
                (4) If NOAA remits the forfeiture and the forfeited property has not been sold, then restoration may be conditioned upon payment of any applicable costs as defined in this subpart.
                (b) Petition for relief from forfeiture. (1) Any person claiming an interest in any property which has been or may be administratively forfeited under the provisions of this section may, at any time after seizure of the property, but no later than 90 days after the date of forfeiture, petition the Assistant General Counsel for Enforcement and Litigation, NOAA/GCEL, 8484 Georgia Avenue, Suite 400, Silver Spring, Maryland 20910, for a remission or mitigation of the forfeiture and restoration of the proceeds of such sale, or such part thereof as may be claimed by the petitioner.
                (2) The petition need not be in any particular form, but must set forth the following:
                (i) A description of the property seized;
                (ii) The date and place of the seizure;
                (iii) The petitioner's interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence;
                (iv) The facts and circumstances relied upon by the petitioner to justify the remission or mitigation of forfeiture and restoration of proceeds. If the claim is made after the property is forfeited, the petitioner must provide satisfactory proof that the petitioner did not know of the seizure prior to the declaration or condemnation of forfeiture, was in such circumstances as prevented him or her from knowing of the same, and that such forfeiture was incurred without any willful negligence or intention to violate the applicable statute on the part of the petitioner; and
                (v) The signature of the petitioner, his or her attorney, or other authorized agent.
                (3) NOAA will not consider a petition for remission or mitigation of forfeiture and restoration of proceeds while a forfeiture proceeding is pending in Federal court. Once such a case is referred to the U.S. Department of Justice for institution of judicial proceedings, and until the proceedings are completed, any petition received by NOAA will be forwarded to the U.S. Department of Justice for consideration.
                (4) A false statement in a petition will subject petitioner to prosecution under 18 U.S.C. 1001.
                (c) Investigation. NOAA will investigate the facts and circumstances shown by the petition and seizure, and may in this respect appoint an investigator to examine the facts and prepare a report of investigation.
                (d) Determination of petition. (1) After investigation under paragraph (c) of this section, NOAA will make a determination on the matter and notify the petitioner. NOAA may remit or mitigate the forfeiture, on such terms and conditions as are deemed reasonable and just under the applicable statute and the circumstances.
                (2) Unless NOAA determines no valid purpose would be served, NOAA will condition a determination to remit or mitigate a forfeiture upon the petitioner's submission of an agreement, in a form satisfactory to NOAA, to hold the United States and its officers or agents harmless from any and all claims based on loss of or damage to the seized property or that might result from grant of remission or mitigation and restoration of proceeds. If the petitioner is not the beneficial owner of the property, or if there are others with a proprietary interest in the property, NOAA may require the petitioner to submit such an agreement executed by the beneficial owner or other interested party. NOAA may also require that the property be promptly exported from the United States.
                (e) Compliance with the determination. A determination by NOAA to remit or mitigate the forfeiture and restore the proceeds upon stated conditions, as upon payment of a specified amount, will be effective for 60 days after the date of the determination. If the petitioner does not comply with the conditions within that period in a manner prescribed by the determination, or make arrangements satisfactory to NOAA for later compliance, the remission or mitigation and restoration of proceeds will be void, and judicial or administrative forfeiture proceedings will be instituted or resumed.
                (f) Appropriated property. If forfeited property that is the subject of a claim for restoration of proceeds has been appropriated for official use, retention by the U.S. Government will be regarded as a sale for the purposes of this section.

                § 904.507
                Recovery of certain storage costs.
                If any fish, wildlife, or evidentiary property is seized and forfeited under the Endangered Species Act, 16 U.S.C. 1531 through 1543, any person whose act or omission was the basis for the seizure may be charged a reasonable fee for expenses to the United States connected with the transfer, board, handling or storage of such property. If any fish or wildlife is seized in connection with a violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371 through 3378, or any property is seized in connection with a violation of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 through 1882, any person convicted thereof, or assessed a civil penalty therefor, may be assessed a reasonable fee for expenses of the United States connected with the storage, care and maintenance of such property. Within a reasonable time after forfeiture, NOAA will send to such person by registered or certified mail, return receipt requested, a bill for such fee. The bill will contain an itemized statement of the applicable costs, and instructions on the time and manner of payment. Payment must be made in accordance with the bill. If the recipient of the bill objects to the reasonableness of the costs assessed he or she may, within 30 days of receipt, file written objections with NOAA at the address stated in the bill. NOAA will promptly review the written objections and within 30 days mail the final determination to the party who filed them. NOAA's determination will constitute final agency action on the matter.

                § 904.508
                Voluntary forfeiture by abandonment.
                (a) The owner of seized property may voluntarily forfeit all right, title, and interest in the property by abandoning it to NOAA. Voluntary forfeiture by abandonment under this section may be accomplished by various means, including, but not limited to: expressly waiving any claim to the property by voluntarily relinquishing any right, title, and interest by written agreement or otherwise; or refusing or otherwise avoiding delivery of returned property; or failing to respond within 90 days of service of any certified or registered notice regarding a return of seized property issued under § 904.510(b).
                (b) Property will be declared finally forfeited by abandonment, without recourse, upon a finding of abandonment by NOAA.

                § 904.509
                Disposal of forfeited property.
                (a) Delivery to Administrator. Upon forfeiture of any fish, wildlife, parts or products thereof, or other property to the United States, including the abandonment or waiver of any claim to any such property, it will be delivered to NOAA for storage or disposal according to the provisions of this section.
                (b) Disposal. Disposal may be accomplished by one of the following means unless the property is the subject of a petition for remission or mitigation of forfeiture or disposed of by court order:
                (1) Return to the wild;
                (2) Use by NOAA or transfer to another government agency for official use;
                (3) Donation or loan;
                (4) Sale; or
                (5) Destruction.
                (c) Purposes of disposal. Disposal procedures may be used to alleviate overcrowding of evidence storage facilities; to avoid the accumulation of seized property where disposal is not otherwise accomplished by court order; to address the needs of governmental agencies and other institutions and organizations for such property for scientific, educational, and public display purposes; and for other valid reasons. In no case will property be used for personal purposes, either by loan recipients or government personnel.
                (d) Disposal of evidence. Property that is evidence may be disposed of only after authorization by the NOAA Office of General Counsel. Disposal approval usually will not be given until the case involving the evidence is closed, except that perishable property may be authorized for disposal sooner.
                (e) Loans—(1) To institutions. Property approved for disposal may be loaned to institutions or organizations requesting such property for scientific, educational, or public display purposes. Property will be loaned only after execution of a loan agreement which provides, among other things, that the loaned property will be used only for noncommercial scientific, educational, or public display purposes, and that it will remain the property of the U.S. Government, which may demand its return at any time. Parties requesting the loan of property must demonstrate the ability to provide adequate care and security for the property. Loans may be made to responsible agencies of foreign governments in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
                (2) To individuals. Property generally will not be loaned to individuals not affiliated with an institution or organization unless it is clear that the property will be used in a noncommercial manner, and for scientific, educational, or public display purposes which are in the public interest.
                (3) Selection of loan recipients. Recipients of property will be chosen so as to assure a wide distribution of the property throughout the scientific, educational, public display and museum communities. Other branches of NMFS, NOAA, the Department of Commerce, and other governmental agencies will have the right of first refusal of any property offered for disposal. The Administrator may solicit applications, by publication of a notice in the Federal Register, from qualified persons, institutions, and organizations who are interested in obtaining the property being offered. Such notice will contain a statement as to the availability of specific property for which transferees are being sought, and instructions on how and where to make application. Applications will be granted in the following order: other offices of NMFS, NOAA, and the Department of Commerce; U.S. Fish and Wildlife Service; other Federal agencies; other governmental agencies; scientific, educational, or other public or private institutions; and private individuals.
                (4) Loan agreement. Property will be transferred under a loan agreement executed by the Administrator and the borrower. Any attempt on the part of the borrower to retransfer property, even to another institution for related purposes, will violate and invalidate the loan agreement, and entitle the United States to immediate repossession of the property, unless the prior approval of the Administrator has been obtained under § 904.510(d)(5). Violation of the loan agreement may also subject the violator to the civil penalties provided by the laws governing possession and transfer of the property.
                (5) Temporary reloans; documents to accompany property. Temporary reloans by the borrower to another qualified borrower (as for temporary exhibition) may be made if the Administrator is advised in advance by the borrowers. Temporary loans for more than thirty days must be approved in advance in writing by the Administrator. A copy of the original loan agreement, and a copy of the written approval for reloan, if any, must accompany the property whenever it is temporarily reloaned or is shipped or transported across state or international boundaries.
                (f) Sale. (1) Any fish, wildlife, parts or products thereof, and other property which has been voluntarily forfeited by abandonment to NOAA may be sold or offered for sale, with the exception of any species or property which is otherwise prohibited from being sold at the time it is to be sold or offered for sale.
                (2) Property will be sold in accordance with current Federal Property Management Regulations (41 CFR chapter 101) or U.S. Customs laws and regulations, except that NOAA may:
                (i) Sell at fair market value perishable fish pursuant to the summary sales provisions of 15 CFR 904.505; and
                (ii) Sell, destroy, or otherwise dispose of property for which it is determined the expense of keeping it is disproportionate to the value thereof.
                (3) The proceeds of sale may be used to reimburse NOAA for any costs which by law NOAA is authorized to recover or to pay any rewards which by law may be paid from sums that NOAA receives.
                (g) Destruction. (1) Property not otherwise disposed of may be destroyed.
                (2) Destruction will be accomplished in accordance with the requirements of 41 CFR parts 101 through 145.
                (3) When destroyed, the fact, manner, and date of destruction and the type and quantity destroyed must be certified by the official actually destroying the property.
                (4) No duly authorized officer of NOAA shall be liable for the destruction or other disposition of property made pursuant to this section.
                (h) Recordkeeping. A disposal form will be completed each time property is disposed of pursuant to the policy and procedure established herein, and will be retained in the case file for the property. These forms will be available to the public.

                § 904.510
                Return of seized property.
                (a) Return. In cases where NOAA, in its sole discretion, determines that forfeiture of seized property would not be in the best interest of the U.S. Government, NOAA will make a reasonable attempt to determine the party that the facts of record indicate has a predominant ownership interest in the seized property and, provided such a determination can be made, will arrange for return of the seized property to that party by appropriate means.
                (b) Notice. NOAA will serve a Notice of the Return of property as provided by § 904.3, to the owner, consignee, or other party the facts of record indicate has an interest in the seized property. The Notice will describe the seized property, state the time, place, and reason for the seizure and return, and will identify the owner or consignee, and if appropriate, the bailee of the seized property. The Notice of the return also will state that the party to whom the property is being returned is responsible for any distribution of the property to any party who holds a valid claim, right, title or interest in receiving the property, in whole or in part. The Notice also will provide that on presentation of the Notice and proper identification, and the signing of a receipt provided by NOAA, the seized property is authorized to be released.

            Pt. 905
            PART 905—USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED BY VOLUNTARY FISHERY DATA COLLECTORS

              Sec.
              905.1
              Scope.
              905.2
              Definitions.
              905.3
              Access to information.
              905.4
              Use of information.
              905.5
              Exceptions.

              Authority:
              16 U.S.C. 1853(f).

              Source:
              60 FR 39251, Aug. 2, 1995, unless otherwise noted.

              § 905.1
              Scope.
              This part applies to the use, in enforcement proceedings conducted pursuant to the Magnuson Act, the MMPA, and the ESA, of information collected by voluntary fishery data collectors.

              § 905.2
              Definitions.
              When used in this part:

                Consenting owner means the owner, operator, or crewmember of a vessel carrying a voluntary fishery data collector.

                Enforcement proceeding means any judicial or administrative trial or hearing, initiated for the purpose of imposing any civil or criminal penalty authorized under the Magnuson Act, MMPA, or ESA, including but not limited to, any proceeding initiated to: Impose a monetary penalty; modify, sanction, suspend or revoke a lease, license or permit; secure forfeiture of seized property; or incarcerate an individual.

                ESA means the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., and implementing regulations.

                Information means all observations, data, statistics, photographs, film, or recordings collected by a voluntary fishery data collector for conservation and management purposes, as defined by the Magnuson Act, MMPA, or ESA, while onboard the vessel of a consenting owner.

                Magnuson Act means the Magnuson Fishery Conservation and Management Act, as amended, 16 U.S.C. 1801 et seq., and implementing regulations.

                MMPA means the Marine Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and implementing regulations.

                Secretary means the Secretary of Commerce, the Secretary of the Interior, their chosen designees, or any other Federal agency authorized to enforce the provisions of the Magnuson Act, MMPA, or ESA.

                Vessel means any vessel as defined at 16 U.S.C. 1802(31).

                Voluntary fishery data collector means:
              (1) Any person, including an observer or a sea sampler;
              (2) Placed aboard a vessel by the Secretary;
              (3) For the purpose of collecting information; and
              (4) Whose presence aboard that vessel is not required by the Secretary pursuant to provisions of the Magnuson Act, MMPA, or ESA, or their implementing regulations.

              § 905.3
              Access to information.
              Information collected by a voluntary fishery data collector:
              (a) Is subject to disclosure to both the Secretary and the public, to the extent required or authorized by law; and
              (b) Is subject to discovery by any party to an enforcement proceeding, to the extent required or authorized by law.

              § 905.4
              Use of information.
              (a) Except as provided for in paragraph (b) of this section, information collected by a voluntary fishery data collector may not be introduced by the Secretary as evidence against any consenting owner that is a party to an enforcement proceeding.
              (b) Provided that all applicable evidentiary requirements are satisfied:
              (1) Information collected by a voluntary fishery data collector may be introduced in an enforcement proceeding by any party except the Secretary;
              (2) If information is introduced pursuant to paragraph (b)(1) of this section, all information collected by a voluntary fishery data collector may be introduced by any other party, including the Secretary.
              (c) Independent evidence derived from information collected by a voluntary fishery data collector may be introduced by any party, including the Secretary, in an enforcement proceeding.

              § 905.5
              Exceptions.
              The provisions of this part shall not apply in any enforcement proceeding against a consenting owner that alleges the actual or attempted:
              (a) Assault, intimidation, or harassment (including sexual harassment) of any person; or
              (b) Impairment or interference with the duties of a voluntary fishery data collector.

            Pt. 906
            PART 906—NATIONAL APPEALS OFFICE RULES OF PROCEDURE

              Sec.
              906.1
              Purpose and scope.
              906.2
              Definitions.
              906.3
              Requesting an appeal and agency record.

              906.4
              General filing requirements.
              906.5
              Service.
              906.6
              Ex parte communications.
              906.7
              Disqualification of appellate officer.
              906.8
              Scheduling and pre-hearing conferences.
              906.9
              Exhibits.
              906.10
              Evidence.
              906.11
              Hearing.
              906.12
              Closing the evidentiary portion of the NAO case record.
              906.13
              Failure to appear.
              906.14
              Burden of proof.
              906.15
              Decisions.
              906.16
              Reconsideration.
              906.17
              Review by the Regional Administrator.
              906.18
              Final decision of the Department.

              Authority:
              16 U.S.C. 1801 et seq.; 16 U.S.C. 1374, 1375 and 1416; 16 U.S.C. 1540; 16 U.S.C. 773f; 16 U.S.C. 973f; 16 U.S.C. 1174; 16 U.S.C. 2437; 16 U.S.C. 4013; 16 U.S.C. 5507; 16 U.S.C. 7009; 16 U.S.C. 3637; 16 U.S.C. 5103 and 5106; 16 U.S.C. 5154 and 5158; 16 U.S.C. 6905, and; 16 U.S.C. 5010.

              Source:
              79 FR 7060, Feb. 6, 2014, unless otherwise noted.

              § 906.1
              Purpose and scope.
              (a) This part sets forth the procedures governing administrative adjudications before the National Appeals Office (NAO).
              (b) NAO will adjudicate appeals of initial administrative determinations in limited access privilege programs developed under section 303A of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and approved after the effective date of these regulations. Those appeals are informal proceedings.
              (c) The procedures in this part may be incorporated by reference in regulations other than those promulgated pursuant to section 303A of the MSA.
              (d) The Secretary of Commerce may request that NAO adjudicate appeals in any matter in controversy that requires findings of fact and conclusions of law, and other quasi-judicial matters that the Secretary deems appropriate, consistent with existing regulations. The Secretary will provide notice to potential appellants and to any affected party in these other matters through regulations or actual notice.
              (e) The procedures in this part may not be used to seek review of the validity of statutes or regulations.

              § 906.2
              Definitions.
              As used in this part:

                Agency record means all material and information, including electronic, the office that issued the initial administrative determination relied on or considered in reaching its initial administrative determination, or which otherwise is related to the initial administrative determination.

                Appeal means an appellant's petition to appeal an initial administrative determination and all administrative processes of the National Appeals Office related thereto.

                Appellant means a person who is the named recipient of an initial administrative determination and appeals it to the National Appeals Office.

                Appellate officer means an individual designated by the Chief of the National Appeals Office to adjudicate the appeal. The term may include the Chief of the National Appeals Office.

                Day means calendar day unless otherwise specified by the Chief of the National Appeals Office. When computing any time period specified under these rules, count every day, including intermediate Saturdays, Sundays, and legal holidays. If the date that ordinarily would be the last day for filing with NAO falls on a Saturday, Sunday, or Federal holiday, or a day NAO is closed, the filing period will include the first NAO workday after that date.

                Department or DOC means the Department of Commerce.

                Initial Administrative Determination or IAD means a determination made by an official of the National Marine Fisheries Service that directly and adversely affects a person's ability to hold, acquire, use, or be issued a limited access privilege. The term also includes determinations issued pursuant to other federal law, for which review has been assigned to the National Appeals Office by the Secretary.

                NAO means the National Appeals Office, an adjudicatory body within the Office of Management and Budget, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce. The term generally means all NAO personnel, including appellate officers.

                NAO case record means the agency record and all additional documents and other materials related to an appeal and maintained by NAO in a case file.

                NMFS means the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce.

                National Oceanic and Atmospheric Administration or NOAA means the National Oceanic and Atmospheric Administration, Department of Commerce.

                Party means a person who files a petition for appeal with NAO and an office that issued the IAD if that office participates in the NAO appeal.

                Regional Administrator means the administrator of one of five regions of NMFS: Northeast, Southeast, West Coast, Alaska, or Pacific Islands. The term also includes an official with similar authority within the DOC, such as the Director of NMFS Office of Sustainable Fisheries.

                Representative means an individual properly authorized by an appellant in writing to act for the appellant in conjunction with an appeal pending in NAO. The representative does not need to be a licensed attorney.

              § 906.3
              Requesting an appeal and agency record.
              (a) Who may file. Any person who is the named recipient of an initial administrative determination.
              (b) Petition to appeal. (1) To request an appeal, a person shall submit a written petition of appeal to NAO.
              (2) The petition shall include a copy of the initial administrative determination the person wishes to appeal.
              (3) In the petition, the person shall state how the initial administrative determination directly and adversely affects him or her, why he or she believes the initial administrative determination is inconsistent with the law and regulations governing the initial administrative determination, and whether he or she requests a hearing or prefers that an appellate officer make a decision based on the NAO case record and without a hearing.
              (i) Arguments not raised by the person in his or her petition to appeal will be deemed waived unless NAO permits amendments to the petition based on good cause for not raising the arguments in the original petition.
              (ii) The petition may include additional documentation in support of the appeal.
              (4) If a person requests a hearing, the written request must include a concise statement raising genuine and substantial issues of a material fact or law that cannot be resolved based on the documentary evidence.
              (5) In the petition, a person shall state whether the person has a representative, and if so, the name, address, and telephone number for the representative.
              (c) Address of record. In the petition, the person shall identify the address of record. Documents directed to the appellant will be mailed to the address of record, unless the appellant provides NAO and other parties with any changes to his or her address in writing.
              (1) The address of record may include a representative's address.
              (2) NAO bears no responsibility if the appellant or his or her representative does not receive documents because appellant or his or her representative changed his or her address and did not notify NAO.
              (3) NAO bears no responsibility if the appellant or his or her representative fails to retrieve documents upon notification from the United States Postal Service or commercial carrier.
              (4) NAO will presume that documents addressed to an address of record and properly mailed or given to a commercial carrier for delivery are received.
              (d) Place of filing. The petition must be transmitted via facsimile. The facsimile number is: 301-713-2384. If the person filing the petition does not have access to a fax machine, he or she may file the petition by mail or commercial carrier addressed to Chief, National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.
              (e) Time limitations. (1) A petition must be filed within 45 days after the date the initial administrative determination is issued unless a shorter or longer filing timeframe is explicitly specified in the regulations governing the initial administrative determination.

              (2) A person may not request an extension of time to file a petition to appeal.
              (f) Agency record. (1) Within 20 days of receipt of the copy of the petition to appeal, the office that issued the initial administrative determination that is the subject of the appeal shall transmit the agency record to NAO.
              (2) The office that issued the initial administrative determination shall organize the documents of the agency record in chronological order. Pages attached to a primary submission shall remain with the primary submission.
              (g) Agency participation in appeal. Within 20 days of receipt of the copy of the petition to appeal, the office that issued the initial administrative determination that is the subject of the appeal may provide written notice to NAO that it will be a party to the appeal. An office issuing the initial administrative determination is not required to be a party.

              § 906.4
              General filing requirements.
              (a) Date of filing. Filing refers to providing documents to NAO.
              (1) Except for the agency record required under § 906.3(f), all documents filed on behalf of an appellant or related to an appeal shall be submitted to NAO via facsimile. The facsimile number is: 301-713-2384. If the person filing does not have access to a fax machine, he or she may file by regular mail or commercial carrier addressed to Chief, National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.
              (2) A document transmitted to NAO is considered filed upon receipt of the entire submission by 5 p.m. Eastern Time at NAO.
              (b) Copies. At the time of filing a submission to NAO, the filing party shall serve a copy thereof on every other party, unless otherwise provided for in these rules.
              (c) Retention. All submissions to NAO become part of a NAO case record.
              (d) Extension of time. When a submission is required to be filed at NAO by a deadline, a party may request, in writing, an extension of time to file the submission, citing the specific reason(s) for the need for an extension. NAO may grant one extension of up to 30 days if an appellate officer determines the party has established good cause for an extension of time, taking into account whether the party timely requested the extension or the extent to which the party missed the deadline.

              § 906.5
              Service.
              (a) Service refers to providing documents to parties to an appeal.
              (1) Service of documents may be made by first class mail (postage prepaid), facsimile, or commercial carrier, or by personal delivery to a party's address of record.
              (2) Service of documents will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), facsimile transmission, delivery to a commercial carrier, or upon personal delivery.
              (b) A party shall serve a copy of all documents to all other parties and shall file a copy of all documents with NAO the same business day.
              (c) NAO may serve documents by electronic mail.

              § 906.6
              Ex parte communications.
              (a) Ex parte communication means any oral or written communication about the merits of a pending appeal between one party and the NAO with respect to which reasonable prior notice to all parties is not given. However, ex parte communication does not include inquiries regarding procedures, scheduling, and status.
              (b) Ex parte communication is not permissible unless all parties have been given reasonable notice and an opportunity to participate in the communication.

              (c) If NAO receives an ex parte communication, NAO shall document the communication and any responses thereto in the NAO case record. If the ex parte communication was in writing, NAO shall include a copy of the communication in the NAO case record. If the ex parte communication was oral, NAO shall prepare a memorandum stating the substance of the oral communication, and include the memorandum in the NAO case record. NAO will provide copies of any such materials included in the NAO case record under this paragraph to the parties.

              (d) NAO may require a party to show cause why such party's claim or interest in the appeal should not be dismissed, denied, disregarded, or otherwise adversely affected because of an ex parte communication.
              (e) NAO may suspend this section during an alternative dispute resolution process established by regulation or agency policy.
              (f) Communication with NAO, including appellate officers, concerning procedures, scheduling, and status is permissible.

              § 906.7
              Disqualification of appellate officer.
              (a) An appellate officer shall disqualify himself or herself if the appellate officer has a perceived or actual conflict of interest, a perceived or actual prejudice or bias, for other ethical reasons, or based on principles found in the American Bar Association Model Code of Judicial Conduct for Administrative Law Judges.
              (b) Any party may request an appellate officer, at any time before the filing of the appellate officer's decision, to withdraw on the ground of personal bias or disqualification, by filing a written motion with the appellate officer setting forth in detail the matters alleged to constitute grounds for disqualification.
              (c) The appellate officer, orally or in writing, shall grant or deny the motion based on the American Bar Association Model Code of Judicial Conduct for Federal Administrative Law Judges and other applicable law or policy. If the motion is granted, the appellate officer will disqualify himself or herself and withdraw from the proceeding. If the motion is denied, the appellate officer will state the grounds for his or her ruling and proceed with his or her review.

              § 906.8
              Scheduling and pre-hearing conferences.
              (a) NAO may convene a scheduling and/or pre-hearing conference if, for example, an appellate officer in his or her discretion finds a conference will materially advance the proceeding.
              (b) NAO shall notify the parties in writing 10 days prior to a conference unless the Chief of NAO orders a shorter period of time for providing notice of conducting a conference. A party may request one change in the scheduled pre-hearing date. In determining whether to grant the request, NAO will consider whether the requesting party has shown good cause for the change in date.
              (c) In exercising his or her discretion whether to hold a scheduling and/or pre-hearing conference, an appellate officer may consider:
              (1) Settlement, if authorized under applicable law;
              (2) Clarifying the issues under review;
              (3) Stipulations;
              (4) Hearing(s) date, time, and location;
              (5) Identifying witnesses for the hearing(s);
              (6) Development of the NAO case record, and;
              (7) Other matters that may aid in the disposition of the proceedings.
              (d) Recording. NAO may record the conference.
              (e) Format. At the discretion of the appellate officer, conferences may be conducted by telephone, in person, or by teleconference or similar electronic means.
              (f) NAO may issue a written order showing the matters disposed of in the conference and may include in the order other matters related to the appeal.

              § 906.9
              Exhibits.
              (a) The parties shall mark all exhibits in consecutive order in whole Arabic numbers and with a designation identifying the party submitting the exhibit(s).
              (b) Parties shall exchange all exhibits that will be offered at the hearing at least 10 days before the hearing.
              (c) Parties shall provide all exhibit(s) to NAO at least 5 days before the hearing.
              (d) NAO may modify the timeframe for exchanging or submitting exhibits if an appellate officer determines good cause exists.

              (e) NAO may deny the admission into evidence of exhibits that are not marked and exchanged pursuant to this rule.

              (f) Each exhibit offered in evidence or marked for identification shall be filed and retained in the NAO case record.

              § 906.10
              Evidence.
              (a) The Federal Rules of Evidence do not apply to NAO proceedings.
              (b) An appellate officer will decide whether to admit evidence into the NAO case record.
              (1) An appellate officer may exclude unduly repetitious, irrelevant, and immaterial evidence. An appellate officer may also exclude evidence to avoid undue prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence.
              (2) An appellate officer may consider hearsay evidence.
              (c) Copies of documents may be offered as evidence, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were originals. If an appellate officer so directs, a party shall submit original documents to the appellate officer.
              (d) An appellate officer may take official notice of Federal or State public records and of any matter of which courts may take judicial notice.
              (e) An appellate officer may request, and the program office that issued the initial administrative determination in the case before the appellate officer will provide, the interpretation(s) of the law made by the program office and applied to the facts in the case.

              § 906.11
              Hearing.
              (a) Procedures. (1) An appellate officer in his or her discretion may order a hearing taking into account the information provided by an appellant pursuant to § 906.3(b)(3) and whether an appellate officer considers that a hearing will materially advance his or her evaluation of the issues under appeal. In exercising his or her discretion, an appellate officer may consider whether oral testimony is required to resolve a material issue of fact, whether oral presentation is needed to probe a party's position on a material issue of law, and whether a hearing was held previously for the same appeal. If an appellate officer determines that a hearing is not necessary, then the appellate officer will base his or her decision on the NAO case record. In the absence of a hearing an appellate officer may, at his or her discretion, permit the parties to submit additional materials for consideration.
              (2) If an appellate officer convenes a hearing, the hearing will be conducted in the manner determined by NAO most likely to obtain the facts relevant to the matter or matters at issue.
              (3) NAO shall schedule the date, time and place for the hearing. NAO will notify the parties in writing of the hearing date, time and place at least 10 days prior to the hearing unless the Chief of NAO orders a shorter period for providing notice or conducting the hearing. A party can request one change in the scheduled hearing date. In determining whether to grant the request, NAO will consider whether the requesting party has shown good cause for the change in date.
              (4) At the hearing, all testimony will be under oath or affirmation administered by an appellate officer. In the event a party or a witness refuses to be sworn or refuses to answer a question, an appellate officer may state for the record any inference drawn from such refusal.
              (5) An appellate officer may question the parties and the witnesses.
              (6) An appellate officer will allow time for parties to present argument, question witnesses and other parties, and introduce evidence consistent with § 906.10.
              (7) Parties may not compel discovery or the testimony of any witness.
              (b) Recording. An appellate officer will record the hearing unless the appellant consents to proceed without a recording.
              (c) Format. At the discretion of NAO, hearings may be conducted by telephone, in person, or by teleconference or similar electronic means.

              § 906.12
              Closing the evidentiary portion of the NAO case record.

              (a) At the conclusion of the NAO proceedings, an appellate officer will establish the date upon which the evidentiary portion of the NAO case record will close. Once an appellate officer closes the evidentiary portion of the NAO case record, with or without a hearing, no further submissions or argument will be accepted into the NAO case record.
              (b) NAO in its discretion may reopen the evidentiary portion of the NAO case record or request additional information from the parties at any time prior to final agency action.

              § 906.13
              Failure to appear.
              If any party fails to appear at a pre-hearing conference or hearing after proper notice, an appellate officer may:
              (a) Dismiss the case, or;
              (b) Deem the failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the making of a decision based on the NAO case record.

              § 906.14
              Burden of proof.
              On issues of fact, the appellant bears the burden of proving he or she should prevail by a preponderance of the evidence. Preponderance of the evidence is the relevant evidence in the NAO case record, considered as a whole, that shows that a contested fact is more likely to be true than not true. Appellant has the obligation to obtain and present evidence to support the claims in his or her petition.

              § 906.15
              Decisions.
              (a) After an appellate officer closes the evidentiary portion of the NAO case record, NAO will issue a written decision that is based on the NAO case record. In making a decision, NAO shall determine whether the appellant has shown by a preponderance of the evidence that the initial administrative determination is inconsistent with the law and regulations governing the initial administrative determination. In making a decision, NAO shall give deference to the reasonable interpretation(s) of applicable ambiguous laws and regulations made by the office issuing the initial administrative determination.
              (b) NAO shall serve a copy of its decision upon the appellant and the Regional Administrator. NAO will not provide the case record to the Regional Administrator when issuing its decision.

              § 906.16
              Reconsideration.
              (a) Any party may file a motion for reconsideration of an NAO decision issued under § 906.15. The request must be filed with NAO within 10 days after service of NAO's decision. A party shall not file more than one motion for reconsideration of an NAO decision.
              (b) The motion must be in writing and contain a detailed statement of an error of fact or law material to the decision. The process of reconsideration is not a forum for reiterating the appellant's objections to the initial administrative determination.
              (c) Arguments not raised by a party in his or her motion for reconsideration of a decision will be deemed waived.
              (d) In response to a motion for reconsideration, NAO will either:
              (1) Reject the motion because it does not meet the criteria of paragraph (a) or (b) of this section; or
              (2) Issue a revised decision and serve a copy of its revised decision upon the appellant and the Regional Administrator.
              (e) At any time prior to notifying the Regional Administrator pursuant to § 906.17(a), the NAO may issue a revised decision to make corrections and serve a copy of its revised decision upon the appellant and the Regional Administrator.

              § 906.17
              Review by the Regional Administrator.
              (a) If NAO does not receive a timely motion for reconsideration pursuant to § 906.16(a), receives a timely motion and rejects it pursuant to § 906.16(d)(1), or issues a revised decision pursuant to § 906.16(d)(2) or (e), NAO will notify the Regional Administrator and the appellant, and provide a copy of the case record for its decision or revised decision to the Regional Administrator.
              (b) In reviewing NAO's findings of fact, the Regional Administrator may only consider the evidentiary record including arguments, claims, evidence of record and other documents of record that were before NAO when it rendered its decision or revised decision.

              (c) The Regional Administrator may take the following action within 30 days of service of NAO's notification and receipt of the case record under paragraph (a) of this section:
              (1) Issue a written decision adopting, remanding, reversing, or modifying NAO's decision or revised decision.
              (2) Issue a stay for no more than 90 days to prevent NAO's decision or revised decision from taking effect.
              (d) The Regional Administrator must provide a written decision explaining why an NAO decision or revised decision has been remanded, reversed, or modified. Consistent with § 906.18(b), the Regional Administrator may, but does not need to, issue a written decision to adopt an NAO decision or revised decision.
              (e) The Regional Administrator will serve a copy of any written decision or stay on NAO and the appellant.

              § 906.18
              Final decision of the Department.
              (a) The Regional Administrator's written decision to adopt, reverse, or modify an NAO decision or revised decision pursuant to § 906.17(c) is the final decision of the Department for the purposes of judicial review.
              (b) If the Regional Administrator does not take action pursuant to § 906.17(c)(1), NAO's decision issued pursuant to § 906.15(a) or revised decision issued pursuant to § 906.16(d)(2) or (e) becomes the final decision of the Department for the purposes of judicial review 30 days after service of NAO's notification under § 906.17(a), or upon expiration of any stay issued by the Regional Administrator pursuant to § 906.17(c)(2).
              (c) The office that issued the initial administrative determination shall implement the final decision of the Department within 30 days of service of the final decision issued pursuant to § 906.18(a), or within 30 days of the decision becoming final pursuant to § 906.18(b), to the extent practicable.

            Pt. 908
            PART 908—MAINTAINING RECORDS AND SUBMITTING REPORTS ON WEATHER MODIFICATION ACTIVITIES

              Sec.
              908.1
              Definitions.
              908.2
              Persons subject to reporting.
              908.3
              Activities subject to reporting.
              908.4
              Initial report.
              908.5
              Interim reports.
              908.6
              Final report.
              908.7
              Supplemental reports.
              908.8
              Maintenance of records.
              908.9
              Retention of records.
              908.10
              Penalties.
              908.11
              Maintenance of records of related activities.
              908.12
              Public disclosure of information.
              908.13
              Address of letters.
              908.14
              Business to be transacted in writing.
              908.15
              Times for taking action; expiration on Saturday, Sunday, or holiday.
              908.16
              Signature.
              908.17
              Suspension or waiver of rules.
              908.18
              Matters not specifically provided for in rules.
              908.19
              Publication of notice of proposed amendments.
              908.20
              Effective date.
              908.21
              Report form.

              Authority:
              Pub. L. 92-305, 85 Stat. 735, December 18, 1971.

              Source:
              41 FR 23394, June 10, 1976, unless otherwise noted.

              § 908.1
              Definitions.
              As used in this part, terms shall have the meaning ascribed in this section.
              (a) Administrator. The Administrator of the National Oceanic and Atmospheric Administration.
              (b) Person. Any individual, corporation, company, association, firm, partnership, society, joint stock company, any State or local government or any agency thereof, or any other organization, whether commercial or nonprofit, except where acting solely as an employee, agent, or independent contractor of the Federal government.
              (c) Weather modification activity. Any activity performed with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere.
              (d) United States. The several States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or insular possession of the United States.
              (e) Persons whose activities relate to weather modification. Persons engaged in weather modification activities or engaged in the distribution or sale of weather modification apparatus or materials known by them to be destined for use in weather modification activities.

              (f) Project. A related series of weather modification activities having a common objective.
              (g) Target area. The ground area within which the effects of the weather modification activity are expected to be found.
              (h) Control area. A preselected, untreated ground area used for comparison with a target area.
              (i) Weather modification apparatus. Any apparatus used with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere. For example: Seeding generators, propane devices, flares, rockets, artillery projectiles, jet engines, etc.
              (j) Sponsor. The primary person for whom the weather modification activity is performed.
              (k) Operator. The person who is primarily responsible for carrying out the weather modification activity.
              [41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]

              § 908.2
              Persons subject to reporting.
              Any person engaged or intending to engage in any weather modification activity in the United States shall be subject to the reporting provisions of this part.

              § 908.3
              Activities subject to reporting.
              (a) The following, when conducted as weather modification activities, shall be subject to reporting:
              (1) Seeding or dispersing of any substance into clouds or fog, to alter drop size distribution, produce ice crystals or coagulation of droplets, alter the development of hail or lightning, or influence in any way the natural development cycle of clouds or their environment;
              (2) Using fires or heat sources to influence convective circulation or to evaporate fog;
              (3) Modifying the solar radiation exchange of the earth or clouds, through the release of gases, dusts, liquids, or aerosols into the atmosphere;
              (4) Modifying the characteristics of land or water surfaces by dusting or treating with powders, liquid sprays, dyes, or other materials;
              (5) Releasing electrically charged or radioactive particles, or ions, into the atmosphere;
              (6) Applying shock waves, sonic energy sources, or other explosive or acoustic sources to the atmosphere;
              (7) Using aircraft propeller downwash, jet wash, or other sources of artificial wind generation; or
              (8) Using lasers or other sources of electromagnetic radiation.
              (b) In addition to the activities listed above, other similar activities falling within the definition of weather modification as set forth in § 908.1 are also subject to reporting.
              (c) The requirement for reporting shall not apply to activities of a purely local nature that can reasonably be expected not to modify the weather outside of the area of operation. This exception is presently restricted to the use of lightning deflection or static discharge devices in aircraft, boats, or buildings, and to the use of small heat sources, fans, fogging devices, aircraft downwash, or sprays to prevent the occurrence of frost in tracts or fields planted with crops susceptible to frost or freeze damage. Also expected from the requirement for reporting are religious activities or other ceremonies, rites and rituals intended to modify the weather.
              (d) All activities noted in paragraphs (a) and (b) of this section are subject to initial reporting. However, after the Administrator has received initial notification of a planned activity, he may waive some of the subsequent reporting requirements. This decision to waive certain reporting requirements will be based on the general acceptability, from a technical or scientific viewpoint, of the apparatus and techniques to be used.
              (e) Other reporting exceptions may be made in the future by rule of the Administrator.

              § 908.4
              Initial report.

              (a) Any person intending to engage in any weather modification project or activity in the United States shall provide a report of his intention, to be received by the Administrator at least 10 days before the commencement of such project or activity. This report shall contain at least the following:

              (1) The designation, if any, used by the operator for the project or activity;
              (2) The following dates for weather modification activities:
              (i) The date the first actual weather modification activity is to be undertaken;
              (ii) The date on which the final modification activity is expected to occur;
              (3) The following information on persons involved with the project or activity:
              (i) The name, affiliation, and address of the sponsor;
              (ii) The name, affiliation, and address of the operator;
              (4) The purpose of the project or activity;
              (5) A map showing the approximate size and location of the target and control areas, and the location of each item of ground-based weather modification apparatus, precipitation measuring device, and, for airborne operations, the airport;
              (6) A description of the weather modification apparatus, modification agents, and the techniques to be employed;
              (7) The name and address of the responsible individual from whom log books or other records of the project or activity may be obtained;
              (8) Answers to the following questions on project safeguards:
              (i) Has an Environmental Impact Statement, Federal or State, been filed: Yes__ No __. If Yes, please furnish a copy as applicable.
              (ii) Have provisions been made to acquire the latest forecasts, advisories, warnings, etc. of the National Weather Service, Forest Service, or others when issued prior to and during operations? Yes __ No __. If Yes, please specify on a separate sheet.
              (iii) Have any safety procedures (operational contraints, provisions for suspension of operations, monitoring methods, etc.) and any environmental guidelines (related to the possible effects of the operations) been included in the operational plans? Yes __ No __. If Yes, please furnish copies or a description of the specific procedures and guidelines; and
              (9) Optional remarks, to include any additional items which the person deems significant or of interest and such other information as the Administrator may request the person to submit.
              (b) If circumstances prevent the signing of a contract or agreement to perform, or receipt of an authorization to proceed with, a weather modification activity at a date early enough to comply with paragraph (a) of this section, the initial report shall be provided so as to be received by the Administrator within 10 days of the date of signing of the contract or agreement, or receipt of authorization to proceed. In such cases, the report shall be accompanied by an explanation as to why it was not submitted at least 10 days prior to the commencement of the activity.
              (c) In the event that circumstances beyond the control of the person liable to report under these regulations prevent the submission of the initial report in a timely manner as described above, the report shall be forwarded as early as possible, accompanied by an explanation as to why a timely report has not been provided. If such explanation is deemed adequate, the Administrator will consider the report as timely filed.

              § 908.5
              Interim reports.
              (a) Any person engaged in a weather modification project or activity in the United States on January 1 in any year shall submit to the Administrator, not later than 45 days thereafter, an interim report setting forth as of such date the information required below with respect to any such continuing project or activity not previously furnished to the Administrator in a prior interim report; provided that the January 1 date shall not apply if other arrangements have previously been made with the written approval of the Administrator.
              (b) The interim report shall include the file number assigned by the Administrator and shall provide a summary of the project or activity containing at least the following information for each month:
              (1) Number of days on which actual modification activities took place;

              (2) Number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities;

              (3) Total number of hours of operation of each type of weather modification apparatus (i.e., net hours of agent release);
              (4) Total amount of agent used. If more than one agent was used, each should be totaled separately (e.g., carbon dioxide, sodium chloride, urea, silver iodide).
              (c) The totals for the items in paragraph (b) of this section shall be provided for the period covered by the interim report.
              [41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]

              § 908.6
              Final report.
              Upon completion of a weather modification project or activity the person who performed the same shall submit a report to the Administrator not later than 45 days after completion of the project or activity. The report shall include the file number assigned by the Administrator and the following items:
              (a) Information required for the interim reports (to the extent not previously reported).
              (b) The total number of days on which actual modification activities took place during the project or activity.
              (c) The total number of days during the project or activity on which weather modification activities were conducted, segregated by each of the major purposes of the activities.

              (d) The total number of hours of operation of each type of weather modification apparatus during the project or activity (i.e., net hours of agent release).
              (e) The total amount of modification agent(s) dispensed during the project or activity. If more than one agent was used, each should be totaled separately (e.g., carbon dioxide, sodium chloride, urea, silver iodide).
              (f) The date on which the final weather modification activity occurred.
              [41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]

              § 908.7
              Supplemental reports.
              Notwithstanding other regulations, a supplemental report in letter form referring to the appropriate NOAA file number, if assigned, must be made to the Administrator immediately if any report of weather modification activities submitted under § 908.4, § 908.5, or § 908.6 is found to contain any material inaccuracies, misstatements, and omissions. A supplemental report must also be made if there are changes in plans for the project or activity.

              § 908.8
              Maintenance of records.
              (a) Any person engaging in a weather modification activity in the United States shall maintain a record of such activity. This record shall contain at least the following, when applicable:
              (1) A chronological record of activities carried on, preferably in the form of a daily log, which shall include the NOAA file number assigned to the project, the designation of each unit of weather modification apparatus, and at least the following information for each unit:
              (i) Date of the weather modification activity.
              (ii) Position of each aircraft or location of each item of weather modification apparatus during each modification mission. Maps may be used.
              (iii) Time when weather modification activity began and ended.

              (iv) Total duration of operation of each unit of weather modification apparatus (i.e., net hours of agent release).
              (v) Type of each modification agent used.
              (vi) Rate of dispersal of each agent during the period of actual operation of weather modification apparatus.
              (vii) Total amount of agent used. If more than one agent was used, report total for each type separately.
              (viii) Number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities.
              (2) The monthly totals of hours of modification activity, the amount of modification agent used, and the number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities, shall be shown on the daily log sheet for the last day of each month.

              (b) When the activity involves ground-based weather modification apparatus, records of the following shall also be maintained, when applicable, but need not be made part of the daily log:
              (1) The location of each item of weather modification apparatus in use and its identification such as type and manufacturer's model number. If the apparatus is not commercially available, a brief description of the apparatus and the method of operation should be recorded.
              (2) The name and address of the person responsible for operating each weather modification apparatus.
              (3) The altitude and type of weather phenomenon subjected to weather modification activity during each operational period (e.g., cumulus clouds between 10,000 and 30,000 feet m.s.l.; ground fog).
              (c) When the activity involves airborne weather modification apparatus, records of the following shall also be maintained, when applicable, but need not be made a part of the daily log: For each airborne weather modification apparatus run: Altitude, air speed; release points of modification agents, method of modification and characteristics of flares, rockets, or other delivery systems employed; temperature at release altitude; and, for aircraft: The type of aircraft, its identification number, the airport or airports used, and the names and addresses of crew members and the person responsible for operating the weather modification apparatus; and the altitude and type of weather phenomenon subjected to weather modification activity during each operational period (e.g., cumulus clouds between 10,000 and 30,000 feet m.s.l.; ground fog).
              (d) The following records shall also be maintained, whenever applicable, but need not be made a part of the daily log. Only data specifically collected for the reported activity need be retained; data available from other sources need not be included.
              (1) Any descriptions that were recorded of meteorological condiitons in target and control areas during the periods of operation; for example: Percent of cloud cover, temperature, humidity, the presence of lightning, hail, funnel clouds, heavy rain or snow, and unusual radar patterns.
              (2) All measurements made of precipitation in target and control areas.
              (3) Any unusual results.

              § 908.9
              Retention of records.
              Records required under § 908.8 shall be retained and available for inspection by the Administrator or his designated representatives for 3 years after completion of the activity to which they relate. Such records shall be required to be produced for inspection only at the place where normally kept. The Administrator shall have the right to make copies of such records, if he or she deems necessary.
              [52 FR 4896, Feb. 18, 1987]

              § 908.10
              Penalties.
              Knowing and willful violation of any rule adopted under the authority of section 2 of Public Law 92-205 shall subject the person violating such rule to a fine of not more than $10,000, upon conviction thereof.

              § 908.11
              Maintenance of records of related activities.
              (a) Persons whose activities relate to weather modification activities, other than persons engaged in weather modification activities, shall maintain records concerning the identities of purchasers or users of weather modification apparatus or materials, the quantities or numbers of items purchased, and the times of such purchases. Such information shall be retained for at least 3 years.
              (b) In addition, persons whose activities relate to weather modification shall be required, under the authority of section 4 of Public Law 92-205, to provide the Administrator, on his request, with information he deems necessary to carry out the purposes of this act.
              [41 FR 23394, June 10, 1976, as amended at 52 FR 4896, Feb. 18, 1987]

              § 908.12
              Public disclosure of information.

              (a) Any records or other information obtained by the Administrator under these rules or otherwise under the authority of Public Law 92-205 shall be made publicly available to the fullest practicable extent. Such records or information may be inspected on written request to the Administrator. However, the Administrator will not disclose any information referred to in section 1905 of title 18, United States Code, and that is otherwise unavailable to the public, except that such information shall be disclosed:
              (1) To other Federal government departments, agencies, and officials for official use upon request;
              (2) In any judicial proceeding under a court order formulated to preserve the confidentiality of such information without impairing the proceeding; and
              (3) To the public, if necessary to protect their health and safety.
              (b) Certified copies of such reports and information, to the extent publicly disclosable, may be obtained from the Administrator at cost in accordance with the Department of Commerce implementation of the Freedom of Information Act.
              (c) Persons reporting on weather modification projects or related activities shall specifically identify all information that they consider not to be subject to public disclosure under the terms of Public Law 92-205 and provide reasons in support thereof. A determination as to whether or not reported information is subject to public dissemination shall be made by the Administrator.
              (d) When consideration of a weather modification activity report and related information indicates that a proposed project may significantly depart from the practices or procedures generally employed in similar circumstances to avoid danger to persons, property, or the environment, or indicates that success of Federal research projects may be adversely affected if the proposed project is carried out as described, the Administrator will notify the operator(s) and State officials of such possibility and make recommendations where appropriate. The purpose of such notification shall be to inform those notified of existing practices and procedures or Federal research projects known to NOAA. Notification or recommendation, or failure to notify or recommend, shall not be construed as approval or disapproval of a proposed project or as an indication that, if carried out as proposed or recommended it may, in any way, protect or endanger persons, property, or the environment or affect the success of any Federal research project. Any advisory notification issued by the Administrator shall be available to the public and be included in the pertinent activity report file.

              § 908.13
              Address of letters.
              Letters and other communications intended for the Administrator, in connection with weather modification reporting or activities, shall be addressed to: The Administrator, National Oceanic and Atmospheric Administration, Environmental Modification Office, Rockville, Md. 20852.

              § 908.14
              Business to be transacted in writing.
              All business transacted with the National Oceanic and Atmospheric Administration with regard to reports of weather modification activities should be transacted in writing. Actions of the National Oceanic and Atmospheric Administration will be based exclusively on the written record.

              § 908.15
              Times for taking action; expiration on Saturday, Sunday, or holiday.
              Whenever periods of time are specified in these rules in days, calendar days are intended. When the day, or the last day, fixed under these rules for taking any action falls on a Saturday, Sunday, or on a Federal holiday, the action may be taken on the next succeeding day which is not a Saturday, Sunday, or Federal holiday.

              § 908.16
              Signature.

              All reports filed with the National Oceanic and Atmospheric Administration must be dated and signed by or on behalf of the person conducting or intending to conduct the weather modification activities referred to therein by such person, individually or, in the case of a person other than an individual, by a partner, officer, or other person having corresponding functions and authority. For this purpose “officer” means a president, vice president, treasurer, secretary, or comptroller. Notwithstanding the foregoing, such reports may also be signed by the duly authorized agent or attorney of the person whose activities are being reported. Proof of such authorization shall be furnished to the Administrator when filing a report, unless previously furnished.

              § 908.17
              Suspension or waiver of rules.
              In an extraordinary situation, any requirement of these rules may be suspended or waived by the Administrator on request of the interested party, to the extent such waiver is consistent with the provisions of Public Law 92-205 and subject to such other requirements as may be imposed.

              § 908.18
              Matters not specifically provided for in rules.
              All matters not specifically provided for or situations not specifically addressed in these rules will be decided in accordance with the merits of each case by or under the authority of the Administrator, and such decision will be communicated in writing to all parties involved in the case.

              § 908.19
              Publication of notice of proposed amendments.

              Whenever required by law, and in other cases whenever practicable, notice of proposed amendments to these rules will be published in the Federal Register. If not published with the notice, copies of the text of proposed amendments will be furnished to any person requesting the same. All comments, suggestions, and briefs received within the time specified in the notice will be considered before adoption of the proposed amendments, which may be modified in the light thereof. Informal hearings may be held at the discretion of the Administrator.

              § 908.20
              Effective date.
              These rules are effective on June 10, 1976.

              § 908.21
              Report form.
              Public Law 92-205 and these rules should be studied carefully prior to reporting. Reports required by these rules shall be submitted on forms obtainable on request from the Administrator, or on an equivalent format. 1
                 In special situations, such alterations to the forms as the circumstances thereto may render necessary may be made, provided they do not depart from the requirements of these rules or of Public Law 92-205.

                  1 Filed as part of the original document.

            Pt. 909
            PART 909—MARINE DEBRIS

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

              § 909.1
              Definition of marine debris for the purposes of the Marine Debris Research, Prevention, and Reduction Act.
              (a) Marine debris. For the purposes of the Marine Debris Research, Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine debris is defined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.
              (b) NOAA and the Coast Guard have jointly promulgated the definition of marine debris in this part. Coast Guard's regulation may be found in 33 CFR 151.3000.
              [74 FR 45560, Sept. 3, 2009]

            Pt. 911
            PART 911—POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-BASED DATA COLLECTION SYSTEMS

              Sec.
              911.1
              Purpose.
              911.2
              Scope.
              911.3
              Definitions.
              911.4
              Use of the NOAA Data Collection Systems.
              911.5
              NOAA Data Collection Systems Use Agreements.
              911.6
              Treatment of data.
              911.7
              Continuation of the NOAA Data Collection Systems.
              911.8
              Technical requirements.
              Appendix A to Part 911—Argos DCS Use Policy Diagram
              Appendix B to Part 911—GOES DCS Use Policy Diagram

              Authority:
              15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7 U.S.C. 450b; 5 U.S.C. 552.

              Source:
              63 FR 24922, May 6, 1998, unless otherwise noted.

              § 911.1
              Purpose.
              These regulations set forth the procedural, informational and technical requirements for use of the NOAA Data Collection Systems (DCS). In addition, they establish the criteria NOAA will employ when making determinations as to whether to authorize the use of its space-based DCS. The regulations are intended to facilitate the collection of environmental data as well as other such data which the Government is interested in collecting. In those instances where space-based commercial systems do not meet users' requirements, the intent is to not disadvantage the development of the commercial space-based services in this sector. Obtaining a system use agreement to operate data collection platforms pursuant to these regulations does not affect related licensing requirements of other Federal agencies such as the Federal Communications Commission.

              § 911.2
              Scope.
              (a) These regulations apply to any person subject to the jurisdiction or control of the United States who operates or proposes to operate data collection platforms to be used with the NOAA DCS either directly or through an affiliate or subsidiary. For the purposes of these regulations a person is subject to the jurisdiction or control of the United States if such person is:
              (1) An individual who is a U.S. citizen; or
              (2) A corporation, partnership, association, or other entity organized or existing under the laws of any state, territory, or possession of the United States.
              (b) These regulations apply to all existing Geostationary Operational Environmental Satellite (GOES) and Argos DCS users as well as all future applications for NOAA DCS use.

              § 911.3
              Definitions.
              For purposes of this part:
              (a) Approving authority means NOAA for the GOES DCS; and it means the Argos Participating Agencies, via the Argos Operations Committee, for the Argos DCS.
              (b) Argos DCS means the system which collects data from fixed and moving platforms and provides platform location data. This system consists of platforms, the Argos French instrument on the Polar-orbiting Operational Environmental Satellites (POES) and other international satellites; a ground processing system; and telemetry ground stations.
              (c) Argos participating agencies means those agencies of the United States and other countries that participate in the management of the Argos DCS.
              (d) Assistant Administrator means the Assistant Administrator for Satellite and Information Services, NOAA, or his/her designee.
              (e) Director means the Director of the Office of Satellite Data Processing and Distribution for the National Environmental Satellite, Data, and Information Service of NOAA.
              (f) Environmental data means environmental measurement data for the purpose of using the GOES DCS; and it means environmental measurement and environmental protection data for the purpose of using the Argos DCS.
              (g) Environmental measurement data means data that relate to the characteristics of the Earth and its natural phenomena by helping to better understand, evaluate, or monitor its natural resources.
              (h) Environmental protection data means data that relate to the characteristics of the Earth and its environment (including its ecosystems and the species which inhabit them) by helping to protect against any unreasonable adverse effects thereto.
              (i) Episodic use means the use of the system for short events where there is a significant possibility of loss of life, such as for Arctic expeditions or scientific campaigns into remote areas.
              (j) Government interest means that the use is determined in advance to be of interest to one or more governmental entities of the United States, France or, once they have become an Argos Participating Agency, Japan or a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT) member state; or also, in the case of the GOES DCS, a state or local government.

              (k) Government user means agencies of international governmental organizations, national government or any subdivision thereof, or any of those agencies' contractors or grantees, so long as the contractor is using the data collected by the NOAA DCS to fulfill its contractual obligations to the government agency or in the case of a grantee that these data are being used in accordance with the statement of work for the award.
              (l) NOAA DCS means the GOES and Argos space-based DCS.
              (m) Non-profit user means a not-for-profit academic, research, or other non-governmental organization, which is using these data, for education and/or scientific, non-commercial purposes.
              (n) Operational use means the use of data in a situation where the utility of the data are significantly reduced if not collected or delivered in a specific time window. This includes situations where extensive preparation work is in place and a delay in acquisition of data would jeopardize the project.
              (o) Platform compatibility means the compatibility of the platform with the space segment of the system, and includes elements such as message length and composition, signal strength, and transmission protocol (e.g., continuous versus event drive).
              (p) Sensitive use means the use of the NOAA DCS where the users' requirements dictate the use of a governmental system such as National security, homeland security, law enforcement and humanitarian operations.
              (q) Testing use means the use of the NOAA DCS by manufacturers of platforms for use in conjunction with the NOAA DCS, for the limited purpose of testing and certifying the compatibility of new platforms with the technical requirements of the NOAA DCS.
              (r) User means the entity and/or organization that owns or operates user platforms for the purpose of collecting and transmitting data through the NOAA DCS, or the organization requiring the collection of the data.
              (s) User platform means device designed in accordance with the specifications delineated and approved by the Approving Authority used for the in-situ collection and subsequent transmission of data via the NOAA DCS. Those devices which are used in conjunction with the GOES DCS are referred to as data collection platforms (DCP) and those which are used in conjunction with the Argos DCS are referred to as Platform Transmitter Terminals (PTT). For purposes of these regulations, the terms “user platform,” “DCP”, and “PTT” are interchangeable.
              (t) User requirement means the requirement expressed and explained in the System Use Agreement.
              [63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]

              § 911.4
              Use of the NOAA Data Collection Systems.
              (a) Use of the NOAA DCS will only be authorized in accordance with the conditions and requirements set forth in paragraphs (b), (c), (d), (e), and (f) of this section.
              (b)(1) Use of the NOAA DCS will only be authorized where it is determined that there are no commercial space-based services available that meet the user's requirements.
              (2) A determination under paragraph (b)(1) of this section must be based on such factors as satellite coverage, accuracy, data throughput, platform power consumption, size and weight, service continuity and reliability, platform compatibility, system access mode, and, in the case of government agencies, cost-effectiveness.
              (c)(1) Except as provided in paragraphs (c)(2), (3), (4), and (5) of this section, NOAA DCS shall only be used for the collection of environmental data by governmental and/or non-profit users.
              (2) Non-governmental, environmental use of the NOAA DCS is only authorized where there is a Government interest in the collection and/or receipt of the data.

              (3) Except as provided in paragraph (c)(4) of this section, non-environmental use of the NOAA DCS is only authorized for government use and non-profit users where there is a government interest. The NOAA DCS will continue to be predominantly used for environmental applications. Non-environmental use of the system shall be limited to sensitive use, and to episodic use as defined below in paragraph (c)(4) of this section.
              (4) Episodic use of the NOAA DCS may also be authorized in specific instances where there is a significant possibility for loss of life. Such use shall be closely monitored.
              (5) Testing use of the NOAA DCS will only be authorized for manufacturers of NOAA DCS platforms, that require access to the system in order to test and certify prototype and production models.
              (d) Because of capacity limitations on the GOES DCS, system applicants will be admitted to use the GOES system in accordance with the following priority:
              (1) NOAA programs or users whose data are required for implementation of NOAA programs, as determined by the Assistant Administrator, will be accorded first priority.
              (2) Users whose data are desired to support NOAA programs will be accorded second priority.
              (3) Users whose data and/or use of the GOES DCS will further a program of an agency or department of the U.S. Government, other than NOAA, will be accorded third priority.
              (4) Users whose data are required by a state or local Government of the United States will be accorded fourth priority.
              (5) Testing users of the system will be accorded fifth priority.
              (6) No other usage will be authorized for the GOES DCS.
              (e) In the event that Argos DCS capacity limitations require that priority determinations be made, priority will be given to those platforms that provide environmental data of broad international interest, especially of an operational nature, and to those requiring the unique capabilities of the Argos DCS, such as platform location or polar coverage.
              [63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]

              § 911.5
              NOAA Data Collection Systems Use Agreements.
              (a)(1) In order to use a NOAA DCS, each user must have an agreement with the approving authority for that system.
              (2) Persons interested in entering into a system use agreement should contact the Director.
              (b) These agreements will address, but may not be limited to, the following matters:
              (1) The period of time the agreement is valid and procedures for its termination,
              (2) The authorized use(s), and its priorities for use,
              (3) The extent of the availability of commercial space-based services which meet the user's requirements and the reasons for necessitating the use of the Government system,
              (4) Any applicable government interest in the data,
              (5) Required equipment standards,
              (6) Standards of operation,
              (7) Conformance with applicable ITU and FCC agreements and regulations,
              (8) Reporting time and frequencies,
              (9) Data formats,
              (10) Data delivery systems and schedules, and
              (11) User-borne costs.
              (c) The Director shall evaluate user requests for System Use Agreements and renewals and conclude agreements for use of the NOAA DCS.
              (d)(1) Agreements for the collection, via the Argos DCS, of environmental data by government agencies or non-profit institutions shall be valid for 3 years from the date of initial in-situ deployment of the platforms, and may be renewed for additional 3-year periods.
              (2) Agreements for the collection of environmental data, via the Argos DCS, by non-government users shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1-year periods, but only for so long as there exists a governmental interest in the receipt of these data.
              (3) Agreements for the collection of non-environmental data, via the Argos DCS, by government agencies, or non-profit institutions where there is a government interest, shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1-year periods.

              (4) Agreements for the episodic collection of non-environmental data, via the Argos DCS under § 911.4(c)(4), shall be of short, finite duration not to exceed 1 year without exception, and usually shall not exceed 6 months. These agreements shall be closely monitored and shall not be renewed.
              (5) Agreements for the testing use of the Argos DCS by equipment manufacturers shall be valid for 1 year from the date of initial testing, and may be renewed for additional 1-year periods.
              (e)(1) Agreements for the collection of environmental data, by the GOES DCS, shall be valid for 5 years from the date of initial in-situ deployment, and may be renewed for additional 5-year periods.
              (2) Agreements for the testing use of the GOES DCS, by equipment manufacturers, shall be valid for 1 year from the date of initial testing, and may be renewed for additional 1-year periods.

              (3) Agreements for the collection of non-environmental data, via the GOES DCS, by government agencies, or non-profit institutions where there is a government interest, shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1-year periods.
              (4) Agreements for the episodic collection of non-environmental data, via the GOES DCS under § 911.4(c)(4), shall be of short, finite duration not to exceed 1 year without exception, and usually shall not exceed 6 months. These agreements shall be closely monitored and shall not be renewed.
              [63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]

              § 911.6
              Treatment of data.
              (a) All NOAA DCS users must agree to permit NOAA and other agencies of the U.S. Government the full, open, timely, and appropriate use as determined by NOAA, of all environmental data collected from their platforms; this may include the international distribution of environmental data under the auspices of the World Meteorological Organization.
              (b) Raw data from the NOAA space segment is openly transmitted and accessible.
              (c) Accessibility of the NOAA DCS processed data from the ground segment is handled in accordance with the users specifications and system design limitations, subject to the provisions stated in paragraph (a) of this section.
              [68 FR 45161, Aug. 1, 2003]

              § 911.7
              Continuation of the NOAA Data Collection Systems.
              (a) NOAA expects to continue to operate DCS on its geostationary and polar-orbiting satellites, subject to the availability of future appropriations. However, viable commercial space-based alternatives may eventually obviate the need for NOAA to operate its own space-based DCS.
              (b) If use of the system in support of NOAA programs increases, it eventually may be necessary to the further restrict system usage by other users. If such restrictions on use become necessary, or in the event that NOAA discontinues operation of GOES and/or POES, NOAA will provide, to the maximum extent practicable, advance notice and an orderly transition.
              (c) NOAA will not be responsible for any losses resulting from the nonavailability of the NOAA DCS.

              § 911.8
              Technical requirements.
              (a) All platform operators of the NOAA DCS must use a data collection platform radio set whose technical and design characteristics are certified to conform to applicable specifications and regulations.
              (b) All platform operators are responsible for all costs associated with the procurement and operation of the platforms, and for the acquisition of data from those platforms, either directly from the satellite or from the applicable data processing center.

              Pt. 911, App. A
              Appendix A to Part 911—Argos DCS Use Policy Diagram

                ER01AU03.015

              [68 FR 45161, Aug. 1, 2003]

              Pt. 911, App. B
              Appendix B to Part 911—GOES DCS Use Policy Diagram

                ER01AU03.016

              [68 FR 45162, Aug. 1, 2003]

            Pt. 917
            PART 917—NATIONAL SEA GRANT PROGRAM FUNDING REGULATIONS

                Subpart A—General
                Sec.
                917.1
                Basic provisions.
                917.2
                Definitions.

                Subpart B—Sea Grant Matched Funding Program
                917.10
                General.
                917.11
                Guidelines for Sea Grant Fellowships.

                Subpart C—National Projects
                917.20
                General.
                917.21
                National needs and problems.
                917.22
                National Projects funding.

                Subpart D—International Cooperation Assistance
                917.30
                General.

                Subpart E—General Considerations Pertaining to Sea Grant Funding
                917.40
                General.
                917.41
                Application guidance for Sea Grant funding.
                917.42
                Categories of support available for the conducting of Sea Grant activities.
                917.43
                Terms and conditions of Sea Grant funding.

              Authority:
              Pub. L. 94-461, 90 Stat. 1961 (33 U.S.C. 1121 et seq.).

              Source:
              43 FR 15307, Apr. 11, 1978, unless otherwise noted.

              Subpart A—General

                § 917.1
                Basic provisions.
                (a) This section sets forth the basic purposes for which Sea Grant funding may be made pursuant to the following sections of the Act: 33 U.S.C. 1124, 1127, 1125 and 1124a. These sections provide for the funding of programs and projects in fields related to ocean and coastal resources that involve marine research, marine education and training, and marine advisory services. However, there is a significant difference in focus among these sections since section 1124(a) is concerned chiefly with regional and state needs relative to ocean and coastal resources (including the funding of Sea Grant Fellowships under section 1127) while section 1125 is concerned with national needs and problems relative to ocean and coastal resources, and section 1124a is concerned with programs of international cooperation assistance with respect to those resources.
                (b) Comment: Statutory citation 33 U.S.C. 1124(a):

                  In General. The Secretary may make grants and enter into contracts under this subsection to assist any Sea Grant program or project if the Secretary finds that such program or project will—
                  (1) Implement the objective set forth in Section 202(b); and
                  (2) Be responsive to the needs or problems of individual states or regions.
                  The total amount paid pursuant to any such grant or contract may equal 662/3 percent, or any lesser percent, of the total cost of the Sea Grant program or project involved.

                (c) Comment: Statutory citation 33 U.S.C. 1127(a):

                  In General. The Secretary may enter into contracts and make grants under this section to—
                  (1) Enhance the research and development capability of developing foreign nations with respect to ocean and coastal resources.
                  (2) Promote the international exchange of information and data with respect to the assessment, development, utilization, and conservation of such resources.

                § 917.2
                Definitions.
                (a) The term Act means the Sea Grant Program Improvement Act of 1976, as amended (33 U.S.C. 1121 et seq.).
                (b) The term Secretary means the Secretary of Commerce.
                (c) The term Administrator means the Administrator of the National Oceanic and Atmospheric Administration.
                (d) The term Office of Sea Grant means the National Oceanic and Atmospheric Administration's Office of Sea Grant, which administers the National Sea Grant Program provided for in the Act.
                (e) The term objective of the Act means the objective set forth at 33 U.S.C. 1121(b) and is “is to increase the understanding, assessment, development, utilization, and conservation of the Nation's ocean and coastal resources by providing assistance to promote a strong educational base, responsive research and training activities, and broad and prompt dissemination of knowledge and techniques.”

                (f) The term ocean and coastal resource(s) is as defined at 33 U.S.C. 1122(7) and means:

                  any resource (whether living, nonliving, manmade, tangible, intangible, actual, or potential) which is located in, derived from, or traceable to, the marine environment.
                  Such term includes the habitat of any such living resource, the coastal space, the ecosystems, the nutrient rich areas, and the other components of the marine environment which contribute to or provide (or which are capable of contributing to or providing) recreational, scenic, esthetic, biological, habitational, commercial, economic, or conservation values. Living resources include natural and cultured plant life, fish, shellfish, marine mammals, and wildlife. Nonliving resources include energy sources, minerals, and chemical substances.

                (g) The term marine environment used in the definition for “ocean and coastal resources” in § 917.2(e) and used elsewhere in these regulations is as defined at 33 U.S.C. 1122(6) and means:

                  the coastal zone, as defined in Section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil, and waters of the territorial sea of the United States; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the outer Continental Shelf.

                (h) The term person is as defined at 33 U.S.C. 1122(9) and means: “any individual; any public or private corporation, partnership, or other association or entity (including any Sea Grant College, Sea Grant Regional Consortium, education, institute, or laboratory); or any state, political subdivision of a state, or agency or officer thereof.”
                (i) The term Sea Grant College is as defined at 33 U.S.C. 1122(10) and means: “any public or private institution of higher education which is designated as such by the Secretary . . .” pursuant to regulations promulgated at 15 CFR part 918.
                (j) The term Sea Grant Program is as defined at 33 U.S.C. 1122(11) and means: “any program which” (1) is administered by a Sea Grant College, Sea Grant Regional Consortium, institution of higher education, institute, laboratory, or state or local agency; and (2) includes two or more projects involving one or more of the following activities in fields related to ocean and coastal resources:
                (i) Research,
                (ii) Education,
                (iii) Training, or
                (iv) Advisory services.
                (k) The term Sea Grant Program Directors means the local Directors of the Sea Grant coherent area programs, insititutional programs, Sea Grant Colleges, and Sea Grant Regional Consortia.
                (l) The term Sea Grant Regional Consortium is as defined at 33 U.S.C. 1122(12) and means: “any association or alliance which is designated as such by the Secretary . . .” pursuant to regulations promulgated at 15 CFR part 918.
                (m) The term state is as defined at 33 U.S.C. 1122 (14) and means: “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Mariana Islands, or any other territory or possession of the United States.”
                (n) The term developing foreign nations includes any foreign nation other than a foreign nation that is ineligible for designation under section 502(b) of the Trade Act of 1974, (19 U.S.C. 2462(b)) as a beneficiary developing country under Title of that Act.

              Subpart B—Sea Grant Matched Funding Program

                § 917.10
                General.

                (a) 33 U.S.C. 1124(a) establishes a program for the funding of Sea Grant Programs and projects dealing with marine research, marine education and training, and/or marine advisory services, that are designed to achieve the objective of the Act and that generally respond to the needs of individual states or regions. Included as a part of this program is the Sea Grant Fellowship Program, established by 33 U.S.C. 1127. Any person may apply to the Office of Sea Grant for Sea Grant Matched Funding Program Monies, except for Sea Grant Fellowship funding. Sea Grant Fellowship funding may be granted only to Sea Grant Colleges, Sea Grant Regional Consortia, institutions of higher education, and professional associations and institutions.

                (b) Federal Sea Grant funding for the section 1124(a) Matched Funding Program cannot exceed 662/3 percent of the total cost of the project involved.

                § 917.11
                Guidelines for Sea Grant Fellowships.
                (a) Sea Grant Fellowships are designed to provide educational and training assistance to qualified individuals at the undergraduate and graduate levels of education in fields related to ocean and coastal resources. The objective of the program is to increase the national supply of individuals educated and trained in the assessment, development, utilization, and conservation of ocean and coastal resources. The purpose of this section is to provide guidelines regarding the content of applications for Sea Grant Fellowship funding.
                (b) Funding will be made to eligible entities (see § 917.10 of this part) that are selected to award and administer Sea Grant Fellowships. Fellowships will not be awarded directly to students by the Office of Sea Grant. The entity receiving Fellowship funding will select the students to be awarded the Fellowships and will handle the administration of the Fellowships.
                (c) Proposals for Fellowship funding will be expected to address (1) the nature and focus of the proposed Fellowship Program, (2) the utilization of institutional or other appropriate resources in the education and training of Sea Grant Fellows, (3) the method of advertising availability of the Fellowships, (4) the method of selection of recipients, and (5) the terms of tenure and method of determining continuity of tenure.
                (d) Innovation and uniqueness will be significant factors in the determination of which proposals will be funded. Another factor considered will be the potential of the proposed program to stimulate interest in marine related careers among those individuals; for example, minorities, women, and the handicapped whose previous background or training might not have generated such an interest.
                (e) The total amount that may be provided for grants under the Sea Grant Fellowship Program during any fiscal year cannot exceed an amount equal to five percent of the total funds appropriated for the Matched Funding Program for that year. Fellowship programs are subject to the requirement of a minimum of 331/3 percent matching funds from non-Federal sources to which all Matched Funding Program projects are subject. Indirect costs are not allowable for either the Fellowships or for any costs associated with the Fellowships.
                Considering the variations in the cost-of-living and the differences in tuition, fees, etc., between one college or university and another, the amount of money requested and awarded per Fellowship may vary.

              Subpart C—National Projects

                § 917.20
                General.
                (a) 33 U.S.C. 1125 requires the Secretary to identify specific national needs and problems relative to ocean and coastal resources. This responsibility has been delegated to the Administrator. The designation is intended to focus public attention on needs and problems of the marine environment that are considered to be of particular national importance at a given point in time.
                (b) 33 U.S.C. 1125 provides for the funding of national projects in marine research, marine education and training, and marine advisory services that are designed to deal with the national needs and problems concerning ocean and coastal resources identified by the Administrator.
                (c) The Administrator will identify the national needs and problems apart from considerations of Office of Sea Grant funding for “National Projects” responsive to national needs and problems that are identified.

                § 917.21
                National needs and problems.

                (a) The Administrator will, periodically, publish in the Federal Register the identified national needs and problems with respect to ocean and coastal resources at a given point in time.

                (b) Suggestions from the general public as to the identity of national needs and problems may be submitted to the Office of Sea Grant at any time. These suggestions will be reviewed by the Office of Sea Grant and the Sea Grant Review Panel, and those receiving a positive critique will be forwarded to the Administrator. In addition, suggestions concerning the identification of national needs and problems will be requested from the Sea Grant Program Directors.
                (c) The Administrator has identified the following as currently being national needs and problems with respect to ocean and coastal resources:global and regional climate and primary productivity.
                (1) Improve the prediction of extreme natural events and their effects on ocean coastal and continental shelf locations as well as analogous regions of the Great Lakes.
                (2) Improve the predictability of global sea-level change and determine the impact of this change on coastal areas.
                (3) Define the processes that determine ocean variability on the time scale of a few weeks to a few years, and the relationship to fluctuations in global and regional climate, primary productivity, and fisheries production.
                (4) Improve understanding of the flow fields and mixing processes on the continental shelves of the United States.
                (5) Develop an increased understanding of the arctic and antarctic environment and a capability to predict the special hazards posed to transportation and resource development.
                (6) Develop and increased capability to characterize the engineering properties of ocean botton sediments.
                (7) Reduce the recurring economic loss due to corrosion of structures, vessels, and other devices in the marine environment.
                (8) Gain a fundamental understanding of the processes by which biological fouling and associated corrosion are initiated upon material surfaces exposed to seawater.
                (9) Investigate methods to improve man's underwater capability to conduct undersea research and perform useful work.
                (10) Investigate the wider application of remotely operated and artificial intelligence techniques for vehicles for undersea activities.
                (11) Expand/improve remote sensing technologies for use on the ocean and Great Lakes.
                (12) Advance knowledge of acoustics in the ocean and ocean bottom in order to exploit the burgeoning acoustics technologies.
                (13) Develop techniques for in-situ monitoring of biological, chemical, and physical processes in the Great Lakes, oceans, and their connecting waterways which are cost effective and provide data in real time.
                (14) Improve the position of the U.S. seafood industry in world seafood markets.
                (15) Design more efficient mechanisms to allocate U.S. fish resources to achieve optimum yield and minimize industry dislocations.
                (16) Gain a fundamental understanding of the biological productivity of estuarine and coastal waters.
                (17) Conduct research leading to the restoration and/or enhancement of heavily exploited fishery stocks.
                (18) Improve the capability for stock assessment, predicting yield, age-class strength, and long-term population status of important fisheries.
                (19) Conduct research to increase the economic potential of low-value, high-volume fish products.
                (20) Develop productive and profitable aquaculture industries in the United States and technology that can be exported to less developed nations of the world with different climate, cultural, and economic constraints.
                (21) Explore marine biochemicals as source of chemical feedstocks, enzymes, pharmacological substance, and other bioactive agents such as pesticides.
                (22) Apply modern biotechnology to exploiting marine plants, animals, and microorganisms for good and services.
                (23) Develop rapid, efficient, and specific methods for assaying the potential of marine organisms to communicate disease to humans.
                (24) Develop innovations that would promote safe, nondestructive, recreational access to and use of marine and Great Lakes water.
                (25) Re-examine the ocean as an appropriate place for the disposal of wastes from land-based society.

                (26) Develop an increased understanding of the impacts of low density, nonbiodegradable, solid wastes on marine and Great Lakes species.

                (27) Conduct research for realizing the economic potential of the nonliving resources of the U.S. 200-mile Exclusive Economic Zone.
                (28) Investigate the effect of seafloor hydrothermal systems on the seafloor, oceans, and atmosphere.
                (29) Develop a better understanding of the value the marine sector contributes to the U.S. economy and culture.
                (30) Improve the competitive position of American ports in the face of rapid technological and social change.
                (31) Improve the capability of developing nations to address their marine resource needs.
                (32) Develop eductional programs to increase application of marine sector research.
                (33) Develop syntheses of and better access to existing multidisciplinary marine and Great Lakes information.
                [43 FR 15307, Apr. 11, 1978, as amended at 51 FR 35210, Oct. 2, 1986]

                § 917.22
                National Projects funding.
                (a) National Projects funding proposals will be expected to address: (1) The relevance of the proposed project to a national need or problem that has been identified by the Administrator; (2) the nature and focus of the proposed project; (3) a demonstrated capacity to carry out the proposed project in a competent and cost-effective manner; and (4) the utilization of existing capability and coordination with other relevant projects. Innovation and uniqueness will be significant factors in determining whether to fund a proposed project.
                (b) Any person may apply to the Office of Sea Grant for National Project funding. In addition, the Office of Sea Grant may invite applications for National Project funding.
                (c) The total amount provided for National Projects' funding during any fiscal year can never exceed an amount equal to 10 percent of the total funds appropriated for the Matched Funding Program. Federal Sea Grant funding for National Projects can be up to 100 percent of the total cost of the project involved.

              Subpart D—International Cooperation Assistance

                § 917.30
                General.
                (a) 33 U.S.C. 1124a sets up a program of International Cooperation Assistance in marine reseach, marine education and training, and marine advisory services designed to enhance the research and technical capability of developing foreign nations with respect to ocean and coastal resources and to promote the international exchange of information and data with respect to the assessment, development, utilization, and conservation of such resources. Any Sea Grant College or Sea Grant Regional Consortium or any institution of higher education, laboratory, or institute (if such institution, laboratory or institute is located within any state) may apply for and receive International Cooperation Assistance funding.
                (b) International Cooperation Assistance funding proposals will be expected to address: (1) The nature and focus of the proposed project, (2) the utilization of institutional and other appropriate resources in the implementation of the project, (3) a clear indication of the foreign participant's (individual or institution) commitment to the project, (4) identification of accomplishments expected from a single granting interval, (5) implicit or explicit out-year commitment of resources, and (6) the impact of the proposed project on the institution receiving funding.

                (c) The projects supported by International Cooperation Assistance funding are intended to be genuinely cooperative. Innovation and uniqueness will be significant factors in the determination of proposals to be funded. In the case of a proposed international project that is submitted from an institution where a Sea Grant program is in existence, the extent to which the proposed project takes advantage of the Sea Grant institutional capability existing at that institution and thereby strengthening it, as opposed to being a mere appendage to the ongoing Sea Grant program, will also be an important evaluation factor. The U.S. Department of State will be given the opportunity to review all International Cooperation Assistance projects and none will be funded without this consultation. Because the United Nations Educational, Scientific, and Cultural Organization (UNESCO) also funds international projects of the kind that can be funded under the Sea Grant International Cooperation Assistance program, and, to effect coordination in this area between Sea Grant and UNESCO, the Division of Marine Sciences (UNESCO) will be informed of all International Cooperation Assistance projects funded.

              Subpart E—General Considerations Pertaining to Sea Grant Funding

                § 917.40
                General.
                This subpart sets forth general considerations pertaining to Sea Grant funding.

                § 917.41
                Application guidance for Sea Grant funding.
                (a) Detailed guidance for submission of applications for National Sea Grant Program Funding is given in the publication, “The National Sea Grant Program: Program Description and Suggestions for Preparing Proposals,” available on request from: Office of Sea Grant Program, 3300 Whitehaven Street NW., Washington, DC 20235.
                (b) It is noted here that application for Sea Grant funding shall be made pursuant to the following Federal provisions:
                (1) OMB Circular A-110 “Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations.”
                (2) OMB Circular A-111, “Designation of Federal Programs Suitable for Joint Funding Purposes.”
                (3) GSA FMC 73-6, “Coordinating Indirect Cost Rates and Audit at Educational Institutions.”
                (4) GSA FMC 73-7, “Administration of College and University Research Grants.”
                (5) GSA FMC 73-8, “Cost Principles for Educational Institutions.”
                (6) GSA FMC 74-4, “Cost Principles Applicable to Grants and Contracts with State and Local Governments.”
                (7) OMB Circular A-102, “Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments.”
                (8) NOAA General Provisions implementing OMB Circular A-110, “Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations.”

                § 917.42
                Categories of support available for the conducting of Sea Grant activities.
                (a) Three categories of support are available for the conducting of Sea Grant activities: Projects; coherent area programs; and institutional programs. In general, funding for institutional programs and coherent area programs are made with expectation of renewal, as long as the funding recipient maintains a high level of quality and relevance in its activities. Project funding is made generally for a single item of research, education and training, or advisory service, but may be renewed under certain conditions; each renewal is negotiated individually.
                (b) Project support is for a clearly defined activity to be conducted over a definite period of time to achieve a specified goal. The project may be in research, education, training, or advisory services. Support for a project is made to an individual investigator or project director through his organization.
                (c) Intermediate between the institutional programs and individual projects are coherent area programs. These have two main purposes:

                (1) To bring into the National Sea Grant Program institutions of higher education that have a strong core of capability in some aspects of marine affairs, but which do not qualify or do not wish to qualify for institutional program support at this time. The purpose of support in such cases is to enable the institution to apply its existing competence to its regional problems and opportunities while developing the broader base of capability and the internal organization that will lead to institutional support. This program category requires a definite commitment on the part of the institution to develop an institutional program and to present a multiproject, multidisciplinary program involving the existing competence of an institution in a unified or coherent attack on well-defined local or regional problems. Such a coherent area program should include research, education and training, and advisory services, to the extent of the institution's capability.
                (2) To bring into the National Sea Grant Program (on a more or less continuing basis) qualified entities that have rare or unique capability in a specialized field of marine affairs. Such entities need not be institutions of higher education.
                (d) Institutional grants are made to institutions of higher education or to a combination of institutions that have an existing broad base of competence in marine affairs. To qualify, an institution must make a positive, long-range commitment to objectives of the National Sea Grant Program as evidence by committing the institution's own resources in the form of matching funds, creation of the organization necessary for management of the Sea Grant Program, quality education programs in marine areas, establishment of interdisciplinary research teams, and development of advisory service mechanisms for strong interaction with marine communities in its region. A Sea Grant institutional program is expected to provide intellectual leadership in assisting its region to solve problems and to realize opportunities of its marine environment. To the extent possible, an institutional program should involve all appropriate elements of the institution, whether colleges or departments, and devise cooperative or mutally supporting programs with other institutions of higher education, and with Federal and state agencies, local agencies, and industry. An institutional program should have substantial strength in the three basic Sea Grant activities: research, education and training, and advisory services. Sea Grant institutional programs that meet the qualifications for Sea Grant College or Sea Grant Regional Consortium status set forth at 15 CFR part 918 will be so designated by the Secretary.

                § 917.43
                Terms and conditions of Sea Grant funding.
                No Sea Grant funding may be applied to:
                (a)(1) the purchase or rental of any land or (2) the purchase, rental, construction, preservation, or repair of any building, dock, or vessel, except that payment under any such grant or contract may (if approved by the Assistant Administrator for Administration of the National Oceanic and Atmospheric Administration or designee) be applied to the purchase, rental, construction, preservation, or repair of non-self-propelled habitats, buoys, platforms, and other similar devices or structures, or to the rental of any research vessel which is used in direct support of activities under any Sea Grant program or project.
                (b) In addition, Sea Grant funding under the Sea Grant Matched Funding Program will be subject to the limitation that the total amount which may be obligated within any one state to persons under the Sea Grant Matched Funding Program in any fiscal year shall not exceed an amount equal to 15 percent of the funds appropriated for the Sea Grant Matched Funding Program.
                (c) Any person who receives or utilizes Sea Grant funding shall keep the records required by OMB Circular A-110, “Grant and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” and by NOAA General Provision, implementing OMB Circular A-110, by OMB Circular A-102, “Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments,” including records that fully disclose the amount and disposition by the recipient of such proceeds, the total cost of the program or project in which such proceeds were used, and the amount, if any, of such cost which was provided through other sources. Such records shall be maintained for three years after the completion of such a program or project. The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access, for the purpose of audit and evaluation, to any books, documents, papers, and records of receipt which, in the opinion of the Secretary or the Comptroller General, may be related or pertinent to such grants and contracts.

            Pt. 918
            PART 918—SEA GRANTS

              Sec.
              918.1
              Introduction.
              918.2
              Definitions.
              918.3
              Eligibility, qualifications, and responsibility of a Sea Grant College.
              918.4
              Duration of Sea Grant College designation.
              918.5
              Eligibility, qualifications, and responsibilities—Sea Grant Regional Consortia.
              918.6
              Duration of Sea Grant Regional Consortium designation.
              918.7
              Application for designation.

              Authority:

              Sec. 207, National Sea Grant College Program Act, as amended (Pub. L. 94-461, 33 U.S.C. 1121, et seq.).

              Source:
              44 FR 75054, Dec. 18, 1979, unless otherwise noted.

              § 918.1
              Introduction.

              Pursuant to section 207 of the National Sea Grant College Program Act, as amended (Pub. L. 94-461, 33 U.S.C. 1121 et seq.), herein referred to as the Act, the following guidelines establish the procedures by which organizations can qualify for designation as Sea Grant Colleges or Sea Grant Regional Consortia, and the responsibilities required of organizations so designated.

              § 918.2
              Definitions.
              (a) Marine environment. The term Marine Environment means any or all of the following: the coastal zone, as defined in section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil and waters of the territorial sea of the United States, including the Great Lakes; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the Outer Continental Shelf.
              (b) Ocean, Great Lakes, and coastal resources. The term ocean, Great Lakes, and coastal resources means any resource (whether living, nonliving, manmade, tangible, intangible, actual, or potential) which is located in, derived from, or traceable to, the marine environment. Such term includes the habitat of any such living resource, the coastal space, the ecosystems, the nutrient-rich areas, and the other components of the marine environment which contribute to or provide (or which are capable of contributing to or providing) recreational, scenic, aesthetic, biological, habitational, commercial, economic, or conservation values. Living resources include natural and cultured plant life, fish, shellfish, marine mammals, and wildlife. Nonliving resources include energy sources, minerals, and chemical substances.
              (c) Person. The term Person means any public or private corporation, partnership, or other association or entity (including any Sea Grant College, Sea Grant Regional Consortium, institution of higher education, institute, or laboratory); or any State, political subdivision of a State, or agency or officer thereof.
              (d) Sea Grant College. The term Sea Grant College means any public or private institution of higher education or confederation of such institutions which is designated as such by the Secretary under section 207 of the National Sea Grant Program Act. Included in this term are all campuses (or other administrative entities) of a designated Sea Grant College, working through the established management structure of the Sea Grant College.
              (e) Sea Grant Program. The term Sea Grant Program means any program which:
              (1) Is administered by a Sea Grant College, Sea Grant Regional Consortium, institution of higher education, institute, laboratory, or State or local agency; and
              (2) Includes two or more Sea Grant projects involving one or more of the following activities in fields related to ocean, Great Lakes, and coastal resources:
              (i) Research,
              (ii) Education and training, and
              (iii) Advisory services.
              (f) Sea Grant project. A Sea Grant project is any separately described activity which has been proposed to the National Sea Grant College Program, and has subsequently been approved.
              (g) Sea Grant Regional Consortium. The term Sea Grant Regional Consortium means any association or other alliance of two or more persons as defined above (other than individuals) established for the purpose of pursuing programs in marine research education, training, and advisory services on a regional basis (i.e., beyond the boundaries of a single state) and which is designated as a consortium by the Secretary under section 207 of the National Sea Grant Program Act.
              (h) Field related to Ocean, Great Lakes, and coastal resources. The term field related to Ocean, Great Lakes, and coastal resources means any discipline or field (including marine sciences and the physical, natural, and biological sciences, and engineering, included therein, marine technology, education, economics, sociology, communications, planning law, international affairs, public administration, humanities, and the arts) which is concerned with, or likely to improve the understanding, assessment, development, utilization, or conservation of, ocean, Great Lakes, and coastal resources.

              § 918.3
              Eligibility, qualifications, and responsibility of a Sea Grant College.
              (a) To be eligible for designation as a Sea Grant College, the institution of higher education or confederation of such institutions must have demonstrated a capability to maintain a high quality and balanced program of research, education, training, and advisory services in fields related to ocean, Great Lakes, and coastal resources for a minimum of three years, and have received financial assistance as an Institutional program under either section 205 of the National Sea Grant College Program Act or under section 204(c) of the earlier National Sea Grant College and Program Act of 1966.
              (b) To be eligible for designation as a Sea Grant College, the candidate institution or confederation of institutions must meet the qualifications set forth above as evaluated by a site review team composed of members of the Sea Grant Review Panel, NOAA's Office of Sea Grant, and other experts named by NOAA. As a result of this review, the candidate must be rated highly in all of the following qualifying areas:
              (1) Leadership. The Sea Grant College candidate must have achieved recognition as an intellectual and practical leader in marine science, engineering, education, and advisory service in its state and region.
              (2) Organization. The Sea Grant College candidate must have created the management organization to carry on a viable and productive Sea Grant Program, and must have the backing of its administration at a sufficiently high level to fulfill its multidisciplinary and multifaceted mandate.
              (3) Relevance. The Sea Grant College candidate's program must be relevant to local, State, regional, or National opportunities and problems in the marine environment. Important factors in evaluating relevance are the need for marine resource emphasis and the extent to which capabilities have been developed to be responsive to that need.
              (4) Programmed team approach. The Sea Grant College candidate must have a programmed team approach to the solution of marine problems which includes relevant, high quality, multidisciplinary research with associated educational and advisory services capable of producing identifiable results.
              (5) Education and training. Education and training must be clearly relevant to National, regional, State and local needs in fields related to ocean, Great Lakes, and coastal resources. As appropriate, education may include pre-college, college, post-graduate, public and adult levels.
              (6) Advisory services. The Sea Grant College candidate must have a strong program through which information, techniques,and research results from any reliable source, domestic or international, may be communicated to and utilized by user communities. In addition to the educational and information dissemination role, the advisory service program must aid in the identification and communication of user communities' research and educational needs.
              (7) Relationships. The Sea Grant College candidate must have close ties with Federal agencies. State agencies and administrations, local authorities, business and industry, and other educational institutions. These ties are: (i) To ensure the relevance of its programs, (ii) to give assistance to the broadest possible audience, (iii) to involve a broad pool of talent in providing this assistance (including universities and other administrative entities outside the Sea Grant College), and (iv) to assist others in developing research and management competence. The extent and quality of an institution's relationships are critical factors in evaluating the institutional program.
              (8) Productivity. The Sea Grant College candidate must have demonstrated the degree of productivity (of research results, reports, employed students, service to State agencies and industry, etc.) commensurate with the length of its Sea Grant operations and the level of funding under which it has worked.
              (9) Support. The Sea Grant College candidate must have the ability to obtain matching funds from non-Federal sources, such as state legislatures, university management, state agencies, business, and industry. A diversity of matching fund sources is encouraged as a sign of program vitality and the ability to meet the Sea Grant requirement that funds for the general programs be matched with at least one non-Federal dollar for every two Federal dollars.
              (c) Finally, it must be found that the Sea Grant College candidate will act in accordance with the following standards relating to its continuing responsibilities if it should be designated a Sea Grant College:
              (1) Continue pursuit of excellence and high performance in marine research, education, training, and advisory services.
              (2) Provide leadership in marine activities including coordinated planning and cooperative work with local, state, regional, and Federal agencies, other Sea Grant Programs, and non-Sea Grant universities.
              (3) Maintain an effective management framework and application of institutional resources to the achievement of Sea Grant objectives.
              (4) Develop and implement long-term plans for research, education, training, and advisory services consistent with Sea Grant goals and objectives.
              (5) Advocate and further the Sea Grant concept and the full development of its potential within the institution and the state.
              (6) Provide adequate and stable matching financial support for the program from non-Federal sources.
              (7) Establish and operate an effective system to control the quality of its Sea Grant programs.

              § 918.4
              Duration of Sea Grant College designation.
              Designation will be made on the basis of merit and the determination by the Secretary of Commerce that such a designation is consistent with the goals of the Act. Continuation of the Sea Grant College designation is contingent upon the institution's ability to maintain a high quality performance consistent with the requirements outlined above. The Secretary may, for cause and after an opportunity for hearing, suspend or terminate a designation as a Sea Grant College.

              § 918.5
              Eligibility, qualifications, and responsibilities—Sea Grant Regional Consortia.
              (a) To be eligible for designation as a Sea Grant Regional Consortium, the candidate association or alliance of organizations must provide, in significant breadth and quality, one or more services in the areas of research, education, and training, or advisory service in fields related to ocean, Great Lakes, and coastal resources. Further, it is essential that the candidate Sea Grant Consortium be required to provide all three services as soon as possible after designation. Further, such association or alliance must demonstrate that:
              (1) It has been established for the purpose of sharing expertise, research, educational facilities, or training facilities, and other capabilities in order to facilitate research, education, training, and advisory services in any field related to ocean, Great Lakes, and coastal resources; and
              (2) It will encourage and follow a regional multi-State approach to solving problems or meeting needs relating to ocean, Great Lakes, and coastal resources, in cooperation with appropriate Sea Grant Colleges, Sea Grant Programs and other persons in the region.

              (b) Although it is recognized that the distribution of effort between research, education, training, and advisory services to achieve appropriate balance in a Sea Grant Regional Consortium may differ from a Sea Grant College, sustained effort in all of these areas is, nonetheless, an essential requirement for retention of such designation. To be eligible for designation as a Sea Grant Regional Consortium, the candidate association or alliance of organizations must meet the qualifications set forth above as evaluated by a site review team composed of members of the Sea Grant Review Panel, the Office of Sea Grant, and other experts. Further, the candidate must be rated highly in all of the following qualifying areas which are pertinent to the Consortium's program:
              (1) Leadership. The Sea Grant Regional Consortium candidate must have achieved recognition as an intellectual and practical leader in marine science, engineering, education, and advisory service in its region.
              (2) Organization. The Sea Grant Regional Consortium candidate must have created the management organization to carry on a viable and productive multidisciplinary Sea Grant Program and have the backing of the administrations of its component organizations at a sufficiently high level to fulfill its multidisciplinary and multifaceted mandate.
              (3) Relevance. The Sea Grant Regional Consortium candidate's Sea Grant Program must be relevant to regional opportunities and problems in the marine environment. Important factors in evaluating relevance are the extent and depth of the need of a region for a focused marine resource emphasis and the degree to which the candidate has developed its capability to be responsive to that need.
              (4) Education and training. Education and training must be clearly relevant to regional needs and must be of high quality in fields related to ocean, Great Lakes, and coastal resources. As appropriate, education may include precollege, college, post-graduate, public and adult levels.
              (5) Advisory services. The Sea Grant Regional Consortium candidate must have a strong program through which information techniques, and research results from any reliable source, domestic or international, may be communicated to and utilized by user communities. In addition to the educational and information dissemination role, the advisory service program must aid in the identification and communication of user communities' research and educational needs.
              (6) Relationships. The Sea Grant Regional Consortium candidate must have close ties with federal agencies, state agencies and administrations, regional authorities, regional business and industry, and other regional educational institutions. These regional ties are: (i) To ensure the relevance of programs, (ii) to generate requests for such assistance as the consortium may offer, and (iii) to assist others in developing research and management competence. The extent and quality of a candidate's relationships are critical factors in evaluating the proposed designation.
              (7) Productivity. The Sea Grant Regional Consortium candidate must have demonstrated a degree of productivity (of research results, reports, employed students, service to regional agencies, industry, etc.) commensurate with the length of its Sea Grant operations and the level of funding under which it has worked.
              (8) Support. The Sea Grant Regional Consortium candidate must have the ability to obtain matching funds from non-Federal sources, such as State legislatures, university management, State agencies, and business and industry. A diversity of matching funds sources is encouraged as a sign of program vitality and the ability to meet the Sea Grant requirement that funds for the general programs be matched with at least one non-Federal dollar for every two Federal dollars.
              (c) Finally, it must be found that the Sea Grant Regional Consortium candidate will act in accordance with the following standards relating to its continuing responsibilities as a Sea Grant Regional Consortium:
              (1) Continue pursuit of excellence and high performance in marine research education, training, and advisory services.

              (2) Provide regional leadership in marine activities including coordinated planning and cooperative work with local, State, regional, and Federal agencies, other Sea Grant Programs, and non-Sea Grant organizations.
              (3) Maintain an effective management framework and application of organizational resources to the achievement of Sea Grant objectives.
              (4) Develop and implement long-term plans for research, education, training, and advisory services consistent with Sea Grant goals and objectives.
              (5) Advocate and further the Sea Grant concept and the full development of its potential within the consortium and the region.
              (6) Provide adequate and stable matching financial support for the program from non-Federal sources.
              (7) Establish and operate an effective system to control the quality of its Sea Grant program.

              § 918.6
              Duration of Sea Grant Regional Consortium designation.
              Designation will be made on the basis of merit and the determination by the Secretary of Commerce that such a designation is consistent with the goals of the Act. Continuation of the Sea Grant Regional Consortium designation is contingent upon the alliance's ability to maintain a high quality performance consistent with the standards outlined above. The Secretary may, for cause and after an opportunity for hearing, suspend or terminate the designation as a Sea Grant Regional Consortium.

              § 918.7
              Application for designation.
              (a) All applications for initial designation as a Sea Grant College or a Regional Consortium should be addressed to the Secretary of Commerce and submitted to the Director, National Sea Grant College Program, National Oceanic and Atmospheric Administration. The application should contain an outline of the capabilities of the applicant and the reasons why the applicant believes that it merits designation under the guidelines contained in this regulation. Upon receipt of the application, the Director will present the institution's case to the Sea Grant Review Panel for evaluation. The Panel's recommendation will be forwarded to the Secretary for final action.
              (b) An existing Sea Grant College or Regional Consortium may also apply as in paragraph (a) of this section, for a change in the scope of designation to include or exclude other administrative entities of the institution or association. If approved by the Secretary such included (excluded) administrative entities shall share (lose) the full rights and responsibilities of a Sea Grant College or Regional Consortium.

          SUBCHAPTER B—OCEAN AND COASTAL RESOURCE MANAGEMENT

            Pt. 921
            PART 921—NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM REGULATIONS

                Subpart A—General
                Sec.
                921.1
                Mission, goals and general provisions.
                921.2
                Definitions.
                921.3
                National Estuarine Research Reserve System biogeographic classification scheme and estuarine typologies.
                921.4
                Relationship to other provisions of the Coastal Zone Management Act and the Marine Protection, Research and Sanctuaries Act.

                Subpart B—Site Selection, Post Site Selection and Management Plan Development
                921.10
                General.
                921.11
                Site selection and feasibility.
                921.12
                Post site selection.
                921.13
                Management plan and environmental impact statement development.

                Subpart C—Acquisition, Development and Preparation of the Final Management Plan
                921.20
                General.
                921.21
                Initial acquisition and development awards.

                Subpart D—Reserve Designation and Subsequent Operation
                921.30
                Designation of National Estuarine Research Reserves.
                921.31
                Supplemental acquisition and development awards.
                921.32
                Operation and management: Implementation of the management plan.
                921.33
                Boundary changes, amendments to the management plan, and addition of multiple-site components.

                Subpart E—Ongoing Oversight, Performance Evaluation and Withdrawal of Designation
                921.40
                Ongoing oversight and evaluations of designated National Estuarine Research Reserves.
                921.41
                Withdrawal of designation.

                Subpart F—Special Research Projects
                921.50
                General.
                921.51
                Estuarine research guidelines.
                921.52
                Promotion and coordination of estuarine research.

                Subpart G—Special Monitoring Projects
                921.60
                General.

                Subpart H—Special Interpretation and Education Projects
                921.70
                General.

                Subpart I—General Financial Assistance Provisions
                921.80
                Application information.
                921.81
                Allowable costs.
                921.82
                Amendments to financial assistance awards.
                Appendix I to Part 921—Biogeographic Classification Scheme
                Appendix II to Part 921—Typology of National Estuarine Research Reserves

              Authority:
              Section 315 of the Coastal Zone Management Act, as amended (16 U.S.C. 1461).

              Source:
              58 FR 38215, July 15, 1993, unless otherwise noted.

              Subpart A—General

                § 921.1
                Mission, goals and general provisions.
                (a) The mission of the National Estuarine Research Reserve Program is the establishment and management, through Federal-state cooperation, of a national system (National Estuarine Research Reserve System or System) of estuarine research reserves (National Estuarine Research Reserves or Reserves) representative of the various regions and estuarine types in the United States. National Estuarine Research Reserves are established to provide opportunities for long-term research, education, and interpretation.
                (b) The goals of the Program are to:
                (1) Ensure a stable environment for research through long-term protection of National Estuarine Research Reserve resources;

                (2) Address coastal management issues identified as significant through coordinated estuarine research within the System;

                (3) Enhance public awareness and understanding of estuarine areas and provide suitable opportunities for public education and interpretation;
                (4) Promote Federal, state, public and private use of one or more Reserves within the System when such entities conduct estuarine research; and
                (5) Conduct and coordinate estuarine research within the System, gathering and making available information necessary for improved understanding and management of estuarine areas.
                (c) National Estuarine Research Reserves shall be open to the public to the extent permitted under state and Federal law. Multiple uses are allowed to the degree compatible with each Reserve's overall purpose as provided in the management plan (see § 921.13) and consistent with paragraphs (a) and (b) of this section. Use levels are set by the state where the Reserve is located and analyzed in the management plan. The Reserve management plan shall describe the uses and establish priorities among these uses. The plan shall identify uses requiring a state permit, as well as areas where uses are encouraged or prohibited. Consistent with resource protection and research objectives, public access and use may be restricted to certain areas or components within a Reserve.

                (d) Habitat manipulation for research purposes is allowed consistent with the following limitations. Manipulative research activities must be specified in the management plan, be consistent with the mission and goals of the program (see paragraphs (a) and (b) of this section) and the goals and objectives set forth in the Reserve's management plan, and be limited in nature and extent to the minimum manipulative activity necessary to accomplish the stated research objective. Manipulative research activities with a significant or long-term impact on Reserve resources require the prior approval of the state and the National Oceanic and Atmospheric Administration (NOAA). Manipulative research activities which can reasonably be expected to have a significant adverse impact on the estuarine resources and habitat of a Reserve, such that the activities themselves or their resulting short- and long-term consequences compromise the representative character and integrity of a Reserve, are prohibited. Habitat manipulation for resource management purposes is prohibited except as specifically approved by NOAA as: (1) A restoration activity consistent with paragraph (e) of this section; or (2) an activity necessary for the protection of public health or the preservation of other sensitive resources which have been listed or are eligible for protection under relevant Federal or state authority (e.g., threatened/endangered species or significant historical or cultural resources) or if the manipulative activity is a long-term pre-existing use (i.e., has occurred prior to designation) occurring in a buffer area. If habitat manipulation is determined to be necessary for the protection of public health, the preservation of sensitive resources, or if the manipulation is a long-term pre-existing use in a buffer area, then these activities shall be specified in the Reserve management plan in accordance with § 921.13(a)(10) and shall be limited to the reasonable alternative which has the least adverse and shortest term impact on the representative and ecological integrity of the Reserve.

                (e) Under the Act an area may be designated as an estuarine Reserve only if the area is a representative estuarine ecosystem that is suitable for long-term research. Many estuarine areas have undergone some ecological change as a result of human activities (e.g., hydrological changes, intentional/unintentional species composition changes—introduced and exotic species). In those areas proposed or designated as National Estuarine Research Reserves, such changes may have diminished the representative character and integrity of the site. Although restoration of degraded areas is not a primary purpose of the System, such activities may be permitted to improve the representative character and integrity of a Reserve. Restoration activities must be carefully planned and approved by NOAA through the Reserve management plan. Historical research may be necessary to determine the “natural” representative state of an estuarine area (i.e., an estuarine ecosystem minimally affected by human activity or influence). Frequently, restoration of a degraded estuarine area will provide an excellent opportunity for management oriented research.
                (f) NOAA may provide financial assistance to coastal states, not to exceed, per Reserve, 50 percent of all actual costs or $5 million whichever amount is less, to assist in the acquisition of land and waters, or interests therein. NOAA may provide financial assistance to coastal states not to exceed 70 percent of all actual costs for the management and operation of, the development and construction of facilities, and the conduct of educational or interpretive activities concerning Reserves (see subpart I). NOAA may provide financial assistance to any coastal state or public or private person, not to exceed 70 percent of all actual costs, to support research and monitoring within a Reserve. Notwithstanding any financial assistance limits established by this Part, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. Predesignation, acquisition and development, operation and management, special research and monitoring, and special education and interpretation awards are available under the National Estuarine Reserve Program. Predesignation awards are for site selection/feasibility, draft management plan preparation and conduct of basic characterization studies. Acquisition and development awards are intended primarily for acquisition of interests in land, facility construction and to develop and/or upgrade research, monitoring and education programs. Operation and management awards provide funds to assist in implementing, operating and managing the administrative, and basic research, monitoring and education programs, outlined in the Reserve management plan. Special research and monitoring awards provide funds to conduct estuarine research and monitoring projects with the System. Special educational and interpretive awards provide funds to conduct estuarine educational and interpretive projects within the System.
                (g) Lands already in protected status managed by other Federal agencies, state or local governments, or private organizations may be included within National Estuarine Research Reserves only if the managing entity commits to long-term management consistent with paragraphs (d) and (e) of this section in the Reserve management plan. Federal lands already in protected status may not comprise a majority of the key land and water areas of a Reserve (see § 921.11(c)(3)).
                (h) To assist the states in carrying out the Program's goals in an effective manner, NOAA will coordinate a research and education information exchange throughout the National Estuarine Research Reserve System. As part of this role, NOAA will ensure that information and ideas from one Reserve are made available to others in the System. The network will enable Reserves to exchange information and research data with each other, with universities engaged in estuarine research, and with Federal, state, and local agencies. NOAA's objective is a system-wide program of research and monitoring capable of addressing the management issues that affect long-term productivity of our Nation's estuaries.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998]

                § 921.2
                Definitions.
                (a) Act means the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et seq.

                (b) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management or delegee.
                (c) Coastal state means a state of the United States, in or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. For the purposes of these regulations the term also includes Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Marianas Islands, the Trust Territories of the Pacific Islands, and American Samoa (see 16 U.S.C. 1453(4)).

                (d) State agency means an instrumentality of a coastal state to whom the coastal state has delegated the authority and responsibility for the creation and/or management/operation of a National Estuarine Research Reserve. Factors indicative of this authority may include the power to receive and expend funds on behalf of the Reserve, acquire and sell or convey real and personal property interests, adopt rules for the protection of the Reserve, enforce rules applicable to the Reserve, or develop and implement research and education programs for the reserve. For the purposes of these regulations, the terms “coastal state” and “State agency” shall be synonymous.
                (e) Estuary means that part of a river or stream or other body of water having unimpaired connection with the open sea, where the sea water is measurably diluted with fresh water derived from land drainage. The term also includes estuary-type areas with measurable freshwater influence and having unimpaired connections with the open sea, and estuary-type areas of the Great Lakes and their connecting waters (see 16 U.S.C. 1453(7)).
                (f) National Estuarine Research Reserve means an area that is a representative estuarine ecosystem suitable for long-term research, which may include all of the key land and water portion of an estuary, and adjacent transitional areas and uplands constituting to the extent feasible a natural unit, and which is set aside as a natural field laboratory to provide long-term opportunities for research, education, and interpretation on the ecological relationships within the area (see 16 U.S.C. 1453(8)) and meets the requirements of 16 U.S.C. 1461(b). This includes those areas designated as National Estuarine Sanctuaries or Reserves under section 315 of the Act prior to enactment of the Coastal Zone Act Reauthorization Amendments of 1990 and each area subsequently designated as a National Estuarine Research Reserve.

                § 921.3
                National Estuarine Research Reserve System biogeographic classification scheme and estuarine typologies.
                (a) National Estuarine Research Reserves are chosen to reflect regional differences and to include a variety of ecosystem types. A biogeographic classification scheme based on regional variations in the nation's coastal zone has been developed. The biogeographic classification scheme is used to ensure that the National Estuarine Research Reserve System includes at least one site from each region. The estuarine typology system is utilized to ensure that sites in the System reflect the wide range of estuarine types within the United States.
                (b) The biogeographic classification scheme, presented in appendix I, contains 29 regions. Figure 1 graphically depicts the biogeographic regions of the United States.
                (c) The typology system is presented in appendix II.

                § 921.4
                Relationship to other provisions of the Coastal Zone Management Act, and to the Marine Protection, Research and Sanctuaries Act.
                (a) The National Estuarine Research Reserve System is intended to provide information to state agencies and other entities involved in addressing coastal management issues. Any coastal state, including those that do not have approved coastal management programs under section 306 of the Act, is eligible for an award under the National Estuarine Research Reserve Program (see § 921.2(c)).

                (b) For purposes of consistency review by states with a federally approved coastal management program, the designation of a National Estuarine Research Reserve is deemed to be a Federal activity, which, if directly affecting the state's coastal zone, must be undertaken in a manner consistent to the maximum extent practicable with the approved state coastal management program as provided by section 1456(c)(1) of the Act, and implementing regulations at 15 CFR part 930, subpart C. In accordance with section 1456(c)(1) of the Act and the applicable regulations NOAA will be responsible for certifying that designation of the Reserve is consistent with the state's approved coastal management program. The state must concur with or object to the certification. It is recommended that the lead state agency for Reserve designation consult, at the earliest practicable time, with the appropriate state officials concerning the consistency of a proposed National Estuarine Research Reserve.
                (c) The National Estuarine Research Reserve Program will be administered in close coordination with the National Marine Sanctuary Program (Title III of the Marine Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431-1445), also administered by NOAA. Title III authorizes the Secretary of Commerce to designate discrete areas of the marine environment as National Marine Sanctuaries to protect or restore such areas for their conservation, recreational, ecological, historical, research, educational or esthetic values. National Marine Sanctuaries and Estuarine Research Reserves may not overlap, but may be adjacent.

              Subpart B—Site Selection, Post Site Selection and Management Plan Development

                § 921.10
                General.
                (a) A coastal state may apply for Federal financial assistance for the purpose of site selection, preparation of documents specified in § 921.13 (draft management plan (DMP) and environmental impact statement (EIS)), and the conduct of limited basic characterization studies. The total Federal share of this assistance may not exceed $100,000. Federal financial assistance for preacquisition activities under § 921.11 and § 921.12 is subject to the total $5 million for which each Reserve is eligible for land acquisition. Notwithstanding the above, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carried out with this assistance, as long as such funds are available. In the case of a biogeographic region (see appendix I) shared by two or more coastal states, each state is eligible for Federal financial assistance to establish a separate National Estuarine Research Reserve within their respective portion of the shared biogeographic region. Each separate National Estuarine Research Reserve is eligible for the full complement of funding. Financial assistance application procedures are specified in subpart I.
                (b) In developing a Reserve program, a state may choose to develop a multiple-site Reserve reflecting a diversity of habitats in a single biogeographic region. A multiple-site Reserve allows the state to develop complementary research and educational programs within the individual components of its multi-site Reserve. Multiple-site Reserves are treated as one Reserve in terms of financial assistance and development of an overall management framework and plan. Each individual site of a proposed multiple-site Reserve shall be evaluated both separately under § 921.11(c) and collectively as part of the site selection process. A coastal state may propose to establish a multiple-site Reserve at the time of the initial site selection, or at any point in the development or operation of the Reserve. If the state decides to develop a multiple-site National Estuarine Research Reserve after the initial acquisition and development award is made for a single site, the proposal is subject to the requirements set forth in § 921.33(b). However, a state may not propose to add one or more sites to an already designated Reserve if the operation and management of such Reserve has been found deficient and uncorrected or the research conducted is not consistent with the Estuarine Research Guidelines referenced in § 921.51. In addition, Federal funds for the acquisition of a multiple-site Reserve remain limited to $5,000,000 (see § 921.20). The funding for operation of a multiple-site Reserve is limited to the maximum allowed for any one Reserve per year (see § 921.32(c)) and preacquisition funds are limited to $100,000 per Reserve. Notwithstanding the above, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available.
                [58 FR 38215, July 15, 1993, as amended at 63 FR 26717, May 14, 1998]

                § 921.11
                Site selection and feasibility.
                (a) A coastal state may use Federal funds to establish and implement a site selection process which is approved by NOAA.
                (b) In addition to the requirements set forth in subpart I, a request for Federal funds for site selection must contain the following programmatic information:
                (1) A description of the proposed site selection process and how it will be implemented in conformance with the biogeographic classification scheme and typology (§ 921.3);
                (2) An identification of the site selection agency and the potential management agency; and
                (3) A description of how public participation will be incorporated into the process (see § 921.11(d)).
                (c) As part of the site selection process, the state and NOAA shall evaluate and select the final site(s). NOAA has final authority in approving such sites. Site selection shall be guided by the following principles:
                (1) The site's contribution to the biogeographical and typological balance of the National Estuarine Research Reserve System. NOAA will give priority consideration to proposals to establish Reserves in biogeographic regions or subregions or incorporating types that are not represented in the system. (see the biogeographic classification scheme and typology set forth in § 921.3 and appendices I and II);
                (2) The site's ecological characteristics, including its biological productivity, diversity of flora and fauna, and capacity to attract a broad range of research and educational interests. The proposed site must be a representative estuarine ecosystem and should, to the maximum extent possible, be an estuarine ecosystem minimally affected by human activity or influence (see § 921.1(e)).

                (3) Assurance that the site's boundaries encompass an adequate portion of the key land and water areas of the natural system to approximate an ecological unit and to ensure effective conservation. Boundary size will vary greatly depending on the nature of the ecosystem. Reserve boundaries must encompass the area within which adequate control has or will be established by the managing entity over human activities occurring within the Reserve. Generally, Reserve boundaries will encompass two areas: Key land and water areas (or “core area”) and a buffer zone. Key land and water areas and a buffer zone will likely require significantly different levels of control (see § 921.13(a)(7)). The term “key land and water areas” refers to that core area within the Reserve that is so vital to the functioning of the estuarine ecosystem that it must be under a level of control sufficient to ensure the long-term viability of the Reserve for research on natural processes. Key land and water areas, which comprise the core area, are those ecological units of a natural estuarine system which preserve, for research purposes, a full range of significant physical, chemical and biological factors contributing to the diversity of fauna, flora and natural processes occurring within the estuary. The determination of which land and water areas are “key” to a particular Reserve must be based on specific scientific knowledge of the area. A basic principle to follow when deciding upon key land and water areas is that they should encompass resources representative of the total ecosystem, and which if compromised could endanger the research objectives of the Reserve. The term buffer zone refers to an area adjacent to or surrounding key land and water areas and essential to their integrity. Buffer zones protect the core area and provide additional protection for estuarine-dependent species, including those that are rare or endangered. When determined appropriate by the state and approved by NOAA, the buffer zone may also include an area necessary for facilities required for research and interpretation. Additionally, buffer zones should be established sufficient to accommodate a shift of the core area as a result of biological, ecological or geomorphological change which reasonably could be expected to occur. National Estuarine Research Reserves may include existing Federal or state lands already in a protected status where mutual benefit can be enhanced. However, NOAA will not approve a site for potential National Estuarine Research Reserve status that is dependent primarily upon the inclusion of currently protected Federal lands in order to meet the requirements for Reserve status (such as key land and water areas). Such lands generally will be included within a Reserve to serve as a buffer or for other ancillary purposes; and may be included, subject to NOAA approval, as a limited portion of the core area;
                (4) The site's suitability for long-term estuarine research, including ecological factors and proximity to existing research facilities and educational institutions;
                (5) The site's compatibility with existing and potential land and water uses in contiguous areas as well as approved coastal and estuarine management plans; and
                (6) The site's importance to education and interpretive efforts, consistent with the need for continued protection of the natural system.

                (d) Early in the site selection process the state must seek the views of affected landowners, local governments, other state and Federal agencies and other parties who are interested in the area(s) being considered for selection as a potential National Estuarine Research Reserve. After the local government(s) and affected landowner(s) have been contacted, at least one public meeting shall be held in the vicinity of the proposed site. Notice of such a meeting, including the time, place, and relevant subject matter, shall be announced by the state through the area's principal newspaper at least 15 days prior to the date of the meeting and by NOAA in the Federal Register.

                (e) A state request for NOAA approval of a proposed site (or sites in the case of a multi-site Reserve) must contain a description of the proposed site(s) in relationship to each of the site selection principals (§ 921.11(c)) and the following information:
                (1) An analysis of the proposed site(s) based on the biogeographical scheme/typology discussed in § 921.3 and set forth in appendices I and II;
                (2) A description of the proposed site(s) and its (their) major resources, including location, proposed boundaries, and adjacent land uses. Maps are required;
                (3) A description of the public participation process used by the state to solicit the views of interested parties, a summary of comments, and, if interstate issues are involved, documentation that the Governor(s) of the other affected state(s) has been contacted. Copies of all correspondence, including contact letters to all affected landowners must be appended;
                (4) A list of all sites considered and a brief statement of the reasons why a site was not preferred; and
                (5) A nomination of the proposed site(s) for designation as a National Estuarine Research Reserve by the Governor of the coastal state in which the state is located.
                (f) A state proposing to reactivate an inactive site, previously approved by NOAA for development as an Estuarine Sanctuary or Reserve, may apply for those funds remaining, if any, provided for site selection and feasibility (§ 921.11a)) to determine the feasibility of reactivation. This feasibility study must comply with the requirements set forth in § 921.11 (c) through (e).

                § 921.12
                Post site selection.
                (a) At the time of the coastal state's request for NOAA approval of a proposed site, the state may submit a request for funds to develop the draft management plan and for preparation of the EIS. At this time, the state may also submit a request for the remainder of the predesignation funds to perform a limited basic characterization of the physical, chemical and biological characteristics of the site approved by NOAA necessary for providing EIS information to NOAA. The state's request for these post site selection funds must be accompanied by the information specified in subpart I and, for draft management plan development and EIS information collection, the following programmatic information:
                (1) A draft management plan outline (see § 921.13(a) below); and

                (2) An outline of a draft memorandum of understanding (MOU) between the state and NOAA detailing the Federal-state role in Reserve management during the initial period of Federal funding and expressing the state's long-term commitment to operate and manage the Reserve.
                (b) The state is eligible to use the funds referenced in § 921.12(a) after the proposed site is approved by NOAA under the terms of § 921.11.

                § 921.13
                Management plan and environmental impact statement development.
                (a) After NOAA approves the state's proposed site and application for funds submitted pursuant to § 921.12, the state may begin draft management plan development and the collection of information necessary for the preparation by NOAA of an EIS. The state shall develop a draft management plan, including an MOU. The plan shall set out in detail:
                (1) Reserve goals and objectives, management issues, and strategies or actions for meeting the goals and objectives;
                (2) An administrative plan including staff roles in administration, research, education/interpretation, and surveillance and enforcement;
                (3) A research plan, including a monitoring design;
                (4) An education/interpretive plan;
                (5) A plan for public access to the Reserve;
                (6) A construction plan, including a proposed construction schedule, general descriptions of proposed developments and general cost estimates. Information should be provided for proposed minor construction projects in sufficient detail to allow these projects to begin in the initial phase of acquisition and development. A categorical exclusion, environmental assessment, or EIS may be required prior to construction;
                (7)(i) An acquisition plan identifying the ecologically key land and water areas of the Reserve, ranking these areas according to their relative importance, and including a strategy for establishing adequate long-term state control over these areas sufficient to provide protection for Reserve resources to ensure a stable environment for research. This plan must include an identification of ownership within the proposed Reserve boundaries, including land already in the public domain; the method(s) of acquisition which the state proposes to use—acquisition (including less-than-fee simple options) to establish adequate long-term state control; an estimate of the fair market value of any property interest—which is proposed for acquisition; a schedule estimating the time required to complete the process of establishing adequate state control of the proposed research reserve; and a discussion of any anticipated problems. In selecting a preferred method(s) for establishing adequate state control over areas within the proposed boundaries of the Reserve, the state shall perform the following steps for each parcel determined to be part of the key land and water areas (control over which is necessary to protect the integrity of the Reserve for research purposes), and for those parcels required for research and interpretive support facilities or buffer purposes:
                (A) Determine, with appropriate justification, the minimum level of control(s) required [e.g., management agreement, regulation, less-than-fee simple property interest (e.g., conservation easement), fee simple property acquisition, or a combination of these approaches]. This does not preclude the future necessity of increasing the level of state control;
                (B) Identify the level of existing state control(s);
                (C) Identify the level of additional state control(s), if any, necessary to meet the minimum requirements identified in paragraph (a)(7)(i)(A) of this section;
                (D) Examine all reasonable alternatives for attaining the level of control identified in paragraph (a)(7)(i)(C) of this section, and perform a cost analysis of each; and
                (E) Rank, in order of cost, the methods (including acquisition) identified in paragraph (a)(7)(i)(D) of this section.

                (ii) An assessment of the relative cost-effectiveness of control alternatives shall include a reasonable estimate of both short-term costs (e.g., acquisition of property interests, regulatory program development including associated enforcement costs, negotiation, adjudication, etc.) and long-term costs (e.g., monitoring, enforcement, adjudication, management and coordination). In selecting a preferred method(s) for establishing adequate state control over each parcel examined under the process described above, the state shall give priority consideration to the least costly method(s) of attaining the minimum level of long-term control required. Generally, with the possible exception of buffer areas required for support facilities, the level of control(s) required for buffer areas will be considerably less than that required for key land and water areas. This acquisition plan, after receiving the approval of NOAA, shall serve as a guide for negotiations with landowners. A final boundary for the reserve shall be delineated as a part of the final management plan;
                (8) A resource protection plan detailing applicable authorities, including allowable uses, uses requiring a permit and permit requirements, any restrictions on use of the research reserve, and a strategy for research reserve surveillance and enforcement of such use restrictions, including appropriate government enforcement agencies;
                (9) If applicable, a restoration plan describing those portions of the site that may require habitat modification to restore natural conditions;
                (10) If applicable, a resource manipulation plan, describing those portions of the Reserve buffer in which long-term pre-existing (prior to designation) manipulation for reasons not related to research or restoration is occurring. The plan shall explain in detail the nature of such activities, shall justify why such manipulation should be permitted to continue within the reserve buffer; and shall describe possible effects of this manipulation on key land and water areas and their resources;
                (11) A proposed memorandum of understanding (MOU) between the state and NOAA regarding the Federal-state relationship during the establishment and development of the National Estuarine Research Reserve, and expressing a long-term commitment by the state to maintain and manage the Reserve in accordance with section 315 of the Act, 16 U.S.C. 1461, and applicable regulations. In conjunction with the MOU, and where possible under state law, the state will consider taking appropriate administrative or legislative action to ensure the long-term protection and operation of the National Estuarine Research Reserve. If other MOUs are necessary (such as with a Federal agency, another state agency or private organization), drafts of such MOUs must be included in the plan. All necessary MOU's shall be signed prior to Reserve designation; and
                (12) If the state has a federally approved coastal management program, a certification that the National Estuarine Research Reserve is consistent to the maximum extent practicable with that program. See §§ 921.4(b) and 921.30(b).
                (b) Regarding the preparation of an EIS under the National Environmental Policy Act on a National Estuarine Research Reserve proposal, the state and NOAA shall collect all necessary information concerning the socioeconomic and environmental impacts associated with implementing the draft management plan and feasible alternatives to the plan. Based on this information, the state will draft and provide NOAA with a preliminary EIS.

                (c) Early in the development of the draft management plan and the draft EIS, the state and NOAA shall hold a scoping meeting (pursuant to NEPA) in the area or areas most affected to solicit public and government comments on the significant issues related to the proposed action. NOAA will publish a notice of the meeting in the Federal Register at least 15 days prior to the meeting. The state shall be responsible for publishing a similar notice in the local media.
                (d) NOAA will publish a Federal Register notice of intent to prepare a draft EIS. After the draft EIS is prepared and filed with the Environmental Protection Agency (EPA), a Notice of Availability of the draft EIS will appear in the Federal Register. Not less than 30 days after publication of the notice, NOAA will hold at least one public hearing in the area or areas most affected by the proposed national estuarine research reserve. The hearing will be held no sooner than 15 days after appropriate notice of the meeting has been given in the principal news media by the state and in the Federal Register by NOAA. After a 45-day comment period, a final EIS will be prepared by the state and NOAA.

              Subpart C—Acquisition, Development and Preparation of the Final Management Plan

                § 921.20
                General.
                The acquisition and development period is separated into two major phases. After NOAA approval of the site, draft management plan and draft MOU, and completion of the final EIS, a coastal state is eligible for an initial acquisition and development award(s). In this initial phase, the state should work to meet the criteria required for formal research reserve designation; e.g., establishing adequate state control over the key land and water areas as specified in the draft management plan and preparing the final management plan. These requirements are specified in § 921.30. Minor construction in accordance with the draft management plan may also be conducted during this initial phase. The initial acquisition and development phase is expected to last no longer than three years. If necessary, a longer time period may be negotiated between the state and NOAA. After Reserve designation, a state is eligible for a supplemental acquisition and development award(s) in accordance with § 921.31. In this post-designation acquisition and development phase, funds may be used in accordance with the final management plan to construct research and educational facilities, complete any remaining land acquisition, for program development, and for restorative activities identified in the final management plan. In any case, the amount of Federal financial assistance provided to a coastal state with respect to the acquisition of lands and waters, or interests therein, for any one National Estuarine Research Reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein or $5,000,000, whichever amount is less, except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998]

                § 921.21
                Initial acquisition and development awards.
                (a) Assistance is provided to aid the recipient prior to designation in:
                (1) Acquiring a fee simple or less-than-fee simple real property interest in land and water areas to be included in the Reserve boundaries (see § 921.13(a)(7); § 921.30(d));
                (2) Minor construction, as provided in paragraphs (b) and (c) of this section;
                (3) Preparing the final management plan; and
                (4) Initial management costs, e.g., for implementing the NOAA approved draft management plan, hiring a Reserve manager and other staff as necessary and for other management-related activities. Application procedures are specified in subpart I.
                (b) The expenditure of Federal and state funds on major construction activities is not allowed during the initial acquisition and development phase. The preparation of architectural and engineering plans, including specifications, for any proposed construction, or for proposed restorative activities, is permitted. In addition, minor construction activities, consistent with paragraph (c) of this section also are allowed. The NOAA-approved draft management plan must, however, include a construction plan and a public access plan before any award funds can be spent on construction activities.

                (c) Only minor construction activities that aid in implementing portions of the management plan (such as boat ramps and nature trails) are permitted during the initial acquisition and development phase. No more than five (5) percent of the initial acquisition and development award may be expended on such activities. NOAA must make a specific determination, based on the final EIS, that the construction activity will not be detrimental to the environment.

                (d) Except as specifically provided in paragraphs (a) through (c) of this section, construction projects, to be funded in whole or in part under an acquisition and development award(s), may not be initiated until the Reserve receives formal designation (see § 921.30). This requirement has been adopted to ensure that substantial progress in establishing adequate state control over key land and water areas has been made and that a final management plan is completed before major sums are spent on construction. Once substantial progress in establishing adequate state control/acquisition has been made, as defined by the state in the management plan, other activities guided by the final management plan may begin with NOAA's approval.
                (e) For any real property acquired in whole or part with Federal funds for the Reserve, the state shall execute suitable title documents to include substantially the following provisions, or otherwise append the following provisions in a manner acceptable under applicable state law to the official land record(s):
                (1) Title to the property conveyed by this deed shall vest in the [recipient of the award granted pursuant to section 315 of the Act, 16 U.S.C. 1461 or other NOAA approved state agency] subject to the condition that the designation of the [name of National Estuarine Reserve] is not withdrawn and the property remains part of the federally designated [name of National Estuarine Research Reserve]; and
                (2) In the event that the property is no longer included as part of the Reserve, or if the designation of the Reserve of which it is part is withdrawn, then NOAA or its successor agency, after full and reasonable consultation with the State, may exercise the following rights regarding the disposition of the property:
                (i) The recipient may retain title after paying the Federal Government an amount computed by applying the Federal percentage of participation in the cost of the original project to the current fair market value of the property;
                (ii) If the recipient does not elect to retain title, the Federal Government may either direct the recipient to sell the property and pay the Federal Government an amount computed by applying the Federal percentage of participation in the cost of the original project to the proceeds from the sale (after deducting actual and reasonable selling and repair or renovation expenses, if any, from the sale proceeds), or direct the recipient to transfer title to the Federal Government. If directed to transfer title to the Federal Government, the recipient shall be entitled to compensation computed by applying the recipient's percentage of participation in the cost of the original project to the current fair market value of the property; and
                (iii) Fair market value of the property must be determined by an independent appraiser and certified by a responsible official of the state, as provided by Department of Commerce regulations at 15 CFR part 24, and Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally assisted programs at 15 CFR part 11.
                (f) Upon instruction by NOAA, provisions analogous to those of § 921.21(e) shall be included in the documentation underlying less-then-fee-simple interests acquired in whole or part with Federal funds.
                (g) Federal funds or non-Federal matching share funds shall not be spent to acquire a real property interest in which the state will own the land concurrently with another entity unless the property interest has been identified as a part of an acquisition strategy pursuant to § 921.13(7) which has been approved by NOAA prior to the effective date of these regulations.

                (h) Prior to submitting the final management plan to NOAA for review and approval, the state shall hold a public meeting to receive comment on the plan in the area affected by the estuarine research reserve. NOAA will publish a notice of the meeting in the Federal Register at least 15 days prior to the public meeting. The state shall be responsible for having a similar notice published in the local newspaper(s).

              Subpart D—Reserve Designation and Subsequent Operation

                § 921.30
                Designation of National Estuarine Research Reserves.
                (a) The Under Secretary may designate an area proposed for designation by the Governor of the state in which it is located, as a National Esturaine Research Reserve if the Under Secretary finds:
                (1) The area is a representative estuarine ecosystem that is suitable for long-term research and contributes to the biogeographical and typological balance of the System;
                (2) Key land and water areas of the proposed Reserve, as identified in the management plan, are under adequate state control sufficient to provide long-term protection for reserve resources to ensure a stable environment for research;
                (3) Designation of the area as a Reserve will serve to enhance public awareness and understanding of estuarine areas, and provide suitable opportunities for public education and interpretation;
                (4) A final management plan has been approved by NOAA;
                (5) An MOU has been signed between the state and NOAA ensuring a long-term commitment by the state to the effective operation and implementation of the area as a National Estuarine Research Reserve;
                (6) All MOU's necessary for reserve management (i.e., with relevant Federal, state, and local agencies and/or private organizations) have been signed; and
                (7) The coastal state in which the area is located has complied with the requirements of subpart B.

                (b) NOAA will determine whether the designation of a National Estuarine Research Reserve in a state with a federally approved coastal zone management program directly affects the coastal zone. If the designation is found to directly affect the coastal zone, NOAA will make a consistency determination pursuant to § 307(c)(1) of the Act, 16 U.S.C. 1456, and 15 CFR part 930, subpart C. See § 921.4(b). The results of this consistency determination will be published in the Federal Register when the notice of designation is published. See § 921.30(c).

                (c) NOAA will publish the notice of designation of a National Estuarine Research Reserve in the Federal Register. The state shall be responsible for having a similar notice published in the local media.
                (d) The term state control in § 921.30(a)(3) does not necessarily require that key land and water areas be owned by the state in fee simple. Acquisition of less-than-fee simple interests e.g., conservation easements) and utilization of existing state regulatory measures are encouraged where the state can demonstrate that these interests and measures assure adequate long-term state control consistent with the purposes of the research reserve (see also §§ 921.13(a)(7); 921.21(g)). Should the state later elect to purchase an interest in such lands using NOAA funds, adequate justification as to the need for such acquisition must be provided to NOAA.

                § 921.31
                Supplemental acquisition and development awards.

                After National Estuarine Research Reserve designation, and as specified in the approved management plan, a coastal state may request a supplemental acquisition and/or development award(s) for acquiring additional property interests identified in the management plan as necessary to strengthen protection of key land and water areas and to enhance long-term protection of the area for research and education, for facility and exhibit construction, for restorative activities identified in the approved management plan, for administrative purposes related to acquisition and/or facility construction and to develop and/or upgrade research, monitoring and education/interpretive programs. Federal financial assistance provided to a National Estuarine Research Reserve for supplemental development costs directly associated with facility construction (i.e., major construction activities) may not exceed 70 percent of the total project cost, except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. NOAA must make a specific determination that the construction activity will not be detrimental to the environment. Acquisition awards for the acquisition of lands or waters, or interests therein, for any one reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein of $5,000,000, whichever amount is less, except when the financial assistance is provided from amounts recovered as result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. In the case of a biogeographic region (see appendix I) shared by two or more states, each state is eligible independently for Federal financial assistance to establish a separate National Estuarine Research Reserve within their respective portion of the shared biogeographic region. Application procedures are specified in subpart I. Land acquisition must follow the procedures specified in §§ 921.13(a)(7), 921.21(e) and (f) and 921.81.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998]

                § 921.32
                Operation and management: Implementation of the management plan.
                (a) After the Reserve is formally designated, a coastal state is eligible to receive Federal funds to assist the state in the operation and management of the Reserve including the management of research, monitoring, education, and interpretive programs. The purpose of this Federally funded operation and management phase is to implement the approved final management plan and to take the necessary steps to ensure the continued effective operation of the Reserve.
                (b) State operation and management of the Reserves shall be consistent with the mission, and shall further the goals of the National Estuarine Research Reserve program (see § 921.1).
                (c) Federal funds are available for the operation and management of the Reserve. Federal funds provided pursuant to this section may not exceed 70 percent of the total cost of operating and managing the Reserve for any one year, except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. In the case of a biogeographic region (see Appendix I) shared by two or more states, each state is eligible for Federal financial assistance to establish a separate Reserve within their respective portion of the shared biogeographic region (see § 921.10).
                (d) Operation and management funds are subject to the following limitations:
                (1) Eligible coastal state agencies may apply for up to the maximum share available per Reserve for that fiscal year. Share amounts will be announced annually by letter from the Sanctuary and Reserves Division to all participating states. This letter will be provided as soon as practicable following approval of the Federal budget for that fiscal year.
                (2) No more than ten percent of the total amount (state and Federal shares) of each operation and management award may be used for construction-type activities.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]

                § 921.33
                Boundary changes, amendments to the management plan, and addition of multiple-site components.

                (a) Changes in the boundary of a Reserve and major changes to the final management plan, including state laws or regulations promulgated specifically for the Reserve, may be made only after written approval by NOAA. NOAA may require public notice, including notice in the Federal Register and an opportunity for public comment before approving a boundary or management plan change. Changes in the boundary of a Reserve involving the acquisition of properties not listed in the management plan or final EIS require public notice and the opportunity for comment; in certain cases, a categorical exclusion, an environmental assessment and possibly an environmental impact statement may be required. NOAA will place a notice in the Federal Register of any proposed changes in Reserve boundaries or proposed major changes to the final management plan. The state shall be responsible for publishing an equivalent notice in the local media. See also requirements of §§ 921.4(b) and 921.13(a)(11).

                (b) As discussed in § 921.10(b), a state may choose to develop a multiple-site National Estuarine Research Reserve after the initial acquisition and development award for a single site has been made. NOAA will publish notice of the proposed new site including an invitation for comments from the public in the Federal Register. The state shall be responsible for publishing an equivalent notice in the local newspaper(s). An EIS, if required, shall be prepared in accordance with section § 921.13 and shall include an administrative framework for the multiple-site Reserve and a description of the complementary research and educational programs within the Reserve. If NOAA determines, based on the scope of the project and the issues associated with the additional site(s), that an environmental assessment is sufficient to establish a multiple-site Reserve, then the state shall develop a revised management plan which, concerning the additional component, incorporates each of the elements described in § 921.13(a). The revised management plan shall address goals and objectives for all components of the multi-site Reserve and the additional component's relationship to the original site(s).
                (c) The state shall revise the management plan for a Reserve at least every five years, or more often if necessary. Management plan revisions are subject to (a) above.

                (d) NOAA will approve boundary changes, amendments to management plans, or the addition of multiple-site components, by notice in the Federal Register. If necessary NOAA will revise the designation document (findings) for the site.

              Subpart E—Ongoing Oversight, Performance Evaluation and Withdrawal of Designation

                § 921.40
                Ongoing oversight and evaluations of designated National Estuarine Research Reserves.
                (a) The Sanctuaries and Reserve Division shall conduct, in accordance with section 312 of the Act and procedures set forth in 15 CFR part 928, ongoing oversight and evaluations of Reserves. Interim sanctions may be imposed in accordance with regulations promulgated under 15 CFR part 928.
                (b) The Assistant Administrator may consider the following indicators of non-adherence in determining whether to invoke interim sanctions:
                (1) Inadequate implementation of required staff roles in administration, research, education/interpretation, and surveillance and enforcement. Indicators of inadequate implementation could include: No Reserve Manager, or no staff or insufficient staff to carry out the required functions.
                (2) Inadequate implementation of the required research plan, including the monitoring design. Indicators of inadequate implementation could include: Not carrying out research or monitoring that is required by the plan, or carrying out research or monitoring that is inconsistent with the plan.
                (3) Inadequate implementation of the required education/interpretation plan. Indicators of inadequate implementation could include: Not carrying out education or interpretation that is required by the plan, or carrying out education/interpretation that is inconsistent with the plan.
                (4) Inadequate implementation of public access to the Reserve. Indicators of inadequate implementation of public access could include: Not providing necessary access, giving full consideration to the need to keep some areas off limits to the public in order to protect fragile resources.

                (5) Inadequate implementation of facility development plan. Indicators of inadequate implementation could include: Not taking action to propose and budget for necessary facilities, or not undertaking necessary construction in a timely manner when funds are available.

                (6) Inadequate implementation of acquisition plan. Indicators of inadequate implementation could include: Not pursuing an aggressive acquisition program with all available funds for that purpose, not requesting promptly additional funds when necessary, and evidence that adequate long-term state control has not been established over some core or buffer areas, thus jeopardizing the ability to protect the Reserve site and resources from offsite impacts.
                (7) Inadequate implementation of Reserve protection plan. Indicators of inadequate implementation could include: Evidence of non-compliance with Reserve restrictions, insufficient surveillance and enforcement to assure that restrictions on use of the Reserve are adhered to, or evidence that Reserve resources are being damaged or destroyed as a result of the above.
                (8) Failure to carry out the terms of the signed Memorandum of Understanding (MOU) between the state and NOAA, which establishes a long-term state commitment to maintain and manage the Reserve in accordance with section 315 of the Act. Indicators of failure could include: State action to allow incompatible uses of state-controlled lands or waters in the Reserve, failure of the state to bear its fair share of costs associated with long-term operation and management of the Reserve, or failure to initiate timely updates of the MOU when necessary.

                § 921.41
                Withdrawal of designation.
                The Assistant Administrator may withdraw designation of an estuarine area as a National Estuarine Research Reserve pursuant to and in accordance with the procedures of section 312 and 315 of the Act and regulations promulgated thereunder.

              Subpart F—Special Research Projects

                § 921.50
                General.
                (a) To stimulate high quality research within designated National Estuarine Research Reserves, NOAA may provide financial support for research projects which are consistent with the Estuarine Research Guidelines referenced in § 921.51. Research awards may be awarded under this subpart to only those designated Reserves with approved final management plans. Although research may be conducted within the immediate watershed of the Reserve, the majority of research activities of any single research project funded under this subpart may be conducted within Reserve boundaries. Funds provided under this subpart are primarily used to support management-related research projects that will enhance scientific understanding of the Reserve ecosystem, provide information needed by Reserve management and coastal management decision-makers, and improve public awareness and understanding of estuarine ecosystems and estuarine management issues. Special research projects may be oriented to specific Reserves; however, research projects that would benefit more than one Reserve in the National Estuarine Reserve Research System are encouraged.

                (b) Funds provided under this subpart are available on a competitive basis to any coastal state or qualified public or private person. A notice of available funds will be published in the Federal Register. Special research project funds are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (“allowable costs”), except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]

                § 921.51
                Estuarine research guidelines.
                (a) Research within the National Estuarine Research Reserve System shall be conducted in a manner consistent with Estuarine Research Guidelines developed by NOAA.

                (b) A summary of the Estuarine Research Guidelines is published in the Federal Register as a part of the notice of available funds discussed in § 921.50(c).

                (c) The Estuarine Research Guidelines are reviewed annually by NOAA. This review will include an opportunity for comment by the estuarine research community.

                § 921.52
                Promotion and coordination of estuarine research.
                (a) NOAA will promote and coordinate the use of the National Estuarine Research Reserve System for research purposes.
                (b) NOAA will, in conducting or supporting estuarine research other than that authorized under section 315 of the Act, give priority consideration to research that make use of the National Estuarine Research Reserve System.
                (c) NOAA will consult with other Federal and state agencies to promote use of one or more research reserves within the National Estuarine Research Reserve System when such agencies conduct estuarine research.

              Subpart G—Special Monitoring Projects

                § 921.60
                General.
                (a) To provide a systematic basis for developing a high quality estuarine resource and ecosystem information base for National Estuarine Research Reserves and, as a result, for the System, NOAA may provide financial support for basic monitoring programs as part of operations and management under § 921.32. Monitoring funds are used to support three major phases of a monitoring program:
                (1) Studies necessary to collect data for a comprehensive site description/characterization;
                (2) Development of a site profile; and
                (3) Formulation and implementation of a monitoring program.
                (b) Additional monitoring funds may be available on a competitive basis to the state agency responsible for Reserve management or a qualified public or private person or entity. However, if the applicant is other than the managing entity of a Reserve that applicant must submit as a part of the application a letter from the Reserve manager indicating formal support of the application by the managing entity of the Reserve. Funds provided under this subpart for special monitoring projects are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (“allowable costs”), except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs.
                (c) Monitoring projects funded under this subpart must focus on the resources within the boundaries of the Reserve and must be consistent with the applicable sections of the Estuarine Research Guidelines referenced in § 921.51. Portions of the project may occur within the immediate watershed of the Reserve beyond the site boundaries. However, the monitoring proposal must demonstrate why this is necessary for the success of the project.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]

              Subpart H—Special Interpretation and Education Projects

                § 921.70
                General.
                (a) To stimulate the development of innovative or creative interpretive and educational projects and materials to enhance public awareness and understanding of estuarine areas, NOAA may fund special interpretive and educational projects in addition to those activities provided for in operations and management under § 921.32. Special interpretive and educational awards may be awarded under this subpart to only those designated Reserves with approved final management plans.

                (b) Funds provided under this subpart may be available on a competitive basis to any state agency. However, if the applicant is other than the managing entity of a Reserve, that applicant must submit as a part of the application a letter from the Reserve manager indicating formal support of the application by the managing entity of the Reserve. These funds are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (“allowable costs”), except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs.
                (c) Applicants for education/interpretive projects that NOAA determines benefit the entire National Estuarine Research Reserve System may receive Federal assistance of up to 100% of project costs.
                [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]

              Subpart I—General Financial Assistance Provisions

                § 921.80
                Application information.

                (a) Only a coastal state may apply for Federal financial assistance awards for preacquisition, acquisition and development, operation and management, and special education and interpretation projects under subpart H. Any coastal state or public or private person may apply for Federal financial assistance awards for special estuarine research or monitoring projects under subpart G. The announcement of opportunities to conduct research in the System appears on an annual basis in the Federal Register. If a state is participating in the national Coastal Zone Management Program, the applicant for an award under section 315 of the Act shall notify the state coastal management agency regarding the application.
                (b) An original and two copies of the formal application must be submitted at least 120 working days prior to the proposed beginning of the project to the following address: Sanctuaries and Reserves Division Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, 1825 Connecticut Avenue, NW., suite 714, Washington, DC 20235. Application for Federal Assistance Standard Form 424 (Non-construction Program) constitutes the formal application for site selection, post-site selection, operation and management, research, and education and interpretive awards. The Application for Federal Financial Assistance Standard Form 424 (Construction Program) constitutes the formal application for land acquisition and development awards. The application must be accompanied by the information required in subpart B (predesignation), subpart C and § 921.31 (acquisition and development), and § 921.32 (operation and management) as applicable. Applications for development awards for construction projects, or restorative activities involving construction, must include a preliminary engineering report, a detailed construction plan, a site plan, a budget and categorical exclusion check list or environmental assessment. All applications must contain back up data for budget estimates (Federal and non-Federal shares), and evidence that the application complies with the Executive Order 12372, “Intergovernmental Review of Federal Programs.” In addition, applications for acquisition and development awards must contain:
                (1) State Historic Preservation Office comments;
                (2) Written approval from NOAA of the draft management plan for initial acquisition and development award(s); and
                (3) A preliminary engineering report for construction activities.

                § 921.81
                Allowable costs.
                (a) Allowable costs will be determined in accordance with applicable OMB Circulars and guidance for Federal financial assistance, the financial assistant agreement, these regulations, and other Department of Commerce and NOAA directives. The term “costs” applies to both the Federal and non-Federal shares.
                (b) Costs claimed as charges to the award must be reasonable, beneficial and necessary for the proper and efficient administration of the financial assistance award and must be incurred during the award period.
                (c) Costs must not be allocable to or included as a cost of any other Federally-financed program in either the current or a prior award period.

                (d) General guidelines for the non-Federal share are contained in Department of Commerce Regulations at 15 CFR part 24 and OMB Circular A-110. Copies of Circular A-110 can be obtained from the Sanctuaries and Reserves Division; 1825 Connecticut Avenue, NW., suite 714; Washington, DC 20235. The following may be used in satisfying the matching requirement:
                (1) Site selection and post site selection awards. Cash and in-kind contributions (value of goods and services directly benefiting and specifically identifiable to this part of the project) are allowable. Land may not be used as match.
                (2) Acquisition and development awards. Cash and in-kind contributions are allowable. In general, the fair market value of lands to be included within the Reserve boundaries and acquired pursuant to the Act, with other than Federal funds, may be used as match. However, the fair market value of real property allowable as match is limited to the fair market value of a real property interest equivalent to, or required to attain, the level of control over such land(s) identified by the state and approved by the Federal Government as that necessary for the protection and management of the National Estuarine Research Reserve. Appraisals must be performed according to Federal appraisal standards as detailed in Department of Commerce regulations at 15 CFR part 24 and the Uniform Relocation Assistance and Real Property Acquisition for Federal land Federally assisted programs in 15 CFR part 11. The fair market value of privately donated land, at the time of donation, as established by an independent appraiser and certified by a responsible official of the state, pursuant to 15 CFR part 11, may also be used as match. Land, including submerged lands already in the state's possession, may be used as match to establish a National Estuarine Research Reserve. The value of match for these state lands will be calculated by determining the value of the benefits foregone by the state, in the use of the land, as a result of new restrictions that may be imposed by Reserve designation. The appraisal of the benefits foregone must be made by an independent appraiser in accordance with Federal appraisal standards pursuant to 15 CFR part 24 and 15 CFR part 11. A state may initially use as match land valued at greater than the Federal share of the acquisition and development award. The value in excess of the amount required as match for the initial award may be used to match subsequent supplemental acquisition and development awards for the National Estuarine Research Reserve (see also § 921.20). Costs related to land acquisition, such as appraisals, legal fees and surveys, may also be used as match.
                (3) Operation and management awards. Generally, cash and in-kind contributions (directly benefiting and specifically identifiable to operations and management), except land, are allowable.
                (4) Research, monitoring, education and interpretive awards. Cash and in-kind contributions (directly benefiting and specifically identifiable to the scope of work), except land, are allowable.

                § 921.82
                Amendments to financial assistance awards.
                Actions requiring an amendment to the financial assistance award, such as a request for additional Federal funds, revisions of the approved project budget or original scope of work, or extension of the performance period must be submitted to NOAA on Standard Form 424 and approved in writing.

                Pt. 921, App. I
                Appendix I to Part 921—Biogeographic Classification Scheme
                Acadian
                1. Northern of Maine (Eastport to the Sheepscot River.)
                2. Southern Gulf of Maine (Sheepscot River to Cape Cod.)
                Virginian
                3. Southern New England (Cape Cod to Sandy Hook.)
                4. Middle Atlantic (Sandy Hook to Cape Hatteras.)
                5. Chesapeake Bay.
                Carolinian
                6. North Carolinas (Cape Hatteras to Santee River.)
                7. South Atlantic (Santee River to St. John's River.)
                8. East Florida (St. John's River to Cape Canaveral.)
                West Indian
                9. Caribbean (Cape Canaveral to Ft. Jefferson and south.)

                10. West Florida (Ft. Jefferson to Cedar Key.)

                Louisianian
                11. Panhandle Coast (Cedar Key to Mobile Bay.)
                12. Mississippi Delta (Mobile Bay to Galveston.)
                13. Western Gulf (Galveston to Mexican border.)
                Californian
                14. Southern California (Mexican border to Point Conception.)
                15. Central California (Point Conception to Cape Mendocino.)
                16. San Francisco Bay.
                Columbian
                17. Middle Pacific (Cape Mendocino to the Columbia River.)
                18. Washington Coast (Columbia River to Vancouver Island.)
                19. Puget Sound.
                Great Lakes
                20. Lake Superior (including St. Mary's River.)
                21. Lakes Michigan and Huron (including Straits of Mackinac, St. Clair River, and Lake St. Clair.)
                22. Lake Erie (including Detroit River and Niagara Falls.)
                23. Lake Ontario (including St. Lawrence River.)
                Fjord
                24. Southern Alaska (Prince of Wales Island to Cook Inlet.)
                25. Aleutian Island (Cook Inlet Bristol Bay.)
                Sub-Arctic
                26. Northern Alaska (Bristol Bay to Damarcation Point.)
                Insular
                27. Hawaiian Islands.
                28. Western Pacific Island.
                29. Eastern Pacific Island.

                  EC12SE91.000

                Pt. 921, App. II
                Appendix II to Part 921—Typology of National Estuarine Research Reserves
                This typology system reflects significant differences in estuarine characteristics that are not necessarily related to regional location. The purpose of this type of classification is to maximize ecosystem variety in the selection of national estuarine reserves. Priority will be given to important ecosystem types as yet unrepresented in the reserve system. It should be noted that any one site may represent several ecosystem types or physical characteristics.
                Class I—Ecosystem Types
                Group I—Shorelands

                  A. Maritime Forest-Woodland. That have developed under the influence of salt spray. It can be found on coastal uplands or recent features such as barrier islands and beaches, and may be divided into the following biomes:

                1. Northern coniferous forest biome: This is an area of predominantly evergreens such as the sitka spruce (Picea), grand fir (Abies), and white cedar (Thuja), with poor development of the shrub and herb leyera, but high annual productivity and pronounced seasonal periodicity.

                2. Moist temperate (Mesothermal) coniferous forest biome: Found along the west coast of North America from California to Alaska, this area is dominated by conifers, has relatively small seasonal range, high humidity with rainfall ranging from 30 to 150 inches, and a well-developed understory of vegetation with an abundance of mosses and other moisture-tolerant plants.

                3. Temperate deciduous forest biome: This biome is characterized by abundant, evenly distributed rainfall, moderate temperatures which exhibit a distinct seasonal pattern, well-developed soil biota and herb and shrub layers, and numerous plants which produce pulpy fruits and nuts. A distinct subdivision of this biome is the pine edible forest of the southeastern coastal plain, in which only a small portion of the area is occupied by climax vegetation, although it has large areas covered by edaphic climax pines.

                4. Broad-leaved evergreen subtropical forest biome: The main characteristic of this biome is high moisture with less pronounced differences between winter and summer. Examples are the hammocks of Florida and the live oak forests of the Gulf and South Atlantic coasts. Floral dominants include pines, magnolias, bays, hollies, wild tamarine, strangler fig, gumbo limbo, and palms.

                  B. Coast shrublands. This is a transitional area between the coastal grasslands and woodlands and is characterized by woody species with multiple stems and a few centimeters to several meters above the ground developing under the influence of salt spray and occasional sand burial. This includes thickets, scrub, scrub savanna, heathlands, and coastal chaparral. There is a great variety of shrubland vegetation exhibiting regional specificity:

                1. Northern areas: Characterized by Hudsonia, various erinaceous species, and thickets of Myricu, prunus, and Rosa.
                2. Southeast areas: Floral dominants include Myrica, Baccharis, and Iles.
                3. Western areas: Adenostoma, arcotyphylos, and eucalyptus are the dominant floral species.

                  C. Coastal grasslands. This area, which possesses sand dunes and coastal flats, has low rainfall (10 to 30 inches per year) and large amounts of humus in the soil. Ecological succession is slow, resulting in the presence of a number of seral stages of community development. Dominant vegetation includes mid-grasses (5 to 8 feet tall), such as Spartina, and trees such as willow (Salix sp.), cherry (Prunus sp.), and cottonwood (Pupulus deltoides.) This area is divided into four regions with the following typical strand vegetation:
                1. Arctic/Boreal: Elymus;
                2. Northeast/West: Ammophla;
                3. Southeast Gulf: Uniola; and
                4. Mid-Atlantic/Gulf: Spartina patens.

                  D. Coastal tundra. This ecosystem, which is found along the Arctic and Boreal coasts of North America, is characterized by low temperatures, a short growing season, and some permafrost, producing a low, treeless mat community made up of mosses, lichens, heath, shrubs, grasses, sedges, rushes, and herbaceous and dwarf woody plants. Common species include arctic/alpine plants such as Empetrum nigrum and Betula nana, the lichens Cetraria and Cladonia, and herbaceous plants such as Potentilla tridentata and Rubus chamaemorus. Common species on the coastal beach ridges of the high arctic desert include Bryas intergrifolia and Saxifrage oppositifolia. This area can be divided into two main subdivisions:
                1. Low tundra: Characterized by a thick, spongy mat of living and undecayed vegetation, often with water and dotted with ponds when not frozen; and
                2. High Tundra: A bare area except for a scanty growth of lichens and grasses, with underlaying ice wedges forming raised polygonal areas.

                  E. Coastal cliffs. This ecosystem is an important nesting site for many sea and shore birds. It consists of communities of herbaceous, graminoid, or low woody plants (shrubs, heath, etc.) on the top or along rocky faces exposed to salt spray. There is a diversity of plant species including mosses, lichens, liverworts, and “higher” plant representatives.
                Group II—Transition Areas

                  A. Coastal marshes. These are wetland areas dominated by grasses (Poacea), sedges (Cyperaceae), rushes (Juncaceae), cattails (Typhaceae), and other graminoid species and is subject to periodic flooding by either salt or freshwater. This ecosystem may be subdivided into: (a) Tidal, which is periodically flooded by either salt or brackish water; (b) nontidal (freshwater); or (c) tidal freshwater. These are essential habitats for many important estuarine species of fish and invertebrates as well as shorebirds and waterfowl and serve important roles in shore stabilization, flood control, water purification, and nutrient transport and storage.

                  B. Coastal swamps. These are wet lowland areas that support mosses and shrubs together with large trees such as cypress or gum.

                  C. Coastal mangroves. This ecosystem experiences regular flooding on either a daily, monthly, or seasonal basis, has low wave action, and is dominated by a variety of salt-tolerant trees, such as the red mangrove (Rhizophora mangle), black mangrove (Avicennia Nitida), and the white mangrove (Laguncularia racemosa.) It is also an important habitat for large populations of fish, invertebrates, and birds. This type of ecosystem can be found from central Florida to extreme south Texas to the islands of the Western Pacific.

                  D. Intertidal beaches. This ecosystem has a distinct biota of microscopic animals, bacteria, and unicellular algae along with macroscopic crustaceans, mollusks, and worms with a detritus-based nutrient cycle. This area also includes the driftline communities found at high tide levels on the beach. The dominant organisms in this ecosystem include crustaceans such as the mole crab (Emerita), amphipods (Gammeridae), ghost crabs (Ocypode), and bivalve mollusks such as the coquina (Donax) and surf clams (Spisula and Mactra.)

                  E. Intertidal mud and sand flats. These areas are composed of unconsolidated, high organic content sediments that function as a short-term storage area for nutrients and organic carbons. Macrophytes are nearly absent in this ecosystem, although it may be heavily colonized by benthic diatoms, dinoflaggellates, filamintous blue-green and green algae, and chaemosynthetic purple sulfur bacteria. This system may support a considerable population of gastropods, bivalves, and polychaetes, and may serve as a feeding area for a variety of fish and wading birds. In sand, the dominant fauna include the wedge shell Donax, the scallop Pecten, tellin shells Tellina, the heart urchin Echinocardium, the lug worm Arenicola, sand dollar Dendraster, and the sea pansy Renilla. In mud, faunal dominants adapted to low oxygen levels include the terebellid Amphitrite, the boring clam Playdon, the deep sea scallop Placopecten, the Quahog Mercenaria, the echiurid worm Urechis, the mud snail Nassarius, and the sea cucumber Thyone.

                  F. Intertidal algal beds. These are hard substrates along the marine edge that are dominated by macroscopic algae, usually thalloid, but also filamentous or unicellular in growth form. This also includes the rocky coast tidepools that fall within the intertidal zone. Dominant fauna of these areas are barnacles, mussels, periwinkles, anemones, and chitons. Three regions are apparent:
                1. Northern latitude rocky shores: It is in this region that the community structure is best developed. The dominant algal species include Chondrus at the low tide level, Fucus and Ascophylium at the mid-tidal level, and Laminaria and other kelplike algae just beyond the intertidal, although they can be exposed at extremely low tides or found in very deep tidepools.
                2. Southern latitudes: The communities in this region are reduced in comparison to those of the northern latitudes and possesses algae consisting mostly of single-celled or filamentour green, blue-green, and red algae, and small thalloid brown algae.
                3. Tropical and subtropical latitudes: The intertidal in this region is very reduced and contains numerous calcareous algae such as Porolithon and Lithothamnion, as well and green algae with calcareous particles such as Halimeda, and numerous other green, red, and brown algae.
                Group III—Submerged Bottoms

                  A. Subtidal hardbottoms. This system is characterized by a consolidated layer of solid rock or large pieces of rock (neither of biotic origin) and is found in association with geomorphological features such as submarine canyons and fjords and is usually covered with assemblages of sponges, sea fans, bivalves, hard corals, tunicates, and other attached organisms. A significant feature of estuaries in many parts of the world is the oyster reef, a type of subtidal hardbottom. Composed of assemblages of organisms (usually bivalves), it is usually found near an estuary's mouth in a zone of moderate wave action, salt content, and turbidity. If light levels are sufficient, a covering of microscopic and attached macroscopic algae, such as keep, may also be found.

                  B. Subtidal softbottoms. Major characteristics of this ecosystem are an unconsolidated layer of fine particles of silt, sand, clay, and gravel, high hydrogen sulfide levels, and anaerobic conditions often existing below the surface. Macrophytes are either sparse or absent, although a layer of benthic microalgae may be present if light levels are sufficient. The faunal community is dominated by a diverse population of deposit feeders including polychaetes, bivalves, and burrowing crustaceans.

                  C. Subtidal plants. This system is found in relatively shallow water (less than 8 to 10 meters) below mean low tide. It is an area of extremely high primary production that provides food and refuge for a diversity of faunal groups, especially juvenile and adult fish, and in some regions, manatees and sea turtles. Along the North Atlantic and Pacific coasts, the seagrass Zostera marina predominates. In the South Atlantic and Gulf coast areas, Thalassia and Diplanthera predominate. The grasses in both areas support a number of epiphytic organisms.
                Class II—Physical Characteristics
                Group I—Geologic

                  A. Basin type. Coastal water basins occur in a variety of shapes, sizes, depths, and appearances. The eight basic types discussed below will cover most of the cases:
                1. Exposed coast: Solid rock formations or heavy sand deposits characterize exposed ocean shore fronts, which are subject to the full force of ocean storms. The sand beaches are very resilient, although the dunes lying just behind the beaches are fragile and easily damaged. The dunes serve as a sand storage area making them chief stabilizers of the ocean shorefront.
                2. Sheltered coast: Sand or coral barriers, built up by natural forces, provide sheltered areas inside a bar or reef where the ecosystem takes on many characteristics of confined waters-abundant marine grasses, shellfish, and juvenile fish. Water movement is reduced, with the consequent effects pollution being more severe in this area than in exposed coastal areas.

                3. Bay: Bays are larger confined bodies of water that are open to the sea and receive strong tidal flow. When stratification is pronounced the flushing action is augmented by river discharge. Bays vary in size and in type of shorefront.
                4. Embayment: A confined coastal water body with narrow, restricted inlets and with a significant freshwater inflow can be classified as an embayment. These areas have more restricted inlets than bays, are usually smaller and shallower, have low tidal action, and are subject to sedimentation.
                5. Tidal river: The lower reach of a coastal river is referred to as a tidal river. The coastal water segment extends from the sea or estuary into which the river discharges to a point as far upstream as there is significant salt content in the water, forming a salt front. A combination of tidal action and freshwater outflow makes tidal rivers well-flushed. The tidal river basin may be a simple channel or a complex of tributaries, small associated embayments, marshfronts, tidal flats, and a variety of others.
                6. Lagoon: Lagoons are confined coastal bodies of water with restricted inlets to the sea and without significant freshwater inflow. Water circulation is limited, resulting in a poorly flushed, relatively stagnant body of water. Sedimentation is rapid with a great potential for basin shoaling. Shores are often gently sloping and marshy.

                7. Perched coastal wetlands: Unique to Pacific islands, this wetland type found above sea level in volcanic crater remnants forms as a result of poor drainage characteristics of the crater rather than from sedimentation. Floral assemblages exhibit distinct zonation while the faunal constituents may include freshwater, brackish, and/or marine species. Example: Aunu's Island, American Samoa.
                8. Anchialine systems: These small coastal exposures of brackish water form in lava depressions or elevated fossil reefs have only a subsurface connection in the ocean, but show tidal fluctuations. Differing from true estuaries in having no surface continuity with streams or ocean, this system is characterized by a distinct biotic community dominated by benthis algae such as Rhizoclonium, the mineral encrusting Schiuzothrix, and the vascular plant Ruppia maritima. Characteristic fauna which exhibit a high degree of endemicity, include the mollusks Theosoxus neglectus and Tcariosus. Although found throughout the world, the high islands of the Pacific are the only areas within the U.S. where this system can be found.

                  B. Basin structure. Estuary basins may result from the drowning of a river valley (coastal plains estuary), the drowning of a glacial valley (fjord), the occurrence of an offshore barrier (bar-bounded estuary), some tectonic process (tectonic estuary), or volcanic activity (volcanic estuary).
                1. Coastal plains estuary: Where a drowned valley consists mainly of a single channel, the form of the basin is fairly regular forming a simple coastal plains estuary. When a channel is flooded with numerous tributaries an irregular estuary results. Many estuaries of the eastern United States are of this type.
                2. Fjord: Estuaries that form in elongated steep headlands that alternate with deep U-shaped valleys resulting from glacial scouring are called fjords. They generally possess rocky floors or very thin veneers of sediment, with deposition generally being restricted to the head where the main river enters. Compared to total fjord volume river discharge is small. But many fjords have restricted tidal ranges at their mouths due to sills, or upreaching sections of the bottom which limit free movement of water, often making river flow large with respect to the tidal prism. The deepest portions are in the upstream reaches, where maximum depths can range from 800m to 1200m while sill depths usually range from 40m to 150m.
                3. Bar-bounded estuary: These result from the development of an offshore barrier such as a beach strand, a line of barrier islands, reef formations a line of moraine debris, or the subsiding remnants of a deltaic lobe. The basin is often partially exposed at low tide and is enclosed by a chain of offshore bars of barrier islands broken at intervals by inlets. These bars may be either deposited offshore or may be coastal dunes that have become isolated by recent seal level rises.
                4. Tectonic estuary: These are coastal indentures that have formed through tectonic processes such as slippage along a fault line (San Francisco Bay), folding or movement of the earth's bedrock often with a large inflow of freshwater.
                5. Volcanic estuary: These coastal bodies of open water, a result of volcanic processes are depressions or craters that have direct and/or subsurface connections with the ocean and may or may not have surface continuity with streams. These formations are unique to island areas of volcanic orgin.

                  C. Inlet type. Inlets in various forms are an integral part of the estuarine environment as they regulate to a certain extent, the velocity and magnitude of tidal exchange, the degree of mixing, and volume of discharge to the sea.
                1. Unrestricted: An estuary with a wide unrestricted inlet typically has slow currents, no significant turbulence, and receives the full effect of ocean waves and local disturbances which serve to modify the shoreline. These estuaries are partially mixed, as the open mouth permits the incursion of marine waters to considerable distances upstream, depending on the tidal amplitude and stream gradient.

                2. Restricted: Restrictions of estuaries can exist in many forms: Bars, barrier islands, spits, sills, and more. Restricted inlets result in decreased circulation, more pronounced longitudinal and vertical salinity gradients, and more rapid sedimentation. However, if the estuary mouth is restricted by depositional features or land closures, the incoming tide may be held back until it suddenly breaks forth into the basin as a tidal wave, or bore. Such currents exert profound effects on the nature of the subtrate, turbidity, and biota of the estuary.
                3. Permanent: Permanent inlets are usually opposite the mouths of major rivers and permit river water to flow into the sea.
                4. Temporary (Intermittent): Temporary inlets are formed by storms and frequently shift position, depending on tidal flow, the depth of the sea, and sound waters, the frequency of storms, and the amount of littoral transport.

                  D. Bottom composition. The bottom composition of estuaries attests to the vigorous, rapid, and complex sedimentation processes characteristic of most coastal regions with low relief. Sediments are derived through the hydrologic processes of erosion, transport, and deposition carried on by the sea and the stream.
                1. Sand: Near estuary mouths, where the predominating forces of the sea build spits or other depositional features, the shore and substrates of the estuary are sandy. The bottom sediments in this area are usually coarse, with a graduation toward finer particles in the head region and other zones of reduced flow, fine silty sands are deposited. Sand deposition occurs only in wider or deeper regions where velocity is reduced.
                2. Mud: At the base level of a stream near its mouth, the bottom is typically composed of loose muds, silts, and organic detritus as a result of erosion and transport from the upper stream reaches and organic decomposition. Just inside the estuary entrance, the bottom contains considerable quantities of sand and mud, which support a rich fauna. Mud flats, commonly built up in estuarine basins, are composed of loose, coarse, and fine mud and sand, often dividing the original channel.
                3. Rock: Rocks usually occur in areas where the stream runs rapidly over a steep gradient with its coarse materials being derived from the higher elevations where the stream slope is greater. The larger fragments are usually found in shallow areas near the stream mouth.
                4. Oyster shell: Throughout a major portion of the world, the oyster reef is one of the most significant features of estuaries, usually being found near the mouth of the estuary in a zone of moderate wave action, salt content, and turbidity. It is often a major factor in modifying estuarine current systems and sedimentation, and may occur as an elongated island or peninsula oriented across the main current, or may develop parallel to the direction of the current.
                Group II—Hydrographic

                  A. Circulation. Circulation patterns are the result of combined influences of freshwater inflow, tidal action, wind and oceanic forces, and serve many functions: Nutrient transport, plankton dispersal, ecosystem flushing, salinity control, water mixing, and more.
                1. Stratified: This is typical of estuaries with a strong freshwater influx and is commonly found in bays formed from “drowned” river valleys, fjords, and other deep basins. There is a net movement of freshwater outward at the top layer and saltwater at the bottom layer, resulting in a net outward transport of surface organisms and net inward transport of bottom organisms.
                2. Non-stratified: Estuaries of this type are found where water movement is sluggish and flushing rate is low, although there may be sufficient circulation to provide the basis for a high carrying capacity. This is common to shallow embayments and bays lacking a good supply of freshwater from land drainage.
                3. Lagoonal: An estuary of this type is characterized by low rates of water movement resulting from a lack of significant freshwater influx and a lack of strong tidal exchange because of the typically narrow inlet connecting the lagoon to the sea. Circulation whose major driving force is wind, is the major limiting factor in biological productivity within lagoons.

                  B. Tides. This is the most important ecological factor in an estuary as it affects water exchange and its vertical range determines the extent of tidal flats which may be exposed and submerged with each tidal cycle. Tidal action against the volume of river water discharged into an estuary results in a complex system whose properties vary according to estuary structure as well as the magnitude of river flow and tidal range. Tides are usually described in terms of the cycle and their relative heights. In the United States, tide height is reckoned on the basis of average low tide, which is referred to as datum. The tides, although complex, fall into three main categories:
                1. Diurnal: This refers to a daily change in water level that can be observed along the shoreline. There is one high tide and one low tide per day.
                2. Semidiurnal: This refers to a twice daily rise and fall in water that can be observed along the shoreline.
                3. Wind/Storm tides: This refers to fluctuations in water elevation to wind and storm events, where influence of lunar tides is less.

                  C. Freshwater. According to nearly all the definitions advanced, it is inherent that all estuaries need freshwater, which is drained from the land and measurably dilutes seawater to create a brackish condition. Freshwater enters an estuary as runoff from the land either from a surface and/or subsurface source.
                1. Surface water: This is water flowing over the ground in the form of streams. Local variation in runoff is dependent upon the nature of the soil (porosity and solubility), degree of surface slope, vegetational type and development, local climatic conditions, and volume and intensity of precipitation.
                2. Subsurface water: This refers to the precipitation that has been absorbed by the soil and stored below the surface. The distribution of subsurface water depends on local climate, topography, and the porosity and permeability of the underlying soils and rocks. There are two main subtypes of surface water:
                a. Vadose water: This is water in the soil above the water table. Its volume with respect to the soil is subject to considerable fluctuation.
                b. Groundwater: This is water contained in the rocks below the water table, is usually of more uniform volume than vadose water, and generally follows the topographic relief of the land being high hills and sloping into valleys.
                Group III—Chemical

                  A. Salinity. This reflects a complex mixture of salts, the most abundant being sodium chloride, and is a very critical factor in the distribution and maintenance of many estuarine organisms. Based on salinity, there are two basic estuarine types and eight different salinity zones (expressed in parts per thousand-ppt.)
                1. Positive estuary: This is an estuary in which the freshwater influx is sufficient to maintain mixing, resulting in a pattern of increasing salinity toward the estuary mouth. It is characterized by low oxygen concentration in the deeper waters and considerable organic content in bottom sediments.
                2. Negative estuary: This is found in particularly arid regions, where estuary evaporation may exceed freshwater inflow, resulting in increased salinity in the upper part of the basin, especially if the estuary mouth is restricted so that tidal flow is inhibited. These are typically very salty (hyperhaline), moderately oxygenated at depth, and possess bottom sediments that are poor in organic content.
                3. Salinity zones (expressed in ppt):
                a. Hyperhaline—greater than 40 ppt.
                b. Euhaline—40 ppt to 30 ppt.
                c. Mixhaline—30 ppt to 0.5 ppt.
                (1) Mixoeuhaline—greater than 30 ppt but less than the adjacent euhaline sea.
                (2) Polyhaline—30 ppt to 18 ppt.
                (3) Mesohaline—18 ppt to 5 ppt.
                (4) Oligohaline—5 ppt to 0.5 ppt.
                d. Limnetic: Less than 0.5 ppt.

                  B. pH Regime: This is indicative of the mineral richness of estuarine waters and falls into three main categories:
                1. Acid: Waters with a pH of less than 5.5.
                2. Circumneutral: A condition where the pH ranges from 5.5 to 7.4.
                3. Alkaline: Waters with a pH greater than 7.4.

            Pt. 922
            PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

                Subpart A—General
                Sec.
                922.1
                Applicability of regulations in this part.
                922.2
                Mission, goals, and special policies.
                922.3
                Definitions.
                922.4
                Effect of National Marine Sanctuary designation.

                Subpart B—Sanctuary Nomination Process
                922.10
                General.
                922.11
                Selection of nominated areas for national marine sanctuary designation.

                Subpart C—Designation of National Marine Sanctuaries
                922.20
                Standards and procedures for designation.
                922.21
                Selection of active candidates.
                922.22
                Development of designation materials.
                922.23
                Coordination with States and other Federal agencies.
                922.24
                Congressional documents.
                922.25
                Designation determination and findings.

                Subpart D—Management Plan Development and Implementation
                922.30
                General.
                922.31
                Promotion and coordination of Sanctuary use.

                Subpart E—Regulations of General Applicability
                922.40
                Purpose.
                922.41
                Boundaries.
                922.42
                Allowed activities.
                922.43
                Prohibited or otherwise regulated activities.
                922.44
                Emergency regulations.
                922.45
                Penalties.
                922.46
                Response costs and damages.
                922.47
                Pre-existing authorizations or rights and certifications of pre-existing authorizations or rights.
                922.48

                National Marine Sanctuary permits—application procedures and issuance criteria.

                922.49
                Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity.
                922.50
                Appeals of administrative action.

                Subpart F—Monitor National Marine Sanctuary
                922.60
                Boundary.
                922.61
                Prohibited or otherwise regulated activities.
                922.62
                Permit procedures and criteria.

                Subpart G—Channel Islands National Marine Sanctuary
                922.70
                Boundary.
                922.71
                Definitions.
                922.72
                Prohibited or otherwise regulated activities—Sanctuary-wide.
                922.73
                Additional prohibited or otherwise regulated activities—marine reserves and marine conservation area.
                922.74
                Permit procedures and issuance criteria.
                Appendix A to Subpart G of Part 922—Channel Islands National Marine Sanctuary Boundary Coordinates
                Appendix B to Subpart G of Part 922—Marine Reserve Boundaries
                Appendix C to Subpart G of Part 922—Marine Conservation Area Boundary

                Subpart H—Greater Farallones National Marine Sanctuary
                922.80
                Boundary.
                922.81
                Definitions.
                922.82
                Prohibited or otherwise regulated activities.
                922.83
                Permit procedures and issuance criteria.
                922.84
                Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.
                922.85
                Review of State permits and leases for certain aquaculture projects.
                Appendix A to Subpart H of Part 922—Greater Farallones National Marine Sanctuary Boundary Coordinates
                Appendix B to Subpart H of Part 922—No-Anchoring Seagrass Protection Zones in Tomales Bay
                Appendix C to Subpart H of Part 922—Northern Extent of Tomales Bay
                Appendix D to Subpart H of Part 922—Special Wildlife Protection Zones within the Sanctuary
                Appendix E to Subpart H of Part 922—Cargo Vessel Prohibition Zones in the Sanctuary
                Appendix F to Subpart H of Part 922—White Shark Approach Prohibition Zones in the Sanctuary
                Appendix G to Subpart H of Part 922—Designated Area for Certain United States Coast Guard Discharges

                Subpart I—Gray's Reef National Marine Sanctuary
                922.90
                Boundary.
                922.91
                Definitions.
                922.92
                Prohibited or otherwise regulated activities—Sanctuary-wide.
                922.93
                Permit procedures and criteria.
                922.94
                Prohibited or otherwise regulated activities—Research area.
                Appendix A to Subpart I of Part 922—Boundary Coordinates for the Gray's Reef National Marine Sanctuary Research Area

                Subpart J—National Marine Sanctuary of American Samoa
                922.100
                Scope of regulations.
                922.101
                Boundary.
                922.102
                Definitions.
                922.103
                Prohibited or otherwise regulated activities—Sanctuary-wide.
                922.104
                Prohibited or otherwise regulated activities—Sanctuary-wide except in the Muliāva Unit.
                922.105
                Prohibited or otherwise regulated activities—Unit-specific.
                922.106
                Management and enforcement.
                922.107
                Permit procedures and criteria.
                Appendix to Subpart J of Part 922—American Samoa National Marine Sanctuary Boundary Coordinates

                Subpart K—Cordell Bank National Marine Sanctuary
                922.110
                Boundary.
                922.111
                Definitions.
                922.112
                Prohibited or otherwise regulated activities.
                922.113
                Permit procedures and issuance criteria.
                Appendix A to Subpart K of Part 922—Cordell Bank National Marine Sanctuary Boundary Coordinates
                Appendix B to Subpart K of Part 922—Line Representing the 50-Fathom Isobath Surrounding Cordell Bank
                Appendix C to Subpart K of Part 922—Designated Area for Certain United States Coast Guard Discharges

                Subpart L—Flower Garden Banks National Marine Sanctuary
                922.120
                Boundary.
                922.121
                Definitions.
                922.122
                Prohibited or otherwise regulated activities.
                922.123
                Permit procedures and criteria.

                Appendix A to Subpart L of Part 922—Flower Garden Banks National Marine Sanctuary Boundary Coordinates
                Appendix B to Subpart L of Part 922—Coordinates for the Department of the Interior Topographic Lease Stipulations for OCS Lease Sale 171

                Subpart M—Monterey Bay National Marine Sanctuary
                922.130
                Boundary.
                922.131
                Definitions.
                922.132
                Prohibited or otherwise regulated activities.
                922.133
                Permit procedures and criteria.
                922.134
                Review of certain State permits and leases.
                Appendix A to Subpart M of Part 922—Monterey Bay National Marine Sanctuary Boundary Coordinates
                Appendix B to Subpart M of Part 922—Zones Within the Sanctuary Where Overflights Below 1000 Feet Are Prohibited
                Appendix C to Subpart M of Part 922—Dredged Material Disposal Sites Within the Sanctuary
                Appendix D to Subpart M of Part 922—Dredged Material Disposal Sites Adjacent to the Monterey Bay National Marine Sanctuary
                Appendix E to Subpart M of Part 922—Motorized Personal Watercraft Zones and Access Routes Within the Sanctuary
                Appendix F to Subpart M of Part 922—Davidson Seamount Management Zone

                Subpart N—Stellwagen Bank National Marine Sanctuary
                922.140
                Boundary.
                922.141
                Definitions.
                922.142
                Prohibited or otherwise regulated activities.
                922.143
                Permit procedures and criteria.
                Appendix A to Subpart N of Part 922—Stellwagen Bank National Marine Sanctuary Boundary Coordinates

                Subpart O—Olympic Coast National Marine Sanctuary
                922.150
                Boundary.
                922.151
                Definitions.
                922.152
                Prohibited or otherwise regulated activities.
                922.153
                Permit procedures and criteria.
                922.154
                Consultation with the State of Washington, affected Indian tribes, and adjacent county governments.
                Appendix A to Subpart O of Part 922—Olympic Coast National Marine Sanctuary Boundary Coordinates

                Subpart P—Florida Keys National Marine Sanctuary
                922.160
                Purpose.
                922.161
                Boundary.
                922.162
                Definitions.
                922.163
                Prohibited activities—Sanctuary-wide.
                922.164
                Additional activity regulations by Sanctuary area.
                922.165
                Emergency regulations.
                922.166
                Permits other than for access to the Tortugas Ecological Reserve—application procedures and issuance criteria.
                922.167
                Permits for access to the Tortugas Ecological Reserve.
                922.168
                [Reserved]
                Appendix I to Subpart P of Part 922—Florida Keys National Marine Sanctuary Boundary Coordinates
                Appendix II to Subpart P of Part 922—Existing Management Areas Boundary Coordinates
                Appendix III to Subpart P of Part 922—Wildlife Management Areas Access Restrictions
                Appendix IV to Subpart P of Part 922—Ecological Reserves Boundary Coordinates
                Appendix V to Subpart P of Part 922—Sanctuary Preservation Areas Boundary Coordinates
                Appendix VI to Subpart P of Part 922—Special-use Areas Boundary Coordinates and Use Designations
                Appendix VII to Subpart P of Part 922—Areas To Be Avoided Boundary Coordinates

                Subpart Q—Hawaiian Islands Humpback Whale National Marine Sanctuary
                922.180
                Purpose.
                922.181
                Boundary.
                922.182
                Definitions.
                922.183
                Allowed activities.
                922.184
                Prohibited activities.
                922.185
                Emergency regulations.
                922.186
                Penalties; appeals.
                922.187
                Interagency cooperation.
                Appendix A to Subpart Q of Part 922—Hawaiian Islands Humpback Whale National Marine Sanctuary Boundary Description and Coordinates of the Lateral Boundary Closures and Excluded Areas

                Subpart R—Thunder Bay National Marine Sanctuary and Underwater Preserve
                922.190
                Boundary.
                922.191
                Definitions.
                922.192
                Joint Management Committee.
                922.193

                Prohibited or otherwise regulated activities.

                922.194
                Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.
                922.195
                Permit procedures and criteria.
                922.196
                Emergency regulations.
                922.197
                Effect on affected federally-recognized Indian tribes.
                922.198
                Procedures for determining watercraft and related items which sink on or after the date of Sanctuary designation to be an underwater cultural resource.
                Appendix A to Subpart R of Part 922—Thunder Bay National Marine Sanctuary and Underwater Preserve Boundary Coordinates

                Appendix B to Subpart R of Part 922—Minor Projects for Purposes of § 922.193(a)(2)(iii)

                Subpart S—Mallows Bay—Potomac River National Marine Sanctuary
                922.200
                Boundary.
                922.201
                Definitions.
                922.202
                Joint management.
                922.203
                Prohibited or otherwise regulated activities.
                922.204
                Emergency regulations.
                922.205
                Permit procedures and review criteria.
                922.206
                Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.
                Appendix A to Subpart S of Part 922—Mallows Bay-Potomac River Marine Sanctuary Boundary Description and Coordinates of the Lateral Boundary Closures and Excluded Areas
                Appendix B to Subpart S of Part 922—Mallows Bay-Potomac River Marine Sanctuary Terms of Designation

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

              Source:
              60 FR 66877, Dec. 27, 1995, unless otherwise noted.

              Editorial Note:
              Nomenclature changes to part 922 appear at 62 FR 3789, Jan. 27, 1997 and at 62 FR 67724, Dec. 30, 1997.

              Subpart A—General

                § 922.1
                Applicability of regulations in this part.
                Unless noted otherwise, the regulations in subparts A, D, and E of this part apply to all National Marine Sanctuaries and related site-specific regulations set forth in this part. Subparts B and C of this part apply to the sanctuary nomination process and to the designation of future Sanctuaries.
                [84 FR 32601, July 8, 2019]

                § 922.2
                Mission, goals, and special policies.
                (a) In accordance with the standards set forth in title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, also known as the National Marine Sanctuaries Act (Act) the mission of the National Marine Sanctuary program (Program) is to identify, designate and manage areas of the marine environment of special national, and in some cases international, significance due to their conservation, recreational, ecological, historical, research, educational, or aesthetic qualities.
                (b) The goals of the Program are to carry out the mission to:
                (1) Identify and designate as National Marine Sanctuaries areas of the marine environment which are of special national significance;
                (2) Provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities;
                (3) Support, promote, and coordinate scientific research on, and monitoring of, the resources of these marine areas, especially long-term monitoring and research of these areas;
                (4) Enhance public awareness, understanding, appreciation, and wise use of the marine environment;
                (5) Facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities;
                (6) Develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies, State and local governments, Native American tribes and organizations, international organizations, and other public and private interests concerned with the continuing health and resilience of these marine areas;

                (7) Create models of, and incentives for, ways to conserve and manage these areas;

                (8) Cooperate with global programs encouraging conservation of marine resources; and
                (9) Maintain, restore, and enhance living resources by providing places for species that depend upon these marine areas to survive and propagate.
                (c) To the extent consistent with the policies set forth in the Act, in carrying out the Program's mission and goals:
                (1) Particular attention will be given to the establishment and management of marine areas as National Marine Sanctuaries for the protection of the area's natural resource and ecosystem values; particularly for ecologically or economically important or threatened species or species assemblages, and for offshore areas where there are no existing special area protection mechanisms;
                (2) The size of a National Marine Sanctuary, while highly dependent on the nature of the site's resources, will be no larger than necessary to ensure effective management;
                (d) Management efforts will be coordinated to the extent practicable with other countries managing marine protected areas;

                (e) Program regulations, policies, standards, guidelines, and procedures under the Act concerning the identification, evaluation, registration, and treatment of historical resources shall be consistent, to the extent practicable, with the declared national policy for the protection and preservation of these resources as stated in the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., the Archeological and Historical Preservation Act of 1974, 16 U.S.C. 469 et seq., and the Archeological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory protection and preservation planning policy extended to historical resources on land shall be extended, to the extent practicable, to historical resources in the marine environment within the boundaries of designated National Marine Sanctuaries. The management of historical resources under the authority of the Act shall be consistent, to the extent practicable, with the Federal archeological program by consulting the Uniform Regulations, ARPA (43 CFR part 7) and other relevant Federal regulations. The Secretary of the Interior's Standards and Guidelines for Archeology may also be consulted for guidance. These guidelines are available from the Office of Ocean and Coastal Management at (301) 713-3125.

                § 922.3
                Definitions.

                  Act means title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known as the National Marine Sanctuaries Act.

                  Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration (NOAA), or designee.

                  Benthic community means the assemblage of organisms, substrate, and structural formations found at or near the bottom that is periodically or permanently covered by water.

                  Commercial fishing means any activity that results in the sale or trade for intended profit of fish, shellfish, algae, or corals.

                  Conventional hook and line gear means any fishing apparatus operated aboard a vessel and composed of a single line terminated by a combination of sinkers and hooks or lures and spooled upon a reel that may be hind- or electrically operated, hand-held or mounted. This term does not include bottom longlines.

                  Cultural resources means any historical or cultural feature, including archaeological sites, historic structures, shipwrecks, and artifacts.

                  Director means, except where otherwise specified, the Director of the Office of Ocean and Coastal Resource Management, NOAA, or designee.

                  Exclusive economic zone means the exclusive economic zone as defined in the Magnuson Fishery Conservation and Management Act, 16 U.S. 1801 et seq.

                  Fish wastes means waste materials resulting from commercial fish processing operations.

                  Historical resource means any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events. Historical resources include “submerged cultural resources”, and also include “historical properties,” as defined in the National Historic Preservation Act, as amended, and its implementing regulations, as amended.

                  Indian tribe means any American Indian tribe, band, group, or community recognized as such by the Secretary of the Interior.

                  Injure means to change adversely, either in the short or long term, a chemical, biological or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of or destroy.

                  Inventory means a list of nominated areas selected by the Director as qualifying for future consideration of designation as a national marine sanctuary.

                  Lightering means at-sea transfer of petroleum-based products, materials, or other matter from vessel to vessel.

                  Marine means those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands over which the United States exercises jurisdiction, including the exclusive economic zone, consistent with international law.

                  Mineral means clay, stone, sand, gravel, metalliferous ore, non-metalliferous ore, or any other solid material or other matter of commercial value.

                  National historic landmark means a district, site, building, structure or object designated as such by the Secretary of the Interior under the National Historic Landmarks Program (36 CFR part 65).

                  National Marine Sanctuary means an area of the marine environment of special national significance due to its resource or human-use values, which is designated as such to ensure its conservation and management.

                  Person means any private individual, partnership, corporation or other entity; or any officer, employee, agent, department, agency or instrumentality of the Federal government, of any State or local unit of government, or of any foreign government.

                  Regional Fishery Management Council means any fishery council established under section 302 of the Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.

                  Sanctuary quality means any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of the Sanctuary, including, but not limited to, water quality, sediment quality and air quality.

                  Sanctuary resource means any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the Sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources. For Thunder Bay National Marine Sanctuary and Underwater Preserve, Sanctuary resource means an underwater cultural resource as defined at § 922.191. For Mallows Bay-Potomac River National Marine Sanctuary, Sanctuary resource is defined at § 922.201(a).

                  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 non-commercial nature.

                  Take or taking means: (1) For any marine mammal, sea turtle, or seabird listed as either endangered or threatened pursuant to the Endangered Species Act, to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct; (2) For any other marine mammal, sea turtle, or seabird, to harass, hunt, capture, kill, collect or injure, or to attempt to engage in any such conduct. For the purposes of both (1) and (2) of this definition, this includes, but is not limited to, to collect any dead or injured marine mammal, sea turtle or seabird, or any part thereof; to restrain or detain any marine mammal, sea turtle or seabird, or any part thereof, no matter how temporarily; to tag any sea turtle, marine mammal or seabird; to operate a vessel or aircraft or to do any other act that results in the disturbance or molestation of any marine mammal, sea turtle or seabird.

                  Tropical fish means fish or minimal sport and food value, usually brightly colored, often used for aquaria purposes and which lives in a direct relationship with live bottom communities.

                  Vessel means a watercraft of any description capable of being used as a means of transportation in/on the waters of a Sanctuary.
                [60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 FR 39055, June 22, 2000; 79 FR 33860, June 13, 2014; 84 FR 32601, July 8, 2016]

                § 922.4
                Effect of National Marine Sanctuary designation.
                The designation of a National Marine Sanctuary, and the regulations implementing it, are binding on any person subject to the jurisdiction of the United States. Designation does not constitute any claim to territorial jurisdiction on the part of the United States for designated sites beyond the U.S. territorial sea, and the regulations implementing the designation shall be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party. No regulation shall apply to a person who is not a citizen, national, or resident alien of the United States, unless in accordance with:
                (a) Generally recognized principles of international law;
                (b) An agreement between the United States and the foreign state of which the person is a citizen; or
                (c) An agreement between the United States and the flag state of the foreign vessel, if the person is a crew member of the vessel.

              Subpart B—Sanctuary Nomination Process

                Source:
                79 FR 33860, June 13, 2014, unless otherwise noted.

                § 922.10
                General.
                (a) Nomination process. The sanctuary nomination process (see National Marine Sanctuaries Web site 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 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.

                § 922.11
                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 Web site. Any designation process will follow the procedures for designation and implementation set forth in section 304 of the Act.

              Subpart C—Designation of National Marine Sanctuaries

                § 922.20
                Standards and procedures for designation.
                In designating a National Marine Sanctuary, the Secretary shall apply the standards and procedures set forth in section 303 and section 304 of the Act.

                § 922.21
                [Reserved]

                § 922.22
                Development of designation materials.
                (a) In designating a National Marine Sanctuary, the Secretary shall prepare the designation materials described in section 304 of the Act.

                (b) If a proposed Sanctuary includes waters within the exclusive economic zone, the Secretary shall notify the appropriate Regional Fishery Management Council(s) which shall have one hundred and twenty (120) days from the date of such notification to make recommendations and, if appropriate, prepare draft fishery regulations and to submit them to the Secretary. In preparing its recommendations and draft regulations, the Council(s) shall use as guidance the national standards of section 301(a) of the Magnuson Act (16 U.S.C. 1851) to the extent that they are consistent and compatible with the goals and objectives of the proposed Sanctuary designation. Fishery activities not proposed for regulation under section 304(a)(5) of the Act may be listed in the draft Sanctuary designation document as potentially subject to regulation, without following the procedures specified in section 304(a)(5) of the Act. If the Secretary subsequently determines that regulation of any such fishery activity is necessary, then the procedures specified in section 304(a)(5) of the Act shall be followed.

                § 922.23
                [Reserved]

                § 922.24
                Congressional documents.
                In designating a National Marine Sanctuary, the Secretary shall prepare and submit to Congress those documents described in section 304 of the Act.

                § 922.25
                Designation determination and findings.
                (a) In designating a National Marine Sanctuary, the Secretary shall prepare a written Designation Determination and Findings which shall include those findings and determinations described in section 303 of the Act.
                (b) In addition to those factors set forth in section 303 of the Act, the Secretary, when making a designation determination, shall consider the Program's fiscal capability to manage the area as a National Marine Sanctuary.

              Subpart D—Management Plan Development and Implementation

                § 922.30
                General.
                (a) The Secretary shall implement each management plan, and applicable regulations, including carrying out surveillance and enforcement activities and conducting such research, monitoring, evaluation, and education programs as are necessary and reasonable to carry out the purposes and policies of the Act.
                (b) Consistent with Sanctuary management plans, the Secretary shall develop and implement site-specific contingency and emergency-response plans designed to protect Sanctuary resources. The plans shall contain alert procedures and actions to be taken in the event of an emergency such as a shipwreck or an oil spill.

                § 922.31
                Promotion and coordination of Sanctuary use.
                The Secretary shall take such action as is necessary and reasonable to promote and coordinate the use of National Marine Sanctuaries for research, monitoring, and education purposes. Such action may include consulting with Federal agencies, or other persons to promote use of one or more Sanctuaries for research, monitoring and education, including coordination with the National Estuarine Research Reserve System.

              Subpart E—Regulations of General Applicability

                § 922.40
                Purpose.
                The purpose of the regulations in this subpart and in the site-specific subparts in this part is to implement the designations of the National Marine Sanctuaries by regulating activities affecting them, consistent with their respective terms of designation in order to protect, preserve and manage and thereby ensure the health, integrity and continued availability of the conservation, ecological, recreational, research, educational, historical and aesthetic resources and qualities of these areas. Additional purposes of the regulations implementing the designation of the Florida Keys and Hawaiian Islands Humpback Whale National Marine Sanctuaries are found at §§ 922.160 and 922.180, respectively.
                [84 FR 32601, July 8, 2019]

                § 922.41
                Boundaries.

                The boundary for each of the National Marine Sanctuaries is set forth in the site-specific regulations covered by this part.
                [84 FR 32601, July 8, 2019]

                § 922.42
                Allowed activities.

                All activities (e.g., fishing, boating, diving, research, education) may be conducted unless prohibited or otherwise regulated in the site-specific regulations covered by this part, subject to any emergency regulations promulgated under this part, subject to all prohibitions, regulations, restrictions, and conditions validly imposed by any Federal, State, 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 National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.). The Assistant Administrator may only directly regulate fishing activities pursuant to the procedure set forth in section 304(a)(5) of the NMSA.
                [84 FR 32601, July 8, 2019]

                § 922.43
                Prohibited or otherwise regulated activities.
                The site-specific regulations applicable to the activities specified therein are set forth in the subparts covered by this part.
                [84 FR 32601, July 8, 2019]

                § 922.44
                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) The provisions of this section do 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) [Reserved]
                [84 FR 32601, July 8, 2019]

                § 922.45
                Penalties.
                (a) Each violation of the NMSA or FKNMSPA, any regulation in this part, or any permit issued pursuant thereto, is subject to a civil penalty of not more than $ 100,000. Each day of a continuing violation constitutes a separate violation.
                (b) Regulations setting forth the procedures governing administrative proceedings for assessment of civil penalties, permit sanctions, and denials for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR part 904.
                [60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997]

                § 922.46
                Response costs and damages.

                Under section 312 of the Act, any person who destroys, causes the loss of, or injures any Sanctuary resource is liable to the United States for response costs and damages resulting from such destruction, loss or injury, and any vessel used to destroy, cause the loss of, or injure any Sanctuary resource is liable in rem to the United States for response costs and damages resulting from such destruction, loss or injury.

                § 922.47
                Pre-existing authorizations or rights and certifications of pre-existing authorizations or rights.
                (a) Leases, permits, licenses, or rights of subsistence use or access in existence on the date of designation of any National Marine Sanctuary shall not be terminated by the Director. The Director may, however, regulate the exercise of such leases, permits, licenses, or rights consistent with the purposes for which the Sanctuary was designated.

                (b) The prohibitions listed in subparts F through P and R through T of this part do not apply to any activity authorized by a valid lease, permit, license, approval or other authorization in existence on the effective date of Sanctuary designation, or in the case of the Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, and issued by any Federal, State or local authority of competent jurisdiction, or by any valid right of subsistence use or access in existence on the effective date of Sanctuary designation, or in the case of the Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, provided that the holder of such authorization or right complies with certification procedures and criteria promulgated at the time of Sanctuary designation, or in the case of the Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, and with any terms and conditions on the exercise of such authorization or right imposed by the Director as a condition of certification as the Director deems necessary to achieve the purposes for which the Sanctuary was designated.
                [60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 FR 39055, June 22, 2000; 84 FR 32601, July 8, 2019]

                § 922.48
                National Marine Sanctuary permits—application procedures and issuance criteria.
                (a) A person may conduct an activity prohibited by subparts F through O and S and T of this part, if conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subparts F through O and S and T, as appropriate. For the Florida Keys National Marine Sanctuary, a person may conduct an activity prohibited by subpart P of this part if conducted in accordance with the scope, purpose, terms and conditions of a permit issued under § 922.166. For the Thunder Bay National Marine Sanctuary and Underwater Preserve, a person may conduct an activity prohibited by subpart R of this part in accordance with the scope, purpose, terms and conditions of a permit issued under § 922.195.
                (b) Applications for permits to conduct activities otherwise prohibited by subparts F through O and S and T of this part, should be addressed to the Director and sent to the address specified in subparts F through O of this part, or subparts R through T of this part, as appropriate. An application must include:
                (1) A detailed description of the proposed activity including a timetable for completion;
                (2) The equipment, personnel and methodology to be employed;
                (3) The qualifications and experience of all personnel;
                (4) The potential effects of the activity, if any, on Sanctuary resources and qualities; and
                (5) Copies of all other required licenses, permits, approvals or other authorizations.
                (c) Upon receipt of an application, the Director may request such additional information from the applicant as he or she deems necessary to act on the application and may seek the views of any persons or entity, within or outside the Federal government, and may hold a public hearing, as deemed appropriate.
                (d) The Director, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct a prohibited activity, in accordance with the criteria found in subparts F through O of this part, or subparts R through T of this part, as appropriate. The Director shall further impose, at a minimum, the conditions set forth in the relevant subpart.
                (e) A permit granted pursuant to this section is nontransferable.
                (f) The Director may amend, suspend, or revoke a permit issued pursuant to this section for good cause. The Director may deny a permit application pursuant to this section, in whole or in part, if it is determined that the permittee or applicant has acted in violation of the terms and conditions of a permit or of the regulations set forth in this section or subparts F through O of this part, or subparts R through T of this part or for other good cause. Any such action shall be communicated in writing to the permittee or applicant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904.
                [84 FR 32601, July 8, 2019]

                § 922.49
                Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity.
                (a) A person may conduct an activity prohibited by subparts L through P of this part, or subparts R through T of this part, if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation, or in the case of the Florida Keys National Marine Sanctuary after the effective date of the regulations in subpart P, provided that:
                (1) The applicant notifies the Director, in writing, of the application for such authorization (and of any application for an amendment, renewal, or extension of such authorization) within fifteen (15) days of the date of filing of the application or the effective date of Sanctuary designation, or in the case of the Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, whichever is later;
                (2) The applicant complies with the other provisions of this section;
                (3) The Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization (or amendment, renewal, or extension); and
                (4) The applicant complies with any terms and conditions the Director deems reasonably necessary to protect Sanctuary resources and qualities.
                (b) Any potential applicant for an authorization described in paragraph (a) of this section may request the Director to issue a finding as to whether the activity for which an application is intended to be made is prohibited by subparts L through P of this part, or subparts R through T of this part, as appropriate.
                (c) Notification of filings of applications should be sent to the Director, Office of National Marine Sanctuaries at the address specified in subparts L through P of this part, or subparts R through T of this part, as appropriate. A copy of the application must accompany the notification.
                (d) The Director may request additional information from the applicant as he or she deems reasonably necessary to determine whether to object to issuance of an authorization described in paragraph (a) of this section, or what terms and conditions are reasonably necessary to protect Sanctuary resources and qualities. The information requested must be received by the Director within 45 days of the postmark date of the request. The Director may seek the views of any persons on the application.
                (e) The Director shall notify, in writing, the agency to which application has been made of his or her pending review of the application and possible objection to issuance. Upon completion of review of the application and information received with respect thereto, the Director shall notify both the agency and applicant, in writing, whether he or she has an objection to issuance and what terms and conditions he or she deems reasonably necessary to protect Sanctuary resources and qualities, and reasons therefor.
                (f) The Director may amend the terms and conditions deemed reasonably necessary to protect Sanctuary resources and qualities whenever additional information becomes available justifying such an amendment.
                (g) Any time limit prescribed in or established under this section may be extended by the Director for good cause.
                (h) The applicant may appeal any objection by, or terms or conditions imposed by, the Director to the Assistant Administrator or designee in accordance with the provisions of § 922.50.
                [62 FR 4608, Jan. 30, 1997, as amended at 65 FR 39056, June 22, 2000; 84 FR 32602, July 8, 2019]

                § 922.50
                Appeals of administrative action.

                (a)(1) Except for permit actions taken for enforcement reasons (see subpart D of 15 CFR part 904 for applicable procedures), an applicant for, or a holder of, a National Marine Sanctuary permit; an applicant for, or a holder of, a Special Use permit issued pursuant to section 310 of the Act; a person requesting certification of an existing lease, permit, license or right of subsistence use or access under § 922.47; or, for those Sanctuaries described in subparts L through P and R through T of this part, an applicant for a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction (hereinafter appellant) may appeal to the Assistant Administrator:
                (i) The granting, denial, conditioning, amendment, suspension or revocation by the Director of a National Marine Sanctuary or Special Use permit;
                (ii) The conditioning, amendment, suspension or revocation of a certification under § 922.47; or
                (iii) For those Sanctuaries described in subparts L through P and R through T of this part, the objection to issuance of or the imposition of terms and conditions on a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction.
                (2) For those National Marine Sanctuaries described in subparts F through K and S and T of this part, any interested person may also appeal the same actions described in paragraphs (a)(1)(i) and (ii) of this section. For appeals arising from actions taken with respect to these National Marine Sanctuaries, the term “appellant” includes any such interested persons.
                (b) An appeal under paragraph (a) of this section must be in writing, state the action(s) by the Director appealed and the reason(s) for the appeal, and be received within 30 days of receipt of notice of the action by the Director. Appeals should be addressed to the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910.
                (c)(1) The Assistant Administrator may request the appellant to submit such information as the Assistant Administrator deems necessary in order for him or her to decide the appeal. The information requested must be received by the Assistant Administrator within 45 days of the postmark date of the request. The Assistant Administrator may seek the views of any other persons. For the Monitor National Marine Sanctuary, if the appellant has requested a hearing, the Assistant Administrator shall grant an informal hearing. For all other National Marine Sanctuaries, the Assistant Administrator may determine whether to hold an informal hearing on the appeal. If the Assistant Administrator determines that an informal hearing should be held, the Assistant Administrator may designate an officer before whom the hearing shall be held.
                (2) The hearing officer shall give notice in the Federal Register of the time, place and subject matter of the hearing. The appellant and the Director may appear personally or by counsel at the hearing and submit such material and present such arguments as deemed appropriate by the hearing officer. Within 60 days after the record for the hearing closes, the hearing officer shall recommend a decision in writing to the Assistant Administrator.
                (d) The Assistant Administrator shall decide the appeal using the same regulatory criteria as for the initial decision and shall base the appeal decision on the record before the Director and any information submitted regarding the appeal, and, if a hearing has been held, on the record before the hearing officer and the hearing officer's recommended decision. The Assistant Administrator shall notify the appellant of the final decision and the reason(s) therefore in writing. The Assistant Administrator's decision shall constitute final agency action for the purpose of the Administrative Procedure Act.
                (e) Any time limit prescribed in or established under this section other than the 30-day limit for filing an appeal may be extended by the Assistant Administrator or hearing office for good cause.
                [84 FR 32602, July 8, 2019]

              Subpart F—Monitor National Marine Sanctuary

                § 922.60
                Boundary.
                The Monitor National Marine Sanctuary (Sanctuary) consists of a vertical water column in the Atlantic Ocean one mile in diameter extending from the surface to the seabed, the center of which is at 35°00′23″ north latitude and 75°24′32″ west longitude.

                § 922.61
                Prohibited or otherwise regulated activities.
                Except as may be permitted by the Director, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
                (a) Anchoring in any manner, stopping, remaining, or drifting without power at any time;
                (b) Any type of subsurface salvage or recovery operation;
                (c) Diving of any type, whether by an individual or by a submersible;
                (d) Lowering below the surface of the water any grappling, suction, conveyor, dredging or wrecking device;
                (e) Detonating below the surface of the water any explosive or explosive mechanism;
                (f) Drilling or coring the seabed;
                (g) Lowering, laying, positioning or raising any type of seabed cable or cable-laying device;
                (h) Trawling; or
                (i) Discharging waster material into the water in violation of any Federal statute or regulation.

                § 922.62
                Permit procedure and criteria.
                (a) Any person or entity may conduct in the Sanctuary any activity listed in § 922.61 if such activity is either:
                (1) For the purpose of research related to the Monitor, or
                (2) Pertains to salvage or recovery operations in connection with an air or marine casualty and such person or entity is in possession of a valid permit issued by the Director authorizing the conduct of such activity; except that, no permit is required for the conduct of any activity immediately and urgently necessary for the protection of life, property or the environment.
                (b) Any person or entity who wishes to conduct in the Sanctuary an activity for which a permit is authorized by this section (hereafter a permitted activity) may apply in writing to the Director for a permit to conduct such activity citing this section as the basis for the application. Such application should be made to: Director, Office of Ocean and Coastal Resource Management; ATTN: Manager, Monitor National Marine Sanctuary, Building 1519, NOAA, Fort Eustis, VA 23604-5544.
                (c) In considering whether to grant a permit for the conduct of a permitted activity for the purpose of research related to the Monitor, the Secretary shall evaluate such matters as:
                (1) The general professional and financial responsibility of the applicant;
                (2) The appropriateness of the research method(s) envisioned to the purpose(s) of the research;
                (3) The extent to which the conduct of any permitted activity may diminish the value of the MONITOR as a source of historic, cultural, aesthetic and/or maritime information;
                (4) The end value of the research envisioned; and
                (5) Such other matters as the Director deems appropriate.
                (d) In considering whether to grant a permit for the conduct of a permitted activity in the Sanctuary in relation to an air or marine casualty, the Director shall consider such matters as:
                (1) The fitness of the applicant to do the work envisioned;
                (2) The necessity of conducting such activity;
                (3) The appropriateness of any activity envisioned to the purpose of the entry into the Sanctuary;
                (4) The extent to which the conduct of any such activity may diminish the value of the Monitor as a source of historic, cultural, aesthetic and/or maritime information; and
                (5) Such other matters as the Director deems appropriate.
                (e) In considering any application submitted pursuant to this section, the Director shall seek and consider the views of the Advisory Council on Historic Preservation.
                (f) The Director may observe any activity permitted by this section; and/or may require the submission of one or more reports of the status or progress of such activity.

              Subpart G—Channel Islands National Marine Sanctuary

                § 922.70
                Boundary.

                The Channel Islands National Marine Sanctuary (Sanctuary) consists of an area of approximately 1,110 square nautical miles (nmi) of coastal and ocean waters, and the submerged lands thereunder, off the southern coast of California. The Sanctuary boundary begins at the Mean High Water Line of and extends seaward to a distance of approximately six nmi from the following islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands). The seaward boundary coordinates are listed in appendix A to this subpart.
                [74 FR 3260, Jan. 16, 2009]

                § 922.71
                Definitions.
                In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart:

                  Cruise ship means a vessel with 250 or more passenger berths for hire.

                  Graywater means galley, bath, or shower water.

                  Introduced species means any species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.

                  Motorized personal watercraft means a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bow sprits, bumpkins, rudders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches.

                  Oceangoing ship means a private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships.

                  Pelagic finfish are defined as: Northern anchovy (Engraulis mordax), barracudas (Sphyraena spp.), billfishes (family Istiophoridae), dolphinfish (Coryphaena hippurus), Pacific herring (Clupea pallasi), jack mackerel (Trachurus symmetricus), Pacific mackerel (Scomber japonicus), salmon (Oncorhynchus spp.), Pacific sardine (Sardinops sagax), blue shark (Prionace glauca), salmon shark (Lamna ditropis), shortfin mako shark (Isurus oxyrinchus), thresher sharks (Alopias spp.), swordfish (Xiphias gladius), tunas (family Scombridae), and yellowtail (Seriola lalandi).

                  Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, or partially disassembled (such as spear shafts being kept separate from spear guns).
                [74 FR 3260, Jan. 16, 2009]

                § 922.72
                Prohibited or otherwise regulated activities—Sanctuary-wide.
                (a) Except as specified in paragraphs (b) through (e) of this section, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted:
                (1) Exploring for, developing, or producing hydrocarbons within the Sanctuary, except pursuant to leases executed prior to March 30, 1981, and except the laying of pipeline pursuant to exploring for, developing, or producing hydrocarbons.
                (2) Exploring for, developing, or producing minerals within the Sanctuary, except producing by-products incidental to hydrocarbon production allowed by paragraph (a)(1) of this section.
                (3)(i) Discharging or depositing from within or into the Sanctuary any material or other matter except:
                (A) Fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;

                (B) For a vessel less than 300 gross registered tons (GRT), or an oceangoing ship without sufficient holding tank capacity to hold sewage while within the Sanctuary, biodegradable effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1321 et seq. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
                (C) Biodegradable matter from:
                (1) Vessel deck wash down;
                (2) Vessel engine cooling water;
                (3) Graywater from a vessel less than 300 gross registered tons;
                (4) Graywater from an oceangoing ship without sufficient holding tank capacity to hold graywater while within the Sanctuary;
                (D) Vessel engine or generator exhaust;
                (E) Effluent routinely and necessarily discharged or deposited incidental to hydrocarbon exploration, development, or production allowed by paragraph (a)(1) of this section; or
                (F) Discharge allowed under section 312(n) of the FWPCA.
                (ii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraphs (a)(3)(i)(B) through (F) of this section and fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity beyond the boundary of the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity there.
                (4) Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing or placing any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental to and necessary to:
                (i) Anchor a vessel;
                (ii) Install an authorized navigational aid;
                (iii) Conduct lawful fishing activity;
                (iv) Lay pipeline pursuant to exploring for, developing, or producing hydrocarbons; or
                (v) Explore for, develop, or produce hydrocarbons as allowed by paragraph (a)(1) of this section.
                (5) Abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary.
                (6) Except to transport persons or supplies to or from any Island, operating within one nmi of any Island any vessel engaged in the trade of carrying cargo, including, but not limited to, tankers and other bulk carriers and barges, any vessel engaged in the trade of servicing offshore installations, or any vessel of three hundred gross registered tons or more, except fishing or kelp harvesting vessels.
                (7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of any Island, except to engage in kelp bed surveys or to transport persons or supplies to or from an Island. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.
                (8) Moving, removing, injuring, or possessing, or attempting to move, remove, injure, or possess a Sanctuary historical resource.

                (9) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
                (10) Possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird, except as authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
                (11) Marking, defacing, damaging, moving, removing, or tampering with any sign, notice, or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary.

                (12) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity.
                (13) Operating a motorized personal watercraft within waters of the Sanctuary that are coextensive with the Channel Islands National Park, established by 16 U.S.C. 410(ff).
                (b)(1) The prohibitions in paragraphs (a)(3) through (13) of this section and in § 922.73 do not apply to military activities carried out by DOD as of the effective date of these regulations and specifically identified in section 3.5.9 (Department of Defense Activities) of the Final Channel Islands National Marine Sanctuary Management Plan/Final Environmental Impact Statement (FMP/FEIS), Volume II: Environmental Impact Statement, 2008, authored and published by NOAA (“pre-existing activities”). Copies of the document are available from the Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. Other military activities carried out by DOD may be exempted by the Director after consultation between the Director and DOD.
                (2) A military activity carried out by DOD as of the effective date of these regulations and specifically identified in the section entitled “Department of Defense Activities” of the FMP/FEIS is not considered a pre-existing activity if:

                (i) It is modified in such a way that requires the preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to a Sanctuary resource or quality;
                (ii) It is modified, including but not limited to changes in location or frequency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly greater than previously considered for the unmodified activity;
                (iii) It is modified, including but not limited to changes in location or frequency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly different in manner than previously considered for the unmodified activity; or
                (iv) There are new circumstances or information relevant to a Sanctuary resource or quality that were not addressed in the FMP/FEIS.
                (3) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, including, but not limited to, discharges, deposits, and groundings, caused by a DOD activity, DOD, in coordination with the Director, must promptly prevent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner approved by the Director.
                (4) All DOD activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities.
                (c) The prohibitions in paragraphs (a)(3) through (10), (a)(12), and (a)(13) of this section and in § 922.73 do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.74.
                (d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section and in § 922.73 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.
                (e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section and in § 922.73 do not apply to any activity necessary for valid law enforcement purposes in the Sanctuary.
                [74 FR 3260, Jan. 16, 2009, as amended at 77 FR 3922, Jan. 26, 2012]

                § 922.73
                Additional prohibited or otherwise regulated activities—marine reserves and marine conservation area.
                (a) Marine reserves. Unless prohibited by 50 CFR part 660 (Fisheries off West Coast States), the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within a marine reserve described in appendix B to this subpart, except as specified in paragraphs (b) through (e) of § 922.72:

                (1) Harvesting, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any Sanctuary resource, or attempting any of these activities.

                (2) Possessing fishing gear on board a vessel unless such gear is stowed and not available for immediate use.
                (3) Possessing any Sanctuary resource, except legally harvested fish on board a vessel at anchor or in transit.
                (b) Marine conservation area. Unless prohibited by 50 CFR part 660 (Fisheries off West Coast States), the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within the marine conservation area described in appendix C to this subpart, except as specified in paragraphs (b) through (e) of § 922.72:
                (1) Harvesting, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any Sanctuary resource, or attempting any of these activities, except:
                (i) Recreational fishing for pelagic finfish; or
                (ii) Commercial and recreational fishing for lobster.
                (2) Possessing fishing gear on board a vessel, except legal fishing gear used to fish for lobster or pelagic finfish, unless such gear is stowed and not available for immediate use.
                (3) Possessing any Sanctuary resource, except legally harvested fish.
                [74 FR 3260, Jan. 16, 2009]

                § 922.74
                Permit procedures and issuance criteria.
                (a) A person may conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13), and § 922.73, if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under § 922.48 and this section.
                (b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13), and § 922.73, if the Director finds that the activity:
                (1) Is appropriate research designed to further understanding of Sanctuary resources and qualities;
                (2) Will further the educational value of the Sanctuary;
                (3) Will further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty;
                (4) Will assist in managing the Sanctuary; or
                (5) Will further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California.
                (c) The Director may not issue a permit under § 922.48 and this section unless the Director also finds that:
                (1) The proposed activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities;
                (2) The applicant is professionally qualified to conduct and complete the proposed activity;
                (3) The applicant has adequate financial resources available to conduct and complete the proposed activity;
                (4) The duration of the proposed activity is no longer than necessary to achieve its stated purpose;
                (5) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
                (6) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects;
                (7) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of educational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such effects;
                (8) It is necessary to conduct the proposed activity within the Sanctuary;

                (9) The reasonably expected end value of the proposed activity furthers Sanctuary goals and purposes and outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and

                (10) Any other matters the Director deems appropriate do not make the issuance of a permit for the proposed activity inappropriate.
                (d) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Manager, Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109.
                (2) In addition to the information listed in § 922.48(b), all applications must include information the Director needs to make the findings in paragraphs (b) and (c) of this section.
                (e) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.
                [74 FR 3260, Jan. 16, 2009]

                Pt. 922, Subpt. G, App. A
                Appendix A to Subpart G of Part 922—Channel Islands National Marine Sanctuary Boundary Coordinates
                [Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.]

                    Point
                    Latitude (N)
                    Longitude (W)

                    1
                    33.94138
                    −119.27422

                    2
                    33.96776
                    −119.25010

                    3
                    34.02607
                    −119.23642

                    4
                    34.07339
                    −119.25686

                    5
                    34.10185
                    −119.29178

                    6
                    34.11523
                    −119.33040

                    7
                    34.11611
                    −119.39120

                    8
                    34.11434
                    −119.40212

                    9
                    34.11712
                    −119.42896

                    10
                    34.11664
                    −119.44844

                    11
                    34.13389
                    −119.48081

                    12
                    34.13825
                    −119.49198

                    13
                    34.14784
                    −119.51194

                    14
                    34.15086
                    −119.54670

                    15
                    34.15450
                    −119.54670

                    16
                    34.15450
                    −119.59170

                    17
                    34.15142
                    −119.61254

                    18
                    34.13411
                    −119.66024

                    19
                    34.14635
                    −119.69780

                    20
                    34.15988
                    −119.76688

                    21
                    34.15906
                    −119.77800

                    22
                    34.15928
                    −119.79327

                    23
                    34.16213
                    −119.80347

                    24
                    34.16962
                    −119.83643

                    25
                    34.17266
                    −119.85240

                    26
                    34.17588
                    −119.88903

                    27
                    34.17682
                    −119.93357

                    28
                    34.17258
                    −119.95830

                    29
                    34.13535
                    −120.01964

                    30
                    34.13698
                    −120.04206

                    31
                    34.12994
                    −120.08582

                    32
                    34.12481
                    −120.11104

                    33
                    34.12519
                    −120.16076

                    34
                    34.11008
                    −120.21190

                    35
                    34.11128
                    −120.22707

                    36
                    34.13632
                    −120.25292

                    37
                    34.15341
                    −120.28627

                    38
                    34.16408
                    −120.29310

                    39
                    34.17704
                    −120.30670

                    40
                    34.20492
                    −120.30670

                    41
                    34.20492
                    −120.38830

                    42
                    34.20707
                    −120.41801

                    43
                    34.20520
                    −120.42859

                    44
                    34.19254
                    −120.46041

                    45
                    34.20540
                    −120.50728

                    46
                    34.20486
                    −120.53987

                    47
                    34.18182
                    −120.60041

                    48
                    34.10208
                    −120.64208

                    49
                    34.08151
                    −120.63894

                    50
                    34.05848
                    −120.62862

                    51
                    34.01940
                    −120.58567

                    52
                    34.01349
                    −120.57464

                    53
                    33.98698
                    −120.56582

                    54
                    33.95039
                    −120.53282

                    55
                    33.92694
                    −120.46132

                    56
                    33.92501
                    −120.42170

                    57
                    33.91403
                    −120.37585

                    58
                    33.91712
                    −120.32506

                    59
                    33.90956
                    −120.30857

                    60
                    33.88976
                    −120.29540

                    61
                    33.84444
                    −120.25482

                    62
                    33.83146
                    −120.22927

                    63
                    33.81763
                    −120.20284

                    64
                    33.81003
                    −120.18731

                    65
                    33.79425
                    −120.13422

                    66
                    33.79379
                    −120.10207

                    67
                    33.79983
                    −120.06995

                    68
                    33.81076
                    −120.04351

                    69
                    33.81450
                    −120.03158

                    70
                    33.84125
                    −119.96508

                    71
                    33.84865
                    −119.92316

                    72
                    33.86993
                    −119.88330

                    73
                    33.86195
                    −119.88330

                    74
                    33.86195
                    −119.80000

                    75
                    33.86110
                    −119.79017

                    76
                    33.86351
                    −119.77130

                    77
                    33.85995
                    −119.74390

                    78
                    33.86233
                    −119.68783

                    79
                    33.87330
                    −119.65504

                    80
                    33.88594
                    −119.62617

                    81
                    33.88688
                    −119.59423

                    82
                    33.88809
                    −119.58278

                    83
                    33.89414
                    −119.54861

                    84
                    33.90064
                    −119.51936

                    85
                    33.90198
                    −119.51609

                    86
                    33.90198
                    −119.43311

                    87
                    33.90584
                    −119.43311

                    88
                    33.90424
                    −119.42422

                    89
                    33.90219
                    −119.40730

                    90
                    33.90131
                    −119.38373

                    91
                    33.90398
                    −119.36333

                    92
                    33.90635
                    −119.35345

                    93
                    33.91304
                    −119.33280

                    94
                    33.91829
                    −119.32206

                    95
                    33.48250
                    −119.16874

                    96
                    33.44235
                    −119.16797

                    97
                    33.40555
                    −119.14878

                    98
                    33.39059
                    −119.13283

                    99
                    33.36804
                    −119.08891

                    100
                    33.36375
                    −119.06803

                    101
                    33.36241
                    −119.04812

                    102
                    33.36320
                    −119.03670

                    103
                    33.36320
                    −118.90879

                    104
                    33.47500
                    −118.90879

                    105
                    33.48414
                    −118.90712

                    106
                    33.52444
                    −118.91492

                    107
                    33.53834
                    −118.92271

                    108
                    33.58616
                    −118.99540

                    109
                    33.59018
                    −119.02374

                    110
                    33.58516
                    −119.06745

                    111
                    33.58011
                    −119.08521

                    112
                    33.54367
                    −119.14460

                    113
                    33.51161
                    −119.16367

                [72 FR 29233, May 24, 2007]

                Pt. 922, Subpt. G, App. B
                Appendix B to Subpart G of Part 922—Marine Reserve Boundaries
                [Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.]
                B.1. Richardson Rock (San Miguel Island) Marine Reserve
                The Richardson Rock Marine Reserve (Richardson Rock) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-1, and the following textual description.
                The Richardson Rock boundary extends from Point 1 to Point 2 along a straight line. It then extends from Point 2 to Point 3 along a straight line. The boundary then extends along a straight line from Point 3 to the 3 nmi State boundary established under the Submerged Lands Act (3 nmi State boundary) where a line defined by connecting Point 3 and Point 4 with a straight line intersects the 3 nmi State boundary. The boundary then extends northwestward and then eastward along the 3 nmi State boundary until it intersects the line defined by connecting Point 5 and Point 6 with a straight line. At that intersection, the boundary extends from the 3 nmi SLA boundary to Point 6 along a straight line.

                  Table B-1—Richardson Rock (San Miguel Island) Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    34.17333 ° N
                    120.60483 ″ W

                    2
                    34.17333 ° N
                    120.47000 ″ W

                    3
                    34.12900 ° N
                    120.47000 ″ W

                    4
                    34.03685 ° N
                    120.52120 ″ W

                    5
                    34.03685 ° N
                    120.60483 ″ W

                    6
                    34.17333 ° N
                    120.60483 ″ W

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

                  Table B-2—Harris Point (San Miguel Island) Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    34.20492 ° N
                    120.38830 ″ W

                    2
                    34.20492 ° N
                    120.30670 ″ W

                    3
                    34.10260 ° N
                    120.30670 ″ W

                    4
                    34.15200 ° N
                    120.38830 ″ W

                    5
                    34.20492 ° N
                    120.38830 ″ W

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

                  Table B-3—South Point (Santa Rosa Island) Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    33.84000 ° N
                    120.10830 ″ W

                    2
                    33.84000 ° N
                    120.16670 ″ W

                    3
                    33.86110 ° N
                    120.16670 ″ W

                    4
                    33.84700 ° N
                    120.10830 ″ W

                    5
                    33.84000 ° N
                    120.10830 ″ W

                B.4. Gull Island (Santa Cruz Island) Marine Reserve
                The Gull Island Marine Reserve (Gull Island) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-4, and the following textual description.

                The Gull Island boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.

                  Table B-4—Gull Island (Santa Cruz Island) Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    33.86195 ° N
                    119.80000 ″ W

                    2
                    33.86195 ° N
                    119.88330 ″ W

                    3
                    33.92690 ° N
                    119.88330 ″ W

                    4
                    33.90700 ° N
                    119.80000 ″ W

                    5
                    33.86195 ° N
                    119.80000 ″ W

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

                  Table B-5—Scorpion (Santa Cruz Island) Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    34.15450 ° N
                    119.59170 ″ W

                    2
                    34.15450 ° N
                    119.54670 ″ W

                    3
                    34.10140 ° N
                    119.54670 ″ W

                    4
                    34.10060 ° N
                    119.59170 ″ W

                    5
                    34.15450 ° N
                    119.59170 ″ W

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

                  Table B-6—Footprint Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    33.90198 ° N
                    119.43311 ″ W

                    2
                    33.90198 ° N
                    119.51609 ″ W

                    3
                    33.96120 ° N
                    119.51609 ″ W

                    4
                    33.95710 ° N
                    119.43311 ″ W

                    5
                    33.90198 ° N
                    119.43311 ″ W

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

                  Table B-7—Anacapa Island Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    34.08330 ° N
                    119.41000 ″ W

                    2
                    34.08330 ° N
                    119.35670 ″ W

                    3
                    34.06450 ° N
                    119.35670 ″ W

                    4
                    34.06210 ° N
                    119.41000 ″ W

                    5
                    34.08330 ° N
                    119.41000 ″ W

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

                  Table B-8—Santa Barbara Island Marine Reserve

                    Point
                    Latitude
                    Longitude

                    1
                    33.36320 ° N
                    118.90879 ″ W

                    2
                    33.36320 ° N
                    119.03670 ″ W

                    3
                    33.41680 ° N
                    119.03670 ″ W

                    4
                    33.47500 ° N
                    118.97080 ″ W

                    5
                    33.47500 ° N
                    118.90879 ″ W

                    6
                    33.36320 ° N
                    118.90879 ″ W

                [72 FR 29233, May 24, 2007]

                Pt. 922, Subpt. G, App. C
                Appendix C to Subpart G of Part 922—Marine Conservation Area Boundary
                C.1. Anacapa Island Marine Conservation Area
                The Anacapa Island Marine Conservation Area (AIMCA) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table C-1, and the following textual description.
                The AIMCA boundary extends from Point 1 to Point 2 along a straight line. It then extends to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.

                  Table C-1—Anacapa Island Marine Conservation Area

                    Point
                    Latitude
                    Longitude

                    1
                    34.08330 ° N
                    119.44500 ″ W

                    2
                    34.08330 ° N
                    119.41000 ″ W

                    3
                    34.06210 ° N
                    119.41000 ″ W

                    4
                    34.06300 ° N
                    119.44500 ″ W

                    5
                    34.08330 ° N
                    119.44500 ″ W

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

              Subpart H—Greater Farallones National Marine Sanctuary

                Source:
                80 FR 13108, Mar. 12, 2015, unless otherwise noted.

                Editorial Note:
                Nomenclature changes to subpart H appear at 80 FR 34048, June 15, 2015.

                § 922.80
                Boundary.
                (a) Greater Farallones National Marine Sanctuary (Sanctuary) encompasses an area of approximately 2,488 square nautical miles (3,295 square miles) of coastal and ocean waters, and submerged lands thereunder, surrounding the Farallon Islands and Noonday Rock along the northern coast of California. The precise boundary coordinates are listed in appendix A to this subpart.

                (b) The western boundary of the Sanctuary extends south from Point 1 approximately 45 nautical miles (52 miles) to Point 2, which is the northwestern corner of Cordell Bank National Marine Sanctuary (CBNMS). The Sanctuary boundary then extends from Point 2 approximately 38 nautical miles (43 miles) east along the northern boundary of CBNMS to Point 3, which is approximately 6 nautical miles (7 miles) west of Bodega Head. From Point 3 the Sanctuary boundary continues south and west to Points 4 through 19 (in numerical sequence) and is coterminous with the eastern boundary of CBNMS. From Point 19 the Sanctuary boundary continues south and east to Points 20 through 25 (in numerical sequence) until it intersects the boundary for Monterey Bay National Marine Sanctuary (MBNMS) at Point 26. From Point 26 the Sanctuary boundary extends eastward and northward, coterminous with MBNMS, to Points 27 through 33 (in numerical sequence). From Point 33 the boundary proceeds along a straight line arc towards Point 34 until it intersects the Mean High Water Line at Rocky Point, California. From this intersection the Sanctuary boundary follows the Mean High Water Line northward until it intersects the boundary for Point Reyes National Seashore approximately 0.7 nautical miles (0.8 miles) south and east of Bolinas Point in Marin County, California. The Sanctuary boundary then approximates the boundary for Point Reyes National Seashore, as established at the time of designation of the Sanctuary, to the intersection of the Point Reyes National Seashore boundary and the Mean High Water Line approximately 0.13 nautical miles (0.15 miles) south and east of Duck Cove in Tomales Bay. The Sanctuary boundary then follows the Mean High Water Line along Tomales Bay and up Lagunitas Creek to the U.S. Highway 1 Bridge. Here the Sanctuary boundary crosses Lagunitas Creek and follows the Mean High Water Line north to the Estero de San Antonio and up the Estero to the tide gate at Valley Ford-Franklin School Road. Here the Sanctuary boundary crosses the Estero de San Antonio and proceeds west and north following the Mean High Water Line to the Estero Americano and up the Estero to the bridge at Valley Ford-Estero Road. Here the Sanctuary boundary crosses the Estero Americano and proceeds west and north following the Mean High Water Line towards Salmon Creek. Approaching Salmon Creek the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 35 and 36. From that intersection the boundary extends across the creek along the straight line arc towards Point 36 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Russian River. Approaching the Russian River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 37 and Point 38. At that intersection the boundary extends across the river along the straight line arc towards Point 38 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Gualala River. Approaching the Gualala River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 39 and Point 40. At that intersection the boundary extends across the river along the straight line arc towards Point 40 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north to Arena Cove in Mendocino County. Approaching Arena Cove the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 41 and Point 42. At that intersection the boundary extends across the cove along the straight line arc towards Point 42 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Garcia River. Approaching the Garcia River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 43 and Point 44. At that intersection the boundary extends across the river along the straight line arc towards Point 44 until it intersects the Mean High Water Line. The Sanctuary boundary then continues north following the Mean High Water Line until it intersects the rhumb line connecting Point 45 and Point 46. From this intersection the Sanctuary boundary continues west along its northernmost extent to Point 46. The Sanctuary includes Bolinas Lagoon, Estero de San Antonio (to the tide gate at Valley Ford-Franklin School Road) and Estero Americano (to the bridge at Valley Ford-Estero Road), as well as Bodega Bay, but does not include Bodega Harbor, the Salmon Creek Estuary, the Russian River Estuary, the Gualala River Estuary, Arena Cove, or the Garcia River Estuary. Unless otherwise specified, where the Sanctuary boundary crosses a waterway, the Sanctuary excludes this waterway upstream of the crossing.

                § 922.81
                Definitions.
                In addition to those definitions found at § 922.3, the following definitions apply to this subpart:

                  Attract or attracting means the conduct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).

                  Clean means not containing detectable levels of harmful matter.

                  Cruise ship means a vessel with 250 or more passenger berths for hire.

                  Deserting means leaving a vessel aground or adrift without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification, after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts, or when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel's condition being reported to authorities; or leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner.

                  Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4.

                  Introduced species means any species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.

                  Motorized personal watercraft means a vessel which uses an inboard motor powering a water jet pump as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing inside the vessel.

                  Routine maintenance means customary and standard procedures for maintaining docks or piers.

                  Seagrass means any species of marine angiosperms (flowering plants) that inhabit portions of the submerged lands in the Sanctuary. Those species include, but are not limited to: Zostera asiatica and Zostera marina.

                  Special Wildlife Protection Zones are areas surrounding or adjacent to high abundance of white sharks, breeding pinnipeds (seals and sea lions) or high abundance and high biological diversity of breeding birds that are susceptible to human caused disturbance, including federally listed and specially protected species. Coordinates for Special Wildlife Protection Zones are found in appendix C of this Subpart.

                § 922.82
                Prohibited or otherwise regulated activities.
                (a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
                (1) Exploring for, developing, or producing oil, gas or minerals.
                (2) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:
                (i) Fish, fish parts, chumming materials or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;
                (ii) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) that is approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
                (iii) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
                (iv) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;
                (v) Vessel engine or generator exhaust; or

                (vi) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II marine sanitation device, and operating within the designated area [2015 expansion area] defined in appendix G of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use, and ammunition, pyrotechnics or other materials directly related to search and rescue and live ammunition training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix G of this subpart.
                (3) Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator exhaust, clean bilge water, or anchor wash.
                (4) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except for the material or other matter excepted in paragraphs (a)(2)(i) through (vi) and (a)(3) of this section.
                (5) Constructing any structure other than a navigation aid on or in the submerged lands of the Sanctuary; placing or abandoning any structure on or in the submerged lands of the Sanctuary; or drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary in any way, except:
                (i) By anchoring vessels (in a manner not otherwise prohibited by this part (see paragraph (a)(16) of this section);
                (ii) While conducting lawful fishing activities;
                (iii) Routine maintenance and construction of docks and piers on Tomales Bay; or
                (iv) Aquaculture activities conducted pursuant to a valid lease, permit, license or other authorization issued by the State of California.
                (6) Operating motorized personal watercraft (MPWC) anywhere in Bodega Bay and anywhere in the Sanctuary south of 38.29800 degrees North Latitude (the southernmost tip of Bodega Head), except for emergency search and rescue missions or law enforcement operations (other than routine training activities) carried out by the National Park Service, U.S. Coast Guard, Fire or Police Departments or other Federal, State or local jurisdictions.

                (7) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act (ESA), as amended, 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
                (8) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle, or bird taken, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
                (9) Possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure, a Sanctuary historical resource.
                (10) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except:
                (i) Striped bass (Morone saxatilis) released during catch and release fishing activity; or
                (ii) Species cultivated by commercial shellfish aquaculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California. Tomales Bay is defined in § 922.80. The coordinates for the northern terminus of Tomales Bay are listed in appendix C to this subpart.
                (11) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within any of the seven designated Special Wildlife Protection Zones described in appendix D to this subpart, except transiting Zone 6 to transport persons or supplies to or from Southeast Farallon Island authorized by the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge, or for enforcement purposes. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.

                (12) Operating any vessel engaged in the trade of carrying cargo within any area designated Special Wildlife Protection Zone or within one nautical mile from these zones. The coordinates are listed in appendix E to this subpart. This includes but is not limited to tankers and other bulk carriers and barges, or any vessel engaged in the trade of servicing offshore installations, except to transport persons or supplies to or from the Farallon Islands. In no event shall this section be construed to limit access for fishing, recreational or research vessels.
                (13) Attracting a white shark anywhere in the Sanctuary; or approaching within 50 meters of any white shark within Special Wildlife Protection Zone 6 and 7 or within one nautical mile from these zones The coordinates are listed in appendix F to this subpart.
                (14) Deserting a vessel aground, at anchor, or adrift in the Sanctuary.
                (15) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary.
                (16) Anchoring a vessel in a designated seagrass protection zone in Tomales Bay, except as necessary for aquaculture operations conducted pursuant to a valid lease, permit or license. The coordinates for the no-anchoring seagrass protection zones are listed in Appendix B to this subpart.
                (17) Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
                (b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section. The exemption of additional activities shall be determined in consultation between the Director and the Department of Defense.
                (c) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property, or the environment.
                (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 pursuant to §§ 922.48 and 922.83 or a Special Use permit issued pursuant to section 310 of the Act.
                [80 FR 13108, Mar. 12, 2015, as amended at 83 FR 55966, Nov. 9, 2018]

                § 922.83
                Permit procedures and issuance criteria.
                (a) A person may conduct an activity 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 § 922.48 and this section.
                (b) The Director, at his or her discretion, may issue a National Marine Sanctuary permit under this section, subject to terms and conditions as he or she deems appropriate, if the Director finds that the activity will:
                (1) Further research or monitoring related to Sanctuary resources and qualities;
                (2) Further the educational value of the Sanctuary;
                (3) Further salvage or recovery operations; or
                (4) Assist in managing the Sanctuary.
                (c) In deciding whether to issue a permit, the Director shall consider factors such as:
                (1) The applicant is qualified to conduct and complete the proposed activity;
                (2) The applicant has adequate financial resources available to conduct and complete the proposed activity;
                (3) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
                (4) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary or cumulative effects of the activity, and the duration of such effects;

                (5) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
                (6) It is necessary to conduct the proposed activity within the Sanctuary;
                (7) The reasonably expected end value of the proposed activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and
                (8) Any other factors as the Director deems appropriate.
                (d) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Greater Farallones National Marine Sanctuary, 991 Marine Dr., The Presidio, San Francisco, CA 94129.
                (2) In addition to the information listed in § 922.48(b), all applications must include information to be considered by the Director in paragraph (b) and (c) of this section.
                (e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.

                § 922.84
                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 § 922.82(a)(1) through (17) if such activity is specifically authorized by a valid Federal, State, or local lease, permit, license, approval, or other authorization in existence prior to the effective date of sanctuary expansion and within the sanctuary expansion area and complies with § 922.47 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section.
                (b) In considering whether to make the certifications called for in this section, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate.
                (c) The Director may amend, suspend, or revoke any certification made under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken.
                (d) Requests for findings or certifications should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129. A copy of the lease, permit, license, approval, or other authorization must accompany the request.
                (e) For an activity described in paragraph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.82 (a)(1) through (17) provided that:
                (1) The holder of such authorization or right notifies the Director, in writing, within 90 days of the effective date of Sanctuary designation, of the existence of such authorization or right and requests certification of such authorization or right;
                (2) The holder complies with the other provisions of this section; and
                (3) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.
                (f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohibited by § 922.82 may conduct the activity without being in violation of applicable provisions of § 922.82, pending final agency action on his or her certification request, provided the holder is otherwise in compliance with this section.

                (g) The Director may request additional information from the certification requester as he or she deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the postmark date of the request. The Director may seek the views of any persons on the certification request.
                (h) The Director may amend any certification made under this section whenever additional information becomes available that he determines justifies such an amendment.
                (i) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
                (j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.50.
                (k) Any time limit prescribed in or established under this section may be extended by the Director for good cause.

                § 922.85
                Review of State permits and leases for certain aquaculture projects.
                NOAA has described in a Memorandum of Agreement (MOA) with the State of California how the State will consult and coordinate with NOAA to review any new, amended or expanded lease or permit application for aquaculture projects in Tomales Bay involving introduced species.

                Pt. 922, Subpt. H, App. A
                Appendix A to Subpart H of Part 922—Greater Farallones National Marine Sanctuary Boundary Coordinates
                Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.

                    Point ID No.
                    Latitude
                    Longitude

                    1
                    39.00000
                    −124.33350

                    2
                    38.29989
                    −123.99988

                    3
                    38.29989
                    −123.20005

                    4
                    38.26390
                    −123.18138

                    5
                    38.21001
                    −123.11913

                    6
                    38.16576
                    −123.09207

                    7
                    38.14072
                    −123.08237

                    8
                    38.12829
                    −123.08742

                    9
                    38.10215
                    −123.09804

                    10
                    38.09069
                    −123.10387

                    11
                    38.07898
                    −123.10924

                    12
                    38.06505
                    −123.11711

                    13
                    38.05202
                    −123.12827

                    14
                    37.99227
                    −123.14137

                    15
                    37.98947
                    −123.23615

                    16
                    37.95880
                    −123.32312

                    17
                    37.90464
                    −123.38958

                    18
                    37.83480
                    −123.42579

                    19
                    37.76687
                    −123.42694

                    20
                    37.75932
                    −123.42686

                    21
                    37.68892
                    −123.39274

                    22
                    37.63356
                    −123.32819

                    23
                    37.60123
                    −123.24292

                    24
                    37.59165
                    −123.22641

                    25
                    37.56305
                    −123.19859

                    26
                    37.52001
                    −123.12879

                    27
                    37.50819
                    −123.09617

                    28
                    37.49418
                    −123.00770

                    29
                    37.50948
                    −122.90614

                    30
                    37.52988
                    −122.85988

                    31
                    37.57147
                    −122.80399

                    32
                    37.61622
                    −122.76937

                    33
                    37.66641
                    −122.75105

                    34 *
                    37.88225
                    −122.62753

                    35 *
                    38.35045
                    −123.06711

                    36 *
                    38.35665
                    −123.06724

                    37 *
                    38.44575
                    −123.12602

                    38 *
                    38.45531
                    −123.13469

                    39 *
                    38.76231
                    −123.52957

                    40 *
                    38.76941
                    −123.53541

                    41 *
                    38.91136
                    −123.71061

                    42 *
                    38.91766
                    −123.72568

                    43 *
                    38.95404
                    −123.73405

                    44 *
                    38.95944
                    −123.71820

                    45 *
                    39.00000
                    −123.69710

                    46
                    39.00000
                    −124.33350

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the sanctuary boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                Pt. 922, Subpt. H, App. B
                Appendix B to Subpart H of Part 922—No-Anchoring Seagrass Protection Zones in Tomales Bay
                Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.
                (1) No-Anchoring Seagrass Protection Zone 1 encompasses an area of approximately .11 square nautical miles (.15 square miles) offshore south of Millerton Point. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a straight line arc that connects points 1 and 2 listed in the coordinate table below. The southern boundary is a straight line arc that connects points 2 and 3, the western boundary is a straight line arc that connects points 3 and 4 and the northern boundary is a straight line arc that connects point 4 to point 5.

                    Zone 1 PointID No.

                    Latitude
                    Longitude

                    1
                    38.10571
                    −122.84565

                    2
                    38.09888
                    −122.83603

                    3
                    38.09878
                    −122.84431

                    4
                    38.10514
                    −122.84904

                    5
                    38.10571
                    −122.84565

                (2) No-Anchoring Seagrass Protection Zone 2 encompasses an area of approximately .15 square nautical miles (.19 square miles) that begins just south of Marconi and extends approximately 1.6 nautical miles (1.9 miles) south along the eastern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 5 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 5 towards point 6 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line north until it intersects the straight line arc that connects point 7 to point 8. From this intersection the northern boundary extends to point 8.

                    Zone 2 PointID No.

                    Latitude
                    Longitude

                    1
                    38.13326
                    −122.87178

                    2
                    38.12724
                    −122.86488

                    3
                    38.12563
                    −122.86480

                    4
                    38.11899
                    −122.86731

                    5
                    38.11386
                    −122.85851

                    6 *
                    38.11608
                    −122.85813

                    7 *
                    38.14078
                    −122.87433

                    8
                    38.13326
                    −122.87178

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (3) No-Anchoring Seagrass Protection Zone 3 encompasses an area of approximately .01 square nautical miles (.02 square miles) that begins just south of Marshall and extends approximately .5 nautical miles (.6 miles) south along the eastern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The western boundary is a straight line arc that connects point 1 to point 2 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 2 towards point 3 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 4 to point 5. From this intersection the northern boundary extends westward along the straight line arc that connects point 4 to point 5.

                    Zone 3 PointID No.

                    Latitude
                    Longitude

                    1
                    38.15956
                    −122.89573

                    2
                    38.15250
                    −122.89042

                    3 *
                    38.15292
                    −122.88984

                    4 *
                    38.16031
                    −122.89442

                    5
                    38.15956
                    −122.89573

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (4) No-Anchoring Seagrass Protection Zone 4 is an area of approximately .18 square nautical miles (.21 square miles) that begins just north of Nicks Cove and extends approximately 2.7 nautical miles (3.1 miles) south along the eastern shore of Tomales Bay to just south of Cypress Grove. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 8 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 8 towards point 9 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line north until it intersects the straight line arc that connects point 10 to point 11. From this intersection the northern boundary extends westward along the straight line arc that connects point 10 to point 11.

                    Zone 4 PointID No.

                    Latitude
                    Longitude

                    1
                    38.20004
                    −122.92315

                    2
                    38.18881
                    −122.91740

                    3
                    38.18651
                    −122.91404

                    4
                    38.17919
                    −122.91021

                    5
                    38.17450
                    −122.90545

                    6
                    38.16869
                    −122.90475

                    7
                    38.16535
                    −122.90308

                    8
                    38.16227
                    −122.89650

                    9 *
                    38.16266
                    −122.89620

                    10 *
                    38.20080
                    −122.92174

                    11
                    38.20004
                    −122.92315

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (5) No-Anchoring Seagrass Protection Zone 5 encompasses an area of approximately 1.3 square nautical miles (1.6 square miles) that begins east of Lawson's Landing and extends approximately 2.7 nautical miles (3.1 miles) east and south along the eastern shore of Tomales Bay but excludes areas adjacent (approximately .32 nautical miles or .37 miles) to the mouth of Walker Creek. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 3 listed in the coordinate table below. From point 3 the southern boundary trends eastward along the straight line arc that connects point 3 to point 4 until it intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 5 to point 6. From this intersection the boundary extends westward along the straight line arc that connects point 5 to point 6. From point 6 the boundary follows the straight line arc that connects point 6 to point 7, and then extends along the straight line arc that connects point 7 to point 8 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line until it intersects the straight line arc that connects point 9 to point 10. From this intersection the boundary extends to point 10 along the straight line arc that connects point 9 to point 10.

                    Zone 5 PointID No.

                    Latitude
                    Longitude

                    1
                    38.21825
                    −122.96041

                    2
                    38.20666
                    −122.94397

                    3
                    38.19431
                    −122.93431

                    4 *
                    38.20080
                    −122.92174

                    5 *
                    38.20522
                    −122.92446

                    6
                    38.20366
                    −122.93246

                    7
                    38.20938
                    −122.94153

                    8 *
                    38.21599
                    −122.93742

                    9 *
                    38.23129
                    −122.96293

                    10
                    38.21825
                    −122.96041

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (6) No-Anchoring Seagrass Protection Zone 6 encompasses an area of approximately .01 square nautical miles (.02 square miles) in the vicinity of Indian Beach along the western shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a straight line arc that connects point 1 to point 2 listed in the coordinate table below. The southern boundary extends westward along the straight line arc that connects point 2 to point 3 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 3 to point 4. From this intersection the northern boundary extends eastward along the straight line arc that connects point 4 to point 5.

                    Zone 6 PointID No.

                    Latitude
                    Longitude

                    1
                    38.14103
                    −122.89537

                    2
                    38.13919
                    −122.89391

                    3 *
                    38.13804
                    −122.89610

                    4 *
                    38.14033
                    −122.89683

                    5
                    38.14103
                    −122.89537

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (7) No-Anchoring Seagrass Protection Zone 7 encompasses an area of approximately .09 square nautical miles (.12 square miles) that begins just south of Pebble Beach and extends approximately 1.6 nautical miles (1.9 miles) south along the western shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a series of straight line arcs that sequentially connect point 1 to point 5 listed in the coordinate table below. The southern boundary extends along the straight line arc that connects point 5 to point 6 until it intersects the Mean High Water Line. From this intersection the western boundary extends north along the Mean High Water Line until it intersects the straight line arc that connects point 7 to point 8. From this intersection the northern boundary extends eastward along the straight line arc that connects point 7 to point 8.

                    Zone 7 PointID No.

                    Latitude
                    Longitude

                    1
                    38.13067
                    −122.88620

                    2
                    38.12362
                    −122.87984

                    3
                    38.11916
                    −122.87491

                    4
                    38.11486
                    −122.86896

                    5
                    38.11096
                    −122.86468

                    6 *
                    38.11027
                    −122.86551

                    7 *
                    38.13001
                    −122.88749

                    8
                    38.13067
                    −122.88620

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                Pt. 922, Subpt. H, App. C
                Appendix C to Subpart H of Part 922—Northern Extent of Tomales Bay
                For the purpose of § 922.82(a)(10)(ii), NOAA is codifying the northern geographical extent of Tomales Bay via a line running from Avalis Beach (Point 1) east to Sand Point (Point 2). Coordinates listed in this Appendix are unprojected (geographic) and based on the North American Datum of 1983.

                    PointID No. Tomales Bay
                      Boundary

                    Latitude
                    Longitude

                    1
                    38.23165
                    −122.98148

                    2
                    38.23165
                    −122.96955

                Pt. 922, Subpt. H, App. D
                Appendix D to Subpart H of Part 922—Special Wildlife Protection Zones Within the Sanctuary
                Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.

                (1) Special Wildlife Protection Zone 1 (SWPZ 1) encompasses an area of approximately 7.9 square nautical miles (10.5 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 1 extends south from Point 1, west of Haven's Neck in Mendocino County, to Point 2, west of Del Mar Point. The boundary then extends east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Mean High Water Line at Del Mar Point. The SWPZ 1 boundary then turns north to follow the Mean High Water Line towards Haven's Neck and continues until it intersects a straight line arc connecting Point 4 and Point 5. From this intersection the Sanctuary boundary continues west along its northernmost extent to Point 5.

                    Zone 1 PointID No.

                    Latitude
                    Longitude

                    1
                    38.80865
                    −123.63227

                    2
                    38.74096
                    −123.54306

                    3 *
                    38.74096
                    −123.51051

                    4 *
                    38.80865
                    −123.60195

                    5
                    38.80865
                    −123.63227

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (2) Special Wildlife Protection Zone 2 (SWPZ 2) encompasses an area of approximately 16.2 square nautical miles (21.4 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 2 extends south and east from Point 1, south of Windermere Point in Sonoma County, to Point 2 and then to Point 3 in sequence. Point 3 is west of Duncans Point in Sonoma County. The boundary then extends east from Point 3 along a straight line arc connecting Point 3 and Point 4 until it intersects the Mean High Water Line at Duncans Point. The boundary then turns north to follow the Mean High Water Line towards Windermere Point until it intersects a straight line arc connecting Point 5 and Point 6. From this intersection the boundary continues due south along a straight line arc to Point 6.

                    Zone 2 PointID No.

                    Latitude
                    Longitude

                    1
                    38.49854
                    −123.26804

                    2
                    38.45095
                    −123.18564

                    3
                    38.39311
                    −123.12068

                    4 *
                    38.39311
                    −123.09527

                    5 *
                    38.52487
                    −123.26804

                    6
                    38.49854
                    −123.26804

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (3) Special Wildlife Protection Zone 3 (SWPZ 3) encompasses an area of approximately 7 square nautical miles (9.3 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 3 extends south and east from Point 1, southwest of the Estero de San Antonio in Sonoma County, to Point 2, south of Tomales Point in Marin County. The boundary then extends north and east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the boundary of the Point Reyes National Seashore. From this intersection the SWPZ 3 boundary follows the Point Reyes National Seashore boundary around Tomales Point into Tomales Bay and continues until it again intersects the straight line arc that connects Point 2 and Point 3. From this intersection the SWPZ 3 boundary follows the straight line arc north and east toward Point 3 until it intersects the Mean High Water Line at Toms Point in Tomales Bay. The SWPZ 3 boundary then follows the Mean High Water Line northward towards the Estero de San Antonio until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the Sanctuary boundary continues south and west to Point 5.

                    Zone 3 PointID No.

                    Latitude
                    Longitude

                    1
                    38.24001
                    −123.02963

                    2
                    38.19249
                    −122.99523

                    3 *
                    38.21544
                    −122.95286

                    4 *
                    38.27011
                    −122.97840

                    5
                    38.24001
                    −123.02963

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (4) Special Wildlife Protection Zone 4 (SWPZ 4) encompasses an area of approximately 10.2 square nautical miles (13.5 square miles). The precise boundary coordinates are list in the table following this description. The western boundary of SWPZ 4 extends south and west from Point 1, west of Point Reyes in Marin County, to Point 2, south and west of Point Reyes Lighthouse. The boundary then follows a straight line arc east and south from Point 2 to Point 3. From Point 3 the boundary follows a straight line arc north to Point 4. From Point 4 the SWPZ 4 boundary proceeds west along the straight line arc that connects Point 4 and Point 5 until it intersects the Point Reyes National Seashore boundary north of Chimney Rock. The SWPZ 4 boundary then follows the Point Reyes National Seashore boundary around Point Reyes until it again intersects the straight line arc that connects Point 4 and Point 5 north of the Point Reyes Lighthouse. From this intersection the SWPZ 4 boundary turns seaward and continues west to Point 5.

                    Zone 4 PointID No.

                    Latitude
                    Longitude

                    1
                    38.01475
                    −123.05013

                    2
                    37.97536
                    −123.05482

                    3
                    37.96521
                    −122.93771

                    4
                    38.00555
                    −122.93504

                    5
                    38.01475
                    −123.05013

                (5) Special Wildlife Protection Zone 5 (SWPZ 5) encompasses an area of approximately 14.8 square nautical miles (19.6 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 5 extends south and east from Point 1, near Millers Point in Marin County, to Point 2, which is south and west of Bolinas Point. The SWPZ 5 boundary then follows a straight line arc east from Point 2 towards Point 3 until it intersects the Mean High Water Line at Rocky Point. From this intersection, the SWPZ 5 boundary follows the Sanctuary boundary north to Bolinas Point and Millers Point, respectively, including Bolinas Lagoon but not including Seadrift Lagoon, until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the SWPZ 5 boundary turns seaward and continues west and south along the straight line arc to Point 5.

                    Zone 5 PointID No.

                    Latitude
                    Longitude

                    1
                    37.96579
                    −122.83284

                    2
                    37.88195
                    −122.73989

                    3 *
                    37.88195
                    −122.62873

                    4 *
                    37.98234
                    −122.81513

                    5
                    37.96579
                    −122.83284

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (6) Special Wildlife Protection Zone 6 (SWPZ 6) encompasses an area of approximately 6.8 square nautical miles (9 square miles) and extends from the Mean High Water Line seaward to the SWPZ 6 boundary. The precise boundary coordinates are listed in the table following this description. The boundary of SWPZ 6 extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.

                    Zone 6 PointID No.

                    Latitude
                    Longitude

                    1
                    37.72976
                    −123.00961

                    2
                    37.69697
                    −123.04374

                    3
                    37.66944
                    −123.00176

                    4
                    37.70246
                    −122.96608

                    5
                    37.72976
                    −123.00961

                (7) Special Wildlife Protection Zone 7 (SWPZ 7) encompasses an area of approximately 6 square nautical miles (7.9 square miles) and extends from the Mean High Water Line seaward to the SWPZ 7 boundary. The precise boundary coordinates are listed in the table following this description. The boundary of SWPZ 7 extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.

                    Zone 7 PointID No.

                    Latitude
                    Longitude

                    1
                    37.79568
                    −123.10845

                    2
                    37.76746
                    −123.13869

                    3
                    37.73947
                    −123.09341

                    4
                    37.76687
                    −123.06330

                    5
                    37.79568
                    −123.10845

                Pt. 922, Subpt. H, App. E
                Appendix E to Subpart H of Part 922—Cargo Vessel Prohibition Zones in the Sanctuary
                Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.
                (1) Cargo Vessel Prohibition Zone 1 (CVPZ 1) is an area of approximately 20 square nautical miles (26 square miles) immediately offshore of Anchor Bay. The precise boundary coordinates are listed in the table following this description. The western boundary of extends south and east from Point 1, north and west of Haven's Neck, to Point 2, west and south of Del Mar Point. The CVPZ 1 boundary then extends east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Sanctuary boundary. The CVPZ 1 boundary then turns north to follow the Sanctuary boundary past Haven's Neck and continues until it intersects the straight line arc connecting Point 4 and Point 5. From this intersection the CVPZ 1 boundary continues west along its northernmost extent to Point 5.

                    Zone 1 PointID No.

                    Latitude
                    Longitude

                    1
                    38.82485
                    −123.68420

                    2
                    38.72330
                    −123.55145

                    3 *
                    38.72330
                    −123.47658

                    4 *
                    38.82485
                    −123.60953

                    5
                    38.82485
                    −123.68420

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (2) Cargo Vessel Prohibition Zone 2 (CVPZ 2) encompasses an area of approximately 30 square nautical miles (40 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 2 boundary extends south and east from Point 1, west of Windermere Point in Sonoma County, to Point 2 and then to Point 3 in sequence. Point 3 is west of Duncans Point in Sonoma County. The CVPZ 2 boundary then extends east from Point 3 along a straight line arc connecting Point 3 and Point 4 until it intersects the Sanctuary boundary south of Duncans Point. The CVPZ 2 boundary then turns north to follow the Sanctuary boundary past Windermere Point until it intersects the straight line arc connecting Point 5 and Point 6. From this intersection the CVPZ 2 boundary continues due south along this straight line arc to Point 6.

                    Zone 2 PointID No.

                    Latitude
                    Longitude

                    1
                    38.48995
                    −123.28994

                    2
                    38.43749
                    −123.19789

                    3
                    38.37614
                    −123.13153

                    4 *
                    38.37614
                    −123.07843

                    5 *
                    38.54099
                    −123.28994

                    6
                    38.48995
                    −123.28994

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (3) Cargo Vessel Prohibition Zone 3 (CVPZ 3) encompasses an area of approximately 17 square nautical miles (22 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 3 boundary extends south and east from Point 1, west of the Estero de San Antonio in Sonoma County, to Point 2, south of Tomales Point in Marin County. The CVPZ 3 boundary then extends north and east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Sanctuary boundary. From this intersection the CVPZ 3 boundary follows the Sanctuary boundary around Tomales Point into Tomales Bay and continues until it again intersects the straight line arc that connects Point 2 and Point 3. From this intersection the CVPZ 3 boundary follows the straight line arc north and east across Tomales Bay until it intersects the Sanctuary boundary south of Toms Point in Tomales Bay. The CVPZ 3 boundary then follows the Sanctuary boundary northward past the Estero de San Antonio until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the boundary continues south and west to Point 5.

                    Zone 3 PointID No.

                    Latitude
                    Longitude

                    1
                    38.24496
                    −123.05698

                    2
                    38.16758
                    −123.00179

                    3 *
                    38.21170
                    −122.92566

                    4 *
                    38.28215
                    −122.99278

                    5
                    38.24496
                    −123.05698

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (4) Cargo Vessel Prohibition Zone 4 (CVPZ 4) encompasses an area of approximately 28 square nautical miles (37 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 4 boundary extends south and west from Point 1, west and north of Point Reyes in Marin County, to Point 2, south and west of Point Reyes Lighthouse. The CVPZ 4 boundary then follows a straight line arc east and south from Point 2 to Point 3. From Point 3 the CVPZ 4 boundary follows a straight line arc north to Point 4. From Point 4 the CVPZ 4 boundary proceeds west along the straight line arc that connects Point 4 and Point 5 until it intersects the Sanctuary boundary at Drakes Beach. The CVPZ 4 boundary then follows the Sanctuary boundary around Point Reyes until it again intersects the straight line arc that connects Point 4 and Point 5, north of the Point Reyes Lighthouse. From this intersection the CVPZ 4 boundary turns seaward and continues west to Point 5 along this arc.

                    Zone 4 PointID No.

                    Latitude
                    Longitude

                    1
                    38.03311
                    −123.06923

                    2
                    37.96053
                    −123.07801

                    3
                    37.94655
                    −122.91781

                    4
                    38.02026
                    −122.91261

                    5
                    38.03311
                    −123.06923

                (5) Cargo Vessel Prohibition Zone 5 (CVPZ 5) encompasses an area of approximately 29 square nautical miles (39 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 5 boundary extends south and east from Point 1, west of Millers Point in Marin County, to Point 2, south and west of Bolinas Point. The CVPZ 5 boundary then follows a straight line arc east from Point 2 towards Point 3 until it intersects the Sanctuary boundary. From this intersection, the CVPZ 5 boundary follows the Sanctuary boundary north towards Rocky Point and continues along the Sanctuary boundary past Bolinas Point and Millers Point, respectively, including Bolinas Lagoon but not including Seadrift Lagoon, until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the CVPZ 5 boundary turns seaward and continues west and south along the straight line arc to Point 5.

                    Zone 5 PointID No.

                    Latitude
                    Longitude

                    1
                    37.96598
                    −122.85997

                    2
                    37.86532
                    −122.74797

                    3 *
                    37.86532
                    −122.63720

                    4 *
                    37.99449
                    −122.82841

                    5
                    37.96598
                    −122.85997

                    Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                (6) Cargo Vessel Prohibition Zone 6 (CVPZ 6) encompasses an area of approximately 21 square nautical miles (28 square miles) surrounding Southeast Farallon Island and extends from the Mean High Water Line to the CVPZ 6 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.

                    Zone 6 PointID No.

                    Latitude
                    Longitude

                    1
                    37.75264
                    −123.01175

                    2
                    37.69461
                    −123.07333

                    3
                    37.64621
                    −122.99867

                    4
                    37.70538
                    −122.93567

                    5
                    37.75264
                    −123.01175

                (7) Cargo Vessel Prohibition Zone 7 (CVPZ 7) encompasses an area of approximately 20 square nautical miles (26 square miles) surrounding the North Farallon Islands and extends from the Mean High Water Line to the CVPZ 7 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.

                    Zone 7 PointID No.

                    Latitude
                    Longitude

                    1
                    37.81914
                    −123.11155

                    2
                    37.76497
                    −123.16939

                    3
                    37.71623
                    −123.09089

                    4
                    37.76872
                    −123.03359

                    5
                    37.81914
                    −123.11155

                Pt. 922, Subpt. H, App. F
                Appendix F to Subpart H of Part 922—White Shark Approach Prohibition Zones in the Sanctuary
                Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.
                (1) White Shark Approach Prohibition Zone 1 (WSAPZ 1) encompasses an area of approximately 21 square nautical miles (28 square miles) surrounding Southeast Farallon Island and extends from the Mean High Water Line to the WSAPZ 1 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.

                    Zone 1 PointID No.

                    Latitude
                    Longitude

                    1
                    37.75264
                    −123.01175

                    2
                    37.69461
                    −123.07333

                    3
                    37.64621
                    −122.99867

                    4
                    37.70538
                    −122.93567

                    5
                    37.75264
                    −123.01175

                (2) White Shark Approach Prohibition Zone 2 (WSAPZ 2) encompasses an area of approximately 20 square nautical miles (26 square miles) surrounding the North Farallon Islands and extends from the Mean High Water Line to the WSAPZ 2 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.

                    Zone 2 PointID No.

                    Latitude
                    Longitude

                    1
                    37.81914
                    −123.11155

                    2
                    37.76497
                    −123.16939

                    3
                    37.71623
                    −123.09089

                    4
                    37.76872
                    −123.03359

                    5
                    37.81914
                    −123.11155

                Appendix G to Subpart H of Part 922—Designated Area for Certain United States Coast Guard Discharges
                Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).

                The portion of the Greater Farallones National Marine Sanctuary area [2015 expansion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1 identified in the coordinate table in this appendix, the boundary extends from Point 1 to Point 2 in a straight line arc, and continues from Point 2 to Point 3 in a straight line arc, and from Point 3 to Point 4 in a straight line arc. From Point 4 the boundary extends east and north along a straight line arc towards Point 5 until it intersects the fixed offshore boundary between the United States and California (approximately 3 NM seaward of the coast as defined in United States vs. California, 135 S. Ct. 563 (2014)). The boundary then extends northward following the fixed offshore boundary between the United States and California until it intersects the line segment formed between Point 6 and Point 7. From this intersection, the boundary extends west along the northern boundary of Greater Farallones National Marine Sanctuary to Point 7 where it ends.

                    Point No.
                    Latitude
                    Longitude

                    1
                    39.00000
                    −124.33350

                    2
                    38.29989
                    −123.99988

                    3
                    38.29989
                    −123.20005

                    4
                    38.26390
                    −123.18138

                    5 1

                    38.29896
                    −123.05989

                    6 1

                    39.00000
                    −123.75777

                    7
                    39.00000
                    −124.33350

                    1 These coordinates are not a part of the boundary for the Designated Area for Certain United States Coast Guard Discharges. These coordinates are reference points used to draw line segments that intersect with the fixed offshore boundary between the United States and California.

                [83 FR 55966, Nov. 9, 2018]

              Subpart I—Gray's Reef National Marine Sanctuary

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

                § 922.90
                Boundary.

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

                Datum: NAD83
                Geographic Coordinate System

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

                § 922.91
                Definitions.
                In addition to those definitions found at § 922.3, the following definitions apply to this subpart:

                  Handline means fishing gear that is set and pulled by hand and consists of one vertical line to which may be attached leader lines with hooks.

                  Rod and reel means a rod and reel unit that is not attached to a vessel, or, if attached, is readily removable, from which a line and attached hook(s) are deployed. The line is payed out from and retrieved on the reel manually or electrically.

                  Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, partially disassembled, or stowed for transit.

                § 922.92
                Prohibited or otherwise regulated activities—Sanctuary-wide.
                (a) Except as specified in paragraphs (b) through (d) of this section and in § 922.94 regarding additional prohibitions in the research area, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
                (1) Dredging, drilling into, or otherwise altering in any way the submerged lands of the Sanctuary (including bottom formations).
                (2) Constructing any structure other than a navigation aid, or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary except weighted marker buoys that are continuously tended and used during otherwise lawful fishing or diving activities and that are not attached to a vessel and not capable of holding a boat at anchor. Weights used with a marker buoy shall not have a combined weight of more than 10 pounds, shall be attached with not greater than one-fourth inch (1/4″) line and shall be removed from the Sanctuary within twelve (12) hours of deployment. Any weighted marker buoy that is not continuously tended may be removed by the Assistant Administrator or designee or an authorized officer, without notice.
                (3) Discharging or depositing any material or other matter except:
                (i) Fish or fish parts, bait, or chumming materials;
                (ii) Effluent from marine sanitation devices; and
                (iii) Vessel cooling water.
                (4) Operating a watercraft other than in accordance with the Federal rules and regulations that would apply if there were no Sanctuary.

                (5)(i) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead, within the Sanctuary by any means except by use of rod and reel, and handline gear;

                (ii) There shall be a rebuttable presumption that any marine organism or part thereof referenced in this paragraph found in the possession of a person within the Sanctuary has been collected from the Sanctuary.
                (6) Using any fishing gear within the Sanctuary except rod and reel, and handline gear, or for law enforcement purposes.
                (7) Using underwater any explosives, or devices that produce electric charges underwater.
                (8) Breaking, cutting, damaging, taking, or removing any bottom formation.
                (9) Moving, removing, damaging, or possessing, or attempting to move, remove, damage, or possess, any Sanctuary historical resource.
                (10) Anchoring, or attempting to anchor, any vessel in the Sanctuary, except as provided in paragraph (d) of this section when responding to an emergency threatening life, property, or the environment.
                (11) Possessing or carrying any fishing gear within the Sanctuary except:
                (i) Rod and reel, and handline gear;
                (ii) Fishing gear other than rod and reel, handline gear, and spearfishing gear, provided that it is stowed on a vessel and not available for immediate use;
                (iii) Spearfishing gear provided that it is stowed on a vessel, not available for immediate use, and the vessel is passing through the Sanctuary without interruption; and
                (iv) For law enforcement purposes.
                (b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section and § 922.94. The exemption of additional activities having significant impacts shall be determined in consultation between the Director and the Department of Defense.
                (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 15 CFR 922.48 and 922.93.
                (d) The prohibitions in this section and in § 922.94 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.
                [76 FR 63832, Oct. 14, 2011, as amended at 79 FR 41881, July 18, 2014]

                § 922.93
                Permit procedures and criteria.
                (a) A person may conduct an activity prohibited by § 922.92(a)(1) through (10) and § 922.94 if conducted in accordance within the scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48.
                (b) Applications for such permits should be addressed to the Director, National Marine Sanctuary Program, ATTN: Manager, Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
                (c) The Director, at his or her discretion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.92(a)(1) through (10). The Director must also find that the activity will:
                (1) Further research related to the resources and qualities of the Sanctuary;
                (2) Further the educational, natural, or historical resource value of the Sanctuary;
                (3) Further salvage or recovery operations in connection with a recent air or marine casualty; or
                (4) Assist in managing the Sanctuary.
                (d) The Director shall not issue a permit unless the Director also finds that:
                (1) The applicant is professionally qualified to conduct and complete the proposed activity;
                (2) The applicant has adequate financial resources available to conduct and complete the proposed activity;
                (3) The duration of the proposed activity is no longer than necessary to achieve its stated purpose;
                (4) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's goals in relation to the activity's impacts on Sanctuary resources and qualities;

                (5) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects;
                (6) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary as a source of recreation, or as a source of educational or scientific information considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
                (7) It is necessary to conduct the proposed activity within the Sanctuary to achieve its purposes;
                (8) The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity; and
                (9) There are no other factors that make the issuance of a permit for the activity inappropriate.
                (e) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.
                (f) The Director shall, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public.
                (g) The Director may, inter alia, make it a condition of any permit issued to require the submission of one or more reports of the status and progress of such activity.
                (h) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit.
                [71 FR 60063, Oct. 12, 2006, as amended at 76 FR 63832, Oct. 14, 2011]

                § 922.94
                Prohibited or otherwise regulated activities—Research area.
                In addition to the prohibitions set out in § 922.92, which apply throughout the Sanctuary, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within the research area described in Appendix A to this subpart.
                (a)(1) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead.
                (2) There shall be a rebuttable presumption that any marine organism or part thereof referenced in this paragraph found in the possession of a person within the research area has been collected from the research area.
                (b) Using any fishing gear, or possessing, or carrying any fishing gear unless such gear is stowed and not available for immediate use while on board a vessel transiting through the research area without interruption or for valid law enforcement purposes.
                (c) Diving.
                (d) Stopping a vessel in the research area.
                [76 FR 63832, Oct. 14, 2011]

                Pt. 922, Subpt. I, App. A
                Appendix A to Subpart I of Part 922—Boundary Coordinates for the Gray's Reef National Marine Sanctuary Research Area
                [Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.]

                The research area boundary is defined by the coordinates provided in Table 1 and the following textual description. The research area boundary extends from Point 1, the southwest corner of the sanctuary, to Point 2 along a straight line following the western boundary of the Sanctuary. It then extends along a straight line from Point 2 to Point 3, which is on the eastern boundary of GRNMS. The boundary then follows the eastern boundary line of the sanctuary southward until it intersects the line of the southern boundary of GRNMS at Point 4, the southeastern corner of the sanctuary. The last straight line is defined by connecting Point 4 and Point 5, along the southern boundary of the GRNMS.

                  Table 1—Coordinates for the Research Area

                    Point ID
                    Latitude(north, in degrees)

                    Longitude(west, in degrees)

                    1
                    N 31.362732
                    W 80.921200

                    2
                    N 31.384444
                    W 80.921200

                    3
                    N 31.384444
                    W 80.828145

                    4
                    N 31.362732
                    W 80.828145

                    5
                    N 31.362732
                    W 80.921200

                [76 FR 63832, Oct. 14, 2011]

              Subpart J—National Marine Sanctuary of American Samoa

                Source:
                77 FR 43962, July 26, 2012, unless otherwise noted.

                § 922.100
                Scope of regulations.
                The provisions of this subpart J apply only to the waters of the United States and the Territory of American Samoa that are located within the boundary of the National Marine Sanctuary of American Samoa (Sanctuary). Neither the provisions of this subpart J nor any permit issued under its authority shall be construed to relieve a person from any other requirements imposed by statute or regulation of the Territory of American Samoa or of the United States. In addition, no statute or regulation of the Territory of American Samoa shall be construed to relieve a person from the restrictions, conditions, and requirements contained in this subpart J.

                § 922.101
                Boundary.
                The Sanctuary is comprised of six distinct units, forming a network of marine protected areas around the islands of the Territory of American Samoa. Tables containing the exact coordinates of each point described below can be found in Appendix to Subpart J—National Marine Sanctuary of American Samoa Boundary Coordinates.
                (a) Fagatele Bay Unit. The Fagatele Bay Unit is a 163-acre (0.25 sq. mi.) coastal embayment formed by a collapsed volcanic crater on the island of Tutuila, Territory of American Samoa, and includes Fagatele Bay in its entirety. The landward boundary is defined by the mean higher 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 higher high water line seaward.
                (b) Fagalua/Fogama'a Unit. The landward boundary of the Fagalua/Fogama'a Unit is defined by the mean higher high water line of Fagalua/Fogama'a until the point at which it intersects the seaward boundary of the Fagalua/Fogama'a Unit as defined by a straight line between Steps Point (−14.37307, −170.75852) and Sail Rock Point (−14.36534, −170.74119) from the point at which it intersects the mean higher high water line seaward.
                (c) Aunu'u Unit. The Aunu'u Unit is comprised of two adjacent zones.
                (1) Zone A. The Aunu'u Unit boundary for Zone A is defined by the coordinates provided in Table 1 and the following textual description. The Zone A boundary extends from Point 1, the northwest corner of the unit, southward to Point 2 along a straight line following the western boundary of the unit, which is aligned with Taugamalama Point on Tutuila. It then extends northeastward in a multi-part line along the deepest seaward edge of Nafanua Bank from Point 2 to Point 3 and then to Point 4, which lies on the southern boundary of Zone B. The boundary then follows a straight line westward towards Point 5 until it intersects the mean higher high water line at the southern tip of Ma'ama'a Cove. The landward boundary of Zone A is defined by the mean higher high water line from this intersection point at the southern tip of Ma'ama'a Cove to the intersection of the mean higher high water line and the straight line between Point 6 and Point 7 at Salevatia Point. From this intersection point at Salevatia Point, the boundary extends straight west to Point 7, which has the exact same coordinates as Point 1.
                (2) Zone B. The Aunu'u Unit boundary for Zone B is defined by the coordinates provided in Table 2 and the following textual description. The Zone B boundary extends from Point 1, the northeast corner of the unit, southward along a straight line following the eastern boundary of the unit to Point 2, which is on the southern boundary of the unit. The southern boundary then follows a line westward towards Point 3 until it intersects the mean higher high water line at the southern tip of Ma'ama'a Cove Point. The landward boundary of Zone B is defined by the mean higher high water line from this intersection point at the southern tip of Ma'ama'a Cove around the volcanic crater to the intersection of the mean higher high water line and the straight line between Point 4 and Point 5. From here, the boundary extends seaward straight north to Point 5. The northern border, the last straight line, is defined by connecting Point 5 and Point 6, along the northern boundary of the unit, which is aligned with Matuli Point on Tutuila. Point 6 has the exact same coordinates at Point 1.
                (d) Swains Island Unit. The Swains Island Unit boundary is defined by the coordinates in Table 3 and the following textual description. The seaward boundary of the Swains Island Unit approximates the three nautical mile territorial sea boundary from the mean higher high water line (shoreline) of the island. The seaward boundary begins south of the island at Point 1 and continues initially to the west in sequential order clockwise around the island to Point 33. The landward boundary of the Swains Island Unit is the mean higher high water line and begins on the northern shoreline of the island and follows the shoreline counterclockwise initially to the west until it intersects the line segment between Point 34 and 35. From this intersection the boundary continues offshore to the northwest to Point 35 and then to Point 36 and Point 37. From Point 37 the boundary continues east-northeast towards Point 38 until it intersects the shoreline. From this intersection the boundary follows the shoreline southeast around the southernmost part of the island and then to the northeast until it intersects the line segment between Point 39 and Point 40. From this intersection the boundary continues offshore to the southeast to Point 40 and then to the northeast to Point 41. From Point 41 the boundary continues to the northwest towards Point 42 until it intersects the shoreline. From this intersection the boundary follows the shoreline initially to the northeast around the island counterclockwise and then to the northwest back to where it began on the northern shoreline.
                (e) Muliāva Unit. The Muliāva Unit boundary is defined by the coordinates provided in Table 4 and the following textual description. The landward boundary of the Muliāva Unit is the extreme low water line, which adjoins the boundary of the Rose Atoll National Wildlife Refuge. The Muliāva Unit seaward boundary extends from Point 1, the southwest corner of the unit, to Point 2 along a straight line northward following the western boundary of the unit. From Point 2, the line extends in a straight line westward to Point 3. It then extends along a straight line northward to Point 4. From Point 4, the line extends in a straight line eastward to Point 5. From Point 5, the line extends along a straight line northward to Point 6. It then extends along a straight line eastward from Point 6 to Point 7, which is on the eastern boundary of the unit. The boundary then follows a straight line southward until it intersects the line of the southern boundary of the unit at Point 8, the southeastern corner of the unit. The last straight line is defined by connecting Point 8 and Point 9, which has the exact same coordinates as Point 1, along the southern boundary of the unit.
                (f) Ta'u Unit. The Ta'u Unit boundary is defined by the coordinates provided in Table 5 and the following textual description. The Ta'u Unit boundary extends from Point 1, Vaita Point, along the mean higher high water line southward along the western coast to Point 2, Si'ufa'alele Point. From Point 2, the boundary extends offshore 0.25 miles to Point 3 to become conterminous with the offshore boundary of the National Park of American Samoa. From Point 3 the boundary continues to follow the coastline 0.25 miles offshore until it reaches Point 4, which is directly south of Si'u Point. From Point 4, the boundary extends due south to Point 5. From Point 5, the boundary extends due west to Point 6, forming the southern border of the unit. From Point 6, the boundary extends due north until it reaches Point 7, directly west and one mile offshore from Point 8, which is Point 1, also known as Vaita Point.
                [77 FR 43962, July 26, 2012, as amended at 80 FR 79683, Dec. 23, 2015]

                § 922.102
                Definitions.
                In addition to those definitions found at § 922.3, the following definitions apply to this subpart:

                  Clean means not containing detectable levels of harmful matter.

                  Fishing means the catching, taking, or harvesting of marine species; the attempted catching, taking, or harvesting of marine species; any other activity which can reasonably be expected to result in the catching, taking, or harvesting of marine species; or any operation at sea in support of, or in preparation for, any activity described in this definition.

                  Harmful matter means any substance, or combination of substances that, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act.

                  Introduced species means any species (including, but not limited to, any of its biological matter capable of propagation) that is nonnative to the ecosystem(s) protected by 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.

                  Live rock means any Coral, basalt rock, or other natural structure with any living organisms growing in or on the Coral, basalt rock, or structure.

                  Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, or partially disassembled (such as spear shafts being kept separate from spear guns).

                § 922.103
                Prohibited or otherwise regulated activities—Sanctuary-wide.
                (a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
                (1) Introducing or releasing introduced species from within or into the sanctuary.
                (2) Anchoring a vessel.
                (3) Deserting a vessel aground, adrift, or at anchor.
                (4) Leaving harmful matter on an abandoned or deserted vessel or structure.
                (5) Operating a vessel at a speed exceeding three knots when closer than 200 feet (60.96 meters) of another vessel displaying a dive flag.
                (6) Operating a vessel in a manner which causes the vessel to strike or otherwise cause damage to Sanctuary resources.
                (7) Diving, snorkeling, or conducting diving or snorkeling operations from a vessel not in compliance with applicable U.S. Coast Guard navigation rules governing the display of lights and signals, and not flying in a conspicuous manner the international code flag alpha “A” or the standard red-and-white U.S. “diver down” flag.
                (8) Discharging, or depositing from within or into the Sanctuary, any material or other matter, except clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, anchor wash, or vessel engine or generator exhaust.

                (9) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraph (a)(8) of this section and § 922.105(c).

                (10) Sand mining, dredging, filling, dynamiting, or otherwise disturbing or altering the seabed.
                (11) Removing, damaging, or tampering with any historical or cultural resource.

                (12) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
                (13) Using or discharging explosives or weapons of any description. Distress signaling devices, necessary and proper for safe vessel operation, and knives generally used by fishermen and swimmers shall not be considered weapons for purposes of this section.
                (14) Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or permanent, or with any monuments, stakes, posts, or other boundary markers related to the Sanctuary.
                (15) Abandoning a structure, material, or other matter on or in the submerged lands of the Sanctuary.
                (b) The prohibitions in paragraphs (a)(1) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary for national defense.
                (c) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.
                (d) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary for valid law enforcement purposes in the Sanctuary.
                (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 15 CFR 922.48 and 922.107.

                § 922.104
                Prohibited or otherwise regulated activities—Sanctuary-wide except in the Muliāva Unit.
                (a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within any unit of the Sanctuary except the Muliāva Unit:

                (1) Gathering, taking, breaking, cutting, damaging, destroying, or possessing any giant clam [Tridacna spp.], live coral, bottom formation including live rock and crustose coralline algae.
                (2) Possessing or using poisons, electrical charges, explosives, or similar environmentally destructive methods of fishing or harvesting.
                (3) Possessing or using spearguns, including such devices known as Hawaiian slings, pole spears, arbalettes, pneumatic and spring-loaded spearguns, bows and arrows, bang sticks, or any similar taking device while utilizing SCUBA equipment.
                (4) Possessing or using a seine, trammel, drift gill net, or any type of fixed net.
                (5) Disturbing the benthic community by bottom trawling.
                (b) There shall be a rebuttable presumption that any items listed in paragraph (a) of this section found in the possession of a person within the Sanctuary have been used, collected, or removed within or from the Sanctuary.

                § 922.105
                Prohibited or otherwise regulated activities—Unit-specific.
                In addition to the prohibitions set forth in § 922.103 and § 922.104, the following regulations apply to activities conducted within specified Sanctuary units described in the appendix to this subpart.
                (a) The following activities are prohibited in the Fagatele Bay Unit:
                (1) Harvesting, catching, removing, taking, injuring, destroying, collecting, moving, possessing or causing the loss of any Sanctuary resource, including but not limited to fishing, or attempting any of these activities.
                (2) Possessing fishing gear unless such gear is stowed and not available for immediate use.
                (b) The following activities are prohibited in the Aunu'u Unit:

                (1) In Zone A: Fishing from a vessel without providing notification to the Sanctuary Superintendent or his/her designee in the village of Aunu'u prior to each fishing trip.
                (2) In Zone B:
                (i) Fishing for bottom-dwelling species or otherwise harvesting, catching, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any bottom-dwelling species, or attempting any of these activities. Surface fishing for pelagic species, including trolling, is allowed.
                (ii) Disturbing the benthic community.
                (iii) Possessing any Sanctuary resource, except legally harvested fish on board a vessel.
                (c) In the Muliāva Unit:
                (1) The prohibitions in paragraphs (a)(2) through (7) and (a)(9) through (15) of § 922.103 do not apply to scientific exploration or research activities conducted by or for the Department of Commerce or the Department of the Interior.
                (2) Notwithstanding the prohibition in § 922.103(a)(8), the following vessels may discharge treated waste from a U.S. Coast Guard approved Type I, II, or III Marine Sanitation device 12 nautical miles seaward of the Rose Atoll National Wildlife Refuge:
                (i) Vessels engaged in scientific exploration or research activities conducted by or for the Department of Commerce or the Department of the Interior; or
                (ii) All other vessels engaged in scientific exploration or research activities, if authorized under a permit issued in consultation with the U.S. Fish and Wildlife Service and in accordance with § 922.48 and § 922.107.

                § 922.106
                Management and enforcement.
                The National Oceanic and Atmospheric Administration (NOAA) has primary responsibility for the management of the Sanctuary pursuant to the Act. The American Samoa Department of Commerce (ASDOC) will assist NOAA in the administration of the Sanctuary, and act as the lead territorial agency, in conformance with the terms of designation, these regulations, and the terms and provisions of any grant or cooperative agreement.

                § 922.107
                Permit procedures and criteria.
                (a) Any person in possession of a valid permit issued by the Director, in consultation with the ASDOC, in accordance with this section and § 922.48, may conduct an activity otherwise prohibited by § 922.103, § 922.104, and § 922.105 in the Sanctuary if such activity is judged not to cause long-term or irreparable harm to the resources of the Sanctuary, and is:
                (1) Related to research involving Sanctuary resources designed to enhance understanding of the Sanctuary environment or to improve resource management decisionmaking;
                (2) Intended to further the educational value of the Sanctuary and thereby enhance understanding of the Sanctuary environmental or improve resource management decisionmaking;
                (3) Intended to further the management of the Sanctuary; or
                (4) For salvage or recovery operations.
                (b) Permit applications shall be addressed to the Director, Office National Marine Sanctuaries; ATTN: Sanctuary Superintendent, American Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 96799.
                (c) In considering whether to grant a permit, the Director shall evaluate such matters as:
                (1) The general professional and financial responsibility of the applicant;
                (2) The appropriateness of the methods being proposed for the purpose(s) of the activity;
                (3) The extent to which the conduct of any permitted activity may diminish or enhance the value of the Sanctuary as a source of recreation, education, or scientific information; and
                (4) The end value of the activity.
                (d) In addition to meeting the criteria in this section and § 922.48, the applicant also must demonstrate to the Director that:
                (1) The activity shall be conducted with adequate safeguards for the environment; and
                (2) The environment shall be returned to, or will regenerate to, the condition which existed before the activity occurred.

                (e) The Director may, at his or her discretion, grant a permit which has been applied for pursuant to this section, in whole or in part, and subject the permit to such condition(s) as he or she deems necessary.

                Pt. 922, Subpt. J, App.
                Appendix to Subpart J of Part 922—American Samoa National Marine Sanctuary Boundary Coordinates
                [Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.]
                (a) Fagatele Bay
                No coordinates are needed in addition to those described in § 922.101(a).
                (b) Fagalua/Fogama'a
                No coordinates are needed in addition to those described in § 922.101(b).
                (c) Aunu'u (Zones A, B)
                The Aunu'u Unit is comprised of two adjacent zones, described in § 922.101(c), for which the point coordinates are provided in following tables 1 and 2.

                  Table 1—Coordinates for the Aunu'u Unit, Zone A

                    Point ID
                    Latitude(south)

                    Longitude(west)

                    1
                    −14.286
                    −170.577

                    2
                    −14.304
                    −170.577

                    3
                    −14.302
                    −170.566

                    4
                    −14.286
                    −170.533

                    5
                    −14.286
                    −170.546

                    6
                    −14.286
                    −170.562

                    7
                    −14.286
                    −170.577

                  Table 2—Coordinates for the Aunu'u Unit, Zone B

                    Point ID
                    Latitude(south)

                    Longitude(west)

                    1
                    −14.270
                    −170.496

                    2
                    −14.286
                    −170.496

                    3
                    −14.286
                    −170.546

                    4
                    −14.280
                    −170.550

                    5
                    −14.270
                    −170.550

                    6
                    −14.270
                    −170.496

                (d) Swains Island
                The Swains Island Unit boundary is defined by the coordinates provided in Table 3 and the textual description in § 922.101(d).

                  Table 3—Coordinates for the Swains Island Unit

                    Point ID
                    Latitude(south)

                    Longitude(west)

                    1
                    −11.11457
                    −171.06870

                    2
                    −11.11565
                    −171.07980

                    3
                    −11.11422
                    −171.09248

                    4
                    −11.11005
                    −171.10445

                    5
                    −11.10388
                    −171.11445

                    6
                    −11.09533
                    −171.12392

                    7
                    −11.08375
                    −171.13272

                    8
                    −11.07268
                    −171.13775

                    9
                    −11.06112
                    −171.14042

                    10
                    −11.04880
                    −171.14067

                    11
                    −11.03618
                    −171.13800

                    12
                    −11.02673
                    −171.13367

                    13
                    −11.01853
                    −171.12773

                    14
                    −11.01010
                    −171.11828

                    15
                    −11.00402
                    −171.10710

                    16
                    −11.00083
                    −171.09728

                    17
                    −10.99817
                    −171.08305

                    18
                    −10.99783
                    −171.06825

                    19
                    −10.99983
                    −171.05732

                    20
                    −11.00373
                    −171.04790

                    21
                    −11.00955
                    −171.03862

                    22
                    −11.01752
                    −171.02985

                    23
                    −11.02703
                    −171.02290

                    24
                    −11.03763
                    −171.01805

                    25
                    −11.04812
                    −171.01558

                    26
                    −11.05860
                    −171.01527

                    27
                    −11.06860
                    −171.01695

                    28
                    −11.07957
                    −171.02133

                    29
                    −11.08850
                    −171.02727

                    30
                    −11.09637
                    −171.03502

                    31
                    −11.10637
                    −171.04840

                    32
                    −11.11122
                    −171.05753

                    33
                    −11.11457
                    −171.06870

                    34
                    −11.05188
                    −171.08921

                    35
                    −11.04856
                    −171.09269

                    36
                    −11.05487
                    −171.09445

                    37
                    −11.06024
                    −171.09283

                    38
                    −11.05848
                    −171.08824

                    39
                    −11.06369
                    −171.07618

                    40
                    −11.06741
                    −171.07364

                    41
                    −11.06217
                    −171.06622

                    42
                    −11.05836
                    −171.06879

                (e) Muliāva
                The Muliāva Unit boundary is defined by the coordinates provided in Table 4 and the textual description in § 922.101(e).

                  Table 4—Coordinates for the Muliāva Unit

                    Point ID
                    Latitude(south)

                    Longitude(west)

                    1
                    −15.387
                    −169.012

                    2
                    −14.271
                    −169.012

                    3
                    −14.271
                    −169.121

                    4
                    −14.150
                    −169.121

                    5
                    −14.150
                    −169.012

                    6
                    −13.698
                    −169.012

                    7
                    −13.698
                    −167.283

                    8
                    −15.387
                    −167.283

                    9
                    −15.387
                    −169.012

                (f) Ta'u Unit

                The Ta'u Unit boundary is defined by the coordinates provided in Table 5 and the textual description in § 922.101(f).

                  Table 5—Coordinates for the Ta'u Unit

                    Point ID
                    Latitude(south)

                    Longitude(west)

                    1
                    −14.24889
                    −169.503056

                    2
                    −14.273056
                    −169.488056

                    3
                    −14.277222
                    −169.488056

                    4
                    −14.261111
                    −169.429167

                    5
                    −14.293889
                    −169.429167

                    6
                    −14.293889
                    −169.519722

                    7
                    −14.24889
                    −169.519722

                    8
                    −14.24889
                    −169.503056

                [80 FR 79683, Dec. 23, 2015]

              Subpart K—Cordell Bank National Marine Sanctuary

                Source:
                80 FR 13115, Mar. 12, 2015, unless otherwise noted.

                § 922.110
                Boundary.
                The Cordell Bank National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 971 square nautical miles (1,286 square miles) 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 west-northwest of San Francisco, California. The precise boundary coordinates are listed in appendix A to this subpart. The northern boundary of the Sanctuary is a rhumb line that begins approximately 6 nautical miles (7 miles) west of Bodega Head in Sonoma County, California at Point 1 and extends west approximately 38 nautical miles (44 miles) to Point 2. This line is part of a shared boundary between the Sanctuary and Greater Farallones National Marine Sanctuary (GFNMS). The western boundary of the Sanctuary extends south from Point 2 approximately 34 nautical miles (39 miles) to Point 3. From Point 3 the Sanctuary boundary continues east 15 nautical miles (17 miles) to Point 4 where it intersects the GFNMS boundary again. The line from Point 3 to Point 4 forms the southernmost boundary of the Sanctuary. The eastern boundary of the Sanctuary is a series of straight lines connecting Points 4 through 20 in numerical sequence. The Sanctuary is coterminous with GFNMS along both its (the Sanctuary's) eastern and northern boundaries.
                [80 FR 13115, Mar. 12, 2015, as amended at 80 FR 34048, June 15, 2015]

                § 922.111
                Definitions.
                In addition to the definitions found in § 922.3, the following definitions apply to this subpart:

                  Clean means not containing detectable levels of harmful matter.

                  Cruise ship means a vessel with 250 or more passenger berths for hire.

                  Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to title 42 of the United States Code.

                  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.

                § 922.112
                Prohibited or otherwise regulated activities.
                (a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
                (1) Exploring for, developing, or producing oil, gas, or minerals.
                (2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:
                (A) Fish, fish parts, chumming materials, or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;

                (B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
                (C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
                (D) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;
                (E) Vessel engine or generator exhaust; or
                (F) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II marine sanitation device, and operating within the designated area [2015 expansion area] defined in appendix C of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use, and ammunition, pyrotechnics or other materials directly related to search and rescue and live ammunition training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix C of this subpart.
                (ii) Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator exhaust, clean bilge water, or anchor wash.
                (iii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except as listed in paragraphs (a)(2)(i) and (ii) of this section.
                (3) On or within the line representing the 50-fathom isobath surrounding Cordell Bank, removing, taking, or injuring or attempting to remove, take, or injure benthic invertebrates or algae located on Cordell Bank. This prohibition does not apply to use of bottom contact gear used during fishing activities, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). The coordinates for the line representing the 50-fathom isobath are listed in appendix B to this subpart, and the 50-fathom isobath is approximated by connecting these coordinates with straight line arcs in numerical sequence from Point 1 to Point 15. There is a rebuttable presumption that any such resource found in the possession of a person within the Sanctuary was taken or removed by that person.
                (4)(i) On or within the line representing the 50-fathom isobath surrounding Cordell Bank, drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing, or abandoning any structure, material or other matter on or in the submerged lands. This prohibition does not apply to use of bottom contact gear used during fishing activities, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). The coordinates for the line representing the 50-fathom isobath are listed in appendix B to this subpart, and the 50-fathom isobath is approximated by connecting these coordinates with straight line arcs in numerical sequence from Point 1 to Point 15.
                (ii) In the Sanctuary beyond the line representing the 50-fathom isobath surrounding Cordell Bank, drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing, or abandoning any structure, material or matter on the submerged lands except as incidental and necessary for anchoring any vessel or lawful use of any fishing gear during normal fishing activities. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart, and the 50-fathom isobath is approximated by connecting these coordinates with straight line arcs in numerical sequence from Point 1 to Point 15.

                (5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq.,
                  Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
                (6) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle or bird taken, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
                (7) Possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure, a Sanctuary historical resource.

                (8) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity.
                (9) Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
                (b) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property or the environment.
                (c) All activities being carried out by the Department of Defense (DOD) within the Sanctuary on the effective date of designation or expansion of the Sanctuary that are necessary for national defense are exempt from the prohibitions contained in the regulations in this subpart. Additional DOD activities initiated after the effective date of designation or expansion that are necessary for national defense will be exempted by the Director after consultation between the Department of Commerce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, are subject to all prohibitions contained in the regulations in this subpart.
                (d) 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 §§ 922.48 and 922.113 or a Special Use permit issued pursuant to section 310 of the Act.
                (e) Where necessary to prevent immediate, serious, and irreversible damage to a Sanctuary resource, any activity may be regulated within the limits of the Act on an emergency basis for no more than 120 days.
                [80 FR 13115, Mar. 12, 2015, as amended at 83 FR 55967, Nov. 9, 2018]

                § 922.113
                Permit procedures and issuance criteria.
                (a) A person may conduct an activity prohibited by § 922.112(a)(2) through (7), if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued under § 922.48 and this section.
                (b) The Director, at his or her discretion, may issue a national marine sanctuary permit under this section, subject to terms and conditions, as he or she deems appropriate, if the Director finds that the activity will:
                (1) Further research or monitoring related to Sanctuary resources and qualities;
                (2) Further the educational value of the Sanctuary;
                (3) Further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or
                (4) Assist in managing the Sanctuary.
                (c) In deciding whether to issue a permit, the Director shall consider such factors as:
                (1) The applicant is qualified to conduct and complete the proposed activity;
                (2) The applicant has adequate financial resources available to conduct and complete the proposed activity;
                (3) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;

                (4) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary or cumulative effects of the activity, and the duration of such effects;
                (5) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
                (6) It is necessary to conduct the proposed activity within the Sanctuary;
                (7) The reasonably expected end value of the proposed activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and
                (8) The Director may consider additional factors as he or she deems appropriate.
                (d) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950.
                (2) In addition to the information listed in § 922.48(b), all applications must include information to be considered by the Director in paragraph (b) and (c) of this section.
                (e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.

                Pt. 922, Subpt. K, App. A
                Appendix A to Subpart K of Part 922—Cordell Bank National Marine Sanctuary Boundary Coordinates
                Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).

                  Sanctuary Boundary Coordinates

                    PointID No.

                    Latitude
                    Longitude

                    1
                    38.29989
                    −123.20005

                    2
                    38.29989
                    −123.99988

                    3
                    37.76687
                    −123.75143

                    4
                    37.76687
                    −123.42694

                    5
                    37.83480
                    −123.42579

                    6
                    37.90464
                    −123.38958

                    7
                    37.95880
                    −123.32312

                    8
                    37.98947
                    −123.23615

                    9
                    37.99227
                    −123.14137

                    10
                    38.05202
                    −123.12827

                    11
                    38.06505
                    −123.11711

                    12
                    38.07898
                    −123.10924

                    13
                    38.09069
                    −123.10387

                    14
                    38.10215
                    −123.09804

                    15
                    38.12829
                    −123.08742

                    16
                    38.14072
                    −123.08237

                    17
                    38.16576
                    −123.09207

                    18
                    38.21001
                    −123.11913

                    19
                    38.26390
                    −123.18138

                    20
                    38.29989
                    −123.20005

                Pt. 922, Subpt. K, App. B
                Appendix B to Subpart K of Part 922—Line Representing the 50-Fathom Isobath Surrounding Cordell Bank
                Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).

                  Cordell Bank Fifty Fathom Line Coordinates

                    PointID No.

                    Latitude
                    Longitude

                    1
                    37.96034
                    −123.40371

                    2
                    37.96172
                    −123.42081

                    3
                    37.9911
                    −123.44379

                    4
                    38.00406
                    −123.46443

                    5
                    38.01637
                    −123.46076

                    6
                    38.04684
                    −123.47920

                    7
                    38.07106
                    −123.48754

                    8
                    38.07588
                    −123.47195

                    9
                    38.06451
                    −123.46146

                    10
                    38.07123
                    −123.44467

                    11
                    38.04446
                    −123.40286

                    12
                    38.01442
                    −123.38588

                    13
                    37.98859
                    −123.37533

                    14
                    37.97071
                    −123.38605

                    15
                    37.96034
                    −123.40371

                Pt. 922, Subpt. K, App. C
                Appendix C to Subpart K of Part 922—Designated Area for Certain United States Coast Guard Discharges
                Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).

                The portion of the Cordell Bank National Marine Sanctuary area [2015 expansion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1, identified in the coordinate table in this appendix, the boundary extends from Point 1 to Point 2 in a straight line arc and continues in numerical order through each subsequent point to Point 38. From Point 38 the boundary extends west along the northern boundary of Cordell Bank National Marine Sanctuary to Point 39 where it ends.

                    Point No.
                    Latitude
                    Longitude

                    1
                    38.29989
                    −123.99988

                    2
                    37.76687
                    −123.75143

                    3
                    37.76716
                    −123.42758

                    4
                    37.77033
                    −123.43466

                    5
                    37.78109
                    −123.44694

                    6
                    37.78383
                    −123.45466

                    7
                    37.79487
                    −123.46721

                    8
                    37.80094
                    −123.47313

                    9
                    37.81026
                    −123.46897

                    10
                    37.81365
                    −123.47906

                    11
                    37.82296
                    −123.49280

                    12
                    37.84988
                    −123.51749

                    13
                    37.86189
                    −123.52197

                    14
                    37.87637
                    −123.52192

                    15
                    37.88541
                    −123.52967

                    16
                    37.90725
                    −123.53937

                    17
                    37.92288
                    −123.54360

                    18
                    37.93858
                    −123.54701

                    19
                    37.94901
                    −123.54777

                    20
                    37.95528
                    −123.56199

                    21
                    37.96683
                    −123.57859

                    22
                    37.97761
                    −123.58746

                    23
                    37.98678
                    −123.59988

                    24
                    37.99847
                    −123.61331

                    25
                    38.01366
                    −123.62494

                    26
                    38.01987
                    −123.62450

                    27
                    38.02286
                    −123.61531

                    28
                    38.02419
                    −123.59864

                    29
                    38.03409
                    −123.59904

                    30
                    38.04614
                    −123.60611

                    31
                    38.05308
                    −123.60549

                    32
                    38.06188
                    −123.61546

                    33
                    38.07451
                    −123.62162

                    34
                    38.08289
                    −123.62065

                    35
                    38.11256
                    −123.63344

                    36
                    38.13219
                    −123.64265

                    37
                    38.26390
                    −123.18138

                    38
                    38.29989
                    −123.20005

                    39
                    38.29989
                    −123.99988

                [83 FR 55967, Nov. 9, 2018]

              Subpart L—Flower Garden Banks National Marine Sanctuary

                § 922.120
                Boundary.
                The Flower Garden Banks National Marine Sanctuary (the Sanctuary) consists of three separate areas of ocean waters over and surrounding the East and West Flower Garden Banks and Stetson Bank, and the submerged lands thereunder including the Banks, in the northwestern Gulf of Mexico. The area designated at the East Bank is located approximately 120 nautical miles (nmi) south-southwest of Cameron, Louisiana, and encompasses 19.20 nmi2. The area designated at the West Bank is located approximately 110 nmi southeast of Galveston, Texas, and encompasses 22.50 nmi2. The area designated at Stetson Bank is located approximately 70 nmi southeast of Galveston, Texas, and encompasses 0.64 nmi2. The three areas encompass a total of 42.34 nmi2 (145.09 square kilometers). The boundary coordinates for each area are listed in appendix A to this subpart.
                [65 FR 81178, Dec. 22, 2000]

                § 922.121
                Definitions.
                As used in this subpart:

                  Attract or attracting means the conduct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).

                  Clean means not containing detectable levels of harmful matter.

                  Disturb or disturbing a ray or whale shark means to, or attempt to touch, handle, ride, pursue, chase away, hunt, restrain, detain (no matter how temporarily), capture, collect, or conduct any other activity that disrupts or has the potential to disrupt any ray or whale shark in the Sanctuary by any means. Notwithstanding the above, the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers) is exempted from this definition.

                  Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended.

                  No-activity zone means the two geographic areas delineated by the Department of the Interior in stipulations for OCS lease sale 112 over and surrounding the East and West Flower Garden Banks, and the geographic area delineated by the Department of the Interior in stipulations for OCS lease sale 171 over and surrounding Stetson Bank, as areas in which activities associated with exploration for, development of, or production of hydrocarbons are prohibited. The precise aliquot part description of these areas around the East and West Flower Garden Banks are provided in appendix B of this subpart; the no-activity zone around Stetson Bank is defined as the 52 meter isobath. These particular aliquot part descriptions for the East and West Flower Garden Banks, and the 52 meter isobath around Stetson Bank, define the geographic scope of the “no-activity zones” for purposes of the regulations in this subpart. The descriptions for the East and West Flower Garden Banks no-activity zones are based on the “1/41/41/4” system formerly used by the Department of the Interior, a method that delineates a specific portion of a block rather than the actual underlying isobath.
                [77 FR 25068, Apr. 27, 2012]

                § 922.122
                Prohibited or otherwise regulated activities.
                (a) Except as specified in paragraphs (c) through (h) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
                (1) Exploring for, developing, or producing oil, gas, or minerals except outside of all no-activity zones and provided all drilling cuttings and drilling fluids are shunted to the seabed through a downpipe that terminates an appropriate distance, but no more than ten meters, from the seabed.
                (2)(i) Anchoring any vessel within the Sanctuary.
                (ii) Mooring any vessel within the Sanctuary, except that vessels 100 feet (30.48 meters) or less in registered length may moor to a Sanctuary mooring buoy.
                (iii) Mooring a vessel in the Sanctuary without clearly displaying the blue and white International Code flag “A” (“alpha” dive flag) or the red and white “sports diver” flag whenever a SCUBA diver from that vessel is in the water and removing the “alpha” dive flag or “sports diver” flag after all SCUBA divers exit the water and return back on board the vessel, consistent with U.S. Coast Guard guidelines relating to sports diving as contained within “Special Notice to Mariners” (00-208) for the Gulf of Mexico.
                (3)(i) Discharging or depositing from within or into the Sanctuary any material or other matter except:
                (A) Fish, fish parts, chumming materials, or bait used in or resulting from fishing with conventional hook and line gear in the Sanctuary, provided that such discharge or deposit occurs during the conduct of such fishing within the Sanctuary;
                (B) Clean effluent generated incidental to vessel use by an operable Type I or Type II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
                (C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
                (D) Engine exhaust;
                (E) In areas of the Sanctuary outside the no-activity zones, drilling cuttings and drilling fluids necessarily discharged incidental to the exploration for, development of, or production of oil or gas in those areas and in accordance with the shunting requirements of paragraph (a)(1) of this section unless such discharge injures a Sanctuary resource or quality.
                (ii) Discharging or depositing, from beyond the boundaries of the Sanctuary, any material or other matter, except those listed in paragraphs (a)(3)(i)(A) through (D) of this section, that subsequently enters the Sanctuary and injures a Sanctuary resource or quality.
                (4) Drilling into, dredging, or otherwise altering the seabed of the Sanctuary (except as allowed under paragraph (c) of this section); or constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary.
                (5) Injuring or removing, or attempting to injure or remove, any coral or other bottom formation, coralline algae or other plant, marine invertebrate, brine-seep biota, or carbonate rock within the Sanctuary.

                (6) Taking any marine mammal or turtle within the Sanctuary, except as permitted by regulations, as amended, promulgated under the Marine Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq.

                (7) Killing, injuring, attracting, touching, or disturbing a ray or whale shark in the Sanctuary. Notwithstanding the above, the incidental and unintentional injury to a ray or whale shark as a result of fishing with conventional hook and line gear is exempted from this prohibition.
                (8) Injuring, catching, harvesting, collecting, or feeding, or attempting to injure, catch, harvest, collect, or feed, any fish within the Sanctuary by use of bottom longlines, traps, nets, bottom trawls, or any other gear, device, equipment, or means except by use of conventional hook and line gear.
                (9) Possessing within the Sanctuary (regardless of where collected, caught, harvested or removed), except for valid law enforcement purposes, any carbonate rock, coral or other bottom formation, coralline algae or other plant, marine invertebrate, brine-seep biota, or fish (except for fish caught by use of conventional hook and line gear).
                (10) Possessing or using within the Sanctuary, except possessing while passing without interruption through it or for valid law enforcement purposes, any fishing gear, device, equipment or means except conventional hook and line gear.
                (11) Possessing, except for valid law enforcement purposes, or using explosives or releasing electrical charges within the Sanctuary.
                (b) If any valid regulation issued by any Federal authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director as more protective of Sanctuary resources and qualities shall govern.
                (c) The prohibitions in paragraphs (a)(2)(i), (a)(4), and (a)(11) of this section do not apply to necessary activities conducted in areas of the Sanctuary outside the no-activity zones and incidental to exploration for, development of, or production of oil or gas in those areas.
                (d) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to activities necessary to respond to emergencies threatening life, property, or the environment.
                (e)(1) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to activities being carried out by the Department of Defense as of the effective date of Sanctuary designation (January 18, 1994). Such activities shall be carried out in a manner that minimizes any adverse impact on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to any new activities carried out by the Department of Defense that do not have the potential for any significant adverse impacts on Sanctuary resources or qualities. Such activities shall be carried out in a manner that minimizes any adverse impact on Sanctuary resources and qualities. New activities with the potential for significant adverse impacts on Sanctuary resources or qualities may be exempted from the prohibitions in paragraphs (a)(2) through (11) of this section by the Director after consultation between the Director and the Department of Defense. If it is determined that an activity may be carried out, such activity shall be carried out in a manner that minimizes any adverse impact on Sanctuary resources and qualities.
                (2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings, caused by a component of the Department of Defense, the cognizant component shall promptly coordinate with the Director for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanctuary resource or quality.
                (f) The prohibitions in paragraphs (a)(2) through (11) 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 § 922.48 and § 922.123 or a Special Use permit issued pursuant to section 310 of the Act.

                (g) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to any activity authorized by any lease, permit, license, approval or other authorization issued after January 18, 1994, provided that the applicant complies with § 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities.
                (h) Notwithstanding paragraphs (f) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit under § 922.48 and § 922.123 or a Special Use permit under section 10 of the Act authorizing, or otherwise approve, the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone. Any leases, permits, approvals, or other authorizations authorizing the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone and issued after the January 18, 1994 shall be invalid.
                [77 FR 25069, Apr. 27, 2012]

                § 922.123
                Permit procedures and criteria.
                (a) A person may conduct an activity prohibited by § 922.122(a)(2) through (11) if conducted in accordance with the scope, purpose, terms, and conditions of a permit issued under this section and § 922.48.
                (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.
                (c) The Director, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.122(a)(2) through (11), if the Director finds that the activity will: Further research related to Sanctuary resources; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or assist in managing the Sanctuary. In deciding whether to issue a permit, the Director shall consider such factors as: The professional qualifications and financial ability of the applicant as related to the proposed activity; the duration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the activity. In addition, the Director may consider such other factors as he or she deems appropriate.
                (d) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.
                (e) The Director may, inter alia, make it a condition of any permit issued that any information obtained under the permit be made available to the public.
                (f) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress, or results of any activity authorized by the permit.
                [60 FR 66877, Dec. 27, 1995, as amended at 65 FR 81178, Dec. 22, 2000; 77 FR 25070, Apr. 27, 2012]

                Pt. 922, Subpt. L, App. A
                Appendix A to Subpart L of Part 922—Flower Garden Banks National Marine Sanctuary Boundary Coordinates
                This appendix contains a second set of boundary coordinates using the geographic positions of the North American Datum of 1983 (NAD 83). FGBNMS coordinates are now provided in both North American Datum of 1927 (NAD 27) and NAD 83.

                    Point
                    Latitude (N)
                    Longitude (W)

                      East Flower Garden Bank: (NAD 27)

                    E-1
                    27° 52′ 53.82718″
                    93° 37′ 41.30310″

                    E-2
                    27° 53′ 34.83434″
                    93° 38′ 23.35445″

                    E-3
                    27° 55′ 13.64286″
                    93° 38′ 40.34368″

                    E-4
                    27° 57′ 30.71927″
                    93° 38′ 33.26982″

                    E-5
                    27° 58′ 27.66896″
                    93° 37′ 46.12447″

                    E-6
                    27° 59′ 01.41554″
                    93° 35′ 31.74954″

                    E-7
                    27° 59′ 00.50888″
                    93° 35′ 09.69198″

                    E-8
                    27° 55′ 22.38258″
                    93° 34′ 14.79162″

                    E-9
                    27° 54′ 04.05605″
                    93° 34′ 18.88720″

                    E-10
                    27° 53′ 26.70972″
                    93° 35′ 05.00978″

                    E-11
                    27° 52′ 52.06998″
                    93° 36′ 57.23078″

                      West Flower Garden Bank: (NAD 27)

                    W-1
                    27° 49′ 10.16324″
                    93° 50′ 45.27154″

                    W-2
                    27° 50′ 12.35976″
                    93° 52′ 10.47158″

                    W-3
                    27° 51′ 12.82777″
                    93° 52′ 51.63488″

                    W-4
                    27° 51′ 32.41145″
                    93° 52′ 50.66983″

                    W-5
                    27° 52′ 49.88791″
                    93° 52′ 24.77053″

                    W-6
                    27° 55′ 00.93450″
                    93° 49′ 43.68090″

                    W-7
                    27° 54′ 58.33040″
                    93° 48′ 37.54501″

                    W-8
                    27° 54′ 35.26067″
                    93° 47′ 10.34866″

                    W-9
                    27° 54′ 14.80334″
                    93° 46′ 49.28963″

                    W-10
                    27° 53′ 35.63704″
                    93° 46′ 51.25825″

                    W-11
                    27° 52′ 57.34474″
                    93° 47′ 15.26428″

                    W-12
                    27° 50′ 40.26361″
                    93° 47′ 22.14179″

                    W-13
                    27° 49′ 10.89894″
                    93° 48′ 42.72307″

                      Stetson Bank: (NAD 27)

                    S-1
                    28° 09′ 30.06738″
                    94° 18′ 31.34461″

                    S-2
                    28° 10′ 09.24374″
                    94° 18′ 29.57042″

                    S-3
                    28° 10′ 06.88036″
                    94° 17′ 23.26201″

                    S-4
                    28° 09′ 27.70425″
                    94° 17′ 25.04315″

                      East Flower Garden Bank: (NAD 83)

                    E-1
                    27° 52′ 54.84288″
                    93° 37′ 41.84187″

                    E-2
                    27° 53′ 35.80428″
                    93° 38′ 23.89520″

                    E-3
                    27° 55′ 14.61048″
                    93° 38′ 40.88638″

                    E-4
                    27° 57′ 31.68349″
                    93° 38′ 33.81421″

                    E-5
                    27° 58′ 28.63153″
                    93° 37′ 46.66809″

                    E-6
                    27° 59′ 02.37658″
                    93° 35′ 32.28918″

                    E-7
                    27° 59′ 01.46983″
                    93° 35′ 10.23088″

                    E-8
                    27° 55′ 23.34849″
                    93° 34′ 15.32560″

                    E-9
                    27° 54′ 05.02387″
                    93° 34′ 19.42020″

                    E-10
                    27° 53′ 27.67871″
                    93° 35′ 05.54379″

                    E-11
                    27° 52′ 53.04047″
                    93° 36′ 57.76805″

                      West Flower Garden Bank: (NAD 83)

                    W-1
                    27° 49′ 11.14452″
                    93° 50′ 45.83401″

                    W-2
                    27° 50′ 13.34001″
                    93° 52′ 11.03791″

                    W-3
                    27° 51′ 13.80672″
                    93° 52′ 52.20349″

                    W-4
                    27° 51′ 33.38988″
                    93° 52′ 51.23867″

                    W-5
                    27° 52′ 50.86415″
                    93° 52′ 25.33954″

                    W-6
                    27° 55′ 01.90633″
                    93° 49′ 44.24605″

                    W-7
                    27° 54′ 59.30189″
                    93° 48′ 38.10780″

                    W-8
                    27° 54′ 36.23221″
                    93° 47′ 10.90806″

                    W-9
                    27° 54′ 15.77527″
                    93° 46′ 49.84801″

                    W-10
                    27° 53′ 36.60997″
                    93° 46′ 51.81616″

                    W-11
                    27° 52′ 58.31880″
                    93° 47′ 15.82251″

                    W-12
                    27° 50′ 41.24120″
                    93° 47′ 22.69837″

                    W-13
                    27° 49′ 11.87936″
                    93° 48′ 43.28125″

                      Stetson Bank: (NAD 83)

                    S-1
                    28° 09′ 31.02671″
                    94° 18′ 31.98164″

                    S-2
                    28° 10′ 10.20196″
                    94° 18′ 30.20776″

                    S-3
                    28° 10′ 07.83821″
                    94° 17′ 23.89688″

                    S-4
                    28° 09′ 28.66320″
                    94° 17′ 25.67770″

                [65 FR 81178, Dec. 22, 2000]

                Pt. 922, Subpt. L, App. B
                Appendix B to Subpart L of Part 922—Coordinates for the Department of the Interior Topographic Lease Stipulations for OCS Lease Sale 171
                Aliquot Part Description of Biological Stipulation Area East Garden Bank
                Block A-366 Texas Leasing Map No. 7C (High Island Area East Addition South Extension)
                SE1/4, SW1/4; S1/2, NE1/4, SE1/4; SE1/4, NW1/4, SE1/4; S1/2, SE1/4.
                Block A-376
                W1/2, NW1/4, SW1/4; SW1/4, SW1/4, SW1/4.
                Block A-374
                W1/2, NW1/4, NW1/4; W1/2, SW1/4, NW1/4; SE1/4, SW1/4, NW1/4; SW1/4,
                NE1/4, SW1/4, W1/2, SW1/4; W1/2, SE1/4, SW1/4; SE1/4, SE1/4, SW1/4.
                Block A-375
                E1/2; E1/2, NW1/4; E1/2, NW1/4, NW1/4; SW1/4, NW1/4, NW1/4; E1/2,
                SW1/4, NW1/4; NW1/4, SW1/4, NW1/4; SW1/4.
                Block A-388
                NE1/4; E1/2, NW1/4; E1/2, NW1/4, NW1/4; NE1/4, SW1/4, NW1/4; E1/2,
                NE1/4, SW1/4; NW1/4, NE1/4, SW1/4; NE1/4, NW1/4, SW1/4; NE1/4,
                SE1/4, SW1/4, NE1/4; NE1/4, NE1/4, SE1/4; W1/2, NE1/4, SE1/4; NW1/4,
                Block A-389
                NE1/4, NW1/4; NW1/4, NW1/4; SW1/4, NW1/4; NE1/4, SE1/4, NW1/4; W1/2,
                SE1/4, NW1/4; N1/2, NW1/4, SW1/4.
                Aliquot Part Description of Biological Stipulation Area West Garden Bank
                Block A-383 Texas Leasing Map No. 7C (High Island Area East Addition South Extension)
                E1/2, SE1/4, SE1/4; SW1/4, SE1/4, SE1/4.
                Block A-384
                W1/2, SW1/4, NE1/4; SE1/4, SW1/4, NE1/4; S1/2, SE1/4, NE1/4;
                SE1/4, NW1/4; E1/2, SW1/4; E1/2, NW1/4, SW1/4, SW1/4, NW1/4,

                SW1/4; SW1/4, SW1/4; SE1/4.

                Block A-385
                SW1/4, SW1/4, NW1/4; NW1/4, SW1/4; NW1/4, SW1/4, SW1/4.
                Block A-397
                W1/2, W1/2, NW1/4; W1/2, NW1/4, SW1/4; NW1/4; SW1/4, SW1/4.
                Block A-398
                Entire block.
                Block A-399
                E1/2, SE1/4, NE1/4, NW1/4; E1/2, SE1/4, NW1/4; E1/2, NE1/4, SW1/4;
                SW1/4, NE1/4, SW1/4; NE1/4, SE1/4, SW1/4.
                Block A-401
                NE1/4, NE1/4; N1/2, NW1/4, NE1/4; NE1/4, SE1/4, NE1/4.
                Block 134 Official Protraction Diagram NG15-02 (Garden Banks)
                That portion of the block north of a line connecting a point on the east boundary of Block 134, X = 1,378,080.00′, Y = 10,096,183.00′, with a point on the west boundary of Block 134, X = 1,367,079,385′, Y = 10,096,183.000′, defined under the Universal Transverse Mercator grid system.
                Block 135 Official Protraction Diagram NG15-02 (Garden Banks)
                That portion of the block northwest of a line connecting the southeast corner of Texas Leasing Map No. 7C, Block A-398, X = 1,383,293.840′, Y = 10,103,281.930′, with a point on the west boundary of Official Protraction Diagram NG15-02, Block 135, X = 1,378,080.000′, Y = 10,096,183.000′, defined under the Universal Transverse Mercator grid system.
                [65 FR 81180, Dec. 22, 2000]

              Subpart M—Monterey Bay National Marine Sanctuary

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

                § 922.130
                Boundary.
                The Monterey Bay National Marine Sanctuary (Sanctuary) consists of two separate areas. (a) The first area consists of an area of approximately 4016 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Greater Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in appendix A except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in appendix A to this subpart.
                (b) The Davidson Seamount Management Zone is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in appendix F to this subpart.
                [73 FR 70535, Nov. 20, 2008, as amended at 80 FR 34048, June 15, 2015]

                § 922.131
                Definitions.
                In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart:

                  Attract or attracting means the conduct of any activity that lures or may lure any animal by using food, bait, chum, dyes, decoys, acoustics, or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).

                  Clean means not containing detectable levels of harmful matter.

                  Cruise ship means a vessel with 250 or more passenger berths for hire.

                  Davidson Seamount Management Zone means the area bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, and consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in appendix F to this subpart.

                  Deserting means leaving a vessel aground or adrift without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification, after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts, or when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel's condition being reported to authorities; or leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner.

                  Federal Project means any water resources development project conducted by the U.S. Army Corps of Engineers or operating under a permit or other authorization issued by the Corps of Engineers and authorized by Federal law.

                  Hand tool means a hand-held implement, utilized for the collection of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36 inches in length and has no moving parts (e.g., dive knife, pry bar, or abalone iron). Pneumatic, mechanical, electrical, hydraulic, or explosive tools are, therefore, examples of what does not meet this definition.

                  Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4.

                  Introduced species means: Any species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.

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

                § 922.132
                Prohibited or otherwise regulated activities.
                (a) Except as specified in paragraphs (b) through (e) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:

                (1) Exploring for, developing, or producing oil, gas, or minerals within the Sanctuary, except: Jade may be collected (meaning removed) from the area bounded by the 35.92222 N latitude parallel (coastal reference point: Beach access stairway at south Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: Westernmost tip of Cape San Martin), and from the mean high tide line seaward to the 90-foot isobath (depth line) (the “authorized area”) provided that:
                (i) Only jade already loose from the submerged lands of the Sanctuary may be collected;
                (ii) No tool may be used to collect jade except:
                (A) A hand tool (as defined at 15 CFR 922.131) to maneuver or lift the jade or scratch the surface of a stone as necessary to determine if it is jade;
                (B) A lift bag or multiple lift bags with a combined lift capacity of no more than two hundred pounds; or
                (C) A vessel (except for motorized personal watercraft) (see paragraph (a)(7) of this section) to provide access to the authorized area;
                (iii) Each person may collect only what that person individually carries; and
                (iv) For any loose piece of jade that cannot be collected under paragraphs (a)(1) (ii) and (iii) of this section, any person may apply for a permit to collect such a loose piece by following the procedures in 15 CFR 922.133.
                (2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter, except:
                (A) Fish, fish parts, chumming materials, or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activities within the Sanctuary;
                (B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
                (C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
                (D) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;
                (E) Vessel engine or generator exhaust; or
                (F) Dredged material deposited at disposal sites authorized by the U.S. Environmental Protection Agency (EPA) (in consultation with the U.S. Army Corps of Engineers (COE)) prior to the effective date of Sanctuary designation (January 1, 1993), provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on January 1, 1993. Authorized disposal sites within the Sanctuary are described in appendix C to this subpart.
                (ii) Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator exhaust, clean bilge water, or anchor wash.
                (iii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraphs (a)(2)(i)(A) through (E) and (a)(2)(ii) of this section and dredged material deposited at the authorized disposal sites described in appendix D to this subpart, provided that the dredged material disposal is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval.
                (3) Possessing, moving, removing, or injuring, or attempting to possess, move, remove, or injure, a Sanctuary historical resource. This prohibition does not apply to, moving, removing, or injury resulting incidentally from kelp harvesting, aquaculture, or lawful fishing activities.

                (4) Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental and necessary to:
                (i) Conduct lawful fishing activities;
                (ii) Anchor a vessel;
                (iii) Conduct aquaculture or kelp harvesting;
                (iv) Install an authorized navigational aid;
                (v) Conduct harbor maintenance in an area necessarily associated with a Federal Project in existence on January 1, 1993, including dredging of entrance channels and repair, replacement, or rehabilitation of breakwaters and jetties;
                (vi) Construct, repair, replace, or rehabilitate a dock or pier; or
                (vii) Collect jade pursuant to paragraph (a)(1) of this section, provided that there is no constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, other than temporary placement of an authorized hand tool as provided in paragraph (a)(1) of this section. The exceptions listed in paragraphs (a)(4)(ii) through (a)(4)(vii) of this section do not apply within the Davidson Seamount Management Zone.

                (5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
                (6) Disturbing marine mammals or seabirds by flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart. Failure to maintain a minimum altitude of 1,000 feet above ground level above any such zone is presumed to disturb marine mammals or seabirds.
                (7) Operating motorized personal watercraft within the Sanctuary except within the five designated zones and access routes within the Sanctuary described in appendix E to this subpart. Zone Five (at Pillar Point) exists only when a High Surf Warning has been issued by the National Weather Service and is in effect for San Mateo County, and only during December, January, and February.
                (8) Possessing within the Sanctuary (regardless of where taken, moved, or removed from), any marine mammal, sea turtle, or bird, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
                (9) Deserting a vessel aground, at anchor, or adrift in the Sanctuary.
                (10) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary.
                (11)(i) Moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more that 3,000 feet below the sea surface within the Davidson Seamount Management Zone. This prohibition does not apply to fishing below 3000 feet within the Davidson Seamount Management Zone, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States).
                (ii) Possessing any Sanctuary resource the source of which is more than 3,000 feet below the sea surface within the Davidson Seamount Management Zone. This prohibition does not apply to possession of fish resulting from fishing below 3000 feet within the Davidson Seamount Management Zone, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States).

                (12) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity.
                (13) Attracting any white shark within the Sanctuary.

                (14) Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
                (b) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to an activity necessary to respond to an emergency threatening life, property, or the environment.
                (c)(1) All Department of Defense activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2) through (12) of this section do not apply to existing military activities carried out by the Department of Defense, as specifically identified in the Final Environmental Impact Statement and Management Plan for the Proposed Monterey Bay National Marine Sanctuary (NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.) For purposes of the Davidson Seamount Management Zone, these activities are listed in the 2008 Final Environmental Impact Statement. New activities may be exempted from the prohibitions in paragraphs (a)(2) through (12) of this section by the Director after consultation between the Director and the Department of Defense.
                (2) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, including but not limited to discharges, deposits, and groundings, caused by a Department of Defense activity, the Department of Defense, in coordination with the Director, must promptly prevent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner approved by the Director.
                (d) The prohibitions in paragraph (a)(1) of this section as it pertains to jade collection in the Sanctuary, and paragraphs (a)(2) through (11) and (a)(13) of this section, do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.133 or a Special Use permit issued pursuant to section 310 of the Act.
                (e) The prohibitions in paragraphs (a)(2) through (a)(8) of this section, and (a)(12) of this section regarding any introduced species of shellfish that NOAA and the State of California have determined is non-invasive and will not cause significant adverse effects to sanctuary resources or qualities, and that is cultivated in state waters as part of commercial shellfish aquaculture activities, do not apply to any activity authorized by any lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation (January 1, 1993) and issued by any Federal, State, or local authority of competent jurisdiction, provided that the applicant complies with 15 CFR 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date of Sanctuary designation.
                (f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a National Marine Sanctuary permit under 15 CFR 922.48 and 922.133 or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: the exploration for, development, or production of oil, gas, or minerals within the Sanctuary, except for the collection of jade pursuant to paragraph (a)(1) of this section; the discharge of primary-treated sewage within the Sanctuary (except by certification, pursuant to 15 CFR 922.47, of valid authorizations in existence on January 1, 1993 and issued by other authorities of competent jurisdiction); or the disposal of dredged material within the Sanctuary other than at sites authorized by EPA (in consultation with COE) prior to January 1, 1993. Any purported authorizations issued by other authorities within the Sanctuary shall be invalid.
                [73 FR 70535, Nov. 20, 2008, as amended at 75 FR 53571, Sept. 1, 2010; 77 FR 3922, Jan. 26, 2012; 80 FR 8786, Feb. 19, 2015]

                § 922.133
                Permit procedures and criteria.
                (a) A person may conduct an activity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanctuary, § 922.132(a)(2) through (11), and § 922.132(a)(13), if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under this section and 15 CFR 922.48.
                (b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanctuary, § 922.132(a)(2) through (11), and § 922.132(a)(13), if the Director finds that the activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities and:
                (1) Is research designed to further understanding of Sanctuary resources and qualities;
                (2) Will further the educational, natural, or historical value of the Sanctuary;
                (3) Will further salvage or recovery operations within or near the Sanctuary in connection with a recent air or marine casualty;
                (4) Will assist in managing the Sanctuary;
                (5) Will further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California; or
                (6) Will allow the removal, without the use of pneumatic, mechanical, electrical, hydraulic or explosive tools, of loose jade from the Jade Cove area under § 922.132(a)(1)(iv).
                (c) In deciding whether to issue a permit, the Director shall consider such factors as:
                (1) Will the activity be conducted by an applicant that is professionally qualified to conduct and complete the activity;
                (2) Will the activity be conducted by an applicant with adequate financial resources available to conduct and complete the activity;
                (3) Is the activity proposed for no longer than necessary to achieve its stated purpose;
                (4) Must the activity be conducted within the Sanctuary;
                (5) Will the activity be conducted using methods and procedures that are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
                (6) Will the activity be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects;
                (7) Will the activity be conducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of educational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such effects; and
                (8) Does the reasonably expected end value of the activity to the furtherance of the Sanctuary goals and objectives outweigh any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity.
                (d) For jade collection, preference will be given for applications proposing to collect loose pieces of jade for research or educational purposes.
                (e) The Director may consider such other factors as he or she deems appropriate.
                (f) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.
                (2) In addition to the information listed in 15 CFR 922.48(b), all applications must include information the Director needs to make the findings in paragraph (b) of this section and information to be considered by the Director pursuant to paragraph (c) of this section.

                (g) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.

                § 922.134
                Review of certain State permits and leases.
                (a)(1) NOAA has described in a Memorandum of Agreement (MOA) with the State of California how NOAA will coordinate review of any introduction of non-invasive introduced species from a proposed shellfish aquaculture project when considering an authorization under § 922.132(e).
                (2) The MOA specifies how the process of 15 CFR 922.49 will be administered within State waters within the sanctuary in coordination with State permit and lease programs as administered by the California Fish and Game Commission, the Department of Fish and Wildlife and the California Coastal Commission.
                (b)(1) NOAA has entered into a Memorandum of Agreement (MOA) with the State of California, EPA, and the Association of Monterey Bay Area Governments regarding the Sanctuary regulations relating to water quality within State waters within the Sanctuary.
                With regard to permits, the MOA encompasses:
                (i) National Pollutant Discharge Elimination System (NPDES) permits issued by the State of California under section 13377 of the California Water Code; and
                (ii) Waste Discharge Requirements issued by the State of California under section 13263 of the California Water Code.
                (2) The MOA specifies how the process of 15 CFR 922.49 will be administered within State waters within the Sanctuary in coordination with the State permit program.
                [73 FR 70535, Nov. 20, 2008, as amended at 80 FR 8787, Feb. 19, 2015]

                Pt. 922, Subpt. M, App. A
                Appendix A to Subpart M of Part 922—Monterey Bay National Marine Sanctuary Boundary Coordinates
                Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.

                    Point ID No.
                    Latitude
                    Longitude

                      Seaward Boundary

                    1
                    37.88225
                    −122.62753

                    2
                    37.66641
                    −122.75105

                    3
                    37.61622
                    −122.76937

                    4
                    37.57147
                    −122.80399

                    5
                    37.52988
                    −122.85988

                    6
                    37.50948
                    −122.90614

                    7
                    37.49418
                    −123.00770

                    8
                    37.50819
                    −123.09617

                    9
                    37.52001
                    −123.12879

                    10
                    37.45304
                    −123.14009

                    11
                    37.34316
                    −123.13170

                    12
                    37.23062
                    −123.10431

                    13
                    37.13021
                    −123.02864

                    14
                    37.06295
                    −122.91261

                    15
                    37.03509
                    −122.77639

                    16
                    36.92155
                    −122.80595

                    17
                    36.80632
                    −122.81564

                    18
                    36.69192
                    −122.80539

                    19
                    36.57938
                    −122.77416

                    20
                    36.47338
                    −122.72568

                    21
                    36.37242
                    −122.65789

                    22
                    36.27887
                    −122.57410

                    23
                    36.19571
                    −122.47699

                    24
                    36.12414
                    −122.36527

                    25
                    36.06864
                    −122.24438

                    26
                    36.02451
                    −122.11672

                    27
                    35.99596
                    −121.98232

                    28
                    35.98309
                    −121.84069

                    29
                    35.98157
                    −121.75634

                    30
                    35.92933
                    −121.71119

                    31
                    35.83773
                    −121.71922

                    32
                    35.72063
                    −121.71216

                    33
                    35.59497
                    −121.69030

                    34
                    35.55327
                    −121.63048

                    35
                    35.55483
                    −121.10399

                    36
                    37.59421
                    −122.52001

                    37
                    37.61367
                    −122.61673

                    38
                    37.76694
                    −122.65011

                    39
                    37.81777
                    −122.53008

                      Harbor Exclusions

                    40
                    37.49414
                    −122.48483

                    41
                    37.49540
                    −122.48576

                    42
                    36.96082
                    −122.00175

                    43
                    36.96143
                    −122.00112

                    44
                    36.80684
                    −121.79145

                    45
                    36.80133
                    −121.79047

                    46
                    36.60837
                    −121.88970

                    47
                    36.60580
                    −121.88965

                [75 FR 53571, Sept. 1, 2010]

                Pt. 922, Subpt. M, App. B
                Appendix B to Subpart M of Part 922—Zones Within the Sanctuary Where Overflights Below 1000 Feet Are Prohibited
                The four zones are:
                (1) From mean high water to 3 nautical miles (nmi) offshore between a line extending from Point Santa Cruz on a southwesterly bearing of 220° true and a line extending from 2.0 nmi north of Pescadero Point on a southwesterly bearing of 240° true;

                (2) From mean high water to 3 nmi offshore between a line extending from the Carmel River mouth on a westerly bearing of 270° true and a line extending due west along latitude parallel 35.55488 N off of Cambria;
                (3) From mean high water and within a 5 nmi seaward arc drawn from a center point of 36.80129 N, 121.79034 W (the end of the Moss Landing ocean pier as it appeared on the most current NOAA nautical charts as of January 1, 1993); and
                (4) Over the Sanctuary's jurisdictional waters of Elkhorn Slough east of the Highway One bridge to Elkhorn Road.
                [75 FR 53571, Sept. 1, 2010]

                Pt. 922, Subpt. M, App. C
                Appendix C to Subpart M of Part 922—Dredged Material Disposal Sites Within the Sanctuary
                [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]

                    Point ID No.
                    Latitude
                    Longitude

                      Santa Cruz Harbor/Twin Lakes Dredge Disposal Site

                    1
                    36.9625
                    −122.00056

                    2
                    36.9625
                    −121.99861

                    3
                    36.96139
                    −121.99833

                    4
                    36.96139
                    −122.00083

                      SF-12 Dredge Disposal Site

                    1
                    36.80207
                    −121.79207

                    2
                    36.80157
                    −121.79218

                    3
                    36.80172
                    −121.79325

                    4
                    36.80243
                    −121.79295

                      SF-14 Dredge Disposal Site

                    (circle with 500 yard radius)

                    1
                    36.79799
                    −121.81907

                      Monterey Harbor/Wharf II Dredge Disposal Site

                    1
                    36.60297
                    −121.88942

                    2
                    36.60283
                    −121.88787

                    3
                    36.60092
                    −121.88827

                    4
                    36.60120
                    −121.88978

                Pt. 922, Subpt. M, App. D
                Appendix D to Subpart M of Part 922—Dredged Material Disposal Sites Adjacent to the Monterey Bay National Marine Sanctuary
                [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
                As of January 1, 1993, the U.S. Army Corps of Engineers operates the following dredged material disposal site adjacent to the Sanctuary off of the Golden Gate:

                    Point ID No.
                    Latitude
                    Longitude

                    1
                    37.76458
                    −122.56900

                    2
                    37.74963
                    −122.62281

                    3
                    37.74152
                    −122.61932

                    4
                    37.75677
                    −122.56482

                    5
                    37.76458
                    −122.56900

                Pt. 922, Subpt. M, App. E
                Appendix E to Subpart M of Part 922—Motorized Personal Watercraft Zones and Access Routes Within the Sanctuary
                [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
                The five zones and access routes are:
                (1) The approximately one [1.0] nmi2 area off Pillar Point Harbor from harbor launch ramps, through the harbor entrance to the northern boundary of Zone One:

                    Point ID No.
                    Latitude
                    Longitude

                    1 (flashing 5-second breakwater entrance light and horn located at the seaward end of the outer west breakwater)
                    37.49395
                    −122.48477

                    2 (bell buoy)
                    37.48167
                    −122.48333

                    3
                    37.48000
                    −122.46667

                    4
                    37.49333
                    −122.46667

                (2) The approximately five [5.0] nmi2 area off of Santa Cruz Small Craft Harbor from harbor launch ramps, through the harbor entrance, and then along a 100-yard wide access route southwest along a bearing of approximately 196° true (180° magnetic) to the red and white whistle buoy at 36.93833 N, 122.01000 W. Zone Two is bounded by:

                    Point ID No.
                    Latitude
                    Longitude

                    1
                    36.91667
                    −122.03333

                    2
                    36.91667
                    −121.96667

                    3
                    36.94167
                    −121.96667

                    4
                    36.94167
                    −122.03333

                (3) The approximately six [6.0] nmi2 area off of Moss Landing Harbor from harbor launch ramps, through harbor entrance, and then along a 100-yard wide access route southwest along a bearing of approximately 230° true (215° magnetic) to the red and white bell buoy at the eastern boundary of Zone Three bounded by:

                    Point ID No.
                    Latitude
                    Longitude

                    1
                    36.83333
                    −121.82167

                    2
                    36.83333
                    −121.84667

                    3
                    36.77833
                    −121.84667

                    4
                    36.77833
                    −121.81667

                    5 (red and white bell buoy)
                    36.79833
                    −121.80167

                    6
                    36.81500
                    −121.80333

                (4) The approximately five [5.0] nmi2 area off of Monterey Harbor from harbor launch ramps to the seaward end of the U.S. Coast Guard Pier, and then along a 100-yard wide access route northeast along a bearing of approximately 15° true (0° magnetic) to the southern boundary of Zone Four bounded by:

                    Point ID No.
                    Latitude
                    Longitude

                    1
                    36.64500
                    −121.92333

                    2
                    36.61500
                    −121.87500

                    3
                    36.63833
                    −121.85500

                    4
                    36.66667
                    −121.90667

                (5) The approximately one-tenth [0.10] nmi2 area near Pillar Point from the Pillar Point Harbor entrance along a 100-yard wide access route southeast along a bearing of approximately 174° true (159° magnetic) to the green bell buoy (identified as “Buoy 3”) at 37.48154 N, 122.48156 W and then along a 100-yard wide access route northwest along a bearing of approximately 284° true (269° magnetic) to the green gong buoy (identified as “Buoy 1”) at 37.48625 N, 122.50603 W, the southwest boundary of Zone Five. Zone Five exists only when a High Surf Warning has been issued by the National Weather Service and is in effect for San Mateo County and only during December, January, and February. Zone Five is bounded by:

                    Point ID No.
                    Latitude
                    Longitude

                    1 (gong buoy identified as “Buoy 1”)
                    37.48625
                    −122.50603

                    2
                    37.49305
                    −122.50603

                    3 (Sail Rock)
                    37.49305
                    −122.50105

                    4
                    37.48625
                    −122.50105

                [75 FR 53571, Sept. 1, 2010]

                Pt. 922, Subpt. M, App. F
                Appendix F to Subpart M of Part 922—Davidson Seamount Management Zone
                [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]

                    Point ID No.
                    Latitude
                    Longitude

                    1
                    35.90000
                    −123.00000

                    2
                    35.90000
                    −122.50000

                    3
                    35.50000
                    −122.50000

                    4
                    35.50000
                    −123.00000

              Subpart N—Stellwagen Bank National Marine Sanctuary

                § 922.140
                Boundary.
                (a) The Stellwagen Bank National Marine Sanctuary (Sanctuary) consists of an area of approximately 638 square nautical miles (NM) of Federal marine waters and the submerged lands thereunder, over and around Stellwagen Bank and other submerged features off the coast of Massachusetts. The boundary encompasses the entirety of Stellwagen Bank; Tillies Bank, to the northeast of Stellwagen Bank; and portions of Jeffreys Ledge, to the north of Stellwagen Bank.
                (b) The Sanctuary boundary is identified by the following coordinates, indicating the most northeast, southeast, southwest, west-northwest, and north-northwest points: 42°45′59.83″ N×70°13′01.77″ W (NE); 42°05′35.51″ N×70°02′08.14″ W (SE); 42°07′44.89″ W×70°28′15.44″ W (SW); 42°32′53.52″ N×70°35′52.38″ W (WNW); and 42°39′04.08″ N×70°30′11.29″ W (NNW). The western border is formed by a straight line connecting the most southwest and the west-northwest points of the Sanctuary. At the most west-northwest point, the Sanctuary border follows a line contiguous with the three-mile jurisdictional boundary of Massachusetts to the most north-northwest point. From this point, the northern border is formed by a straight line connecting the most north-northwest point and the most northeast point. The eastern border is formed by a straight line connecting the most northeast and the most southeast points of the Sanctuary. The southern border follows a straight line between the most southwest point and a point located at 42°06′54.57″ N × 70°16′42.7″ W. From that point, the southern border then continues in a west-to-east direction along a line contiguous with the three-mile jurisdictional boundary of Massachusetts until reaching the most southeast point of the Sanctuary. The boundary coordinates are listed in appendix A to this subpart.

                § 922.141
                Definitions.
                In addition to those definitions found at § 922.3, the following definitions apply to this subpart:

                  Industrial material means mineral, as defined in § 922.3.

                  Traditional fishing means those commercial or recreational fishing methods which have been conducted in the past within the Sanctuary.

                § 922.142
                Prohibited or otherwise regulated activities.
                (a) Except as specified in paragraphs (b) through (f) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
                (1)(i) Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter except:
                (A) Fish, fish parts, chumming materials or bait used in or resulting from traditional fishing operations in the Sanctuary;

                (B) Biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 et seq.;

                (C) Water generated by routine vessel operations (e.g., cooling water, deck wash down and graywater as defined by section 312 of the FWPCA) excluding oily wastes from bilge pumping; or
                (D) Engine exhaust.
                (ii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except those listed in paragraphs (a)(1)(i) (A) through (D) of this section, that subsequently enters the Sanctuary and injures a Sanctuary resource or quality.
                (2) Exploring for, developing or producing industrial materials within the Sanctuary.
                (3) Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary, except as an incidental result of:
                (i) Anchoring vessels;
                (ii) Traditional fishing operations; or
                (iii) Installation of navigation aids.
                (4) Moving, removing or injuring, or attempting to move, remove or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing or injury resulting incidentally from traditional fishing operations.

                (5) Taking any marine reptile, marine mammal or seabird in or above the Sanctuary, except as permitted by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq.

                (6) Lightering in the Sanctuary.
                (7) Possessing within the Sanctuary (regardless of where taken, moved or removed from), except as necessary for valid law enforcement purposes, any historical resource, or any marine mammal, marine reptile or seabird taken in violation of the MMPA, ESA or MBTA.
                (8) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
                (b) The prohibitions in paragraphs (a) (1), and (3) through (8) of this section do not apply to any activity necessary to respond to an emergency threatening life, property or the environment.
                (c)(1)(i) All Department of Defense military activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities.
                (ii) Department of Defense military activities may be exempted from the prohibitions in paragraphs (a) (1) and (3) through (7) of this section by the Director after consultation between the Director and the Department of Defense.
                (iii) If it is determined that an activity may be carried out, such activity shall be carried out in a manner that avoids to the maximum extent practicable any advance impact on Sanctuary resources and qualities. Civil engineering and other civil works projects conducted by the U.S. Army Corps of Engineers are excluded from the scope of this paragraph(c).

                (2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings caused by the Department of Defense, the Department of Defense shall promptly coordinate with the Director for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanctuary resource or quality.
                (d) The prohibitions in paragraphs (a) (1) and (3) through (7) of this section do not apply to any activity executed in accordance with the scope, purpose, terms and conditions of a National Marine Sanctuary permit issued pursuant to § 922.48 and § 922.143 or a Special Use permit issued pursuant to section 310 of the Act.
                (e) The prohibitions in paragraphs (a)(1) and (3) through (7) of this section do not apply any activity authorized by any lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designation (November 4, 1992) and issued by any Federal, State or local authority of competent jurisdiction, provided that the applicant complies with § 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date.
                (f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a permit under § 922.48 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 § 922.47, of valid authorizations in existence on November 4, 1992) and any leases, licenses, permits, approvals or other authorizations authorizing the exploration for, development or production of industrial materials in the Sanctuary issued by other authorities after November 4, 1992, shall be invalid.

                § 922.143
                Permit procedures and criteria.
                (a) A person may conduct an activity prohibited by § 922.142 (a) (1) and (3) through (7) if conducted in accordance with scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48.
                (b) Applications for such permits should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Manager, Stellwagen Bank National Marine Sanctuary, 14 Union Street, Plymouth, MA 02360.
                (c) The Director, at his or her discretion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.142(a) (1) and (3) through (7), if the Director finds that the activity will have only negligible short-term adverse effects on Sanctuary resources and qualities and will: further research related to Sanctuary resources and qualities; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or assist in managing the Sanctuary. In deciding whether to issue a permit, the Director may consider such factors as: the professional qualifications and financial ability of the applicant as related to the proposed activity; the duration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the activity. In addition, the Director may consider such other factors as he or she deems appropriate.
                (d) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.
                (e) The Director may, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public.
                (f) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit.

                Pt. 922, Subpt. N, App. A
                Appendix A to Subpart N of Part 922—Stellwagen Bank National Marine Sanctuary Boundary Coordinates

                  [Appendix Based on North American Datum of 1927]

                    Pt.
                    Latitude
                    Longitude
                    Loran
                    9960W
                    9960X

                    E1
                    42°45′59.83″
                    70°13′01.77″
                    13,607.19
                    25,728.57

                    E2
                    42°05′35.51″
                    70°02′08.14″
                    13,753.39
                    25,401.78

                    E3
                    42°06′8.25″
                    70°03′17.55″
                    13,756.72
                    25,412.46

                    E4
                    42°06′2.53″
                    70°04′03.36″
                    13,760.30
                    25,417.53

                    E5
                    42°07′02.70″
                    70°05′13.61″
                    13,764.52
                    25,427.27

                    E6
                    42°07′13.0″
                    70°06′23.75″
                    13,770.54
                    25,434.45

                    E7
                    42°07′35.95″
                    70°07′27.89″
                    13,775.08
                    25,442.51

                    E8
                    42°07′42.33″
                    70°08′26.07″
                    13,780.35
                    25,448.27

                    E9
                    42°07′59.94″
                    70°09′19.78″
                    13,784.24
                    25,455.02

                    E10
                    42°08′04.95″
                    70°10′24.40″
                    13,790.27
                    25,461.28

                    E11
                    42°07′55.19″
                    70°11′47.67″
                    13,799.38
                    25,467.56

                    E12
                    42°07′59.84″
                    70°13′03.35″
                    13,806.58
                    25,474.95

                    E13
                    42°07′46.55″
                    70°14′21.91″
                    13,815.52
                    25,480.62

                    E14
                    42°07′27.29″
                    70°15′22.95″
                    13,823.21
                    25,484.05

                    E15
                    42°06′54.57″
                    70°16′42.71″
                    13,833.88
                    25,487.79

                    E16
                    42°07′44.89″
                    70°28′15.44″
                    13,900.14
                    25,563.22

                    E17
                    42°32′53.52″
                    70°35′52.38″
                    13,821.60
                    25,773.51

                    E18
                    42°33′30.24″
                    70°35′14.96″
                    13,814.43
                    25,773.54

                    E19
                    42°33′48.14″
                    70°35′03.81″
                    13,811.68
                    25,774.28

                    E20
                    42°34′30.45″
                    70°34′22.98″
                    13,803.64
                    25,774.59

                    E21
                    42°34′50.37″
                    70°33′21.93″
                    13,795.43
                    25,770.55

                    E22
                    42°35′16.08″
                    70°32′32.29″
                    13,787.92
                    25,768.31

                    E23
                    42°35′41.80″
                    70°31′44.20″
                    13,780.57
                    25,766.25

                    E24
                    42°36′23.08″
                    70°30′58.98″
                    13,772.14
                    25,766.14

                    E25
                    42°37′15.51″
                    70°30′23.01″
                    13,763.69
                    25,768.12

                    E26
                    42°37′58.88″
                    70°30′06.60″
                    13,758.09
                    25,771.07

                    E27
                    42°38′32.46″
                    70°30′06.54″
                    13,755.07
                    25,774.58

                    E28
                    42°39′04.08″
                    70°30′11.29″
                    13,752.75
                    25,778.35

              Subpart O—Olympic Coast National Marine Sanctuary

                § 922.150
                Boundary.
                (a) The Olympic Coast National Marine Sanctuary (Sanctuary) consists of an area of approximately 2,408 square nautical miles (nmi) of coastal and ocean waters, and the submerged lands thereunder, off the central and northern coast of the State of Washington.
                (b) The Sanctuary boundary extends from Koitlah Point due north to the United States/Canada international boundary. The Sanctuary boundary then follows the U.S./Canada international boundary seaward to the 100 fathom isobath. The seaward boundary of the Sanctuary approximates the 100 fathom isobath in a southerly direction from the U.S./Canada international boundary to a point due west of the mouth of the Copalis River cutting across the heads of Nitnat, Juan de Fuca and Quinault Canyons. The coastal boundary of the Sanctuary is the mean higher high water line when adjacent to Federally managed lands cutting across the mouths of all rivers and streams, except where adjacent to Indian reservations, State and county owned lands; in such case, the coastal boundary is the mean lower low water line. La Push harbor is excluded from the Sanctuary boundary shoreward of the International Collision at Sea regulation (Colreg.) demarcation lines. The boundary coordinates are listed in appendix A to this subpart.
                [60 FR 66877, Dec. 27, 1995, as amended at 76 FR 67360, Nov. 1, 2011]

                § 922.151
                Definitions.
                In addition to those definitions found at § 922.3, the following definitions apply to this subpart:

                  Clean means not containing detectable levels of harmful matter.

                  Cruise ship means a vessel with 250 or more passenger berths for hire.

                  Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4.

                  Indian reservation means a tract of land set aside by the Federal Government for use by a federally recognized American Indian tribe and includes, but is not limited to, the Makah, Quileute, Hoh, and Quinault Reservations.

                  Lawful fishing means fishing authorized by a tribal, State or Federal entity with jurisdiction over the activity.

                  Treaty means a formal agreement between the United States Government and an Indian tribe.
                [76 FR 67360, Nov. 1, 2011]

                § 922.152
                Prohibited or otherwise regulated activities.
                (a) Except as specified in paragraphs (b) through (g) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
                (1) Exploring for, developing or producing oil, gas or minerals within the Sanctuary.
                (2)(i) Discharging or depositing, from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:
                (A) Fish, fish parts, chumming materials or bait used in or resulting from lawful fishing operations in the Sanctuary;

                (B) Biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 et seq.;

                (C) Water generated by routine vessel operations (e.g., cooling water, deck wash down, and graywater as defined by section 312 of the FWPCA) excluding oily wastes from bilge pumping;
                (D) Engine exhaust; or
                (E) Dredge spoil in connection with beach nourishment projects related to the Quillayute River Navigation Project.
                (ii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except those listed in paragraphs (a)(2)(i)(A) through (E) of this section, that subsequently enters the Sanctuary and injures a Sanctuary resource or quality.
                (3) Discharging or depositing, from within or into the Sanctuary, any materials or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, engine exhaust, or anchor wash.
                (4) Moving, removing or injuring, or attempting to move, remove or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing or injury resulting incidentally from lawful fishing operations.
                (5) Drilling into, dredging or otherwise altering the submerged lands 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:
                (i) Anchoring vessels;
                (ii) Lawful fishing operations;
                (iii) Installation of navigation aids;
                (iv) Harbor maintenance in the areas necessarily associated with the Quillayute River Navigation Project, including dredging of entrance channels and repair, replacement or rehabilitation of breakwaters and jetties, and related beach nourishment;
                (v) Construction, repair, replacement or rehabilitation of boat launches, docks or piers, and associated breakwaters and jetties; or
                (vi) Beach nourishment projects related to harbor maintenance activities.

                (6) Taking any marine mammal, sea turtle or seabird in or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any Indian treaty with an Indian tribe to which the United States is a party, provided that the Indian treaty right is exercised in accordance with the MMPA, ESA, and MBTA, to the extent that they apply.
                (7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 2,000 feet over the waters within one nautical mile of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuges or within one nautical mile seaward from the coastal boundary of the Sanctuary, except for activities related to tribal timber operations conducted on reservation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian tribe. Failure to maintain a minimum altitude of 2,000 feet above ground level over any such waters is presumed to disturb marine mammals or seabirds.

                (8) Possessing within the Sanctuary (regardless of where taken, moved or removed from) any historical resource, or any marine mammal, sea turtle, or seabird taken in violation of the MMPA, ESA, or MBTA, to the extent that they apply.

                (9) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
                (b) The prohibitions in paragraph (a)(2) through (5), (7), and (8) of this section do not apply to activities necessary to respond to emergencies threatening life, property, or the environment.
                (c) The prohibitions in paragraphs (a)(2) through (5), (7), and (8) of this section do not apply to activities necessary for valid law enforcement purposes.
                (d)(1) All Department of Defense military activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities.
                (i) Except as provided in paragraph (d)(2) of this section, the prohibitions in paragraphs (a)(2) through (8) of this section do not apply to the following military activities performed by the Department of Defense in W-237A, W-237B, and Military Operating Areas Olympic A and B in the Sanctuary:
                (A) Hull integrity tests and other deep water tests;
                (B) Live firing of guns, missiles, torpedoes, and chaff;
                (C) Activities associated with the Quinault Range including the in-water testing of non-explosive torpedoes; and
                (D) Anti-submarine warfare operations.
                (ii) New activities may be exempted from the prohibitions in paragraphs (a)(2) through (8) of this section by the Director after consultation between the Director and the Department of Defense. If it is determined that an activity may be carried out such activity shall be carried out in a manner that avoids to the maximum extent practicable any adverse impact on Sanctuary resources and qualities. Civil engineering and other civil works projects conducted by the U.S. Army Corps of Engineers are excluded from the scope of this paragraph (d).
                (2) The Department of Defense is prohibited from conducting bombing activities within the Sanctuary.
                (3) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings caused by the Department of Defense, the Department of Defense shall promptly coordinate with the Director for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanctuary resource or quality.
                (e) The prohibitions in paragraphs (a)(2) through (8) 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 §§ 922.48 and 922.153 or a Special Use permit issued pursuant to section 310 of the Act.
                (f) Members of a federally recognized Indian tribe may exercise aboriginal and treaty-secured rights, subject to the requirements of other applicable law, without regard to the requirements of this part. The Director may consult with the governing body of a tribe regarding ways the tribe may exercise such rights consistent with the purposes of the Sanctuary.
                (g) The prohibitions in paragraphs (a)(2) through (8) of this section do not apply to any activity authorized by any lease, permit, license, or other authorization issued after July 22, 1994, and issued by any Federal, State or local authority of competent jurisdiction, provided that the applicant complies with § 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date.

                (h) Notwithstanding paragraphs (e) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit under §§ 922.48 and 922.153 or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: The exploration for, development or production of oil, gas or minerals within the Sanctuary; the discharge of primary-treated sewage within the Sanctuary; 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.
                [76 FR 67360, Nov. 1, 2011, as amended at 77 FR 3922, Jan. 26, 2012]

                § 922.153
                Permit procedures and criteria
                (a) A person may conduct an activity prohibited by paragraphs (a)(2) through (8) of § 922.152 if conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and § 922.48.
                (b) Applications for such permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Olympic Coast National Marine Sanctuary, 115 East Railroad Avenue, Suite 301, Port Angeles, WA 98362-2925.
                (c) The Director, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by paragraphs (a)(2) through (8) of § 922.152, if the Director finds that the activity will not substantially injure Sanctuary resources and qualities and will: Further research related to Sanctuary resources and qualities; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; assist in managing the Sanctuary; further salvage or recovery operations in connections with an abandoned shipwreck in the Sanctuary title to which is held by the State of Washington; or be issued to an American Indian tribe adjacent to the Sanctuary, and/or its designee as certified by the governing body of the tribe, to promote or enhance tribal self-determination, tribal government functions, the exercise of treaty rights, the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of tribal members. For the purpose of this part, American Indian tribes adjacent to the sanctuary mean the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. In deciding whether to issue a permit, the Director may consider such factors as: The professional qualifications and financial ability of the applicant as related to the proposed activity; the duration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; the end value of the activity; and the impacts of the activity on adjacent American Indian tribes. Where the issuance or denial of a permit is requested by the governing body of an American Indian tribe, the Director shall consider and protect the interests of the tribe to the fullest extent practicable in keeping with the purposes of the Sanctuary and his or her fiduciary duties to the tribe. The Director may also deny a permit application pursuant to this section, in whole or in part, if it is determined that the permittee or applicant has acted in violation of the terms or conditions of a permit or of these regulations. In addition, the Director may consider such other factors as he or she deems appropriate.
                (d) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.
                (e) The Director may, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public.
                (f) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit.

                (g) The Director shall obtain the express written consent of the governing body of an Indian tribe prior to issuing a permit, if the proposed activity involves or affects resources of cultural or historical significance to the tribe.
                (h) Removal, or attempted removal of any Indian cultural resource or artifact may only occur with the express written consent of the governing body of the tribe or tribes to which such resource or artifact pertains, and certification by the Director that such activities occur in a manner that minimizes damage to the biological and archeological resources. Prior to permitting entry onto a significant cultural site designated by a tribal governing body, the Director shall require the express written consent of the governing body of the tribe or tribes to which such cultural site pertains.
                [80 FR 11112, Mar. 2, 2015]

                § 922.154
                Consultation with the State of Washington, affected Indian tribes, and adjacent county governments.
                (a) The Director shall regularly consult with the State of Washington, the governing bodies of tribes with reservations adjacent to the Sanctuary, and adjacent county governments regarding areas of mutual concern, including Sanctuary programs, permitting, activities, development, and threats to Sanctuary resources.
                (b) The Director shall, when requested by such governments, enter into a memorandum of understanding regarding such consultations.

                Pt. 922, Subpt. O, App. A
                Appendix A to Subpart O of Part 922—Olympic Coast National Marine Sanctuary Boundary Coordinates

                  [Based on North American Datum of 1983]

                    Point
                    Latitude
                    Longitude

                    1
                    47°07′45″
                    124°11′02″

                    2
                    47°07′45″
                    124°58′12″

                    3
                    47°35′05″
                    125°00′00″

                    4
                    47°40′05″
                    125°04′44″

                    5
                    47°50′01″
                    125°05′42″

                    6
                    47°57′13″
                    125°29′13″

                    7
                    48°07′33″
                    125°38′20″

                    8
                    48°15′00″
                    125°40′54″

                    9
                    48°18′21.2″
                    125°30′02.9″

                    10
                    48°20′15.2″
                    125°22′52.9″

                    11
                    48°26′46.2″
                    125°09′16.9″

                    12
                    48°27′09.2″
                    125°08′29.9″

                    13
                    48°28′08.2″
                    125°05′51.9″

                    14
                    48°29′43.2″
                    125°00′10.9″

                    15
                    48°29′56.2″
                    124°59′19.9″

                    16
                    48°30′13.2″
                    124°54′56.9″

                    17
                    48°30′21.2″
                    124°50′25.9″

                    18
                    48°30′10.2″
                    124°47′17.9″

                    19
                    48°29′36.4″
                    124°43′38.1″

                    20
                    48°28′08″
                    124°38′13″

                    21
                    48°23′17″
                    124°38′13″

              Subpart P—Florida Keys National Marine Sanctuary

                Source:
                62 FR 32161, June 12, 1997, unless otherwise noted.

                § 922.160
                Purpose.
                (a) The purpose of the regulations in this subpart is to implement the comprehensive management plan for the Florida Keys National Marine Sanctuary by regulating activities affecting the resources of the Sanctuary or any of the qualities, values, or purposes for which the Sanctuary is designated, in order to protect, preserve and manage the conservation, ecological, recreational, research, educational, historical, and aesthetic resources and qualities of the area. In particular, the regulations in this part are intended to protect, restore, and enhance the living resources of the Sanctuary, to contribute to the maintenance of natural assemblages of living resources for future generations, to provide places for species dependent on such living resources to survive and propagate, to facilitate to the extent compatible with the primary objective of resource protection all public and private uses of the resources of the Sanctuary not prohibited pursuant to other authorities, to reduce conflicts between such compatible uses, and to achieve the other policies and purposes of the Florida Keys National Marine Sanctuary and Protection Act and the National Marine Sanctuaries Act.

                (b) Section 304(e) of the NMSA requires the Secretary to review management plans and regulations every five years, and make necessary revisions. Upon completion of the five year review of the Sanctuary management plan and regulations, the Secretary will repropose the regulations in their entirety with any proposed changes thereto, including those regulations in subparts A and E of this part that apply to the Sanctuary. The Governor of the State of Florida will have the opportunity to review the re-proposed regulations before they take effect and if the Governor certifies such regulations as unacceptable, they will not take effect in State waters of the Sanctuary.

                § 922.161
                Boundary.
                The Sanctuary consists of an area of approximately 2900 square nautical miles (9,800 square kilometers) of coastal and ocean waters, and the submerged lands thereunder, surrounding the Florida Keys in Florida. Appendix I to this subpart sets forth the precise Sanctuary boundary.
                [66 FR 4369, Jan. 17, 2001]

                § 922.162
                Definitions.
                (a) The following definitions apply to the Florida Keys National Marine Sanctuary regulations. To the extent that a definition appears in § 922.3 and this section, the definition in this section governs.

                  Acts means the Florida Keys National Marine Sanctuary and Protection Act, as amended, (FKNMSPA) (Pub. L. 101-605), and the National Marine Sanctuaries Act (NMSA), also known as Title III of the Marine Protection, Research, and Sanctuaries Act, as amended, (MPRSA) (16 U.S.C. 1431 et seq.).

                  Adverse effect means any factor, force, or action that independently or cumulatively damages, diminishes, degrades, impairs, destroys, or otherwise harms any Sanctuary resource, as defined in section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or any of the qualities, values, or purposes for which the Sanctuary is designated.

                  Airboat means a vessel operated by means of a motor driven propeller that pushes air for momentum.

                  Areas To Be Avoided means the areas in which vessel operations are prohibited pursuant to section 6(a)(1) of the FKNMSPA (see § 922.164(a)). Appendix VII to this subpart sets forth the geographic coordinates of these areas, including any modifications thereto made in accordance with section 6(a)(3) of the FKNMSPA.

                  Closed means all entry or use is prohibited.

                  Coral means but is not limited to the corals of the Class Hydrozoa (stinging and hydrocorals); Class Anthozoa, Subclass Hexacorallia, Order Scleractinia (stony corals); Class Anthozoa, Subclass Ceriantipatharia, Order Antipatharia (black corals); and Class Anthozoa, Subclass Ocotocorallia, Order Gorgonacea, species Gorgonia ventalina and Gorgonia flabellum (sea fans).

                  Coral area means marine habitat where coral growth abounds including patch reefs, outer bank reefs, deepwater banks, and hardbottoms.

                  Coral reefs means the hard bottoms, deep-water banks, patch reefs, and outer bank reefs.

                  Ecological Reserve means an area of the Sanctuary consisting of contiguous, diverse habitats, within which uses are subject to conditions, restrictions and prohibitions, including access restrictions, intended to minimize human influences, to provide natural spawning, nursery, and permanent residence areas for the replenishment and genetic protection of marine life, and also to protect and preserve natural assemblages of habitats and species within areas representing a broad diversity of resources and habitats found within the Sanctuary. Appendix IV to this subpart sets forth the geographic coordinates of these areas.

                  Existing Management Area means an area of the Sanctuary that is within or is a resource management area established by NOAA or by another Federal authority of competent jurisdiction as of the effective date of these regulations where protections above and beyond those provided by Sanctuary-wide prohibitions and restrictions are needed to adequately protect resources. Appendix II to this subpart sets forth the geographic coordinates of these areas.

                  Exotic species means a species of plant, invertebrate, fish, amphibian, reptile or mammal whose natural zoogeographic range would not have included the waters of the Atlantic Ocean, Caribbean, or Gulf of Mexico without passive or active introduction to such area through anthropogenic means.

                  Fish means finfish, mollusks, crustaceans, and all forms of marine animal and plant life other than marine mammals and birds.

                  Fishing means:
                (1) The catching, taking, or harvesting of fish; the attempted catching, taking, or harvesting of fish; any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or any operation at sea in support of, or in preparation for, any activity described in this subparagraph (1).
                (2) Such term does not include any scientific research activity which is conducted by a scientific research vessel.

                  Hardbottom means a submerged marine community comprised of organisms attached to exposed solid rock substrate. Hardbottom is the substrate to which corals may attach but does not include the corals themselves.

                  Idle speed only/no-wake means a speed at which a boat is operated that is no greater than 4 knots or does not produce a wake.

                  Idle speed only/no-wake zone means a portion of the Sanctuary where the speed at which a boat is operated may be no greater than 4 knots or may not produce a wake.

                  Length overall (LOA) or length means, as used in § 922.167 with respect to a vessel, the horizontal distance, rounded to the nearest foot (with 0.5 ft and above rounded upward), between the foremost part of the stem and the aftermost part of the stern, excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments.

                  Live rock means any living marine organism or an assemblage thereof attached to a hard substrate, including dead coral or rock but not individual mollusk shells (e.g., scallops, clams, oysters). Living marine organisms associated with hard bottoms, banks, reefs, and live rock may include, but are not limited to: sea anemones (Phylum Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera); tube worms (Phylum Annelida), including fan worms, feather duster worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts (Phylum Chordata); and marine algae, including Mermaid's fan and cups (Udotea spp.), corraline algae, green feather, green grape algae (Caulerpa spp.) and watercress (Halimeda spp.).

                  Marine life species means any species of fish, invertebrate, or plant included in sections (2), (3), or (4) of Rule 46-42.001, Florida Administrative Code, reprinted in appendix VIII to this subpart.

                  Military activity means an activity conducted by the Department of Defense with or without participation by foreign forces, other than civil engineering and other civil works projects conducted by the U.S. Army Corps of Engineers.

                  No-access buffer zone means a portion of the Sanctuary where vessels are prohibited from entering regardless of the method of propulsion.

                  No motor zone means an area of the Sanctuary where the use of internal combustion motors is prohibited. A vessel with an internal combustion motor may access a no motor zone only through the use of a push pole, paddle, sail, electric motor or similar means of operation but is prohibited from using it's internal combustion motor.

                  Not available for immediate use means not readily accessible for immediate use, e.g., by being stowed unbaited in a cabin, locker, rod holder, or similar storage area, or by being securely covered and lashed to a deck or bulkhead.

                  Officially marked channel means a channel marked by Federal, State of Florida, or Monroe County officials of competent jurisdiction with navigational aids except for channels marked idle speed only/no wake.

                  Personal watercraft means any jet or air-powered watercraft operated by standing, sitting, or kneeling on or behind the vessel, in contrast to a conventional boat, where the operator stands or sits inside the vessel, and that uses an inboard engine to power a water jet pump for propulsion, instead of a propeller as in a conventional boat.

                  Prop dredging means the use of a vessel's propulsion wash to dredge or otherwise alter the seabed of the Sanctuary. Prop dredging includes, but is not limited to, the use of propulsion wash deflectors or similar means of dredging or otherwise altering the seabed of the Sanctuary. Prop dredging does not include the disturbance to bottom sediments resulting from normal vessel propulsion.

                  Prop scarring means the injury to seagrasses or other immobile organisms attached to the seabed of the Sanctuary caused by operation of a vessel in a manner that allows its propeller or other running gear, or any part thereof, to cause such injury (e.g., cutting seagrass rhizomes). Prop scarring does not include minor disturbances to bottom sediments or seagrass blades resulting from normal vessel propulsion.

                  Residential shoreline means any man-made or natural:
                (1) Shoreline,
                (2) Canal mouth,
                (3) Basin, or
                (4) Cove adjacent to any residential land use district, including improved subdivision, suburban residential or suburban residential limited, sparsely settled, urban residential, and urban residential mobile home under the Monroe County land development regulations.

                  Sanctuary means the Florida Keys National Marine Sanctuary.

                  Sanctuary Preservation Area means an area of the Sanctuary that encompasses a discrete, biologically important area, within which uses are subject to conditions, restrictions and prohibitions, including access restrictions, to avoid concentrations of uses that could result in significant declines in species populations or habitat, to reduce conflicts between uses, to protect areas that are critical for sustaining important marine species or habitats, or to provide opportunities for scientific research. Appendix V to this subpart sets forth the geographic coordinates of these areas.

                  Sanctuary wildlife means any species of fauna, including avifauna, that occupy or utilize the submerged resources of the Sanctuary as nursery areas, feeding grounds, nesting sites, shelter, or other habitat during any portion of their life cycles.

                  Seagrass means any species of marine angiosperms (flowering plants) that inhabit portions of the seabed in the Sanctuary. Those species include, but are not limited to: Thalassia testudinum (turtle grass); Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass); Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.

                  Special-use Area means an area of the Sanctuary set aside for scientific research and educational purposes, recovery or restoration of Sanctuary resources, monitoring, to prevent use or user conflicts, to facilitate access and use, or to promote public use and understanding of Sanctuary resources. Appendix VI to this subpart sets forth the geographic coordinates of these areas.

                  Stem means the foremost part of a vessel, consisting of a section of timber or fiberglass, or cast, forged, or rolled metal, to which the sides of the vessel are united at the fore end, with the lower end united to the keel, and with the bowsprit, if one is present, resting on the upper end.

                  Stern means the aftermost part of the vessel.

                  Tank vessel means any vessel that is constructed or adapted to carry, or that carries, oil or hazardous material in bulk as cargo or cargo residue, and that—
                (1) Is a United States flag vessel;
                (2) Operates on the navigable waters of the United States; or
                (3) Transfers oil or hazardous material in a port or place subject to the jurisdiction of the United States [46 U.S.C. 2101].

                  Traditional fishing means those commercial or recreational fishing activities that were customarily conducted within the Sanctuary prior to its designation as identified in the Environmental Impact Statement and Management Plan for this Sanctuary.

                  Tropical fish means any species included in section (2) of Rule 46-42.001, Florida Administrative Code, reproduced in appendix VIII to this subpart, or any part thereof.

                  Vessel means a watercraft of any description, including, but not limited to, motorized and non-motorized watercraft, personal watercraft, airboats, and float planes while maneuvering on the water, capable of being used as a means of transportation in/on the waters of the Sanctuary. For purposes of this part, the terms “vessel,” “watercraft,” and “boat” have the same meaning.

                  Wildlife Management Area means an area of the Sanctuary established for the management, protection, and preservation of Sanctuary wildlife resources, including such an area established for the protection and preservation of endangered or threatened species or their habitats, within which access is restricted to minimize disturbances to Sanctuary wildlife; to ensure protection and preservation consistent with the Sanctuary designation and other applicable law governing the protection and preservation of wildlife resources in the Sanctuary. Appendix III to this subpart lists these areas and their access restrictions.

                (b) Other terms appearing in the regulations in this part are defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16 U.S.C. 1431 et seq.

                [62 FR 32161, June 12, 1997, as amended at 66 FR 4369, Jan. 17, 2001; 74 FR 38094, July 31, 2009]

                § 922.163
                Prohibited activities—Sanctuary-wide.
                (a) Except as specified in paragraph (b) through (e) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
                (1) Mineral and hydrocarbon exploration, development and production. Exploring for, developing, or producing minerals or hydrocarbons within the Sanctuary.
                (2) Removal of, injury to, or possession of coral or live rock. (i) Moving, removing, taking, harvesting, damaging, disturbing, touching, breaking, cutting, or otherwise injuring, or possessing (regardless of where taken from) any living or dead coral, or coral formation, or attempting any of these activities, except as permitted under 50 CFR part 622.

                (ii) Harvesting, or attempting to harvest, any live rock from the Sanctuary, or possessing (regardless of where taken from) any live rock within the Sanctuary, except as authorized by a permit for the possession or harvest from aquaculture operations in the Exclusive Economic Zone, issued by the National Marine Fisheries Service pursuant to applicable regulations under the appropriate Fishery Management Plan, or as authorized by the applicable State authority of competent jurisdiction within the Sanctuary for live rock cultured on State submerged lands leased from the State of Florida, pursuant to applicable State law. See § 370.027, Florida Statutes and implementing regulations.
                (3) Alteration of, or construction on, the seabed. Drilling into, dredging, or otherwise altering the seabed of the Sanctuary, or engaging in prop-dredging; or constructing, placing or abandoning any structure, material, or other matter on the seabed of the Sanctuary, except as an incidental result of:
                (i) Anchoring vessels in a manner not otherwise prohibited by this part (see §§ 922.163(a)(5)(ii) and 922.164(d)(1)(v));
                (ii) Traditional fishing activities not otherwise prohibited by this part;
                (iii) Installation and maintenance of navigational aids by, or pursuant to valid authorization by, any Federal, State, or local authority of competent jurisdiction;
                (iv) Harbor maintenance in areas necessarily associated with Federal water resource development projects in existence on July 1, 1997, including maintenance dredging of entrance channels and repair, replacement, or rehabilitation of breakwaters or jetties;
                (v) Construction, repair, replacement, or rehabilitation of docks, seawalls, breakwaters, piers, or marinas with less than ten slips authorized by any valid lease, permit, license, approval, or other authorization issued by any Federal, State, or local authority of competent jurisdiction.
                (4) Discharge or deposit of materials or other matter. (i) Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter, except:
                (A) Fish, fish parts, chumming materials, or bait used or produced incidental to and while conducting a traditional fishing activity in the Sanctuary;
                (B) Water generated by routine vessel operations (e.g., deck wash down and graywater as defined in section 312 of the FWPCA), excluding oily wastes from bilge pumping; or

                (C) Cooling water from vessels or engine exhaust;

                (ii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except:
                (A) Those listed in paragraph (a)(4)(i)(A) through (a)(4)(i)(C) of this section;

                (B) Sewage incidental to vessel use and generated by a marine sanitation device approved in accordance with section 312 of the Federal Water Pollution Control Act (FWPCA), as amended, 33 U.S.C. 1322 et seq.;

                (C) Those authorized under Monroe County land use permits; or
                (D) Those authorized under State permits.
                (5) Operation of vessels. (i) Operating a vessel in such a manner as to strike or otherwise injure coral, seagrass, or any other immobile organism attached to the seabed, including, but not limited to, operating a vessel in such a manner as to cause prop-scarring.
                (ii) Having a vessel anchored on living coral other than hardbottom in water depths less than 40 feet when visibility is such that the seabed can be seen.
                (iii) Except in officially marked channels, operating a vessel at a speed greater than 4 knots or in manner which creates a wake:
                (A) Within an area designated idle speed only/no wake;
                (B) Within 100 yards of navigational aids indicating emergent or shallow reefs (international diamond warning symbol);
                (C) Within 100 yards of the red and white “divers down” flag (or the blue and white “alpha” flag in Federal waters);
                (D) Within 100 yards of residential shorelines; or
                (E) Within 100 yards of stationary vessels.
                (iv) Operating a vessel in such a manner as to injure or take wading, roosting, or nesting birds or marine mammals.
                (v) Operating a vessel in a manner which endangers life, limb, marine resources, or property.
                (vi) Having a marine sanitation device that is not secured in a manner that prevents discharges or deposits of treated and untreated sewage. Acceptable methods include, but are not limited to, all methods that have been approved by the U.S. Coast Guard (at 33 CFR 159.7(b) and (c)).
                (6) Conduct of diving/snorkeling without flag. Diving or snorkeling without flying in a conspicuous manner the red and white “divers down” flag (or the blue and white “alpha” flag in Federal waters).
                (7) Release of exotic species. Introducing or releasing an exotic species of plant, invertebrate, fish, amphibian, or mammals into the Sanctuary.
                (8) Damage or removal of markers. Marking, defacing, or damaging in any way or displacing, removing, or tampering with any official signs, notices, or placards, whether temporary or permanent, or with any navigational aids, monuments, stakes, posts, mooring buoys, boundary buoys, trap buoys, or scientific equipment.
                (9) Movement of, removal of, injury to, or possession of Sanctuary historical resources. Moving, removing, injuring, or possessing, or attempting to move, remove, injure, or possess, a Sanctuary historical resource.
                (10) Take or possession of protected wildlife. Taking any marine mammal, sea turtle, or seabird in or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA) 16 U.S.C. 703 et seq.

                (11) Possession or use of explosives or electrical charges. Possessing, or using explosives, except powerheads, or releasing electrical charges within the Sanctuary.
                (12) Harvest or possession of marine life species. Harvesting, possessing, or landing any marine life species, or part thereof, within the Sanctuary, except in accordance with rules 68B-42 of the Florida Administrative Code, and such rules shall apply mutatis mutandis (with necessary editorial changes) to all Federal and State waters within the Sanctuary.
                (13) Interference with law enforcement. Interfering with, obstructing, delaying or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Acts or any regulation or permit issued under the Acts.
                (b) Notwithstanding the prohibitions in this section and in § 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.
                (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 § 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems reasonably necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in existence on the effective date of these regulations constitute authorizations issued after the effective date of these regulations.
                (d)(1) All military activities shall be carried out in a manner that avoids to the maximum extent practical any adverse impacts on Sanctuary resources and qualities. The prohibitions in paragraph (a) of this section and § 922.164 do not apply to existing classes of military activities which were conducted prior to the effective date of these regulations, as identified in the Environmental Impact Statement and Management Plan for the Sanctuary. New military activities in the Sanctuary are allowed and may be exempted from the prohibitions in paragraph (a) of this section and in § 922.164 by the Director after consultation between the Director and the Department of Defense pursuant to section 304(d) of the NMSA. When a military activity is modified such that it is likely to destroy, cause the loss of, or injure a Sanctuary resource or quality in a manner significantly greater than was considered in a previous consultation under section 304(d) of the NMSA, or it is likely to destroy, cause the loss of, or injure a Sanctuary resource or quality not previously considered in a previous consultation under section 304(d) of the NMSA, the activity is considered a new activity for purposes of this paragraph. If it is determined that an activity may be carried out, such activity shall be carried out in a manner that avoids to the maximum extent practical any adverse impact on Sanctuary resources and qualities.
                (2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings caused by the Department of Defense, the cognizant component shall promptly coordinate with the Director for the purpose of taking appropriate actions to prevent, respond to or mitigate the harm and, if possible, restore or replace the Sanctuary resource or quality.
                (e) The following prohibitions do not apply to Federal, State and local officers while performing enforcement duties in their official capacities or responding to emergencies that threaten life, property, or the environment:

                (1) Those contained in paragraph (a)(4) of this section only as it pertains to discharges of sewage incidental to vessel use and generated by a marine sanitation device approved in accordance with section 312 of the Federal Water Pollution Control Act (FWPCA), as amended, 33 U.S.C. 1322 et seq.; and
                (2) Those contained in paragraph (a)(5) of this section.

                (f) Notwithstanding paragraph (b) of this section and paragraph (a) of § 922.168, in no event may the Director issue a permit under § 922.166 authorizing, or otherwise approve, the exploration for, leasing, development, or production of minerals or hydrocarbons within the Sanctuary, the disposal of dredged material within the Sanctuary other than in connection with beach renourishment or Sanctuary restoration projects, or the discharge of untreated or primary treated sewage (except by a certification, pursuant to § 922.167, of a valid authorization in existence on the effective date of these regulations), and any purported authorizations issued by other authorities after the effective date of these regulations for any of these activities within the Sanctuary shall be invalid.
                (g) Any amendment to these regulations shall not take effect in Florida State waters until approved by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. Any fishery regulations in the Sanctuary shall not take effect in Florida State waters until established by the Florida Marine Fisheries Commission.
                [62 FR 32161, June 12, 1997, as amended at 74 FR 38094, July 31, 2009; 75 FR 72659, Nov. 26, 2010]

                § 922.164
                Additional activity regulations by Sanctuary area.
                In addition to the prohibitions set forth in § 922.163, which apply throughout the Sanctuary, the following regulations apply with respect to activities conducted within the Sanctuary areas described in this section and in Appendix (II) through (VII) to this subpart. Activities located within two or more overlapping Sanctuary areas are concurrently subject to the regulations applicable to each overlapping area.
                (a) Areas to be avoided. Operating a tank vessel or a vessel greater than 50 meters in registered length is prohibited in all areas to be avoided, except if such vessel is a public vessel and its operation is essential for national defense, law enforcement, or responses to emergencies that threaten life, property, or the environment. Appendix VII to this subpart sets forth the geographic coordinates of these areas.
                (b) Existing management areas—(1) Key Largo and Looe Key Management Areas. The following activities are prohibited within the Key Largo and Looe Key Management Areas (also known as the Key Largo and Looe Key National Marine Sanctuaries) described in appendix II to this subpart:
                (i) Removing, taking, damaging, harmfully disturbing, breaking, cutting, spearing or similarly injuring any coral or other marine invertebrate, or any plant, soil, rock, or other material, except commercial taking of spiny lobster and stone crab by trap and recreational taking of spiny lobster by hand or by hand gear which is consistent with these regulations and the applicable regulations implementing the applicable Fishery Management Plan.
                (ii) Taking any tropical fish.
                (iii) Fishing with wire fish traps, bottom trawls, dredges, fish sleds, or similar vessel-towed or anchored bottom fishing gear or nets.
                (iv) Fishing with, carrying or possessing, except while passing through without interruption or for law enforcement purposes: pole spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber powered arbaletes, pneumatic and spring-loaded guns or similar devices known as spearguns.
                (2) Great White Heron and Key West National Wildlife Refuge Management Areas. Operating a personal watercraft, operating an airboat, or water skiing except within Township 66 South, Range 29 East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East, Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all Tallahassee Meridian, are prohibited within the marine portions of the Great White Heron and Key West National Wildlife Refuge Management Areas described in appendix II to this subpart.
                (c) Wildlife management areas. (1) Marine portions of the Wildlife Management Areas listed in appendix III to this subpart or portions thereof may be designated “idle speed only/no-wake,” “no-motor” or “no-access buffer” zones or “closed”. The Director, in cooperation with other Federal, State, or local resource management authorities, as appropriate, shall post signs conspicuously, using mounting posts, buoys, or other means according to location and purpose, at appropriate intervals and locations, clearly delineating an area as an “idle speed only/no wake”, a “no-motor”, or a “no-access buffer” zone or as “closed”, and allowing instant, long-range recognition by boaters. Such signs shall display the official logo of the Sanctuary.

                (2) The following activities are prohibited within the marine portions of the Wildlife Management Areas listed in appendix III to this subpart:

                (i) In those marine portions of any Wildlife Management Area designated an “idle speed only/no wake” zone in appendix III to this subpart, operating a vessel at a speed greater that idle speed only/no wake.
                (ii) In those marine portions of any Wildlife Management Area designated a “no-motor” zone in appendix III to this subpart, using internal combustion motors or engines for any purposes. A vessel with an internal combustion motor or engine may access a “no-motor” zone only through the use of a push pole, paddle, sail, electric motor or similar means of propulsion.
                (iii) In those marine portions of any Wildlife Management Area designated a “no-access buffer” zone in appendix III of this subpart, entering the area by vessel.
                (iv) In those marine portions of any Wildlife Management Area designated as closed in appendix III of this subpart, entering or using the area.
                (3) The Director shall coordinate with other Federal, State, or local resource management authorities, as appropriate, in the establishment and enforcement of access restrictions described in paragraph (c)(2) (i)-(iv) of this section in the marine portions of Wildlife Management Areas.
                (4) The Director may modify the number and location of access restrictions described in paragraph (c)(2) (i)-(iv) of this section within the marine portions of a Wildlife Management Area if the Director finds that such action is reasonably necessary to minimize disturbances to Sanctuary wildlife, or to ensure protection and preservation of Sanctuary wildlife consistent with the purposes of the Sanctuary designation and other applicable law governing the protection and preservation of wildlife resources in the Sanctuary. The Director will effect such modification by:
                (i) Publishing in the Federal Register, after notice and an opportunity for public comments in accordance, an amendment to the list of such areas set forth in appendix III to this subpart, and a notice regarding the time and place where maps depicting the precise locations of such restrictions will be made available for public inspection, and
                (ii) Posting official signs delineating such restrictions in accordance with paragraph (c)(1) of this section.
                (d) Ecological Reserves, Sanctuary Preservation Areas, and Special Use (Research only) Areas. (1) The following activities are prohibited within the Ecological Reserves described in appendix IV to this subpart, within the Sanctuary Preservation Areas described in appendix V to this subpart, and within the Special Use (Research only Areas) described in appendix VI to this subpart:
                (i) Discharging or depositing any material or other matter except cooling water or engine exhaust.
                (ii) Possessing, moving, harvesting, removing, taking, damaging, disturbing, breaking, cutting, spearing, or otherwise injuring any coral, marine invertebrate, fish, bottom formation, algae, seagrass or other living or dead organism, including shells, or attempting any of these activities. However, fish, invertebrates, and marine plants may be possessed aboard a vessel in an Ecological Reserve or Sanctuary Preservation Area, provided such resources can be shown not to have been harvested within, removed from, or taken within, the Ecological Reserve or Sanctuary Preservation Area, as applicable, by being stowed in a cabin, locker, or similar storage area prior to entering and during transit through such reserves or areas, provided further that in an Ecological Reserve or Sanctuary Preservation Area located in Florida State waters, such vessel is in continuous transit through the Ecological Reserve or Sanctuary Preservation Area.
                (iii) Except for catch and release fishing by trolling in the Conch Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any means. However, gear capable of harvesting fish may be aboard a vessel in an Ecological Reserve or Sanctuary Preservation Area, provided such gear is not available for immediate use when entering and during transit through such Ecological Reserve or Sanctuary Preservation Area, and no presumption of fishing activity shall be drawn therefrom.

                (iv) Touching living or dead coral, including but not limited to, standing on a living or dead coral formation.

                (v) Anchoring in the Tortugas Ecological Reserve. In all other Ecological Reserves and Sanctuary Preservation Areas, placing any anchor in a way that allows the anchor or any portion of the anchor apparatus (including the anchor, chain or rope) to touch living or dead coral, or any attached living organism. When anchoring dive boats, the first diver down must inspect the anchor to ensure that it is not touching living or dead coral, and will not shift in such a way as to touch such coral or other attached organism. No further diving shall take place until the anchor is placed in accordance with these requirements.
                (vi) Except in the Tortugas Ecological Reserve where mooring buoys must be used, anchoring instead of mooring when a mooring buoy is available or anchoring in other than a designated anchoring area when such areas have been designated and are available.
                (vii) Except for passage without interruption through the area, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of this section, violating a temporary access restriction imposed by the Director pursuant to paragraph (d)(2) of this section.
                (viii) Except for passage without interruption through the area, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of this section: entering the Tortugas South area of the Tortugas Ecological Reserve; or entering the Tortugas North area of the Tortugas Ecological Reserve without a valid access permit issued pursuant to § 922.167 or entering or leaving the Tortugas North area with a valid access permit issued pursuant to § 922.167 without notifying FKNMS staff at the Dry Tortugas National Park office by telephone or radio no less than 30 minutes and no more than 6 hours, before entering and upon leaving the Tortugas Ecological Reserve.
                (ix) Tying a vessel greater than 100 feet (30.48 meters) LOA, or tying more than one vessel (other than vessels carried on board a vessel) if the combined lengths would exceed 100 feet (30.48 meters) LOA, to a mooring buoy or to a vessel tied to a mooring buoy in the Tortugas Ecological Reserve.

                (2) The Director may temporarily restrict access to any portion of any Sanctuary Preservation Area or Ecological Reserve if the Director, on the basis of the best available data, information and studies, determines that a concentration of use appears to be causing or contributing to significant degradation of the living resources of the area and that such action is reasonably necessary to allow for recovery of the living resources of such area. The Director will provide for continuous monitoring of the area during the pendency of the restriction. The Director will provide public notice of the restriction by publishing a notice in the Federal Register, and by such other means as the Director may deem appropriate. The Director may only restrict access to an area for a period of 60 days, with one additional 60 day renewal. The Director may restrict access to an area for a longer period pursuant to a notice and opportunity for public comment rulemaking under the Administrative Procedure Act. Such restriction will be kept to the minimum amount of area necessary to achieve the purposes thereof.
                (e) Special-use Areas. (1) The Director may set aside discrete areas of the Sanctuary as Special-use Areas, and, by designation pursuant to this paragraph, impose the access and use restrictions specified in paragraph (e)(3) of this section. Special-use Areas are described in appendix VI to this subpart, in accordance with the following designations and corresponding objectives:
                (i) “Recovery area” to provide for the recovery of Sanctuary resources from degradation or other injury attributable to human uses;
                (ii) “Restoration area” to provide for restoration of degraded or otherwise injured Sanctuary resources;
                (iii) “Research-only area” to provide for scientific research or education relating to protection and management, through the issuance of a Sanctuary General permit for research pursuant to § 922.166 of these regulations; and

                (iv) “Facilitated-use area” to provide for the prevention of use or user conflicts or the facilitation of access and use, or to promote public use and understanding, of Sanctuary resources through the issuance of special-use permits.
                (2) A Special-use Area shall be no larger than the size the Director deems reasonably necessary to accomplish the applicable objective.
                (3) Persons conducting activities within any Special-use Area shall comply with the access and use restrictions specified in this paragraph and made applicable to such area by means of its designation as a “recovery area,” “restoration area,” “research-only area,” or “facilitated-use area.” Except for passage without interruption through the area or for law enforcement purposes, no person may enter a Special-use Area except to conduct or cause to be conducted the following activities:
                (i) In such area designated as a “recovery area” or a “restoration area”, habitat manipulation related to restoration of degraded or otherwise injured Sanctuary resources, or activities reasonably necessary to monitor recovery of degraded or otherwise injured Sanctuary resources;
                (ii) In such area designated as a “research only area”, scientific research or educational use specifically authorized by and conducted in accordance with the scope, purpose, terms and conditions of a valid National Marine Sanctuary General or Historical Resources permit, or
                (iii) In such area designated as a “facilitated-use area”, activities specified by the Director or specifically authorized by and conducted in accordance with the scope, purpose, terms, and conditions of a valid Special-use permit.

                (4)(i) The Director may modify the number of, location of, or designations applicable to, Special-use Areas by publishing in the Federal Register, after notice and an opportunity for public comment in accordance with the Administrative Procedure Act, an amendment to appendix VI to this subpart, except that, with respect to such areas designated as a “recovery area,” “restoration area,” or “research only area,” the Director may modify the number of, location of, or designation applicable to, such areas by publishing a notice of such action in the Federal Register if the Director determines that immediate action is reasonably necessary to:
                (A) Prevent significant injury to Sanctuary resources where circumstances create an imminent risk to such resources;
                (B) Initiate restoration activity where a delay in time would significantly impair the ability of such restoration activity to succeed;
                (C) Initiate research activity where an unforeseen natural event produces an opportunity for scientific research that may be lost if research is not initiated immediately.

                (ii) If the Director determines that a notice of modification must be promulgated immediately in accordance with paragraph (e)(4)(i) of this section, the Director will, as part of the same notice, invite public comment and specify that comments will be received for 15 days after the effective date of the notice. As soon as practicable after the end of the comment period, the Director will either rescind, modify or allow the modification to remain unchanged through notice in the Federal Register.

                (5) In addition to paragraph (e)(3) of this section no person shall conduct activities listed in paragraph (d) of this section in “Research-only Areas.”
                (f) Additional Wildlife Management Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-use Areas, and additional restrictions in such areas, shall not take effect in Florida State waters unless first approved by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida.
                (g) Anchoring on Tortugas Bank. Vessels 50 meters or greater in registered length, are prohibited from anchoring on the portion of Tortugas Bank within the Florida Keys National Marine Sanctuary west of the Dry Tortugas National Park that is outside of the Tortugas Ecological Reserve. The boundary of the area closed to anchoring by vessels 50 meters or greater in registered length is formed by connecting in succession the points at the following coordinates (based on the North American Datum of 1983):
                (1) 24 deg. 32.00′ N 83 deg. 00.05′ W
                (2) 24 deg. 37.00′ N 83 deg. 06.00′ W
                (3) 24 deg. 39.00′ N 83 deg. 06.00′ W

                (4) 24 deg. 39.00′ N 83 deg. 00.05′ W
                (5) 24 deg. 32.00′ N 83 deg. 00.05′ W
                [62 FR 32161, June 12, 1997, as amended at 63 FR 43873, Aug. 17, 1998; 66 FR 4369, Jan. 17, 2001; 74 FR 38095, July 31, 2009]

                § 922.165
                Emergency regulations.
                Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. Emergency regulations shall not take effect in Florida territorial waters until approved by the Governor of the State of Florida. Any temporary regulation may be in effect for up to 60 days, with one 60-day extension. Additional or extended action will require notice and comment rulemaking under the Administrative Procedure Act, notice in local newspapers, notice to Mariners, and press releases.

                § 922.166
                Permits other than for access to the Tortugas Ecological Reserve—application procedures and issuance criteria.
                (a) National Marine Sanctuary General Permit. (1) A person may conduct an activity prohibited by §§ 922.163 or 922.164, other than an activity involving the survey/inventory, research/recovery, or deaccession/transfer of Sanctuary historical resources, if such activity is specifically authorized by, and provided such activity is conducted in accordance with the scope, purpose, terms and conditions of, a National Marine Sanctuary General permit issued under this paragraph (a).
                (2) The Director, at his or her discretion, may issue a General permit under this paragraph (a), subject to such terms and conditions as he or she deems appropriate, if the Director finds that the activity will:
                (i) Further research or monitoring related to Sanctuary resources and qualities;
                (ii) Further the educational value of the Sanctuary;
                (iii) Further the natural or historical resource value of the Sanctuary;
                (iv) Further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty;
                (v) Assist in managing the Sanctuary; or
                (vi) Otherwise further Sanctuary purposes, including facilitating multiple use of the Sanctuary, to the extent compatible with the primary objective of resource protection.
                (3) The Director shall not issue a General permit under this paragraph (a), unless the Director also finds that:
                (i) The applicant is professionally qualified to conduct and complete the proposed activity;
                (ii) The applicant has adequate financial resources available to conduct and complete the proposed activity;
                (iii) The duration of the proposed activity is no longer than necessary to achieve its stated purpose;
                (iv) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's goals in relation to the activity's impacts on Sanctuary resources and qualities;
                (v) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects;
                (vi) It is necessary to conduct the proposed activity within the Sanctuary to achieve its purposes; and
                (vii) The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity.
                (4) For activities proposed to be conducted within any of the areas described in § 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.
                (b) National Marine Sanctuary Survey/Inventory of Historical Resources Permit. (1) A person may conduct an activity prohibited by §§ 922.163 or 922.164 involving the survey/inventory of Sanctuary historical resources if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Survey/Inventory of Historical Resources permit issued under this paragraph (b). Such permit is not required if such survey/inventory activity does not involve any activity prohibited by §§ 922.163 or 922.164. Thus, survey/inventory activities that are non-intrusive, do not include any excavation, removal, or recovery of historical resources, and do not result in destruction of, loss of, or injury to Sanctuary resources or qualities do not require a permit. However, if a survey/inventory activity will involve test excavations or removal of artifacts or materials for evaluative purposes, a Survey/Inventory of Historical Resources permit is required. Regardless of whether a Survey/Inventory permit is required, a person may request such permit. Persons who have demonstrated their professional abilities under a Survey/Inventory permit will be given preference over other persons in consideration of the issuance of a Research/Recovery permit. While a Survey/Inventory permit does not grant any rights with regards to areas subject to pre-existing rights of access which are still valid, once a permit is issued for an area, other survey/inventory permits will not be issued for the same area during the period for which the permit is valid.
                (2) The Director, at his or her discretion, may issue a Survey/Inventory permit under this paragraph (b), subject to such terms and conditions as he or she deems appropriate, if the Director finds that such activity:
                (i) Satisfies the requirements for a permit issued under paragraph (a)(3) of this section;
                (ii) Either will be non-intrusive, not include any excavation, removal, or recovery of historical resources, and not result in destruction of, loss of, or injury to Sanctuary resources or qualities, or if intrusive, will involve no more than the minimum manual alteration of the seabed and/or the removal of artifacts or other material necessary for evaluative purposes and will cause no significant adverse impacts on Sanctuary resources or qualities; and
                (iii) That such activity will be conducted in accordance with all requirements of the Programmatic Agreement for the Management of Submerged Cultural Resources in the Florida Keys National Marine Sanctuary among NOAA, the Advisory Council on Historic Preservation, and the State of Florida (hereinafter SCR Agreement), and that such permit issuance is in accordance with such SCR Agreement. Copies of the SCR Agreement may also be examined at, and obtained from, the Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD 20910; or from the Florida Keys National Marine Sanctuary Office, P.O. Box 500368, Marathon, FL 33050.
                (c) National Marine Sanctuary Research/Recovery of Sanctuary Historical Resources Permit. (1) A person may conduct any activity prohibited by §§ 922.163 or 922.164 involving the research/recovery of Sanctuary historical resources if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Research/Recovery of Historical Resources permit issued under this paragraph (c).
                (2) The Director, at his or her discretion, may issue a Research/Recovery of Historical Resources permit, under this paragraph (c), and subject to such terms and conditions as he or she deems appropriate, if the Director finds that:
                (i) Such activity satisfies the requirements for a permit issued under paragraph (a)(3) of this section;
                (ii) The recovery of the resource is in the public interest as described in the SCR Agreement;
                (iii) Recovery of the resource is part of research to preserve historic information for public use; and

                (iv) Recovery of the resource is necessary or appropriate to protect the resource, preserve historical information, and/or further the policies and purposes of the NMSA and the FKNMSPA, and that such permit issuance is in accordance with, and that the activity will be conducted in accordance with, all requirements of the SCR Agreement.
                (d) National Marine Sanctuary Special-use Permit. (1) A person may conduct any commercial or concession-type activity prohibited by §§ 922.163 or 922.164, if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Special-use permit issued under this paragraph (d). A Special-use permit is required for the deaccession/transfer of Sanctuary historical resources.
                (2) The Director, at his or her discretion, may issue a Special-use permit in accordance with this paragraph (d), and subject to such terms and conditions as he or she deems appropriate and the mandatory terms and conditions of section 310 of the NMSA, if the Director finds that issuance of such permit is reasonably necessary to: establish conditions of access to and use of any Sanctuary resource; or promote public use and understanding of any Sanctuary resources. No permit may be issued unless the activity is compatible with the purposes for which the Sanctuary was designated and can be conducted in a manner that does not destroy, cause the loss of, or injure any Sanctuary resource, and if for the deaccession/transfer of Sanctuary Historical Resources, unless such permit issuance is in accordance with, and that the activity will be conducted in accordance with, all requirements of the SCR Agreement.
                (3) The Director may assess and collect fees for the conduct of any activity authorized by a Special-use permit issued pursuant to this paragraph (d). No Special-use permit shall be effective until all assessed fees are paid, unless otherwise provided by the Director by a fee schedule set forth as a permit condition. In assessing a fee, the Director shall include:
                (i) All costs incurred, or expected to be incurred, in reviewing and processing the permit application, including, but not limited to, costs for:
                (A) Number of personnel;
                (B) Personnel hours;
                (C) Equipment;
                (D) Biological assessments;
                (E) Copying; and
                (F) Overhead directly related to reviewing and processing the permit application;
                (ii) All costs incurred, or expected to be incurred, as a direct result of the conduct of the activity for which the Special-use permit is being issued, including, but not limited to:
                (A) The cost of monitoring the conduct both during the activity and after the activity is completed in order to assess the impacts to Sanctuary resources and qualities;
                (B) The use of an official NOAA observer, including travel and expenses and personnel hours; and
                (C) Overhead costs directly related to the permitted activity; and
                (iii) An amount which represents the fair market value of the use of the Sanctuary resource and a reasonable return to the United States Government.
                (4) Nothing in this paragraph (d) shall be considered to require a person to obtain a permit under this paragraph for the conduct of any fishing activities within the Sanctuary.
                (e) Applications. (1) Applications for permits should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O. Box 500368, Marathon, FL 33050. All applications must include:
                (i) A detailed description of the proposed activity including a timetable for completion of the activity and the equipment, personnel and methodology to be employed;
                (ii) The qualifications and experience of all personnel;
                (iii) The financial resources available to the applicant to conduct and complete the proposed activity;
                (iv) A statement as to why it is necessary to conduct the activity within the Sanctuary;
                (v) The potential impacts of the activity, if any, on Sanctuary resources and qualities;
                (vi) The benefit to be derived from the activity; and

                (vii) Such other information as the Director may request depending on the type of activity. Copies of all other required licenses, permits, approvals, or other authorizations must be attached to the application.
                (2) Upon receipt of an application, the Director may request such additional information from the applicant as he or she deems reasonably necessary to act on the application and may seek the views of any persons. The Director may require a site visit as part of the permit evaluation. Unless otherwise specified, the information requested must be received by the Director within 30 days of the postmark date of the request. Failure to provide such additional information on a timely basis may be deemed by the Director to constitute abandonment or withdrawal of the permit application.
                (f) A permit may be issued for a period not exceeding five years. All permits will be reviewed annually to determine the permittee's compliance with permit scope, purpose, terms and conditions and progress toward reaching the stated goals and appropriate action taken under paragraph (g) of this section if warranted. A permittee may request permit renewal pursuant to the same procedures for applying for a new permit. Upon the permittee's request for renewal, the Director shall review all reports submitted by the permittee as required by the permit conditions. In order to renew the permit, the Director must find that the:
                (1) Activity will continue to further the purposes for which the Sanctuary was designated in accordance with the criteria applicable to the initial issuance of the permit;
                (2) Permittee has at no time violated the permit, or these regulations; and
                (3) The activity has not resulted in any unforeseen adverse impacts to Sanctuary resources or qualities.
                (g) The Director may amend, suspend, or revoke a permit for good cause. The Director may deny a permit application, in whole or in part, if it is determined that the permittee or applicant has acted in violation of a previous permit, of these regulations, of the NMSA or FKNMSPA, or for other good cause. Any such action shall be communicated in writing to the permittee or applicant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for enforcement reasons are set forth in Subpart D of 15 CFR part 904.
                (h) The applicant for or holder of a National Marine Sanctuary permit may appeal the denial, conditioning, amendment, suspension or revocation of the permit in accordance with the procedures set forth in § 922.50.
                (i) A permit issued pursuant to this section other than a Special-use permit is nontransferable. Special-use permits may be transferred, sold, or assigned with the written approval of the Director. The permittee shall provide the Director with written notice of any proposed transfer, sale, or assignment no less than 30 days prior to its proposed consummation. Transfers, sales, or assignments consummated in violation of this requirement shall be considered a material breach of the Special-use permit, and the permit shall be considered void as of the consummation of any such transfer, sale, or assignment.
                (j) The permit or a copy thereof shall be maintained in legible condition on board all vessels or aircraft used in the conduct of the permitted activity and be displayed for inspection upon the request of any authorized officer.
                (k) Any permit issued pursuant to this section shall be subject to the following terms and conditions:
                (1) All permitted activities shall be conducted in a manner that does not destroy, cause the loss of, or injure Sanctuary resources or qualities, except to the extent that such may be specifically authorized.
                (2) The permittee agrees to hold the United States harmless against any claims arising out of the conduct of the permitted activities.
                (3) All necessary Federal, State, and local permits from all agencies with jurisdiction over the proposed activities shall be secured before commencing field operations.
                (l) In addition to the terms and conditions listed in paragraph (k) of this section, any permit authorizing the research/recovery of historical resources shall be subject to the following terms and conditions:
                (1) A professional archaeologist shall be in charge of planning, field recovery operations, and research analysis.

                (2) An agreement with a conservation laboratory shall be in place before field recovery operations are begun, and an approved nautical conservator shall be in charge of planning, conducting, and supervising the conservation of any artifacts and other materials recovered.
                (3) A curation agreement with a museum or facility for curation, public access and periodic public display, and maintenance of the recovered historical resources shall be in place before commencing field operations (such agreement for the curation and display of recovered historical resources may provide for the release of public artifacts for deaccession/transfer if such deaccession/transfer is consistent with preservation, research, education, or other purposes of the designation and management of the Sanctuary. Deaccession/transfer of historical resources requires a Special-use permit issued pursuant to paragraph (d) and such deaccession/transfer shall be executed in accordance with the requirements of the SCR Agreement).
                (4) The site's archaeological information is fully documented, including measured drawings, site maps drawn to professional standards, and photographic records.
                (m) In addition to the terms and conditions listed in paragraph (k) and (l) of this section, any permit issued pursuant to this section is subject to such other terms and conditions, including conditions governing access to, or use of, Sanctuary resources, as the Director deems reasonably necessary or appropriate and in furtherance of the purposes for which the Sanctuary is designated. Such terms and conditions may include, but are not limited to:
                (1) Any data or information obtained under the permit shall be made available to the public.
                (2) A NOAA official shall be allowed to observe any activity conducted under the permit.
                (3) The permittee shall submit one or more reports on the status, progress, or results of any activity authorized by the permit.
                (4) The permittee shall submit an annual report to the Director not later than December 31 of each year on activities conducted pursuant to the permit. The report shall describe all activities conducted under the permit and all revenues derived from such activities during the year and/or term of the permit.
                (5) The permittee shall purchase and maintain general liability insurance or other acceptable security against potential claims for destruction, loss of, or injury to Sanctuary resources arising out of the permitted activities. The amount of insurance or security should be commensurate with an estimated value of the Sanctuary resources in the permitted area. A copy of the insurance policy or security instrument shall be submitted to the Director.

                § 922.167
                Permits for access to the Tortugas Ecological Reserve.
                (a) A person may enter the Tortugas North area of the Tortugas Ecological Reserve other than for passage without interruption through the reserve, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of § 922.164 , if authorized by a valid access permit issued pursuant to § 922.167.

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

                  Key West office: telephone: (305) 292-0311
                  Marathon office: telephone: (305) 743-2437

                (2) The following information must be provided, as applicable:
                (i) Vessel name.
                (ii) Name, address, and telephone number of owner and operator.
                (iii) Name, address, and telephone number of applicant.
                (iv) USCG documentation, state license, or registration number.
                (v) Home port.
                (vi) Length of vessel and propulsion type (i.e., motor or sail).
                (vii) Number of divers.
                (viii) Requested effective date and duration of permit (2 weeks, maximum).

                (c) The Sanctuary Superintendent will issue a permit to the owner or to the owner's representative for the vessel when all applicable information has been provided. The Sanctuary Superintendent will provide a permit number to the applicant and confirm the effective date and duration period of the permit. Written confirmation of permit issuance will be provided upon request.
                [66 FR 4370, Jan. 17, 2001]

                § 922.168
                [Reserved]

                Pt. 922, Subpt. P, App. I
                Appendix I to Subpart P of Part 922—Florida Keys National Marine Sanctuary Boundary Coordinates
                (Appendix Based on North American Datum of 1983)
                (1) The boundary of the Florida Keys National Marine Sanctuary—
                (a) Begins at the northeasternmost point of Biscayne National Park located at approximately 25 degrees 39 minutes north latitude, 80 degrees 05 minutes west longitude, then runs eastward to the point at 25 degrees 39 minutes north latitude, 80 degrees 04 minutes west longitude; and
                (b) Then runs southward and connects in succession the points at the following coordinates:
                (i) 25 degrees 34 minutes north latitude, 80 degrees 04 minutes west longitude,
                (ii) 25 degrees 28 minutes north latitude, 80 degrees 05 minutes west longitude, and
                (iii) 25 degrees 21 minutes north latitude, 80 degrees 07 minutes west longitude;
                (iv) 25 degrees 16 minutes north latitude, 80 degrees 08 minutes west longitude;
                (c) Then runs southwesterly approximating the 300-foot isobath and connects in succession the points at the following coordinates:
                (i) 25 degrees 07 minutes north latitude, 80 degrees 13 minutes west longitude,
                (ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes west longitude,
                (iii) 24 degrees 39 minutes north latitude, 80 degrees 52 minutes west longitude,
                (iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes west longitude,
                (v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes west longitude,
                (vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes west longitude,
                (vii) 24 degrees 37 minutes north latitude, 83 degrees 06 minutes west longitude,
                (viii) 24 degrees 46 minutes north latitude, 83 degrees 06 minutes west longitude,
                (ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes west longitude,
                (x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes west longitude,
                (xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes west longitude, and
                (xii) 24 degrees 55 minutes north latitude, 80 degrees 56 minutes west longitude;
                (d) Then follows the boundary of Everglades National Park in a southerly then northeasterly direction through Florida Bay, Buttonwood Sound, Tarpon Basin, and Blackwater Sound;
                (e) After Division Point, then departs from the boundary of Everglades National Park and follows the western shoreline of Manatee Bay, Barnes Sound, and Card Sound;
                (f) then follows the southern boundary of Biscayne National Park to the southeasternmost point of Biscayne National Park; and
                (g) then follows the eastern boundary of Biscayne National Park to the beginning point specified in paragraph (a).
                (2) The shoreward boundary of the Florida Keys National Marine Sanctuary is the mean high-water mark except around the Dry Tortugas where the boundary is coterminous with that of the Dry Tortugas National Park, formed by connecting in succession the points at the following coordinates:
                (a) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 54 minutes 0 seconds west longitude;
                (b) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 58 minutes 0 second west longitude;
                (c) 24 degrees 39 minutes 0 seconds north latitude, 82 degrees 58 minutes 0 seconds west longitude;
                (d) 24 degrees 43 minutes 0 seconds north latitude, 82 degrees 54 minutes 0 seconds west longitude;
                (e) 24 degrees 43 minutes 32 seconds north latitude, 82 degrees 52 minutes 0 seconds west longitude;
                (f) 24 degrees 43 minutes 32 seconds north latitude, 82 degrees 48 minutes 0 seconds west longitude;
                (g) 24 degrees 42 minutes 0 seconds north latitude, 82 degrees 46 minutes, 0 seconds west longitude;
                (h) 24 degrees 40 minutes 0 seconds north latitude, 82 degrees 46 minutes 0 seconds west longitude;
                (i) 24 degrees 37 minutes 0 seconds north latitude, 82 degrees 48 minutes 0 seconds west longitude; and
                (j) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 54 minutes 0 seconds west longitude.
                (3) The Florida Keys National Marine Sanctuary also includes the area located within the boundary formed by connecting in succession the points at the following coordinates:
                (a) 24 degrees 33 minutes north latitude, 83 degrees 09 minutes west longitude,
                (b) 24 degrees 33 minutes north latitude, 83 degrees 05 minutes west longitude, and
                (c) 24 degrees 18 minutes north latitude, 83 degrees 05 minutes west longitude;
                (d) 24 degrees 18 minutes north latitude, 83 degrees 09 minutes west longitude; and
                (e) 24 degrees 33 minutes north latitude, 83 degrees 09 minutes west longitude.
                [66 FR 4370, Jan. 17, 2001]

                Pt. 922, Subpt. P, App. II
                Appendix II to Subpart P of Part 922—Existing Management Areas Boundary Coordinates
                (1) The boundary of each of the Existing Management Areas is formed by connecting in succession the points at the following coordinates:
                National Oceanic and Atmospheric Administration

                  Key Largo-Management Area
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.19′45″ N
                    80 deg.12′00″ W.

                    2
                    25 deg.16′02″ N
                    80 deg.08′07″ W.

                    3
                    25 deg.07′05″ N
                    80 deg.12′05″ W.

                    4
                    24 deg.58′03″ N
                    80 deg.19′08″ W.

                    5
                    25 deg.02′02″ N
                    80 deg.25′25″ W.

                    6
                    25 deg.19′45″ N
                    80 deg.12′00″ W.

                  Looe Key Management Area
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.31′62″ N
                    81 deg.26′00″ W.

                    2
                    24 deg.33′57″ N
                    81 deg.26′00″ W.

                    3
                    24 deg.34′15″ N
                    81 deg.23′00″ W.

                    4
                    24 deg.32′20″ N
                    81 deg.23′00″ W.

                    5
                    24 deg.31′62″ N
                    81 deg.26′00″ W.

                United States Fish and Wildlife Service

                  Great White Heron National Wildlife Refuge
                  [Based on the North American Datum of 1983]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.43.8′ N
                    81 deg.48.6′ W.

                    2
                    24 deg.43.8′ N
                    81 deg.37.2′ W.

                    3
                    24 deg.49.2′ N
                    81 deg.37.2′ W.

                    4
                    24 deg.49.2′ N
                    81 deg.19.8′ W.

                    5
                    24 deg.48.0′ N
                    81 deg.19.8′ W.

                    6
                    24 deg.48.0′ N
                    81 deg.14.4′ W.

                    7
                    24 deg.49.2′ N
                    81 deg.14.4′ W.

                    8
                    24 deg.49.2′ N
                    81 deg.08.4′ W.

                    9
                    24 deg.43.8′ N
                    81 deg.08.4′ W.

                    10
                    24 deg.43.8′ N
                    81 deg.14.4′ W.

                    11
                    24 deg.43.2′ N
                    81 deg.14.4′ W.

                    12
                    24 deg.43.2′ N
                    81 deg.16.2′ W.

                    13
                    24 deg.42.6′ N
                    81 deg.16.2′ W.

                    14
                    24 deg.42.6′ N
                    81 deg.21.0′ W.

                    15
                    24 deg.41.4′ N
                    81 deg.21.0′ W.

                    16
                    24 deg.41.4′ N
                    81 deg.22.2′ W.

                    17
                    24 deg.43.2′ N
                    81 deg.22.2′ W.

                    18
                    24 deg.43.2′ N
                    81 deg.22.8′ W.

                    19
                    24 deg.43.8′ N
                    81 deg.22.8′ W.

                    20
                    24 deg.43.8′ N
                    81 deg.24.0′ W.

                    21
                    24 deg.43.2′ N
                    81 deg.24.0′ W.

                    22
                    24 deg.43.2′ N
                    81 deg.26.4′ W.

                    23
                    24 deg.43.8′ N
                    81 deg.26.4′ W.

                    24
                    24 deg.43.8′ N
                    81 deg.27.0′ W.

                    25
                    24 deg.43.2′ N
                    81 deg.27.0′ W.

                    26
                    24 deg.43.2′ N
                    81 deg.29.4′ W.

                    27
                    24 deg.42.6′ N
                    81 deg.29.4′ W.

                    28
                    24 deg.42.6′ N
                    81 deg.30.6′ W.

                    29
                    24 deg.41.4′ N
                    81 deg.30.6′ W.

                    30
                    24 deg.41.4′ N
                    81 deg.31.2′ W.

                    31
                    24 deg.40.8′ N
                    81 deg.31.2′ W.

                    32
                    24 deg.40.8′ N
                    81 deg.32.4′ W.

                    33
                    24 deg.41.4′ N
                    81 deg.32.4′ W.

                    34
                    24 deg.41.4′ N
                    81 deg.34.2′ W.

                    35
                    24 deg.40.8′ N
                    81 deg.34.2′ W.

                    36
                    24 deg.48.0′ N
                    81 deg.35.4′ W.

                    37
                    24 deg.39.6′ N
                    81 deg.35.4′ W.

                    38
                    24 deg.39.6′ N
                    81 deg.36.0′ W.

                    39
                    24 deg.39.0′ N
                    81 deg.36.0′ W.

                    40
                    24 deg.39.0′ N
                    81 deg.37.2′ W.

                    41
                    24 deg.37.8′ N
                    81 deg.37.2′ W.

                    42
                    24 deg.37.8′ N
                    81 deg.37.8′ W.

                    43
                    24 deg.37.2′ N
                    81 deg.37.8′ W.

                    44
                    24 deg.37.2′ N
                    81 deg.40.2′ W.

                    45
                    24 deg.36.0′ N
                    81 deg.40.2′ W.

                    46
                    24 deg.36.0′ N
                    81 deg.40.8′ W.

                    47
                    24 deg.35.4′ N
                    81 deg.40.8′ W.

                    48
                    24 deg.35.4′ N
                    81 deg.42.0′ W.

                    49
                    24 deg.36.0′ N
                    81 deg.42.0′ W.

                    50
                    24 deg.36.0′ N
                    81 deg.48.6′ W.

                    51
                    24 deg.43.8′ N
                    81 deg.48.6′ W.

                  Key West National Wildlife Refuge
                  [Based on the North American Datum of 1983]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.40.0′ N
                    81 deg.49.0′ W.

                    2
                    24 deg.40.0′ N
                    82 deg.10.0′ W.

                    3
                    24 deg.27.0′ N
                    82 deg.10.0′ W.

                    4
                    24 deg.27.0′ N
                    81 deg.49.0′ W.

                    5
                    24 deg.40.0′ N
                    81 deg.49.0′ W.

                (2) When differential Global Positioning Systems data becomes available, these coordinates may be publication in the Federal Register to reflect the increased accuracy of such data.
                [66 FR 4371, Jan. 17, 2001]

                Pt. 922, Subpt. P, App. III
                Appendix III to Subpart P of Part 922—Wildlife Management Areas Access Restrictions

                    Area
                    Access restrictions

                    Bay Keys
                    No-motor zone (300 feet) around one key; idle speed only/no-wake zones in tidal creeks.

                    Boca Grande Key
                    South one-half of beach closed (beach above mean high water closed by Department of the Interior).

                    Woman Key
                    One-half of beach and sand spit on southeast side closed (beach and sand spit above mean high water closed by Department of the Interior).

                    Cayo Agua Keys
                    Idle speed only/no-wake zones in all navigable tidal creeks.

                    Cotton Key
                    No-motor zone on tidal flat.

                    Snake Creek
                    No-motor zone on tidal flat.

                    Cottrell Key
                    No-motor zone (300 feet) around entire key.

                    Little Mullet Key
                    No-access buffer zone (300 feet) around entire key.

                    Big Mullet Key
                    No-motor zone (300 feet) around entire key.

                    Crocodile Lake
                    No-access buffer zone (100 feet) along shoreline between March 1 and October 1.

                    East Harbor Key
                    No-access buffer zone (300 feet) around northernmost island.

                    Lower Harbor Keys
                    Idle speed only/no-wake zones in selected tidal creeks.

                    Eastern Lake Surprise
                    Idle speed only/no-wake zone east of highway U.S. 1.

                    Horseshoe Key
                    No-access buffer zone (300 feet) around main island (main island closed by Department of the Interior).

                    Marquesas Keys
                    (i) No-motor zones (300 feet) around three smallest keys on western side of chain; (ii) no-access buffer zone (300 feet) around one island at western side of chain; (iii) idle speed only/no-wake zone in southwest tidal creek.

                    Tidal flat south of Marvin Key
                    No-access buffer zone on tidal flat.

                    Mud Keys
                    (i) Idle speed only/no-wake zones in the two main tidal creeks; (ii) two smaller creeks on west side closed.

                    Pelican Shoal
                    No-access buffer zone out to 50 meters from shore between April 1 and August 31 (shoal closed by the Florida Game and Freshwater Fish Commission).

                    Rodriguez Key
                    No-motor zone on tidal flats.

                    Dove Key
                    No-motor zone on tidal flats; area around the two small islands closed.

                    Tavernier Key
                    No-motor zone on tidal flats.

                    Sawyer Keys
                    Tidal creeks on south side closed.

                    Snipe Keys
                    (i) Idle speed only/no-wake zone in main tidal creek; (ii) no-motor zone in all other tidal creeks.

                    Upper Harbor Key
                    No-access buffer zone (300 feet) around entire key.

                    East Content Keys
                    Idle speed only/no-wake zones in tidal creeks between southwesternmost keys.

                    West Content Keys
                    Idle speed only/no-wake zones in selected tidal creeks; no-access buffer zone in one cove.

                    Little Crane Key
                    No-access buffer zone (300 feet) around entire key.

                Pt. 922, Subpt. P, App. IV
                Appendix IV to Subpart P of Part 922—Ecological Reserves Boundary
                Coordinates
                (1) The boundary of the Western Sambo Ecological Reserve is formed by connecting in succession the points at the following coordinates:

                  Western Sambo
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.33.70′ N
                    81 deg.40.80′ W.

                    2
                    24 deg.28.85′ N
                    81 deg.41.90′ W.

                    3
                    24 deg.28.50′ N
                    81 deg.43.70′ W.

                    4
                    24 deg.33.50′ N
                    81 deg.43.10′ W.

                    5
                    24 deg.33.70′ N
                    81 deg.40.80′ W.

                (2) The Tortugas Ecological Reserve consists of two discrete areas, Tortugas North and Tortugas South.
                (3) The boundary of Tortugas North is formed by connecting in succession the points at the following coordinates:

                  Tortugas North

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.46.00′ N
                    83 deg.06.00′ W.

                    2
                    24 deg.46.00′ N
                    82 deg.54.00′ W.

                    3
                    24 deg.45.80′ N
                    82 deg.48.00′ W.

                    4
                    24 deg.43.53′ N
                    82 deg.48.00′ W.

                    5
                    24 deg.43.53′ N
                    82 deg.52.00′ W.

                    6
                    24 deg.43.00′ N
                    82 deg.54.00′ W.

                    7
                    24 deg.39.00′ N
                    82 deg.58.00′ W.

                    8
                    24 deg.39.00′ N
                    83 deg.06.00′ W.

                    9
                    24 deg.46.00′ N
                    83 deg.06.00′ W.

                (4) The boundary of Tortugas South is formed by connecting in succession the points at the following coordinates:

                  Tortugas South

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.33.00′ N
                    83 deg.09.00′ W.

                    2
                    24 deg.33.00′ N
                    83 deg.05.00′ W.

                    3
                    24 deg.18.00′ N
                    83 deg.05.00′ W.

                    4
                    24 deg.18.00′ N
                    83 deg.09.00′ W.

                    5
                    24 deg.33.00′ N
                    83 deg.09.00′ W.

                [66 FR 4372, Jan. 17, 2001]

                Pt. 922, Subpt. P, App. V
                Appendix V to Subpart P of Part 922—Sanctuary Preservation Areas Boundary Coordinates

                The boundary of each of the Sanctuary Preservation Areas (SPAs) is formed by connecting in succession the points at the following coordinates:

                  Alligator Reef
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitute
                    Longitude

                    1
                    24 deg.50.98′ N
                    80 deg.36.84′ W.

                    2
                    24 deg.50.51′ N
                    80 deg.37.35′ W.

                    3
                    24 deg.50.81′ N
                    80 deg.37.63′ W.

                    4
                    24 deg.51.23′ N
                    80 deg.37.17′ W.

                    5
                    24 deg.50.98′ N
                    80 deg.36.84′ W.

                Catch and release fishing by trolling only is allowed in this SPA.

                  Carysfort/South Carysfort Reef
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.13.78′ N
                    80 deg.12.00′ W.

                    2
                    25 deg.12.03′ N
                    80 deg.12.98′ W.

                    3
                    25 deg.12.24′ N
                    80 deg.13.77′ W.

                    4
                    25 deg.14.13′ N
                    80 deg.12.78′ W.

                    5
                    25 deg.13.78′ N
                    80 deg.12.00′ W.

                  Cheeca Rocks
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.54.42′ N
                    80 deg.36.91′ W.

                    2
                    24 deg.54.25′ N
                    80 deg.36.77′ W.

                    3
                    24 deg.54.10′ N
                    80 deg.37.00′ W.

                    4
                    24 deg.54.22′ N
                    80 deg.37.15′ W.

                    5
                    24 deg.54.42′ N
                    80 deg.36.91′ W.

                  Coffins Patch
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.41.47′ N
                    80 deg.57.68′ W.

                    2
                    24 deg.41.12′ N
                    80 deg.57.53′ W.

                    3
                    24 deg.40.75′ N
                    80 deg.58.33′ W.

                    4
                    24 deg.41.06′ N
                    80 deg.58.48′ W.

                    5
                    24 deg.41.47′ N
                    80 deg.57.68′ W.

                  Conch Reef
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.57.48′ N
                    80 deg.27.47′ W.

                    2
                    24 deg.57.34′ N
                    80 deg.27.26′ W.

                    3
                    24 deg.56.78′ N
                    80 deg.27.52′ W.

                    4
                    24 deg.56.96′ N
                    80 deg.27.73′ W.

                    5
                    24 deg.57.48′ N
                    80 deg.27.47′ W.

                Catch and release fishing by trolling only is allowed in this SPA.

                  Davis Reef
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.55.61′ N
                    80 deg.30.27′ W.

                    2
                    24 deg.55.41′ N
                    80 deg.30.05′ W.

                    3
                    24 deg.55.11′ N
                    80 deg.30.35′ W.

                    4
                    24 deg.55.34′ N
                    80 deg.30.52′ W.

                    5
                    24 deg.55.61′ N
                    80 deg.30.27′ W.

                  Dry Rocks
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.07.59′ N
                    80 deg.17.91′ W.

                    2
                    25 deg.07.41′ N
                    80 deg.17.70′ W.

                    3
                    25 deg.07.25′ N
                    80 deg.17.82′ W.

                    4
                    25 deg.07.41′ N
                    80 deg.18.09′ W.

                    5
                    25 deg.07.59′ N
                    80 deg.17.91′ W.

                  Grecian Rocks
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.06.91′ N
                    80 deg.18.20′ W.

                    2
                    25 deg.06.67′ N
                    80 deg.18.06′ W.

                    3
                    25 deg.06.39′ N
                    80 deg.18.32′ W.

                    4
                    25 deg.06.42′ N
                    80 deg.18.48′ W.

                    5
                    25 deg.06.81′ N
                    80 deg.18.44′ W.

                    6
                    25 deg.06.91′ N
                    80 deg.18.20′ W.

                  Eastern Dry Rocks
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.27.92′ N
                    81 deg.50.55′ W.

                    2
                    24 deg.27.73′ N
                    81 deg.50.33′ W.

                    3
                    24 deg.27.47′ N
                    81 deg.50.80′ W.

                    4
                    24 deg.27.72′ N
                    81 deg.50.86′ W.

                    5
                    24 deg.27.92′ N
                    81 deg.50.55′ W.

                  The Elbow
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.08.97′ N
                    80 deg.15.63′ W.

                    2
                    25 deg.08.95′ N
                    80 deg.15.22′ W.

                    3
                    25 deg.08.18′ N
                    80 deg.15.64′ W.

                    4
                    25 deg.08.50′ N
                    80 deg.16.07′ W.

                    5
                    25 deg.08.97′ N
                    80 deg.15.63′ W.

                  French Reef
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.02.20′ N
                    80 deg.20.63′ W.

                    2
                    25 deg.01.81′ N
                    80 deg.21.02′ W.

                    3
                    25 deg.02.36′ N
                    80 deg.21.27′ W.

                    4
                    25 deg.02.20′ N
                    80 deg.20.63′ W.

                  Hen and Chickens
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.56.38′ N
                    80 deg.32.86′ W.

                    2
                    24 deg.56.21′ N
                    80 deg.32.63′ W.

                    3
                    24 deg.55.86′ N
                    80 deg.32.95′ W.

                    4
                    24 deg.56.04′ N
                    80 deg.33.19′ W.

                    5
                    24 deg.56.38′ N
                    80 deg.32.86′ W.

                  Looe Key
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.33.24′ N
                    81 deg.24.03′ W.

                    2
                    24 deg.32.70′ N
                    81 deg.23.85′ W.

                    3
                    24 deg.32.52′ N
                    81 deg.24.70′ W.

                    4
                    24 deg.33.12′ N
                    81 deg.24.81′ W.

                    5
                    24 deg.33.24′ N
                    81 deg.24.03′ W.

                  Molasses Reef
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    25 deg.01.00′ N
                    80 deg.22.53′ W.

                    2
                    25 deg.01.06′ N
                    80 deg.21.84′ W.

                    3
                    25 deg.00.29′ N
                    80 deg.22.70′ W.

                    4
                    25 deg.00.72′ N
                    80 deg.22.83′ W.

                    5
                    25 deg.01.00′ N
                    80 deg.22.53′ W.

                  Newfound Harbor Key
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.37.10′ N
                    81 deg.23.34′ W.

                    2
                    24 deg.36.85′ N
                    81 deg.23.28′ W.

                    3
                    24 deg.36.74′ N
                    81 deg.23.80′ W.

                    4
                    24 deg.37.00′ N
                    81 deg.23.86′ W.

                    5
                    24 deg.37.10′ N
                    81 deg.23.34′ W.

                  Rock Key
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.27.48′ N
                    81 deg.51.35′ W.

                    2
                    24 deg.27.30′ N
                    81 deg.51.15′ W.

                    3
                    24 deg.27.21′ N
                    81 deg.51.60′ W.

                    4
                    24 deg.27.45′ N
                    81 deg.51.65′ W.

                    5
                    24 deg.27.48′ N
                    81 deg.51.35′ W.

                  Sand Key
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.27.58′ N
                    81 deg.52.29′ W.

                    2
                    24 deg.27.01′ N
                    81 deg.52.32′ W.

                    3
                    24 deg.27.02′ N
                    81 deg.52.95′ W.

                    4
                    24 deg.27.61′ N
                    81 deg.52.94′ W.

                    5
                    24 deg.27.58′ N
                    81 deg.52.29′ W.

                Catch and release fishing by trolling only is allowed in this SPA.

                  Sombrero Key
                  [Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.37.91′ N
                    81 deg.06.78′ W.

                    2
                    24 deg.37.50′ N
                    81 deg.06.19′ W.

                    3
                    24 deg.37.25′ N
                    81 deg.06.89′ W.

                    4
                    24 deg.37.91′ N
                    81 deg.06.78′ W.

                Catch and release fishing by trolling only is allowed in this SPA.
                [66 FR 4373, Jan. 17, 2001]

                Pt. 922, Subpt. P, App. VI
                Appendix VI to Subpart P of Part 922—Special-Use Areas Boundary Coordinates and Use Designations
                The boundary of each of the Special-Use is formed by connecting in succession the points at the following coordinates:

                  Conch Reef
                  (Research Only)—[Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.56.83′ N
                    80 deg.27.26′ W.

                    2
                    24 deg.57.10′ N
                    80 deg.26.93′ W.

                    3
                    24 deg.56.99′ N
                    80 deg.27.42′ W.

                    4
                    24 deg.57.34′ N
                    80 deg.27.26′ W.

                    5
                    24 deg.56.83′ N
                    80 deg.27.26′ W.

                  Eastern Sambo
                  (Research Only)—[Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.29.84′ N
                    81 deg.39.59′ W.

                    2
                    24 deg.29.55′ N
                    81 deg.39.35′ W.

                    3
                    24 deg.29.37′ N
                    81 deg.39.96′ W.

                    4
                    24 deg.29.77′ N
                    81 deg.40.03′ W.

                    5
                    24 deg.29.84′ N
                    81 deg.39.59′ W.

                  Looe Key
                  (Research Only)—[Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.34.17′ N
                    81 deg.23.01′ W.

                    2
                    24 deg.33.98′ N
                    81 deg.22.96′ W.

                    3
                    24 deg.33.84′ N
                    81 deg.23.60′ W.

                    4
                    24 deg.34.23′ N
                    81 deg.23.68′ W.

                    5
                    24 deg.34.17′ N
                    81 deg.23.01′ W.

                  Tennessee Reef
                  (Research Only)—[Based on differential Global Positioning Systems data]

                    Point
                    Latitude
                    Longitude

                    1
                    24 deg.44.77′ N
                    80 deg.47.12′ W.

                    2
                    24 deg.44.57′ N
                    80 deg.46.98′ W.

                    3
                    24 deg.44.68′ N
                    80 deg.46.59′ W.

                    4
                    24 deg.44.95′ N
                    80 deg.46.74′ W.

                    5
                    24 deg.44.77′ N
                    80 deg.47.12′ W.

                [66 FR 4376, Jan. 17, 2001]

                Pt. 922, Subpt. P, App. VII
                Appendix VII to Subpart P of Part 922—Areas To Be Avoided Boundary Coordinates

                  In The Vicinity of the Florida Keys
                  [Reference Charts: United States 11466, 27th Edition—September 1, 1990 and United States 11450, 4th Edition—August 11, 1990]

                    Point
                    Latitude
                    Longitude

                    1
                    25°45.00′ N
                    80°06.10′ W

                    2
                    25°38.70′ N
                    80°02.70′ W

                    3
                    25°22.00′ N
                    80°03.00′ W

                    4
                    25°06.38′ N
                    80°10.48′ W

                    5
                    24°56.37′ N
                    80°19.26′ W

                    6
                    24°37.90′ N
                    80°47.30′ W

                    7
                    24°29.20′ N
                    81°17.30′ W

                    8
                    24°22.30′ N
                    81°43.17′ W

                    9
                    24°28.00′ N
                    81°43.17′ W

                    10
                    24°28.70′ N
                    81°43.50′ W

                    11
                    24°29.80′ N
                    81°43.17′ W

                    12
                    24°33.10′ N
                    81°35.15′ W

                    13
                    24°33.60′ N
                    81°26.00′ W

                    14
                    24°38.20′ N
                    81°07.00′ W

                    15
                    24°43.20′ N
                    80°53.20′ W

                    16
                    24°46.10′ N
                    80°46.15′ W

                    17
                    24°51.10′ N
                    80°37.10′ W

                    18
                    24°57.50′ N
                    80°27.50′ W

                    19
                    25°09.90′ N
                    80°16.20′ W

                    20
                    25°24.00′ N
                    80°09.10′ W

                    21
                    25°31.50′ N
                    80°07.00′ W

                    22
                    25°39.70′ N
                    80°06.85′ W

                    23
                    25°45.00′ N
                    80°06.10′ W

                  In the Vicinity of Key West Harbor
                  [Reference Chart: United States 11434, 21st Edition—August 11, 1990]

                    Point
                    Latitude
                    Longitude

                    24
                    24 deg.27.95' N
                    81 deg.48.65' W.

                    25
                    24 deg.23.00' N
                    81 deg.53.50' W.

                    26
                    24 deg.26.60' N
                    81 deg.58.50' W.

                    27
                    24 deg.27.75' N
                    81 deg.55.70' W.

                    28
                    24 deg.29.35' N
                    81 deg.53.40' W.

                    29
                    24 deg.29.35' N
                    81 deg.50.00' W.

                    30
                    24 deg.27.95' N
                    81 deg.48.65' W.

                  Area Surrounding the Marquesas Keys
                  [Reference Chart: United States 11434, 21st Edition—August 11, 1990]

                    Point
                    Latitude
                    Longitude

                    31
                    24 deg.26.60' N
                    81 deg.59.55' W.

                    32
                    24 deg.23.00' N
                    82 deg.03.50' W.

                    33
                    24 deg.23.60' N
                    82 deg.27.80' W.

                    34
                    24 deg.34.50' N
                    82 deg.37.50' W.

                    35
                    24 deg.43.00' N
                    82 deg.26.50' W.

                    36
                    24 deg.38.31' N
                    81 deg.54.06' W.

                    37
                    24 deg.37.91' N
                    81 deg.53.40' W.

                    38
                    24 deg.36.15' N
                    81 deg.51.78' W.

                    39
                    24 deg.34.40' N
                    81 deg.50.60' W.

                    40
                    24 deg.33.44' N
                    81 deg.49.73' W.

                    41
                    24 deg.31.20' N
                    81 deg.52.10' W.

                    42
                    24 deg.28.70' N
                    81 deg.56.80' W.

                    43
                    24 deg.26.60' N
                    81 deg.59.55' W.

                  Area Surrounding the Dry Tortugas Islands
                  [Reference Chart: United States 11434, 21st Edition—August 11, 1990]

                    Point
                    Latitude
                    Longitude

                    44
                    24 deg.32.00' N
                    82 deg.53.50' W.

                    45
                    24 deg.32.00' N
                    83 deg.00.05' W.

                    46
                    24 deg.39.70' N
                    83 deg.00.05' W.

                    47
                    24 deg.45.60' N
                    82 deg.54.40' W.

                    48
                    24 deg.45.60' N
                    82 deg.47.02' W.

                    49
                    24 deg.42.80' N
                    82 deg.43.90' W.

                    50
                    24 deg.39.50' N
                    82 deg.43.90' W.

                    51
                    24 deg.35.60' N
                    82 deg.46.40' W.

                    52
                    24 deg.32.00' N
                    82 deg.53.50' W.

                [66 FR 4377, Jan. 17, 2001, as amended at 66 FR 34534, June 29, 2001]

              Subpart Q—Hawaiian Islands Humpback Whale National Marine Sanctuary

                Authority:
                16 U.S.C. 1431 et seq. and subtitle C, title II, Pub. L. 102-587, 106 Stat. 5055.

                Source:
                64 FR 66570, Nov. 29, 1999, unless otherwise noted.

                § 922.180
                Purpose.

                (a) The purpose of the regulations in this subpart is to implement the designation of the Hawaiian Islands Humpback Whale National Marine Sanctuary by regulating activities affecting the resources of the Sanctuary or any of the qualities, values, or purposes for which the Sanctuary was designated, in order to protect, preserve, and manage the conservation, ecological, recreational, research, educational, historical, cultural, and aesthetic resources and qualities of the area. The regulations are intended to supplement and complement existing regulatory authorities; to facilitate to the extent compatible with the primary objective of protecting the humpback whale and its habitat, all public and private uses of the Sanctuary, including uses of Hawaiian natives customarily and traditionally exercised for subsistence, cultural, and religious purposes, as well as education, research, recreation, commercial and military activities; to reduce conflicts between compatible uses; to maintain, restore, and enhance the humpback whale and its habitat; to contribute to the maintenance of natural assemblages of humpback whales for future generations; to provide a place for humpback whales that are dependent on their Hawaiian Islands wintering habitat for reproductive activities, including breeding, calving, and nursing, and for the long-term survival of their species; and to achieve the other purposes and policies of the HINMSA and NMSA.
                (b) These regulations may be modified to fulfill the Secretary's responsibilities for the Sanctuary, including the provision of additional protections for humpback whales and their habitat, if reasonably necessary, and the conservation and management of other marine resources, qualities and ecosystems of the Sanctuary determined to be of national significance. The Secretary shall consult with the Governor of the State of Hawaii on any modification to the regulations contained in this part. For any modification of the regulations contained in this part that would constitute a change in a term of the designation, as contained in the Designation Document for the Sanctuary, the Secretary shall follow the applicable requirements of sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the HINMSA.
                (c) Section 304(e) of the NMSA requires the Secretary to review management plans and regulations every five years, and make necessary revisions. Upon completion of the five year review of the Sanctuary management plan and regulations, the Secretary will repropose the Sanctuary management plan and regulations in their entirety with any proposed changes thereto. The Governor of the State of Hawaii will have the opportunity to review the re-proposed management plan and regulations before they take effect and if the Governor certifies any term or terms of such management plan or regulations as unacceptable, the unacceptable term or terms will not take effect in State waters of the Sanctuary.

                § 922.181
                Boundary.
                (a) Except for excluded areas described in paragraph (b) of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the shoreline, cutting across the mouths of rivers and streams:
                (1) To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai;
                (2) To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu;
                (3) To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and westward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters seaward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui;
                (4) To the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward;
                (5) To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii.
                (b) Excluded from the Sanctuary boundary are the following commercial ports and small boat harbors:

                  Hawaii (Big Island)
                  Kawaihae Boat Harbor & Small Boat Basin
                  Lanai
                  Kaumalapau Harbor, Manele Harbor
                  Maui
                  Lahaina Boat Harbor
                  Maalaea Boat Harbor
                  Molokai
                  Hale o Lono Harbor
                  Kaunakakai Harbor
                  Oahu
                  Kuapa Pond (Hawaii Kai)

                (c) The coordinates of the lateral extents of each boundary area within the Sanctuary boundary appear in appendix A of this subpart Q.

                § 922.182
                Definitions.
                (a) Acts means the Hawaiian Islands National Marine Sanctuary Act (HINMSA; sections 2301-2307 of Pub. L. 102-587), and the National Marine Sanctuaries Act (NMSA; also known as Title III of the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16 U.S.C. 1431 et seq.).

                  Adverse impact means an impact that independently or cumulatively damages, diminishes, degrades, impairs, destroys, or otherwise harms.

                  Alteration of the seabed means drilling into, dredging, or otherwise altering a natural physical characteristic of the seabed of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary.

                  Habitat means those areas that provide space for individual and population growth and normal behavior of humpback whales, and include sites used for reproductive activities, including breeding, calving and nursing.

                  Military activities means those military activities conducted by or under the auspices of the Department of Defense and any combined military activities carried out by the Department of Defense and the military forces of a foreign nation.

                  Sanctuary means the Hawaiian Islands Humpback Whale National Marine Sanctuary.

                  Sanctuary resource means any humpback whale, or the humpback whale's habitat within the Sanctuary.

                  Shoreline means the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.

                  Take or taking a humpback whale means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure a humpback whale, or to attempt to engage in any such conduct. The term includes, but is not limited to, any of the following activities: collecting any dead or injured humpback whale, or any part thereof; restraining or detaining any humpback whale, or any part thereof, no matter how temporarily; tagging any humpback whale; operating a vessel or aircraft or doing any other act that results in the disturbing or molesting of any humpback whale.

                (b) Other terms appearing in the regulations in this subpart are defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq.

                § 922.183
                Allowed activities.
                (a) All activities except those prohibited by § 922.184 may be undertaken in the Sanctuary subject to any emergency regulations promulgated pursuant to § 922.185, subject to the interagency cooperation provisions of section 304(d) of the NMSA [16 U.S.C. 1434(d)] and § 922.187 of this subpart, and subject to the liability established by section 312 of the NMSA and § 922.46 of this part. All activities are also subject to all prohibitions, restrictions, and conditions validly imposed by any other Federal, State, or county authority of competent jurisdiction.
                (b) Included as activities allowed under the first sentence of paragraph (a) of this § 922.183 are all classes of military activities, internal or external to the Sanctuary, that are being or have been conducted before the effective date of these regulations, as identified in the Final Environmental Impact Statement/Management Plan. Paragraphs (a)(1) through (a)(5) of § 922.184 do not apply to these classes of activities, nor are these activities subject to further consultation under section 304(d) of the NMSA.
                (c) Military activities proposed after the effective date of these regulations are also included as allowed activities under the first sentence of paragraph (a) of this § 922.183. Paragraphs (a)(1) through (a)(5) of § 922.184 apply to these classes of activities unless—
                (1) They are not subject to consultation under section 304(d) of the NMSA and § 922.187 of this subpart, or

                (2) Upon consultation under section 304(d) of the NMSA and § 922.187 of this subpart, NOAA's findings and recommendations include a statement that paragraphs (a)(1) through (a)(5) of § 922.184 do not apply to the military activity.
                (d) If a military activity described in paragraphs (b) or (c)(2) of this § 922.183 is modified such that it is likely to destroy, cause the loss of, or injure a Sanctuary resource in a manner significantly greater than was considered in a previous consultation under section 304(d) of the NMSA and § 922.187 of this subpart, or if the modified activity is likely to destroy, cause the loss of, or injure any Sanctuary resource not considered in a previous consultation under section 304(d) of the NMSA and § 922.187 of this subpart, the modified activity will be treated as a new military activity under paragraph (c) of this section.
                (e) If a proposed military activity subject to section 304(d) of the NMSA and § 922.187 of this subpart is necessary to respond to an emergency situation and the Secretary of Defense determines in writing that failure to undertake the proposed activity during the period of consultation would impair the national defense, the Secretary of the military department concerned may request the Director that the activity proceed during consultation. If the Director denies such a request, the Secretary of the military department concerned may decide to proceed with the activity. In such case, the Secretary of the military department concerned shall provide the Director with a written statement describing the effects of the activity on Sanctuary resources once the activity is completed.

                § 922.184
                Prohibited activities.
                (a) The following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted.

                (1) Approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale except as authorized under the Marine Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., and the Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq.;

                (2) Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except as necessary for takeoff or landing from an airport or runway, or as authorized under the MMPA and the ESA;
                (3) Taking any humpback whale in the Sanctuary except as authorized under the MMPA and the ESA;
                (4) Possessing within the Sanctuary (regardless of where taken) any living or dead humpback whale or part thereof taken in violation of the MMPA or the ESA;
                (5) Discharging or depositing any material or other matter in the Sanctuary; altering the seabed of the Sanctuary; or discharging or depositing any material or other matter outside the Sanctuary if the discharge or deposit subsequently enters and injures a humpback whale or humpback whale habitat, provided that such activity:
                (i) Requires a Federal or State permit, license, lease, or other authorization; and
                (ii) Is conducted:
                (A) Without such permit, license, lease, or other authorization, or
                (B) not in compliance with the terms or conditions of such permit, license, lease, or other authorization.
                (6) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of either of the Acts or any regulations issued under either of the Acts.
                (b) The prohibitions in paragraphs (a)(1) through (a)(5) of this § 922.184 do not apply to activities necessary to respond to emergencies threatening life, property or the environment; or to activities necessary for valid law enforcement purposes. However, while such activities are not subject to paragraphs (a)(1) through (a)(5) of this § 922.184, this paragraph (b) does not exempt the activity from the underlying prohibition or restriction under other applicable laws and regulations (e.g., MMPA, ESA, and CWA).
                (c) Any Sanctuary fishery regulations shall not take effect in Hawaii State waters until established by the State Board of Land and Natural Resources.

                § 922.185
                Emergency regulations.
                Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. Before issuance of such regulations the Director shall consult to the extent practicable with any relevant Federal agency and the Governor of the State of Hawaii. Emergency regulations shall not take effect in State waters of the Sanctuary until approved by the Governor of Hawaii.

                § 922.186
                Penalties; appeals.
                (a) Pursuant to section 307 of the NMSA, each violation of either of the Acts, or any regulation in this subpart is subject to a civil penalty of not more than $100,000. Each such violation is subject to forfeiture of property or Sanctuary resources seized in accordance with section 307 of the NMSA. Each day of a continuing violation constitutes a separate violation.
                (b) Regulations setting forth the procedures governing the administrative proceedings for assessment of civil penalties for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR Part 904.
                (c) A person subject to an action taken for enforcement reasons for violation of these regulations or either of the Acts may appeal pursuant to the applicable procedures in 15 CFR Part 904.

                § 922.187
                Interagency Cooperation.
                Under section 304(d) of the NMSA, Federal agency actions internal or external to a national marine sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource are subject to consultation with the Director. The Federal agency proposing an action shall determine whether the activity is likely to destroy, cause the loss of, or injure a Sanctuary resource. To the extent practicable, consultation procedures under section 304(d) of the NMSA may be consolidated with interagency cooperation procedures required by other statutes, such as the ESA. The Director will attempt to provide coordinated review and analysis of all environmental requirements.

                Pt. 922, Subpt. Q, App. A
                Appendix A to Subpart Q of Part 922—Hawaiian Islands Humpback Whale, National Marine Sanctuary Boundary Description and Coordinates of the Lateral Boundary Closures and Excluded Areas.

                Appendix A provides a text and pictoral (see Figures 1-3) description of the Sanctuary boundary with specific lateral closure points and exclusion areas. The lateral extents (bounds) of each boundary area are closed by straight lines defined by at least two points. It may be necessary to extend these lines beyond the defining points to intersect the actual 100 fathom contour or the shoreline. Each point corresponds to a bounds number indicated in Figure 2. Digital files of the Sanctuary boundary (available in three common formats, ESRI Shape File, MapInfo Table, and an ASCII Exchange Format) are available from the Sanctuary office in Kihei, Maui, at the address listed above or by calling (808) 879-2818. These digital geographies are the best available representation of the verbal legal delineation and were derived from: the Hawaiian shoreline as supplied by State of Hawaii through the Office of Planning GIS Office, the NOAA and State of Hawaii agreed upon lateral boundary and exclusion areas, and the 100 fathom isobath digitized from the following 1:80,000 scale NOAA nautical charts-19327—West Coast of Hawaii (9th ED, 4/29/89),

                19347—Channels between Molokai, Maui, Lanai, and Kahoolawe (17th ED, 12/13/97),
                19351—Channels between Oahu, Molokai, and Lanai (8th ED, 7/01/1989),
                19357—Island of Oahu (20th ED, 9/21/1996), and
                19381—Island of Kauai (8th ED, 7/17/1993)].

                For the portion of the Lanai region of the HIHWNMS west of Chart 19351,[157°42.8′ west] the 100 fathom contour was derived from the 1:250,000 chart 19340—Hawaii to Oahu (24th ED, 1/09/1993).
                All digital geography data have been referenced to WGS84 (NAD83) and have been converted to geographic (latitude and longitude) coordinates.
                Sanctuary Boundary

                A. As defined by the specific lateral boundaries in B, and except for excluded areas described in paragraph C of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the shoreline, cutting across the mouths of rivers and streams (see Figure 1):
                1. To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai;
                2. To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu;
                3. To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and westward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters seaward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui;
                4. To the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward;
                5. To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii.

                  ER29NO99.000

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

                  ER29NO99.001

                    Bound No.(Fig. 2)

                    Geographic name
                    No. ofpoints

                    Latitude
                    Longitude

                     1
                    Kailiu Pt., Kauai
                     2
                    22°13′24.7″22°16′33.5″

                    −159°34′52.2″−159°35′59.4″

                     2
                    Mokolea Pt., Kauai
                     2
                    22°13′29.9″22°14′55.4″

                    −159°22′55.8″-159°22′19.3″

                     3
                    Puaena Pt., N. Oahu
                     2
                    21°38′24.6″21°36′8.4″

                    −158°8′26.0″−158°6′24.5″

                     4
                    Mahie Pt., N. Oahu
                     2
                    21°33′37.3″21°35′32.2″

                    −157°51′51.9″−157°50′5.5″

                     5
                    Kapahulu Groin, S. Oahu
                     3
                    21°15′5.7″21°16′6.1″
                      21°16′6.2″

                    −157°50′27.5″−157°49′25.7″
                      −157°49′23.8″

                     6
                    Makapuu Pt., S. Oahu
                     2
                    21°18′39.6″21°19′44.7″

                    −157°38′56.7″−157°35′46.1″

                     7
                    Ilio Pt, Molokai
                     2
                    21°13′25.7″21°13′27.0″

                    −157°18′45.8″−157°15′14.4″

                     8
                    Pailolo Channel, C. Halawa to Lipoa Pt.
                     2
                    21°1′29.8″21°9′29.5″

                    −156°38′22.0″−156°42′37.2″

                     9
                    Hanamanoia Lighthouse, Maui
                     2
                    20°34′21.8″20°34′58.4″

                    −156°26′51.1″−156°24′45.2″

                     10
                    3 Nmi. closure around Kahoolawe
                    51
                    20°35′58.1″20°35′59.9″

                    −156°29′32.0″−156°29′33.0″

                    20°36′3.9″
                    −156°29′35.5″

                    20°36′6.6″
                    −156°29′36.9″

                    20°36′16.3″
                    −156°29′43.1″

                    20°36′25.7″
                    −156°29′49.9″

                    20°36′34.6″
                    −156°29′57.3″

                    20°36′39.9″
                    −156°30′2.2″

                    20°36′43.8″
                    −156°30′5.5″

                    20°36′50.8″
                    −156°30′12.1″

                    20°36′59.0″
                    −156°30′16.5″

                    20°37′58.7″
                    −156°30′22.7″

                    20°37′18.1″
                    −156°30′29.5″

                    20°37′27.0″
                    −156°30′36.8″

                    20°37′35.5″
                    −156°30′44.8″

                    20°37′43.4″
                    −156°30′53.4″

                    20°37′50.9″
                    −156°31′2.4″

                    20°37′56.4″
                    −156°31′10.0″

                    20°37′59.0″
                    −156°31′13.2″

                    20°38′6.0″
                    −156°31′22.7″

                    20°38′8.6″
                    −156°31′26.8″

                    20°38′10.8″
                    −156°31′29.9″

                    20°38′17.2″
                    −156°31′39.9″

                    20°38′18.9″
                    −156°31′43.0″

                    20°38′23.4″
                    −156°31′48.4″

                    20°38′30.3″
                    −156°31′58.0″

                    20°38′36.6″
                    −156°32′7.9″

                    20°38′42.4″
                    −156°32′18.3″

                    20°38′43.4″
                    −156°32′20.5″

                    20°38′46.4″
                    −156°32′25.9″

                    20°38′51.5″
                    −156°32′36.7″

                    20°38′56.0″
                    −156°32′47.7″

                    20°38′59.8″
                    −156°32′59.1″

                    20°39′3.0″
                    −156°33′10.7″

                    20°39′4.0″
                    −156°33′15.7″

                    20°39′4.4″
                    −156°33′17.0″

                    20°39′5.3″
                    −156°33′21.1″

                    20°39′6.8″
                    −156°33′28.7″

                    20°39′8.6″
                    −156°33′40.7″

                    20°39′8.9″
                    −156°33′44.4″

                    20°39′9.7″
                    −156°33′49.6″

                    20°39′10.1″
                    −156°33′53.8″

                    20°39′11.0″
                    −156°34′0.3″

                    20°39′12.1″
                    −156°34′12.4″

                    20°39′12.5″
                    −156°34′24.4″

                    20°39′12.4″
                    −156°34′25.4″

                    20°39′12.6″
                    −156°34′30.5″

                    20°39′12.2″
                    −156°34′42.6″

                    20°39′11.8″
                    −156°34′47.7″

                    20°39′11.7″
                    −156°34′48.9″

                    20°39′11.3″
                    −156°34′55.8″

                    11
                    Technical Cosure
                    2
                    20°41′39.2″20°41′45.0″

                    −156°37′7.5″−156°38′3.6″

                    North of Kahoolawe

                    12
                    Upolu Pt., Hawaii (Big Island)
                    2
                    20°16′5.3″20°17′59.9″

                    −155°51′0.5″−155°51′17.2″

                    13
                    Keahole Pt., Hawaii (Big Island)
                    2
                    19°43′39.6″19°43′41.5″

                    −156′3′42.7″−156°4′14.5″

                  C. Excluded Ports and Harbors Bounds (see Figure 3).

                  ER29NO99.002

                    Bound No. (Fig.2)
                    Geographic Name
                    No. of Points
                    Latitude
                    Longitude

                    14
                    Kawaihae Harbor, Big Island exclusion
                    2
                    20°2′14.3″20°2′25.3″

                    −155°50′2.5″−155°49′57.7″

                    15
                    Haleolono Harbor, Molokai exclusion
                    2
                    21°5′3.5″21°5′4.8″

                    −157°14′58.6″−157°14′55.2″

                    16
                    Kaunakakai Harbor, Molokai exclusion
                    4
                    21°5′13.9″21°4′49.2″
                      21°4′38.5″
                      21°5′7.4″

                    −157°1′35.7″−157°1′58.3″
                      −157°1′41.2″
                      −157°1′15.0″

                    17
                    Kaumalapau Harbor, Lanai exclusion
                    2
                    20°47′9.2″20°47′1.1″

                    −156°59′32.2″−156°59′31.3″

                    18
                    Manele Harbor, Lanai exclusion
                    2
                    20°44′33.2″20°44′35.2″

                    −156°53′12.9″−156°53′14.1″

                    19
                    Lahaina Harbor, Maui exclusion
                    2
                    20°52′18.3″20°52′18.8″

                    −156°40′45.0″−156°40′44.0″

                    20
                    Maalaea Harbor, Maui exclusion
                    2
                    20°47′32.1″20°47′24.8″

                    −156°30′35.0″−156°30′39.6″

                    21
                    Western closure Kuapa Pond (Hawaii Kai), Oahu
                    2
                    21°17′7.0″21°17′6.5″

                    −157°43′7.7″−157°43′7.0″

                    22
                    Eastern closure Kuapa Pond (Hawaii Kai), Oahu
                    2
                    21°16′53.3″21°16′51.9″

                    −157°42′42.7″−157°42′40.3″

              Subpart R—Thunder Bay National Marine Sanctuary and Underwater Preserve

                Source:
                65 FR 39056, June 22, 2000, unless otherwise noted.

                § 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 4,300 square miles of waters of Lake Huron and the submerged lands thereunder, over, around, and under the underwater cultural resources in Thunder Bay. The eastern boundary of the sanctuary begins at the intersection of the southern Alcona County boundary and the U.S./Canada international boundary (Point 1). The eastern boundary of the sanctuary approximates the international boundary passing through Points 2-5. The boundary continues west through Point 6 and then back to the northeast until it intersects with the 45.83333°N line of latitude at Point 7. The northern boundary follows the line of latitude 45.83333°N westward until it intersects the −84.33333°W line of longitude at Point 8. The western boundary extends south along the −84.33333°W line of longitude towards Point 9 until it intersects the ordinary high water mark at Cordwood Point. From there, the western boundary follows the ordinary high water mark as defined by Part 325, Great Lakes Submerged Lands, of P.A. 451 (1994), as amended, cutting across the mouths of rivers and streams until it intersects the line formed between Point 10 and Point 11 south of Rogers City, MI. From there the boundary moves offshore through Points 11-15 in order until it intersects the ordinary high water mark along the line formed between Point 15 and Point 16. At this intersection the boundary continues to follow the ordinary high water mark south until it intersects with the line formed between Point 17 and Point 18 near Stoneport Harbor Light in Presque Isle, MI.
                From there the boundary moves offshore through Points 18-20 in order until it intersects the ordinary high water mark along the line formed between Point 20 and Point 21. At this intersection the boundary continues to follow the ordinary high water mark south until it intersects the line formed between Point 22 and Point 23 near the Lafarge dock in Alpena, MI. At this intersection the boundary moves towards Point 23 until it intersects the ordinary high water mark. At this intersection the boundary follows the ordinary high water mark south until it intersects the southern Alcona County boundary along the lined formed between Point 24 and Point 25 in Greenbush, MI. Finally, at this intersection the boundary moves eastward and offshore until it reaches Point 25.
                (b) Excluded from the Sanctuary boundary are the following ports:
                (1) Rogers City;
                (2) Presque Isle; and
                (3) Alpena.
                (c) The coordinates of each boundary area appear in appendix A of this subpart.
                [79 FR 52971, Sept. 5, 2014; 79 FR 12080, Sept. 5, 2014]

                § 922.191
                Definitions.
                (a) The following terms are defined for purposes of Subpart R:

                  Minor project means any project listed in appendix B to this Subpart.

                  Programmatic Agreement means the agreement among NOAA, the Federal Advisory Council on Historic Preservation, and the State of Michigan, developed pursuant to the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et seq. and section 106 of the National Historic Preservation Act of 1966 as amended, 16 U.S.C. 470 et seq., which, in part, sets forth the procedures for review and approval of State Permits that authorize activities prohibited by the Sanctuary regulations.

                  State Archaeologist means the State Archaeologist, Michigan Historical Center, Michigan Department of State.

                  State Permit means any lease, permit, license, approval, or other authorization issued by the State of Michigan for the conduct of activities or projects within the Thunder Bay National Marine Sanctuary and Underwater Preserve that are prohibited by the regulations at § 922.193.

                  Traditional fishing means those commercial, recreational, and subsistence fishing activities that were customarily conducted within the Sanctuary prior to its designation or expansion, as identified in the relevant Final Environmental Impact Statement and Management Plan for this Sanctuary. Traditional fishing includes tribal fishing rights as provided for in the 1836 Treaty of Washington and subsequent court decisions related to the Treaty.

                  Treaty fishing rights means those rights reserved in the 1836 Treaty of Washington and in subsequent court decisions related to the Treaty.

                  Underwater cultural resource means:
                (1) Any sunken watercraft, including a ship, boat, canoe, skiff, raft, or barge; the rigging, gear, fittings, trappings, and equipment of any sunken watercraft; the personal property of the officers, crew, and passengers of any sunken watercraft; and the cargo of any sunken watercraft, that sank prior to the effective date of Sanctuary designation; and
                (2) Any of the above that sinks on or after the date of Sanctuary designation determined to be an underwater cultural resource by the Director pursuant to § 922.198. Underwater cultural resource also means any historical remnant of docks or piers or associated material, or materials resulting from activities of historic and prehistoric Native Americans.

                (b) Other terms appearing in the regulations are defined at 15 CFR part 922 subpart A, and/or in the National Marine Sanctuaries Act, as amended, 16 U.S.C. 1431 et seq.

                [65 FR 39056, June 22, 2000, as amended at 79 FR 52972, Sept. 5, 2014; 79 FR 12080, Sept. 5, 2014]

                § 922.192
                Joint Management Committee.
                (a) A state/federal Joint Management Committee shall be established to oversee and engage in decision-making authority for the Thunder Bay National Marine Sanctuary and Underwater Preserve.
                (b) The Joint Management Committee shall be comprised of one Federal employee named by the NOAA Administrator and one state employee named by the Governor of Michigan. The Federal employee cannot be the sanctuary manager (the individual who exercises day-to-day management over the Sanctuary) and must have a civil service grade higher than that of the sanctuary manager.
                (c) The Joint Management Committee shall:
                (1) Develop a position description for, recruit prospective candidates for the position of, interview candidates for the position of, and take part in the annual performance evaluation of, the sanctuary manager;
                (2) Approve revisions to the Management Plan;
                (3) Approve annual work plans;
                (4) Approve, on an annual basis, the expenditure of allocated state and federal funds and other sources of revenue for the Thunder Bay National Marine Sanctuary and Underwater Preserve, in accordance with the Management Plan and the annual work plans; and
                (5) Make decisions on other key issues related to management of the Thunder Bay National Marine Sanctuary and Underwater Preserve.
                (d) The Joint Management Committee shall meet as agreed to by the members but not less than once annually.

                (e) If the Joint Management Committee is unable to reach agreement on an issue, the members shall follow the “Consultation and Conflict Resolution” procedures set forth in the Interlocal Agreement between NOAA and the State of Michigan.

                (f) The Joint Management Committee may invite affected public parties to participate in selected aspects of Sanctuary management as:

                (1) Parties to the Interlocal Agreement pursuant to the Michigan Urban Cooperation Act of 1967, MCL 124.501 et seq.; and/or
                (2) Pursuant to the NMSA.

                § 922.193
                Prohibited or otherwise regulated activities.
                (a) Except as specified in paragraphs (b) through (d) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
                (1) Recovering, altering, destroying, possessing, or attempting to recover, alter, destroy, or possess an underwater cultural resource.
                (2) Drilling into, dredging or otherwise altering the lakebottom associated with underwater cultural resources, including contextual information; or constructing, placing or abandoning any structure, material or other matter on the lakebottom associated with underwater cultural resources, except as an incidental result of:
                (i) Anchoring vessels;
                (ii) Traditional fishing operations; or
                (iii) Minor projects (as defined in appendix B of this subpart) that do not adversely affect underwater cultural resources.
                (3) Using grappling hooks or other anchoring devices on underwater cultural resource sites that are marked with a mooring buoy.
                (4) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulations issued under the Act.
                (b) Members of a federally-recognized Indian tribe may exercise treaty-secured rights, subject to the requirements of other applicable law, without regard to the requirements of this subpart. The Director may consult with the governing body of a tribe regarding ways the tribe may exercise such rights consistent with the purposes of the Sanctuary, provided that the rights are authorized by the tribe by regulation, license, or permit.
                (c) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to valid law enforcement activities, or any activity necessary to respond to an emergency threatening life or the environment.
                (d) The prohibitions in paragraphs (a) (1) through (3) of this section do not apply to any activity:
                (1) Specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued pursuant to § 922.195 or a Special Use Permit issued pursuant to section 310 of the NMSA.
                (2) Specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization in existence on the effective date of these regulations, or by any valid right of subsistence use or access in existence on the effective date of these regulations, provided that the holder of such authorization or right complies with § 922.194 and § 922.47 and with any terms and conditions for the exercise of such authorization or right imposed by the Director as a condition of certification as he or she deems reasonably necessary to achieve the purposes for which the Sanctuary was designated.

                § 922.194
                Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.

                (a) A person may conduct an activity prohibited by § 922.193 (a)(1) through (3) if such activity is specifically authorized by a valid Federal, State, or local lease, permit, license, approval, or other authorization in existence on the effective date of Sanctuary designation, or by any valid right of subsistence use or access in existence on the effective date of Sanctuary designation, provided that:

                (1) for any State or local lease, permit, license, approval, or other authorization, or any right of subsistence use, the State Archaeologist certifies to the Director, within 90 days of the effective date of designation, that the activity authorized under the State or local lease, permit, license, approval, or other authorization, or any right of subsistence use, is being conducted consistent with the Programmatic Agreement, in which case such activity shall be deemed to have met the requirements of this section and § 922.47; or
                (2) In the case where either:
                (i) The State Archaeologist does not certify that the activity authorized under a State or local lease, permit, license, approval, or other authorization, or right of subsistence use is being conducted consistent with the Programmatic Agreement; or
                (ii) The activity is conducted pursuant only to a Federal permit, the holder of the authorization or right complies with paragraphs (b) through (k) of this section.

                (b) For an activity described in paragraph (a)(2) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.193 (a)(1) through (3) provided that:

                (1) The holder of such authorization or right notifies the Director, in writing, within 90 days of the effective date of Sanctuary designation, of the existence of such authorization or right and requests certification of such authorization or right;
                (2) The holder complies with the other provisions of § 922.194; and
                (3) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.
                (c) The holder of an authorization or right described in paragraph (a)(2) of this section authorizing an activity prohibited by § 922.193 may conduct the activity without being in violation of applicable provisions of § 922.193, pending final agency action on his or her certification request, provided the holder is in compliance with this § 922.194.
                (d) Any holder of an authorization or right described in paragraph (a)(2) of this section may request the Director to issue a finding as to whether the activity for which the authorization has been issued, or the right given, is prohibited by § 922.193, thus requiring certification under this section.
                (e) Requests for findings or certifications should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuary Manager, Thunder Bay National Marine Sanctuary and Underwater Preserve, 1305 East-West Highway, N/ORM, Silver Spring, Maryland, 20910. A copy of the lease, permit, license, approval, or other authorization must accompany the request.
                (f) The Director may request additional information from the certification requester as he or she deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the postmark date of the request. The Director may seek the views of any persons on the certification request.
                (g) The Director may amend any certification made under this § 922.194 whenever additional information becomes available justifying such an amendment.
                (h) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this § 922.194, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
                (i) Any time limit prescribed in or established under this § 922.194 may be extended by the Director for good cause.
                (j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.50.
                (k) Any amendment, renewal, or extension made after the effective date of Sanctuary designation, to a lease, permit, license, approval, other authorization or right is subject to the provisions of § 922.195 and § 922.49.
                (l) For any activity authorized pursuant to § 922.193 (b), the holder of such license or permit shall notify the Director, in writing, within 90 days of the effective date of Sanctuary designation, of the existence of such authorization or right.

                § 922.195
                Permit procedures and criteria.

                (a) A person may conduct an activity prohibited by § 922.193 (a)(1) through (3), if conducted in accordance with the scope, purpose, terms and conditions of a State Permit provided that:
                (1) The State Archaeologist certifies to NOAA that the activity authorized under the State Permit will be conducted consistent with the Programmatic Agreement, in which case such State Permit shall be deemed to have met the requirements of § 922.49; or
                (2) In the case where the State Archaeologist does not certify that the activity to be authorized under a State Permit will be conducted consistent with the Programmatic Agreement, the person complies with the requirements of § 922.49 of this part.

                (b) If no State Permit is required to conduct an activity prohibited by § 922.193 (a)(1) through (3) of this subpart, a person may conduct such activity if it is conducted in accordance with the scope, purpose, terms and conditions of a Federal permit, provided that the person complies with the provisions of § 922.49 of this part.
                (c) In instances where the conduct of an activity is prohibited by § 922.193 (a)(1) through (3) of this subpart is not addressed under a State or other Federal lease, license, permit or other authorization, a person must obtain a Sanctuary permit from NOAA pursuant to § 922.48 (c) through (f) of this part and the Programmatic Agreement in order to conduct the activity.
                (d) A permit for recovery of an underwater cultural resource may be issued if:
                (1) The proposed activity satisfies the requirements for permits described under paragraphs (a) through (c) of this section;
                (2) The recovery of the underwater cultural resource is in the public interest;
                (3) Recovery of the underwater cultural resource is part of research to preserve historic information for public use; and
                (4) Recovery of the underwater cultural resource is necessary or appropriate to protect the resource, preserve historical information, or further the policies of the Sanctuary.
                (e) A person shall file an application for a permit with the Michigan Department of Environmental Quality, Land and Water Management Division, P.O. Box 30458, Lansing, MI, 48909-7958. The application shall contain all of the following information:
                (1) The name and address of the applicant;
                (2) Research plan that describes in detail the specific research objectives and previous work done at the site. An archaeological survey must be conducted on a site before an archaeological permit allowing excavation can be issued;
                (3) Description of significant previous work in the area of interest, how the proposed effort would enhance or contribute to improving the state of knowledge, why the proposed effort should be performed in the Sanctuary, and its potential benefits to the Sanctuary;
                (4) An operational plan that describes the tasks required to accomplish the project's objectives and the professional qualifications of those conducting and supervising those tasks (see § 922.195(e)(9) of this section). The plan must provide adequate description of methods to be used for excavation, recovery and the storage of artifacts and related materials on site, and describe the rationale for selecting the proposed methods over any alternative methods;
                (5) Archaeological recording, including site maps, feature maps, scaled photographs, and field notes;
                (6) An excavation plan describing the excavation, recovery and handling of artifacts;
                (7)(i) A conservation plan documenting:
                (A) The conservation facility's equipment;
                (B) Ventilation temperature and humidity control; and
                (C) storage space.
                (ii) Documentation of intended conservation methods and processes must also be included;

                (8) A curation and display plan for the curation of the conserved artifacts to ensure the maintenance and safety of the artifacts in keeping with the Sanctuary's federal stewardship responsibilities under the Federal Archaeology Program (36 CFR Part 79, Curation of Federally-Owned and Administered Archaeological Collections); and
                (9) Documentation of the professional standards of an archaeologist supervising the archaeological recovery of historical artifacts. The minimum professional qualifications in archaeology are a graduate degree in archaeology, anthropology, or closely related field plus:
                (i) At least one year of full-time professional experience or equivalent specialized training in archeological research, administration or management;
                (ii) At least four months of supervised field and analytic experience in general North American archaeology;
                (iii) Demonstrated ability to carry research to completion; and
                (iv) At least one year of full-time professional experience at a supervisory level in the study of archeological resources in the underwater environment.

                § 922.196
                Emergency regulations.
                (a) Where necessary to prevent or minimize the destruction of, loss of, or injury to an underwater cultural resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Governor of Michigan.
                (b) Emergency regulations remain in effect until a date fixed in the rule or six months after the effective date, whichever is earlier. The rule may be extended once for not more than six months.

                § 922.197
                Effect on affected federally-recognized Indian tribes.
                The exercise of treaty fishing rights is not modified, altered, or in any way affected by the regulations promulgated in this Subpart. The Director shall consult with the governing body of each federally-recognized Indian tribe mentioned in the 1836 Treaty of Washington and in subsequent court decisions related to the Treaty regarding any matter which might affect the ability of the Tribe's members to participate in treaty fishing activities in the Sanctuary.
                [79 FR 52972, Sept. 5, 2014; 80 FR 12080, Mar. 6, 2015]

                § 922.198
                Procedures for determining watercraft and related items which sink on or after the date of Sanctuary designation to be an underwater cultural resource.
                The Director, in consultation with the State of Michigan, appropriate federal agencies, and the governing body of any affected federally-recognized tribe, may determine, after providing 45 days for public comment, that any sunken watercraft, including a ship, boat, canoe, skiff, raft, or barge; the rigging, gear, fittings, trappings, and equipment of any sunken watercraft; the personal property of the officers, crew, and passengers of any sunken watercraft; and the cargo of any sunken watercraft, that sinks on or after the date of Sanctuary designation, to be an underwater cultural resource if such is determined by the Director to be 50 years or older and of special national significance due to architectural significance or association with individuals or events that are significant to local or national history.

                Pt. 922, Subpt. R, App. A
                Appendix A to Subpart R of Part 922—Thunder Bay National Marine Sanctuary and Underwater Preserve Boundary Coordinates
                [Based on North American Datum of 1983]

                    Point ID
                    Latitude (north)
                    Longitude (west)

                    1
                    44.512834
                    −82.329519

                    2
                    44.858147
                    −82.408717

                    3
                    45.208484
                    −82.490596

                    4
                    45.335902
                    −82.52064

                    5
                    45.771937
                    −83.483974

                    6
                    45.773944
                    −83.636867

                    7
                    45.833333
                    −83.586892

                    8
                    45.833333
                    −84.333333

                    9 *
                    45.662858
                    −84.333333

                    10*
                    45.41733
                    −83.77327

                    11
                    45.42103
                    −83.79487

                    12
                    45.42708
                    −83.79371

                    13
                    45.42343
                    −83.75318

                    14
                    45.41748
                    −83.75333

                    15
                    45.41210
                    −83.76805

                    16 *
                    45.40738
                    −83.76785

                    17 *
                    45.29672
                    −83.41908

                    18
                    45.29682
                    −83.40965

                    19
                    45.29010
                    −83.40965

                    20
                    45.29464
                    −83.41914

                    21 *
                    45.29681
                    −83.42277

                    22 *
                    45.06632
                    −83.40715

                    23 *
                    45.06560
                    −83.40810

                    24 *
                    44.511734
                    −83.320169

                    25
                    44.512834
                    −82.329519

                  Note:
                  The coordinates in the table above marked with an asterisk (*) are not part of the sanctuary boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline for the purpose of charting the boundary.

                [79 FR 52972, Sept. 5, 2014; 80 FR 12080, Mar. 6, 2015, as amended at 80 FR 79684, Dec. 23, 2015]

                Pt. 922, Subpt. R, App. B

                Appendix B to Subpart R of Part 922—Minor Projects for Purposes of § 922.193(a)(2)(iii)
                Pursuant to Michigan State Administrative Rule R 322.1013 of Part 325, Great Lakes Submerged Lands of Public Act 451 (Michigan State Statute), the Michigan Department of Environmental Quality (Department) issues permits for projects that are of a minor nature which are not controversial, which have minimal adverse environmental impact, which will be constructed of clean, non-polluting materials, which do not impair the use of the adjacent bottomlands by the public, and which do not adversely affect riparian interests of adjacent owners. The following projects are minor projects:
                (a) Noncommercial single piers, docks, and boat hoists which meet the following design criteria:
                (i) are of a length or size not greater than the length or size of similar structures in the vicinity and on the watercourse involved; and
                (ii) provide for the free littoral flow of water and drift material.
                (b) Spring piles and pile clusters when their design and purpose is usual for such projects in the vicinity and on the watercourse involved.
                (c) Seawalls, bulkheads, and other permanent revetment structures which meet all of the following purpose and design criteria:
                (i) the proposed structure fulfills an identifiable need for erosion protection, bank stabilization, protection of uplands, or improvements on uplands;
                (ii) the structure will be constructed of suitable materials free from pollutants, waste metal products, debris, or organic materials;
                (iii) the structure is not more than 300 feet in length and is located in an area on the body of water where other similar structures already exist;
                (iv) the placement of backfill or other fill associated with the construction does not exceed an average of 3 cubic yards per running foot along the shoreline and a maximum of 300 cubic yards; and
                (v) the structure or any associated fill will not be placed in a wetland area or placed in any manner that impairs surface water flow into or out of any wetland area.
                (d) Groins 50 feet or less in length, as measures from the toe to bluff, which meet all of the following criteria:
                (i) the groin is low profile, with the lakeward end not more than 1 foot above the existing water level; and
                (ii) the groin is placed at least 1/2 of the groin length from the adjacent property line or closer with written approval of the adjacent riparian.
                (e) Filling for restoration of existing permitted fill, fills placed incidental to construction of other structures, and fills that do not exceed 300 cubic yards as a single and complete project, where the fill is of suitable material free from pollutants, waste metal products, debris, or organic materials.
                (f) Dredging for the maintenance of previously dredged areas or dredging of not more than 300 cubic yards as a single and complete project when both of the following criteria are met:
                (i) No reasonable expectation exists that the materials to be dredged are polluted; and
                (ii) All dredging materials will be removed to an upland site exclusive of wetland areas.
                (g) Structural repair of man-made structures, except as exempted by Michigan State Administrative Rule R 322.1008(3), when their design and purpose meet both of the following criteria:
                (i) The repair does not alter the original use of a recently serviceable structure; and
                (ii) The repair will not adversely affect public trust values or interests, including navigation and water quality.
                (h) Fish or wildlife habitat structures which meet both of the following criteria:
                (i) Are placed so the structures do not impede or create a navigational hazard; and
                (ii) Are anchored to the bottomlands.
                (i) Scientific structures such as staff gauges, water monitoring devices, water quality testing devices, survey devices, and core sampling devices, if the structures do not impede or create a navigational hazard.
                (j) Navigational aids which meet both of the following criteria:
                (i) Are approved by the United States Coast Guard; and

                (ii) Are approved under Michigan State Act No. 303 of the Public Acts of 1967, as amended, being Section 281.1001 et seq. of the Michigan Compiled Laws, and known as the Marine Safety Act.
                (k) Extension of a project where work is being performed under a current permit and which will result in no damage to natural resources.

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

                (i) The wall is 300 feet or less in length along the shoreline;
                (ii) The wall does not extend more than 30 feet lakeward of the toe of bluff;
                (iii) The wall is low profile, that is, it is not more than 1 foot above the existing water level; and
                (iv) The wall is constructed of wood or steel or other non-polluting material.
                (m) Physical removal of man-made structures or natural obstructions which meet all of the following criteria:
                (i) The debris and spoils shall be removed to an upland site, not in a wetland, in a manner which will not allow erosion into public waters;
                (ii) The shoreline and bottom contours shall be restored to an acceptable condition; and
                (iii) Upon completion of structure removal, the site does not constitute a safety or navigational hazard. Department staff shall consider fisheries and wildlife resource values when evaluating applications for natural obstruction removal.

              Subpart S—Mallows Bay—Potomac River National Marine Sanctuary

                Source:
                84 FR 32603, July 8, 2019, unless otherwise noted.

                § 922.200
                Boundary.
                The Mallows Bay-Potomac River National Marine Sanctuary consists of an area of approximately 18 square miles of waters of the state of Maryland and the submerged lands thereunder, over, around, and under the underwater cultural resources in the Potomac River. The precise boundary coordinates are listed in appendix A to this subpart. The western boundary of the sanctuary approximates the border between the Commonwealth of Virginia and the State of Maryland along the western side of the Potomac River and begins at Point 1 north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point. From this point the boundary continues to the north approximating the border between Virginia and Maryland cutting across the mouths of streams and creeks passing through the points in numerical order until it reaches Point 40 north of Tank Creek. From this point the sanctuary boundary continues east across the Potomac River in a straight line towards Point 41 until it intersects the Maryland shoreline just north of Sandy Point in Charles County, Maryland. From this intersection the sanctuary boundary then follows the Maryland shoreline south around Mallows Bay, Blue Banks, and Wades Bay cutting across the mouths of creeks and streams along the eastern shoreline of the Potomac River until it intersects the line formed between Point 42 and Point 43 just south of Smith Point. Finally, from this intersection the sanctuary boundary crosses the Potomac River to the west in a straight line until it reaches Point 43 north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point.

                § 922.201
                Definitions.
                (a) The following terms are defined for purposes of this subpart:
                (1) Sanctuary resource means any historical resource with the Sanctuary boundaries, as defined in § 922.3. This includes, but is not limited to, any sunken watercraft and any associated rigging, gear, fittings, trappings, and equipment; the personal property of the officers, crew, and passengers, and any cargo; and any submerged or partially submerged prehistoric, historic, cultural remains, such as docks, piers, fishing-related remains (e.g., weirs, fish-traps) or other cultural heritage materials. Sanctuary resource also means any archaeological, historical, and cultural remains associated with or representative of historic or prehistoric American Indians and historic groups or peoples and their activities.
                (2) Traditional fishing means those commercial, recreational, and subsistence fishing activities that were customarily conducted within the Sanctuary prior to its designation or expansion, as identified in the relevant Final Environmental Impact Statement and Management Plan for this Sanctuary.

                (b) All other terms appearing in the regulations in this subpart are defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq.

                § 922.202
                Joint management.

                NOAA has primary responsibility for the management of the Sanctuary pursuant to the Act. However, NOAA shall co-manage the Sanctuary in collaboration with the State of Maryland and Charles County. The Director shall enter into a Memorandum of Agreement regarding this collaboration that shall address, but not be limited to, such aspects as areas of mutual concern, including Sanctuary programs, permitting, activities, development, and threats to Sanctuary resources.

                § 922.203
                Prohibited or otherwise regulated activities.
                (a) Except as specified in paragraphs (b) and (c) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
                (1) Moving, removing, recovering, altering, destroying, possessing, or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a Sanctuary resource, except as an incidental result of traditional fishing. This prohibition does not apply to possessing historical resources removed from the Sanctuary area before the effective date of the Sanctuary designation.
                (2) Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or permanent, or with any monuments, stakes, posts, buoys, or other boundary markers related to the Sanctuary.
                (3) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or any permit issued under the Act.
                (b) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to any activity necessary to respond to an emergency threatening life, property or the environment; or to activities necessary for valid law enforcement purposes.
                (c)(1) All military activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impact on sanctuary resources and qualities.
                (2) Any existing military activity conducted by DoD prior to the effective date of the regulations in this subpart and as specifically identified in the Final Environmental Impact Statement and Final Management Plan for the Sanctuary (FEIS/FMP) is allowed to continue in the Sanctuary. The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to those existing military activities or to the following military activities conducted by DoD:
                (i) Low-level overflight of military aircraft operated by DoD;
                (ii) The designation of new units of special use airspace;
                (iii) The use or establishment of military flight training routes;
                (iv) Air or ground access to existing or new electronic tracking communications sites associated with special use airspace or military flight training routes; or
                (v) Activities to reduce or eliminate a threat to human life or property presented by unexploded ordnances or munitions.
                (3) New military activities that do not violate the prohibitions in paragraphs (a)(1) through (3) of this section are allowed. Any new military activity that is likely to violate sanctuary prohibitions may become exempt through consultation between the Director and DoD pursuant to section 304(d) of the NMSA. For purposes of this paragraph (c)(3), the term “new military activity” includes but is not limited to, any existing military activity that is modified in any way (including change in location, frequency, duration, or technology used) that is likely to destroy, cause the loss of, or injure a sanctuary resource, or is likely to destroy, cause the loss of, or injure a sanctuary resource in a manner or to an extent that was not considered in a previous consultation under section 304(d) of the NMSA.
                (4) In the event of destruction of, loss of, or injury to a sanctuary resource or quality resulting from an incident, including but not limited to spills and groundings caused by DoD, the cognizant component shall promptly coordinate with the Director for the purpose of taking appropriate actions to prevent, respond to or mitigate the harm and, if possible, restore or replace the sanctuary resource or quality.

                § 922.204
                Emergency regulations.
                (a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities, other than DoD activities, are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Governor of Maryland or her/his designee or designated agency.
                (b) Emergency regulations remain in effect until a date fixed in the rule or six months after the effective date, whichever is earlier. The rule may be extended once for not more than six months.

                § 922.205
                Permit procedures and review criteria.
                (a) Authority to issue general permits. The Director may allow a person to conduct an activity that would otherwise be prohibited by this subpart, through issuance of a general permit, provided the applicant complies with:
                (1) The provisions of subpart E of this part; and
                (2) The relevant site-specific regulations appearing in this subpart.
                (b) Sanctuary general permit categories. The Director may issue a sanctuary general permit under this subpart, subject to such terms and conditions as he or she deems appropriate, if the Director finds that the proposed activity falls within one of the following categories:
                (1) Research—activities that constitute scientific research on or scientific monitoring of national marine sanctuary resources or qualities;
                (2) Education—activities that enhance public awareness, understanding, or appreciation of a national marine sanctuary or national marine sanctuary resources or qualities; or
                (3) Management—activities that assist in managing a national marine sanctuary.
                (c) Review criteria. The Director shall not issue a permit under this subpart, unless he or she also finds that:
                (1) The proposed activity will be conducted in a manner compatible with the primary objective of protection of national marine sanctuary resources and qualities, taking into account the following factors:
                (i) The extent to which the conduct of the activity may diminish or enhance national marine sanctuary resources and qualities; and
                (ii) Any indirect, secondary or cumulative effects of the activity.
                (2) It is necessary to conduct the proposed activity within the national marine sanctuary to achieve its stated purpose.
                (3) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's stated purpose and eliminate, minimize, or mitigate adverse effects on sanctuary resources and qualities as much as possible.
                (4) The duration of the proposed activity and its effects are no longer than necessary to achieve the activity's stated purpose.
                (5) The expected end value of the activity to the furtherance of national marine sanctuary goals and purposes outweighs any potential adverse impacts on sanctuary resources and qualities from the conduct of the activity.
                (6) The applicant is professionally qualified to conduct and complete the proposed activity.
                (7) The applicant has adequate financial resources available to conduct and complete the proposed activity and terms and conditions of the permit.
                (8) There are no other factors that would make the issuance of a permit for the activity inappropriate.

                § 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 § 922.49 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section.

                (b) In considering whether to make the certifications called for in this section, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate.
                (c) The Director may amend, suspend, or revoke any certification made under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken.
                (d) Requests for findings or certifications should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, Mallows Bay-Potomac National Marine Sanctuary, 1305 East West Hwy., 11th Floor, Silver Spring, MD 20910. A copy of the lease, permit, license, approval, or other authorization must accompany the request.
                (e) For an activity described in paragraph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.203(a)(1) through (3) provided that:

                (1) The holder of such authorization or right notifies the Director, in writing, within 180 days of the Federal Register notification announcing of effective date of the Sanctuary designation, of the existence of such authorization or right and requests certification of such authorization or right;
                (2) The holder complies with the other provisions of this section; and
                (3) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.
                (f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohibited by § 922.203 may conduct the activity without being in violation of applicable provisions of § 922.203, pending final agency action on his or her certification request, provided the holder is otherwise in compliance with this section.
                (g) The Director may request additional information from the certification requester as he or she deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the postmark date of the request. The Director may seek the views of any persons on the certification request.
                (h) The Director may amend any certification made under this section whenever additional information becomes available that he/she determines justifies such an amendment.
                (i) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.
                (j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.50.
                (k) Any time limit prescribed in or established under this section may be extended by the Director for good cause.

                Appendix A to Subpart S of Part 922—Mallows Bay-Potomac River Marine Sanctuary Boundary Description and Coordinates of the Lateral Boundary Closures and Excluded Areas
                Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.

                  Table 1—Coordinates for Sanctuary

                    Point ID
                    Latitude
                    Longitude

                    1
                    38.39731
                    −77.31008

                    2
                    38.39823
                    −77.31030

                    3
                    38.39856
                    −77.31059

                    4
                    38.39886
                    −77.31074

                    5
                    38.39917
                    −77.31067

                    6
                    38.40014
                    −77.31074

                    7
                    38.40090
                    −77.31145

                    8
                    38.40138
                    −77.31215

                    9
                    38.40197
                    −77.31236

                    10
                    38.40314
                    −77.31278

                    11
                    38.40658
                    −77.31377

                    12
                    38.40984
                    −77.31465

                    13
                    38.41388
                    −77.31692

                    14
                    38.41831
                    −77.31913

                    15
                    38.41974
                    −77.31930

                    16
                    38.42352
                    −77.31971

                    17
                    38.42548
                    −77.32030

                    18
                    38.42737
                    −77.32081

                    19
                    38.43091
                    −77.32240

                    20
                    38.43163
                    −77.32242

                    21
                    38.43350
                    −77.32263

                    22
                    38.43384
                    −77.32269

                    23
                    38.43430
                    −77.32265

                    24
                    38.43461
                    −77.32229

                    25
                    38.43498
                    −77.32146

                    26
                    38.43526
                    −77.32057

                    27
                    38.43522
                    −77.32040

                    28
                    38.47321
                    −77.31845

                    29
                    38.47434
                    −77.31874

                    30
                    38.47560
                    −77.31752

                    31
                    38.47655
                    −77.31686

                    32
                    38.47748
                    −77.31666

                    33
                    38.47821
                    −77.31604

                    34
                    38.47871
                    −77.31554

                    35
                    38.47885
                    −77.31563

                    36
                    38.47905
                    −77.31559

                    37
                    38.47921
                    −77.31578

                    38
                    38.47943
                    −77.31592

                    39
                    38.47985
                    −77.31592

                    40
                    38.48493
                    −77.31335

                    41 *
                    38.48554
                    −77.27298

                    42 *
                    38.39793
                    −77.25704

                    43
                    38.39731
                    −77.31008

                  Note 1 to table 1 of this appendix:
                  The coordinates in the table above marked with an asterisk (*) are not a part of the sanctuary boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.

                Appendix B to Subpart S of Part 922—Mallows Bay-Potomac River Marine Sanctuary Terms of Designation
                Terms of Designation for the Mallows Bay-Potomac River National Marine Sanctuary

                Under the authority of the National Marine Sanctuaries Act, as amended (the “Act” or “NMSA”), 16 U.S.C. 1431 et seq., certain waters and submerged lands located off the Nanjemoy Peninsula of Charles County, Maryland, and along the tidal Potomac River and its surrounding waters are hereby designated as a National Marine Sanctuary for the purposes of providing long-term protection and management of the historical resources and recreational, research, educational, and aesthetic qualities of the area.
                Article I: Effect of Designation
                The NMSA authorizes the issuance of such regulations as are necessary and reasonable to implement the designation, including managing and protecting the historical resources and recreational, research, and educational qualities of the Mallows Bay-Potomac River National Marine Sanctuary (the “Sanctuary”). Section 1 of Article IV of this appendix lists those activities that may have to be regulated on the effective date of designation, or at some later date, in order to protect Sanctuary resources and qualities. Listing an activity does not necessarily mean that it will be regulated; however, if an activity is not listed it may not be regulated, except on an emergency basis, unless Section 1 of Article IV is amended by the same procedures by which the original Sanctuary designation was made.
                Article II: Description of the Area
                The Mallows Bay-Potomac River National Marine Sanctuary consists of an area of approximately 18 square miles of waters of the State of Maryland and the submerged lands thereunder, over, around, and under the underwater cultural resources in the Potomac River between Stafford County, Virginia, and Charles County, Maryland. The western boundary of the sanctuary approximates the border between the Commonwealth of Virginia and the State of Maryland for roughly 6 miles along the Potomac River, beginning north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point and continuing north past Widewater, VA, and Clifton Point to a point north of Tank Creek. From this point the sanctuary boundary crosses the Potomac to the east until it intersects the Maryland shoreline just north of Sandy Point in Charles County, MD. From this point the eastern boundary of the sanctuary, approximately 8 miles in total length, follows the Maryland shoreline south past Mallows Bay, Blue Banks, and Wades Bay to a point just south of Smith Point. From this location the sanctuary boundary crosses the Potomac River to the west back to its point of origin north of the mouth of Aquia Creek near Brent Point on the Virginia side of the river.
                Article III: Special Characteristics of the Area

                Mallows Bay-Potomac River National Marine Sanctuary and its surrounding waters contain a diverse collection more than 100 known historic shipwreck vessels dating back to the Civil War and potentially dating back to the Revolutionary War, as well as archaeological artifacts dating back 12,000 years indicating the presence of some of the region's earliest American Indian cultures, including the Piscataway Indian Nation and the Piscataway Conoy Confederacy and Sub-Tribes of Maryland. The area is most renowned for the remains of over 100 wooden steamships, known as the “Ghost Fleet,” that were built for the U.S. Emergency Fleet between 1917-1919 as part of U.S. engagement in WWI. Their construction at more than 40 shipyards in 17 states reflects the massive national wartime effort that drove the expansion and economic development of communities and related maritime service industries including the present-day Merchant Marines. The area is contiguous to the Captain John Smith Chesapeake National Historic Trail, the Star Spangled Banner National Historic Trail, the Potomac Heritage National Scenic Trail and the Lower Potomac Water Trail which offer meaningful educational and recreational opportunities centered on the region's culture, heritage and history. Additionally, the structure provided by the vessels and related infrastructure serve as important habitat to thriving populations of recreational fisheries, bald eagles, and other aquatic species. The area's listing on the National Historical Register of Places in 2015 codifies the historical, archaeological and recreational significance of the Ghost Fleet and related maritime cultural heritage sites in and around Mallows Bay-Potomac River National Marine Sanctuary.
                Article IV: Scope of Regulations
                Section 1. Activities Subject to Regulation. The following activities are subject to regulation, including prohibition, to the extent necessary and reasonable to ensure the protection and management of the historical resources and recreational, research and educational qualities of the area:
                a. Moving, removing, recovering, altering, destroying, possessing, or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a Sanctuary resource, except as an incidental result of traditional fishing (as defined in the regulations).
                b. Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or permanent, or with any monuments, stakes, posts, buoys, or other boundary markers related to the Sanctuary.
                c. Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation issued under the Act.
                Section 2. NOAA will not exercise its authority under the NMSA to regulate fishing in the Sanctuary.
                Section 3. Emergencies. Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource; or minimize the imminent risk of such destruction, loss, or injury, any activity, including those not listed in Section 1, is subject to immediate temporary regulation. An emergency regulation shall not take effect without the approval of the Governor of Maryland or her/his designee or designated agency.
                Article V: Relation to Other Regulatory Program
                Section 1. Fishing Regulations, Licenses, and Permits. Fishing in the Sanctuary shall not be regulated as part of the Sanctuary management regime authorized by the Act. However, fishing in the Sanctuary may be regulated by other Federal, State, Tribal and local authorities of competent jurisdiction, and designation of the Sanctuary shall have no effect on any regulation, permit, or license issued thereunder.
                Section 2. Other Regulations, Licenses, and Permits. If any valid regulation issued by any federal, state, Tribal, or local authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director of the Office of National Marine Sanctuaries, National Oceanic and Atmospheric Administration, or designee, in consultation with the State of Maryland, to be more protective of Sanctuary resources and qualities shall govern. Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, license, approval, or other authorization issued by any federal, state, Tribal, or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce, or designee, as a result of this designation, or as a result of any Sanctuary regulation, if such lease, permit, license, approval, or other authorization, or right of subsistence use or access was issued or in existence as of the effective date of this designation. However, the Secretary of Commerce or designee, in consultation with the State of Maryland, may regulate the exercise of such authorization or right consistent with the purposes for which the Sanctuary is designated.

                Section 3. Department of Defense Activities. DoD activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on sanctuary resources and qualities. Any existing military activity conducted by DoD prior to the effective date of the regulations in this subpart and as specifically identified in the Final Environmental Impact Statement and Final Management Plan for the Sanctuary (FEIS/FMP) is allowed to continue in the Sanctuary. The prohibitions in § 922.203(a)(1) through (3) do not apply to those existing military activities listed in the FEIS/FMP or the military activities conducted by DoD listed in § 922.203(c)(2). New military activities that do not violate the prohibitions in paragraphs (a)(1) through (3) of this section are allowed. Any new military activity that is likely to violate sanctuary prohibitions may become exempt through consultation between the Director and DoD pursuant to section 304(d) of the NMSA. The term “new military activity” includes but is not limited to, any existing military activity that is modified in any way (including change in location, frequency, duration, or technology used) that is likely to destroy, cause the loss of, or injure a sanctuary resource, or is likely to destroy, cause the loss of, or injure a sanctuary resource in a manner or to an extent that was not considered in a previous consultation under section 304(d) of the NMSA. In the event of destruction of, loss of, or injury to a sanctuary resource or quality resulting from an incident, including but not limited to spills and groundings caused by DoD, the cognizant component shall promptly coordinate with the Director for the purpose of taking appropriate actions to prevent, respond to or mitigate the harm and, if possible, restore or replace the sanctuary resource or quality.
                Article VI. Alteration of This Designation
                The terms of designation may be modified only by the same procedures by which the original designation is made, including public meetings, consultation according to the NMSA.

            Pt. 923
            PART 923—COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS

                Subpart A—General
                Sec.
                923.1
                Purpose and scope.
                923.2
                Definitions.
                923.3
                General requirements.

                Subpart B—Uses Subject to Management
                923.10
                General.
                923.11
                Uses subject to management.
                923.12
                Uses of regional benefit.
                923.13
                Energy facility planning process.

                Subpart C—Special Management Areas
                923.20
                General.
                923.21
                Areas of particular concern.
                923.22
                Areas for preservation or restoration.
                923.23
                Other areas of particular concern.
                923.24
                Shorefront access and protection planning.
                923.25
                Shoreline erosion/mitigation planning.

                Subpart D—Boundaries
                923.30
                General.
                923.31
                Inland boundary.
                923.32
                Lakeward or seaward boundary.
                923.33
                Excluded lands.
                923.34
                Interstate boundary.

                Subpart E—Authorities and Organization
                923.40
                General.
                923.41
                Identification of authorities.
                923.42
                State establishment of criteria and standards for local implementation—Technique A.
                923.43
                Direct State land and water use planning and regulation—Technique B.
                923.44
                State review on a case-by-case basis of actions affecting land and water uses subject to the management program—Technique C.
                923.45
                Air and water pollution control requirements.
                923.46
                Organizational structure.
                923.47
                Designated State agency.
                923.48
                Documentation.

                Subpart F—Coordination, Public Involvement and National Interest
                923.50
                General.
                923.51
                Federal-State consultation.
                923.52
                Consideration of the national interest in facilities.
                923.53
                Federal consistency procedures.
                923.54
                Mediation.
                923.55
                Full participation by State and local governments, interested parties, and the general public.
                923.56
                Plan coordination.
                923.57
                Continuing consultation.
                923.58
                Public hearings.

                Subpart G—Review/Approval Procedures
                923.60
                Review/approval procedures.

                Subpart H—Changes to Approved Management Programs
                923.80
                General.
                923.81
                Program change procedures, deadlines, public notice and comment, and application of approved changes.
                923.82
                Program change submissions.
                923.83
                Program change materials.
                923.84
                Program change decision criteria.
                923.85
                Procedural requirements of other Federal law.

                Subpart I—Applications for Program Development of Implementation Grants
                923.90
                General.
                923.91
                State responsibility.
                923.92
                Allocation.
                923.93
                Eligible implementation costs.
                923.94
                Application for program development or implementation grants.
                923.95
                Approval of applications.
                923.96
                Grant amendments.

                Subpart J—Allocation of Section 306 Program Administration Grants
                923.110
                Allocation formula.

                Subpart K—Coastal Zone Enhancement Grants Program
                923.121
                General.
                923.122
                Objectives.
                923.123
                Definitions.
                923.124
                Allocation of section 309 funds.
                923.125
                Criteria for section 309 project selection.
                923.126
                Pre-application procedures.
                923.127
                Formal application for financial assistance and application review and approval procedures.
                923.128
                Revisions to assessments and strategies.

                Subpart L—Review of Performance
                923.131
                General.
                923.132
                Definitions.
                923.133
                Procedure for conducting continuing reviews of approved State CZM programs.
                923.134
                Public participation.
                923.135
                Enforcement.

              Authority:
              16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 3 CFR 1983 Comp. p. 186.

              Source:
              44 FR 18595, Mar. 28, 1979, unless otherwise noted.

              Subpart A—General

                Source:
                61 FR 33805, June 28, 1996, unless otherwise noted.

                § 923.1
                Purpose and scope.
                (a) The regulations in this part set forth the requirements for State coastal management program approval by the Assistant Administrator for Ocean Services and Coastal Zone Management pursuant to the Coastal Zone Management Act of 1972, as amended (hereafter, the Act); the grant application procedures for program funds; conditions under which grants may be terminated; and requirements for review of approved management programs.
                (b) Sections 306 and 307 of the Act set forth requirements which must be fulfilled as a condition of program approval. The specifics of these requirements are set forth below under the following headings: General Requirements; Uses Subject to Management; Special Management Areas; Boundaries; Authorities and Organization; and Coordination, Public Involvement and National Interest. All relevant sections of the Act are dealt with under one of these groupings, but not necessarily in the order in which they appear in the Act.
                (c) In summary, the requirements for program approval are that a State develop a management program that:
                (1) Identifies and evaluates those coastal resources recognized in the Act as requiring management or protection by the State;
                (2) Reexamines existing policies or develops new policies to manage these resources. These policies must be specific, comprehensive, and enforceable;
                (3) Determines specific use and special geographic areas that are to be subject to the management program, based on the nature of identified coastal concerns;
                (4) Identifies the inland and seaward areas subject to the management program;
                (5) Provides for the consideration of the national interest in the planning for and siting of facilities that meet more than local requirements;
                (6) Includes sufficient legal authorities and organizational arrangements to implement the program and to ensure conformance to it. In arriving at these elements of the management program, States are obliged to follow an open process which involves providing information to and considering the interests of the general public, special interest groups, local governments, and regional, State, interstate, and Federal agencies;
                (7) Provides for public participation in permitting processes, consistency determinations, and other similar decisions;
                (8) Provides a mechanism to ensure that all state agencies will adhere to the program; and
                (9) Contains enforceable policies and mechanisms to implement the applicable requirements of the Coastal Nonpoint Pollution Control Program of the state required by section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990.

                § 923.2
                Definitions.
                (a) The term Act means the Coastal Zone Management Act of 1972, as amended.
                (b) The term Secretary means the Secretary of Commerce and his/her designee.
                (c) The term Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration (NOAA), or designee.
                (d)(1) The term relevant Federal agencies means those Federal agencies with programs, activities, projects, regulatory, financing, or other assistance responsibilities in the following fields which could impact or affect a State's coastal zone:
                (i) Energy production or transmission,
                (ii) Recreation of a more than local nature,
                (iii) Transportation,
                (iv) Production of food and fiber,
                (v) Preservation of life and property,
                (vi) National defense,
                (vii) Historic, cultural, aesthetic, and conservation values,
                (viii) Mineral resources and extraction, and
                (ix) Pollution abatement and control.
                (2) The following are defined as relevant Federal agencies: Department of Agriculture; Department of Commerce; Department of Defense; Department of Education; Department of Energy; Department of Health and Human Services; Department of Housing and Urban Development; Department of the Interior; Department of Transportation; Environmental Protection Agency; Federal Energy Regulatory Commission; General Services Administration, Nuclear Regulatory Commission; Federal Emergency Management Agency.
                (e) The term Federal agencies principally affected means the same as “relevant Federal agencies.” The Assistant Administrator may include other agencies for purposes of reviewing the management program and environmental impact statement.
                (f) The term Coastal State means a State of the United States in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. Pursuant to section 304(3) of the Act, the term also includes Puerto Rico, the Virgin Islands, Guam, and American Samoa. Pursuant to section 703 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, the term also includes the Northern Marianas.
                (g) The term management program includes, but is not limited to, a comprehensive statement in words, maps, illustrations, or other media of communication, including an articulation of enforceable policies and citation of authorities providing this enforceability, prepared and adopted by the State in accordance with the provisions of this Act and this part, setting forth objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone.
                (h) The following terms, as used in these regulations, have the same definition as provided in section 304 of the Act:
                (1) Coastal zone;
                (2) Coastal waters;
                (3) Enforceable policy;
                (4) Estuary;
                (5) Land use; and
                (6) Water use.
                (i) The term grant means a financial assistance instrument and refers to both grants and cooperative agreements.

                § 923.3
                General requirements.
                (a) The management program must be developed and adopted in accordance with the requirements of the Act and this part, after notice, and the opportunity for full participation by relevant Federal and State agencies, local governments, regional organizations, port authorities, and other interested parties and persons, and be adequate to carry out the purposes of the Act and be consistent with the national policy set forth in section 303 of the Act.

                (b) The management program must provide for the management of those land and water uses having a direct and significant impact on coastal waters and those geographic areas which are likely to be affected by or vulnerable to sea level rise. The program must include provisions to assure the appropriate protection of those significant resources and areas, such as wetlands, beaches and dunes, and barrier islands, that make the State's coastal zone a unique, vulnerable, or valuable area.
                (c) The management program must contain a broad class of policies for each of the following areas: resource protection, management of coastal development, and simplification of governmental processes. These three broad classes must include specific policies that provide the framework for the exercise of various management techniques and authorities governing coastal resources, uses, and areas. The three classes must include policies that address uses of or impacts on wetlands and floodplains within the State's coastal zone, and that minimize the destruction, loss or degradation of wetlands and preserve and enhance their natural values in accordance with the purposes of Executive Order 11990, pertaining to wetlands. These policies also must reduce risks of flood loss, minimize the impact of floods on human safety, health and welfare, and preserve the natural, beneficial values served by floodplains, in accordance with the purposes of Executive Order 11988, pertaining to floodplains.
                (d) The policies in the program must be appropriate to the nature and degree of management needed for uses, areas, and resources identified as subject to the program.
                (e) The policies, standards, objectives, criteria, and procedures by which program decisions will be made must provide:
                (1) A clear understanding of the content of the program, especially in identifying who will be affected by the program and how, and
                (2) A clear sense of direction and predictability for decisionmakers who must take actions pursuant to or consistent with the management program.

              Subpart B—Uses Subject to Management

                Source:
                61 FR 33806, June 28, 1996, unless otherwise noted.

                § 923.10
                General.
                This subpart sets forth the requirements for management program approvability with respect to land and water uses which, because of their direct and significant impacts on coastal waters or those geographic areas likely to be affected by or vulnerable to sea level rise, are subject to the terms of the management program. This subpart deals in full with the following subsections of the Act: 306(d)(1)(B), Uses Subject to the Management Program, 306(d)(2)(H), Energy Facility Planning, and 306(d)(12)(B), Uses of Regional Benefit.

                § 923.11
                Uses subject to management.
                (a)(1) The management program for each coastal state must include a definition of what shall constitute permissible land uses and water uses within the coastal zone which have a direct and significant impact on the coastal waters.
                (2) The management program must identify those land and water uses that will be subject to the terms of the management program. These uses shall be those with direct and significant impacts on coastal waters or on geographic areas likely to be affected by or vulnerable to sea level rise.
                (3) The management program must explain how those uses identified in paragraph (a)(2) of this section will be managed. The management program must also contain those enforceable policies, legal authorities, performance standards or other techniques or procedures that will govern whether and how uses will be allowed, conditioned, modified, encouraged or prohibited.
                (b) In identifying uses and their appropriate management, a State should analyze the quality, location, distribution and demand for the natural and man-made resources of their coastal zone, and should consider potential individual and cumulative impacts of uses on coastal waters.
                (c) States should utilize the following types of analyses:
                (1) Capability and suitability of resources to support existing or projected uses;
                (2) Environmental impacts on coastal resources;
                (3) Compatibility of various uses with adjacent uses or resources;

                (4) Evaluation of inland and other location alternatives; and

                (5) Water dependency of various uses and other social and economic considerations.
                (d) Examination of the following factors is suggested:
                (1) Air and water quality;
                (2) Historic, cultural and esthetic resources where coastal development is likely to affect these resources;
                (3) Open space or recreational uses of the shoreline where increased access to the shorefront is a particularly important concern;
                (4) Floral and faunal communities where loss of living marine resources or threats to endangered or threatened coastal species are particularly important concerns.
                (5) Information on the impacts of global warming and resultant sea level rise on natural resources such as beaches, dunes, estuaries, and wetlands, on salinization of drinking water supplies, and on properties, infrastructure and public works.

                § 923.12
                Uses of regional benefit.
                The management program must contain a method of assuring that local land use and water use regulations within the coastal zone do not unreasonably restrict or exclude land uses and water uses of regional benefit. To this end, the management program must:
                (a) Identify what constitutes uses of regional benefit; and
                (b) Identify and utilize any one or a combination of methods, consistent with the control techniques employed by the State, to assure local land and water use regulations do not unreasonably restrict or exclude uses of regional benefit.
                [61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996]

                § 923.13
                Energy facility planning process.
                The management program must contain a planning process for energy facilities likely to be located in or which may significantly affect, the coastal zone, including a process for anticipating the management of the impacts resulting from such facilities. (See subsection 304(5) of the Act.) This process must contain the following elements:
                (a) Identification of energy facilities which are likely to locate in, or which may significantly affect, a State's coastal zone;
                (b) Procedures for assessing the suitability of sites for such facilities designed to evaluate, to the extent practicable, the costs and benefits of proposed and alternative sites in terms of State and national interests as well as local concerns;
                (c) Articulation and identification of enforceable State policies, authorities and techniques for managing energy facilities and their impacts; and
                (d) Identification of how interested and affected public and private parties will be involved in the planning process.
                [61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996]

              Subpart C—Special Management Areas

                Source:
                61 FR 33806, June 28, 1996, unless otherwise noted.

                § 923.20
                General.

                (a) This subpart sets forth the requirements for management program approvability with respect to areas of particular concern because of their coastal-related values or characteristics, or because they may face pressures which require detailed attention beyond the general planning and regulatory system which is part of the management program. As a result, these areas require special management attention within the terms of the State's overall coastal program. This special management may include regulatory or permit requirements applicable only to the area of particular concern. It also may include increased intergovernmental coordination, technical, assistance, enhanced public expenditures, or additional public services and maintenance to a designated area. This subpart deals with the following subsections of the Act: 306(d)(2)(C)—Geographic Areas of Particular Concern; 306(d)(2)(E)—Guidelines on Priorities of Uses; 306(d)(2)(G)—Shorefront Access and protection Planning; 306(d)(2)(I)—Shoreline Erosion/Mitigation Planning; and 306(d)(9)—Areas for Preservation and Restoration.
                (b) The importance of designating areas of particular concern for management purposes and the number and type of areas that should be designated is directly related to the degree of comprehensive controls applied throughout a State's coastal zone. Where a State's general coastal management policies and authorities address state and national concerns comprehensively and are specific with respect to particular resources and uses, relatively less emphasis need be placed on designation of areas of particular concern. Where these policies are limited and non-specific, greater emphasis should be placed on areas of particular concern to assure effective management and an adequate degree of program specificity.

                § 923.21
                Areas of particular concern.
                (a) The management program must include an inventory and designation of areas of particular concern within the coastal zone, on a generic and/or site-specific basis, and broad guidelines on priorities of uses in particular areas, including specifically those uses of lowest priority.
                (b) In developing criteria for inventorying and designating areas of particular concern. States must consider whether the following represent areas of concern requiring special management:
                (1) Areas of unique, scarce, fragile or vulnerable natural habitat; unique or fragile, physical, figuration (as, for example, Niagara Falls); historical significance, cultural value or scenic importance (including resources on or determined to be eligible for the National Register of Historic Places.);
                (2) Areas of high natural productivity or essential habitat for living resources, including fish, wildlife, and endangered species and the various trophic levels in the food web critical to their well-being;
                (3) Areas of substantial recreational value and/or opportunity;
                (4) Areas where developments and facilities are dependent upon the utilization of, or access to, coastal waters;
                (5) Areas of unique hydrologic, geologic or topographic significance for industrial or commercial development or for dredge spoil disposal;
                (6) Areas or urban concentration where shoreline utilization and water uses are highly competitive;
                (7) Areas where, if development were permitted, it might be subject to significant hazard due to storms, slides, floods, erosion, settlement, salt water intrusion, and sea level rise;
                (8) Areas needed to protect, maintain or replenish coastal lands or resources including coastal flood plains, aquifers and their recharge areas, estuaries, sand dunes, coral and other reefs, beaches, offshore sand deposits and mangrove stands.
                (c) Where states will involve local governments, other state agencies, federal agencies and/or the public in the process of designating areas of particular concern, States must provide guidelines to those who will be involved in the designation process. These guidelines shall contain the purposes, criteria, and procedures for nominating areas of particular concern.
                (d) In identifying areas of concern by location (if site specific) or category of coastal resources (if generic), the program must contain sufficient detail to enable affected landowners, governmental entities and the public to determine with reasonable certainty whether a given area is designated.
                (e) In identifying areas of concern, the program must describe the nature of the concern and the basis on which designations were made.
                (f) The management program must describe how the management program addresses and resolves the concerns for which areas are designated; and
                (g) The management program must provide guidelines regarding priorities of uses in these areas, including guidelines on uses of lowest priority.

                § 923.22
                Areas for preservation or restoration.
                The management program must include procedures whereby specific areas may be designated for the purpose of preserving or restoring them for their conservation, recreational, ecological, historical or esthetic values, and the criteria for such designations.

                § 923.23
                Other areas of particular concern.
                (a) The management program may, but is not required to, designate specific areas known to require additional or special management, but for which additional management techniques have not been developed or necessary authorities have not been established at the time of program approval. If a management program includes such designations, the basis for designation must be clearly stated, and a reasonable time frame and procedures must be set forth for developing and implementing appropriate management techniques. These procedures must provide for the development of those items required in § 923.21. The management program must identify an agency (or agencies) capable of formulating the necessary management policies and techniques.
                (b) The management program must meet the requirements of § 923.22 for containing procedures for designating areas for preservation or restoration. The management program may include procedures and criteria for designating areas of particular concern for other than preservation or restoration purposes after program approval.

                § 923.24
                Shorefront access and protection planning.
                (a) The management program must include a definition of the term “beach” and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recreational, historical, esthetic, ecological or cultural value.
                (b) The basic purpose in focusing special planning attention on shorefront access and protection is to provide public beaches and other public coastal areas of environmental, recreational, historic, esthetic, ecological or cultural value with special management attention within the purview of the State's management program. This special management attention may be achieved by designating public shorefront areas requiring additional access or protection as areas of particular concern pursuant to § 923.21 or areas for preservation or restoration pursuant to § 923.22.
                (c) The management program must contain a procedure for assessing public beaches and other public areas, including State owned lands, tidelands and bottom lands, which require access or protection, and a description of appropriate types of access and protection.
                (d) The management program must contain a definition of the term “beach” that is the broadest definition allowable under state law or constitutional provisions, and an identification of public areas meeting that definition.
                (e) The management program must contain an identification and description of enforceable policies, legal authorities, funding program and other techniques that will be used to provide such shorefront access and protection that the State's planning process indicates is necessary.

                § 923.25
                Shoreline erosion/mitigation planning.
                (a) The management program must include a planning process for assessing the effects of, and studying and evaluating ways to control, or lessen the impact of, shoreline erosion, including potential impacts of sea level rise, and to restore areas adversely affected by such erosion. This planning process may be within the broader context of coastal hazard mitigation planning.
                (b) The basic purpose in developing this planning process is to give special attention to erosion issues. This special management attention may be achieved by designating erosion areas as areas of particular concern pursuant to § 923.21 or as areas for preservation or restoration pursuant to § 923.22.
                (c) The management program must include an identification and description of enforceable policies, legal authorities, funding techniques and other techniques that will be used to manage the effects of erosion, including potential impacts of sea level rise, as the state's planning process indicates is necessary.
                [61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996]

              Subpart D—Boundaries

                Source:
                61 FR 33808, June 28, 1996, unless otherwise noted.

                § 923.30
                General.
                This subpart sets forth the requirements for management program approvability with respect to boundaries of the coastal zone. There are four elements to a State's boundary: the inland boundary, the seaward boundary, areas excluded from the boundary, and, in most cases, interstate boundaries. Specific requirements with respect to procedures for determining and identifying these boundary elements are discussed in the sections of this subpart that follow.

                § 923.31
                Inland boundary.
                (a) The inland boundary of a State's coastal zone must include:
                (1) Those areas the management of which is necessary to control uses which have direct and significant impacts on coastal waters, or are likely to be affected by or vulnerable to sea level rise, pursuant to section 923.11 of these regulations.
                (2) Those special management areas identified pursuant to § 923.21;
                (3) Waters under saline influence—waters containing a significant quantity of seawater, as defined by and uniformly applied by the State;
                (4) Salt marshes and wetlands—Areas subject to regular inundation of tidal salt (or Great Lakes) waters which contain marsh flora typical of the region;
                (5) Beaches—The area affected by wave action directly from the sea. Examples are sandy beaches and rocky areas usually to the vegetation line;
                (6) Transitional and intertidal areas-Areas subject to coastal storm surge, and areas containing vegetation that is salt tolerant and survives because of conditions associated with proximity to coastal waters. Transitional and intertidal areas also include dunes and rocky shores to the point of upland vegetation;
                (7) Islands—Bodies of land surrounded by water on all sides. Islands must be included in their entirety, except when uses of interior portions of islands do not cause direct and significant impacts.
                (8) The inland boundary must be presented in a manner that is clear and exact enough to permit determination of whether property or an activity is located within the management area. States must be able to advise interested parties whether they are subject to the terms of the management program within, at a maximum, 30 days of receipt of an inquiry. An inland coastal zone boundary defined in terms of political jurisdiction (e.g., county, township or municipal lines) cultural features (e.g., highways, railroads), planning areas (e.g., regional agency jurisdictions, census enumeration districts), or a uniform setback line is acceptable so long as it includes the areas indentified.
                (b) The inland boundary of a State's coastal zone may include:
                (1) Watersheds—A state may determine some uses within entire watersheds which have direct and significant impact on coastal waters or are likely to be affected by or vulnerable to sea level rise. In such cases it may be appropriate to define the coastal zone as including these watersheds.
                (2) Areas of tidal influence that extend further inland than waters under saline influence; particularly in estuaries, deltas and rivers where uses inland could have direct and significant impacts on coastal waters or areas that are likely to be affected by or vulnerable to sea level rise.
                (3) Indian lands not held in trust by the Federal Government.
                (c) In many urban areas or where the shoreline has been modified extensively, natural system relationships between land and water may be extremely difficult, if not, impossible, to define in terms of direct and significant impacts. Two activities that States should consider as causing direct and significant impacts on coastal waters in urban areas are sewage discharges and urban runoff. In addition, States should consider dependency of uses on water access and visual relationships as factors appropriate for the determination of the inland boundary in highly urbanized areas.

                § 923.32
                Lakeward or seaward boundary.

                (a)(1) For states adjoining the Great Lakes, the lakeward boundary of the State's coastal zone is the international boundary with Canada or the boundaries with adjacent states. For states adjacent to the Atlantic or Pacific Ocean, or the Gulf of Mexico, the seaward boundary is the outer limit of state title and ownership under the Submerged Lands Act (48 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48 U.S.C. 749), the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, as approved by the Act of March 24, 1976 (48 U.S.C. 1681 note) or section 1 of the Act of November 10, 1963, (48 U.S.C. 1705, as applicable).
                (2) The requirement for defining the seaward boundary of a State's coastal zone can be met by a simple restatement of the limits defined in this section, unless there are water areas which require a more exact delineation because of site specific policies associated with these areas. Where States have site specific policies for particular water areas, these shall be mapped, described or referenced so that their location can be determined reasonably easily by any party affected by the policies.
                (b) The seaward limits, as defined in this section, are for purposes of this program only and represent the area within which the State's management program may be authorized and financed. These limits are irrespective of any other claims States may have by virtue of other laws.

                § 923.33
                Excluded lands.
                (a) The boundary of a State's coastal zone must exclude lands owned, leased, held in trust or whose use is otherwise by law subject solely to the discretion of the Federal Government, its officers or agents. To meet this requirement, the program must describe, list or map lands or types of lands owned, leased, held in trust or otherwise used solely by Federal agencies.
                (b) The exclusion of Federal lands does not remove Federal agencies from the obligation of complying with the consistency provisions of section 307 of the Act when Federal actions on these excluded lands have spillover impacts that affect any land or water use or natural resource of the coastal zone within the purview of a state's management program. In excluding Federal lands from a State's coastal zone for the purposes of this Act, a State does not impair any rights or authorities that it may have over Federal lands that exist separate from this program.

                § 923.34
                Interstate boundary.
                States must document that there has been consultation and coordination with adjoining coastal States regarding delineation of any adjacent inland and lateral seaward boundary.

              Subpart E—Authorities and Organization

                Source:
                61 FR 33809, June 28, 1996, unless otherwise noted.

                § 923.40
                General.
                (a) This subpart sets forth the requirements for management program approvability with respect to authorities and organization. The authorities and organizational structure on which a State will rely to administer its management program are the crucial underpinnings for enforcing the policies which guide the management of the uses and areas identified in its management program. There is a direct relationship between the adequacy of authorities and the adequacy of the overall program. The authorities need to be broad enough in both geographic scope and subject matter to ensure implementation of the State's enforceable policies. These enforceable policies must be sufficiently comprehensive and specific to regulate land and water uses, control development, and resolve conflicts among competing uses in order to assure wise use of the coastal zone. (Issues relating to the adequate scope of the program are dealt with in § 923.3.)

                (b) The entity or entities which will exercise the program's authorities is a matter of State determination. They may be the state agency designated pursuant to section 306(d)(6) of the Act, other state agencies, regional or interstate bodies, and local governments. The major approval criterion is a determination that such entity or entities are required to exercise their authorities in conformance with the policies of the management program. Accordingly, the essential requirement is that the State demonstrate that there is a means of ensuring such compliance. This demonstration will be in the context of one or a combination of the three control techniques specified in section 306(d)(11) of the Act. The requirements related to section 306(d)(12) of the Act are described in §§ 923.42 through 923.44 of this subchapter.
                (c) In determining the adequacy of the authorities and organization of a state's programs, the Assistant Administrator will review and evaluate authorities and organizational arrangements in light of the requirements of this subpart and the finding of section 302(h) of the Act.
                (d) The authorities requirements of the Act dealt with in this subpart are those contained in subsections 306(d)(2)(D)—Means of Control; 306(d)(10)-Authorities; 306(d)(10)(A)-Control Development and Resolve Conflicts; 306(d)(10)(B)-Powers of Acquisition; 306(d)(11)—Techniques of Control; and 307(f)—Air and Water Quality Control Requirements. The organization requirements of the Act dealt with in this subpart are those contained in sections 306(d)(2)(F)—Organizational Structure; 306(d)(6)—Designated State Agency; and 306(d)(7)—Organization.

                § 923.41
                Identification of authorities.
                (a)(1) The management program must identify the means by which the state proposes to exert control over the permissible land uses and water uses within the coastal zone which have a direct and significant impact on the coastal waters, including a listing of relevant state constitutional provisions, laws, regulations, and judicial decisions. These are the means by which the state will enforce its coastal management policies. (See section 304(6a) of the Act.)
                (2) The state chosen agency or agencies (including local governments, area-wide agencies, regional agencies, or interstate agencies) must have the authority for the management of the coastal zone. Such authority includes the following powers:
                (i) To administer land use and water use regulations to control development to ensure compliance with the management program, and to resolve conflicts among competing uses; and
                (ii) To acquire fee simple and less than fee simple interests in land, waters, and other property through condemnation or other means when necessary to achieve conformance with the management program.
                (b) In order to meet these requirements, the program must identify relevant state constitutional provisions, statutes, regulations, case law and such other legal instruments (including executive orders and interagency agreements) that will be used to carry out the state's management program, including the authorities pursuant to sections 306(d)(10) and 306(d)(11) of the Act which require a state to have the ability to:
                (1) Administer land and water use regulations in conformance with the policies of the management program;
                (2) Control such development as is necessary to ensure compliance with the management program;
                (3) Resolve conflicts among competing uses; and

                (4) Acquire appropriate interest in lands, waters or other property as necessary to achieve management objectives. Where acquisition will be a necessary technique for accomplishing particular program policies and objectives, the management program must indicate for what purpose acquisition will be used (i.e., what policies or objectives will be accomplished); the type of acquisition (e.g., fee simple, purchase of easements, condemnation); and what agency (or agencies) of government have the authority for the specified type of acquisition.

                § 923.42
                State establishment of criteria and standards for local implementation—Technique A.

                (a) The management program must provide for any one or a combination of general techniques specified in subsection 306(d)(11) of the Act for control of land uses and water uses within the coastal zone. The first such control technique, at subsection 306(d)(11)(A) of the Act, is state establishment of criteria and standards for local implementation, subject to administrative review and enforcement (control technique A).

                (b) There are 5 principal requirements that control technique A must embody in order to be approved:
                (1) The State must have developed and have in effect at the time of program approval enforceable policies that meet the requirements of § 923.3. These policies must serve as the standards and criteria for local program development or the State must have separate standards and criteria, related to these enforceable policies, that will guide local program development.
                (2) During the period while local programs are being developed, a State must have sufficient authority to assure that land and water use decisions subject to the management program will comply with the program's enforceable policies. The adequacy of these authorities will be judged on the same basis as specified for direct State controls or case-by-case reviews.
                (3) A State must be able to ensure that coastal programs will be developed pursuant to the State's standards and criteria, or failing this, that the management program can be implemented directly by the State. This requirement can be met if a State can exercise any one of the following techniques:
                (i) Direct State enforcement of its standards and criteria in which case a State would need to meet the requirements of this section which address the direct State control technique;
                (ii) Preparation of a local program by a State agency which the local government then would implement. To use this technique the State must have statutory authority to prepare and adopt a program for a local government, and a mechanism by which the State can cause the local government to enforce the State-created program. Where the mechanism to assure local enforcement will be judicial relief, the program must include the authority under which judicial relief can be sought;
                (iii) State preparation and enforcement of a program on behalf of a local government. Here the State must have the authority to:
                (A) Prepare and adopt a plan, regulations, and ordinances for the local government and
                (B) Enforce such plans, regulations and ordinances;
                (iv) State review of local government actions on a case-by-case basis or on appeal, and prevention of actions inconsistent with the standards and criteria. Under this technique, when a local government fails to adopt an approvable program, the State must have the ability to review activities in the coastal zone subject to the management program and the power to prohibit, modify or condition those activities based on the policies, standards and criteria of the management program; or
                (v) If a locality fails to adopt a management program, the State may utilize a procedure whereby the responsibility for preparing a program shifts to an intermediate level government, such as a county. If this intermediate level of government fails to produce a program, then the State must have the ability to take one of the actions described above. This alternative cannot be used where the intermediate level of government lacks the legal authority to adopt and implement regulations necessary to implement State policies, standards and criteria.
                (4) A State must have a procedure whereby it reviews and certifies the local program's compliance with State standards and criteria. This procedure must include provisions for:
                (i) Opportunity for the public and governmental entities (including Federal agencies) to participate in the development of local programs; and
                (ii) Opportunity for the public and governmental entities (including Federal agencies) to make their views known (through public hearings or other means) to the State agency prior to approval of local programs; and
                (iii) Review by the State of the adequacy of local programs consideration of facilities identified in a State's management program in which there is a national interest.
                (5) A State must be able to assure implementation and enforcement of a local program once approved. To accomplish this a State must:

                (i) Establish a monitoring system which defines what constitutes and detects patterns of non-compliance. In the case of uses of regional benefit and facilities in which there is a national interest, the monitoring system must be capable of detecting single instances of local actions affecting such uses or facilities in a manner contrary to the management program.
                (ii) Be capable of assuring compliance when a pattern of deviation is detected or when a facility involving identified national interests or a use of regional benefit is affected in a manner contrary to the program's policies. When State action is required because of failure by a local government to enforce its program, the State must be able to do one or a combination of the following:
                (A) Directly enforce the entire local program;
                (B) Directly enforce that portion of the local program that is being enforced improperly. State intervention would be necessary only in those local government activities that are violating the policies, standards or criteria.
                (C) Seek judicial relief against local government for failure to properly enforce;
                (D) Review local government actions on a case-by-case basis or on appeal and have the power to prevent those actions inconsistent with the policies and standards.
                (E) Provide a procedure whereby the responsibility for enforcing a program shifts to an intermediate level of government, assuming statutory authority exists to enable the immediate of government to assume this responsibility.

                § 923.43
                Direct State land and water use planning and regulation—Technique B.
                (a) The management program must provide for any one or a combination of general techniques specified in subsection 306(d)(11) of the Act for control of land and water uses within the coastal zone. The second such control technique, at subsection 306(d)(11)(B) of the Act, is direct state land and water use planning and regulation (control technique B).
                (b) To have control technique B approved, the State must have the requisite direct authority to plan and regulate land and water uses subject to the management program. This authority can take the form of:
                (1) Comprehensive legislation—A single piece of comprehensive legislation specific to coastal management and the requirements of this Act.
                (2) Networking—The utilization of authorities which are compatible with and applied on the basis of coastal management policies developed pursuant to § 923.3.
                (c) In order to apply the networking concept, the State must:
                (1) Demonstrate that, taken together, existing authorities can and will be used to implement the full range of policies and management techniques identified as necessary for coastal management purposes; and
                (2) Bind each party which exercises statutory authority that is part of the management program to conformance with relevant enforceable policies and management techniques. Parties may be bound to conformance through an executive order, administrative directive or a memorandum of understanding provided that:
                (i) The management program authorities provide grounds for taking action to ensure compliance of networked agencies with the program. It will be sufficient if any of the following can act to ensure compliance: The State agency designated pursuant to subsection 306(d)(6) of the Act, the State's Attorney General, another State agency, a local government, or a citizen.
                (ii) The executive order, administrative directive or memorandum of understanding establishes conformance requirements of other State agency activities or authorities to management program policies. A gubernatorial executive order will be acceptable if networked State agency heads are directly responsible to the Governor.

                (3) Where networked State agencies can enforce the management program policies at the time of section 306 approval without first having to revise their operating rules and regulations, then any proposed revisions to such rules and regulations which would enhance or facilitate implementation need not be accomplished prior to program approval. Where State agencies cannot enforce coastal policies without first revising their rules and regulations, then these revisions must be made prior to approval of the State's program by the Assistant Administrator.

                § 923.44
                State review on a case-by-case basis of actions affecting land and water uses subject to the management program—Technique C.
                (a) The management program must provide for any one or a combination of general techniques specified in subsection 306(d)(11) of the Act for control of land and water uses within the coastal zone. The third such control technique, at subsection 306(d)(11)(C) of the Act, is state administrative review for consistency with the management program of all development plans, projects, or land and water use regulations, including exceptions and variances thereto, proposed by any state or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings (control technique C).
                (b) Under case-by-case review, States have the power to review individual development plans, projects or land and water use regulations (including variances and exceptions thereto) proposed by any State or local authority or private developer which have been identified in the management program as being subject to review for consistency with the management program. This control technique requires the greatest degree of policy specificity because compliance with the program will not require any prior actions on the part of anyone affected by the program. Specificity also is needed to avoid challenges that decisions (made pursuant to the management program) are unfounded, arbitrary or capricious.
                (c) To have control technique C approved, a State must:
                (1) Identify the plans, projects or regulations subject to review, based on their significance in terms of impacts on coastal resources, potential for incompatibility with the State's coastal management program, and having greater than local significance;
                (2) Identify the State agency that will conduct this review;
                (3) Include the criteria by which identified plans, projects and regulations will be approved or disapproved;
                (4) Have the power to approve or disapprove identified plans, projects or regulations that are inconsistent with the management program, or the power to seek court review thereof; and
                (5) Provide public notice of reviews and the opportunity for public hearing prior to rendering a decision on each case-by-case review.

                § 923.45
                Air and water pollution control requirements.
                The program must incorporate, by reference or otherwise, all requirements established by the Federal Water Pollution Control Act, as amended (Clean Water Act or CWA), or the Clean Air Act, as amended (CAA), or established by the Federal Government or by any state or local government pursuant to such Acts. Such requirements must be the water pollution control and air pollution control requirements applicable to such program. Incorporation of the air and water quality requirements pursuant to the CWA and CAA should involve their consideration during program development, especially with respect to use determinations and designation of areas for special management. In addition, this incorporation will prove to be more meaningful if close coordination and working relationships between the State agency and the air and water quality agencies are developed and maintained throughout the program development process and after program approval.

                § 923.46
                Organizational structure.

                The State must be organized to implement the management program. The management program must describe the organizational structure that will be used to implement and administer the management program including a discussion of those state and other agencies, including local governments, that will have responsibility for administering, enforcing and/or monitoring those authorities or techniques required pursuant to the following subsections of the Act: 306(d)(3)(B); 306(d)(10); 306(d)(10) (A) and (B); 306(d) (11) and (12); and 307(f). The management program must also describe the relationship of these administering agencies to the state agency designated pursuant to subsection 306(d)(6) of the Act.

                § 923.47
                Designated State agency.
                (a) For program approval, the Governor of the state must designate a single state agency to receive and administer the grants for implementing the management program.
                (1) This entity must have the fiscal and legal capability to accept and administer grant funds, to make contracts or other arrangements (such as passthrough grants) with participating agencies for the purpose of carrying out specific management tasks and to account for the expenditure of the implementation funds of any recipient of such monies, and
                (2) This entity must have the administrative capability to monitor and evaluate the management of the State's coastal resources by the various agencies and/or local governments with specified responsibilities under the management program (irrespective of whether such entities receive section 306 funds); to make periodic reports to the Office of Ocean and Coastal Resource Management (OCRM), the Governor, or the State legislature, as appropriate, regarding the performance of all agencies involved in the program. The entity also must be capable of presenting evidence of adherence to the management program or justification for deviation as part of the review by OCRM of State performance required by section 312 of the Act.
                (b)(1) The 306 agency designation is designed to establish a single point of accountability for prudent use of administrative funds in the furtherance of the management and for monitoring of management activities. Designation does not imply that this single agency need be a “super agency” or the principal implementation vehicle. It is, however, the focal point for proper administration and evaluation of the State's program and the entity to which OCRM will look when monitoring and reevaluating a State's program during program implementation.
                (2) The requirement for the single designated agency should not be viewed as confining or otherwise limiting the role and responsibilities which may be assigned to this agency. It is up to the State to decide in what manner and to what extent the designated State agency will be involved in actual program implementation or enforcement. In determining the extent to which this agency should be involved in program implementation or enforcement, specific factors should be considered, such as the manner in which local and regional authorities are involved in program implementation, the administrative structure of the State, the authorities to be relied upon and the agencies administering such authorities. Because the designated State agency may be viewed as the best vehicle for increasing the unity and efficiency of a management program, the State may want to consider the following in selecting which agency to designate:
                (i) Whether the designated State entity has a legislative mandate to coordinate other State or local programs, plans and/or policies within the coastal zone;
                (ii) To what extent linkages already exist between the entity, other agencies, and local governments;
                (iii) To what extent management or regulatory authorities affecting the coastal zone presently are administered by the agency; and
                (iv) Whether the agency is equipped to handle monitoring, evaluation and enforcement responsibilities.

                § 923.48
                Documentation.
                A transmittal letter signed by the Governor is required for the submission of a management program for federal approval. The letter must state that the Governor:
                (a) Has reviewed and approved as State policy, the management program, and any changes thereto, submitted for the approval of the Assistant Administrator.
                (b) Has designated a single State agency to receive and administer implementation grants;

                (c) Attests to the fact that the State has the authorities necessary to implement the management program; and

                (d) Attests to the fact that the State is organized to implement the management program.

              Subpart F—Coordination, Public Involvement and National Interest

                Source:
                61 FR 33812, June 28, 1996, unless otherwise noted.

                § 923.50
                General.
                (a) Coordination with governmental agencies having interests and responsibilities affecting the coastal zone, and involvement of interest groups as well as the general public is essential to the development and administration of State coastal management programs. The coordination requirements of this subpart are intended to achieve a proper balancing of diverse interests in the coastal zone. The policies of section 303 of the Act require that there be a balancing of variety, sometimes conflicting, interests, including:
                (1) The preservation, protection, development and, where possible, the restoration or enhancement of coastal resources;
                (2) The achievement of wise use of coastal land and water resources with full consideration for ecological, cultural, historic, and aesthetic values and needs for compatible economic development;
                (3) The involvement of the public, of Federal, state and local governments and of regional agencies in the development and implementation of coastal management programs;
                (4) The management of coastal development to improve, safeguard, and restore coastal water quality; and
                (5) The study and development of plans for addressing the adverse effects of coastal hazards, including erosion, flooding, land subsidence and sea level rise.
                (b) In order to be meaningful, coordination with and participation by various units and levels of government including regional commissions, interest groups, and the general public should begin early in the process of program development and should continue throughout on a timely basis to assure that such efforts will result in substantive inputs into a State's management program. State efforts should be devoted not only to obtaining information necessary for developing the management program but also to obtaining reactions and recommendations regarding the content of the management program and to responding to concerns by interested parties. The requirements for intergovernmental cooperation and public participation continue after program approval.
                (c) This subpart deals with requirements for coordination with governmental entities, interest groups and the general public to assure that their interests are fully expressed and considered during the program development process and that procedures are created to insure continued consideration of their views during program implementation. In addition, this subpart deals with mediation procedures for serious disagreements between States and Federal agencies that occur during program development and implementation. This subpart addresses the requirements of the following subsections of the Act: 306(d)(1)—Opportunity for Full Participation; 306(d)(3)(A)—Plan Coordination; 306(d)(3)(B)—Continued State-Local Consultation; 306(d)(4)—Public Hearings; 306(d)(8)—Consideration of the National Interest in Facilities; 307(b)—Federal Consultation; and 307(h)—Mediation.

                § 923.51
                Federal-State consultation.
                (a) The management program must be developed and adopted with the opportunity of full participation by relevant Federal agencies and with adequate consideration of the views of Federal agencies principally affected by such program.
                (b) By providing relevant Federal agencies with the opportunity for full participation during program development and for adequately considering the views of such agencies, States can effectuate the Federal consistency provisions of subsections 307 (c) and (d) of the Act once their programs are approved. (See 15 CFR part 930 for a full discussion of the Federal consistency provisions of the Act.)

                (c) In addition to the consideration of relevant Federal agency views required during program development, Federal agencies have the opportunity to provide further comment during the program review and approval process. (See subpart G for details on this process.) Moreover, in the event of a serious disagreement between a relevant Federal agency and designated State agency during program development or during program implementation, the mediation provisions of subsection 307(h) of the Act are available. (See § 923.54 for details on mediation.)
                (d) In order to provide an opportunity for participation by relevant Federal agencies and give adequate consideration to their views, each state must:
                (1) Contact each relevant Federal Agency listed in § 923.2(d) and such other Federal agencies as may be relevant, owing to a State's particular circumstances, early in the development of its management program. The purpose of such contact is to develop mutual arrangements or understandings regarding that agency's participation during program development;
                (2) Provide for Federal agency input on a timely basis as the program is developed. Such input shall be related both to information required to develop the management program and to evaluation of and recommendations concerning various elements of the management program;
                (3) Solicit statements from the head of Federal agencies identified in Table 1 of § 923.52(c)(1) as to their interpretation of the national interest in the planning for and siting of facilities which are more than local in nature;
                (4) Summarize the nature, frequency, and timing of contacts with relevant Federal agencies;
                (5) Evaluate Federal comments received during the program development process and, where appropriate in the opinion of the State, accommodate the substance of pertinent comments in the management program. States must consider and evaluate relevant Federal agency views or comments about the following:
                (i) Management of coastal resources for preservation, conservation, development, enhancement or restoration purposes;
                (ii) Statements of the national interest in the planning for or siting of facilities which are more than local in nature;
                (iii) Uses which are subject to the management program;
                (iv) Areas which are of particular concern to the management program;
                (v) Boundary determinations;
                (vi) Shorefront access and protecting planning, energy facility planning and erosion planning processes; and
                (vii) Federally developed or assisted plans that must be coordinated with the management program pursuant to subsection 306(d)(3) of the Act.
                (6) Indicate the nature of major comments by Federal agencies provided during program development (either by including copies of comments or by summarizing comments) and discuss any major differences or conflicts between the management program and Federal views that have not been resolved at the time of program submission.

                § 923.52
                Consideration of the national interest in facilities.
                (a) The management program must provide for adequate consideration of the national interest involved in planning for, and managing the coastal zone, including the siting of facilities such as energy facilities which are of greater than local significance. In the case of energy facilities, the State must have considered any applicable national or interstate energy plan or program.
                (b) The primary purpose of this requirement is to assure adequate consideration by States of the national interest involved in the planning for and siting of facilities (which are necessary to meet other than local requirements) during:
                (1) The development of the State's management program,
                (2) The review and approval of the program by the Assistant Administrator, and
                (3) The implementation of the program as such facilities are proposed.
                (c) In order to fulfill this requirement, States must:

                (1) Describe the national interest in the planning for and siting of facilities considered during program development.

                (2) Indicate the sources relied upon for a description of the national interest in the planning for and siting of the facilities.
                (3) Indicate how and where the consideration of the national interest is reflected in the substance of the management program. In the case of energy facilities in which there is a national interest, the program must indicate the consideration given any national or interstate energy plans or programs which are applicable to or affect a state's coastal zone.
                (4) Describe the process for continued consideration of the national interest in the planning for and siting of facilities during program implementation, including a clear and detailed description of the administrative procedures and decisions points where such interest will be considered.

                § 923.53
                Federal consistency procedures.
                (a) A State must include in its management program submission, as part of the body of the submission an appendix or an attachment, the procedures it will use to implement the Federal consistency requirements of subsections 307 (c) and (d) of the Act. At a minimum, the following must be included:
                (1) An indication of whether the state agency designated pursuant to subsection 306(d)(6) of the Act or a single other agency will handle consistency review (see 15 CFR 930.18);
                (2) A list of Federal license and permit activities that will be subject to review (see 15 CFR 930.53);
                (3) For States anticipating coastal zone effects from Outer Continental Shelf (OCS) activities, the license and permit list also must include OCS plans which describe in detail Federal license and permit activities (see 15 CFR 930.74); and
                (4) The public notice procedures to be used for certifications submitted for Federal License and permit activities and, where appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and 930.78).
                (b) Beyond the minimum requirements contained in paragraph (a) of this section, States have the option of including:
                (1) A list of Federal activities, including development projects, which in the opinion of the State agency are likely to significantly affect the coastal zone and thereby will require a Federal agency consistency determination (see 15 CFR 930.35); and
                (2) A description of the types of information and data necessary to assess the consistency of Federal license and permit activities and, where appropriate, those described in detail in OCS plans (see 15 CFR 930.56 and 930.75).

                § 923.54
                Mediation.
                (a) Section 307(h) of the Act provides for mediation of serious disagreement between any Federal agency and a coastal state in the development and implementation of a management program. In certain cases, mediation by the Secretary, with the assistance of the Executive Office of the President, may be an appropriate forum for conflict resolution.
                (b) State-Federal differences should be addressed initially by the parties involved. Whenever a serious disagreement cannot be resolved between the parties concerned, either party may request the informal assistance of the Assistant Administrator in resolving the disagreement. This request shall be in writing, stating the points of disagreement and the reason therefore. A copy of the request shall be sent to the other party to the disagreement.
                (c) If a serious disagreement persists, the Secretary or other head of a relevant Federal agency, or the Governor or the head of the state agency designated by the Governor as administratively responsible for program development (if a state still is receiving section 305 program development grants) or for program implementation (if a state is receiving section 306 program implementation grants) may notify the Secretary in writing of the existence of a serious disagreement, and may request that the Secretary seek to mediate the serious disagreement. A copy of the written request must be sent to the agency with which the requesting agency disagrees and to the Assistant Administrator.

                (d) Secretarial mediation efforts shall last only so long as the parties agree to participate. The Secretary shall confer with the Executive Office of the President, as necessary, during the mediation process.
                (e) Mediation shall terminate:
                (1) At any time the parties agree to a resolution of the serious disagreement,
                (2) If one of the parties withdraws from mediation,
                (3) In the event the parties fail to reach a resolution of the serious disagreement within 15 days following Secretarial mediation efforts, and the parties do not agree to extend mediation beyond that period, or
                (4) For other good cause.
                (f) The availability of the mediation services provided in this section is not intended expressly or implicitly to limit the parties' use of alternate forums to resolve disputes. Specifically, judicial review where otherwise available by law may be sought by any party to a serious disagreement without first having exhausted the mediation process provided herein.

                § 923.55
                Full participation by State and local governments, interested parties, and the general public.
                The management program must be developed and adopted with the opportunity of full participation by state agencies, local governments, regional commissions and organizations, port authorities, and other interested public and private parties. To meet this requirement, a State must:
                (a) Develop and make available general information regarding the program design, its content and its status throughout program development;
                (b) Provide a listing, as comprehensive as possible, of all governmental agencies, regional organizations, port authorities and public and private organizations likely to be affected by or to have a direct interest in the development and implementation of the management program;
                (c) Indicate the nature of major comments received from interested or affected parties, identified in paragraph (b)(2) of this section, and the nature of the State's response to these comments; and
                (d) Hold public meetings, workshops, etc., during the course of program development at accessible locations and convenient times, with reasonable notice and availability of materials.

                § 923.56
                Plan coordination.
                (a) The management program must be coordinated with local, areawide, and interstate plans applicable to areas within the coastal zone—
                (1) Existing on January 1 of the year in which the state's management program is submitted to the Secretary; and
                (2) Which have been developed by a local government, an areawide agency, a regional agency, or an interstate agency.
                (b) A State must insure that the contents of its management program has been coordinated with local, areawide and interstate plans applicable to areas within the coastal zone existing on January 1 of the year in which the State's management program is submitted to the Assistant Administrator for approval. To document this coordination, the management program must:
                (1) Identify local governments, areawide agencies and regional or interstate agencies which have plans affecting the coastal zone in effect on January 1 of the year in which the management program is submitted;

                (2) List or provide a summary of contacts with these entities for the purpose of coordinating the management program with plans adopted by a governmental entity as of January 1 of the year in which the management program is submitted. At a minimum, the following plans, affecting a State coastal zone, shall be reviewed: Land use plans prepared pursuant to section 701 of the Housing and Urban Development Act of 1968, as amended; State and areawide waste treatment facility or management plans prepared pursuant to sections 201 and 208 of the Clean Water Act, as amended; plans and designations made pursuant to the National Flood Insurance Act of 1968, as amended, and the Flood Disaster Protection Act of 1973, as amended; hazard mitigation plans prepared pursuant to section 409 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act; any applicable interstate energy plans or programs developed pursuant to section 309 of the Act; regional and interstate highway plans; plans developed by Regional Action Planning Commission; and fishery management plans developed pursuant to the Fisheries Conservation and Management Act.
                (3) Identify conflicts with those plans of a regulatory nature that are unresolved at the time of program submission and the means that can be used to resolve these conflicts.

                § 923.57
                Continuing consultation.
                (a) As required by subsection 306(d)(3)(B) of the Act, a State must establish an effective mechanism for continuing consultation and coordination between the management agency designated pursuant to paragraph (6) of section 306(d) of the Act and with local governments, interstate agencies, regional agencies, and areawide agencies within the coastal zone to assure the full participation of those local governments and agencies in carrying out the purposes of this Act.
                (b) The management program must establish a procedure whereby local governments with zoning authority are notified of State management program decisions which would conflict with any local zoning ordinance decision.
                (1) “Management program decision” refers to any major, discretionary policy decisions on the part of a management agency, such as the determination of permissible land and water uses, the designation of areas or particular concern or areas for preservation or restoration, or the decision to acquire property for public uses. Regulatory actions which are taken pursuant to these major decisions are not subject to the State-local consultation mechanisms. A State management program decision is in conflict with a local zoning ordinance if the decision is contradictory to that ordinance. A State management program decision that consists of additional but not contradictory requirements is not in conflict with a local zoning ordinance, decision or other action;
                (2) “Local government” refers to these defined in section 304(11) of the Act which have some form of zoning authority.
                (3) “Local zoning ordinance, decision or other action” refers to any local government land or water use action which regulates or restricts the construction, alteration of use of land, water or structures thereon or thereunder. These actions include zoning ordinances, master plans and official maps. A local government has the right to comment on a State management program decision when such decision conflicts with the above specified actions;
                (4) Notification must be in writing and must inform the local government of its right to submit comments to the State management agency in the event the proposed State management program decision conflicts with a local zoning ordinance, decision or other action. The effect of providing such notice is to stay State action to implement its management decision for at least a 30-day period unless the local government waives its right to comment.
                (5) “Waiver” of the right of local government to comment (thereby permitting a State agency to proceed immediately with implementation of the management program decision) shall result:
                (i) Following State agency receipt of a written statement from a local government indicating that it either:
                (A) Waives its right to comment; or
                (B) Concurs with the management program decision; or
                (C) Intends to take action which conflicts or interferes with the management program decision; or
                (ii) Following a public statement by a local government to the same effect as paragraph (b)(5)(i) of this section; or
                (iii) Following an action by a local government that conflicts or interferes with the management program decision.

                (6) The management program shall include procedures to be followed by a management agency in considering a local government's comments. These procedures shall include, at a minimum, circumstances under which the agency will exercise its discretion to hold a public hearing. Where public hearings will be held, the program must set forth notice and other hearing procedures that will be followed. Following State agency consideration of local comments (when a discretionary public hearing is not held) or following public hearing, the management agency shall provide a written response to the affected local government, affected local government, within a reasonable period of time and prior to implementation of the management program decision, on the results of the agency's consideration of public comments.

                § 923.58
                Public hearings.
                The management program must be developed and adopted after the holding of public hearings. A State must:
                (a) Hold a minimum of two public hearings during the course of program development, at least one of which will be on the total scope of the coastal management program. Hearings on the total management program do not have to be held on the actual document submitted to the Assistant Administrator for section 306 approval. However, such hearing(s) must cover the substance and content of the proposed management program in such a manner that the general public, and particularly affected parties, have a reasonable opportunity to understand the impacts of the management program. If the hearing(s) are not on the management document per se, all requests for such document must be honored and comments on the document received prior to submission of the document to the Assistant Administrator must be considered;
                (b) Provide a minimum of 30 days public notice of hearing dates and locations;
                (c) Make available for public review, at the time of public notice, all agency materials pertinent to the hearings; and
                (d) Include a transcript or summary of the public hearing(s) with the State's program document or submit same within thirty (30) days following submittal of the program to the Assistant Administrator. At the same time this transcript or summary is submitted to the Assistant Administrator, it must be made available, upon request, to the public.

              Subpart G—Review/Approval Procedures

                Source:
                61 FR 33815, June 28, 1996, unless otherwise noted.

                § 923.60
                Review/approval procedures.
                (a) All state management program submissions must contain an environmental assessment at the time of submission of the management program to OCRM for threshold review. In accordance with regulations implementing the National Environmental Policy Act of 1969, as amended, OCRM will assist the State by outlining the types of information required. (See 40 CFR § 1506.5 (a) and (b).)
                (b) Upon submission by a State of its draft management program, OCRM will determine if it adequately meets the requirements of the Act and this part. Assuming positive findings are made and major revisions to the State's draft management program are not required, OCRM will prepare draft and final environmental impact statements, in accordance with National Environmental Policy Act requirements. Because the review process involves preparation and dissemination of draft and final environmental impact statements and lengthy Federal agency review; states should anticipate that it will take at least 7 months between the time a state first submits a draft management program to OCRM for threshold review and the point at which the Assistant Administrator makes a final decision on whether to approve the management program. Certain factors will contribute to lengthening or shortening this time table; these factors are discussed in OCRM guidance on the review/approval process. The OCRM guidance also recommends a format for the program document submitted to the Assistant Administrator for review and approval.

              Subpart H—Changes to Approved Management Programs

                Source:
                84 FR 38131, Aug. 6, 2019, unless otherwise noted.

                § 923.80
                General.
                (a) This subpart establishes the criteria and procedures by which any proposed change to approved management programs shall be made. The term “program change” includes all terms used in section 306(e) of the Act, including amendment, modification or other program change. Draft program changes submitted to NOAA for informal review and comment are not subject to these requirements. Unless otherwise specified, the term “NOAA” refers to the Office for Coastal Management, within NOAA's National Ocean Service. (The Office for Coastal Management was formerly known as the Office of Ocean and Coastal Resource Management and the Coastal Services Center.)
                (b) Pursuant to section 306(e) of the Act, a coastal state may not implement any change to a management program as part of its management program unless the state submits, and NOAA approves, the change for incorporation into the state's federally-approved management program. A state shall not use a state or local government policy or requirement as an “enforceable policy” under 16 U.S.C. 1453(6a) and § 930.11(h) of this subchapter for purposes of Federal consistency under 16 U.S.C. 1456 and part 930 of this subchapter, unless NOAA has approved the incorporation of, and subsequent changes to, the state or local policy into the state's management program under this subpart. State or local government law not approved by NOAA as part of a state's management program remain legal requirements for state and local government purposes, but not for CZMA Federal consistency purposes.
                (c) For purposes of this subpart, program changes include changes to enforceable policies as well as changes to one or more of the following management program areas under part 923: Uses Subject to Management (Subpart B); Special Management Areas (Subpart C); Boundaries (Subpart D); Authorities and Organization (Subpart E); and Coordination, Public Involvement and National Interest (Subpart F).
                (d) The phrase “enforceable policies” used in this subpart is described in 16 U.S.C. 1453(6a) and § 930.11(h) of this subchapter. Enforceable policies are the only policies states can use to determine whether a Federal action is consistent with its management program under section 307, the Federal Consistency provision, of the Act (16 U.S.C. 1456 and part 930 of this subchapter).
                (e) Pursuant to section 306(e)(1) of the Act and § 923.135, NOAA may suspend all or part of any grant or cooperative agreement made under section 306 of the Act if the state has failed to submit a program change identified as a necessary action under section 312 of the Act and part 923, subpart L (Review of Performance) and pursuant to the requirements for NOAA to notify the Governor of a state under the enforcement provisions of § 923.135.

                § 923.81
                Program change procedures, deadlines, public notice and comment, and application of approved changes.
                (a) Pursuant to section 306(d)(6) of the Act and § 930.11(o) of this subchapter, all program changes shall be submitted to NOAA by: The Governor of a coastal state with an approved management program; the head of the single state agency designated under the management program to be the lead state agency for administering the CZMA; or the head of an office within the designated single state agency if the state has authorized that person to submit program changes. Program changes may be submitted to NOAA on a cyclical basis (e.g., quarterly, twice a year, annually) or as the changes occur.

                (1) One (1) copy shall be submitted electronically using the Program Change Form on NOAA's Program Change website, http://coast.noaa.gov/czmprogramchange.
                (i) If a state is not able to electronically send all or part of a program change to NOAA through NOAA's Program Change website, the state and NOAA shall agree to an alternative method (e.g., email, electronic CD, or a state website). In such instances, NOAA will, to the extent practicable, post the program change to NOAA's Program Change website.
                (ii) [Reserved]

                (2) All deadlines and timeframes under this subpart shall start on the first full business day after the day NOAA receives a program change (Day 1). For example, if a submission is received on a Thursday, day one of NOAA's review period would be Friday; if the day of receipt is Friday and Monday is a Federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, are included in the calculation of total time for a deadline, including weekends and Federal holidays, except for the last day (e.g., Day 30 or Day 120). The day that NOAA's decision is due shall also end on a full business day. For example, if Day 30 is a Saturday, then NOAA's decision will be due the next Monday, or if Monday is a Federal holiday, on Tuesday. A state may request that NOAA's review period begin on a specified date following receipt by NOAA.
                (b) Within 5 days of receipt of a program change submission, NOAA shall notify the state (via email or letter) of the date the program change was received and NOAA's expected decision deadline. NOAA will also notify the state within 10 days of receipt of a program change submission if NOAA determines the submission is incomplete. If NOAA determines a submission is incomplete, NOAA shall inform the state that the program change review timeline shall not start until the missing information is submitted. During NOAA's review of a program change request, NOAA may request additional information that NOAA needs to make its decision.

                (c) NOAA's program change review period shall start on Day 1 pursuant to paragraph (a)(2) of this section, unless NOAA determines the submission is incomplete pursuant to paragraph (b) of this section. NOAA shall respond to the state (via email or letter) within 30 calendar days after the date NOAA receives a program change. NOAA's approval is presumed if NOAA does not respond or extend its review period within the 30-day period. NOAA may extend its review period up to 120 days after receipt of a program change request, if NOAA so notifies the state during the 30-day period. NOAA can extend beyond 120 days only as necessary to meet the requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). NOAA shall inform the state via email or letter whether NOAA approves, approves in part, approves with qualifications or denies the incorporation of the program change into the state's management program.
                (d) States shall, to the extent practicable, consult with NOAA prior to state adoption of new or revised state laws, policies, regulations, and other changes the state intends to submit to NOAA as a program change. States are encouraged to submit draft program changes to NOAA for informal review and comment prior to submitting a program change. If consulted, NOAA shall review draft submissions to identify issues that would need to be addressed in the formal submission.

                (e)(1) A state shall post a public notice of its program change on the state's management program website in a conspicuous manner, and email or mail the public notice to local and regional offices of relevant Federal agencies, Federal agency CZMA headquarter contacts identified on NOAA's Federal consistency website, affected local governments and state agencies, and to individuals requesting direct notice. To meet the requirement for direct public notice (via email or mail), states are encouraged to maintain a coastal management listserv or mailing list. In addition to posting the public notice on the state's website and notifying the parties described above, states may, but are not required to, publish the notice in any state bulletin or newspaper. The timing of the state's public notice. States will draft a public notice of a submission, which shall be included as part of the contents of the program change submission form. When NOAA posts the program change submission on its Program Change website, NOAA will notify the state management program via email. The state will then post its public notice on the state web page providing a link to the submission on NOAA's Program Change website. The state shall send the public notice and link to the state and local agencies, Federal agency contacts, and others who have requested the state's public notice. Day 1 for NOAA review purposes will be the first business day after the state submits to NOAA the program change request. However, the 21-day comment period shall not start until the state posts its public notice on the state web page. If a state fails to post its public notice, then NOAA may either determine the program change submission is not complete and the review period has not started or deny the program change request.
                (2) A state's public notice shall:
                (i) Describe the changes to the management program;
                (ii) If applicable, identify any new, modified or deleted enforceable policies of the management program;
                (iii) Indicate that any comments on the incorporation of the program change into the state's management program shall be submitted to NOAA through NOAA's Program Change website within 21 calendar days of the date of the state's public notice; and
                (3) NOAA shall post all program changes on its Program Change website where any interested party may review or download materials. NOAA shall also post on its Program Change website deadlines, extensions and any comments received. For each program change posted on NOAA's website, NOAA shall notify the Federal agency CZMA headquarter contacts (identified on NOAA's Federal consistency website) via email. In addition, any party may request through the Program Change website that NOAA notify them via email when program changes are submitted by one or more state(s). NOAA's email shall also state that any party may, through NOAA's Program Change website, submit comments to NOAA on a state's request to incorporate a program change into the state's management program within 21 calendar days from the date of the state's public notice. NOAA shall only consider public and Federal agency comments for program change requests that are pending for a NOAA decision; no comments shall be accepted or considered for program changes once NOAA issues its decision. If a state, during or after the public comment period, submits directly to NOAA a response to a comment before NOAA issues a decision, NOAA shall consider the state's response and post the state's response on the Program Change website.
                (4) NOAA may, at its discretion, extend the public comment period or hold a public hearing. NOAA shall only consider holding a public hearing for a program change that would substantially change a management program and/or be controversial.
                (5) NOAA shall post its program change decisions on its CZMA Program Change website and shall notify, by email, Federal agency CZMA headquarter contacts and individuals requesting such notice. A state shall post NOAA's decision regarding a state's program change on the state agency's website.
                (f) Application of approved program changes for Federal consistency purposes under section 307 of the Act (16 U.S.C. 1456) and part 930 of this subchapter. The effective date for the approved changes will be the date on NOAA's approval letter. NOAA will post its program change decision letters on its Program Change website. Changes to a state's management program and enforceable policies shall apply for Federal consistency purposes to Federal actions proposed on or after the date NOAA approves the changes. Approved program changes shall not apply retroactively to state Federal consistency reviews under 15 CFR part 930 initiated prior to the date NOAA approved the changes, except as allowed by part 930 (e.g., a Federal action was finalized or authorized and there is a substantial change, amendment or renewal proposed for the Federal action on or after the date of NOAA's approval of a program change, pursuant to the applicable subpart of part 930).

                § 923.82
                Program change submissions.
                (a) As required by CZMA section 306(e)(3)(A), coastal states may not implement a change as part of its approved management program unless the change is approved by NOAA. In accordance with §§ 923.81 and 923.83, states shall submit program changes to NOAA for approval using the Program Change Form on NOAA's Program Change website.

                (b) All state program changes shall identify the program approval area(s) that apply to the program change. The five program approval areas are: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organization (subpart E of this part); and Coordination, Public Involvement and National Interest (subpart F of this part).
                (c) Program changes that are editorial, non-substantive, or minor in scope. The types of program changes in paragraphs (c)(1) through (4) of this section shall be approved by NOAA and need less review as long as they satisfy the decision criteria in § 923.84 and do not raise issues under any Federal laws, as described in § 923.85:
                (1) Editorial or non-substantive changes (e.g., citation changes, minor technical changes, or changes to state agency name) to state laws, regulations, enforceable policies, local government coastal management programs, special area management plans, and other authorities;
                (2) Changes that do not change a state's coastal zone boundary or geographic location description(s), and are not otherwise used by the state for Federal consistency review;
                (3) Changes to the organization of a state's management program if the management program's structure and responsibilities will remain intact; and
                (4) Changes to enforceable policies previously approved by NOAA that make minor substantive revisions consistent with the scope and application of the previously approved enforceable policy. If the proposed changes are not consistent with the scope and application of the previously approved enforceable policy, then NOAA shall more closely review the changes under paragraph (d) of this section to ensure they satisfy the decision criteria.
                (d) Any program change that is not described in paragraph (c) of this section shall be reviewed by NOAA to ensure the state's management program will remain approvable if the proposed program change is approved. These changes include:
                (1) Changes to the five program approval areas, including: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organization (subpart E of this part); and Coordination, Public Involvement and National Interest (subpart F of this part);
                (2) Changes to enforceable policies, including modifications, additions and deletions;
                (3) Changes to provisions that are not enforceable policies, but which a state may use to evaluate the scope or applicability of an enforceable policy (e.g., definitions, advisory statements);
                (4) Changes to local government coastal management programs or plans if those local programs or plans contain enforceable policies that the state uses for Federal consistency review. States are not required to submit program changes for local government coastal management programs or plans that do not contain enforceable policies for Federal consistency review;
                (5) Changes or additions to the state's Federal consistency list or geographic location descriptions (part 930 of this subchapter); and
                (6) Changes or additions to Necessary Data and Information (§ 930.58 of this subchapter).
                (e) Changes to state Clean Air Act (CAA) and Clean Water Act (CWA) Pollution Control Requirements. Pursuant to section 307(f) of the Act, requirements established by the CWA (33 U.S.C. 1251-1387) and the CAA (42 U.S.C. 7401-7671), or established by the Federal Government or by any state or local government pursuant to the CWA and CAA shall be incorporated in state management programs and shall be the water pollution control and air pollution control requirements applicable to such management program. Therefore, states are not required to submit as program changes any changes to state CAA and CWA provisions.

                § 923.83
                Program change materials.
                (a) All program changes submitted to NOAA shall be submitted in accordance with § 923.81. States shall use the Program Change website Form and Table to provide the following.

                (1) A brief general overview description of the proposed program change(s) and a current version of the document(s) containing the program change (e.g., text of the revised statute, regulation, policy, map). The general overview description shall identify the law, regulation, policy, or other type of program provision contained in the program change submission.
                (2) A brief summary of the changes of each authority or policy identified in paragraph (a)(1) of this section, and how the management program as changed is different than the previously approved management program.
                (3) Indicate which of one or more of the five management program approval areas under this part apply to the program change:
                (i) Uses Subject to Management (subpart B);
                (ii) Special Management Areas (subpart C);
                (iii) Boundaries (subpart D);
                (iv) Authorities and Organization (subpart E); or
                (v) Coordination, Public Involvement and National Interest (subpart F).
                (4) States shall use the Program Change Table provided by NOAA through the Program Change website to provide:
                (i) The State legal citation for the policy (state code, public law number, state regulation, other official state format);
                (ii) The title of the policy, section, or other descriptor;
                (iii) Whether the change or policy is new, revised, or deleted;
                (iv) The date the change was effective in the state;
                (v) Identification of each enforceable policy submitted as part of the program change; and
                (vi) The state enforceable mechanism citation that makes the policy enforceable under state law. The phrase “enforceable mechanism” means a state authority that makes an enforceable policy legally binding under state law, as described in this subpart and § 930.11(h) of this subchapter. Examples of an enforceable mechanism include state statutes, regulations, permitting programs, local government ordinances or court decisions. If an enforceable mechanism is changed so that an enforceable policy is no longer legally binding under state law, then the enforceable policy shall be submitted as a program change with a new underlying state enforceable mechanism; otherwise the policy is no longer enforceable for purposes of state CZMA Federal consistency reviews under part 930 of this subchapter.
                (5) Changes or additions to the state's Federal consistency list or geographic location descriptions.
                (i) For each new or revised listed Federal action, states shall describe the:
                (A) Type of Federal action;
                (B) Specific Federal statutory authority;
                (C) Responsible Federal agency; and
                (D) Reasonably foreseeable effects to the uses and resources of the state's coastal zone (§ 923.84(d)).
                (ii) For each new or revised geographic location description, states shall describe the:
                (A) Geographic location description, using specific geographic boundaries;
                (B) Listed Federal actions to be included within a geographic location description; and
                (C) Reasonably foreseeable effects to the uses and resources of the state's coastal zone (§ 923.84(d)).
                (6) States shall describe any changes or additions to Necessary Data and Information approved by NOAA in accordance with § 930.58 of this subchapter and explain why such information is necessary in order for the state to commence its Federal consistency review period.
                (7) The state shall indicate that the program change meets each of NOAA's decision criteria in § 923.84.
                (8) The state shall describe whether and how the program change will impact the following:
                (i) Resources or interests of any federally-recognized Indian Tribe.
                (ii) Threatened or endangered species listed under the Federal Endangered Species Act (ESA);
                (iii) Historic properties designated under the National Historic Preservation Act (NHPA);
                (iv) Essential fish habitat designated under the Magnuson Stevens Fishery Conservation and Management Act (MSFCMA); and

                (v) Marine mammals managed under the Marine Mammal Protection Act (MMPA).

                (9) The state shall identify the state's website where the public notices for the notification and submission requests are, or will be, located and where, if applicable, state documents related to the request may be viewed.
                (10) The state shall submit to NOAA any substantive correspondence between the state and Federal agencies (not including NOAA's Office for Coastal Management) concerning the development of the changes that are the subject of the program change request.
                (11) The state shall indicate if the program change was developed as a necessary action pursuant to section 312 of the Act (16 U.S.C. 1458—Review of performance) and, if so, shall briefly describe the necessary action.
                (b) [Reserved]

                § 923.84
                Program change decision criteria.
                (a) NOAA shall review all program changes on a case-by-case basis. NOAA shall determine whether a management program, if changed, would continue to satisfy the applicable program approval criteria of CZMA section 306(d) and subparts B through F of this part and the requirements of this subpart (subpart H).
                (b) Enforceable policies. In order for NOAA to approve the incorporation of a new or revised enforceable policy into a state's management program, the policy shall:
                (1) Be legally binding under state law;
                (2) Contain standards of sufficient specificity to guide public and private uses. A policy is not enforceable if it merely directs a state agency to develop regulations or standards.
                (i) Definitions and information requirements are essential elements of determining compliance with regulatory and permit standards. As such, a state law or regulation that contains numerous standards, definitions, and information requirements may be considered enforceable in its entirety after consultation with NOAA. If NOAA determines that a law or regulation may be considered enforceable in its entirety, a state shall still need to apply only the substantive standards within the statute or regulation as enforceable policies for CZMA Federal consistency reviews. Procedural requirements are not considered to be enforceable policies for CZMA review purposes.
                (ii) [Reserved]
                (3) Apply only to areas and/or entities under state jurisdiction;

                (4) Not refer to or otherwise purport to apply to Federal agencies, Federal lands or Federal waters. The Act does not authorize states to establish regulatory standards for Federal agencies or for Federal lands or waters. A state policy that would regulate or otherwise establish standards for Federal agencies or Federal lands or waters shall not meet the Act's definition of “enforceable policy” (i.e., legally binding under state law) under 16 U.S.C. 1453(6a). States apply their NOAA-approved enforceable policies to Federal actions, regardless of location, through CZMA Federal consistency reviews under 16 U.S.C. 1456 and part 930 of this subchapter;
                (5) Not be preempted by Federal law. If a state policy is preempted by Federal law, the policy is not legally binding under state law and shall not be an enforceable policy under 16 U.S.C. 1453(6a). Policies previously approved by NOAA as enforceable policies shall no longer be enforceable if Federal law enacted after NOAA's approval preempts the state policy;
                (6) Not incorporate by reference other state or local requirements that are not identified, described and evaluated as part of the program change request. Any state or local requirements incorporated by reference shall not be applicable for Federal consistency review purposes unless separately approved by NOAA as enforceable policies;
                (7) Not discriminate against a particular type of activity or entity. Enforceable policies shall be applied to all relevant public and private entities that would have similar coastal effects. Enforceable policies may be specific to a particular type of activity or entity if NOAA agrees that a state has demonstrated that the activity or entity present unique circumstances; and
                (8) Not adversely affect the national interest in the CZMA objectives described in 16 U.S.C. 1451 and 1452.

                (c) If enforceable policies previously approved by NOAA become obsolete or unenforceable through application of subsequently enacted state or Federal law, such policies will no longer be enforceable for purposes of CZMA Federal consistency review. For example, a state law change may repeal a previous policy or may change the policy in a manner that changes the scope and application of the policy. In such cases, the previously approved enforceable policy is no longer applicable under state law and the new or substantially revised policy is not applicable for Federal consistency purposes until that policy has been submitted by the state as a program change and approved by NOAA. A previously approved enforceable policy will no longer be legally enforceable under state law if subsequent Federal law preempts the state policy.
                (d) Changes to a management program's Federal consistency list or a new or revised geographic location description under part 930 of this subchapter, subparts C, D, E, F or I. For changes to a management program's list of Federal actions or a new or revised geographic location description, the state's effects analysis shall be based on information that would allow NOAA to find that the listed activity, either within the state's coastal zone or within a geographic location described outside the state's coastal zone, would have reasonably foreseeable effects on the uses or resources of the state's coastal zone. A state's analysis asserting impacts to uses or resources outside of the coastal zone shall not, by itself, demonstrate a coastal effect; rather, the state shall describe a causal connection of how an impact outside the coastal zone could result in a coastal effect. A state's effects analysis shall not be based on unsupported conclusions, speculation or the mere existence of coastal uses or resources within a geographic location. A state's coastal effects analysis shall, to the extent practicable, identify:
                (1) The affected uses (e.g., commercial and recreational fishing, boating, tourism, shipping, energy facilities) and resources (e.g., fish, marine mammals, reptiles, birds, landmarks).
                (2) Where and in what densities the uses and resources are found.
                (3) How the state has a specific interest in the resource or use. States should be specific in showing the connection to the coastal zone of the state (e.g., economic values, harvest amounts, vulnerabilities, seasonal information relevant to the proposed activity).
                (4) Where the proposed activity overlaps with these resources, uses and values.
                (5) Impacts to the resources or uses from the proposed activity.
                (6) A reasonable showing of a causal connection to the proposed activity, including how the impacts from the activity results in reasonably foreseeable effects on the state's coastal uses or resources.
                (7) Why any required mitigation may be inadequate.
                (8) Empirical data and information that supports the effects analysis and: Can be shown to be reliable; visualizes the affected area, resources and uses with maps; and shows values, trends and vulnerabilities.

                § 923.85
                Procedural requirements of other Federal law.
                NOAA shall determine on a case-by-case basis whether each program change requires NOAA to take additional actions under any other Federal requirements.
                (a) If a state's program change will affect the resources or interests of any federally-recognized Indian Tribe (tribe), NOAA shall contact the affected tribe(s) and determine if Government-to-Government consultation is desired under Executive Order 13175 (Nov. 6, 2000).
                (b) If, for the purposes of ESA, NHPA, MSFCMA or MMPA compliance, NOAA determines that a state's program change will have effects on listed threatened or endangered species, historic properties, essential fish habitat or marine mammals, then NOAA shall determine if consultation is needed with the applicable Federal agency under the ESA, NHPA, MSFCMA and MMPA.

                (c) When NOAA determines whether to consult under other Federal statutes or tribal executive orders, NOAA's ability to require changes to a state's proposed program change are limited by the following:

                (1) Once NOAA approves a state's management program, NOAA cannot require a state to change its program. NOAA can, through periodic evaluations of a state's management program under section 312 of the Act, establish necessary actions if NOAA finds a state is not adhering to its NOAA-approved program, but NOAA can only recommend that a state change its program to create a different state standard or to address emerging issues; and
                (2) NOAA can approve or disapprove a program change request. When NOAA reviews a program change, NOAA has a limited ability to require a state to make changes to state policies. If NOAA disapproves a program change request, this does not require a state to change state law. Therefore, there is no effect from NOAA's denial on the implementation of state law at the state (or local government) level. NOAA's denial means the disapproved state policy is not part of the state's NOAA-approved management program and cannot be used for CZMA Federal consistency purposes. NOAA cannot use a program change to require changes to other parts of a state's management program.

              Subpart I—Applications for Program Development or Implementation Grants

                Source:
                61 FR 33816, June 28, 1996, unless otherwise noted.

                § 923.90
                General.
                (a) The primary purpose of development grants made pursuant to section 305 of the Act is to assist coastal States in the development of comprehensive coastal management programs that can be approved by the Assistant Administrator. The primary purpose of implementation grants made pursuant to section 306 of the Act is to assist coastal States in implementing coastal management programs following their approval, including especially administrative actions to implement enforceable program policies, authorities and other management techniques. The purpose of the guidelines in this subpart is to define the procedures by which grantees apply for and administer grants under the Act. These guidelines shall be used and interpreted in conjunction with applicable Federal laws and policies, Department of Commerce grants management regulations, policies and procedures, and any other applicable directives from the NOAA Grants Management Division and OCRM program offices.
                (b) Grants awarded to a State must be expended for the development or administration, as appropriate, of a management program that meets the requirements of the Act, and in accordance with the terms of the award.
                (c) All applications for funding under section 305 or 306 of the Act, including proposed work programs, funding priorities and allocations are subject to the discretion of the Assistant Administrator.
                (d) For purposes of this subpart, the term development grant means a grant awarded pursuant to subsection 305(a) of the Act. “Administrative grant” and “implementation grant” are used interchangeably and mean grants awarded pursuant to subsection 306(a) of the Act.
                (e) All application and preapplication forms are to be requested from and submitted to: National Oceanic and Atmospheric Administration, Office of Ocean and Coastal Resource Management, Coastal Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.

                § 923.91
                State responsibility.
                (a) Applications for program grants are required to be submitted by the Governor of a participating state or by the head of the state entity designated by the Governor pursuant to subsection 306(d)(6) of the Act.
                (b) In the case of a section 305 grant, the application must designate a single state agency or entity to receive development grants and to be responsible for development of the State's coastal management program. The designee need not be that entity designated by the Governor pursuant to subsection 306(d)(6) of the Act as a single agency to receive and administer implementation grants.

                (c) One State application will cover all program activities for which program development or implementation funds under this Act and matching State funds are provided, irrespective of whether these activities will be carried out by State agencies, areawide or regional agencies, local governments, or interstate entities.
                (d) The designated state entity shall be fiscally responsible for all expenditures made under the grant, including expenditures by subgrantees and contractors.

                § 923.92
                Allocation.
                (a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act foster intergovernmental cooperation in that a state, in accordance with its coastal zone management program, may allocate some of its coastal zone management responsibilities to several agencies, including local governments, areawide agencies, regional agencies and interstate agencies. Such allocations provide for continuing consultation and more effective participation and cooperation among state and local governments, interstate, regional and areawide agencies.
                (b) A State may allocate a portion or portions of its grant to other State agencies, local governments, areawide or regional agencies, interstate entities, or Indian tribes, if the work to result from such allocation(s) will contribute to the effective development or implementation of the State's management program.
                (1) Local governments. Should a State desire to allocate a portion of its grant to a local government, units of general-purpose local government are preferred over special-purpose units of local government. Where a State will be relying on direct State controls as provided for in subsection 306(d)(11)(B) of the Act, pass-throughs to local governments for local planning, regulatory or administrative efforts under a section 306 grant cannot be made, unless they are subject to adequate State overview and are part of the approved management program. Where the approved management program provides for other specified local activities or one-time projects, again subject to adequate State overview, then a portion of administrative grant funds may be allocated to local governments.
                (2) Indian Tribes. Tribal participation in coastal management efforts may be supported and encouraged through a State's program. Individual tribes or groups of tribes may be considered regional agencies and may be allocated a portion of a State's grant for the development of independent tribal coastal management programs or the implementation of specific management projects provided that:
                (i) The State certifies that such tribal programs or projects are compatible with its approved coastal management policies; and
                (ii) On excluded tribal lands, the State demonstrates that the tribal program or project would or could directly affect the State's coastal zone.

                § 923.93
                Eligible implementation costs.
                (a) Costs claimed must be beneficial and necessary to the objectives of the grant project. As used herein the terms cost and grant project pertain to both the Federal and the matching share. Allowability of costs will be determined in accordance with the provisions of OMB Circular A-87: Cost Principles for State, Local and Indian Tribal Governments.
                (b) Federal funds awarded pursuant to section 306 of the Act may not be used for land acquisition purposes and may not be used for construction purposes. These costs may be eligible, however, pursuant to section 306A of the Act.
                (c) The primary purpose for which implementation funds, pursuant to section 306 of the Act, are to be used is to assure effective implementation and administration of the management program, including especially administrative actions to implement enforceable program policies, authorities and other management techniques. Implementation activities should focus on achieving the policies of the Act.
                (d) Section 306 funding in support of any of these purposes may be used to fund, among other things:
                (1) Personnel costs,
                (2) Supplies and overhead,
                (3) Equipment, and
                (4) Feasibility studies and preliminary engineering reports.

                (e) States are encouraged to coordinate administrative funding requests with funding possibilities pursuant to sections 306A, 308, 309, 310 and 315 of the Act, as well as with funding possibilities pursuant to section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990. When in doubt as to the appropriate section of the Act under which to request funding, States should consult with OCRM. States should consult with OCRM on technical aspects of consolidating requests into a single application.

                § 923.94
                Application for program development or implementation grants.
                (a) OMB Standard Form 424 (4-92) and the NOAA Application Kit for Federal Assistance constitute the formal application. An original and two (2) copies must be submitted 45 days prior to the desired grant beginning date. The application must be accompanied by evidence of compliance with E.O. 12372 requirements including the resolution of any problems raised by the proposed project. The administrative requirements for grants and subawards, under this program, to state, local and Indian tribal governments are set out in 15 CFR part 24. The administrative requirements for other entities are prescribed under OMB Circular A-110: Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations.
                (b) Costs claimed as charges to the grant project must be beneficial and necessary to the objectives of the grant project. As used herein, the terms “cost” and “grant project” pertain to both the Federal amount awarded and the non-federal matching share. Allowability of costs will be determined in accordance with the provisions of OMB Circular A-87: Cost Principles for State, Local and Indian Tribal Governments. Eligible implementation costs also shall be determined in accordance with § 923.93 of these regulations. Allowability of costs for non-profit organizations will be determined in accordance with OMB Circular A-122: Cost Principles for Non-Profit Organizations. Allowability of costs for institutions of higher education will be determined in accordance with OMB Circular A-21: Cost Principles for Educational Institutions.
                (c) In the grant application, the applicant must describe clearly and briefly the activities that will be undertaken with grant funds in support of implementation and administration of the management program. This description must include:
                (1) An identification of those elements of the approved management program that are to be supported in whole or in part by the Federal and the matching share,
                (2) A clear statement of the major tasks required to implement each element,
                (3) For each task the application must:
                (i) Specify how it will be accomplished and by whom;
                (ii) Identify any sub-awardees (other State agencies, local governments, individuals, etc.) that will be allocated responsibility for carrying out all or portions of the task, and indicate the estimated cost of the sub-awards for each allocation; and
                (iii) Indicate the estimated total cost.
                (4) The sum of all task costs in paragraph (c)(3) of this section should equal the total estimated grant project cost.
                (d) For program development grants, when evaluating whether a State is making satisfactory progress toward completion of an approvable management program which is necessary to establish eligibility for subsequent grants, the Assistant Administrator will consider:
                (1) The progress made toward meeting management program goals and objectives;
                (2) The progress demonstrated in completing the past year's work program;
                (3) The cumulative progress toward meeting the requirements for preliminary or final approval of a coastal management program;
                (4) The applicability of the proposed work program to fulfillment of the requirements for final approval; and
                (5) The effectiveness of mechanisms for insuring public participation and consultation with affected Federal, State, regional and local agencies in program development.

                § 923.95
                Approval of applications.
                (a) The application for a grant by any coastal State which complies with the policies and requirements of the Act and these guidelines shall be approved by the NOAA Grants Officer, upon recommendation by the Assistant Administrator, assuming available funding.
                (b) Should an application be found deficient, the Assistant Administrator will notify the applicant in detail of any deficiency when an application fails to conform to the requirements of the Act or these regulations. Conferences may be held on these matters. Corrections or adjustments to the application will provide the basis for resubmittal of the application for further consideration and review.
                (c) The NOAA Grants Officer, upon recommendation by the Assistant Administrator, may waive appropriate administrative requirements contained in this subpart, upon finding of extenuating circumstances relating to applications for assistance.

                § 923.96
                Grant amendments.
                (a) Actions that require an amendment to a grant award such as a request for additional Federal funds, changes in the amount of the non-Federal share, changes in the approved project budget as specified in 15 CFR part 24, or extension of the grant period must be submitted to the Assistant Administrator and approved in writing by the NOAA Grants Officer prior to initiation of the contemplated change. Such requests should be submitted at least 30 days prior to the proposed effective date of the change and, if appropriate, accompanied by evidence of compliance with E.O. 12372 requirements.
                (b) NOAA shall acknowledge receipt of the grantee's request within the ten (10) working days of receipt of the correspondence. This notification shall indicate NOAA's decision regarding the request; or indicate a time-frame within which a decision will be made.

              Subpart J—Allocation of Section 306 Program Administration Grants

                § 923.110
                Allocation formula.
                (a) As required by subsection 306(a), the Secretary may make grants to any coastal state for the purpose of administering that state's management program, if the state matches any such grant according to the following ratios of Federal-to-state contributions for the applicable fiscal year:
                (1) For those states for which programs were approved prior to enactment of the Coastal Zone Act Reauthorization Amendments of 1990, 1 to 1 for any fiscal year.
                (2) For programs approved after enactment of the Coastal Zone Act Reauthorization Amendments of 1990, 4 to 1 for the first fiscal year, 2.3 to 1 for the second fiscal year, 1.5 to 1 for the third fiscal year, and 1 to 1 for each fiscal year thereafter.
                (3) As required by subsection 306(b), the Secretary may make a grant to a coastal state under subsection 306(a) only if the Secretary finds that the management program of the coastal state meets all applicable requirements of this title and has been approved in accordance with subsection 306(d).
                (4) As required by subsection 306(c), grants under this section shall be allocated to coastal states under approved programs based on rules and regulations promulgated by the Secretary which shall take into account the extent and nature of the shoreline and area covered by the program, population of the area, and other relevant factors. The Secretary shall establish, after consulting with the coastal states, maximum and minimum grants for any fiscal year to promote equity between coastal states and effective coastal management.
                (b) Minimum/maximum allocations. The Assistant Administrator shall establish minimum and maximum state allocations annually, after consultation with the coastal states.
                (c) Allocation formula factors and weighting. Each State eligible to receive a financial assistance award shall be allocated an amount of the total available Federal funding based on:

                (1) A minimum share (established by the Assistant Administrator) of the total funding available for allocation to eligible State coastal management programs, plus
                (2) A proportionate share of the remainder to be divided as follows:
                (i) Sixty percent will be allocated based on each eligible State's proportionate share of the length of tidal shoreline and/or Great Lake shoreline mileage of all participating States based on the most recently available data from or accepted by the National Ocean Survey, and
                (ii) Forty percent will be allocated on each eligible State's proportionate share of the aggregate population of all coastal counties contained in whole or in part within the designated coastal boundary of all eligible State coastal programs based on official data or the most recent U.S. census.
                (3) Should any State's base allocation exceed the maximum established by the Assistant Administrator, the excess amount shall be subtracted from the established maximum and redistributed proportionately among those eligible States with allocations not exceeding the established maximum.
                (d) Use of the allocation formula. The allocation formula shall be used to establish base level allocations for each State coastal management program eligible to receive Federal funding.
                (e) Adjustment for phase down of Federal funding. The Assistant Administrator may adjust base level allocations as necessary to implement a phase down of Federal financial support. Any such adjustment shall be implemented in a manner which gives some priority to recently approved State coastal management programs. Options for implementation of a phase down will be submitted to the States for review and comment.
                (f) Calculation of financial assistance award levels. Actual financial assistance award levels will be set from base level allocations, any adjustments under paragraph (e) above, and in accordance with the provisions of Section 312(c) and (d).
                (Secs. 306 and 317 of the Coastal Zone Management Act)
                [47 FR 21021, May 17, 1982, as amended at 59 FR 27985, May 31, 1994. Redesignated at 61 FR 33818, June 28, 1996]

              Subpart K—Coastal Zone Enhancement Grants Program

                Authority:
                Section 309 of the Coastal Zone Management Act, as amended (16 U.S.C. 1456).

                Source:
                57 FR 31116, July 14, 1992, unless otherwise noted. Redesignated at 61 FR 33818, June 28, 1996.

                § 923.121
                General.
                (a) The purpose of this subpart is to set forth the criteria and procedures for awarding coastal zone enhancement grants under section 309 of the Coastal Zone Management Act, as amended (16 U.S.C. 1456). This subpart describes the criteria States must address in developing and implementing coastal zone enhancement objectives, the procedures for allocating section 309 funds between weighted formula and individual review of proposals of special merit, how the amount of section 309 weighted formula grants will be determined, the criteria NOAA will use to evaluate and rank individual proposals of special merit, and the procedures for applying for financial assistance under section 309. This subpart also allows use of section 309 funds for implementation of program changes for up to 2 fiscal years following the fiscal year in which a program change was approved.
                (b) A coastal State with an approved program under section 306 of the Coastal Zone Management Act (CZMA), as amended (16 U.S.C. 1455), is eligible for grants under this subpart if the State meets the following requirements:
                (1) The State must have a NOAA approved Assessment and Strategy, submitted in accordance with NOAA guidance and 923.128;

                (2) The State must be found to be adhering to its approved program and must be making satisfactory progress in performing grant tasks under section 306, as indicated by not being under interim or final sanctions; and

                (3) The State must be making satisfactory progress in carrying out its previous year's award under section 309.
                (c) If the Assistant Administrator finds that a State is not undertaking the actions committed to under the terms of a section 309 grant, the Assistant Administrator shall suspend the State's eligibility for future funding under this section for at least one year.
                (d) A State's eligibility for future funding under this section will be restored after the State demonstrates, to the satisfaction of the Assistant Administrator, that it will conform with the requirements under this part.
                (e) Funds awarded to States under section 309 are for the enhancement of existing coastal zone management programs. A State which reduces overall State financial support for its CZM program as a result of having been awarded section 309 funding may lose eligibility for funding under section 309 in subsequent years.
                (f) All applications for funding under section 309 of the CZMA, as amended, including proposed work programs, funding priorities and funding awards, are subject to the administrative discretion of the Assistant Administrator and any additional NOAA guidance.
                (g) Grants awarded under section 309 may be used:
                (1) To support up to 100 percent of the allowable costs of approved projects under section 309 of the CZMA, as amended; or
                (2) To implement program changes approved by the Secretary for up to two fiscal years following the fiscal year in which a program change was approved.
                (h) All application forms are to be requested from and submitted to: National Oceanic and Atmospheric Administration, Office of Ocean and Coastal Resource Management, Coastal Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.
                [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996; 62 FR 12541, Mar. 17, 1997]

                § 923.122
                Objectives.
                (a) The objective of assistance provided under this part is to encourage each State with a federally-approved coastal management program to continually improve its program in specified areas of national importance. The Secretary is authorized to make grants to a coastal State for the development and submission for Federal approval of program changes that support attainment of one or more coastal zone enhancement objectives.

                (b) As required by section 309(a) of the Act, for purposes of this part, the term coastal zone enhancement objective means any of the following objectives:
                (1) Protection, restoration, or enhancement of the existing coastal wetlands base, or creation of new coastal wetlands.
                (2) Preventing or significantly reducing threats to life and destruction of property by eliminating development and redevelopment in high-hazard areas, managing development in other hazard areas, and anticipating and managing the effects of potential sea level rise and Great Lakes level rise.
                (3) Attaining increased opportunities for public access, taking into account current and future public access needs, to coastal areas of recreational, historical, aesthetic, ecological, or cultural value.
                (4) Reducing marine debris entering the Nation's coastal and ocean environment by managing uses and activities that contribute to the entry of such debris.
                (5) Development and adoption of procedures to assess, consider, and control cumulative and secondary impacts of coastal growth and development, including the collective effect on various individual uses or activities on coastal resources, such as coastal wetlands and fishery resources.
                (6) Preparing and implementing special area management plans for important coastal areas.
                (7) Planning for the use of ocean resources.
                (8) Adoption of procedures and enforceable policies to help facilitate the siting of energy facilities and Government facilities and energy-related activities and Government activities which may be of greater than local significance.

                (9) Adoption of procedures and policies to evaluate and facilitate the siting of public and private aquaculture facilities in the coastal zone, which will enable States to formulate, administer, and implement strategic plans for marine aquaculture.
                [57 FR 31116, July 14, 1992. Redesignated at 61 FR 33818, June 28, 1996, as amended at 62 FR 12541, Mar. 17, 1997]

                § 923.123
                Definitions.
                (a) Program change means “routine program change” as defined in 15 CFR 923.84 and “amendment” as defined in 15 CFR 923.80, and includes the following:
                (1) A change to coastal zone boundaries that will improve a State's ability to achieve one or more of the coastal zone enhancement objectives.
                (2) New or revised authorities, including statutes, regulations, enforceable policies, administrative decisions, executive orders, and memoranda of agreement/understanding, that will improve a State's ability to achieve one or more of the coastal zone enhancement objectives.
                (3) New or revised local coastal programs and implementing ordinances that will improve a State's ability to achieve one or more of the coastal zone enhancement objectives.
                (4) New or revised coastal land acquisition, management and restoration programs that improve a State's ability to attain one or more of the coastal zone enhancement objectives.
                (5) New or revised Special Area Management Plans or plans for Areas of Particular Concern (APC), including enforceable policies and other necessary implementing mechanisms or criteria and procedures for designating and managing APCs that will improve a State's ability to achieve one or more of the coastal zone enhancement objectives.
                (6) New or revised guidelines, procedures and policy documents which are formally adopted by a State and provide specific interpretations of enforceable CZM policies to applicants, local governments and other agencies that will result in meaningful improvements in coastal resource management and that will improve a State's ability to attain one or more of the coastal zone enhancement objectives.
                (b) Assessment means a public document, prepared by a State and approved by NOAA in accordance with guidance on Assessments and Strategies issued by NOAA (hereafter referred to as the guidance 1
                  ), that identifies the State's priority needs for improvement with regard to the coastal zone enhancement objectives. The Assessment determines the extent to which problems and opportunities exist with regard to each of the coastal zone enhancement objectives and the effectiveness of efforts to address those problems. The Assessment includes the factual basis for NOAA and the States to determine the priority needs for improvement of management programs in accordance with this part.

                    1 NOAA guidance is available from the Office of Ocean and Coastal Resource Management, Coastal Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.

                (c) Strategy means a comprehensive, multi-year statement of goals and the methods for their attainment, prepared by a State in accordance with NOAA guidance and these regulations and approved by NOAA, that sets forth the specific program changes the State will seek to achieve in one or more of the coastal zone enhancement objectives. The Strategy will address only the priority needs for improvement identified by the Assistant Administrator, after careful consultation with the State. The strategy will include specific task descriptions, cost estimates and milestones, as appropriate.
                (d) Weighted Formula Project means a project or task for which NOAA awards funding based on the criteria at § 923.125(a). Such tasks are essential to meeting the milestones and objectives of each state's strategy. As funding for weighted formula tasks is more predictable than for projects of special merit, basic functions necessary to achieve the objectives of the strategy, such as hiring of full time staff should be included in weighted formula tasks.
                (e) Projects of Special Merit (PSM) means a project or task that NOAA will rank and evaluate based on criteria at § 923.125(b). As PSM funds will be awarded competitively on an annual basis, these projects should further the objectives of the strategy but may not be essential to meeting specific benchmarks in the strategy. PSM projects should not be dependent on long term levels of funding to succeed.
                (f) Fiscal needs means the extent to which a State must rely solely on Federal funds to complete a project under section 309 because State funds are not otherwise available.
                (g) Technical needs means the extent to which a State lacks trained personnel or equipment or access to trained personnel or equipment to complete a project under section 309.
                (h) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, or the NOAA Official responsible for directing the Federal Coastal Zone Management Program.
                [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996]

                § 923.124
                Allocation of section 309 funds.
                (a)(1) As required by section 309(e) of the Act, a State will not be required to contribute any portion of the cost of any proposal for which funding is awarded under this section.
                (2) As required by section 309(f) of the Act, beginning in fiscal year 1991, not less than 10 percent and not more than 20 percent of the amounts appropriated to implement sections 306 and 306A of the Act shall be retained by the Secretary for use in implementing this section, up to a maximum of $10,000,000 annually.
                (b) The Assistant Administrator will annually determine the amount of funds to be devoted to section 309, which shall be not less than 10 percent nor more than 20 percent of the total amount appropriated under section 318(a)(2) of the Coastal Zone Management Act, as amended (16 U.S.C. 1464), taking into account the total amount appropriated under section 318(a)(2). The total amount of funds to be devoted to section 309 shall not exceed $10,000,000 annually.
                (c) Of the total amount determined in paragraph (b) of this section, the Assistant Administrator will annually determine the proportion to be awarded to eligible coastal States by weighted formula and the proportion to be awarded to eligible coastal States for projects of special merit. This determination will take into account the total amount appropriated under section 318(a)(2) of the CZMA, as amended.
                (d) Weighted formula funding. (1)(i) A weighted formula funding target will be determined for each State that meets the eligibility requirements at § 923.121(b). The weighted formula funding target will be the State base allocation determined by the application of the formula at § 923.110(c), multiplied by a weighting factor derived from the Assistant Administrator's evaluation and ranking of the quality of the State's Strategy (as described in (d)(1) of this section), as supported by the State's Assessment.
                (ii) The application of the weighting factor may result in a weighted formula funding target that is higher or lower than the State's base allocation. Each State's weighted formula funding target will be adjusted to reflect the funds available.
                (iii) The Assistant Administrator may establish minimum and maximum weighted formula funding targets under § 923.124(d).
                (2) The Assistant Administrator will determine each State's weighting factor based on an evaluation and ranking of the State's Strategy that takes into consideration the following:
                (i) The scope and value of the proposed program change(s) contained in the Strategy in terms of improved coastal resource management;
                (ii) The technical merits of the Strategy in terms of project design and cost effectiveness;
                (iii) The likelihood of success that the State will have in attaining the proposed program change(s), including an evaluation of the State's past performance and support for the Strategy; and,
                (iv) The fiscal and technical needs of the State.

                (3) Each State will be notified individually of its weighting factor, the reasons for assigning this weighting factor, and any changes thereto. In consultation with the Assistant Administrator, a State may choose to make substantive changes to its approved Assessment and Strategy to improve its weighting factor, in accordance with the procedures at § 923.128.

                (e) Funding for projects of special merit. The Assistant Administrator will award the remaining section 309 funds, which are not awarded under § 923.124(d), to States based on an annual evaluation and ranking of projects of special merit, as defined in § 923.123(d). Funding of projects of special merit will be limited to the highest ranked projects based on the criteria at § 923.125(b).
                (f) The Assistant Administrator will notify each State annually of the total amount of funds to be devoted to section 309 pursuant to § 923.124(b), the proportion to be awarded by weighted formula pursuant to § 923.124(c), the State's weighted formula funding target pursuant to § 923.124(d), and the total amount of funds available for funding for projects of special merit pursuant to § 923.124(e).
                [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996]

                § 923.125
                Criteria for section 309 project selection.
                (a) Section 309 criteria for weighted formula funding. (1) For those projects that will be funded by weighted formula, the Assistant Administrator will determine that:
                (i) The project is consistent with the State's approved Assessment and Strategy and advances the attainment of the objectives of the Strategy;
                (ii) Costs are reasonable and necessary to achieve the objectives of both the project and the Strategy. Allowability of costs will be determined in accordance with the provisions of OMB Circular A-87: Cost Principles for State and Local Governments
                (iii) The project is technically sound;
                (iv) The State has an effective plan to ensure proper and efficient administration of the project; and
                (v) The State has submitted the required project information as specified in § 923.126(b)(1).
                (2) In reviewing projects that will be considered under the weighted formula, the Assistant Administrator will take into consideration the fiscal and technical needs of proposing States and the overall merit of each proposal in terms of benefits to the public.
                (b) Section 309 criteria for evaluation and ranking of projects of special merit. (1) After determining those projects that will be funded under weighted formula funding, the Assistant Administrator will evaluate and rank State funding proposals of special merit which may be funded under 15 CFR 932.4(e).
                (2) In addition to meeting the criteria in paragraph (a)(1) of this section, proposals will be evaluated and ranked under this subsection using the following criteria:
                (i) Merit. (90 points) The Assistant Administrator will review each application to determine the following:
                (A) Degree to which the project significantly advances the program improvements and leads to a program change identified in the State's Strategy. In making this determination, the Assistant Administrator shall consider the weighting factor derived from the evaluation of the quality of the State's Strategy, as supported by the State's Assessment, relative to the weighting factors assigned to other eligible States;
                (B) Overall benefit of the project to the public relative to the project's cost;
                (C) Innovativeness of the proposal;
                (D) Transferability of the results to problems in other coastal States; and
                (E) The State's past performance under section 309.
                (ii) Fiscal needs. (5 points) The Assistant Administrator will review each application to determine the “fiscal needs” of a State as defined in § 923.123(e).
                (iii) Technical needs. (5 points) The Assistant Administrator will review each application to determine the “technical needs” of a State as defined in § 923.123(f).
                (c) Section 309 funds not awarded to States under § 923.125(a) will be awarded to States under § 923.125(b).
                [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996]

                § 923.126
                Pre-application procedures.
                (a) Pre-submission consultation. Each State is strongly encouraged to consult with the Assistant Administrator prior to the submission of its draft proposal (see § 923.126(b)) and formal application for section 309 funding. The purpose of the consultation will be to determine whether the proposed projects are consistent with the purposes and objectives of section 309 and with the State's approved Strategy, to resolve any questions concerning eligibility for funding under section 309 (see § 923.121(b)), and to discuss preliminarily the State's recommendations regarding which projects should be funded by weighted formula and which projects should be individually evaluated and ranked as projects of special merit.
                (b) Draft proposals. States shall submit draft proposals for section 309 funding annually on a schedule to be determined by the Assistant Administrator. These draft proposals shall contain all of the information needed for final application, including the following:
                (1) A clear and concise description of the projects that the State proposes to be funded under section 309. This description shall explain the relationship of each proposed project to the State's approved Assessment and Strategy and how each proposed project will accomplish all or part of a program change that the State has identified in its Strategy. In addition, each project description shall include:
                (i) A specific timetable for completion of each project;
                (ii) A description of the activities that will be undertaken to complete each project and by whom;
                (iii) The identification of any subawardees, pursuant to § 923.94(d)(3)(ii); and
                (iv) The estimated total cost for each project.
                (2) Section 309 funds may be used for any of the following allowable uses which support the attainment of a program change:
                (i) Personnel costs;
                (ii) Supplies and overhead;
                (iii) Travel;
                (iv) Equipment (pursuant to 15 CFR part 24);
                (v) Projects, studies and reports; and
                (vi) Contractual costs including subcontracts, subawards, personal service contracts with individuals, memoranda of agreement/understanding, and other forms of passthrough funding for the purpose of carrying out the provisions of section 309.
                (3) Funds may not be used for land acquisition or low cost construction projects.
                (4) The State may recommend which projects should be funded by weighted formula under § 923.125(a) and which projects should be funded as projects of special merit under § 923.125(b).
                (5) The draft proposal shall contain documentation of fiscal needs and technical needs, if any. This documentation shall include:
                (i) For fiscal needs, information on the current State budget (surplus or deficit), the budget of the applying agency (increase or decrease over previous fiscal year), future budget projections, and what efforts have been made by the applying agency, if any, to secure additional State funds from the Legislature and/or from off-budget sources such as user fees; and
                (ii) For technical needs, identification of the technical knowledge, skills and equipment that are needed to carry out proposed projects and that are not available to the applying agency, and what efforts the applying agency has made, if any, to obtain the trained personnel and equipment it needs (for example, through agreements with other State agencies).
                (6) The Assistant Administrator may request additional documentation of fiscal and technical needs.
                (7) Following the first year of funding under section 309, the draft proposal shall describe how the past year's work contributed to the attainment of a program change as defined in § 923.123(a) in one or more of the coastal zone enhancement objectives.
                (8) If the sum of estimated project costs for projects the State recommends be funded under § 923.125(a) exceeds the State's weighted formula funding target pursuant to § 923.124(d), NOAA shall determine, in consultation with the State, which projects are appropriate for funding with weighted formula funds.
                (c) Review of draft proposals. (1) The Assistant Administrator will make the final determination of which projects should be funded by weighted formula and which projects should be funded as projects of special merit, taking into account the State's recommendations.

                (2) The Assistant Administrator may seek advice from technical experts in the fields of the coastal zone enhancement objectives as to the technical soundness and overall merit of section 309 project proposals.
                (3) The Assistant Administrator will make the final determinations on project selection using the criteria at § 923.125(a) and evaluate and rank projects of special merit based on the criteria at § 923.125(b).
                (4) If the Assistant Administrator determines that a State's project proposal(s) for weighted formula funding fails to meet the criteria at § 923.125(a), the Assistant Administrator may either reduce or deny the amount available to the State under § 923.124(d).
                (5) Each state will be notified of the results of the review of draft proposals, as described in paragraphs (c) (3) and (4) of this section, in time to include approved section 309 projects in their applications for financial assistance pursuant to subpart I of 15 CFR part 923.
                [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996]

                § 923.127
                Formal application for financial assistance and application review and approval procedures.
                (a) Applications for financial assistance under this part must be developed and submitted on the same schedule as applications for financial assistance under subpart I of 15 CFR part 923.
                (b) Applications for financial assistance under this part must be in a separate section of the application and must contain the information specified at § 923.126(b)(1) for each approved section 309 project.
                (c) Applications will be reviewed for conformance with the regulations at subpart I of 15 CFR part 923.
                (d) States will be notified of their section 309 awards at the time they are notified of their section 306/306A awards.
                (e) If the Assistant Administrator seeks technical advice pursuant to § 923.126(c)(2), anonymous copies of the project reviews provided to the Assistant Administrator on projects proposed by a State will be made available to the State upon request after October 1 of each year.
                [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996]

                § 923.128
                Revisions to assessments and strategies.
                (a) A State, in consultation with the Assistant Administrator, may propose to revise its approved Strategy. Revision(s) to an approved Strategy must be submitted to and approved by the Assistant Administrator prior to the initiation of the contemplated change.
                (b) The Assistant Administrator will review such proposed revision(s) and determine if public review and comment is required. This determination will be based on the extent to which the proposed revision(s) changes the original scope of the State's Strategy.
                (c) If the Assistant Administrator determines that public review and comment is necessary, he/she will notify the State of his/her determination. The State will be required to provide public review and comment in accordance with NOAA guidance.
                (d) A State that wants to revise substantively the program changes identified in its approved Strategy or to address new enhancement objectives not identified as a priority in the original Assessment, also must revise the Assessment through a public process as described in NOAA's guidance.
                (e) The Assistant Administrator, in consultation with the State, may reduce a state's weighting factor assigned to its Strategy as a result of failure to meet the milestones in its Strategy.
                (f) The Assistant Administrator will notify the State of his/her decision to approve or deny the proposed revision(s) to the Strategy, and any change in the weighting factor assigned to its Strategy.

              Subpart L—Review of Performance

                Authority:
                Section 312 of the Coastal Zone Management Act, as amended (16 U.S.C. 1458).

                § 923.131
                General.

                This subpart sets forth the requirements for review of approved State coastal zone management (CZM) programs pursuant to section 312 of the Act (16 U.S.C. 1458). This subpart defines “continuing review” and other important terms, and sets forth the procedures for:
                (a) Conducting continuing reviews of approved State CZM programs;
                (b) Providing for public participation;
                (c) Invoking interim sanctions for non-adherence to an approved coastal zone management program or a portion of such program; and
                (d) Withdrawing program approval and financial assistance.
                [57 FR 31113, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996]

                § 923.132
                Definitions.
                (a) Continuing review means monitoring State performance on an ongoing basis. As part of the continuing review, evaluations of approved CZM programs will be conducted and written findings will be produced at least once every three years.
                (b) Adherence means to comply with the approved CZM program and financial assistance award or work program.
                (c) Interim sanction means suspension and redirection of any portion of financial assistance extended to any coastal State under this title, if the Secretary determines that the coastal State is failing to adhere to the management program or a State plan developed to manage a national estuarine reserve, or a portion of the program or plan approved by the Secretary, or the terms of any grant or cooperative agreement funded under this title.
                (d) Approved CZM program means those elements of the program approved by the Secretary, under 15 CFR part 923 (Development and Approval Provisions), including any changes to those elements made by approved amendments and routine program implementation.
                (e) Financial assistance award means a legal instrument that creates a relationship between the Federal government and another entity (recipient). The principal purpose of the award is the transfer of money or services in order to accomplish a public purpose authorized by Federal statute. The term “financial assistance award” encompasses grants, loans, and cooperative agreements. The following elements constitute the award:
                (1) The work program described in the approved application;
                (2) The budget;
                (3) The standard terms and conditions of the award;
                (4) Any special award conditions included with the award;
                (5) The statutes and regulations under which the award is authorized; and
                (6) Applicable OMB cost principles and administrative requirements.
                (f) Work program means a description of the tasks to be undertaken by a State for a given time period for the purpose of implementing and enforcing an approved CZM program. The work program is submitted as a part of a Federal financial assistance application, or separately in the absence of Federal financial assistance.
                (g) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, or the NOAA Official responsible for directing the Federal Coastal Zone Management Program.
                [47 FR 21021, May 17, 1982, as amended at 57 FR 31113, July 14, 1992. Redesignated at 61 FR 33818, June 28, 1996]

                § 923.133
                Procedure for conducting continuing reviews of approved State CZM programs.
                (a) As required by section 312(a), the Secretary shall conduct a continuing review of the performance of coastal States with respect to coastal management. Each review shall include a written evaluation with an assessment and detailed findings concerning the extent to which the State has implemented and enforced the program approved by the Secretary, addressed the coastal management needs identified in section 303(2)(A) through (K), and adhered to the terms of any grant, loan, or cooperative agreement funded under this title (16 U.S.C. 1451-1464).
                (b) Continuing review procedures. (1) Each State will submit a financial assistance application or work program, whichever is applicable, on a timetable negotiated with the Assistant Administrator, describing the tasks to be undertaken by the State for the purpose of implementing and enforcing its approved CZM program.
                (2) For the purpose of evaluation, the States will submit performance reports as specified in the Special Award Conditions, or, if the State is not receiving an award, as negotiated with the Assistant Administrator. The reports will address all areas identified in each State's Performance Report Guidelines.
                (3) The Assistant Administrator will collect information on the State CZM programs on a continuing basis. At the beginning of each evaluation, the Assistant Administrator will analyze available information, identify information gaps, and formulate any additional information needs that will be the subject of a supplemental information request to the State.
                (4) The Assistant Administrator may conduct a site visit as a part of the evaluation.
                (5) Draft findings of the evaluation will be transmitted to the State. The State will have a minimum of two weeks from receipt of the draft findings to review them and provide comments to the Assistant Administrator. This review time may be extended upon request from the State.
                (6) Within two weeks from receipt of the draft findings, a State may request a meeting with the Assistant Administrator to discuss the draft findings and the State's comments.

                (7) The Assistant Administrator will issue final findings to the State CZM program manager and the head of the State CZM agency within 120 days of the last public meeting in the State. Copies of the final findings will be sent to all persons and organizations who participated in the evaluation. Participants may be asked to complete a card or sign-in sheet provided by the evaluation team indicating that they wish to receive the final findings. Notice of the availability of the final findings will also be published in the Federal Register.

                (8) The final findings will contain a section entitled “Response to Written Comments.” This section will include a summary of all written comments received during the evaluation and NOAA's response to the comments. If appropriate, NOAA's response will indicate whether NOAA agrees or disagrees with the comment and how the comment has been addressed in the final findings.
                (9) The Assistant Administrator may conduct issue or problem-specific evaluations between scheduled evaluations of approved State CZM programs. Such issue or problem-specific evaluations will be conducted to follow-up on potentially serious problems or issues identified in the most recent scheduled evaluation or to evaluate evidence of potentially serious problems or issues that may arise during day-to-day monitoring of State performance of grants tasks or other program implementation activities in the interim between scheduled evaluations. If the Assistant Administrator conducts an issue or problem specific evaluation, he/she will comply with the procedures and public participation requirements of §§ 923.133 and 923.134.
                (c) Requirements for continuing review of approved State CZM programs—(1) Scope of continuing reviews. The continuing review of a State's approved CZM program will include an evaluation of the extent to which the State has:
                (i) Implemented and enforced the program approved by the Secretary;
                (ii) Addressed the coastal management needs identified in section 303(2) (A)-(K) (16 U.S.C. 1452); and
                (iii) Adhered to the terms of financial assistance awards.
                (2) Procedure for assessing adherence to the approved CZM program. (i) In reviewing adherence of a State to its approved CZM program, the Assistant Administrator will evaluate all aspects of the “approved CZM program” as defined in § 923.132(d). The evaluation will examine the extent to which:
                (A) The State is implementing and enforcing its approved CZM program;

                (B) The management agency is effectively playing a leadership role in coastal issues, monitoring the actions of appropriate State and local agencies for compliance with the approved CZM program, and assuring the opportunity for full participation of all interested entities in CZM program implementation; and

                (C) The management agency is effectively carrying out the provisions of Federal consistency.
                (ii) The findings concerning the State's adherence to its approved CZM program will be used in negotiating the next financial assistance award or work program, whichever is applicable.
                (3) Procedure for assessing how the State has addressed the coastal management needs identified in section 303(2) (A)-(K). The assessment of the extent to which the State has addressed the coastal management needs identified in section 303(2) (A)-(K) will occur as follows:
                (i) The State, in its performance report, will provide the Assistant Administrator with a listing of all actions it is taking during the performance report period to address the national coastal management needs and how these actions relate to conditions in the State and the objectives and priorities in the State CZM program.
                (ii) The Assistant Administrator, in the evaluation findings, will assess the extent to which the State's actions are targeted to meeting identified “needs” and the effectiveness of the actions in addressing those needs. Based on this assessment, the Assistant Administrator will make findings and recommendations of the extent to which each State is addressing the coastal management needs identified in section 303.
                (iii) The findings concerning how the State has addressed the coastal management needs of section 303 will be used by the Assistant Administrator in negotiating the next financial assistance award.
                (4) Procedure for assessing adherence to the terms of financial assistance awards. (i) Adherence to financial and administrative terms of each financial assistance award will be determined by the NOAA Grants Office and the Department of Commerce Inspector General. Adherence to programmatic terms of each financial assistance award will be determined by the Assistant Administrator and the NOAA Grants Office. These determinations will be made in accordance with the requirements outlined in these regulations, the findings of a financial audit of the award, and the following criteria:
                (A) Compliance with the statute, regulations, and applicable OMB circulars;
                (B) Submission of required reports and satisfactory completion of work products as described in the approved application and within the timeframe specified;
                (C) Compliance with Standard Terms and Conditions and Special Award Conditions within the specified timeframes;
                (D) Use of award funds only for approved projects; and
                (E) Substantive modification of approved projects only with the prior agreement of NOAA.
                (ii) The findings concerning adherence to the terms of financial assistance awards will be used in negotiating the next financial assistance award, if any.
                (d) Requirements for continuing review of State coastal energy impact programs—(1) Scope of continuing reviews. The continuing review of State coastal energy impact programs will include the following elements:
                (i) An evaluation of the State's adherence to the terms of financial assistance awards;
                (ii) An evaluation of the relationship between coastal energy impact projects and the approved CZM program;
                (iii) A description of energy activities in coastal areas and the impact resulting from these activities; and
                (iv) An evaluation of the effectiveness of the coastal energy impact program in dealing with these consequences.
                (2) Procedure for assessing adherence to the terms of financial assistance awards. See § 923.133(c)(4).
                [47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996]

                § 923.134
                Public participation.

                (a) As required by section 312(b) of the Act, in evaluating a coastal State's performance, the Secretary shall conduct the evaluation in an open and public manner, and provide full opportunity for public participation, including holding public meetings in the State being evaluated and providing opportunities for the submission of written and oral comments by the public. The Secretary shall provide the public with at least 45 days notice of such public meetings by placing a notice in the Federal Register, by publication of timely notices in newspapers of general circulation within the State being evaluated, and by communications with persons and organizations known to be interested in the evaluation. Each evaluation shall be prepared in report form and shall include written responses to the written comments received during the evaluation process.
                (b) Requirements. (1) The Assistant Administrator will publish a Notice of Intent to Evaluate in the Federal Register at least 45 days before the public meeting(s). The notice will include a Statement of the availability of the State's performance report and the supplemental information request.
                (2) Each State will issue a notice of the public meeting(s) in its evaluation by placing a notice in the newspaper(s) of largest circulation in the coastal area where the meeting(s) is being held and by taking other reasonable action to communicate with persons and organizations known to be interested in the evaluation, such as sending a notice of the meeting(s) to persons on its mailing list and publishing a notice in its newsletter, at least 45 days before the date of the public meeting(s). The State will provide a copy of such notice to the Assistant Administrator. States are encouraged to republish the newspaper notice at least 15 days before the date of the public meeting(s). The State will inform the public that oral or written comments will be accepted and that attendance at the public meeting(s) is not necessary for submission of written comments.

                (3) Notice of the availability of final findings will be published in the Federal Register. The notice will state that copies of the final findings will be available to the public upon written request. Copies of the final findings will be sent to persons and organizations who participated in the evaluation, in accordance with 923.133(b)(7).
                [47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996]

                § 923.135
                Enforcement.
                (a) Procedures and criteria for invoking and lifting interim sanctions. (1) As required by section 312(c) of the Act:
                (i) The Secretary may suspend payment of any portion of financial assistance extended to any coastal State, and may withdraw any unexpended portion of such assistance, if the Secretary determines that the coastal State is failing to adhere to—
                (A) The management program or a State plan developed to manage a national estuarine reserve established under section 315 of the Act (16 U.S.C. 1461), or a portion of the program or plan approved by the Secretary; or
                (B) The terms of any grant or cooperative agreement funded under this title (16 U.S.C. 1451-1464).
                (ii) Financial assistance may not be suspended under paragraph (a)(1)(i) of this section unless the Secretary provides the Governor of the coastal State with—
                (A) Written specifications and a schedule for the actions that should be taken by the State in order that such suspension of financial assistance may be withdrawn; and
                (B) Written specifications stating how those funds from the suspended financial assistance shall be expended by the coastal State to take the actions referred to in paragraph (a)(1)(ii)(A) of this section.
                (iii) The suspension of financial assistance may not last for less than 6 months or more than 36 months after the date of suspension.
                (2) Requirements. (i) The Assistant Administrator will identify the need for interim sanctions through the continuing review process. The Assistant Administrator will use the criteria at § 923.135(a)(3) in determining when to invoke interim sanctions.

                (ii) The Assistant Administrator will issue the State a preliminary finding of non-adherence with the approved CZM program, or a portion thereof, and/or with a term or terms of a grant or cooperative agreement. This preliminary finding of non-adherence may be contained in the draft evaluation findings, or in a preliminary notification letter to the State CZM program manager. If the preliminary finding is contained in a preliminary notification letter, the Assistant Administrator will comply with the applicable public participation requirements of section 312(b) and NOAA's regulations at § 923.134. The draft evaluation findings or preliminary notification letter containing a preliminary finding of non-adherence will explain that if the finding of non-adherence is issued, the State is subject to suspension of financial assistance and, if the State fails to take the actions specified pursuant to section 312(c) and this part, to withdrawal of program approval and financial assistance.
                (iii) The State will be given 30 days from receipt of the draft evaluation findings or preliminary notification letter to comment on and rebut the preliminary finding of non-adherence. During this 30-day period, the State may request up to 15 additional days to respond, for a maximum of 45 days from receipt of the draft evaluation findings or preliminary notification letter.
                (iv) After considering the State's comments, the Assistant Administrator will decide whether or not to issue a final finding of non-adherence. If the Assistant Administrator decides to issue a final finding of non-adherence, he/she will do so in the final evaluation findings issued pursuant to section 312(b) or in a final notification letter as provided by paragraph (a)(2)(ii) of this section. The Assistant Administrator may invoke interim sanctions provided by section 312(c) immediately or at any time after issuing the final evaluation findings or final notification letter containing the finding of non-adherence, but not later than the next regularly scheduled evaluation.
                (v) If the Assistant Administrator decides to invoke interim sanctions, he/she will do so by sending the final evaluation findings or final notification letter to the Governor of the State and the State CZM program manager. The final evaluation findings or final notification letter will contain the information required in section 312(c)(2) (A) and (B). This information will include the amount of financial assistance to be suspended and redirected, the actions the State should take in order to have the suspension withdrawn, how the suspended funds shall be expended to take the required actions, and a schedule for taking the required actions. The final evaluation findings or final notification letter will also contain the length of the suspension, which may not last for less than 6 months or more than 36 months. The Assistant Administrator will establish the length of the suspension based on the amount of time that is reasonably necessary for the State to take the required actions. If the State can take the required actions faster than expected, the suspension can be withdrawn early (but not in less than six months).
                (vi) The State must respond to the final evaluation findings or final notification letter by developing a proposed work program to accomplish the required actions on the schedule set forth in the final evaluation findings or final notification letter. The State may propose an alternative approach to accomplishing the required actions and/or an alternative schedule. The Assistant Administrator's approval of the State's work program will signify his/her agreement with the approach and schedule for accomplishing the actions necessary to withdraw the suspension.
                (vii) The Assistant Administrator will monitor State performance under the work program. This may involve additional direction to the State through the grant administration process and/or a visit to the State by appropriate NOAA program staff, evaluation staff and/or other experts to work with the State on a specific problem or issue. The Assistant Administrator will consider proposals to revise the work program on a case-by-case basis, providing that the State will still be able to accomplish the necessary actions within a maximum of 36 months.
                (viii) The State must document that it has taken the required actions on the schedule established under this section. The State must provide its documentation in writing to the Assistant Administrator. The Assistant Administrator may conduct a follow-up evaluation or otherwise revisit the State at his/her discretion.

                (ix) If the Assistant Administrator determines that the required actions have been taken, the Assistant Administrator will promptly notify the Governor and the State program manager, in writing, that NOAA has withdrawn the suspension of financial assistance. If, however, the State does not take the required actions, then the Assistant Administrator will invoke the final sanction provisions of section 312(d) on program termination and withdrawal of all financial assistance.
                (3) Criteria for invoking interim sanctions. (i) The Assistant Administrator may consider the following indicators of non-adherence to an approved State CZM program in determining whether to invoke interim sanctions.
                (A) Ineffective or inconsistent implementation of legally enforceable policies included in the CZM program. Indicators of ineffective or inconsistent implementation could include: evidence of non-compliance with core authorities by the regulated community; insufficient monitoring and inspecting of coastal development to ensure that it conforms to program requirements and applicable conditions; or inadequate enforcement action when development is found not to be in compliance with the program or permit under which it is authorized or is found to be an unpermitted activity. In applying this indicator, NOAA will consider any available evidence of the impacts of ineffective or inconsistent implementation on coastal resources.
                (B) Inadequate monitoring of the actions of State and local agencies for compliance with the program. Indicators of inadequate monitoring of these agencies could include: evidence of non-compliance of networked agencies with the CZM program, unresolved conflicts between agencies regarding what constitutes compliance with the program, or lack of a mechanism to ensure that all State agencies will adhere to the program or to approved local coastal programs pursuant to NOAA's regulations at 15 CFR 923.40 (and pursuant to new section 306(d)(15), after November 5, 1993 and after states have been given reasonable opportunity to comply with NOAA's implementing guidance).
                (C) Non-compliance of local coastal programs with the approved State program. Indicators of non-compliance could include: Local permitting or zoning decisions that are inconsistent with State standards or criteria, widespread granting of variances such as to render a zoning program ineffective in meeting State standards or criteria, changes to local comprehensive plans or zoning maps that are inconsistent with State standards or criteria, or inadequate monitoring and enforcement, as described in paragraph (a)(3)(i)(A) of this section.
                (D) Ineffective implementation of Federal consistency authority. Indicators of ineffective implementation could include: Not reviewing Federal activities, Federal licenses and permits, including offshore oil and gas exploration and development, and Federal financial assistance to State and local governments for consistency with the approved CZM program or employing review procedures that are not in accordance with State and NOAA regulations.
                (E) Inadequate opportunity for intergovernmental cooperation and public participation in management program implementation. Indicators of inadequate opportunity could include: not carrying out procedures necessary to insure adequate consideration of the national interest in facilities which are necessary to meet requirements which are other than local in nature, not implementing effectively mechanisms for continuing consultation and coordination, not providing required notice that a management program decision would conflict with a local zoning ordinance, decision or other action pursuant to section 306(d)(3)(B)(i) and 15 CFR 923.57, or not providing opportunities for public participation in permitting processes, consistency determinations and other similar decisions pursuant to new section 306(d)(14) after November 5, 1993 and after states have been given reasonable opportunity to comply with NOAA's implementing guidance.
                (F) Non-adherence to the terms of a grant or cooperative agreement, including the schedule for funded activities. The Assistant Administrator will also consider the extent to which priorities for expenditure of Federal funds reflect an appropriate priority for activities necessary to implement and enforce core program authorities effectively.

                (G) Not submitting changes to the approved program for Federal approval on a schedule developed pursuant to 15 CFR 923.81(a) and 923.84(b)(1)(i) or developing and implementing changes to the approved program without Federal approval which are inconsistent with the Act or the approved program or which result in a reduced level of protection of coastal resources.
                (ii) The Assistant Administrator may consider whether an indication of non-adherence is of recent origin (in which case the State may be given a reasonable opportunity to correct it) or has been repeatedly brought to the State's attention without corrective action in determining whether to invoke interim sanctions.
                (b) Withdrawal of program approval and financial assistance. (1) As required by sections 312(d) and 312(e) of the Act:
                (i) The Secretary shall withdraw approval of the management program of any coastal State and shall withdraw financial assistance available to that State under this title as well as any unexpended portion of such assistance, if the Secretary determines that the coastal State has failed to take the actions referred to in paragraph (a)(1)(ii)(A) of this section.
                (ii) Management program approval and financial assistance may not be withdrawn under paragraph (b)(1)(i) of this section, unless the Secretary gives the coastal State notice of the proposed withdrawal and an opportunity for a public hearing on the proposed action. Upon the withdrawal of management program approval under paragraph (b)(1)(i) of this section, the Secretary shall provide the coastal State with written specifications of the actions that should be taken, or not engaged in, by the State in order that such withdrawal may be canceled by the Secretary.
                (2) Requirements. (i) If the Assistant Administrator determines that the State has not taken the actions required in § 923.135(a)(2), the Assistant Administrator will provide the Governor and the State CZM program manager with written notice of this finding and NOAA's obligation to withdraw program approval and financial assistance under this title. The State will be given 30 days from receipt of this notice to respond with evidence that it has taken the actions specified pursuant to § 923.135(a)(2). During this 30-day period, the State may request up to 30 additional days to respond, for a maximum of 60 days from receipt of notice.

                (ii) If the State does not respond satisfactorily within the time allowed, the agency will notify the State of intent to take the proposed action. This notice will be published in the Federal Register and will inform the State of its right to a public hearing.
                (iii) If the State does not request a public hearing or submit satisfactory evidence that it has taken the actions specified pursuant to § 923.135(a)(2) within 30 days of publication of this notice, and the Assistant Administrator determines that the State has failed to take the actions specified pursuant to § 923.135(a)(2), the Assistant Administrator will withdraw program approval and financial assistance and will notify the State in writing of the decision and the reasons for it. The notification will set forth actions that must be taken by the State which would cause the Assistant Administrator to cancel the withdrawal.

                (iv) If the State requests a public hearing within 30 days of publication of the notice of intent to withdraw program approval and financial assistance, the Assistant Administrator will publish 30 days advance notice of the hearing in the Federal Register and the newspaper(s) of largest circulation in the State's coastal zone. The hearing will be held in a location convenient to the citizens of the State's coastal zone and a record of the hearing will be maintained. Within 30 days of the completion of the hearing, the agency will make the determination as set forth in paragraph (b)(2)(iii) of this section.

                (3) If program approval and financial assistance are withdrawn pursuant to this section, a notice will be placed in the Federal Register and Federal consistency under section 307 of the Act will cease to apply to the State's CZM program.
                [47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996]

            Pt. 930
            PART 930—FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS

                Subpart A—General Information
                Sec.
                930.1
                Overall objectives.
                930.2
                Public participation.
                930.3
                Review of the implementation of the federal consistency requirement.
                930.4
                Conditional concurrences.
                930.5
                State enforcement action.
                930.6
                State agency responsibility.

                Subpart B—General Definitions
                930.10
                Index to definitions for terms defined in part 930.
                930.11
                Definitions.

                Subpart C—Consistency for Federal Agency Activities
                930.30
                Objectives.
                930.31
                Federal agency activity.
                930.32
                Consistent to the maximum extent practicable.
                930.33
                Identifying Federal agency activities affecting any coastal use or resource.
                930.34
                Federal and State agency coordination.
                930.35
                Negative determinations for proposed activities.
                930.36
                Consistency determinations for proposed activities.
                930.37
                Consistency determinations and National Environmental Policy Act (NEPA) requirements.
                930.38
                Consistency determinations for activities initiated prior to management program approval.
                930.39
                Content of a consistency determination.
                930.40
                Multiple Federal agency participation.
                930.41
                State agency response.
                930.42
                Public participation.
                930.43
                State agency objection.
                930.44
                Availability of mediation for disputes concerning proposed activities.
                930.45
                Availability of mediation for previously reviewed activities.
                930.46
                Supplemental coordination for proposed activities.

                Subpart D—Consistency for Activities Requiring a Federal License or Permit
                930.50
                Objectives.
                930.51
                Federal license or permit.
                930.52
                Applicant.
                930.53
                Listed federal license or permit activities.
                930.54
                Unlisted federal license or permit activities.
                930.55
                Availability of mediation for license or permit disputes.
                930.56
                State agency guidance and assistance to applicants.
                930.57
                Consistency certifications.
                930.58
                Necessary data and information.
                930.59
                Multiple permit review.
                930.60
                Commencement of State agency review.
                930.61
                Public participation.
                930.62
                State agency concurrence with a consistency certification.
                930.63
                State agency objection to a consistency certification.
                930.64
                Federal permitting agency responsibility.
                930.65
                Remedial action for previously reviewed activities.
                930.66
                Supplemental coordination for proposed activities.

                Subpart E—Consistency for Outer Continental Shelf (OCS) Exploration, Development and Production Activities
                930.70
                Objectives.
                930.71
                Federal license or permit activity described in detail.
                930.72
                Person.
                930.73
                OCS plan.
                930.74
                OCS activities subject to State agency review.
                930.75
                State agency assistance to persons.
                930.76
                Submission of an OCS plan, necessary data and information and consistency certification.
                930.77
                Commencement of State agency review and public notice.
                930.78
                State agency concurrence or objection.
                930.79
                Effect of State agency concurrence.
                930.80
                Federal permitting agency responsibility.
                930.81
                Multiple permit review.
                930.82
                Amended OCS plans.
                930.83
                Review of amended OCS plans; public notice.
                930.84
                Continuing State agency objections.
                930.85
                Failure to substantially comply with an approved OCS plan.

                Subpart F—Consistency for Federal Assistance to State and Local Governments
                930.90
                Objectives.
                930.91
                Federal assistance.
                930.92
                Applicant agency.
                930.93
                Intergovernmental review process.
                930.94
                State review process for consistency.
                930.95
                Guidance provided by the State agency.
                930.96
                Consistency review.
                930.97
                Federal assisting agency responsibility.
                930.98

                Federally assisted activities outside of the coastal zone or the described geographic area.

                930.99
                Availability of mediation for federal assistance disputes.
                930.100
                Remedial action for previously reviewed activities.
                930.101
                Supplemental coordination for proposed activities.

                Subpart G—Secretarial Mediation
                930.110
                Objectives.
                930.111
                OCRM mediation.
                930.112
                Request for Secretarial mediation.
                930.113
                Public hearings.
                930.114
                Secretarial mediation efforts.
                930.115
                Termination of mediation.
                930.116
                Judicial review.

                Subpart H—Appeal to the Secretary for Review Related to the Objectives of the Act and National Security Interests
                930.120
                Objectives.
                930.121
                Consistent with the objectives or purposes of the Act.
                930.122
                Necessary in the interest of national security.
                930.123
                Definitions.
                930.124
                Computation of time.
                930.125
                Notice of appeal and application fee to the Secretary.
                930.126
                Consistency appeal processing fees.
                930.127
                Briefs and supporting materials.
                930.128
                Public notice, comment period, and public hearing.
                930.129
                Dismissal, remand, stay, and procedural override.
                930.130
                Closure of the decision record and issuance of decision.
                930.131
                Review initiated by the Secretary.

                Subpart I—Consistency of Federal Activities Having Interstate Coastal Effects
                930.150
                Objectives.
                930.151
                Interstate coastal effect.
                930.152
                Application.
                930.153
                Coordination between States in developing coastal management policies.
                930.154
                Listing activities subject to routine interstate consistency review.
                930.155
                Federal and State agency coordination.
                930.156
                Content of a consistency determination or certification and State agency response.
                930.157
                Mediation and informal negotiations.

              Authority:
              16 U.S.C. 1451 et seq.

              Source:
              65 FR 77154, Dec. 8, 2000, unless otherwise noted.

              Subpart A—General Information

                § 930.1
                Overall objectives.
                The objectives of this part are:
                (a) To describe the obligations of all parties who are required to comply with the federal consistency requirement of the Coastal Zone Management Act;
                (b) To implement the federal consistency requirement in a manner which strikes a balance between the need to ensure consistency for federal actions affecting any coastal use or resource with the enforceable policies of approved management programs and the importance of federal activities (the term “federal action” includes all types of activities subject to the federal consistency requirement under subparts C, D, E, F and I of this part.);
                (c) To provide flexible procedures which foster intergovernmental cooperation and minimize duplicative effort and unnecessary delay, while making certain that the objectives of the federal consistency requirement of the Act are satisfied. Federal agencies, State agencies, and applicants should coordinate as early as possible in developing a proposed federal action, and may mutually agree to intergovernmental coordination efforts to meet the requirements of these regulations, provided that public participation requirements are met and applicable State management program enforceable policies are considered. State agencies should participate in the administrative processes of federal agencies concerning federal actions that may be subject to state review under subparts C, D, E, F and I of this part.
                (d) To interpret significant terms in the Act and this part;
                (e) To provide procedures to make certain that all Federal agency and State agency consistency decisions are directly related to the enforceable policies of approved management programs;
                (f) To provide procedures which the Secretary, in cooperation with the Executive Office of the President, may use to mediate serious disagreements which arise between Federal and State agencies during the administration of approved management programs; and

                (g) To provide procedures which permit the Secretary to review federal license or permit activities, or federal assistance activities, to determine whether they are consistent with the objectives or purposes of the Act, or are necessary in the interest of national security.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006]

                § 930.2
                Public participation.
                State management programs shall provide an opportunity for public participation in the State agency's review of a Federal agency's consistency determination or an applicant's or person's consistency certification.

                § 930.3
                Review of the implementation of the federal consistency requirement.
                As part of the responsibility to conduct a continuing review of approved management programs, the Director of the Office of Ocean and Coastal Resource Management (Director) shall review the performance of each State's implementation of the federal consistency requirement. The Director shall evaluate instances where a State agency is believed to have either failed to object to inconsistent federal actions, or improperly objected to consistent federal actions. This evaluation shall be incorporated within the Director's general efforts to ascertain instances where a State has not adhered to its approved management program and such lack of adherence is not justified.

                § 930.4
                Conditional concurrences
                (a) Federal agencies, applicants, persons and applicant agencies should cooperate with State agencies to develop conditions that, if agreed to during the State agency's consistency review period and included in a Federal agency's final decision under subpart C or in a Federal agency's approval under subparts D, E, F or I of this part, would allow the State agency to concur with the federal action. If instead a State agency issues a conditional concurrence:
                (1) The State agency shall include in its concurrence letter the conditions which must be satisfied, an explanation of why the conditions are necessary to ensure consistency with specific enforceable policies of the management program, and an identification of the specific enforceable policies. The State agency's concurrence letter shall also inform the parties that if the requirements of paragraphs (a)(1) through (3) of the section are not met, then all parties shall treat the State agency's conditional concurrence letter as an objection pursuant to the applicable subpart and notify, pursuant to § 930.63(e), applicants, persons and applicant agencies of the opportunity to appeal the State agency's objection to the Secretary of Commerce within 30 days after receipt of the State agency's conditional concurrence/objection or 30 days after receiving notice from the Federal agency that the application will not be approved as amended by the State agency's conditions; and
                (2) The Federal agency (for subpart C), applicant (for subparts D and I), person (for subpart E) or applicant agency (for subpart F) shall modify the applicable plan, project proposal, or application to the Federal agency pursuant to the State agency's conditions. The Federal agency, applicant, person or applicant agency shall immediately notify the State agency if the State agency's conditions are not acceptable; and
                (3) The Federal agency (for subparts D, E, F and I) shall approve the amended application (with the State agency's conditions). The Federal agency shall immediately notify the State agency and applicant or applicant agency if the Federal agency will not approve the application as amended by the State agency's conditions.
                (b) If the requirements of paragraphs (a)(1) through (3) of this section are not met, then all parties shall treat the State agency's conditional concurrence as an objection pursuant to the applicable subpart.

                § 930.5
                State enforcement action.
                The regulations in this part are not intended in any way to alter or limit other legal remedies, including judicial review or State enforcement, otherwise available. State agencies and Federal agencies should first use the various remedial action and mediation sections of this part to resolve their differences or to enforce State agency concurrences or objections.

                § 930.6
                State agency responsibility.
                (a) This section describes the responsibilities of the “State agency” described in § 930.11(o). A designated State agency is required to uniformly and comprehensively apply the enforceable policies of the State's management program, efficiently coordinate all State coastal management requirements, and to provide a single point of contact for Federal agencies and the public to discuss consistency issues. Any appointment by the State agency of the State's consistency responsibilities to a designee agency must be described in the State's management program. In the absence of such description, all consistency determinations, consistency certifications and federal assistance proposals shall be sent to and reviewed by the State agency. A State may have two State agencies designated pursuant to § 306(d)(6) of the Act where the State has two geographically separate federally-approved management programs.

                (b) The State agency is responsible for commenting on and concurring with or objecting to Federal agency consistency determinations and negative determinations (see subpart C of this part), consistency certifications for federal licenses, permits, and Outer Continental Shelf plans (see subparts D, E and I of this part), and reviewing the consistency of federal assistance activities proposed by applicant agencies (see subpart F of this part). The State agency shall be responsible for securing necessary review and comment from other State, regional, or local government agencies, and, where applicable, the public. Thereafter, only the State agency is authorized to comment officially on or concur with or object to a federal consistency determination or negative determination, a consistency certification, or determine the consistency of a proposed federal assistance activity.
                (c) If described in a State's management program, the issuance or denial of relevant State permits can constitute the State agency's consistency concurrence or objection if the State agency ensures that the State permitting agencies or the State agency review individual projects to ensure consistency with all applicable State management program policies and that applicable public participation requirements are met. The State agency shall monitor such permits issued by another State agency.

              Subpart B—General Definitions

                § 930.10
                Index to definitions for terms defined in part 930.

                    Term
                    Section

                    Act
                    930.11(a)

                    Any coastal use or resource
                    930.11(b)

                    Appellant
                    930.123

                    Applicant
                    930.52

                    Applicant agency
                    930.92

                    Assistant Administrator
                    930.11(c)

                    Associated facilities
                    930.11(d)

                    Coastal zone
                    930.11(e)

                    Consistent to the maximum extent practicable
                    930.32

                    Consistent with the objectives or purposes of the Act
                    930.121

                    Development project
                    930.31(b)

                    Director
                    930.11(f)

                    Effect on any coastal use or resource
                    930.11(g)

                    Enforceable policy
                    930.11(h)

                    Executive Office of the President
                    930.11(i)

                    Failure substantially to comply with an OCS plan
                    930.85(c)

                    Federal agency
                    930.11(j)

                    Federal agency activity
                    930.31

                    Federal assistance
                    930.91

                    Federal license or permit
                    930.51

                    Federal license or permit activity described in detail
                    930.71

                    Interstate coastal effect
                    930.151

                    Major amendment
                    930.51(c)

                    Management program
                    930.11(k)

                    Necessary in the interest of national security
                    930.122

                    OCS plan
                    930.73

                    OCRM
                    930.11(l)

                    Person
                    930.72

                    Secretary
                    930.11(m)

                    Section
                    930.11(n)

                    State agency
                    930.11(o)

                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006]

                § 930.11
                Definitions.
                (a) Act. The term “Act” means the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451-1464).
                (b) Any coastal use or resource. The phrase “any coastal use or resource” means any land or water use or natural resource of the coastal zone. Land and water uses, or coastal uses, are defined in sections 304(10) and (18) of the act, respectively, and include, but are not limited to, public access, recreation, fishing, historic or cultural preservation, development, hazards management, marinas and floodplain management, scenic and aesthetic enjoyment, and resource creation or restoration projects. Natural resources include biological or physical resources that are found within a State's coastal zone on a regular or cyclical basis. Biological and physical resources include, but are not limited to, air, tidal and nontidal wetlands, ocean waters, estuaries, rivers, streams, lakes, aquifers, submerged aquatic vegetation, land, plants, trees, minerals, fish, shellfish, invertebrates, amphibians, birds, mammals, reptiles, and coastal resources of national significance. Coastal uses and resources also includes uses and resources appropriately described in a management program.
                (c) Assistant Administrator. The term “Assistant Administrator” means the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA.
                (d) Associated facilities. The term “associated facilities” means all proposed facilities which are specifically designed, located, constructed, operated, adapted, or otherwise used, in full or in major part, to meet the needs of a federal action (e.g., activity, development project, license, permit, or assistance), and without which the federal action, as proposed, could not be conducted. The proponent of a federal action shall consider whether the federal action and its associated facilities affect any coastal use or resource and, if so, whether these interrelated activities satisfy the requirements of the applicable subpart (subparts C, D, E, F or I).
                (e) Coastal Zone. The term “coastal zone” has the same definition as provided in § 304(1) of the Act.
                (f) Director. The term “Director” means the Director of the Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service, NOAA.
                (g) Effect on any coastal use or resource (coastal effect). The term “effect on any coastal use or resource” means any reasonably foreseeable effect on any coastal use or resource resulting from a Federal agency activity or federal license or permit activity (including all types of activities subject to the federal consistency requirement under subparts C, D, E, F and I of this part.) Effects are not just environmental effects, but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal action when added to other past, present, and reasonably foreseeable actions, regardless of what person(s) undertake(s) such actions.
                (h) Enforceable policy. “The term “enforceable policy” means State policies which are legally binding through constitutional provisions, laws, regulations, land use plans, ordinances, or judicial or administrative decisions, by which a State exerts control over private and public land and water uses and natural resources in the coastal zone,” 16 U.S.C. 1453(6a), and which are incorporated in a management program as approved by OCRM either as part of program approval or as a program change under 15 CFR part 923, subpart H. An enforceable policy shall contain standards of sufficient specificity to guide public and private uses. Enforceable policies need not establish detailed criteria such that a proponent of an activity could determine the consistency of an activity without interaction with the State agency. State agencies may identify management measures which are based on enforceable policies, and, if implemented, would allow the activity to be conducted consistent with the enforceable policies of the program. A State agency, however, must base its objection on enforceable policies.
                (i) Executive Office of the President. The term “Executive Office of the President” means the office, council, board, or other entity within the Executive Office of the President which shall participate with the Secretary in seeking to mediate serious disagreements which may arise between a Federal agency and a coastal State.
                (j) Federal agency. The term “Federal agency” means any department, agency, board, commission, council, independent office or similar entity within the executive branch of the federal government, or any wholly owned federal government corporation.
                (k) Management program. The term “management program” has the same definition as provided in section 304(12) of the Act, except that for the purposes of this part the term is limited to those management programs adopted by a coastal State in accordance with the provisions of section 306 of the Act, and approved by the Assistant Administrator.
                (l) OCRM. The term “OCRM” means the Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration (“NOAA”), U.S. Department of Commerce.
                (m) Secretary. The term “Secretary” means the Secretary of Commerce and/or designee.
                (n) Section. The term “Section” means a section of the Coastal Zone Management Act of 1972, as amended.
                (o) State agency. The term “State agency” means the agency of the State government designated pursuant to section 306(d)(6) of the Act to receive and administer grants for an approved management program, or a single designee State agency appointed by the 306(d)(6) State agency.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006]

              Subpart C—Consistency for Federal Agency Activities

                § 930.30
                Objectives.
                The provisions of this subpart are intended to assure that all Federal agency activities including development projects affecting any coastal use or resource will be undertaken in a manner consistent to the maximum extent practicable with the enforceable policies of approved management programs. The provisions of subpart I of this part are intended to supplement the provisions of this subpart for Federal agency activities having interstate coastal effects.

                § 930.31
                Federal agency activity.
                (a) The term “Federal agency activity” means any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibilities. The term “Federal agency activity” includes a range of activities where a Federal agency makes a proposal for action initiating an activity or series of activities when coastal effects are reasonably foreseeable, e.g., a Federal agency's proposal to physically alter coastal resources, a plan that is used to direct future agency actions, a proposed rulemaking that alters uses of the coastal zone. “Federal agency activity” does not include the issuance of a federal license or permit to an applicant or person (see subparts D and E of this part) or the granting of federal assistance to an applicant agency (see subpart F of this part).
                (b) The term federal “development project” means a Federal agency activity involving the planning, construction, modification, or removal of public works, facilities, or other structures, and includes the acquisition, use, or disposal of any coastal use or resource.
                (c) The Federal agency activity category is a residual category for federal actions that are not covered under subparts D, E, or F of this part.

                (d) A general permit proposed by a Federal agency is subject to this subpart if the general permit does not involve case-by-case or individual issuance of a license or permit by a Federal agency. When proposing a general permit, a Federal agency shall provide a consistency determination to the relevant management programs and request that the State agency(ies) provide the Federal agency with review, and if necessary, conditions, based on specific enforceable policies, that would permit the State agency to concur with the Federal agency's consistency determination. State agency concurrence shall remove the need for the State agency to review individual uses of the general permit for consistency with the enforceable policies of management programs. Federal agencies shall, pursuant to the consistent to the maximum extent practicable standard in § 930.32, incorporate State conditions into the general permit. If the State agency's conditions are not incorporated into the general permit or a State agency objects to the general permit, then the Federal agency shall notify potential users of the general permit that the general permit is not available for use in that State unless an applicant under subpart D of this part or a person under subpart E of this part, who wants to use the general permit in that State provides the State agency with a consistency certification under subpart D of this part and the State agency concurs. When subpart D or E of this part applies, all provisions of the relevant subpart apply.
                (e) The terms “Federal agency activity” and “Federal development project” also include modifications of any such activity or development project which affect any coastal use or resource, provided that, in the case of modifications of an activity or development project which the State agency has previously reviewed, the effect on any coastal use or resource is substantially different than those previously reviewed by the State agency.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006]

                § 930.32
                Consistent to the maximum extent practicable.
                (a)(1) The term “consistent to the maximum extent practicable” means fully consistent with the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency.
                (2) Section 307(e) of the Act does not relieve Federal agencies of the consistency requirements under the Act. The Act was intended to cause substantive changes in Federal agency decisionmaking within the context of the discretionary powers residing in such agencies. Accordingly, whenever legally permissible, Federal agencies shall consider the enforceable policies of management programs as requirements to be adhered to in addition to existing Federal agency statutory mandates. If a Federal agency asserts that full consistency with the management program is prohibited, it shall clearly describe, in writing, to the State agency the statutory provisions, legislative history, or other legal authority which limits the Federal agency's discretion to be fully consistent with the enforceable policies of the management program.
                (3) For the purpose of determining consistent to the maximum extent practicable under paragraphs (a)(1) and (2) of this section, federal legal authority includes Federal appropriation Acts if the appropriation Act includes language that specifically prohibits full consistency with specific enforceable policies of management programs. Federal agencies shall not use a general claim of a lack of funding or insufficient appropriated funds or failure to include the cost of being fully consistent in Federal budget and planning processes as a basis for being consistent to the maximum extent practicable with an enforceable policy of a management program. The only circumstance where a Federal agency may rely on a lack of funding as a limitation on being fully consistent with an enforceable policy is the Presidential exemption described in section 307(c)(1)(B) of the Act (16 U.S.C. 1456(c)(1)(B)). In cases where the cost of being consistent with the enforceable policies of a management program was not included in the Federal agency's budget and planning processes, the Federal agency should determine the amount of funds needed and seek additional federal funds. Federal agencies should include the cost of being fully consistent with the enforceable policies of management programs in their budget and planning processes, to the same extent that a Federal agency would plan for the cost of complying with other federal requirements.

                (b) A Federal agency may deviate from full consistency with an approved management program when such deviation is justified because of an emergency or other similar unforeseen circumstance (“exigent circumstance”), which presents the Federal agency with a substantial obstacle that prevents complete adherence to the approved program. Any deviation shall be the minimum necessary to address the exigent circumstance. Federal agencies shall carry out their activities consistent to the maximum extent practicable with the enforceable policies of a management program, to the extent that the exigent circumstance allows. Federal agencies shall consult with State agencies to the extent that an exigent circumstance allows and shall attempt to seek State agency concurrence prior to addressing the exigent circumstance. Once the exigent circumstances have passed, and if the Federal agency is still carrying out an activity with coastal effects, Federal agencies shall comply with all applicable provisions of this subpart to ensure that the activity is consistent to the maximum extent practicable with the enforceable policies of management programs. Once the Federal agency has addressed the exigent circumstance or completed its emergency response activities, it shall provide the State agency with a description of its actions and their coastal effects.
                (c) A classified activity that affects any coastal use or resource is not exempt from the requirements of this subpart, unless the activity is exempted by the President under section 307(c)(1)(B) of the Act. Under the consistent to the maximum extent practicable standard, the Federal agency shall provide to the State agency a description of the project and coastal effects that it is legally permitted to release or does not otherwise breach the classified nature of the activity. Even when a Federal agency may not be able to disclose project information, the Federal agency shall conduct the classified activity consistent to the maximum extent practicable with the enforceable policies of management programs. The term classified means to protect from disclosure national security information concerning the national defense or foreign policy, provided that the information has been properly classified in accordance with the substantive and procedural requirements of an executive order. Federal and State agencies are encouraged to agree on a qualified third party(ies) with appropriate security clearance(s) to review classified information and to provide non-classified comments regarding the activity's reasonably foreseeable coastal effects.

                § 930.33
                Identifying Federal agency activities affecting any coastal use or resource.
                (a) Federal agencies shall determine which of their activities affect any coastal use or resource of States with approved management programs.
                (1) Effects are determined by looking at reasonably foreseeable direct and indirect effects on any coastal use or resource. An action which has minimal or no environmental effects may still have effects on a coastal use (e.g., effects on public access and recreational opportunities, protection of historic property) or a coastal resource, if the activity initiates an event or series of events where coastal effects are reasonably foreseeable. Therefore, Federal agencies shall, in making a determination of effects, review relevant management program enforceable policies as part of determining effects on any coastal use or resource.
                (2) If the Federal agency determines that a Federal agency activity has no effects on any coastal use or resource, and a negative determination under § 930.35 is not required, then the Federal agency is not required to coordinate with State agencies under section 307 of the Act.
                (3)(i) De minimis Federal agency activities. Federal agencies are encouraged to review their activities, other than development projects within the coastal zone, to identify de minimis activities, and request State agency concurrence that these de minimis activities should not be subject to further State agency review. De minimis activities shall only be excluded from State agency review if a Federal agency and State agency have agreed. The State agency shall provide for public participation under section 306(d)(14) of the Act when reviewing the Federal agency's de minimis activity request. If the State agency objects to the Federal agency's de minimis finding then the Federal agency must provide the State agency with either a negative determination or a consistency determination pursuant to this subpart. OCRM is available to facilitate a Federal agency's request.
                (ii) De minimis activities are activities that are expected to have insignificant direct or indirect (cumulative and secondary) coastal effects and which the State agency concurs are de minimis.

                (4) Environmentally beneficial activities. The State agency and Federal agencies may agree to exclude environmentally beneficial Federal agency activities (either on a case-by-case basis or for a category of activities) from further State agency consistency review. Environmentally beneficial activity means an activity that protects, preserves, or restores the natural resources of the coastal zone. The State agency shall provide for public participation under section 306(d)(14) of the Act for the State agency's consideration of whether to exclude environmentally beneficial activities.
                (5) General consistency determinations, phased consistency determinations, and national or regional consistency determinations under § 930.36 are also available to facilitate federal-State coordination.
                (b) Federal agencies shall consider all development projects within the coastal zone to be activities affecting any coastal use or resource. All other types of activities within the coastal zone are subject to Federal agency review to determine whether they affect any coastal use or resource.
                (c) Federal agency activities and development projects outside of the coastal zone, are subject to Federal agency review to determine whether they affect any coastal use or resource.
                (d) Federal agencies shall broadly construe the effects test to provide State agencies with a consistency determination under § 930.34 and not a negative determination under § 930.35 or other determinations of no effects. Early coordination and cooperation between a Federal agency and the State agency can enable the parties to focus their efforts on particular Federal agency activities of concern to the State agency.

                § 930.34
                Federal and State agency coordination.
                (a)(1) Federal agencies shall provide State agencies with consistency determinations for all Federal agency activities affecting any coastal use or resource. To facilitate State agency review, Federal agencies should coordinate with the State agency prior to providing the determination.
                (2) Use of existing procedures. Federal agencies are encouraged to coordinate and consult with State agencies through use of existing procedures in order to avoid waste, duplication of effort, and to reduce Federal and State agency administrative burdens. Where necessary, these existing procedures should be modified to facilitate coordination and consultation under the Act.
                (b) Listed activities. State agencies are strongly encouraged to list in their management programs Federal agency activities which, in the opinion of the State agency, will have reasonably foreseeable coastal effects and therefore, may require a Federal agency consistency determination. Listed Federal agency activities shall be described in terms of the specific type of activity involved (e.g., federal reclamation projects). In the event the State agency chooses to describe Federal agency activities that occur outside of the coastal zone, which the State agency believes will have reasonably foreseeable coastal effects, it shall also describe the geographic location of such activities (e.g., reclamation projects in coastal floodplains).
                (c) Unlisted activities. State agencies should monitor unlisted Federal agency activities (e.g., by use of intergovernmental review process established pursuant to E.O. 12372, review of NEPA documents, and the Federal Register) and should notify Federal agencies of unlisted Federal agency activities which Federal agencies have not subjected to a consistency review but which, in the opinion of the State agency, will have reasonably foreseeable coastal effects and therefore, may require a Federal agency consistency determination. The provisions in paragraphs (b) and (c) of this section are recommended rather than mandatory procedures for facilitating federal-State coordination of Federal agency activities which affect any coastal use or resource. State agency notification to the Federal agency (by listed or unlisted notification) is neither a substitute for nor does it eliminate Federal agency responsibility to comply with the consistency requirement, and to provide State agencies with consistency determinations for all development projects in the coastal zone and for all other Federal agency activities which the Federal agency finds affect any coastal use or resource, regardless of whether the State agency has listed the activity or notified the Federal agency through case-by-case monitoring.

                (d) State guidance and assistance to Federal agencies. As a preliminary matter, a decision that a Federal agency activity affects any coastal use or resource should lead to early consultation with the State agency (i.e., before the required 90-day period). Federal agencies should obtain the views and assistance of the State agency regarding the means for determining that the proposed activity will be conducted in a manner consistent to the maximum extent practicable with the enforceable policies of a management program. As part of its assistance efforts, the State agency shall make available for public inspection copies of the management program document. Upon request by the Federal agency, the State agency shall identify any enforceable policies applicable to the proposed activity based upon the information provided to the State agency at the time of the request.

                § 930.35
                Negative determinations for proposed activities.
                (a) If a Federal agency determines that there will not be coastal effects, then the Federal agency shall provide the State agencies with a negative determination for a Federal agency activity:
                (1) Identified by a State agency on its list, as described in § 930.34(b), or through case-by-case monitoring of unlisted activities; or
                (2) Which is the same as or is similar to activities for which consistency determinations have been prepared in the past; or
                (3) For which the Federal agency undertook a thorough consistency assessment and developed initial findings on the coastal effects of the activity.
                (b) Content of a negative determination. A negative determination may be submitted to State agencies in any written form so long as it contains a brief description of the activity, the activity's location and the basis for the Federal agency's determination that the activity will not affect any coastal use or resource. In determining effects, Federal agencies shall follow § 930.33(a)(1), including an evaluation of the relevant enforceable policies of a management program and include the evaluation in the negative determination. The level of detail in the Federal agency's analysis may vary depending on the scope and complexity of the activity and issues raised by the State agency, but shall be sufficient for the State agency to evaluate whether coastal effects are reasonably foreseeable.
                (c) A negative determination under paragraph (a) of this section shall be provided to the State agency at least 90 days before final approval of the activity, unless both the Federal agency and the State agency agree to an alternative notification schedule. A State agency is not obligated to respond to a negative determination. If a State agency does not respond to a Federal agency's negative determination within 60 days, State agency concurrence with the negative determination shall be presumed. State agency concurrence shall not be presumed in cases where the State agency, within the 60-day period, requests an extension of time to review the matter. Federal agencies shall approve one request for an extension period of 15 days or less. If a State agency objects to a negative determination, asserting that coastal effects are reasonably foreseeable, the Federal agency shall consider submitting a consistency determination to the State agency or otherwise attempt to resolve any disagreement within the remainder of the 90-day period. If a Federal agency, in response to a State agency's objection to a negative determination, agrees that coastal effects are reasonably foreseeable, the State agency and Federal agency should attempt to agree to complete the consistency review within the 90-day period for the negative determination or consider an alternative schedule pursuant to § 930.36(b)(1). Federal agencies should consider postponing final Federal agency action, beyond the 90-day period, until a disagreement has been resolved. State agencies are not required to provide public notice of the receipt of a negative determination or the resolution of an objection to a negative determination, unless a Federal agency submits a consistency determination pursuant to § 930.34.
                (d) General negative determinations. In cases where Federal agencies will be performing a repetitive activity that a Federal agency determines will not have reasonably foreseeable coastal effects, whether performed separately or cumulatively, a Federal agency may provide a State agency(ies) with a general negative determination, thereby avoiding the necessity of issuing separate negative determinations for each occurrence of the activity. A general negative determination must adhere to all requirements for negative determinations under § 930.35. In addition, a general negative determination must describe in detail the activity covered by the general negative determination and the expected number of occurrences of the activity over a specific time period. If a Federal agency issues a general negative determination, it may periodically assess whether the general negative determination is still applicable.
                (e) In the event of a serious disagreement between a Federal agency and a State agency regarding a determination related to whether a proposed activity affects any coastal use or resource, either party may seek the Secretarial mediation or OCRM mediation services provided for in subpart G.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006]

                § 930.36
                Consistency determinations for proposed activities.
                (a) Federal agencies shall review their proposed Federal agency activities which affect any coastal use or resource in order to develop consistency determinations which indicate whether such activities will be undertaken in a manner consistent to the maximum extent practicable with the enforceable policies of approved management programs. Federal agencies should consult with State agencies at an early stage in the development of the proposed activity in order to assess whether such activities will be consistent to the maximum extent practicable with the enforceable policies of such programs.
                (b) Timing of consistency determinations. (1) Federal agencies shall provide State agencies with a consistency determination at the earliest practicable time in the planning or reassessment of the activity. A consistency determination should be prepared following development of sufficient information to reasonably determine the consistency of the activity with the management program, but before the Federal agency reaches a significant point of decisionmaking in its review process, i.e., while the Federal agency has the ability to modify the activity. The consistency determination shall be provided to State agencies at least 90 days before final approval of the Federal agency activity unless both the Federal agency and the State agency agree to an alternative notification schedule.
                (2) Federal and State agencies may mutually agree upon procedures for extending the notification requirement beyond 90 days for activities requiring a substantial review period, and for shortening the notification period for activities requiring a less extensive review period, provided that public participation requirements are met.
                (c) General consistency determinations. In cases where Federal agencies will be performing repeated activity other than a development project (e.g., ongoing maintenance, waste disposal) which cumulatively has an effect upon any coastal use or resource, the Federal agency may develop a general consistency determination, thereby avoiding the necessity of issuing separate consistency determinations for each incremental action controlled by the major activity. A Federal agency may provide a State agency with a general consistency determination only in situations where the incremental actions are repetitive and do not affect any coastal use or resource when performed separately. A Federal agency and State agency may mutually agree on a general consistency determination for de minimis activities (see § 930.33(a)(3)) or any other repetitive activity or category of activity(ies). If a Federal agency issues a general consistency determination, it shall thereafter periodically consult with the State agency to discuss the manner in which the incremental actions are being undertaken.
                (d) Phased consistency determinations. In cases where the Federal agency has sufficient information to determine the consistency of a proposed development project or other activity from planning to completion, the Federal agency shall provide the State agency with one consistency determination for the entire activity or development project. In cases where federal decisions related to a proposed development project or other activity will be made in phases based upon developing information that was not available at the time of the original consistency determination, with each subsequent phase subject to Federal agency discretion to implement alternative decisions based upon such information (e.g., planning, siting, and design decisions), a consistency determination will be required for each major decision. In cases of phased decisionmaking, Federal agencies shall ensure that the development project or other activity continues to be consistent to the maximum extent practicable with the management program.
                (e) National or regional consistency determinations. (1) A Federal agency may provide States with consistency determinations for Federal agency activities that are national or regional in scope (e.g., rulemaking, national plans), and that affect any coastal use or resource of more than one State. Many States share common coastal management issues and have similar enforceable policies, e.g., protection of a particular coastal resource. The Federal agency's national or regional consistency determination should, at a minimum, address the common denominator of these policies, i.e., the common coastal effects and management issues, and thereby address different States' policies with one discussion and determination. If a Federal agency decides not to use this section, it must issue consistency determinations to each State agency pursuant to § 930.39.
                (2) Federal agency activities with coastal effects shall be consistent to the maximum extent practicable with the enforceable policies of each State's management program. Thus, the Federal agency's national or regional consistency determination shall contain sections that would apply to individual States to address coastal effects and enforceable policies unique to particular States, if common coastal effects and enforceable policies cannot be addressed under paragraph (e)(1). Early coordination with coastal States will enable the Federal agency to identify particular coastal management concerns and policies. In addition, the Federal agency could address the concerns of each affected State by providing for State conditions for the proposed activity. Further, the consistency determination could identify the coordination efforts and describe how the Federal agency responded to State agency concerns.

                § 930.37
                Consistency determinations and National Environmental Policy Act (NEPA) requirements.
                A Federal agency may use its NEPA documents as a vehicle for its consistency determination or negative determination under this subpart. However, a Federal agency's federal consistency obligations under the Act are independent of those required under NEPA and are not necessarily fulfilled by the submission of a NEPA document. State agencies shall not require Federal agencies to submit NEPA documents as information required pursuant to § 930.39. If a Federal agency includes its consistency determination or negative determination in a NEPA document, the Federal agency shall ensure that the NEPA document includes the information and adheres to the timeframes required by this subpart. Federal agencies and State agencies should mutually agree on how to best coordinate the requirements of NEPA and the Act.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006]

                § 930.38
                Consistency determinations for activities initiated prior to management program approval.

                (a) A consistency determination is required for ongoing Federal agency activities other than development projects initiated prior to management program approval, which are governed by statutory authority under which the Federal agency retains discretion to reassess and modify the activity. In these cases the consistency determination must be made by the Federal agency at the earliest practicable time following management program approval, and the State agency must be provided with a consistency determination no later than 120 days after management program approval for ongoing activities which the State agency lists or identifies through monitoring as subject to consistency with the management program.
                (b) A consistency determination is required for major, phased federal development project decisions described in § 930.36(d) which are made following management program approval and are related to development projects initiated prior to program approval. In making these new decisions, Federal agencies shall consider effects on any coastal use or resource not fully evaluated at the outset of the project. This provision shall not apply to phased federal decisions which were specifically described, considered and approved prior to management program approval (e.g., in a final environmental impact statement issued pursuant to NEPA).

                § 930.39
                Content of a consistency determination.
                (a) The consistency determination shall include a brief statement indicating whether the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the enforceable policies of the management program. The statement must be based upon an evaluation of the relevant enforceable policies of the management program. A description of this evaluation shall be included in the consistency determination, or provided to the State agency simultaneously with the consistency determination if the evaluation is contained in another document. Where a Federal agency is aware, prior to its submission of its consistency determination, that its activity is not fully consistent with a management program's enforceable policies, the Federal agency shall describe in its consistency determination the legal authority that prohibits full consistency as required by § 930.32(a)(2). Where the Federal agency is not aware of any inconsistency until after submission of its consistency determination, the Federal agency shall submit its description of the legal authority that prohibits full consistency to the State agency as soon as possible, or before the end of the 90-day period described in § 930.36(b)(1). The consistency determination shall also include a detailed description of the activity, its associated facilities, and their coastal effects, and comprehensive data and information sufficient to support the Federal agency's consistency statement. The amount of detail in the evaluation of the enforceable policies, activity description and supporting information shall be commensurate with the expected coastal effects of the activity. The Federal agency may submit the necessary information in any manner it chooses so long as the requirements of this subpart are satisfied.
                (b) Federal agencies shall be guided by the following in making their consistency determinations. The activity its effects on any coastal use or resource, associated facilities (e.g., proposed siting and construction of access road, connecting pipeline, support buildings, and the effects of the associated facilities (e.g., erosion, wetlands, beach access impacts), must all be consistent to the maximum extent practicable with the enforceable policies of the management program.
                (c) In making their consistency determinations, Federal agencies shall ensure that their activities are consistent to the maximum extent practicable with the enforceable, policies of the management program. However, Federal agencies should give consideration to management program provisions which are in the nature of recommendations.
                (d) When Federal agency standards are more restrictive than standards or requirements contained in the management program, the Federal agency may continue to apply its stricter standards. In such cases the Federal agency shall inform the State agency in the consistency determination of the statutory, regulatory or other basis for the application of the stricter standards.
                (e) State permit requirements. Federal law, other than the CZMA, may require a Federal agency to obtain a State permit. Even when Federal agencies are not required to obtain State permits, Federal agencies shall still be consistent to the maximum extent practicable with the enforceable policies that are contained in such State permit programs that are part of a management program.

                § 930.40
                Multiple Federal agency participation.
                Whenever more than one Federal agency is involved in a Federal agency activity or its associated facilities affecting any coastal use or resource, or is involved in a group of Federal agency activities related to each other because of their geographic proximity, the Federal agencies may prepare one consistency determination for all the federal activities involved. In such cases, Federal agencies should consider joint preparation or lead agency development of the consistency determination. In either case, the consistency determination shall be transmitted to the State agency at least 90 days before final decisions are taken by any of the participating agencies and shall comply with the requirements of § 930.39.

                § 930.41
                State agency response.
                (a) A State agency shall inform the Federal agency of its concurrence with or objection to the Federal agency's consistency determination at the earliest practicable time, after providing for public participation in the State agency's review of the consistency determination. The Federal agency may presume State agency concurrence if the State agency's response is not received within 60 days from receipt of the Federal agency's consistency determination and supporting information required by § 930.39(a). The 60-day review period begins when the State agency receives the consistency determination and supporting information required by § 930.39(a). If the information required by § 930.39(a) is not included with the determination, the State agency shall notify the Federal agency in writing within 14 days of receiving the determination and supporting information that the 60-day review period has not begun, identify missing information required by § 930.39(a), and that the 60-day review period will begin when the missing information is received by the State agency. If the State agency has not notified the Federal agency that information required by § 930.39(a) is missing within the 14 day notification period, then the 60-day review period shall begin on the date the State agency received the consistency determination and accompanying information. The State agency's determination of whether the information required by § 930.39(a) is complete is not a substantive review of the adequacy of the information provided. Thus, if a Federal agency has submitted a consistency determination and information required by § 930.39(a), then the State agency shall not assert that the 60-day review period has not begun because the information contained in the items required by § 930.39(a) is substantively deficient. The failure to submit information not required by 930.39(a) shall not be a basis for asserting that the 60-day review period has not begun.
                (b) State agency concurrence shall not be presumed in cases where the State agency, within the 60-day period, requests an extension of time to review the matter. Federal agencies shall approve one request for an extension period of 15 days or less. In considering whether a longer or additional extension period is appropriate, the Federal agency should consider the magnitude and complexity of the information contained in the consistency determination.
                (c) Final Federal agency action shall not be taken sooner than 90 days from the receipt by the State agency of the consistency determination unless the State concurs or concurrence is presumed, pursuant to paragraphs (a) and (b), with the activity, or unless both the Federal agency and the State agency agree to an alternative period.
                (d) Time limits on concurrences. A State agency cannot unilaterally place an expiration date on its concurrence. If a State agency believes that an expiration date is necessary, State and Federal agencies may agree to a time limit. If there is no agreement, later phases of, or modifications to, the activity that will have effects not evaluated at the time of the original consistency determination will require either a new consistency determination, a supplemental consistency determination under § 930.46, or a phased review under § 930.36(d) of this subpart.
                (e) State processing fees. The Act does not require Federal agencies to pay State processing fees. State agencies shall not assess a Federal agency with a fee to process the Federal agency's consistency determination unless payment of such fees is required by other federal law or otherwise agreed to by the Federal agency and allowed by the Comptroller General of the United States. In no case may a State agency stay the consistency review period or base its objection on the failure of a Federal agency to pay a fee.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006]

                § 930.42
                Public participation.
                (a) Management programs shall provide for public participation in the State agency's review of consistency determinations. Public participation, at a minimum, shall consist of public notice for the area(s) of the coastal zone likely to be affected by the activity, as determined by the State agency.
                (b) Timing of public notice. States shall provide timely public notice after the consistency determination has been received by the State agency, except in cases where earlier public notice on the consistency determination by the Federal agency or the State agency meets the requirements of this section. A public comment period shall be provided by the State sufficient to give the public an opportunity to develop and provide comments on whether the project is consistent with management program enforceable policies and still allow the State agency to issue its concurrence or objection within the 60 day State response period.
                (c) Content of public notice. The public notice shall:
                (1) Specify that the proposed activity is subject to review for consistency with the enforceable policies of the management program;
                (2) Provide sufficient information to serve as a basis for comment;
                (3) Specify a source for additional information, e.g., a State agency web site; and
                (4) Specify a contact for submitting comments to the State agency.
                (d) Procedural options that may be used by the State agency for issuance of public notice include, but are not limited to, public notice through an official State gazette, a local newspaper serving areas of coastal zone likely to be affected by the activity, individual State mailings, public notice through a management program newsletter, and electronic notices, e.g., web sites. However, electronic notices, e.g., web sites, shall not be the sole source of a public notification, but may be used in conjunction with other means. Web sites may be used to provide a location for the public to obtain additional information. States shall not require that the Federal agency provide public notice. Federal and State agencies are encouraged to issue joint public notices, and hold joint public hearings, to minimize duplication of effort and to avoid unnecessary delays, so long as the joint notice meets the other requirements of this section.

                § 930.43
                State agency objection.
                (a) In the event the State agency objects to the Federal agency's consistency determination, the State agency shall accompany its response to the Federal agency with its reasons for the objection and supporting information. The State agency response shall describe:
                (1) How the proposed activity will be inconsistent with specific enforceable policies of the management program; and
                (2) The specific enforceable policies (including citations).
                (3) The State agency should also describe alternative measures (if they exist) which, if adopted by the Federal agency, would allow the activity to proceed in a manner consistent to the maximum extent practicable with the enforceable policies of the management program. Failure to describe alternatives does not affect the validity of the State agency's objection.
                (b) If the State agency's objection is based upon a finding that the Federal agency has failed to supply sufficient information, the State agency's response must describe the nature of the information requested and the necessity of having such information to determine the consistency of the Federal agency activity with the enforceable policies of the management program.
                (c) State agencies shall send to the Director a copy of objections to Federal agency consistency determinations.

                (d) In the event of an objection, Federal and State agencies should use the remaining portion of the 90-day notice period (see § 930.36(b)) to attempt to resolve their differences. If resolution has not been reached at the end of the 90-day period, Federal agencies should consider using the dispute resolution mechanisms of this part and postponing final federal action until the problems have been resolved. At the end of the 90-day period the Federal agency shall not proceed with the activity over a State agency's objection unless:
                (1) the Federal agency has concluded that under the “consistent to the maximum extent practicable” standard described in section 930.32 consistency with the enforceable policies of the management program is prohibited by existing law applicable to the Federal agency and the Federal agency has clearly described, in writing, to the State agency the legal impediments to full consistency (See §§ 930.32(a) and 930.39(a)), or
                (2) the Federal agency has concluded that its proposed action is fully consistent with the enforceable policies of the management program, though the State agency objects.
                (e) If a Federal agency decides to proceed with a Federal agency activity that is objected to by a State agency, or to follow an alternative suggested by the State agency, the Federal agency shall notify the State agency of its decision to proceed before the project commences.

                § 930.44
                Availability of mediation for disputes concerning proposed activities.
                In the event of a serious disagreement between a Federal agency and a State agency regarding the consistency of a proposed federal activity affecting any coastal use or resource, either party may request the Secretarial mediation or OCRM mediation services provided for in subpart G.

                § 930.45
                Availability of mediation for previously reviewed activities.
                (a) Federal and State agencies shall cooperate in their efforts to monitor federally approved activities in order to make certain that such activities continue to be undertaken in a manner consistent to the maximum extent practicable with the enforceable policies of the management program.
                (b) The State agency may request that the Federal agency take appropriate remedial action following a serious disagreement resulting from a Federal agency activity, including those activities where the State agency's concurrence was presumed, which was:
                (1) Previously determined to be consistent to the maximum extent practicable with the management program, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent to the maximum extent practicable with the enforceable policies of the management program; or
                (2) Previously determined not to be a Federal agency activity affecting any coastal use or resource, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, the activity affects any coastal use or resource and is not consistent to the maximum extent practicable with the enforceable policies of the management program. The State agency's request shall include supporting information and a proposal for recommended remedial action.
                (c) If, after a reasonable time following a request for remedial action, the State agency still maintains that a serious disagreement exists, either party may request the Secretarial mediation or OCRM mediation services provided for in subpart G of this part.

                § 930.46
                Supplemental coordination for proposed activities.

                (a) For proposed Federal agency activities that were previously determined by the State agency to be consistent with the management program, but which have not yet begun, Federal agencies shall further coordinate with the State agency and prepare a supplemental consistency determination if the proposed activity will affect any coastal use or resource substantially different than originally described. Substantially different coastal effects are reasonably foreseeable if:

                (1) The Federal agency makes substantial changes in the proposed activity that are relevant to management program enforceable policies; or
                (2) There are significant new circumstances or information relevant to the proposed activity and the proposed activity's effect on any coastal use or resource.
                (3) Substantial changes were made to the activity during the period of the State agency's initial review and the State agency did not receive notice of the substantial changes during its review period, and these changes are relevant to management program enforceable policies and/or affect coastal uses or resources.
                (b) The State agency may notify the Federal agency and the Director of proposed activities which the State agency believes should be subject to supplemental coordination. The State agency's notification shall include information supporting a finding of substantially different coastal effects than originally described and the relevant enforceable policies, and may recommend modifications to the proposed activity (if any) that would allow the Federal agency to implement the proposed activity consistent with the enforceable policies of the management program. State agency notification under this paragraph (b) does not remove the requirement under paragraph (a) of this section for Federal agencies to notify State agencies.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006]

              Subpart D—Consistency for Activities Requiring a Federal License or Permit

                § 930.50
                Objectives.
                The provisions of this subpart are intended to ensure that any required federal license or permit activity affecting any coastal use or resource is conducted in a manner consistent with approved management programs. The provisions of subpart I of this part are intended to supplement the provisions of this subpart for federal license or permit activities having interstate coastal effects.

                § 930.51
                Federal license or permit.
                (a) The term “federal license or permit” means any authorization that an applicant is required by law to obtain in order to conduct activities affecting any land or water use or natural resource of the coastal zone and that any Federal agency is empowered to issue to an applicant. The term “federal license or permit” does not include OCS plans, and federal license or permit activities described in detail in OCS plans, which are subject to subpart E of this part, or leases issued pursuant to lease sales conducted by a Federal agency (e.g., outer continental shelf (OCS) oil and gas lease sales conducted by the Minerals Management Service or oil and gas lease sales conducted by the Bureau of Land Management). Lease sales conducted by a Federal agency are Federal agency activities under subpart C of this part.
                (b) The term also includes the following types of renewals and major amendments which affect any coastal use or resource:
                (1) Renewals and major amendments of federal license or permit activities not previously reviewed by the State agency;
                (2) Renewals and major amendments of federal license or permit activities previously reviewed by the State agency which are filed after and are subject to management program changes not in existence at the time of original State agency review; and
                (3) Renewals and major amendments of federal license or permit activities previously reviewed by the State agency which will cause an effect on any coastal use or resource substantially different than those originally reviewed by the State agency.

                (c) The term “major amendment” of a federal license or permit activity means any subsequent federal approval that the applicant is required to obtain for modification to the previously reviewed and approved activity and where the activity permitted by issuance of the subsequent approval will affect any coastal use or resource, or, in the case of a major amendment subject to § 930.51(b)(3), affect any coastal use or resource in a way that is substantially different than the description or understanding of effects at the time of the original activity.
                (d) The term “renewals” of a federal license or permit activity means any subsequent re-issuance, re-approval or extension of an existing license or permit that the applicant is required to obtain for an activity described under paragraph (b) of this section.
                (e) The determination of substantially different coastal effects under paragraphs (b)(3), and (c) of this section is made on a case-by-case basis by the Federal agency after consulting with the State agency, and applicant. The Federal agency shall give considerable weight to the opinion of the State agency. The terms “major amendment,” “renewals” and “substantially different” shall be construed broadly to ensure that the State agency has the opportunity to review activities and coastal effects not previously reviewed.
                (f) This subpart applies to active applications. If an applicant withdraws its application to the Federal agency, then the consistency process is terminated. If the applicant reapplies to the Federal agency, then a new consistency review process will start. If a Federal agency stops or stays the Federal license or permit application process, then the consistency review period will be stopped or stayed for the same amount of time as for the Federal application process.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006]

                § 930.52
                Applicant.
                The term “applicant” means any individual, public or private corporation, partnership, association, or other entity organized or existing under the laws of any nation, State, or any State, regional, or local government, who, following management program approval, either files an application for a required individual federal license or permit, or who files a consistency certification for a required general federal license or permit under § 930.31(d) to conduct an activity affecting any coastal use or resource. The term “applicant” does not include Federal agencies applying for federal licenses or permits. Federal agency activities requiring federal licenses or permits are subject to subpart C of this part.

                § 930.53
                Listed federal license or permit activities.
                (a) State agencies shall develop a list of federal license or permit activities which affect any coastal use or resource, including reasonably foreseeable effects, and which the State agency wishes to review for consistency with the management program. The list shall be included as part of the management program, and the federal license or permit activities shall be described in terms of the specific licenses or permits involved (e.g., Corps of Engineers 404 permits, Coast Guard bridge permits). In the event the State agency chooses to review federal license or permit activities, with reasonably foreseeable coastal effects, outside of the coastal zone, it must generally describe the geographic location of such activities.
                (1) The geographic location description should encompass areas outside of the coastal zone where coastal effects from federal license or permit activities are reasonably foreseeable. The State agency should exclude geographic areas outside of the coastal zone where coastal effects are not reasonably foreseeable. Listed activities may have different geographic location descriptions, depending on the nature of the activity and its coastal effects. For example, the geographic location for activities affecting water resources or uses could be described by shared water bodies, river basins, boundaries defined under the State's coastal nonpoint pollution control program, or other ecologically identifiable areas. Federal lands located within the boundaries of a State's coastal zone are automatically included within the geographic location description; State agencies do not have to describe these areas. State agencies do have to describe the geographic location of listed activities occurring on federal lands located beyond the boundaries of a State's coastal zone.

                (2) For listed activities occurring outside of the coastal zone for which a State has not generally described the geographic location of review, States must follow the conditions for review of unlisted activities under § 930.54 of this subpart.
                (b) General concurrences for minor activities. To avoid repeated review of minor federal license or permit activities which, while individually inconsequential, cumulatively affect any coastal use or resource, the State agency, after developing conditions allowing concurrence for such activities, may issue a general public notice (see § 930.61) and general concurrence allowing similar minor work in the same geographic area to proceed without prior State agency review. In such cases, the State agency must set forth in the management program license and permit list the minor federal license or permit activities and the relevant conditions which are covered by the general concurrence. Minor federal license or permit activities which satisfy the conditions of the general concurrence are not subject to the consistency certification requirement of this subpart. Except in cases where the State agency indicates otherwise, copies of federal license or permit applications for activities subject to a general concurrence must be sent by the applicant to the State agency to allow the State agency to monitor adherence to the conditions required by such concurrence. Confidential and proprietary material within such applications may be deleted.
                (c) The license and permit list may be amended by the State agency following consultation with the affected Federal agency and approval by the Director pursuant to the program change requirements found at 15 CFR part 923, subpart H.
                (1) Consultation with the affected Federal agency means, at least 60 days prior to submitting a program change request to OCRM, a State agency shall notify in writing the relevant regional or field Federal agency staff and the head of the affected Federal agency, and request comments on the listing change. The notification shall describe the proposed change and identify the regional Federal agency staff the State has contacted for consultation.
                (2) A State agency must include in its program change request to OCRM a description of any comments received from the affected Federal agency.
                (d) No federal license or permit described on an approved list shall be issued by a Federal agency until the requirements of this subpart have been satisfied. Federal agencies shall inform applicants for listed licenses or permits of the requirements of this subpart.

                § 930.54
                Unlisted federal license or permit activities.

                (a)(1) With the assistance of Federal agencies, State agencies should monitor unlisted federal license or permit activities (e.g., by use of intergovernmental review process established pursuant to E.O. 12372, review of NEPA documents, Federal Register notices). State agencies shall notify Federal agencies, applicants, and the Director of unlisted activities affecting any coastal use or resource which require State agency review within 30 days from notice of the license or permit application, that has been submitted to the approving Federal agency, otherwise the State agency waives its right to review the unlisted activity. The waiver does not apply in cases where the State agency does not receive notice of the federal license or permit application.

                (2) Federal agencies or applicants should provide written notice of the submission of applications for federal licenses or permits for unlisted activities to the State agency. Notice to the State agency may be constructive if notice is published in an official federal public notification document or through an official State clearinghouse (i.e., the Federal Register, draft or final NEPA EISs that are submitted to the State agency, or a State's intergovernmental review process). The notice, whether actual or constructive, shall contain sufficient information for the State agency to learn of the activity, determine the activity's geographic location, and determine whether coastal effects are reasonably foreseeable.

                (b) The State agency's notification shall also request the Director's approval to review the unlisted activity and shall contain an analysis that supports the State agency's assertion that coastal effects are reasonably foreseeable. Following State agency notification to the Federal agency, applicant and the Director, the Federal agency shall not issue the license or permit until the requirements of this subpart have been satisfied, unless the Director disapproves the State agency's request to review the activity.
                (c) The Federal agency and the applicant have 15 days from receipt of the State agency notice to provide comments to the Director regarding the State agency's request to review the activity. The sole basis for the Director's approval or disapproval of the State agency's request will relate to whether the proposed activity's coastal effects are reasonably foreseeable. The Director shall issue a decision, with supporting comments, to the State agency, Federal agency and applicant within 30 days from receipt of the State agency notice. The Director may extend the decision deadline beyond 30 days due to the complexity of the issues or to address the needs of the State agency, the Federal agency, or the applicant. The Director shall consult with the State agency, the Federal agency and the applicant prior to extending the decision deadline, and shall limit the extension to the minimum time necessary to make its decision. The Director shall notify the relevant parties of the expected length of an extension.
                (d) If the Director disapproves the State agency's request, the Federal agency may approve the license or permit application and the applicant need not comply with the requirements of this subpart. If the Director approves the State agency's request, the Federal agency and applicant must comply with the consistency certification procedures of this subpart.

                (e) Following an approval by the Director, the applicant shall amend the federal application by including a consistency certification and shall provide the State agency with a copy of the certification along with necessary data and information (see §§ 930.58, 930.62 and 930.63). For the purposes of this section, concurrence by the State agency shall be conclusively presumed in the absence of a State agency objection within six months from the original Federal agency notice to the State agency (see paragraph (a) of this section) or within three months from receipt of the applicant's consistency certification and necessary data and information, whichever period terminates last.
                (f) The unlisted activity procedures in this section are provided to ensure that State agencies are afforded an opportunity to review federal license or permit activities with reasonably foreseeable coastal effects. Prior to bringing the issue before the Director, the concerned parties should discuss coastal effects and consistency. The applicant can avoid delay by simply seeking the State agency's expeditious concurrence rather than waiting for the Director's decision. If an applicant, of its own accord or after negotiations with the State agency, provides a consistency certification and necessary data and information to the State agency, the review shall be deemed to have received the Director's approval, and all of the provisions of this subpart shall apply and the State agency need not request the Director's approval. If an applicant for an unlisted activity has not subjected itself to the consistency process within the 30 day notification period contained in paragraph (a) of this section, the State agency must adhere to the unlisted activity review requirements of this section to preserve its right to review the activity.

                § 930.55
                Availability of mediation for license or permit disputes.

                In the event of a serious disagreement between a Federal and State agency regarding whether a listed or unlisted federal license or permit activity is subject to the federal consistency requirement, either party may request the OCRM mediation or Secretarial mediation services provided for in subpart G of this part; notice shall be provided to the applicant. The existence of a serious disagreement will not relieve the Federal agency from the responsibility for withholding approval of a license or permit application for an activity on an approved management program list (see § 930.53) or individually approved by the Director (see § 930.54) pending satisfaction of the requirements of this subpart. Similarly, the existence of a serious disagreement will not prevent the Federal agency from approving a license or permit activity which has not received Director approval.

                § 930.56
                State agency guidance and assistance to applicants.
                As a preliminary matter, any applicant for a federal license or permit selected for review by a State agency should obtain the views and assistance of the State agency regarding the means for ensuring that the proposed activity will be conducted in a manner consistent with the management program. As part of its assistance efforts, the State agency shall make available for public inspection copies of the management program document. Upon request by the applicant, the State agency shall identify any enforceable policies applicable to the proposed activity, based upon the information submitted to the State agency.

                § 930.57
                Consistency certifications.
                (a) Following appropriate coordination and cooperation with the State agency, all applicants for required federal licenses or permits subject to State agency review shall provide in the application to the federal licensing or permitting agency a certification that the proposed activity complies with and will be conducted in a manner consistent with the management program. At the same time, the applicant shall furnish to the State agency a copy of the certification and necessary data and information.
                (b) The applicant's consistency certification shall be in the following form: “The proposed activity complies with the enforceable policies of (name of State) approved management program and will be conducted in a manner consistent with such program.”

                § 930.58
                Necessary data and information.
                (a) The applicant shall furnish the State agency with necessary data and information along with the consistency certification. Such information and data shall include the following:
                (1) A copy of the application for the federal license or permit and
                (i) All material relevant to a State's management program provided to the Federal agency in support of the application; and
                (ii) To the extent not included in paragraphs (a)(1) or (a)(1)(i) of this section, a detailed description of the proposed activity, its associated facilities, the coastal effects, and any other information relied upon by the applicant to make its certification. Maps, diagrams, and technical data shall be submitted when a written description alone will not adequately describe the proposal;
                (2) Information specifically identified in the management program as required necessary data and information for an applicant's consistency certification. The management program as originally approved or amended (pursuant to 15 CFR part 923, subpart H) may describe data and information necessary to assess the consistency of federal license or permit activities. Necessary data and information may include completed State or local government permit applications which are required for the proposed activity, but shall not include the issued State or local permits. NEPA documents shall not be considered necessary data and information when a Federal statute requires a Federal agency to initiate the CZMA federal consistency review prior to its completion of NEPA compliance. States shall not require that the consistency certification and/or the necessary data and information be included in NEPA documents. Required data and information may not include confidential and proprietary material; and
                (3) An evaluation that includes a set of findings relating the coastal effects of the proposal and its associated facilities to the relevant enforceable policies of the management program. Applicants shall demonstrate that the activity will be consistent with the enforceable policies of the management program. Applicants shall demonstrate adequate consideration of policies which are in the nature of recommendations. Applicants need not make findings with respect to coastal effects for which the management program does not contain enforceable or recommended policies.

                (b) At the request of the applicant, interested parties who have access to information and data required by this section may provide the State agency with all or part of the material required. Furthermore, upon request by the applicant, the State agency shall provide assistance for developing the assessment and findings required by this section.
                (c) When satisfied that adequate protection against public disclosure exists, applicants should provide the State agency with confidential and proprietary information which the State agency maintains is necessary to make a reasoned decision on the consistency of the proposal. State agency requests for such information must be related to the necessity of having such information to assess adequately the coastal effects of the proposal.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006]

                § 930.59
                Multiple permit review.
                (a) Applicants shall, to the extent practicable, consolidate related federal license or permit activities affecting any coastal use or resource for State agency review. State agencies shall, to the extent practicable, provide applicants with a “one-stop” multiple permit review for consolidated permits to minimize duplication of effort and to avoid unnecessary delays.
                (b) A State agency objection to one or more of the license or permit activities submitted for consolidated review shall not prevent the applicant from receiving Federal agency approval for those license or permit activities found to be consistent with the management program.

                § 930.60
                Commencement of State agency review.
                (a) The State agency's six-month review period (see § 930.62(a)) of an applicant's consistency certification begins on the date the State agency receives the consistency certification required by § 930.57 and all the necessary data and information required by § 930.58(a).
                (1) If an applicant fails to submit a consistency certification, the State agency shall notify the applicant and the Federal agency, within 30 days of receipt of the incomplete submission, that a consistency certification satisfying § 930.57 was not received and that the State agency's six-month review period will commence on the date of receipt of the missing certification, subject to paragraph (a)(2) of this section.
                (2) If an applicant fails to submit all necessary data and information required by § 930.58(a), the State agency shall notify the applicant and the Federal agency, within 30 days of receipt of the incomplete submission, that necessary data and information described in § 930.58(a) was not received and that the State agency's six-month review period will commence on the date of receipt of the missing necessary data and information, subject to the requirement in paragraph (a) of this section that the applicant has also submitted a consistency certification. The State agency may waive the requirement in paragraph (a) of this section that all necessary data and information described in § 930.58(a) be submitted before commencement of the State agency's six-month consistency review. In the event of such a waiver, the requirements of § 930.58(a) must be satisfied prior to the end of the six-month consistency review period or the State agency may object to the consistency certification for insufficient information.
                (3) Within 30 days of receipt of the consistency certification and/or necessary data and information that was deemed missing, pursuant to paragraphs (a)(1) or (2) of this section, the State agency shall notify the applicant and Federal agency that the certification and necessary data and information required pursuant to § 930.58 is complete, the date the certification and/or necessary data and information deemed missing was received, and, that the State agency's consistency review commenced on the date of receipt. In the event of a State waiver under paragraph (a)(2) of this section, receipt of the necessary data and information deemed missing shall not alter the date the consistency review period commenced.

                (b) State agencies and applicants (and persons under subpart E of this part) may mutually agree in writing to stay the six-month consistency review period. Such an agreement shall be in writing and state a specific date on when the stay will end. The State agency shall provide a copy of the written agreement to the Federal agency and the Federal agency shall not presume State agency concurrence with an applicant's consistency certification when such a written agreement to stay the six-month consistency review period is in effect. The State agency shall not stop, stay, or otherwise alter the consistency review period without such a written agreement with the applicant.
                (c) The State agency's determination that a certification and necessary data and information under paragraph (a) of this section is complete is not a substantive review of the adequacy of the information received. If an applicant has submitted all necessary data and information required by § 930.58, then a State agency's or Federal agency's assertion that the submitted information is substantively deficient, or a State agency's or Federal agency's request for clarification of the information provided, or information or data requested that is in addition to that required by § 930.58 shall not extend the date of commencement of State agency review.
                [71 FR 827, Jan. 5, 2006]

                § 930.61
                Public participation.
                (a) Following receipt of the material described in § 930.60 the State agency shall ensure timely public notice of the proposed activity. Public notice shall be provided for the area(s) of the coastal zone likely to be affected by the proposed activity, as determined by the State agency. At the discretion of the State agency, public participation may include one or more public hearings. The State agency shall not require an applicant or a Federal agency to hold a public hearing. State agencies should restrict the period of public notice, receipt of comments, hearing proceedings and final decision-making to the minimum time necessary to reasonably inform the public, obtain sufficient comment, and develop a decision on the matter.
                (b) Content of public notice. The public notice shall:
                (1) Specify that the proposed activity is subject to review for consistency under the policies of the management program;
                (2) Provide sufficient information to serve as a basis for comment;
                (3) Specify a source for additional information; and
                (4) Specify a contact for submitting comments to the management program.
                (c) Procedural options that may be used by the State agency for issuance of public notice include, but are not limited to, public notice through an official State gazette, a local newspaper serving areas of the coastal zone likely to be affected by the activity, individual State mailings, public notice through a management program newsletter, and electronic notices, e.g., web sites. However, electronic notices, e.g., web sites, shall not be the sole source of a public notification, but may be used in conjunction with other means. Web sites may be used to provide a location for the public to obtain additional information. The State agency may require the applicant to provide the public notice. State agencies shall not require that the Federal agency provide public notice. The State agency may rely upon the public notice provided by the Federal agency reviewing the application for the federal license or permit (e.g., notice of availability of NEPA documents) if such notice satisfies the minimum requirements set forth in paragraphs (a) and (b) of this section.
                (d) Federal and State agencies are encouraged to issue joint public notices, and hold joint public hearings, whenever possible to minimize duplication of effort and to avoid unnecessary delays.

                § 930.62
                State agency concurrence with a consistency certification.

                (a) At the earliest practicable time, the State agency shall notify the Federal agency and the applicant whether the State agency concurs with or objects to a consistency certification. The State agency may issue a general concurrence for minor activities (see § 930.53(b)). Concurrence by the State agency shall be conclusively presumed if the State agency's response is not received within six months following commencement of State agency review.

                (b) If the State agency has not issued a decision within three months following commencement of State agency review, it shall notify the applicant and the Federal agency of the status of the matter and the basis for further delay.
                (c) If the State agency issues a concurrence or is conclusively presumed to concur with the applicant's consistency certification, the Federal agency may approve the federal license or permit application. Notwithstanding State agency concurrence with a consistency certification, the federal permitting agency may deny approval of the federal license or permit application. Federal agencies should not delay processing applications pending receipt of a State agency's concurrence. In the event a Federal agency determines that an application will not be approved, it shall immediately notify the applicant and the State agency.

                (d) During the period when the State agency is reviewing the consistency certification, the applicant and the State agency should attempt, if necessary, to agree upon conditions, which, if met by the applicant, would permit State agency concurrence. The parties shall also consult with the Federal agency responsible for approving the federal license or permit to ensure that proposed conditions satisfy federal as well as management program requirements (see also § 930.4).

                § 930.63
                State agency objection to a consistency certification.
                (a) If the State agency objects to the applicant's consistency certification within six months following commencement of review, it shall notify the applicant, Federal agency and Director of the objection. A State agency may assert alternative bases for its objection, as described in paragraphs (b) and (c) of this section.
                (b) State agency objections that are based on sufficient information to evaluate the applicant's consistency certification shall describe how the proposed activity is inconsistent with specific enforceable policies of the management program. The objection may describe alternative measures (if they exist) which, if adopted by the applicant, may permit the proposed activity to be conducted in a manner consistent with the enforceable policies of the management program.
                (c) A State agency objection may be based upon a determination that the applicant has failed, following a written State agency request, to supply the information required pursuant to § 930.58 or other information necessary for the State agency to determine consistency. If the State agency objects on the grounds of insufficient information, the objection shall describe the nature of the information requested and the necessity of having such information to determine the consistency of the activity with the management program. The objection may describe alternative measures (if they exist) which, if adopted by the applicant, may permit the proposed activity to be conducted in a manner consistent with the enforceable policies of the management program.
                (d) Alternatives. If a State agency proposes an alternative(s) in its objection letter, the alternative(s) shall be described with sufficient specificity to allow the applicant to determine whether to, in consultation with the State agency: adopt an alternative; abandon the project; or file an appeal under subpart H. Application of the specificity requirement demands a case specific approach. More complicated activities or alternatives generally need more information than less-complicated activities or alternatives. See § 930.121(c) for further details regarding alternatives for appeals under subpart H of this part.

                (e) A State agency objection shall include a statement to the following effect:

                  Pursuant to 15 CFR part 930, subpart H, and within 30 days from receipt of this letter, you may request that the Secretary of Commerce override this objection. In order to grant an override request, the Secretary must find that the activity is consistent with the objectives or purposes of the Coastal Zone Management Act, or is necessary in the interest of national security. A copy of the request and supporting information must be sent to the [Name of State] management program and the federal permitting or licensing agency. The Secretary may collect fees from you for administering and processing your request.

                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006]

                § 930.64
                Federal permitting agency responsibility.
                Following receipt of a State agency objection to a consistency certification, the Federal agency shall not issue the federal license or permit except as provided in subpart H of this part.

                § 930.65
                Remedial action for previously reviewed activities.
                (a) Federal and State agencies shall cooperate in their efforts to monitor federal license or permit activities in order to make certain that such activities continue to conform to both federal and State requirements.
                (b) The State agency shall notify the relevant Federal agency representative for the area involved of any federal license or permit activity which the State agency claims was:
                (1) Previously determined to be consistent with the management program, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent with the management program; or
                (2) Previously determined not to be an activity affecting any coastal use or resource, but which the State agency later maintains is being conducted or is having coastal effects substantially different than originally described and, as a result, the activity affects any coastal use or resource in a manner inconsistent with the management program.
                (c) The State agency notification shall include:
                (1) A description of the activity involved and the alleged lack of compliance with the management program;
                (2) supporting information; and
                (3) a request for appropriate remedial action. A copy of the request shall be sent to the applicant and the Director. Remedial actions shall be linked to coastal effects substantially different than originally described.
                (d) If, after 30 days following a request for remedial action, the State agency still maintains that the applicant is failing to comply substantially with the management program, the governor or State agency may file a written objection with the Director. If the Director finds that the applicant is conducting an activity that is substantially different from the approved activity, the applicant shall submit an amended or new consistency certification and supporting information to the Federal agency and to the State agency, or comply with the originally approved certification.
                (e) An applicant shall be found to be conducting an activity substantially different from the approved activity if the State agency claims and the Director finds that the activity affects any coastal use or resource substantially different than originally described by the applicant and, as a result, the activity is no longer being conducted in a manner consistent with the enforceable policies of the management program. The Director may make a finding that an applicant is conducting an activity substantially different from the approved activity only after providing 15 days for the applicant and the Federal agency to review the State agency's objection and to submit comments for the Director's consideration.

                § 930.66
                Supplemental coordination for proposed activities.
                (a) For federal license or permit proposed activities that were previously determined by the State agency to be consistent with the management program, but which have not yet begun, applicants shall further coordinate with the State agency and prepare a supplemental consistency certification if the proposed activity will affect any coastal use or resource substantially different than originally described. Substantially different coastal effects are reasonably foreseeable if:
                (1) The applicant makes substantial changes in the proposed activity that are relevant to management program enforceable policies; or
                (2) There are significant new circumstances or information relevant to the proposed activity and the proposed activity's effect on any coastal use or resource.

                (3) Substantial changes were made to the activity during the period of the State agency's initial review and the State agency did not receive notice of the substantial changes during its review period, and these changes are relevant to management program enforceable policies and/or affect coastal uses or resources.
                (b) The State agency may notify the applicant, the Federal agency and the Director of proposed activities which the State agency believes should be subject to supplemental coordination. The State agency's notification shall include information supporting a finding of substantially different coastal effects than originally described and the relevant enforceable policies, and may recommend modifications to the proposed activity (if any) that would allow the applicant to implement the proposed activity consistent with the management program. State agency notification under subsection (b) does not remove the requirement under subsection (a) for applicants to notify State agencies.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006]

              Subpart E—Consistency for Outer Continental Shelf (OCS) Exploration, Development and Production Activities

                § 930.70
                Objectives.
                The provisions of this subpart are intended to ensure that all federal license or permit activities described in detail in OCS plans and which affect any coastal use or resource are conducted in a manner consistent with approved management programs.

                § 930.71
                Federal license or permit activity described in detail.
                The term “federal license or permit activity described in detail” means any activity requiring a federal license or permit, as defined in § 930.51, which the Secretary of the Interior determines must be described in detail within an OCS plan.

                § 930.72
                Person.
                The term “person” means any individual, corporation, partnership, association, or other entity organized or existing under the laws of any State; the federal government; any State, regional, or local government; or any entity of such federal, State, regional or local government, who submits to the Secretary of the Interior, or designee following management program approval, an OCS plan which describes in detail federal license or permit activities.

                § 930.73
                OCS plan.

                (a) The term “OCS plan” means any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), and the regulations under that Act, which is submitted to the Secretary of the Interior or designee following management program approval and which describes in detail federal license or permit activities.
                (b) The requirements of this subpart do not apply to federal license or permit applications filed after management program approval for activities described in detail in OCS plans approved by the Secretary of the Interior or designee prior to management program approval.

                § 930.74
                OCS activities subject to State agency review.
                Except for States which do not anticipate coastal effects resulting from OCS activities, management program lists required pursuant to § 930.53 shall include a reference to OCS plans which describe in detail federal license or permit activities affecting any coastal use or resource.

                § 930.75
                State agency assistance to persons.

                As a preliminary matter, any person intending to submit to the Secretary of the Interior an OCS plan which describes in detail federal license or permit activities affecting any coastal use or resource should obtain the views and assistance of the State agency regarding the means for ensuring that such activities will be conducted in a manner consistent with the management program. As part of its assistance efforts, the State agency shall make available for inspection copies of the management program document. Upon request by such persons, the State agency shall identify any enforceable policies applicable to the proposed activities, based upon the information submitted to the State agency.

                § 930.76
                Submission of an OCS plan, necessary data and information and consistency certification.
                Any person submitting any OCS plan to the Secretary of the Interior or designee shall:
                (a) Any person submitting any OCS plan to the Secretary of the Interior or designee shall submit to the Secretary of the Interior or designee:
                (1) A copy of the OCS plan;
                (2) The consistency certification;
                (3) The necessary data and information required pursuant to § 930.58; and

                (4) The information submitted pursuant to the Department of the Interior's OCS operating regulations (see 30 CFR 250.203 and 250.204) and OCS information program regulations (see 30 CFR part 252).
                (b) The Secretary of the Interior or designee shall furnish the State agency with a copy of the information submitted under paragraph (a) of this section (excluding confidential and proprietary information).

                (c) The person's consistency certification shall be in the following form:

                  The proposed activities described in detail in this plan comply with (name of State(s)) approved management program(s) and will be conducted in a manner consistent with such program(s).

                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006]

                § 930.77
                Commencement of State agency review and public notice.
                (a)(1) Except as provided in § 930.60(a), State agency review of the person's consistency certification begins at the time the State agency receives the certification and information required pursuant to § 930.76(a) and (b). If a person has submitted the documents required by § 930.76(a) and (b), then a State agency's assertion that the information contained in the submitted documents is substantively deficient, or a State agency's request for clarification of the information provided, or information and data in addition to that required by § 930.76 shall not delay or otherwise change the date on which State agency review begins.
                (2) To assess consistency, the State agency shall use the information submitted pursuant to § 930.76. If a State agency wants to augment the necessary data and information required by § 930.76 to start the six-month review period for OCS plans, then the State can only do so if it amends its management program to include the information under § 930.58(a)(2).
                (3) After the State agency's review begins, if the State agency requests additional information, it shall describe in writing to the person and to the Secretary of the Interior or its designee the reasons why the information provided under § 930.76 is not adequate to complete its review, and the nature of the information requested and the necessity of having such information to determine consistency with the enforceable policies of the management program. The State agency shall make its request for additional information no later than three months after commencement of the State agency's review period. The State agency shall not request additional information after the three-month notification period described in § 930.78(a). However, the State agency may request additional information after the three-month notification period if the person or the Secretary of the Interior or its designee changes the OCS plan after the three-month notification period such that the plan describes activities or coastal effects not previously described and for which information was not previously provided pursuant to § 930.76.
                (b) Following receipt of the material described in paragraph (a) of this section, the State agency shall ensure timely public notice of the proposed activities in accordance with § 930.61.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006]

                § 930.78
                State agency concurrence or objection.

                (a) At the earliest practicable time, the State agency shall notify in writing the person, the Secretary of the Interior or designee and the Director of its concurrence with or objection to the consistency certification. State agencies should restrict the period of public notice, receipt of comments, hearing proceedings and final decision-making to the minimum time necessary to reasonably inform the public, obtain sufficient comment, and develop a decision on the matter. If the State agency has not issued a decision within three months following commencement of State agency review, it shall notify the person, the Secretary of the Interior or designee and the Director of the status of review and the basis for further delay in issuing a final decision. Notice shall be in written form and postmarked no later than three months following the commencement of the State agency's review. Concurrence by the State agency shall be conclusively presumed if the notification required by this subparagraph is not provided.
                (b) Concurrence by the State agency shall be conclusively presumed if the State agency's response to the consistency certification is not received within six months following commencement of State agency review.
                (c) If the State agency objects to one or more of the federal license or permit activities described in detail in the OCS plan, it must provide a separate discussion for each objection in accordance with § 930.63.

                § 930.79
                Effect of State agency concurrence.
                (a) If the State agency issues a concurrence or is conclusively presumed to concur with the person's consistency certification, the person will not be required to submit additional consistency certifications and supporting information for State agency review at the time federal applications are actually filed for the federal licenses or permits to which such concurrence applies.
                (b) Unless the State agency indicates otherwise, copies of federal license or permit applications for activities described in detail in an OCS plan which has received State agency concurrence shall be sent by the person to the State agency to allow the State agency to monitor the activities. Confidential and proprietary material within such applications may be deleted.

                § 930.80
                Federal permitting agency responsibility.
                Following receipt of a State agency objection to a consistency certification related to federal license or permit activities described in detail in an OCS plan, the Federal agency shall not issue any of such licenses or permits except as provided in subpart H of this part.

                § 930.81
                Multiple permit review.
                (a) A person submitting a consistency certification for federal license or permit activities described in detail in an OCS plan is strongly encouraged to work with other Federal agencies in an effort to include, for consolidated State agency review, consistency certifications and supporting data and information applicable to OCS-related federal license or permit activities affecting any coastal use or resource which are not required to be described in detail in OCS plans but which are subject to State agency consistency review (e.g., Corps of Engineer permits for the placement of structures on the OCS and for dredging and the transportation of dredged material, Environmental Protection Agency air and water quality permits for offshore operations and onshore support and processing facilities). In the event the person does not consolidate such OCS-related permit activities with the State agency's review of the OCS plan, such activities will remain subject to individual State agency review under the requirements of subpart D of this part.
                (b) A State agency objection to one or more of the OCS-related federal license or permit activities submitted for consolidated review shall not prevent the person from receiving Federal agency approval:
                (1) For those OCS-related license or permit activities found by the State agency to be consistent with the management program; and
                (2) For the license or permit activities described in detail in the OCS plan provided the State agency concurs with the consistency certification for such plan. Similarly, a State agency objection to the consistency certification for an OCS plan shall not prevent the person from receiving Federal agency approval for those OCS-related license or permit activities determined by the State agency to be consistent with the management program.

                § 930.82
                Amended OCS plans.
                If the State agency objects to the person's OCS plan consistency certification, and/or if, pursuant to subpart H of this part, the Secretary does not determine that each of the objected to federal license or permit activities described in detail in such plan is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security, and if the person still intends to conduct the activities described in the OCS plan, the person shall submit an amended plan to the Secretary of the Interior or designee along with a consistency certification and data and information necessary to support the amended consistency certification. The data and information shall specifically describe modifications made to the original OCS plan, and the manner in which such modifications will ensure that all of the proposed federal license or permit activities described in detail in the amended plan will be conducted in a manner consistent with the management program. When satisfied that the person has met the requirements of the OCSLA and this subpart, the Secretary of the Interior or designee shall furnish the State agency with a copy of the amended OCS plan (excluding confidential and proprietary information), necessary data and information and consistency certification.
                [71 FR 829, Jan. 5, 2006]

                § 930.83
                Review of amended OCS plans; public notice.
                After receipt of a copy of the amended OCS plan, consistency certification, and necessary data and information, State agency review shall begin. The requirements of §§ 930.77, 930.78, and 930.79, apply to the review of amended OCS plans, except that the applicable time period for purposes of concurrence by conclusive presumption shall be three months instead of six months.

                § 930.84
                Continuing State agency objections.
                If the State agency objects to the consistency certification for an amended OCS plan, the prohibition in § 930.80 against Federal agency approval of licenses or permits for activities described in detail in such a plan applies, further Secretarial review pursuant to subpart H of this part may take place, and the development of an additional amended OCS plan and consistency certification may be required pursuant to §§ 930.82 through 930.83.

                § 930.85
                Failure to substantially comply with an approved OCS plan.
                (a) The Department of the Interior and State agencies shall cooperate in their efforts to monitor federally licensed or permitted activities described in detail OCS plans to make certain that such activities continue to conform to both federal and State requirements.
                (b) If a State agency claims that a person is failing to substantially comply with an approved OCS plan subject to the requirements of this subpart, and such failure allegedly involves the conduct of activities affecting any coastal use or resource in a manner that is not consistent with the approved management program, the State agency shall transmit its claim to the Minerals Management Service region involved. Such claim shall include a description of the specific activity involved and the alleged lack of compliance with the OCS plan, and a request for appropriate remedial action. A copy of the claim shall be sent to the person.

                (c) If a person fails to substantially comply with an approved OCS plan, as determined by Minerals Management Service, pursuant to the Outer Continental Shelf Lands Act and applicable regulations, the person shall come into compliance with the approved plan or shall submit an amendment to such plan or a new plan to Minerals Management Service. When satisfied that the person has met the requirements of the OCSLA and this subpart, and the Secretary of the Interior or designee has made the determination required under 30 CFR 250.203(n)(2) or § 250.204(q)(2), as applicable, the Secretary of the Interior or designee shall furnish the State agency with a copy of the amended OCS plan (excluding proprietary information), necessary data and information and consistency certification. Sections 930.82 through 930.84 shall apply to further State agency review of the consistency certification for the amended or new plan.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006]

              Subpart F—Consistency for Federal Assistance to State and Local Governments

                § 930.90
                Objectives.
                The provisions of this subpart are intended to ensure that federal assistance to applicant agencies for activities affecting any coastal use or resource is granted only when such activities are consistent with approved management programs. The provisions of subpart I of this part are intended to supplement the provisions of this subpart for federal assistance activities having interstate coastal effects.

                § 930.91
                Federal assistance.
                The term “federal assistance” means assistance provided under a federal program to an applicant agency through grant or contractual arrangements, loans, subsidies, guarantees, insurance, or other form of financial aid.

                § 930.92
                Applicant agency.
                The term “applicant agency” means any unit of State or local government, or any related public entity such as a special purpose district, which, following management program approval, submits an application for federal assistance.

                § 930.93
                Intergovernmental review process.
                The term “intergovernmental review process” describes the procedures established by States pursuant to E.O. 12372, “Intergovernmental Review of Federal Programs,” and implementing regulations of the review of federal financial assistance to applicant agencies.

                § 930.94
                State review process for consistency.
                (a) States with approved management programs should review applications from applicant agencies for federal assistance in accordance with E.O. 12372 and implementing regulations.

                (b) The applicant agency shall submit an application for federal assistance to the State agency for consistency review, through the intergovernmental review process or by direct submission to the State agency, for any proposed federal assistance activity that is listed in the management program as a type of activity that will have a reasonably foreseeable effect on any coastal use or resource and occurring within the coastal zone (see § 930.95(a)) or within a described geographic area outside of the coastal zone (see § 930.95(b)).
                (c) Applicant agency evaluation. The applicant agency shall provide to the State agency, in addition to the federal application, a brief evaluation on the relationship of the proposed activity and any reasonably foreseeable coastal effects to the enforceable policies of the management program.

                § 930.95
                Guidance provided by the State agency.
                (a) State agencies should include within the management program a listing of specific types of federal assistance programs subject to a consistency review. Such a listing, and any amendments, will require prior State agency consultation with affected Federal agencies and approval by the Director as a program change.

                (b) In the event the State agency chooses to review applications for federal assistance activities outside of the coastal zone but with reasonably foreseeable coastal effects, the State agency shall develop a federal assistance provision within the management program generally describing the geographic area (e.g., coastal floodplains) within which federal assistance activities will be subject to review. This provision, and any refinements, will require prior State agency consultation with affected Federal agencies and approval by the Director as a program change. Listed activities may have different geographic location descriptions, depending on the nature of the activity and its effects on any coastal use or resource. For example, the geographic location for activities affecting water resources or uses could be described by shared water bodies, river basins, boundaries defined under the coastal nonpoint pollution control program, or other ecologically identifiable areas.
                (c) The State agency shall provide copies of any federal assistance list or geographic provision, and any refinements, to Federal agencies and units of applicant agencies empowered to undertake federally assisted activities within the coastal zone or described geographic area.

                (d) For review of unlisted federal assistance activities, the State agency shall follow the same procedures as it would follow for review of listed federal assistance activities outside of the coastal zone or the described geographic area. (See § 930.98.)

                § 930.96
                Consistency review.
                (a)(1) If the State agency does not object to the proposed activity, the Federal agency may grant the federal assistance to the applicant agency. Notwithstanding State agency consistency approval for the proposed project, the Federal agency may deny assistance to the applicant agency. Federal agencies should not delay processing (so long as they do not approve) applications pending receipt of a State agency approval or objection. In the event a Federal agency determines that an application will not be approved, it shall immediately notify the applicant agency and the State agency.
                (2) During the period when the State agency is reviewing the activity, the applicant agency and the State agency should attempt, if necessary, to agree upon conditions which, if met by the applicant agency, would permit State agency approval. The parties shall also consult with the Federal agency responsible for providing the federal assistance to ensure that proposed conditions satisfy federal requirements as well as management program requirements.
                (b) If the State agency objects to the proposed project, the State agency shall notify the applicant agency, Federal agency and the Director of the objection pursuant to § 930.63.

                § 930.97
                Federal assisting agency responsibility.
                Following receipt of a State agency objection, the Federal agency shall not approve assistance for the activity except as provided in subpart H of this part.

                § 930.98
                Federally assisted activities outside of the coastal zone or the described geographic area.

                State agencies should monitor proposed federal assistance activities outside of the coastal zone or the described geographic area (e.g., by use of the intergovernmental review process, review of NEPA documents, Federal Register) and shall immediately notify applicant agencies, Federal agencies, and any other agency or office which may be identified by the State in its intergovernmental review process pursuant to E.O. 12372 of proposed activities which will have reasonably foreseeable coastal effects and which the State agency is reviewing for consistency with the management program. Notification shall also be sent by the State agency to the Director. The Director, in his/her discretion, may review the State agency's decision to review the activity. The Director may disapprove the State agency's decision to review the activity only if the Director finds that the activity will not affect any coastal use or resource. The Director shall be guided by the provisions in § 930.54(c). For purposes of this subpart, State agencies must inform the parties of objections within the time period permitted under the intergovernmental review process, otherwise the State agency waives its right to object to the proposed activity.

                § 930.99
                Availability of mediation for federal assistance disputes.

                In the event of a serious disagreement between a Federal agency and the State agency regarding whether a federal assistance activity is subject to the consistency requirement either party may request the OCRM mediation or Secretarial mediation services provided for in subpart G of this part. The existence of a serious disagreement will not relieve the Federal agency from the responsibility for withholding federal assistance for the activity pending satisfaction of the requirements of this subpart, except in cases where the Director has disapproved a State agency decision to review an activity.

                § 930.100
                Remedial action for previously reviewed activities.
                (a) Federal and State agencies shall cooperate in their efforts to monitor federal assistance activities in order to make certain that such activities continue to conform to both federal and State requirements.
                (b) The State agency shall notify the relevant Federal agency representative for the area involved of any federal assistance activity which the State agency claims was:
                (1) Previously determined to be consistent with the management program, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent with the management program, or
                (2) Previously determined not to be a project affecting any coastal use or resource, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result the project affects a coastal use or resource in a manner inconsistent with the management program.
                (c) The State agency notification shall include:
                (1) A description of the activity involved and the alleged lack of compliance with the management program;
                (2) supporting information; and
                (3) a request for appropriate remedial action. A copy of the request shall be sent to the applicant agency and the Director.
                (d) If, after 30 days following a request for remedial action, the State agency still maintains that the applicant agency is failing to comply substantially with the management program, the State agency may file a written objection with the Director. If the Director finds that the applicant agency is conducting an activity that is substantially different from the approved activity, the State agency may reinitiate its review of the activity, or the applicant agency may conduct the activity as it was originally approved.
                (e) An applicant agency shall be found to be conducting an activity substantially different from the approved activity if the State agency claims and the Director finds that the activity affects any coastal use or resource substantially different than originally determined by the State agency and, as a result, the activity is no longer being conducted in a manner consistent with the management program. The Director may make a finding that an applicant agency is conducting an activity substantially different from the approved activity only after providing a reasonable opportunity for the applicant agency and the Federal agency to review the State agency's objection and to submit comments for the Director's consideration.

                § 930.101
                Supplemental coordination for proposed activities.
                (a) For federal assistance activities that were previously determined by the State agency to be consistent with the management program, but which have not yet begun, the applicant agency shall further coordinate with the State agency if the proposed activity will affect any coastal use or resource substantially different than originally described. Substantially different coastal effects are reasonably foreseeable if:
                (1) The applicant agency makes substantial changes in the proposed activity that are relevant to management program enforceable policies; or
                (2) There are significant new circumstances or information relevant to the proposed activity and the proposed activity's effect on any coastal use or resource.
                (3) Substantial changes were made to the activity during the period of the State agency's initial review and the State agency did not receive notice of the substantial changes during its review period, and these changes are relevant to management program enforceable policies and/or affect coastal uses or resources.

                (b) The State agency may notify the applicant agency, the Federal agency and the Director of proposed activities which the State agency believes should be subject to supplemental coordination. The State agency's notification shall include information supporting a finding of substantially different coastal effects than originally described and the relevant enforceable policies, and may recommend modifications to the proposed activity (if any) that would allow the applicant agency to implement the proposed activity consistent with the management program. State agency notification under paragraph (b) of this section does not remove the requirement under paragraph (a) of this section for applicant agencies to notify State agencies.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006]

              Subpart G—Secretarial Mediation

                § 930.110
                Objectives.
                The purpose of this subpart is to describe mediation procedures which Federal and State agencies may use to attempt to resolve serious disagreements which arise during the administration of approved management programs.

                § 930.111
                OCRM mediation.
                The availability of mediation does not preclude use by the parties of alternative means for resolving their disagreement. In the event a serious disagreement arises, the parties are strongly encouraged to make every effort to resolve the disagreement informally. OCRM shall be available to assist the parties in these efforts.

                § 930.112
                Request for Secretarial mediation.
                (a) The Secretary or other head of a Federal agency, or the Governor or the State agency, may notify the Secretary in writing of the existence of a serious disagreement, and may request that the Secretary seek to mediate the disagreement. A copy of the written request must be sent to the agency with which the requesting agency disagrees, to the Assistant Administrator, and to the Director.
                (b) Within 15 days following receipt of a request for mediation the disagreeing agency shall transmit a written response to the Secretary, and to the agency requesting mediation, indicating whether it wishes to participate in the mediation process. If the disagreeing agency declines the offer to enter into mediation efforts, it must indicate the basis for its refusal in its response. Upon receipt of a refusal to participate in mediation efforts, the Secretary shall seek to persuade the disagreeing agency to reconsider its decision and enter into mediation efforts. If the disagreeing agencies do not all agree to participate, the Secretary will cease efforts to provide mediation assistance.

                § 930.113
                Public hearings.
                (a) If the parties agree to the mediation process, the Secretary shall appoint a hearing officer who shall schedule a hearing in the local area concerned. The hearing officer shall give the parties at least 30 days notice of the time and place set for the hearing and shall provide timely public notice of the hearing.
                (b) At the time public notice is provided, the Federal and State agencies shall provide the public with convenient access to public data and information related to the serious disagreement.
                (c) Hearings shall be informal and shall be conducted by the hearing officer with the objective of securing in a timely fashion information related to the disagreement. The Federal and State agencies, as well as other interested parties, may offer information at the hearing subject to the hearing officer's supervision as to the extent and manner of presentation. A party may also provide the hearing officer with written comments. Hearings will be recorded and the hearing officer shall provide transcripts and copies of written information offered at the hearing to the Federal and State agency parties. The public may inspect and copy the transcripts and written information provided to these agencies.

                § 930.114
                Secretarial mediation efforts.

                (a) Following the close of the hearing, the hearing officer shall transmit the hearing record to the Secretary. Upon receipt of the hearing record, the Secretary shall schedule a mediation conference to be attended by representatives from the Office of the Secretary, the disagreeing Federal and State agencies, and any other interested parties whose participation is deemed necessary by the Secretary. The Secretary shall provide the parties at least 10 days notice of the time and place set for the mediation conference.
                (b) Secretarial mediation efforts shall last only so long as the Federal and State agencies agree to participate. The Secretary shall confer with the Executive Office of the President, as necessary, during the mediation process.

                § 930.115
                Termination of mediation.
                Mediation shall terminate:
                (a) At any time the Federal and State agencies agree to a resolution of the serious disagreement,
                (b) If one of the agencies withdraws from mediation,
                (c) In the event the agencies fail to reach a resolution of the disagreement within 15 days following Secretarial conference efforts, and the agencies do not agree to extend mediation beyond that period, or
                (d) For other good cause.

                § 930.116
                Judicial review.
                The availability of the mediation services provided in this subpart is not intended expressly or implicitly to limit the parties' use of alternate forums to resolve disputes. Specifically, judicial review where otherwise available by law may be sought by any party to a serious disagreement without first having exhausted the mediation process provided for in this subpart.

              Subpart H—Appeal to the Secretary for Review Related to the Objectives of the Act and National Security Interests

                § 930.120
                Objectives.
                This subpart sets forth the procedures by which the Secretary may find that a federal license or permit activity, including those described in detail in an OCS plan, or a federal assistance activity, which a State agency has found to be inconsistent with the enforceable policies of the management program, may be federally approved because the activity is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security.

                § 930.121
                Consistent with the objectives or purposes of the Act.
                A federal license or permit activity, or a federal assistance activity, is “consistent with the objectives or purposes of the Act” if it satisfies each of the following three requirements:
                (a) The activity furthers the national interest as articulated in § 302 or § 303 of the Act, in a significant or substantial manner,
                (b) The national interest furthered by the activity outweighs the activity's adverse coastal effects, when those effects are considered separately or cumulatively.
                (c) There is no reasonable alternative available which would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program. The Secretary may consider but is not limited to considering previous appeal decisions, alternatives described in state objection letters and alternatives and other information submitted during the appeal. The Secretary shall not consider an alternative unless the State agency submits a statement, in a brief or other supporting material, to the Secretary that the alternative would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006]

                § 930.122
                Necessary in the interest of national security.

                A federal license or permit activity, or a federal assistance activity, is “necessary in the interest of national security” if a national defense or other national security interest would be significantly impaired were the activity not permitted to go forward as proposed. Secretarial review of national security issues shall be aided by information submitted by the Department of Defense or other interested Federal agencies. The views of such agencies, while not binding, shall be given considerable weight by the Secretary. The Secretary will seek information to determine whether the objected-to activity directly supports national defense or other essential national security objectives.

                § 930.123
                Definitions.
                (a) The “appellant” is the applicant, person or applicant agency submitting an appeal to the Secretary pursuant to this subpart.
                (b) For the purposes of this subpart, the “Federal agency” is the agency whose proposed issuance of a license or permit or grant of assistance is the subject of the appeal to the Secretary.
                (c) The term “energy project” means projects related to the siting, construction, expansion, or operation of any facility designed to explore, develop, produce, transmit or transport energy or energy resources that are subject to review by a coastal State under subparts D, E, F or I of this part.
                (d) The term “consolidated record” means the record of all decisions made or actions taken by the lead Federal permitting agency or by another Federal or State administrative agency or officer, maintained by the lead Federal permitting agency, with the cooperation of Federal and State administrative agencies, related to any federal authorization for the permitting, approval or other authorization of an energy project.
                (e) The term “lead Federal permitting agency” means the Federal agency required to: issue a federal license or permit under subparts D or I of this part; approve an OCS plan under subpart E of this part; or provide federal financial assistance under subparts F or I of this part for an energy project.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006]

                § 930.124
                Computation of time.
                The first day of any period of time allowed or prescribed by these rules, shall not be included in the computation of the designated period of time. The last day of the time period computed shall be included unless it is a Saturday, Sunday or a Federal holiday, in which case the period runs until the next day which is not one of the aforementioned days.

                § 930.125
                Notice of appeal and application fee to the Secretary.
                (a) To obtain Secretarial review of a State agency objection, the appellant shall file a notice of appeal with the Secretary within 30 days of receipt of a State agency objection.
                (b) The appellant's notice of appeal shall include a statement explaining the appellant's basis for appeal of the State agency's objection under §§ 930.121 and/or 930.122 of this title, including any procedural arguments pursuant to § 930.129(b). Bases for appeal (including procedural arguments) not identified in the appellant's notice of appeal shall not be considered by the Secretary.
                (c) The appellant's notice of appeal shall be accompanied by payment of an application fee or a request for a waiver of such fees. An appeal involving a project valued in excess of $1 million shall be considered a major appeal and the application fee is $500.00. All other appeals shall be considered minor appeals and the application fee is $200.00.
                (d) The appellant shall send the Notice of appeal to the Secretary, Herbert C. Hoover Building, 14th Street and Constitution Avenue, NW., Washington, DC 20230; a copy of the notice of appeal to the objecting State agency; and to the Assistant General Counsel for Ocean Services (GCOS), 1305 East West Highway, Room 6111 SSMC 4, Silver Spring, Maryland 20910.
                (e) No extension of time will be permitted for the filing of a notice of appeal.

                (f) The Secretary shall waive any or all fees if the Secretary concludes upon review of the appellant's fee waiver request that such fees impose an economic hardship on appellant. The request for a waiver and demonstration of economic hardship shall accompany the notice of appeal. If the Secretary denies a request for a waiver and the appellant wishes to continue with the appeal, the appellant shall submit the appropriate fees to the Secretary within 10 days of receipt of the Secretary's denial. If the fees are not received by the 10th day, then the Secretary shall dismiss the appeal.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 830, Jan. 5, 2006; 71 FR 75865, Dec. 19, 2006]

                § 930.126
                Consistency appeal processing fees.

                The Secretary shall collect as a processing fee such other fees from the appellant as are necessary to recover the full costs of administering and processing appeals to the Secretary under section 307(c) of the Act. All processing fees shall be assessed and collected no later than 60 days after publication of the Federal Register Notice closing the decision record. Failure to submit processing fees shall be grounds for extending the time for issuance of a decision pursuant to section 319(a)(2) of the Act (16 U.S.C. 1465(a)(2)) and § 930.130 of this subpart.

                § 930.127
                Briefs and supporting materials.
                (a) Within 30 days of submitting the notice of appeal, as specified in § 930.125, the appellant shall submit to the Secretary its principal brief accompanied by the appendix described in paragraph (c) of this section. Within 60 days of the appellant's filing of the notice of appeal, the State agency shall submit to the Secretary its principal brief accompanied by a supplemental appendix, if any, described in paragraph (c) of this section. Not later than 20 days after appellant's receipt of the State agency's brief, appellant may submit to the Secretary a reply brief accompanied by a supplemental appendix, if any, described in paragraph (c) of this section.
                (b) A principal brief shall not exceed 30 double-spaced pages; appellant's reply brief shall not exceed 15 double-spaced pages. Any table of contents, table of citations, or certifications of mailing and/or service do not count toward the page limitations.
                (c) The appellant must prepare and file an appendix with its brief containing:
                (1) Its consistency certification;
                (2) The State agency's objection; and
                (3) All such supporting documentation and material as the appellant deems necessary for consideration by the Secretary. The State agency (or appellant on reply) shall cite to appellant's appendix or may file a supplemental appendix to include additional documentation and material as the State agency (or appellant on reply) deems necessary for consideration by the Secretary that was not included in appellant's appendix (or the State agency's supplemental appendix). The parties are encouraged to discuss the contents of appellant's appendix in order to include in the appendix as much of the supporting documentation and material as any party deems necessary for consideration by the Secretary. In an appeal for an energy project, supporting documentation and material shall be limited to the parts of the consolidated record described in paragraph (i)(1) of this section to which the appellant or the State agency wishes to direct the Secretary's attention.
                (d)(1) Both the appellant and State agency shall send two copies of their briefs and supporting materials to the Office of General Counsel for Ocean Services (GCOS), NOAA, 1305 East West Highway, Room 6111 SSMC4, Silver Spring, Maryland 20910. One copy must be in an electronic format compatible (to the extent practicable) with the website maintained by the Secretary to provide public information concerning appeals under the CZMA.
                (2) The appellant and State agency shall serve on each other at least one copy of their briefs, supporting materials, and all requests and communications submitted to the Secretary, at the same time that materials are submitted to the Secretary.
                (3) Each submission to the Secretary shall be accompanied by a certification of mailing and/or service on the other party. Service may be done by mail or hand delivery. Materials or briefs submitted to the Secretary not in compliance with this subpart may be disregarded and not entered into the Secretary's decision record of the appeal.

                (e)(1) The Secretary has broad authority to implement procedures governing the consistency appeal process to ensure efficiency and fairness to all parties. The appeal decision record is composed of the briefs and supporting materials submitted by the State agency and appellant, public comments and the comments, if any, submitted by interested Federal agencies. As noted in § 930.128(c)(1), the Secretary gives deference to the views of interested Federal agencies when commenting in their areas of expertise and takes notice of relevant administrative decisions, including licenses or permits, related to an appellant's proposed activity when submitted to the appeal decision record. The Secretary determines the content of the appeal decision record. The Secretary may determine, on the Secretary's own initiative, that additional information is necessary to the Secretary's decision, including documents prepared by Federal agencies pursuant to the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and the Endangered Species Act (16 U.S.C. 1531 et seq.), and may request such information.
                (2) To promote efficient use of time and resources, the Secretary may, upon the Secretary's own initiative, require the appellant and the State agency to submit briefs and supporting materials relevant only to procedural or jurisdictional issues presented in the Notice of Appeal or identified by the Secretary. Following a decision of the procedural or jurisdictional issues, the Secretary may require briefs on substantive issues raised by the appeal if necessary.
                (3) The Secretary may require the appellant and the State agency to submit briefs in addition to those described in paragraphs (a) and (e) of this section as necessary.
                (4) Any briefs not requested or required by the Secretary may be disregarded and not entered into the Secretary's decision record of the appeal.
                (f) The appellant bears the burden of submitting evidence in support of its appeal and the burden of persuasion.
                (g) The Secretary may extend the time for submission, and length, of briefs and supporting materials for good cause.
                (h) Where a State agency objection is based in whole or in part on a lack of information, the Secretary shall limit the record on appeal to information previously submitted to the State agency and relevant comments thereon, except as provided for in § 930.129(b) and (c).
                (i) Appeal Decision Record for Energy Projects. The provisions of this paragraph apply only to appeals for energy projects.
                (1) The Secretary shall use the consolidated record maintained by the lead Federal permitting agency as the initial record for an appeal under this subpart for energy projects.
                (2) The appellant's notice of appeal required by § 930.125(a) and (b) must be accompanied by two copies of the consolidated record maintained by the lead Federal permitting agency. One copy of the consolidated record must be in an electronic format compatible (to the extent practicable) with the website maintained by the Secretary to provide public information concerning appeals under the CZMA. Notwithstanding § 930.125(e), the Secretary may extend the time for filing a notice of appeal in connection with an energy project for good cause shown to allow appellant additional time to prepare the consolidated record for filing.
                (3) The appellant and the State agency shall submit briefs as required by paragraphs (a), (b) and (c) of this section.
                (4) Supplemental information may be accepted and included in the decision record by the Secretary only as allowed by § 930.130(a)(2).
                [71 FR 830, Jan. 5, 2006, as amended at 71 FR 75865, Dec. 19, 2006]

                § 930.128
                Public notice, comment period, and public hearing.

                (a) The Secretary shall provide public notice of the appeal within 30 days after the receipt of the Notice of Appeal by publishing a Notice in the Federal Register and in a publication of general circulation in the immediate area of the coastal zone likely to be affected by the proposed activity.
                (b) Except in the case of appeals involving energy projects, the Secretary shall provide a 30-day period for the public and interested Federal agencies to comment on the appeal. Notice of the public and Federal agency comment period shall be provided in the Notice required in paragraph (a) of this section.

                (c)(1) The Secretary shall accord greater weight to those Federal agencies whose comments are within the subject areas of their technical expertise.
                (2) The Secretary may, on the Secretary's own initiative or upon written request, for good cause shown, reopen the period for Federal agency comments before the closure of the decision record.

                (d) Except in the case of appeals involving energy projects, the Secretary may hold a public hearing in response to a request or on the Secretary's own initiative. A request for a public hearing must be filed with the Secretary within 30 days of the publication of the Notice in the Federal Register required in paragraph (a) of this section. If a hearing is held by the Secretary, it shall be noticed in the Federal Register and guided by the procedures described within § 930.113. If a hearing is held by the Secretary, the Federal Register notice for the hearing shall reopen the public and Federal agency comment period and shall close such comment period 10 days after the hearing.
                [71 FR 831, Jan. 5, 2006]

                § 930.129
                Dismissal, remand, stay, and procedural override.
                (a) The Secretary may dismiss an appeal for good cause. A dismissal is the final agency action. Good cause shall include, but is not limited to:
                (1) Failure of the appellant to submit a notice of appeal within the required 30-day period.
                (2) Failure of the appellant to submit a brief or supporting materials within the required period;
                (3) Failure of the appellant to pay a required fee;
                (4) Denial by the Federal agency of the federal license, permit or assistance application; or
                (5) Failure of the appellant to base the appeal on grounds that the proposed activity is either consistent with the objectives or purposes of the Act, or necessary in the interest of national security.
                (b) If the State agency's consistency objection is not in compliance with section 307 of the Act and the regulations contained in subparts D, E, F, or I of this part, the Secretary shall override the State's objection. The Secretary may make this determination as a threshold matter.
                (c) The Secretary may stay the processing of an appeal in accordance with § 930.130.
                (d) The Secretary may remand an appeal to the State agency for reconsideration of the project's consistency with the enforceable policies of the State's management program if significant new information relevant to the State agency's objection, not previously provided to the State agency during its consistency review, is submitted to the Secretary. The Secretary shall determine a time period for the remand to the State agency. The time period for remand must be completed within the period described in § 930.130 for the development of the Secretary's decision record. If the State agency responds that it still objects to the activity, then the Secretary shall continue to process the appeal. If the State agency concurs that the activity is consistent with the enforceable policies of the State's management program, then the Secretary shall declare the appeal moot and notify the Federal agency that the activity may be federally approved.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 831, Jan. 5, 2006]

                § 930.130
                Closure of the decision record and issuance of decision.

                (a)(1) With the exception of paragraph (a)(2) of this section, the Secretary shall close the decision record not later than 160 days after the date that the Secretary's Notice of Appeal is published in the Federal Register under § 930.128(a). After closing the decision record, the Secretary shall immediately publish a notice in the Federal Register stating that the decision record has been closed. The notice shall also state that the Secretary shall not consider additional information, briefs or comments.
                (2) The Secretary may stay the closing of the decision record during the 160-day period described in paragraph (a)(1) of this section:

                (i) For a specific period mutually agreed to in writing by the appellant and the State agency; or

                (ii) As the Secretary determines necessary to receive, on an expedited basis:
                (A) Any supplemental information specifically requested by the Secretary to complete a consistency review under the Act; or
                (B) Any clarifying information submitted by a party to the proceeding related to information in the consolidated record compiled by the lead Federal permitting agency.
                (3) The Secretary may only stay the 160-day period described in paragraph (a)(1) of this section for a period not to exceed 60 days.

                (b) Not later than 60 days after the date of publication of a Federal Register notice stating when the decision record for an appeal has been closed, the Secretary shall issue a decision or publish a notice in the Federal Register explaining why a decision cannot be issued at that time. The Secretary shall issue a decision not later than 15 days after the date of publication of a Federal Register notice explaining why a decision cannot be issued within the 60-day period.
                (c) The decision of the Secretary shall constitute final agency action for the purposes of the Administrative Procedure Act.
                (d) In reviewing an appeal, the Secretary shall find that a proposed federal license or permit activity, or a federal assistance activity, is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security, when the information in the decision record supports this conclusion.
                (e)(1) If the Secretary finds that the proposed activity is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security, the Federal agency may approve the activity.
                (2) If the Secretary does not make either of these findings, the Federal agency shall not approve the activity.
                [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 831, Jan. 5, 2006]

                § 930.131
                Review initiated by the Secretary.
                (a) The Secretary may, on her own initiative, choose to consider whether a federal license or permit activity, or a federal assistance activity, is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security. Secretarial review shall only be initiated after the completion of State agency review pursuant to the relevant subpart. The Secretary's decision to review the activity may result from an independent concern regarding the activity or a request from interested parties. If the Secretary decides to initiate review, notification shall be sent to the applicant, person or applicant agency, and to the relevant Federal and State agencies. The notice shall include a statement describing the reasons for the review.
                (b) With the exception of application and processing fees, all other provisions under this subpart governing the processing and administering of appeals will apply to Secretarial reviews initiated under this section.

              Subpart I—Consistency of Federal Activities Having Interstate Coastal Effects

                § 930.150
                Objectives.
                (a) A federal activity may affect coastal uses or resources of a State other than the State in which the activity will occur. Effective coastal management is fostered by ensuring that activities having such reasonably foreseeable interstate coastal effects are conducted consistent with the enforceable policies of the management program of each affected State.
                (b) The application of the federal consistency requirement to activities having interstate coastal effects is addressed by this subpart in order to encourage cooperation among States in dealing with activities having interstate coastal effects, and to provide States, local governments, Federal agencies, and the public with a predictable framework for evaluating the consistency of these federal activities under the Act.

                § 930.151
                Interstate coastal effect.

                The term “interstate coastal effect” means any reasonably foreseeable effect resulting from a federal action occurring in one State of the United States on any coastal use or resource of another State that has a federally approved management program. Effects are not just environmental effects, but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal action when added to other past, present, and reasonably foreseeable actions, regardless of what person(s) undertake(s) such actions. The term “affects” means have an effect on. Effects on any coastal use or resource may also be referred to as “coastal effects.”

                § 930.152
                Application.
                (a) This subpart applies to federal actions having interstate coastal effects, and supplements the relevant requirements contained in 15 CFR part 930, subparts C (Consistency for Federal Agency Activities), D (Consistency for Activities Requiring a Federal License or Permit), E (Consistency for OCS Exploration, Development and Production Activities) and F (Consistency for Federal Assistance to State and Local Governments). Except as otherwise provided by this subpart, the requirements of other relevant subparts of part 930 apply to activities having interstate coastal effects.
                (b) Federal consistency is a requirement on federal actions affecting any coastal use or resource of a State with a federally-approved management program, regardless of the activities' locations (including States without a federally approved management program). The federal consistency requirement does not alter a coastal State's jurisdiction. The federal consistency requirement does not give States the authority to review the application of laws, regulations, or policies of any other State. Rather, the Act allows a management program to review federal actions and may preclude federal action as a result of a State objection, even if the objecting State is not the State in which the activity will occur. Such objections to interstate activities under subparts D, E and F may be overridden by the Secretary pursuant to subpart H of this part.

                § 930.153
                Coordination between States in developing coastal management policies.
                Coastal States are encouraged to give high priority to:
                (a) Coordinating State coastal management planning, policies, and programs with respect to contiguous areas of such States;
                (b) Studying, planning, and implementing unified coastal management policies with respect to such areas; and
                (c) Establishing an effective mechanism, and adopting a federal-State consultation procedure, for the identification, examination, and cooperative resolution of mutual problems with respect to activities having interstate coastal effects.

                § 930.154
                Listing activities subject to routine interstate consistency review.
                (a) Geographic location of listed activities. Each coastal State intending to conduct a consistency review of federal activities occurring in another State shall:
                (1) List those Federal agency activities, federal license or permit activities, and federal assistance activities that the State intends to routinely review for consistency; and
                (2) Generally describe the geographic location for each type of listed activity.
                (b) In establishing the geographic location of interstate consistency review, each State must notify and consult with the State in which the listed activity will occur, as well as with relevant Federal agencies.
                (c) Demonstrate effects. In describing the geographic location for interstate consistency reviews, the State agency shall provide information to the Director that coastal effects from listed activities occurring within the geographic area are reasonably foreseeable. Listed activities may have different geographic location descriptions, depending on the nature of the activity and its effects on any coastal use or resource. For example, the geographic location for activities affecting water resources or uses could be described by shared water bodies, river basins, boundaries under the State's coastal nonpoint pollution control program, or other ecologically identifiable areas.
                (d) Director approval. State agencies shall submit their lists and geographic location descriptions developed under this section to the Director for approval as a routine program change under subpart H of 15 CFR part 923. Each State submitting this program change shall include evidence of consultation with States in which the activity will occur, evidence of consultation with relevant Federal agencies, and any agreements with other States and Federal agencies regarding coordination of activities.
                (e) State failure to list interstate activities. A coastal State that fails to list federal activities subject to interstate review, or to describe the geographic location for these activities, under paragraphs (a) through (d) of this section, may not exercise its right to review activities occurring in other States, until the State meets the listing requirements. The listing of activities subject to interstate consistency review, and the description of the geographic location for those listed activities, should ensure that coastal States have the opportunity to review relevant activities occurring in other States. States may amend their lists and geographic location descriptions pursuant to the requirements of this subpart and subpart H of 15 CFR part 923. States which have complied with paragraphs (a) through (d) of this section may also use the procedure at § 930.54 to review unlisted activities. States will have a transition period of 18 months from the date this rule takes effect. In that time a State may review an interstate activity pursuant to § 930.54 of this part. After the transition period States must comply with this subpart in order to review interstate activities.

                § 930.155
                Federal and State agency coordination.
                (a) Identifying activities subject to the consistency requirement. The provisions of this subpart are neither a substitute for nor eliminate the statutory requirement of federal consistency with the enforceable policies of management programs for all activities affecting any coastal use or resource. Federal agencies shall submit consistency determinations to relevant State agencies for activities having coastal effects, regardless of location, and regardless of whether the activity is listed.
                (b) Notifying affected States. Federal agencies, applicants or applicant agencies proposing activities listed for interstate consistency review, or determined by the Federal agency, applicant or applicant agency to have an effect on any coastal use or resource, shall notify each affected coastal State of the proposed activity. State agencies may also notify Federal agencies and applicants of listed and unlisted activities subject to State agency review and the requirements of this subpart.
                (c) Notice of intent to review. Within 30 days from receipt of the consistency determination or certification and necessary data and information, or within 30 days from receipt of notice of a listed federal assistance activity, each State intending to review an activity occurring in another State must notify the applicant or applicant agency (if any), the Federal agency, the State in which the activity will occur (either the State's management program, or if the State does not have a management program, the Governor's office), and the Director, of its intent to review the activity for consistency. The State's notice to the parties must be received by the 30th day after receipt of the consistency determination or certification. If a State fails, within the 30 days, to notify the applicant or applicant agency (if any), the Federal agency, the State in which the activity will occur, and the Director, of its intent to review the activity, then the State waives its right to review the activity for consistency. The waiver does not apply where the State intending to review the activity does not receive notice of the activity.

                § 930.156
                Content of a consistency determination or certification and State agency response.
                (a) The Federal agency or applicant is encouraged to prepare one determination or certification that will satisfy the requirements of all affected States with approved management programs.
                (b) State agency responses shall follow the applicable requirements contained in subparts C, D, E and F of this part.

                § 930.157
                Mediation and informal negotiations.
                The relevant provisions contained in subpart G of this part are available for resolution of disputes between affected States, relevant Federal agencies, and applicants or applicant agencies The parties to the dispute are also encouraged to use alternative means for resolving their disagreement. OCRM shall be available to assist the parties in these efforts.

            PARTS 932-933 [RESERVED]

          SUBCHAPTER C—REGULATIONS OF THE NATIONAL WEATHER SERVICE

            Pt. 946
            PART 946—MODERNIZATION OF THE NATIONAL WEATHER SERVICE

              Sec.
              946.1
              Purpose.
              946.2
              Definitions.
              946.3
              Notification of change of operations and restructuring.
              946.4
              Menu of services.
              946.5
              Change in operations—commissioning and decommissioning.
              946.6
              Change in operations—transferring responsibility and moving field offices.
              946.7
              Preparation of proposed certification for restructuring.
              946.8
              Review of proposed certification for restructuring.
              946.9
              Certification of restructuring.
              946.10
              Liaison officer.
              Appendix A to Part 946—National Weather Service Modernization Criteria
              Appendix B to Part 946—Airport Tables

              Authority:
              Title VII of Pub. L. 102-567, 106 Stat. 4303 15 U.S.C. 313 note

              Source:
              58 FR 64091, Dec. 3, 1993, unless otherwise noted.

              § 946.1
              Purpose.
              (a) This part sets forth the procedures for certification by the Secretary of Commerce that the closure, consolidation, automation or relocation of any field office of the National Weather Service (NWS) pursuant to the implementation of the Strategic Plan for the Modernization of the NWS will not result in any degradation of weather services. Section 706 of Pub. L. 102-567 requires that no such field office be closed, consolidated, automated, or relocated until such certification is made. This part distinguishes these modernization activities which require certification from those changes in operations at a field office which do not require certification.
              (b) This part, including specifically these sections which specify when certifications are required, is intended to promote confidence that public safety is being adequately considered during the modernization process. While some of the terms used in these regulations may be identical to those used by the Office of Personnel Management, the General Services Administration, or by NOAA in personnel regulations, this part does not affect or supersede those regulations. In particular, a determination that the move of a field office is not a “relocation” for purposes of these regulations does not affect an employee's rights to relocation assistance, discontinued service retirement, severance pay, or grade and pay retention.

              § 946.2
              Definitions.

                Automate (or automation) means to replace employees performing surface observations at a field office with automated weather service observation equipment. For the purposes of this definition, an employee performing surface observations at a field office is replaced when that office, after installing such equipment, reduces or eliminates its responsibility for taking surface observations and removes the employee from that field office, or formally requests the employee to cease performing all observational responsibilities at that office. Automate does not include temporarily reducing the hours of operation during which a field office is responsible for surface observations or augmenting/backing up an ASOS when such reduction results from an unplanned decrease in staff.

                Category 1 radar means an existing NWS radar which is to be replaced by a NEX-RAD on the same site or on an adjacent site from which the two radars cannot operate concurrently. A Category 1 radar must be dismantled when the existing tower prevents building a replacement NEX-RAD on the same site or operationally demonstrating and commissioning a replacement NEX-RAD on an adjacent site by physically blocking its beam. A Category 1 radar must be turned off when it prevents operationally demonstrating and commissioning a replacement NEX-RAD on an adjacent site by creating substantial electromagnetic interference.

                Change operations at a field office means to transfer service responsibility, commission weather observation systems, decommission a NWS radar, move an entire field office to a new location inside the local commuting and service area, or significantly change the staffing level of a field office except where the staffing change constitutes a consolidation or automation or where there is an unplanned decrease in staff.

                Close (or closure) means to remove all weather services, equipment, and personnel from a filed office. It does not include a consolidation, automation, or relocation or a move of a field office to another location within the current local commuting and service area.

                Commission means to officially charge a new observational technology (e.g, NEXRAD and ASOS) with responsibility for providing weather data within a defined service area or to charge a new weather office support system (e.g, AWIPS) with responsibility for supporting office operations.

                Committee means the Modernization Transition Committee established by sec. 707 of Pub. L. 102-567.

                Consolidate (or consolidation) means to remove some positions from a field office (without closing that office) after those responsibilities have been reduced or eliminated by the commissioning of one or more NEXRADS, the decommissioning of the radar operated by that office, if any, and the combination of that office's responsibilities with those of another field office. Consolidate does not include temporarily reducing the hours during which a field office is responsible for operating a radar when such reduction results from an unplanned decrease in staff.

                Decommission (or permanently decommission) means to permanently withdraw existing official responsibility for providing weather data or weather office support from an existing technology which includes turning off the technology. It does not include temporarily withdrawing responsibility for providing radar data where this action results from:
              (1) System failure;
              (2) The need to dismantle a Category 1 radar to allow the construction of or the operational demonstration and commissioning of a replacement NEX-RAD; or
              (3) The need to turn off a Category 1 radar to allow the operational demonstration and commissioning of a replacement NEX-RAD.

                Field office means a National Weather Service Office (WSO) or a National Weather Service Forecast Office (WSFO).

                Inventory of services means all of those weather services from those listed on the menu of services that are provided to the public by a field office in its service area prior to a transition action.

                Local Commuting Area means the population center (or two or more neighboring ones) served by an existing field office and includes those surrounding localities that can reasonably be considered part of this single area for transportation purposes. The Local Commuting Area for any field office located in a Metropolitan Area defined by the Office of Management and Budget for statistical purposes shall be the Metropolitan Statistical Area or Primary Metropolitan Statistical Area.

                Menu of services means the basic weather services provided by NWS field offices as listed in § 946.4.

                National Implementation Plan means the plan submitted to Congress as part of the budget justification documents for Fiscal Year 1994 and for each subsequent fiscal year until the modernization is complete.

                Regional Director means the Director of one of the six geographical regions of the NWS.

                Relocate (or relocation) means to move an entire field office, including all personnel positions, equipment and service responsibility to a location outside the current local commuting or service area of that field office.

                Responsible Meteorologist means an employee of the NWS in charge of the office that will be responsible for providing weather services to the area affected by a closure, consolidation, automation, or relocation of a field office.

                Restructure means to close, consolidate, automate, or relocate a field office.

                Secretary means the Secretary of Commerce or his or her delegate.

                Service area means the geographical area for which an existing field office provides weather services or conducts observations.

                Strategic Plan means the 10 year strategic plan for the modernization of NWS which was submitted to the Congress by the Secretary on March 10, 1989.

                Unplanned decrease in staff means a temporary reduction in the number of employees available for duty at a field office resulting from employee retirement, resignation, extended sick leave or emergency leave, or voluntary acceptance of training or of a position outside that field office.

                Weather service means a service or product provided to a service area by a field office.
              [58 FR 64091, Dec. 3, 1993, as amended at 59 FR 44314, Aug. 29, 1994]

              § 946.3
              Notification of changes in operations and restructuring.
              (a) Beginning with the Fiscal Year 1994 budget submission to Congress and until the modernization is complete, the NWS will submit to Congress annually a National Implementation Plan. The NWS may amend a Plan prior to the submission of the next Plan to include modifications provided that notification of any additional proposed changes in operations or identification of any additional proposed restructuring actions shall be provided to Congress at least 90 days prior to the date of the action.
              (b) The NWS will neither change operations at, nor restructure, any field office after September 30, 1993, pursuant to the implementation of the Strategic Plan unless it has provided notification of the relevant action in the most current edition of the National Implementation Plan, or an amendment thereof, and has complied with all requirements of these regulations.

              § 946.4
              Menu of services.
              The following are the basic weather services provided by NWS field offices:
              (a) Surface Observations
              (b) Upper Air Observations
              (c) Radar Observations
              (d) Public Forecasts, Statements, and Warnings
              (e) Aviation Forecasts, Statements, and Warnings
              (f) Marine Forecasts, Statements, and Warnings
              (g) Hydrologic Forecasts and Warnings
              (h) Fire Weather Forecasts and Warnings
              (i) Agricultural Forecasts and Advisories
              (j) NOAA Weather Radio Broadcasts
              (k) Climatological Services
              (l) Emergency Management Support
              (m) Special Products and Service Programs

              § 946.5
              Change in operations—commissioning and decommissioning.
              (a) Before commissioning any new NEXRAD or ASOS weather observation system, the NWS shall prepare a Commissioning Report documenting that the system involved will perform to the Government's specifications; the system has been tested on site and performs reliably; satisfactory maintenance support is in place; sufficient staff with adequate training are available to operate the system; technical coordination with weather service users has been completed; and the system satisfactorily supports field office operations.

              (b) The Report required by paragraph (a) of this section shall be based on the scientific and technical criteria set forth in the NWS' NEXRAD and ASOS Commissioning Plans, as appropriate, which criteria shall be published in the Federal Register as the final commissioning criteria in accordance with sec. 704(b)(1) of the Act. In the case of an ASOS commissioning, the Report shall also document that the NWS has consulted with the Federal Aviation Administration (FAA) and has determined that the weather services provided after commissioning will continue to be in full compliance with the applicable FAA flight aviation rules.

              (c) Before decommissioning any NWS radar, the NWS shall prepare a Decommissioning Report documenting that all replacement radars needed to provide equal coverage have been commissioned; confirmation of services with users has been completed; and that the radar being decommissioned is no longer needed to support field office operations. The Decommissioning Report shall be based on the scientific and technical criteria contained in the NWS' Radar Decommissioning Plan, which criteria shall be published in the Federal Register as the final decommissioning criteria in accordance with the requirements of sec. 704(b)(1) of the Act.
              (d) If the final commissioning criteria significantly modify the criteria upon which the previous commissioning of a NEXRAD and/or ASOS were based, the NWS shall confirm that the relevant system conforms with the final criteria adopted. The NWS shall not decommission any NWS radar until the final criteria have been adopted.

              § 946.6
              Change in operations—transferring responsibility and moving field offices.
              (a) After providing any notification required by § 946.3(b), NWS may change operations at a field office to implement the Strategic Plan, including:
              (1) Transferring official responsibility for taking radar observations to a NEXRAD Weather Service Forecast Office (NWSFO) or a NEXRAD Weather Service Office (NWSO) that is being established as a future Weather Forecast Office following commissioning of the NEXRAD at the new office;
              (2) Transferring official responsibility for taking observations from a Category 1 radar to a backup radar or radars prior to constructing and/or operating a replacement NEXRAD. Before transferring responsibility, the Responsible Meteorologist shall document that technical coordination with users has been completed and that the transition to the replacement NEXRAD can be completed expeditiously;
              (3) Transferring its service responsibility for issuing watches, warnings, forecasts and other products to a NWSFO or NWSO;
              (4) Significantly reducing its staffing level by transferring or reassigning personnel to support the service responsibilities transferred under paragraph (a)(3) of this section provided that the field office continues to assign the appropriate number of positions established by the NWS Operations Manual to carry out its observation responsibilities; and
              (5) Moving an entire field office to a location within the local commuting and service area of that office.
              (b) A field office may not significantly reduce its staffing level assigned to support any observation responsibility, including those responsibilities transferred under paragraph (a)(2) of this section and those retained under paragraph (a)(4) of this section, until the Secretary has certified that the automation and/or consolidation will not degrade service in accordance with § 946.7.

              § 946.7
              Preparation of proposed certification for restructuring.

              (a) Whenever it becomes appropriate to restructure a field office identified in the National Implementation Plan, but prior to taking such action, the Responsible Meteorologist shall make a determination that there will be no degradation of service based on the final criteria published in the Federal Register in accordance with sec. 704 of the Act and recommend a proposed certification. The proposed certification may address all related restructuring actions that occur as part of a coordinated step described in the National Implementation Plan.
              (b) The proposed certification shall include:
              (1) A description of local weather characteristics and weather-related concerns which affect the weather services provided within the service area;
              (2) A detailed comparison of the inventory of services provided within the service area prior to such action and the services to be provided after such action;
              (3) Any recent or expected modernization of NWS operations which will enhance services to the affected area;
              (4) An identification of any area within any state which will not receive NEXRAD coverage at an elevation of 10,000 feet;

              (5) Evidence based upon operational demonstration of modernized NWS operations which support a determination that no degradation in service will result;

              (6) Any report of the Committee issued under sec. 707(c) of the Act; and
              (7) The Responsible Meteorologist's determination that there will be no degradation of service.
              (c) If the restructuring proposed to be certified involves the commissioning of a NEXRAD, the Responsible Meteorologist shall also consider the following evidence from operational demonstration of modernized operations in reaching the conclusion that no degradation of service will result:
              (1) The Commissioning Report containing the elements described in § 946.5(a);
              (2) The Decommissioning Report containing the elements described in § 946.5(c); and
              (3) The Confirmation of Services Report prepared by the NWS in accordance with paragraph (e) of this section.
              (d) If the restructuring proposed to be certified involves the commissioning of an ASOS unit, the Responsible Meteorologist shall also consider the following evidence from operational demonstration of modernized operations in reaching the conclusion that no degradation of service will result:
              (1) The Commissioning Report containing the elements described in § 946.5(a);

              (2) The NWS Surface Observation Modernization Report documenting that manual observations being discontinued are no longer needed to provide mission field services; based on the final scientific and technical criteria (including all requirements and procedures) published in the Federal Register in accordance with section 704(b)(2) of the act; and
              (3) The Confirmation of Services Report prepared by the NWS in accordance with paragraph (e) of this section.

              (e) The Confirmation of Services Report required by paragraphs (c) and (d) of this section shall include a list of those users who have been contacted during the confirmation process, to document that services have not been degraded. These users shall include the appropriate media and emergency managers in the service area and the appropriate federal and state agencies including specifically the FAA if the restructuring involves a field office located at an airport and consultation with the FAA has not been conducted in accordance with § 946.5(b). This Report shall be based on the scientific and technical criteria set forth in the Internal and External Communication and Coordination Plan for the Modernization and Associated Restructuring of the National Weather Service, which criteria shall be included in the final certification criteria published in the Federal Register in accordance with sec. 704(b)(2) of the Act.
              (f) If the restructuring proposed to be certified involves the relocation of a field office, the Responsible Meteorologist shall also consider the following evidence in reaching the conclusion that no degradation of service will result:
              (1) Evidence based upon operational demonstration during earlier modernization actions in which an entire field office was moved from one location to another including specifically the impact of such moves on services;
              (2) A checklist of all operational tests and inspections that will be performed at the new location to ensure that the relocated equipment is fully operational;
              (3) A list of all users notified prior to the relocation, and a list of the contacts that will be made with the relevant users to confirm operational status after the relocation; and
              (4) Comments received from notified users and those received during the public comment period.

              § 946.8
              Review of proposed certification for restructuring.
              The Responsible Meteorologist shall transmit the proposed certification and the accompanying documentation to the Regional Director for review. The Regional Director may amend or supplement the documentation provided subsequent readers can easily identify his or her amendments or supplements. If the Regional Director agrees with the proposed certification, he or she shall endorse the proposed certification, and transmit it along with all the accompanying documentation to the Secretary. A copy of any proposed certification shall be provided to the Committee upon request of the Committee.

              § 946.9
              Certification of restructuring.

              (a) The Secretary shall publish each proposed certification in the Federal Register at least 60 days prior to certification. If, after consideration of the public comments received, the Secretary agrees that the proposed restructuring will not result in any degradation of service to the service area, he or she shall so certify by submitting a certification report to Congress. Upon transmittal of the certification by the secretary, NWS shall promptly publish the certification in the Federal Register stating where copies of the certification and the accompanying documents may be obtained.
              (b) The Responsible Meteorologist may restructure only after the certification has been submitted to Congress.
              (c) Any field office for which restructuring has been certified under this section shall also be subject to additional certification if that office is closed during stage 2 of the modernization. No field office will close before January 1, 1996.

              § 946.10
              Liaison officer.
              Prior to restructuring a field office, the Responsible Meteorologist shall designate at least one person in the affected service area to act as a liaison officer for at least a 2-year period whose duties shall be:
              (a) Provide timely information regarding the activities of the NWS which may affect service to the community including specifically modernization and restructuring activities; and
              (b) Work with area users, including persons associated with general aviation, civil defense, emergency preparedness, and the news media, with respect to the provision of timely weather warnings and forecasts.

              Pt. 946, App. A
              Appendix A to Part 946—National Weather Service Modernization Criteria
              I. Modernization Criteria for Actions Not Requiring Certification
              (A) Commissioning of New Weather Observation Systems
              (1) Automated Surface Observation Systems (ASOS)

                Purpose: Successful commissioning for full operational use requires a demonstration, by tests and other means, that the ASOS equipment, as installed in the field office, meets its technical requirements; that the prescribed operating, maintenance, and logistic support elements are in place; that operations have been properly staffed with trained personnel and that the equipment can be operated with all other installed mating elements of the modernized NWS system.

                Note:
                It may be necessary to incorporate work-arounds to complete some of the items listed below in a timely and cost-effective manner. A work-around provides for an alternative method of meeting a commissioning criteria through the application of a pre-approved operational procedure implemented on a temporary basis, for example, by human augmentation of the observation for the occurrence of freezing rain, until such time as a freezing rain sensor has been accepted for operational use with ASOS. The ASOS Plan referenced below includes a process for recommending, approving, and documenting work arounds and requires that they be tracked as open items until they can be eliminated by implementation of the originally intended capability.

                References: The criteria and evaluation elements for commissioning are set forth and further detailed in the NWS-Sponsored Automated Surface Observing System (ASOS) Site Component Commissioning Plan (the ASOS Plan), more specifically in Addendum I, Appendix D of the ASOS Site Component Commissioning Evaluation Package (the ASOS Package).

                Criteria: a. ASOS Acceptance Test: The site component acceptance test, which includes objective tests to demonstrate that the ASOS, as installed at the given site, meets its technical specifications, has been successfully completed in accordance with item 1a, p. D-2 of Appendix D of the ASOS Package.

              b. Sensor Siting: Sensor sitings provide representative observations in accordance with Appendix C of the ASOS Package, Guidance for Evaluating Representativeness of ASOS Observations and item 1b, p. D-2 of Appendix D of the ASOS Package.

              c. Initialization Parameters: Initialization parameters are in agreement with source information provided by the ASOS Program Office, in accordance with item 1c, pp. D-2 & D-3 of Appendix D of the ASOS Package.
              d. Sensor Performance Verification: Sensor performance has been verified in accordance with the requirements stated in the ASOS Site Technical Manual and item 1d, p. D-3 of the ASOS Package.
              e. Field Modification Kits/Firmware Installed: All critical field modification kits and firmware for the site as required by attachments 3a & b (pp. D-45 & D-46) or memorandum issued to the regions, have been installed on the ASOS in accordance with item 1e, p. D-4 of Appendix of the ASOS Package.
              f. Operations and Maintenance Documentation: A full set of operations and maintenance documentation is available in accordance with items 2a-h, pp. D-5 & D-6 of Appendix D of the ASOS Package.
              g. Notification of and Technical Coordination with Users: All affected users have been notified of the initial date for ASOS operations and have received a technical coordination package in accordance with item 2i, pp. D-6 & D-7 of Appendix D of the ASOS Package.
              h. Availability of Trained Operations Personnel: Adequate operations staff are available, training materials are available, and required training has been completed, per section 3.2.3.1 of the ASOS Plan, in accordance with items 3a-c, p. D-8 of Appendix D of the ASOS package.
              i. Maintenance Capability: Proper maintenance personnel and support systems and arrangements are available in accordance with items 4a-e, pp. D-9 & D-10 of Appendix D of the ASOS Package.
              j. Performance of Site Interfaces: The equipment can be operated in all of its required modes and in conjunction with all of its interfacing equipment per the detailed checklists of items 5a-b, pp. D-11 & D-19 of Appendix D of the ASOS Package.
              k. Support of Associated NWS Forecasting and Warning Services: The equipment provides proper support of NWS forecasting and warning services and archiving, including operation of all specified automatic and manually augmented modes per the checklist, items 6a-e, pp. D-20 to D-29, of Appendix D of the ASOS Package.
              l. Service Backup Capabilities: Personnel, equipment, and supporting services are available and capable of providing required backup readings and services in support of operations when primary equipment is inoperable in accordance with items 7a-g, pp. D-30 to D-32, of Appendix D of the ASOS Package.
              m. Augmentation Capabilities: Personnel are available and trained to provide augmentation of ASOS observations in accordance with augmentation procedures, items 8a-c, p. D-33 of Appendix D of the ASOS Package.
              n. Representativeness of Observations: Observations are representative of the hydrometeorological conditions of the observing location as determined by a period of observation of at least 60 days prior to commissioning in accordance with Appendix C and item 6e, pp. D-27 to D-29 of Appendix D of the ASOS Package.
              (2) WSR-88D Radar System

                Purpose: Successful commissioning for full operational use requires a demonstration, by tests and other means, that the WSR-88D radar system, as installed in the field office, meets its technical requirements; that the prescribed operating, maintenance, and logistic support elements are in place; that operations have been properly staffed with trained personnel; and that the equipment can be operated with all other installed mating elements of the modernized NWS system.

                Note:
                It may be necessary to incorporate work-arounds to complete some of the items listed below in a timely and cost-effective manner. A work-around provides for an alternative method of meeting a commissioning criteria through the application for a pre-approved operational procedure implemented on a temporary basis. The WSR-88D Plan referenced below includes a process for recommending, approving, and documenting work arounds and requires that they be tracked as open items until they can be eliminated by implementation of the originally intended capability.

                Reference: The criteria and evaluation elements for commissioning are set forth and further detailed in the NWS-Sponsored WSR-88D Site Component Commissioning Plan (the 88D Plan) and an Attachment to that Plan, called the WSR-88D Site Component Commissioning Evaluation Package (the WSR-88D Package).

                Criteria: a. WSR-88D Radar Acceptance Test: The site component acceptance test, which includes objective tests to demonstrate that the WSR-88D radar, as installed at the given site, meets its technical specifications, has been successfully completed in accordance with items 1a-f, p. A-2 of Appendix A of the WSR-88D Package.
              b. Availability of Trained Operations and Maintenance Personnel: Adequate operations and maintenance staffs are available, training materials are available, and required training has been completed in accordance with items 2a-h, pp. A-3 & A-4 of Appendix A of the WSR-88D Package.

              c. Satisfactory Operation of System Interfaces: The system can be operated in all of its required modes and in conjunction with all of its interfacing equipment in accordance with items 3a-e, p. A-5 of Appendix A of the WSR-88D Package.

              d. Satisfactory Support of Associated NWS Forecasting and Warning Services: The system provides proper support of NWS forecasting and warning services, including at least 96 percent availability of the radar coded message for a period of 30 consecutive days prior to commissioning in accordance with items 4a-kk, pp. A-6 to A-17 of Appendix A of the WSR-88D Package.
              e. Service Backup Capabilities: Service backup capabilities function properly when the primary system is inoperable in accordance with items 5a-e, p. A-18 of Appendix A of the WSR-88D Package.
              f. Documentation for Operations and Maintenance: A full set of operations and maintenance documentation is available in accordance with items 6a-n, pp. A-19 to A-25 of Appendix A of the WSR-88D Package.
              g. Spare Parts and Test Equipment: A full complement of spare parts and test equipment is available on site in accordance with items 7a-e, p. A-26, of Appendix A of the WSR-88D Package.
              (B) Decommissioning an Outdated NWS Radar

                Purpose: Successful decommissioning of an old radar requires assurance that the existing radar is no longer needed to support delivery of services and products and local office operations.

                References: The criteria and evaluation elements for decommissioning are set forth and further detailed in the NWS-Sponsored Network and Local Warning Radars (Including Adjunct Equipment) Site Component Decommissioning Plan (the Plan), more specifically in Appendix B to that Plan, called the Site Component Decommissioning Evaluating Package, and in Section 3.3 of the Internal and External Communication and Coordination Plan for the Modernization and Associated Restructuring of the Weather Service.

                Criteria: a. Replacing WSR-88D(s) Commissioning/User Service Confirmation: The replacing WSR-88D(s) have been commissioned and user confirmation of services has been successfully completed, i.e., all valid user complaints related to actual system performance have been satisfactorily resolved, in accordance with items 1a-c, p. B-10 of Appendix B of the Plan.
              b. Operation Not Dependent on Existing Radar: The outdated radar is not required for service coverage, in accordance with items 2a-c, p. B-11 of Appendix B of the Plan.
              c. Notification of Users: Adequate notification of users has been provided, in accordance with items 3a-f, pp. B-12 & B-13 of Appendix B of the Plan.
              d. Disposal of Existing Radar: Preparations for disposal of the old existing radar have been completed, in accordance with items 4a-d, pp. B-14 & B-15 of Appendix B of the Plan.
              (C) Evaluating Staffing Needs for Field Offices in Affected Areas

                References: The criteria and evaluation elements are set forth and further detailed in the ASOS and WSR-88D Evaluation Packages and in the Human Resources and Position Management Plan for the National Weather Service Modernization and Associated Restructuring (the Human Resources Plan).

                Criteria: 1. Availability of Trained Operations and Maintenance Personnel at a NEXRAD Weather Service Forecast Office or NEXRAD Weather Service Office: Adequate operations and maintenance staffs are available to commission a WSR-88D, specifically criterion b. set forth in section I.A.2. of this Appendix which includes meeting the Stage 1 staffing levels set forth in chapter 3 of the Human Resources Plan.
              2. Availability of Trained Operations and Maintenance Personnel at any field office receiving an ASOS: Adequate operations and maintenance staff are available to meet the requirements for commissioning an ASOS, specifically criteria h and i set forth in section I.A.1 of this Appendix.
              II. Criteria for Modernization Actions Requiring Certification
              (A) Modernization Criteria Common to all Types of Certifications (Except as Noted)
              1. Notification: Advanced notification and the expected date of the proposed certification have been provided in the National Implementation Plan.
              2. Local Weather Characteristics and Weather Related Concerns: A description of local weather characteristics and weather related concerns which affect the weather services provided to the affected service area is provided.
              3. Comparison of Services: A comparison of services before and after the proposed action demonstrates that all services currently provided to the affected service area will continue to be provided with no degradation of services.
              4. Recent or Excepted Modernization of NWS Operations in the Affected Service Area: A description of recent or expected modernization of NWS operations in the affected service area is provided.
              5. NEXRAD Network Coverage: NEXRAD network coverage or gaps in coverage at 10,000 feet over the affected service area are identified.

              6. Air Safety Appraisal (applies only to relocation and closure of field offices at an airport): Verification that there will be no degradation of service that affects aircraft safety has been made by conducting an air safety appraisal in consultation with the Federal Aviation Administration.

              7. Evaluation of Services to In-state Users (applies only to relocation and closure of the only field office in a state): Verification that there will be no degradation of weather services provided to the state has been made by evaluating the effect on weather services provided to in-State users.
              8. Liaison Officer: Arrangements have been made to retain a Liaison Officer in the affected service area for at least two years to provide timely information regarding the activities of the NWS which may affect service to the community, including modernization and restructuring; and to work with area weather service users, including persons associated with general aviation, civil defense, emergency preparedness, and the news media, with respect to the provision of timely weather warnings and forecasts.
              9. Meteorologist-In-Charge's (MIC) Recommendation to Certify: The MIC of the future WFO that will have responsibility for the affected service area has recommended certification in accordance with 15 CFR 946.7(a).
              10. Regional Director's Certification: The cognizant Regional Director has approved the MIC's recommended certification of no degradation of service to the affected service area in accordance with 15 CFR 946.8.
              (B) Modernization Criteria Unique to Consolidation Certifications
              1. WSR-88D Commissioning: All necessary WSR-88D radars have been successfully commissioned in accordance with the criteria set forth in section I.A.2. of this Appendix.
              2. User Confirmation of Services: All valid user complaints related to actual system performance have been satisfactorily resolved in accordance with section 3.3 of the Internal and External Communication and Coordination Plan for the Modernization and Associated Restructuring of the National Weather Service.
              3. Decommissioning of Existing Radar: The existing radar, if any, has been successfully decommissioned in accordance with the criteria set forth in section I.B. of this Appendix.
              (C) Modernization Criteria Unique to Relocation Certifications
              1. Approval of Proposed Relocation Checklist: The cognizant regional director has approved a proposed relocation checklist setting forth the necessary elements in the relocation process to assure that all affected users will be given advanced notification of the relocation, that delivery of NWS services and products will not be interrupted during the office relocation, and that the office to be relocated will resume full operation at the new facility expeditiously so as to minimize the service backup period.

                Specific Elements: a. Notification of and Technical Coordination with Users: The proposed relocation checklist provides for the notification of and technical coordination with all affected users.
              b. Identification and Preparation of Backup Sites: The proposed relocation checklist identifies the necessary backup sites and the steps necessary to prepare to use backup sites to ensure service coverage during the move and checkout period.
              c. Start of Service Backup: The proposed relocation checklist provides for invocation of service backup by designated sites prior to office relocation.
              d. Systems, Furniture and Communications: The proposed relocation checklist identifies the steps necessary to move all systems and furniture to the new facility and to install communications at the new facility.
              e. Installation and Checkout: The proposed relocation checklist identifies all steps to install and checkout systems and furniture and to connect to communications at the new facility.
              f. Validation of Systems Operability and Service Delivery: The proposed relocation checklist provides for validation of system operability and service delivery from the new facility.

              2. Publishing of the Proposed Relocation Checklist and Evidence form Completed Moves: The proposed relocation checklist and the evidence from other similar office moves that have been completed, have been published in the Federal Register for public comment. The evidence from the other office moves indicates that they have been successfully completed.

              3. Resolution of Public Comments Received: All responsive public comments received from publication, in the Federal Register, of the checklists and of the evidence from completed moves are satisfactorily answered.
              (D) Modernization Criteria Unique to Automation Certifications
              1. Compliance with flight aviation rules (applies on airports only): Consultation with the Federal Aviation Administration (FAA) has verified that the weather services provided after the commissioning of the relevant ASOS unit(s) will be in full compliance with applicable Federal Aviation Regulations promulgated by the FAA.
              2. ASOS Commissioning: The relevant ASOS unit(s) have been successfully commissioned in accordance with the criteria set forth in section I.A.1 of Appendix A to the Weather Service Modernization Regulations, 15 CFR part 946.

              3. User Confirmation of Services: Any valid user complaints related to actual system performance received since commissioning of the ASOS have been satisfactorily resolved and the issues addressed in the MIC's recommendation for certification.
              4. Aviation Observation Requirement: At sites subject to automation certification, all surface observations and reports required for aviation services can be generated by an ASOS augmented as necessary by non-NWS personnel.
              a. The ASOS observation will be augmented/backed-up to the level specified in Appendix B as described in the Summary Chart of the FAA's Weather Observation Service Standards.
              b. The transition checklist has been signed by the appropriate Region Systems Operations Division Chief (applies to service level A, B and C airports only).
              c. Thunderstorm occurrence is reported in the ASOS observation through the use of a lightning sensor (applies to service level D airports only, excluding Homer, Alaska).
              d. Freezing rain occurrence is reported in the ASOS observation through the use of a freezing rain sensor. Among service level D airports, this criterion is not applicable to Ely, Nevada and Lander, Wyoming.
              5. Pilot Education and Outreach Completed: The Air Safety Foundation has conducted a pilot education and outreach effort to educate pilots on the use of automated observations and measure their understanding and acceptance of automated observing systems, and the MTC has had an opportunity to review the results of this effort (applies to service level D airports only).
              6. General Surface Observation Requirement: The total observations available are adequate to support the required inventory of services to users in the affected area. All necessary hydrometeorological data and information are available through ASOS as augmented in accordance with this section, through those elements reported as supplementary data by the relevant Weather Forecast Office(s), or through other complementary sources. The adequacy of the total surface observation is addressed in the MTC's recommendation for certification.

                ER21JY97.000

              (E) Modernization Criteria Unique to Closure Certifications

              1. Consolidation Certification: If the field office proposed for closure has or will be consolidated, as defined in § 946.2 of the basic modernization regulations, this action has been completed as evidenced by the approved certification or can be completed as evidenced by all of the documentation that all of the requirements of sections II.A. and II.B of this Annex have been completed.
              2. Automation Certification: If the field office proposed for closure has or will be automated, as defined in § 946.2 of the basic modernization regulations, this action has been completed as evidenced by the approved certification or can be completed as evidenced by documentation that all of the requirements of sections II.A. and II.C. of this Annex has been completed.
              3. Remaining Services and/or Observations: All remaining service and/or observational responsibilities, if applicable to the field office proposed for closure, have been transmitted as addressed in the MIC's recommendation for certification.
              4. User Confirmation of Services: Any valid user complaints received related to provision of weather services have been satisfactorily resolved and the issues addressed in the MIC's recommendation for certification.
              5. Warning and Forecast Verification: Warning and forecast verification statistics, produced in accordance with the Closure Certification Verification Plan, have been utilized in support of the MIC's recommendation for certification.
              [59 FR 9923, Mar. 2, 1994, as amended at 61 FR 39865, July 31, 1996; 61 FR 53311, Oct. 11, 1996; 62 FR 38903, July 21, 1997]

              Pt. 946, App. B
              Appendix B to Part 946—Airport Tables

                  “A” Level Service Airports:

                  *Akron, OH
                  CAK

                  *Albany, NY
                  ALB

                  *Atlanta, GA
                  ATL

                  *Baltimore, MD
                  BWI

                  *Boston, MA
                  BOS

                  Charlotte, NC
                  CLT

                  *Chicago-O'Hare (AV), IL
                  ORD

                  Cincinnati, OH
                  CVG

                  Columbus, OH
                  CMH

                  *Dayton, OH
                  DAY

                  *Des Moines, IA
                  DSM

                  *Detroit, MI
                  DTW

                  *Fairbanks, AK
                  FAI

                  *Fresno, CA
                  FAT

                  *Greensboro, NC
                  GSO

                  *Hartford, CT
                  BDL

                  Indianapolis, IN
                  IND

                  *Kansas City, MO
                  MCI

                  *Lansing, MI
                  LAN

                  Las Vegas, NV
                  LAS

                  Los Angeles (AV), CA
                  LAX

                  *Louisville, KY
                  SDF

                  *Milwaukee, WI
                  MKE

                  *Minneapolis, MN
                  MSP

                  *Newark, NJ
                  EWR

                  *Oklahoma City, OK
                  OKC

                  Phoenix, AZ
                  PHX

                  *Portland, OR
                  PDX

                  *Providence, RI
                  PVD

                  *Raleigh, NC
                  RDU

                  *Richmoind, VA
                  RIC

                  *Rochester, NY
                  ROC

                  *Rockford, IL
                  RFD

                  *San Antonio, TX
                  SAT

                  San Diego, CA
                  SAN

                  *San Francisco, CA
                  SFO

                  *Spokane, WA
                  GEG

                  *Syracuse, NY
                  SYR

                  Tallahassee, FL
                  TUL

                  Tulsa, OK
                  TUL

                  “B” Level Service Airports:

                  *Baton Rouge, LA
                  BTR

                  *Billings, MT
                  BIL

                  *Charleston, WV
                  CRW

                  *Chattanooga, TN
                  CHA

                  Colorado Springs, CO
                  COS

                  Daytona Beach, FL
                  DAB

                  El Paso, TX
                  ELP

                  Flint, MI
                  FNT

                  Fort Wayne, IN
                  FWA

                  Honolulu, HI
                  HNL

                  *Huntsville, AL
                  HSV

                  *Knoxville, TN
                  TYS

                  *Lincoln, NE
                  LNK

                  Lubbock, TX
                  LBB

                  *Madison, WI
                  MSN

                  *Moline, IL
                  MLI

                  *Montgomery, AL
                  MGM

                  *Muskegon, MI
                  MKG

                  *Norfolk, VA
                  ORF

                  Peoria, IL
                  PIA

                  *Savannah, GA
                  SAV

                  *South Bend, IN
                  SBN

                  Tucson, AZ
                  TUS

                  *West Palm Beach, FL
                  PBI

                  *Youngstown, OH
                  YNG

                  “C” Level Service Airports:

                  Abilene, TX
                  ABI

                  Allentown, PA
                  ABE

                  Asheville, NC
                  AVL

                  Athens, GA
                  AHN

                  Atlantic City, NJ
                  ACY

                  Augusta, GA
                  AGS

                  Austin, TX
                  AUS

                  Bakersfield, CA
                  BFL

                  Bridgeport, CT
                  BDR

                  Bristol, TN
                  TRI

                  Casper, WY
                  CPR

                  Columbia, MO
                  COU

                  Columbus, GA
                  CSG

                  Dubuque, IA
                  DBQ

                  Elkins, WV
                  EKN

                  Erie, PA
                  ERI

                  Eugene, OR
                  EUG

                  Evansville, IN
                  EVV

                  Fargo, ND
                  FAR

                  Fort Smith, AR
                  FSM

                  Grand Island, NE
                  GRI

                  Helena, MT
                  HLN

                  Huntington, WV
                  HTS

                  Huron, SD
                  HON

                  Kahului, HI
                  OGG

                  Key West, FL
                  EYW

                  Lewiston, ID
                  LWS

                  Lexington, KY
                  LEX

                  Lynchburg, VA
                  LYH

                  Macon, GA
                  MCN

                  Mansfield, OH
                  MFD

                  Meridian, MS
                  MEI

                  Olympia, WA
                  OLM

                  Port Arthur, TX
                  BPT

                  Portland, ME
                  PWM

                  Rapid City, SD
                  RAP

                  Redding, CA
                  RDD

                  Reno, NV
                  RNO

                  Roanoke, VA
                  ROA

                  Rochester, MN
                  RST

                  Salem, OR
                  SLE

                  Santa Maria, CA
                  SMX

                  Sioux City, IA
                  SUX

                  Springfield, IL
                  SPI

                  Stockton, CA
                  SCK

                  Toledo, OH
                  TOL

                  Waco, TX
                  ACT

                  Waterloo, IA
                  ALO

                  Wilkes-Barre, PA
                  AVP

                  Williamsport, PA
                  IPT

                  Wilmington, DE
                  ILG

                  Worcester, MA
                  ORH

                  Yakima, WA
                  YKM

                  “D” Level Service Airports:

                  Alamosa, CO
                  ALS

                  Alpena, MI
                  APN

                  Astoria, OR
                  AST

                  Beckley, WV
                  BKW

                  Caribou, ME
                  CAR

                  Concordia, KS
                  CNK

                  Concord, NH
                  CON

                  Ely, NV
                  ELY

                  Havre, MT
                  HVR

                  Homer, AK
                  HOM

                  Houghton Lake, MI
                  HTL

                  International Falls, MN
                  INL

                  Kalispell, MT
                  FCA

                  Lander, WY
                  LND

                  Norfolk, NE
                  OFK

                  Sault Ste. Marie, MI
                  SSM

                  Scottsbluff, NE
                  BFF

                  Sheridan, WY
                  SHR

                  St. Cloud, MN
                  STC

                  Tupelo, MS
                  TUP

                  Valentine, NE
                  VTN

                  Victoria, TX
                  VCT

                  Wichita, Falls, TX
                  SPS

                  Williston, ND
                  ISN

                  Winnemucca, NV
                  WMC

                * Long-line RVR designated site.

              [62 FR 38905, July 21, 1997]

          SUBCHAPTER D—GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE

            Pt. 950
            PART 950—ENVIRONMENTAL DATA AND INFORMATION

              Sec.
              950.1
              Scope and purpose.
              950.2
              Environmental Data and Information Service (EDIS).
              950.3
              National Climatic Center (NCC).
              950.4
              National Oceanographic Data Center (NODC).
              950.5
              National Geophysical and Solar-Terrestrial Data Center (NGSDC).
              950.6
              Environmental Science Information Center (ESIC).
              950.7
              Center for Environmental Assessment Services (CEAS).
              950.8
              Satellite Data Services Division (SDSD).
              950.9
              Computerized Environmental Data and Information Retrieval Service.
              Appendix A to Part 950—Schedule of User Fees for Access to NOAA Environmental Data

              Authority:
              (5 U.S.C. 552, 553). Reorganization Plan No. 4 of 1970.

              Source:
              44 FR 54468, Sept. 20, 1979, unless otherwise noted.

              § 950.1
              Scope and purpose.
              This part describes the Environmental Data and Information Service (EDIS), a major program element of the National Oceanic and Atmospheric Administration, and EDIS management of environmental data and information.

              § 950.2
              Environmental Data and Information Service (EDIS).
              The Environmental Data and Information Service is the first Federal organization created specifically to manage environmental data and information. EDIS acquires, processes, archives, analyzes, and disseminates worldwide environmental (atmospheric, marine, solar, and solid Earth) data and information for use by commerce, industry, the scientific and engineering communities, and the general public, as well as by Federal, State, and local governments. It also provides experiment design and data management support to large-scale environmental experiments; assesses the impact of environmental fluctuations on food production, energy production and consumption, environmental quality, and other economic systems; and manages or provides functional guidance for NOAA's scientific and technical publication and library activities. In addition, EDIS operates related World Data Center-A subcenters and participates in other international data and information exchange programs. To carry out this mission, EDIS operates a network of specialized service centers and a computerized environmental data and information retrieval service.

              § 950.3
              National Climatic Center (NCC).
              The National Climatic Center acquires, processes, archives, analyzes, and disseminates climatological data; develops analytical and descriptive products to meet user requirements; and provides facilities for the World Data Center-A (Meteorology). It is the collection center and custodian of all United States weather records, the largest of the EDIS centers, and the largest climatic center in the world.
              (a) Climatic data available from NCC include:
              (1) Hourly Surface Observations from Land Stations (ceiling, sky cover, visibility, precipitation or other weather phenomena, obstructions to vision, pressure, temperature, dew point, wind direction, wind speed, gustiness).
              (2) Three-Hourly and Six-Hourly Surface Observations from Land Stations, Ocean Weather Stations, and Moving Ships (variable data content).
              (3) Upper Air Observations (radiosondes, rawinsondes, rocketsondes, low-level soundings, pilot-balloon winds, aircraft reports).
              (4) Radar Observations (radar log sheets, radar scope photography).
              (5) Selected Maps and Charts (National Meteorological Center products).
              (6) Derived and Summary Data (grid points, computer tabulations, digital summary data).

              (7) Special Collections (Barbados Oceanographic and Meteorological Experiment meteorological data, Global Atmospheric Research Program basic data set, solar radiation data, many others).
              (b) Queries should be addressed to: National Climatic Center, National Oceanic and Atmospheric Administration, Asheville, NC 28801, tel. 704-258-2850, Ext. 683.

              § 950.4
              National Oceanographic Data Center (NODC).
              The National Oceanographic Data Center acquires, processes, archives, analyzes, and disseminates oceanographic data; develops analytical and descriptive products to meet user requirements; and provides facilities for the World Data Center-A (Oceanography). It was the first NODC established and houses the world's largest usuable collection of marine data.
              (a) Oceanographic data available from NODC include:
              (1) Mechanical and expendable bathytheremograph data in analog and digital form.
              (2) Oceanographic station data for surface and serial depths, giving values of temperature, salinity, oxygen, inorganic phosphate, total phosphorus, nitrite-nitrogen, nitrate-nitrogen, silicate-silicon, and pH.
              (3) Continuously recorded salinity-temperature-depth data in digital form.
              (4) Surface current information obtained by using drift bottle or calculated from ship set and drift.
              (5) Biological data, giving values of plankton standing crop, chlorophyll concentrations, and rates of primary productivity.
              (6) Other marine environmental data obtained by diverse techniques, e.g., instrumented buoy data, and current meter data.
              (b) Queries should be addressed to: National Oceanographic Data Center, National Oceanic and Atmospheric Administration, Washington, DC 20235, tel. 202-634-7500.

              § 950.5
              National Geophysical and Solar-Terrestrial Data Center (NGSDC).
              The National Geophysical and Solar-Terrestrial Data Center acquires, processes, archives, analyzes, and disseminates solid Earth and marine geophysical data as well as ionospheric, solar, and other space environment data; develops analytical, climatological, and descriptive products to meet user requirements; and provides facilities for World Data Center-A (Solid-Earth Geophysics, Solar Terrestrial Physics, and Glaciology).
              (a) Geophysical and solar-terrestrial data available from NGSDC include:
              (1) Marine geology and geophysics. Bathymetric measurement; seismic reflection profiles; gravimetric measurements; geomagnetic total field measurements; and geological data, including data on heat flow, cores, samples, and sediments.
              (2) Solar-Terrestrial physics. Ionosphere data, including ionograms, frequency plots, riometer and field-strength strip charts, and tabulations; solar activity data; geomagnetic variation data, including magnetograms; auroral data; cosmic ray data; and airglow data.
              (3) Seismology. Seismograms; accelerograms; digitized strong-motion accelerograms; earthquake data list (events since January 1900); earthquake data service with updates on a monthly basis.
              (4) Geomagnetic main field. Magnetic survey data and secular-change data tables.
              (b) Queries should be addressed to: National Geophysical and Solar-Terrestrial Data Center, National Oceanic and Atmospheric Administration, Boulder, CO 80303, tel. 303-499-1000, ext. 6215.

              § 950.6
              Environmental Science Information Center (ESIC).

              ESIC is NOAA's information specialist, librarian, and publisher. ESIC coordinates NOAA's library and information services and its participation in the national network of scientific information centers and libraries. Computerized literature searches provide information from over 80 data bases. The complete list of data bases is available on request. All ESIC information facilities provide the normal library tailored information and reference services. As NOAA's publisher of scientific and technical information, ESIC reviews, edits, and processes NOAA manuscripts for publication.

              (a) Services available from ESIC include:
              (1) Reference services. Some services are provided on a cost-recovery basis to non-NOAA individuals.
              (2) Publication copy services. Copies of NOAA publications are provided on request from qualified users, including governments, universities, non-profit organizations, professional societies, chambers of commerce, public information media, and individuals and organizations having cooperative or exchange agreements with NOAA.
              (3) Bibliographies. Special bibliographies are prepared on request. When provided to non-NOAA individuals, service is on a full cost-recovery basis.
              (4) Current awareness services. Periodically provides announcements of titles of newly published NOAA scientific and technical publications.
              (5) Lending services. Materials are loaned to other libraries and to NOAA employees.
              (6) On-site use of library collections.
              (7) Publishing services. Includes providing refereeing, reviewing, editing, and publishing services for NOAA authors of manuscripts destined for both NOAA and non-NOAA publication series.
              (b) Queries should be addressed to: Environmental Science Information Center, National Oceanic and Atmospheric Administration, Rockville, MD 20852, tel. 301-443-8137.

              § 950.7
              Center for Environmental Assessment Services (CEAS).
              EDIS assists National decisionmakers in solving problems by providing data analyses, applications, assessments, and interpretations to meet their particular requirements. Many of these services are provided by the EDIS Center for Environmental Assessment Services (CEAS).
              (a) The following are examples of CEAS projects and services:
              (1) CEAS prepares data-based studies and weekly assessments of potential effects of climatic fluctuations on National and global grain production.
              (2) CEAS provides environmental analyses and assessments to support efficient and effective planning, site selection, design, construction, and operation of supertanker ports and offshore drilling rigs. Such planning depends heavily upon environmental assessments.
              (3) During the heating season, CEAS issues monthly and seasonal projections of natural gas demand for multi-State regions of the conterminous United States. Similar projections are made for electricity during the cooling season.
              (4) CEAS has developed and makes available when needed a statistical oil spill trajectory risk model based on historical meteorological and oceanographic data.
              (5) The center has analyzed the potential ecological effects of the planned disposal of huge volumes of saturated brine into Gulf waters for the National Strategic Petroleum Reserve and may be called on to provide similar services in other subject areas.
              (6) CEAS provides experiment design, data analysis, and data management support to project managers and produces merged, validated multidisciplinary data sets for international and national study (such undertakings as the recent key role in the Global Atmospheric Research Program (GARP) experiments).
              (7) CEAS provides special data or information as required. Currently the Center is assembling an inventory of cruises and a global oceanographic data base from observations taken during the First GARP Global Experiment (FGGE).
              (b) Additional information on these or related services can be obtained by writing: Director, Center for Environmental Assessment Services, National Oceanic and Atmospheric Administration, Washington, DC 20235; or by calling (202) 634-7251.

              § 950.8
              Satellite Data Services Division (SDSD).

              The Satellite Data Services Division of the EDIS National Climatic Center provides environmental and earth resources satellite data to other users once the original collection purposes (i.e., weather forecasting) have been satisfied. The division also provides photographs collected during NASA's SKYLAB missions.
              (a) Satellite data available from SDSD include:

              (1) Data from the TIROS (Television InfraRed Observational Satellite) series of experimental spacecraft; much of the imagery gathered by spacecraft of the NASA experimental NIMBUS series; full-earth disc photographs from NASA's Applications Technology Satellites (ATS) I and III geostationary research spacecraft; tens of thousands of images from the original ESSA and current NOAA series of Improved TIROS Operational Satellites; and both full-disc and sectorized images from the Synchronous Meteorological Satellites (SMS) 1 and 2, the current operational geostationary spacecraft. In addition to visible light imagery, infrared data are available from the NIMBUS, NOAA, and SMS satellites. Each day, SDSD receives about 239 negatives from the polar-orbiting NOAA spacecraft, more than 235 SMS-1 and 2 negatives, and several special negatives and movie film loops.
              (2) Photographs (both color and black-and-white) taken during the three SKYLAB missions (May through June, 1973, July through September, 1973, and November 1973 through February 1974).
              (b) Queries should be addressed to: Satellite Data Services Division, World Weather Building, Room 606, Washington, DC 20233, tel. 301-763-8111.

              § 950.9
              Computerized Environmental Data and Information Retrieval Service.
              The Environmental Data Index (ENDEX) provides rapid, automated referral to multidiscipline environmental data files of NOAA, other Federal agencies, state and local governments, and universities, research institutes, and private industry. A computerized, information retrieval service provides a parallel subject-author-abstract referral service. A telephone call to any EDIS data or information center or NOAA library will allow a user access to these services.

              Pt. 950, App. A
              Appendix A to Part 950—Schedule of User Fees for Access to NOAA Environmental Data

                  Name of product/data/publication/information/service
                  NOAA National Center for Environmental Information
                  Current fee($)

                  New fee($)

                  Department of Commerce Certification
                  116.00
                  119.00

                  General Certification
                  92.00
                  103.00

                  Paper Copy
                  3.00
                  8.00

                  Data Poster
                  18.00
                  17.00

                  Shipping Service
                  8.00
                  8.00

                  Rush order fee
                  60.00
                  63.00

                  Super Rush Order Fee
                  100.00
                  105.00

                  Foreign Handling Fee
                  43.00
                  45.00

                  NEXRAD Doppler radar Color Prints
                  21.00
                  22.00

                  Paper Copy from Electronic Media
                  8.00
                  8.00

                  Offline In-Situ Digital Data
                  175.00
                  127.00

                  Microfilm Copy (roll to paper) per frame from existing film
                  20.00
                  20.00

                  Satellite Image Product
                  92.00
                  61.00

                  Offline Satellite, Radar, and Model Digital Data (average unit size is 1 terabyte)
                  753.00
                  388.00

                  Conventional CD-ROM/DVD
                  110.00
                  79.00

                  Specialized CD-ROM/DVD
                  208.00
                  175.00

                  CD-ROM/DVD Copy, Offline
                  43.00
                  62.00

                  CD-ROM/DVD Copy, Online Store
                  16.00
                  28.00

                  Facsimile Service
                  89.00
                  89.00

                  Order Handling
                  11.00
                  20.00

                  Non-Digital Order Consultation
                  10.00
                  9.00

                  Digital Order Consultation
                  28.00
                  26.00

                  Non-Serial Publications
                  32.00
                  *

                  Non-Standard Data; Select/Copy to CD, DVD or Electronic Transfer, Specialized, Offline
                  77.00
                  *

                  Digital and Non-Digital Off-the-Shelf Products, Online
                  13.00
                  *

                  Digital and Non-Digital Off-the-Shelf Products, Offline
                  17.00
                  *

                  Order Consultation Fee
                  4.00
                  *

                  Handling and Packing Fee
                  12.00
                  *

                  Mini Poster
                  2.00
                  *

                  Icosahedron Globe
                  1.00
                  *

                  Convert Data to Standard Image
                  8.00
                  *

                  Single Orbit OLS & Subset
                  19.00
                  20.00

                  Single Orbit OLS & Subset, Additional Orbits
                  6.00
                  6.00

                  Geolocated Data
                  50.00
                  *

                  Subset of Pre-existing Geolocated Data
                  32.00
                  *

                  Global Nighttime Lights Annual Composite from One Satellite
                  74,032.00
                  *

                  Daily or Nightly Global Mosaics (visible & thermal band, single spectral band or environmental data)
                  332.00
                  *

                  Global Nighttime Lights Monthly Composite—one satellite
                  8,259.00
                  8,705.00

                  Research Data Series CD-ROM/DVD
                  25.00
                  25.00

                  NOS Bathymetric Maps and Miscellaneous Archived Publication Inventory
                  8.00
                  *

                  Global Annual Composite of Nighttime Lights in Monthly Increments From One Satellite
                  10,794.00
                  *

                  High Definition Geomagnetic Model
                  20,262.00
                  22,540.00

                  High Definition Geomagnetic Model—Real Time (HDGM-RT)
                  26,204.00
                  29,059.00

                  Provision of Global Nighttime VIIRS day/night band data in geotiff Format
                  55,727.00
                  56,130.00

                  Provision of Global Nighttime VIIRS day/night band data in HDF5 Format
                  27,888.00
                  29,975.00

                  Provision of regional data from the VIIRS instrument on a daily basis
                  14,306.00
                  14,720.00

                * Indicates a product no longer offered.

              [84 FR 11412, Mar. 27, 2019]

            Pt. 960
            PART 960—LICENSING OF PRIVATE REMOTE SENSING SYSTEMS

                Subpart A—General
                Sec.
                960.1
                Purpose.
                960.2
                Scope.
                960.3
                Definitions.

                Subpart B—Licenses
                960.4
                Application.
                960.5
                Confidentiality of information.
                960.6
                Review procedures for license applications.
                960.7
                Amendments to licenses.
                960.8
                Notification of foreign agreements.
                960.9
                License term.
                960.10
                Appeals/hearings.
                960.11
                Conditions for operation.
                960.12
                Data policy for remote sensing space systems.

                Subpart C—Prohibitions
                960.13
                Prohibitions.

                Subpart D—Enforcement Procedures
                960.14
                In general.
                960.15
                Penalties and sanctions.
                Appendix 1 to Part 960—Filing Instructions and Information To Be Included in the Licensing Application
                Appendix 2 to Part 960—Fact Sheet Regarding the Memorandum of Understanding Concerning the Licensing of Private Remote Sensing Satellite Systems Dated February 2, 2000

              Authority:
              15 U.S.C. 5624.

              Source:
              71 FR 24481, Apr. 25, 2006, unless otherwise noted.

              Subpart A—General

                § 960.1
                Purpose.

                (a) The regulations in this part set forth the procedural and informational requirements for obtaining a license to operate a private remote sensing space system under Title II of the Land Remote Sensing Policy Act of 1992 (15 U.S.C. 5601 et seq.) (Public Law 102-555, 106 Stat. 4163) and applicable U.S. Policy, which addresses the U.S. commercial remote sensing satellite industry. (Available from NOAA, National Environmental Satellite Data and Information Service, 1335 East-West Highway, Room 7311, Silver Spring, MD 20910). In addition, this part describes NOAA's regulation of such systems, pursuant to the Act and applicable U.S. Policy. The regulations in this part are intended to:
                (1) Preserve the national security of the United States;
                (2) Observe the foreign policies and international obligations of the United States;
                (3) Advance and protect U.S. national security and foreign policy interests by maintaining U.S. leadership in remote sensing space activities, and by sustaining and enhancing the U.S. remote sensing industry;
                (4) Promote the broad use of remote sensing data, their information products and applications;

                (5) Ensure that unenhanced data collected by licensed private remote sensing space systems concerning the territory of any country are made available to the government of that country upon its request, as soon as such data are available and on reasonable commercial terms and conditions as appropriate;
                (6) Ensure that remotely sensed data are widely available for civil and scientific research, particularly environmental and global change research; and
                (7) Maintain a permanent comprehensive U.S. government archive of global land remote sensing data for long-term monitoring and study of the changing global environment.
                (b) In accordance with the Act and applicable U.S. Policy, decisions regarding the issuance of licenses and operational conditions (See Subpart B of this part) will be made by the Secretary of Commerce or his/her designee. Determinations of conditions necessary to meet national security, foreign policy and international obligations are made by the Secretaries of Defense and State, respectively.
                (c) In accordance with U.S. Policy, NOAA encourages U.S. companies to build and operate commercial remote sensing space systems whose operational capabilities, products, and services are superior to any current or planned foreign commercial systems. However, because of the potential value of its products to an adversary, the U.S. Government may restrict operations of the commercial systems in order to limit collection and/or dissemination of certain data and products to the U.S. Government or to U.S. Government-approved recipients.

                § 960.2
                Scope.
                (a) The Act and the regulations in this part apply to any person subject to the jurisdiction or control of the United States who operates or proposes to operate a private remote sensing space system, either directly or through an affiliate or subsidiary, and/or establishes substantial connections with the United States regarding the operation of a private remote sensing system.
                (b) In determining whether substantial connections exist with regard to a specific system, the factors NOAA may consider include, but are not limited to: the location of a system control center or operations centers and stations; the administrative control of the system; use of a U.S. launch vehicle; location or administrative control of ground receiving stations; the investment, ownership, or technology included in the system.
                (c) The regulations in this part apply to any action taken on or after May 25, 2006 with respect to any license, and to pre-existing licenses.
                (d) If any provision of the regulations in this part or the application thereof to any person or circumstance is held invalid, the validity of the remainder of the regulations in this part or the application of such provision to other persons and circumstances shall not be affected.

                (e) Issuance of a license under the regulations in this part does not affect the authority of any Department or Agency of the U.S. Government including, but not limited to, the Federal Communications Commission under the Communications Act of 1934 (47 U.S.C. 151 et seq.), the Department of Transportation under the Commercial Space Launch Act of 1984 (49 U.S.C. app. 2601 et seq.), the Department of Commerce under the Export Administration Regulations (15 CFR parts 730-774), or the Department of State under the Arms Export Control Act (22 U.S.C. 2778) and the International Traffic in Arms Regulations (22 CFR parts 120-130).

                § 960.3
                Definitions.
                For purposes of the regulations in this part, the following terms have the following meanings:

                  Act means the Land Remote Sensing Policy Act of 1992 (Pub. L. 102-555, 106 Stat. 4163) as amended by the 1998 Commercial Space Act (Pub. L. 105-303, 112 Stat. 2846), 15 U.S.C. 5601 et seq.

                  Administrative control means the power or authority, direct or indirect, whether or not exercised through the legal or defacto ownership or possession thereof, ownership of voting securities of a licensee, or by proxy voting, contractual arrangements or other means, to determine, direct or decide matters affecting the operations of the system; specifically, to determine, direct, take, manage, administer, influence, reach, or cause decisions regarding the:

                (1) Sale, lease, mortgage pledge, or other transfer of any or all of the system or system control assets of the licensee, whether in the ordinary course of business or not;
                (2) Operation of the system(s), including but not limited to orbit maintenance and other housekeeping functions, tasking and tasking prioritization, data acquisition, data storage, data transmission, processing and dissemination;
                (3) Dissolution of the licensee;
                (4) Closing and/or relocation of the command and control center of the system;
                (5) Execution, substantive modification and/or termination or non-fulfillment of any significant or substantial foreign agreement of the licensee regarding direct readout or tasking obligations; or
                (6) Amendment of the Articles of Incorporation or constituent agreement of the licensee with respect to the matters described in paragraphs (1) through (4) of this definition.

                  Administrator means the Administrator of NOAA and Under Secretary of Commerce for Oceans and Atmosphere or his/her designee.

                  Affiliate means any person:
                (1) Which owns or controls more than a 5% interest in the applicant or licensee; or
                (2) Which is under common ownership or control with the applicant or licensee.

                  Applicant means a person who has submitted an application for a NOAA license to operate a remote sensing space system.

                  Assistant Administrator means the Assistant Administrator of NOAA for Satellite and Information Services or his/her designee.

                  Authorized Officer means an individual designated by the Secretary of Commerce or his/her designee to enforce the regulations in this part.

                  Basic data set means those unenhanced data generated by the Landsat system or by any remote sensing space system licensed under the Act that have been selected by the Secretary of the Interior to be maintained in the National Satellite Land Remote Sensing Data Archive, as described in Section 502(c) of the Act.

                  Beneficial owner means any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise, has or shares: The right to exercise administrative control over a licensee; and the power to dispose of or to direct the disposition of, any security interest in a license. All securities of the same class beneficially owned by a person, regardless of the form which such beneficial ownership takes, shall be aggregated in calculating the number of shares beneficially owned by such person. A person shall be deemed to be the beneficial owner of a security interest if that person has the right to acquire beneficial ownership, as defined in this definition, within sixty (60) days from acquiring that interest, including, but not limited to, any right to acquire beneficial ownership through: The exercise of any option, warrant or right; the conversion of a security; the power to revoke a trust, discretionary account, or similar arrangement; or the automatic termination of a trust, discretionary account or similar arrangement.

                  Data Protection Plan refers to the licensee's plan to protect data and information through the entire cycle of tasking, operations, processing, archiving and dissemination. At a minimum, this includes appropriate protection of communications links and/or delivery methods for tasking of the satellite, downlinking of data to a ground station (including relay stations), and delivery of data from the satellite to the licensee's central data storage facilities.

                  License means a grant of authority under the Act by the Administrator to a person to operate a private remote-sensing space system.

                  Licensee means a person who holds a NOAA license to operate a remote sensing space system.

                  National Satellite Land Remote Sensing Data Archive means the archive stablished by the Secretary of the Interior pursuant to the archival responsibilities defined in Section 502 of the Act.

                  NOAA means the National Oceanic and Atmospheric Administration.

                  Operate means to manage, run, authorize, control, or otherwise affect the functioning of a remote sensing space system, directly or through an affiliate or subsidiary. This includes:
                (1) Commanding, controlling, tasking, and navigation of the system; or
                (2) Data acquisition, storage, processing, and dissemination.

                  Operational control means the ability to operate the system or override commands issued by any operations center or station.

                  Orbital debris means all human-generated debris in Earth orbit. This includes, but is not limited to, payloads that can no longer perform their mission, rocket bodies and other hardware (e.g., bolt fragments and covers) left in orbit as a result of normal launch and operational activities, and fragmentation debris produced by failure or collision. Gases and liquids in free state are not considered orbital debris.

                  Person means any individual (whether or not a citizen of the United States) subject to U.S. jurisdiction; a corporation, partnership, association, or other entity organized or existing under the laws of the United States; a subsidiary (foreign or domestic) of a U.S. parent company; an affiliate (foreign or domestic) of a U.S. company; or any other private remote sensing space system operator having substantial connections with the United States or deriving substantial benefits from the United States that support its international remote sensing operations sufficient to assert U.S. jurisdiction as a matter of common law.

                  Proprietary information means any business or trade secrets or commercial or financial information explicitly designated as proprietary or confidential by the submitter, the public release of which would cause substantial harm to the competitive position of the submitter. Once the information is publicly-released by the submitter, it is no longer considered proprietary.

                  Remote sensing space system, Licensed system, or System means any device, instrument, or combination thereof, the space-borne platform upon which it is carried, and any related facilities capable of actively or passively sensing the Earth's surface, including bodies of water, from space by making use of the properties of the electromagnetic waves emitted, reflected, or diffracted by the sensed objects. For purposes of the regulations in this part, a licensed system consists of a finite number of satellites and associated facilities, including those for tasking, receiving, and storing data, designated at the time of the license application. Small, hand-held cameras shall not be considered remote sensing space systems.

                  Secretary means the Secretary of Commerce.

                  Security means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting trust certificate, or certificate of deposit for a security; any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof); any put, call, straddle, option, or privilege entered into a national securities exchange relating to foreign currency; any interest or instrument commonly known as a “security”; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.

                  Significant or Substantial foreign agreement (also referred to in this part as foreign agreement or agreement) means an agreement with a foreign nation, entity, consortium, or person that provides for one or more of the following:
                (1) Administrative control which may include distributorship arrangements involving the routine receipt of high volumes of the system's unenhanced data;
                (2) Participation in the operations of the system; including direct access to the system's unenhanced data; or

                (3) An equity interest in the licensee held by a foreign nation and/or person, if such interest equals or exceeds or will equal or exceed twenty (20) percent of total outstanding shares, or entitles the foreign person to a position on the licensee's Board of Directors.

                  Subsidiary means a person over which the applicant or licensee may exercise administrative control.

                  Tasking means any action taken to command a remote sensing space system or its sensor to acquire data for transmission or storage on the satellite's recording subsystem. Such action can be in the form of commands sent to the system for execution or for storage in the satellite's memory for execution at a specified time or location within a given orbit.

                  Under Secretary means the Under Secretary of Commerce for Oceans and Atmosphere and Administrator of NOAA or his/her designee.

                  Unenhanced data means remote sensing signals or imagery products that are unprocessed or subject only to data preprocessing. Data preprocessing may include rectification of system and sensor distortions in remote sensing data as it is received directly from the satellite; registration of such data with respect to features of the Earth; and calibration of spectral response with respect to such data. It does not include conclusions, manipulations, or calculations derived from such data, or a combination of such data with other data. It also excludes phase history data for synthetic aperture radar systems or other space-based radar systems.

                  U.S. Policy means the policy(ies) announced by the President that specifically address U.S. commercial remote sensing space capabilities.

              Subpart B—Licenses

                § 960.4
                Application.
                No person subject to the jurisdiction and/or control of the United States may operate a private remote sensing space system without a license issued pursuant to this part.
                (a) Filing instructions, as well as a list of information to be included in the license application, are included in Appendix 1 of this part.
                (b) If information in an application becomes inaccurate or incomplete prior to issuance of the license, the applicant must, within 14 days, file the new or corrected information with the Assistant Administrator. If new or revised information is filed during the application process, the Assistant Administrator shall, within fourteen (14) days, determine whether the deadline imposed by Section 201(c) of the Act and § 960.6(a) must be extended to allow adequate review of the revised application and, if so, for how long.

                § 960.5
                Confidentiality of information.
                (a) Any proprietary information related to a license application, application for amendment, foreign agreement, or any other supporting documentation submitted to NOAA will be treated as business confidential or proprietary information, if that information is explicitly designated and marked as such by the submitter. This does not preclude the United States Government from citing information in the public domain provided by the licensee in another venue (e.g., the licensee's Web site or a press release).
                (b) Within thirty (30) days of the issuance of a license to operate a remote sensing space system, the licensee shall provide the Assistant Administrator with a publicly-releasable summary of the licensed system. The summary must be submitted in a readily reproducible form accompanied by a copy on electronic media. This summary shall be available for public review at a location designated by the Assistant Administrator and shall include:
                (1) The name, mailing address and telephone number of the licensee and any affiliates or subsidiaries;
                (2) A general description of the system, its orbit(s) and the type of data to be acquired; and
                (3) The name and address upon whom service of all documents may be made.

                § 960.6
                Review procedures for license applications.

                The following procedures are consistent and have been harmonized with those procedures, including time lines, described in the Fact Sheet, at Appendix 2 of this part, which governs in lieu of this section and §§ 960.7 and 960.8 with respect to the process for reaching determinations of conditions necessary to meet national security, international obligations and foreign policy and which is outside the scope of the regulations in this part.

                (a) The Assistant Administrator shall, within three (3) working days of receipt of an application, forward a copy of the application to the Department of Defense, the Department of State, the Department of the Interior, and any other Federal agencies determined to have a substantial interest in the license application. The Assistant Administrator shall advise such agencies of the deadline prescribed by paragraph (b) of this section to require additional information from the applicant. The Assistant Administrator shall make a determination on the application, in accordance with the Act and section 960.1(b), within 120 days of its receipt. If a determination has not been made within 120 days, the Assistant Administrator shall inform the applicant of any pending issues and any action required to resolve them.
                (b) The reviewing agencies have thirty (30) days from receipt of application to notify the Assistant Administrator in writing whether the application omits any of the information listed in Appendix 1 of this part or whether additional information may be necessary to complete the application. This notification shall state the specific reasons why the additional information is sought. The Assistant Administrator shall then notify the applicant, in writing, what information is required to complete the license application. The 120-day review period prescribed in Section 201(c) of the Act will be stopped until the Assistant Administrator determines that the license application is complete.
                (c) Within thirty (30) days of receipt of a complete application, as determined by the Assistant Administrator, each Federal agency consulted in paragraph (a) of this section shall recommend, in writing, to the Assistant Administrator approval or disapproval of the application in writing. If a reviewing agency is unable to complete its review in thirty (30) days, it is required to notify NOAA prior to the expiration of the interagency review period, in writing, of the reason for its delay and provide an estimate of additional time necessary to complete the review.
                (d) If the license application is denied, the Assistant Administrator shall provide the applicant with written notification along with a concise statement of the facts in the record determined to support the denial. This denial will be considered final agency action twenty-one (21) days after the date the notice was mailed, unless the applicant files an appeal, as provided in § 960.10.
                (e) The Assistant Administrator shall terminate the license application review process if:
                (1) The application is withdrawn before the decision approving or denying it is issued; or
                (2) The applicant, after receiving a request for additional information pursuant to paragraph (b) of this section, does not provide such information within the time stated in the request.
                (f) No license shall be granted by the Secretary unless the Secretary determines, in writing, that the applicant will comply with the requirements of the Act, any regulations issued pursuant to the Act, and that the granting of such license and the operation of the license and system by the licensee would be consistent with the national security interest, foreign policy and international obligations of the United States.

                § 960.7
                Amendments to licenses.
                (a) Prior to taking any of the following actions a licensee must obtain an amendment to the license:
                (1) Assignment of any interest in or transfer of the license from one entity to another, renaming, or any change in identity of the license holder;
                (2) Change in or transfer of administrative control;
                (3) Change of operational control; or
                (4) Deviation from orbital characteristics, performance specifications, data collection and exploitation capabilities, operational characteristics identified under Appendix 1. of this part, or any other change in license parameters.

                (b) Applications for an amendment to an existing license shall contain all relevant new information and shall be filed at the same address identified in Appendix 1 of this part. Amendment applications shall be filed in accordance with the procedures in § 960.4 and Appendix 1 of this part for original license applications.
                (c) The Assistant Administrator shall, within three (3) working days of receipt of an application for amendment, forward a copy of the application to the Department of Defense, the Department of State, the Department of the Interior, and any other Federal agencies determined to have a substantial interest in the application. The Assistant Administrator shall advise such agencies of the deadline prescribed by paragraph (d) of this section to require additional information from the licensee. The Assistant Administrator shall make a determination on the application, in accordance with the Act and § 960.1(b), within 120 days of its receipt. If a determination has not been made within 120 days, the Assistant Administrator shall inform the licensee of any pending issues and any actions necessary to resolve them.
                (d) The reviewing agencies have thirty (30) days from receipt of the application for amendment to notify the Assistant Administrator in writing whether the request omits any of the information listed in Appendix 1 of this part or whether additional information may be necessary to complete the request. This notification shall state the specific reasons why the additional information is sought. The Assistant Administrator shall then notify the licensee, in writing, what information is required to complete the application. The 120-day review period prescribed in Section 201(c) of the Act will be stopped until the Assistant Administrator determines that the application request is complete.
                (e) Within thirty (30) days of receipt of a complete application for amendment, as determined by the Assistant Administrator, each Federal agency consulted in paragraph (c) of this section shall recommend, in writing, to the Assistant Administrator approval or disapproval of the application. If a reviewing agency is unable to complete its review in thirty (30) days, it is required to notify NOAA prior to the expiration of the interagency review period, in writing, of the reason for its delay and provide an estimate of additional time necessary to complete the review.
                (f)(1) When the licensee is seeking an amendment in order to transfer administrative control or change in the participation of the operations of the system to a foreign person or nation, pursuant to paragraph (a)(2) of this section, the licensee must provide the following information:
                (i) The identity, residence and citizenship of the foreign person(s) or nation(s) who will acquire control;
                (ii) The licensee's proposed plan to ensure that the licensee will protect the operational control of the licensed system from foreign influence and prevent technology transfer that would adversely impact national security, foreign policy or international obligations; and
                (iii) Such additional information as the Assistant Administrator may prescribe as necessary or appropriate to protect the national security, foreign policy or international obligations of the United States.
                (2) Such an application for amendment will be reviewed to determine whether the foreign person(s) or nation(s) that will exercise administrative control of the licensee will take no action that impairs the national security interests, foreign policy or international obligations of the United States.
                (g) If the application for amendment is denied, the Assistant Administrator shall provide the licensee with written notification along with a concise statement of the facts in the record determined to support the denial. This denial will be considered final agency action twenty-one (21) days after the date the notice was mailed, unless the licensee files an appeal, as provided in § 960.10.
                (h) The Assistant Administrator shall terminate the application for amendment review process if:
                (1) The application is withdrawn before the decision approving or denying it is issued; or
                (2) The licensee, after receiving a request for additional information pursuant to paragraph (d) of this section, does not provide such information within the time stated in the request.

                § 960.8
                Notification of foreign agreements.
                Licensees must notify the Assistant Administrator of any significant or substantial agreement that they intend to enter into with any foreign nation, entity, or consortium, not later than sixty (60) days prior to concluding the agreement.
                (a) Upon notification by a licensee, pursuant to § 960.11(b)(5), the Assistant Administrator shall initiate review of the proposed agreement in light of the national security interests, foreign policy and international obligations of the U.S. Government.
                (b) The Assistant Administrator shall, within three (3) working days of receipt of a proposed foreign agreement, forward a copy of the foreign agreement to the Department of Defense, the Department of State, the Department of the Interior, and any other Federal agencies determined to have a substantial interest in the foreign agreement. The Assistant Administrator, in consultation with other appropriate agencies, will review the proposed foreign agreement. As part of this review, the Assistant Administrator will ensure that the proposed foreign agreement contains the appropriate provisions to ensure compliance with all requirements concerning national security interests, foreign policy and international obligations under the Act or the licensee's ability to comply with the Act, these regulations and the terms of the license. These requirements include:
                (1) The ability to implement, as appropriate, restrictions on the foreign party's acquisition and dissemination of imagery as imposed by the license or by the Secretary;
                (2) The obligations of the licensee to provide access to data for the National Satellite Land Remote Sensing Data Archive; and
                (3) The obligations of the licensee to convey to the foreign party the license's reporting and recordkeeping requirements and to facilitate any monitoring and compliance activities identified in the license.
                (c) Within thirty (30) days of receipt of the proposed agreement, other agencies reviewing the agreement will notify the Assistant Administrator that the proposed agreement sufficiently addresses the requirements in paragraph (b) of this section or identify what changes will need to be made to the agreement to meet these requirements.
                (d)(1) Within sixty (60) days of notification by the licensee, if the Assistant Administrator determines that a proposed agreement will impair his or her ability to enforce the Act, or the licensee's ability to comply with the Act, these regulations, or the terms or conditions of the license, the licensee will be notified which terms and conditions of the license are affected and, specifically, how the agreement impairs their enforcement.
                (2) The proposed agreement may not be implemented by the licensee until the licensee has been advised by the Assistant Administrator that the provisions of the proposed agreement are acceptable.
                (e) The licensee is required to provide NOAA a signed copy of the foreign agreement within thirty (30) days of signature.
                (f) Following approval of the agreement, if the factual circumstances surrounding this transaction change, the licensee must notify NOAA within twenty-one (21) days of the change. The licensee's failure to notify NOAA in a timely manner may result in penalties for noncompliance being levied, pursuant to Section 203(a)(3) of the Act.
                (g) A licensee seeking to enter into a foreign agreement that would require the modification of the terms of an existing license shall also submit a license amendment request and the proposed foreign agreement shall be considered in the context of the amendment review process.

                § 960.9
                License term.

                (a) Each license for operation of a system shall be valid for the operational lifetime of the system or until the Secretary determines that the licensee is not in compliance with the requirements of the Act, the regulations issued pursuant to the Act, the terms and conditions of the license, or that the licensee's activities or system operations are not consistent with the national security, foreign policy and international obligations of the United States.
                (b) The licensee shall notify the Assistant Administrator within seven (7) days of financial insolvency, dissolution, the demise of its system or of its decision to discontinue system operation. Upon notification, the Assistant Administrator will terminate the license. However, termination will not affect the obligations of the licensee with regard to provisions in its license, requiring the licensee to:
                (1) Provide data to the National Satellite Land Remote Sensing Data Archive for the basic data set;
                (2) Make data available to the National Satellite Land Remote Sensing Data Archive that the licensee intends to purge from its holdings;
                (3) Make data available to a sensed state; and
                (4) Restrict acquisition and dissemination of imagery as imposed by the license or by the Secretary; and
                (5) Manage the re-entry segment, including but not limited to, the disposal of the system.
                (c) The licensee shall notify the Assistant Administrator that specific actions leading to the development and operation of the licensed remote sensing space system have been completed. If the Assistant Administrator determines that a licensee has not completed such actions with respect to a licensed system, he/she may terminate the license. The actions required to be taken and associated timelines are as follows:
                (1) Presentation to NOAA of the following formal review materials within five (5) years of the license issuance:
                (i) Preliminary Design Review, and
                (ii) Critical Design Review.
                (2) Licensee certification to NOAA of the following milestones within five (5) years of the Critical Design Review:
                (i) Execution of a binding contract for launch services, and
                (ii) Completion of the pre-ship review of the remote sensing payload.
                (3) Remote sensing space systems currently licensed by NOAA will have five (5) years from the effective date of these regulations to meet the milestones in Section 960.9(c)(1).

                § 960.10
                Appeals/hearings.
                (a) An applicant or licensee may submit a written appeal to the Administrator involving the granting, denial, or conditioning of a license; a license amendment; a foreign agreement; or enforcement action under this part. The appeal must state the action(s) appealed, must set forth a detailed explanation of the reasons for the appeal, and must be submitted within twenty-one (21) days of the action appealed. The appellant may request a hearing on the appeal before a designated hearing officer.
                (b) The hearing shall be held no later than thirty (30) days after receipt of the appeal, unless the hearing officer extends the time. The appellant and other interested persons may appear personally or by counsel and submit information and present arguments, as determined appropriate by the hearing officer. Hearings may be closed to the public as necessary to protect classified or proprietary information. Hearings shall be transcribed, and transcripts made available to the public, as required by statute. Classified and proprietary information shall not be included in the public transcripts. Within thirty (30) days of the conclusion of the hearing, the hearing officer shall recommend a decision to the Administrator.
                (c) The hearing requested under paragraph (a) of this section may be granted unless the issues being appealed involve the conduct of military or foreign affairs functions. Determinations concerning limitations on data collection or distribution, license conditions, or enforcement actions necessary to meet national security concerns, foreign policies or international obligations are not subject to a hearing under this Section. A determination to deny an appeal/hearing on this basis shall constitute final agency action.

                (d) The Administrator may adopt the hearing officer's recommended decision or may reject or modify it. The Administrator will notify the appellant of the decision, and the reason(s) therefore, in writing, within thirty (30) days of receipt of the hearing officer's recommended decision. The Administrator's action shall constitute final Agency action.

                (e) Any time limit prescribed in this section may be extended for a period not to exceed thirty (30) days by the Administrator for good cause, upon his/her own motion or written request from the appellant.
                (f) The licensee shall be entitled to an expedited hearing on the review of a foreign agreement if the request is filed with the Administrator within seven (7) days of the date of mailing of the Assistant Administrator's notice under § 960.8(d)(1). The request shall set forth the licensee's response to the determinations contained in the notice, and demonstrate that the time necessary to complete the normal hearing process will jeopardize the agreement.
                (1) Expedited hearings shall commence within five (5) days after the filing of the request with the Administrator unless the Administrator or the hearing officer postpones the date of the hearing or the parties agree that it shall commence at a later time.
                (2) Within five (5) days of the conclusion of the hearing, the hearing officer shall prepare findings and conclusions for consideration by the Administrator.
                (3) Within fourteen (14) days after receipt of such material, the Administrator shall issue his/her findings and conclusions and a statement of the reasons on which they are based. This decision constitutes final agency action.

                § 960.11
                Conditions for operation.
                (a) Each license issued for the operation of a system shall require the licensee to comply with the Act and the regulations in this part. The licensee shall ensure that its license information is kept current and accurate. A licensee's failure to notify NOAA in a timely manner of any changes to that information on which the determination to issue the license or a subsequent licensing action was or will be made may result in penalties for noncompliance being levied, pursuant to Section 203(a)(3) of the Act
                (b) The following conditions, as a minimum, shall be included in all licenses:
                (1) The licensee shall operate its system in a manner that preserves the national security and observes the foreign policy and international obligations of the United States. Specific limitations on operational performance, including, but not limited to, limitations on data collection and dissemination, as appropriate, will be specified in each license.
                (2) The licensee shall maintain operational control from a location within the United States at all times, including the ability to override all commands issued by any operations centers or stations.
                (3) The licensee will maintain and make available to the Assistant Administrator records of system tasking, operations and other data as specified in the license for the purposes of monitoring and compliance. Periodic reporting and record keeping requirements will be specified in the license. The licensee shall allow the Assistant Administrator access, at all reasonable times, to all facilities which comprise the remote sensing space system for the purpose of conducting license monitoring and compliance inspections.
                (4) The licensee may be required by the Secretary to limit data collection and/or distribution by the system as determined to be necessary to meet significant national security or significant foreign policy concerns, or international obligations of the United States, in accordance with the procedures set forth in the Interagency MOU Fact Sheet found in Appendix 2 of this part. During such limitations, the licensee shall, on request, provide unenhanced restricted images on a commercial basis exclusively to the U.S. Government using U.S. government-approved rekeyable encryption on the down-link and shall use a data down-link format that allows the U.S. Government access to these data during such periods.

                (5) A licensee shall notify the Assistant Administrator of its intent to enter into any significant or substantial foreign agreement, and shall submit this agreement for review in accordance with § 960.8. The proposed agreement may not be implemented by the licensee until the licensee has been advised by the Assistant Administrator that the document's provisions are acceptable.

                (i) Notification of any agreement that provides for an on-going or a continuous relationship serves as notification of specific transactions carried out within the scope of that agreement for purposes of the regulations in this part and the Act. Such notification does not relieve a licensee of any obligation under any other laws including U.S. export laws or regulations to secure necessary U.S. Government authorizations and/or licenses, to provide notification, or to comply with other requirements.
                (ii) A licensee seeking to enter a foreign agreement that would require the modification of the terms of an existing license shall submit a license amendment, as provided in § 960.7.
                (6) In accordance with Section 201(e) of the Act and § 960.12, a licensee shall make available on reasonable commercial terms and conditions, in accordance with the Act and § 960.12, any unenhanced data designated by the Assistant Administrator.
                (7) A licensee shall provide to the U.S. Government, upon request, a complete list of all archived, unenhanced data which has been generated by its licensed system which is not already maintained in a public catalog. Any information on this list which is deemed proprietary by the licensee should be so noted by the licensee when the list is provided to the U.S. Government.
                (8) A licensee shall make available unenhanced data requested by the Department of the Interior on reasonable cost terms and conditions as agreed by the licensee and the Department of the Interior. After the expiration of any exclusive right to sell, or after an agreed amount of time, the Department of Interior shall make these data available to the public at the cost of fulfilling user requests.
                (9) Before purging any licensed data in its possession, the licensee shall offer such data to the National Satellite Land Remote Sensing Data Archive at the cost of reproduction and transmission. The Department of the Interior shall make these data available immediately to the public at the cost of fulfilling user requests.
                (10) A licensee shall make available to the government of any country (including the United States) upon request by that government, unenhanced data collected by its system concerning the territory under the jurisdiction of such government. The data shall be provided as soon as the licensee is able to distribute the data commercially or as soon as the licensee has processed them into a format that the licensee uses for its own purposes, whichever occurs sooner, on reasonable terms and conditions. However, no data shall be provided to the sensed state if such release is contrary to U.S. national security concerns, foreign policy or international obligations or is otherwise prohibited by law, e.g., where transactions with the sensed state are prohibited by the laws of the United States. The U.S. Government may require, as a specific license condition, coordination with NOAA prior to fulfilling specific sensed state requests for unenhanced data.
                (11) A licensee shall inform the Assistant Administrator immediately of any operational deviation or proposed deviation of the system which would violate the conditions of the license. If advance notice is not possible because of an emergency posing an imminent and substantial threat to human life, property, the environment or the system itself, the licensee shall notify the Assistant Administrator of the deviation as soon as circumstances permit.
                (12) A licensee shall dispose of any satellites operated by the licensee upon termination of operations under the license in a manner satisfactory to the President. The licensee shall obtain approval from the Assistant Administrator of all plans and procedures for the disposition of satellites as part of the application process.
                (13) The licensee shall submit a Data Protection Plan to the Assistant Administrator for review and approval. The licensee's Data Protection Plan shall contain the process to protect data and information throughout the entire cycle of tasking, operations, processing, archiving and dissemination.

                (i) If the operating license restricts the distribution of certain data and imagery to the U.S. Government or U.S. Government-approved customers, including data whose public distribution is limited for 24 hours after collection, the Data Protection Plan should also provide for secure delivery of restricted data and imagery to U.S. Government-approved customer facilities.
                (ii) Communications links that may require protection include, but are not limited to: Telemetry, tracking and commanding; narrowband and wideband data, including satellite platform and sensor data, imagery, and metadata; and terrestrial delivery methods including electronic and physical package delivery.
                (iii) The licensee's Data Protection Plan must be approved by NOAA before the licensee's remote sensing space system may be launched. NOAA encourages the licensee's early submission and review of the Data Protection Plan to avoid any negative impacts on its system's development and launch schedule.
                (iv) The Assistant Administrator may require the licensee to revise its Data Protection Plan if the system is altered from what was originally licensed.
                (14) A license is not an asset of the licensee and shall not be mortgaged, sold or pledged as collateral.
                (c) The Assistant Administrator may waive any of the conditions in § 960.11(b) upon a showing of good cause and following consultations with the appropriate agencies.

                § 960.12
                Data policy for remote sensing space systems.
                (a) In accordance with the Act, if the U.S. Government has or will directly fund all or a substantial part of the development, fabrication, launch, or operation costs of a licensed system, the license shall require that all of the unenhanced data from the system be made available on a nondiscriminatory basis except on the basis of national security, foreign policy or international obligations.
                (b) If the U.S. Government has not funded and will not fund, either directly or indirectly, any of the development, fabrication, launch, or operations costs of a licensed system, the licensee may provide access to its unenhanced data in accordance with reasonable commercial terms and conditions, subject to the requirement of providing data to the government of any sensed state, pursuant to § 960.11(b)(10).
                (c) If the U.S. Government has (either directly or indirectly) funded some of the development, fabrication, launch, or operations costs of a licensed system, the Assistant Administrator, in consultation with other appropriate U.S. agencies, shall, subject to national security concerns, determine whether the interest of the United States in promoting widespread availability of remote sensing data on reasonable cost terms and conditions requires that some or all of the unenhanced data from the system be made available on a nondiscriminatory basis in accordance with the Act. The license shall specify any data subject to this requirement. In making this determination, the Assistant Administrator may consider:
                (1) The extent and proportion of private and Federal funding of the system;
                (2) The extent of the governmental versus the commercial market for the unenhanced data;
                (3) The effect of a nondiscriminatory data access designation on the applicant's commercial activity;
                (4) The extent to which the applicant's proposed commercial data policies would encourage foreign operators to limit access, particularly for research and public benefit purposes; or
                (5) The extent to which the U.S. interest in promoting widespread data availability can be satisfied through license conditions that ensure access to the data for non-commercial scientific, educational, or other public benefit purposes.

              Subpart C—Prohibitions

                § 960.13
                Prohibitions.
                It is unlawful for any person who is subject to the jurisdiction or control of the United States, directly or through any subsidiary or affiliate to:
                (a) Operate a private remote sensing space system in such a manner as to jeopardize the national security or foreign policy and international obligations of the United States;

                (b) Operate a private remote sensing space system without possession of a valid license issued under the Act and/or the regulations in this part;
                (c) Operate a private remote sensing space system in violation of the terms and conditions of the license issued for such system under the Act and the regulations in this part;
                (d) Violate any provision of the Act or the regulations in this part or any term, condition, or restriction of the license;
                (e) Violate or fail to comply with any order, directive, or notice issued by the Secretary or his/her designee, pursuant to the Act and/or the regulations in this part, with regard to the operation of the licensed private remote sensing space system;
                (f) Fail or refuse to provide to the Secretary or his/her designee in a timely manner, all reports and/or information required to be submitted to the Secretary under the Act or the regulations in this part;
                (g) Fail to update in a timely manner, the information required to be submitted to the Secretary in the license application; or
                (h) Interfere with the enforcement of this part by:
                (1) Refusing to permit access by the Secretary or his/her designee to any facilities which comprise the remote sensing space system for the purposes of conducting any search or inspection in connection with the enforcement of the regulations in this part;
                (2) Assaulting, resisting, opposing, impeding, intimidating, or interfering with any authorized officer in the conduct of any search or inspection performed under the regulations in this part;
                (3) Submitting false information to the Secretary, his/her designee or any authorized officer; or
                (4) Assaulting, resisting, opposing, impeding, intimidating, harassing, bribing, or interfering with any person authorized by the Secretary or his/her designee to implement the provisions of the regulations in this part.

              Subpart D—Enforcement Procedures

                § 960.14
                In general.
                (a) The Secretary shall conduct such enforcement activities as are necessary to carry out his/her obligations under the Act.
                (b) Any person who is authorized to enforce the regulations in this part may:
                (1) Enter, search and inspect any facility suspected of being used to violate the regulations in this part or any license issued pursuant to the regulations in this part and inspect and seize any equipment or records contained in such facility;
                (2) Seize any data obtained in violation of the regulations in this part or any license issued pursuant to the regulations in this part;
                (3) Seize any evidence of a violation of the regulations in this part or of any license issued pursuant to the regulations in this part;
                (4) Execute any warrant or other process issued by any court of competent jurisdiction; and
                (5) Exercise any other lawful authority.

                § 960.15
                Penalties and sanctions.
                As authorized by Section 203(a) of the Act, if the Secretary or his/her designee determines that the licensee has substantially failed to comply with the Act, the regulations in this part, or any term, condition or restriction of the license, the Secretary or his/her designee may request the appropriate U.S. Attorney to seek an order of injunction or similar judicial determination from the U.S. District Court for the District of Columbia Circuit or a U.S. District Court within which the licensee resides or has its principal place of business, to terminate, modify, or suspend the license, and/or to terminate licensed operations on an immediate basis.
                (a) In addition, any person who violates any provision of the Act, any license issued there under, or the regulations in this part may be assessed a civil penalty by the Secretary of not more that $10,000 for each violation. Each day of operation in violation constitutes a separate violation. Civil penalties will be assessed in accordance with the procedures contained in paragraphs (b) through (g) of this section.

                (b) A notice of violation and assessment (NOVA) will be issued by NOAA and served personally or by registered or certified mail, return receipt requested, upon the licensee alleged to be subject to a civil penalty.
                (1) The NOVA will contain:
                (i) A concise statement of the facts believed to show a violation;
                (ii) A specific reference to the provisions of the Act, regulation, license, agreement, or order allegedly violated;
                (iii) The findings and conclusions upon which NOAA based the assessment;
                (iv) The amount of the civil penalty assessed; and
                (v) An explanation of the licensee's rights upon receipt of the NOVA.
                (2) In assessing a civil penalty, NOAA will take into account information available to the Agency concerning any factor to be considered under the Act and implementing regulations, and any other information that justice or the purposes of the Act require.
                (3) The NOVA may also contain a proposal for compromise or settlement of the case.
                (4) The NOVA may also contain a request for the licensee to cease and desist operations which are in violation of the Act, regulations, license, agreement, or order. If the NOVA contains such a request, it will advise the licensee:
                (i) Of the amount of time the licensee has to cease and desist the violation. The amount of time will be decided on a case-by-case basis at the sole discretion of the Agency.
                (ii) If the licensee fails to respond or comply with NOAA's request, an injunction or other judicial relief may be sought.
                (iii) Paragraph (c) of this section applies only to those parts of the NOVA assessing monetary penalties.
                (c) The licensee has 14 days from receipt of the NOVA to respond. During this time:
                (1) The licensee may accept the penalty or compromise penalty, if any, by taking the actions specified in the NOVA.
                (2) The licensee may request a hearing under section 960.10.
                (3) The licensee may request an extension of time to respond. NOAA may grant an extension of up to 14 days unless it is determined that the requester could, exercising reasonable diligence, respond within the 14-day period. A telephonic response to the request is considered an effective response, and will be followed by written confirmation.
                (4) The licensee may take no action, in which case the NOVA becomes final in accordance with paragraph (d) of this section.
                (d) If no request for hearing is timely filed as provided in § 960.10, the NOVA becomes effective as the final administrative decision and order of NOAA on the 30th day after service of the NOVA or on the last day of any delay period granted. If a request for hearing is timely filed in accordance with § 960.10, the date of the final administrative decision is as provided in that section.
                (e) The licensee must make full payment of the civil penalty assessed within 30 days of the date upon which the assessment becomes effective as the final administrative decision and order of NOAA under paragraph (d) of this section or § 960.10.
                (1) Payment must be made by mailing or delivering to NOAA at the address specified in the NOVA a check or money order made payable in United States currency in the amount of the assessment to the “Treasurer of the United States,” or as otherwise directed.
                (2) Upon any failure to pay the civil penalty assessed, NOAA may request the Justice Department to recover the amount assessed in any appropriate district court of the United States, or may act under paragraph (f) of this section.
                (f) NOAA, in its sole discretion, may compromise, modify, remit, or mitigate, with or without conditions, any civil penalty imposed.
                (1) The compromise authority of NOAA under this section is in addition to any similar authority provided in any applicable statute or regulation, and may be exercised either upon the initiative of NOAA or in response to a request by the alleged violator or other interested person. Any such request should be sent to NOAA at the address specified in the NOVA.

                (2) Neither the existence of the compromise authority of NOAA under this section nor NOAA's exercise thereof at any time changes the date upon which an assessment is final or payable.

                (g) Factors to be taken into consideration when assessing a penalty may include the nature, circumstances, extent, and gravity of the alleged violation; the licensee's degree of culpability; any history of prior offenses; and such other matters as justice may require.

                Pt. 960, App. 1
                Appendix 1 to Part 960—Filing Instructions and Information To Be Included in the Licensing Application
                Prospective applicants are encouraged to contact NOAA for a non-binding preconsultation prior to filing an application or other licensing actions.
                (a) Where to file. Applications and all related documents shall be filed with the Assistant Administrator, National Environmental Satellite, Data and Information Service (NESDIS), NOAA, Department of Commerce, 1335 East West Highway, Silver Spring, Maryland 20910.
                (b) Form. No particular form is required but each application must be in writing, must include all of the information specified in this subpart, and must be signed by an authorized principal executive officer. In addition, applicants must submit a copy on electronic media using commonly-available commercial word processing software.
                (c) Number of copies. One (1) copy of each application must be submitted in a readily reproducible form accompanied by a copy on electronic media.
                (d) The following information shall be filed by the applicant in order to evaluate its suitability to hold a private remote sensing space system license. Data provided regarding the applicant's proposed remote sensing space system must be in sufficient detail to enable the Secretary to determine whether the proposal meets requirements of the Act.
                Sec. I Corporate Information
                (1) The name, street address and mailing address, telephone number and citizenship(s) of (as applicable):
                (i) Applicant as well as any affiliates or subsidiaries;
                (ii) Chief executive officer of the applicant and each director;
                (iii) Each general corporation partner;
                (iv) All executive personnel or senior management of a partnership;
                (v) Any directors, partners, executive personnel or senior management who hold positions with or serve as consultants for any foreign nation or person;
                (vi) Each domestic beneficial owner of an interest equal to or greater than 10 percent in the applicant;
                (vii) Each foreign owner of an interest equal to or greater than 5 percent in the applicant;
                (viii) Each foreign lender and amount of debt where foreign indebtedness exceeds 25 percent of an applicant's total indebtedness;
                (ix) A person upon who service of all documents may be made.
                (2) A description of any significant or substantial agreements between the applicant, its affiliates and subsidiaries, with foreign nation or person, including copies if available;
                (3) A copy of the charter or other authorizing instrument certified by the jurisdiction in which the applicant is incorporated or organized and authorized to do business.
                Sec. II Launch Segment Information
                Provide the characteristics of the launch segment to include:
                (1) Proposed launch schedule;
                (2) Proposed launch vehicle source;
                (3) Proposed launch site;
                (4) Anticipated operational date;
                (5) The range of orbits and altitudes (nominal apogee and perigee);
                (6) Inclination angle;
                (7) Orbital period.
                Sec. III Space Segment
                (1) The name of the system and the number of satellites which will compose this system;
                (2) Technical space system information at the level of detail typical of a request for proposal specification (including sensor type; spatial and spectral resolution; pointing parameters, etc.);
                (3) Anticipated best theoretical resolution (show calculation);
                (4) Swath width of each sensor (typically at nadir);
                (5) The various fields of view for each sensor (IFOV, in-track, cross-track);
                (6) On-board storage capacity;
                (7) Navigation capabilities—GPS, star tracker accuracies;
                (8) Time-delayed integration with focal plane;
                (9) Oversampling capability;
                (10) Image motion parameters—linear motion, drift; aggregation modes;
                (11) Anticipated system lifetime.
                Sec. IV Ground Segment
                (1) The system data collection and processing capabilities proposed including but not limited to: Tasking procedures; scheduling plans; data format (downlinked and distributed data); timeliness of delivery; ground segment information regarding the location of proposed operations centers and stations, and tasking, telemetry and control; data distribution and archiving plans;

                (2) The command (uplink and downlink) and mission data (downlink) transmission frequencies and system transmission (uplink and downlink) footprint, the downlink data rate, any plans for communications crosslinks;
                (3) The plans for protection of uplink, downlink and any data links;
                (4) The methods applicant will use to ensure the integrity of its operations, including plans for: Positive control of the remote sensing space system and relevant operations centers and stations; denial of unauthorized access to data transmissions to or from the remote sensing space system; and restriction of collection and/or distribution of unenhanced data from specific areas at the request of the U.S. Government.
                Sec. V Other Information
                A. The applicant's plans for providing access to or distributing the unenhanced data generated by the system including:
                (1) A description of the plan for the sale and distribution of such data;
                (2) The method for making the data available to governments whose territories have been sensed;
                (3) A description of the plans for making data requested and purchased by the Department of the Interior available to the National Satellite Land Remote Sensing Data Archive for inclusion in the basic data set; and
                (4) The licensee's plans to make the data available for non-commercial scientific, educational, or other public benefit purposes, such as the study of the changing global environment.
                B. If the applicant is proposing to follow a commercial data distribution and pricing policy as provided for by § 960.12, the application shall include the following additional financial information:
                (1) The extent of the private investment in the system;
                (2) The extent of any direct funding or other direct assistance which the applicant or its affiliates or subsidiaries have received or anticipate receiving from any agency of the U.S. Government for the development, fabrication, launch, or operation of the system including direct financial support, loan guarantees, or the use of U.S. Government equipment or services;
                (3) Any existing or anticipated contract(s) between the applicant, affiliate, or subsidiary and U.S. Government agencies for the purchase of data, information, or services from the proposed system;
                (4) Any other relationship between the applicant, affiliate, or subsidiary and the U.S. Government which has supported the development, fabrication, launch, or operation of the system; and
                (5) Any plans to provide preferred or exclusive access to the unenhanced data to any particular user or class of users.
                C. The applicant will submit a plan for post-mission disposition of any remote-sensing satellites owned or operated by the applicant. If the satellite disposition involves an atmospheric re-entry the applicant must provide an estimate of the total debris casualty area of the system's components and structure likely to survive re-entry.

                Pt. 960, App. 2
                Appendix 2 to Part 960—Fact Sheet Regarding the Memorandum of Understanding Concerning the Licensing of Private Remote Sensing Satellite Systems Dated February 2, 2000
                The White House, Office of Science and Technology Policy and National Security Council
                February 2, 2000.
                FACT SHEET REGARDING THE MEMORANDUM OF UNDERSTANDING CONCERNING THE LICENSING OF PRIVATE REMOTE SENSING SATELLITE SYSTEMS
                A Memorandum of Understanding (MOU) has been concluded between the Departments of Commerce, State, Defense, Interior and the Intelligence Community regarding interagency procedures on commercial remote sensing systems.
                Background

                The Secretary of Commerce, through the National Oceanic and Atmospheric Administration, is responsible for administering the licensing of private remote sensing satellite systems pursuant to the Land Remote Sensing Policy Act of 1992. The Act also grants to the Secretaries of State and Defense the authority to determine conditions necessary to protect international obligations, foreign policy concerns, and national security concerns. The purpose of the MOU is to establish interagency procedures concerning the process for handling remote sensing licensing actions, and consultation regarding interruption of normal commercial operations consistent with the President's policy on remote sensing. In consultation with affected agencies, limitations on commercial remote sensing systems will be imposed by the Secretary of Commerce when necessary to meet international obligations and national security and foreign policy concerns and will be in accord with the determinations of the Secretary of Defense and the Secretary of State and with applicable law. Procedures for implementing this policy are set out below.

                Procedures
                A. Consultation During Review of Licensing Actions
                Pursuant to section 5621(c) of the Land Remote Sensing Policy Act of 1992, the Secretary of Commerce shall review any application and make a determination thereon within 120 days of receipt of such application. If final action has not occurred within such time, then the Secretary shall inform the applicant of any pending issues and of actions required to resolve them. Copies of requests for licensing actions received by the Department of Commerce (DOC) will be provided by DOC to the Department of State (DOS), the Department of Defense (DOD), the Department of the Interior (DOI), and the Intelligence Community (IC) within 3 working days.
                DOC will defer its decision on such licensing actions until the other Parties concerned have had a reasonable time to review them, as provided in this section.
                (1) Within 10 working days of receipt, DOS, DOD, DOI, or IC shall notify the Department of Commerce, in writing, of any additional information it believes is necessary to properly evaluate the licensing action, or notify DOC in writing of the additional time, not to exceed 10 working days, necessary to complete the review. This notification shall state the specific reasons why the additional information is sought.
                (2) After receiving a complete license package or the information requested in paragraph (1), DOS, DOD, DOI, and IC will complete their review of the license package within 30 days or notify DOC in writing of additional time necessary to complete the review. If DOS, DOD, or IC conclude that imposition of conditions on the actions being reviewed may be necessary to protect international obligations, foreign policy concerns, or national security concerns, the agency identifying the concern will promptly notify DOC in writing with a copy to other interested agencies. Such notification shall: (i) Describe the national security interests, or the international obligations or specific foreign policies at risk if the applicant's system is approved as proposed; (ii) set forth in detail the basis for the conclusion that operation of the applicant's system as proposed will not preserve the national security interests or the international obligations or specific foreign policies identified; and (iii) specify the additional conditions necessary to preserve the relevant United States interests or set forth in detail why denial is required to preserve such interests.
                (3) Within 10 days of sending this notification, representatives of DOS, DOD, DOC, DOI, and IC will meet to discuss and resolve any issues with regard to these proposed conditions.
                (4) If, after such discussions, DOS or DOD conclude that such conditions are necessary but DOC does not concur, the Secretary of State or the Secretary of Defense may make such a determination of necessary conditions in writing. This function may not be delegated below the acting Secretary or the Deputy Secretary. Such determinations will be promptly forwarded to DOC and a copy will be provided to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology.
                (5) Upon notification of such a determination, DOC will suspend any further action on the license that would be inconsistent with the DOS or DOD determination. If the Secretary of Commerce believes the limits defined by another Secretary are inappropriate, the Secretary of Commerce or Deputy Secretary shall then consult with his or her counterpart in the relevant department within 10 days regarding any unresolved issues. If the relevant Secretaries are unable to resolve any issues, the Secretary of Commerce will so notify the Assistant to the President for National Security Affairs, who, in coordination with the Assistant to the President for Science and Technology, will seek to achieve a consensus within the interagency, or failing that, by referral to the President. All efforts will be taken to resolve the dispute within 3 weeks of its submission to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology.
                B. Consultation Regarding Interruption of Normal Commercial Operations
                (1) This section establishes the process for requiring the licensee to limit data collection and/or distribution by the system during periods when national security or international obligations and/or foreign policies may be compromised, as determined by the Secretary of Defense or the Secretary of State. DOC will provide to the other Parties copies of licensee correspondence and documents that describe how the licensee will comply with such interruptions of its commercial operations.
                (2) Conditions should be imposed for the smallest area and for the shortest period necessary to protect the national security, international obligations, or foreign policy concerns at issue.
                Alternatives to prohibitions on collection and/or distribution shall be considered such as delaying the transmission or distribution of data, restricting the field of view of the system, encryption of the data if available, or other means to control the use of the data.

                (3) Except where urgency precludes it, DOS, DOD, DOC and IC will consult to attempt to come to an agreement concerning appropriate conditions, if any, to be imposed on the licensee in accordance with determinations made by DOS or DOD. Consultations shall be constructed so that, in the event an agreement cannot be reached at the staff level, sufficient time will remain to allow the Secretary of Commerce to consult personally with the Secretary of State or the Secretary of Defense, as appropriate, prior to the issuance of a determination by the Secretary of State or the Secretary of Defense in accordance with (4) below. That function shall not be delegated below the acting Secretary.
                (4) After such consultations, or when the Secretary of State or the Secretary of Defense specifically determines that urgency precludes consultation with the Secretary of Commerce, the Secretary of State or the Secretary of Defense, shall determine the conditions necessary to meet international obligations, significant foreign policy concerns, or significant national security concerns, especially where those interests identified in the National Security Strategy would be put at risk. This function shall not be delegated below the acting Secretary. The Secretary of State or the Secretary of Defense will provide to the Secretary of Commerce his or her determination regarding the conditions required to be imposed on the licensee. The determination will describe the international obligations, specific foreign policy, or national security interest at risk. Upon receipt of the determination, DOC shall immediately notify the licensee of the imposition of limiting conditions on commercial operations. Copies of the determination and any implementing DOC action will be provided promptly to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology.
                (5) If the Secretary of Commerce believes the conditions determined by another Secretary are inappropriate, he or she will, simultaneous with notification of, and imposition of such conditions on, the licensee, so notify the Secretary of Defense or the Secretary of State, as appropriate, the Assistant to the President for National Security Affairs, and the Assistant to the President for Science and Technology. The Assistant to the President for National Security Affairs, in coordination with the Assistant to the President for Science and Technology, will initiate as soon as possible a Principals-level consultative process to achieve a consensus within the interagency, or, failing that, refer the matter to the President for decision. All efforts will be taken to resolve the disagreement within 7 working days of its submission to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology.
                C. Coordination Before Release of Information Provided or Generated by Other Agencies
                Before releasing any information provided or generated by another agency to a licensee or potential licensee, to the public, or to an administrative law judge, each agency agrees to consult with the agency that provided or generated the information. The purpose of such consultations will be to review the propriety of any proposed release of information that may be privileged because it is classified, pre-decisional, deliberative, contain proprietary information, or is protected for other reasons. No information shall be released without the approval of the agency that provided or generated it unless required by law.
                D. No Legal Rights or Remedies, or Legally Enforceable Causes of Action, Are Created or Intended To Be Created by the MOU.

            Pt. 970
            PART 970—DEEP SEABED MINING REGULATIONS FOR EXPLORATION LICENSES

                Subpart A—General
                Sec.
                970.100
                Purpose.
                970.101
                Definitions.
                970.102
                Nature of licenses.
                970.103
                Prohibited activities and restrictions.

                Subpart B—Applications
                970.200
                General.

                  Contents
                  970.201
                  Statement of financial resources.
                  970.202
                  Statement of technological experience and capabilities.
                  970.203
                  Exploration plan.
                  970.204
                  Environmental and use conflict analysis.
                  970.205
                  Vessel safety.
                  970.206
                  Statement of ownership.
                  970.207
                  Antitrust information.
                  970.208
                  Fee.

                  Procedures
                  970.209
                  Substantial compliance with application requirements.
                  970.210
                  Reasonable time for full compliance.
                  970.211
                  Consultation and cooperation with Federal agencies.
                  970.212
                  Public notice, hearing and comment.

                  970.213
                  Amendment to an application.

                Subpart C—Procedures for Applications Based on Exploration Commenced Before June 28, 1980; Resolution of Conflicts Among Overlapping Applications; Applications by New Entrants
                970.300
                Purposes and definitions.
                970.301
                Requirements for applications based on pre-enactment exploration.
                970.302
                Procedures and criteria for resolving conflicts.
                970.303
                Procedures for new entrants.
                970.304
                Action on portions of applications or amendments not in conflict.

                Subpart D—Certification of Applications
                970.400
                General.
                970.401
                Financial responsibility.
                970.402
                Technological capability.
                970.403
                Previous license and permit obligations.
                970.404
                Adequate exploration plan.
                970.405
                Appropriate exploration site size and location.
                970.406
                Fee payment.
                970.407
                Denial of certification.
                970.408
                Notice of certification.

                Subpart E—Issuance/Transfer/Terms, Conditions and Restrictions
                970.500
                General.

                  Issuance/Transfer; Modification/Revision; Suspension/Revocation
                  970.501
                  Proposal to issue or transfer and of terms, conditions and restrictions.
                  970.502
                  Consultation and cooperation with Federal agencies.
                  970.503
                  Freedom of the high seas.
                  970.504
                  International obligations of the United States.
                  970.505
                  Breach of international peace and security involving armed conflict.
                  970.506
                  Environmental effects.
                  970.507
                  Safety at sea.
                  970.508
                  Denial of issuance or transfer.
                  970.509
                  Notice of issuance or transfer.
                  970.510
                  Objections to terms, conditions and restrictions.
                  970.511
                  Suspension or modification of activities; suspension or revocation of licenses.
                  970.512
                  Modification of terms, conditions and restrictions.
                  970.513
                  Revision of a license.
                  970.514
                  Scale requiring application procedures.
                  970.515
                  Duration of a license.
                  970.516
                  Approval of license transfers.

                  Terms, Conditions, and Restrictions
                  970.517
                  Diligence requirements.
                  970.518
                  Environmental protection requirements.
                  970.519
                  Resource conservation requirements.
                  970.520
                  Freedom of the high seas requirements.
                  970.521
                  Safety at sea requirements.
                  970.522
                  Monitoring requirements.
                  970.523
                  Special terms, conditions, and restrictions.
                  970.524
                  Other Federal requirements.

                Subpart F—Resource Development Concepts
                970.600
                General.
                970.601
                Logical mining unit.
                970.602
                Diligent exploration.
                970.603
                Conservation of resources.

                Subpart G—Environmental Effects
                970.700
                General.
                970.701
                Significant adverse environmental effects.
                970.702
                Monitoring and mitigation of environmental effects.

                Subpart H—Safety of Life and Property at Sea
                970.800
                General.
                970.801
                Criteria for safety of life and property at sea.

                Subpart I—Miscellaneous
                970.900
                Other applicable regulations.

                Subparts J-W [Reserved]

                Subpart X—Pre-enactment Exploration
                970.2401
                Definitions.
                970.2402
                Notice of pre-enactment exploration.

                Subpart Y—Pre-license Exploration
                970.2501
                Notice of pre-license exploration voyages.
                970.2502
                Post voyage report.
                970.2503
                Suspension of exploration activities.

                Subpart Z—Miscellaneous
                970.2601
                Additional information.

              Authority:
              30 U.S.C. 1401 et seq.

              Subpart A—General

                Source:
                46 FR 45896, Sept. 15, 1981, unless otherwise noted.

                § 970.100
                Purpose.
                (a) General. The purpose of this part is to implement those responsibilities and authorities of the National Oceanic and Atmospheric Administration (NOAA), pursuant to Public Law 96-283, the Deep Seabed Hard Mineral Resources Act (the Act), to issue to eligible United States citizens licenses for the exploration for deep seabed hard minerals.
                (b) Purposes of the Act. In preparing these regulations NOAA has been mindful of the purposes of the Act, as set forth in section 2(b) thereof. These include:
                (1) Encouraging the successful conclusion of a comprehensive Law of the Sea Treaty, which will give legal definition to the principle that the hard mineral resources of the deep seabed are the common heritage of mankind and which will assure, among other things, nondiscriminatory access to such resources for all nations;
                (2) Establishing, pending the ratification by, and entering into force with respect to, the United States of such a treaty, an interim program to regulate the exploration for and commercial recovery of hard mineral resources of the deep seabed by United States citizens;
                (3) Accelerating the program of environmental assessment of exploration for and commercial recovery of hard mineral resources of the deep seabed and assuring that such exploration and recovery activities are conducted in a manner which will encourage the conservation of such resources, protect the quality of the environment, and promote the safety of life and property at sea;
                (4) Encouraging the continued development of technology necessary to recover the hard mineral resources of the deep seabed; and
                (5) Pending the ratification by, and entry into force with respect to, the United States of a Law of the Sea Treaty, providing for the establishment of an international revenue-sharing fund the proceeds of which will be used for sharing with the international community pursuant to such treaty.
                (c) Regulatory approach. (1) These regulations incorporate NOAA's recognition that the deep seabed mining industry is still evolving and that more information must be developed to form the basis for future decisions by industry and by NOAA in its implementation of the Act. They also recognize the need for flexibility in order to promote the development of deep seabed mining technology, and the usefulness of allowing initiative by miners to develop mining techniques and systems in a manner compatible with the requirements of the Act and regulations. In this regard, the regulations reflect an approach, pursuant to the Act, whereby their provisions ultimately will be addressed and evaluated on the basis of exploration plans submitted by applicants.
                (2) In addition, these regulations reflect NOAA's recognition that the difference in scale and effects between exploration for and commercial recovery of hard mineral resources normally requires that they be distinguished and addressed separately. This distinction is also based upon the evolutionary stage of the seabed mining industry referenced above. Thus, NOAA will issue separate regulations pertaining to commercial recovery, in part 971 of this chapter.
                [46 FR 45896, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982]

                § 970.101
                Definitions.
                For purposes of this part, the term:
                (a) Act means the Deep Seabed Hard Mineral Resources Act (Pub. L. 96-283; 94 Stat. 553; 30 U.S.C. 1401 et seq.);
                (b) Administrator means the Administrator of the National Oceanic and Atmospheric Administration, or a designee;
                (c) Applicant means an applicant for an exploration license pursuant to the Act and this part;
                (d) Affiliate means any person:
                (1) In which the applicant or licensee owns or controls more than 5% interest;
                (2) Which owns or controls more than 5% interest in the applicant or licensee; or
                (3) Which is under common ownership or control with the applicant or licensee.
                (e) Commercial recovery means:

                (1) Any activity engaged in at sea to recover any hard mineral resource at a substantial rate for the primary purpose of marketing or commercially using such resource to earn a net profit, whether or not such net profit is actually earned;

                (2) If such recovered hard mineral resource will be processed at sea, such processing; and
                (3) If the waste of such activity to recover any hard mineral resource, or of such processing at sea, will be disposed of at sea, such disposal;
                (f) Continental Shelf means:
                (1) The seabed and subsoil of the submarine areas adjacent to the coast, but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of such submarine area; and
                (2) The seabed and subsoil of similar submarine areas adjacent to the coast of islands;
                (g) Controlling interest, for purposes of paragraph (t)(3) of this section, means a direct or indirect legal or beneficial interest in or influence over another person arising through ownership of capital stock, interlocking directorates or officers, contractual relations, or other similar means, which substantially affect the independent business behavior of such person;
                (h) Deep seabed means the seabed, and the subsoil thereof to a depth of ten meters, lying seaward of and outside:
                (1) The Continental Shelf of any nation; and
                (2) Any area of national resource jurisdiction of any foreign nation, if such area extends beyond the Continental Shelf of such nation and such jurisdiction is recognized by the United States;
                (i) Exploration means:
                (1) Any at-sea observation and evaluation activity which has, as its objective, the establishment and documentation of:
                (i) The nature, shape, concentration, location, and tenor of a hard mineral resource; and
                (ii) The environmental, technical, and other appropriate factors which must be taken into account to achieve commercial recovery; and
                (2) The taking from the deep seabed of such quantities of any hard mineral resource as are necessary for the design, fabrication and testing of equipment which is intended to be used in the commercial recovery and processing of such resource;
                (j) Hard mineral resource means any deposit or accretion on, or just below, the surface of the deep seabed of nodules which include one or more minerals, at least one of which contains manganese, nickel, cobalt, or copper;
                (k) International agreement means a comprehensive agreement concluded through negotiations at the Third United Nations Conference on the Law of the Sea, relating to (among other matters) the exploration for and commercial recovery of hard mineral resources and the establishment of an international regime for the regulation thereof;
                (l) Licensee means the holder of a license issued under this part to engage in exploration;
                (m) New entrant means any applicant, with respect to:
                (1) Any application which has not been accorded a pre-enactment explorer priority of right under § 970.301; or
                (2) Any amendment which has not been accorded a pre-enactment explorer priority of right under § 970.302.
                (n) NOAA means the National Oceanic and Atmospheric Administration;
                (o) Permittee means the holder of permit issued under NOAA regulations to engage in commercial recovery;
                (p) Person means any United States citizen, any individual, and any corporation, partnership, joint venture, association, or other entity organized or existing under the laws of any nation;
                (q) Pre-enactment explorer means a person who was engaged in exploration prior to the date of enactment of the Act (June 28, 1980);
                (r) Reciprocating state means any foreign nation designated as such by the Administrator under section 118 of the Act;
                (s) United States means the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the United States Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States; and
                (t) United States citizen means

                (1) Any individual who is a citizen of the United States;

                (2) Any corporation, partnership, joint venture, association, or other entity organized or existing under the laws of any of the United States; and
                (3) Any corporation, partnership, joint venture, association, or other entity (whether organized or existing under the laws of any of the United States or a foreign nation) if the controlling interest in such entity is held by an individual or entity described in paragraph (t)(1) or (t)(2) of this section.
                [46 FR 45896, Sept. 15, 1981, as amended at 47 FR 5967, Feb. 9, 1982]

                § 970.102
                Nature of licenses.
                (a) A license issued under this part will authorize the holder thereof to engage in exploration within a specific portion of the sea floor consistent with the provisions of the Act, this part, and the specific terms, conditions and restrictions applied to the license by the Administrator.
                (b) Any license issued under this part will be exclusive with respect to the holder thereof as against any other United States citizen or any citizen, national or governmental agency of, or any legal entity organized or existing under the laws of, any reciprocating state.
                (c) A valid existing license will entitle the holder, if otherwise eligible under the provisions of the Act and implementing regulations, to a permit for commercial recovery from an area selected within the same area of the sea floor. Such a permit will recognize the right of the holder to recover hard mineral resources, and to own, transport, use, and sell hard mineral resources recovered, under the permit and in accordance with the requirements of the Act.

                § 970.103
                Prohibited activities and restrictions.
                (a) Prohibited activities and exceptions. (1) Except as authorized under subpart C of this part, no United States citizen may engage in any exploration or commercial recovery unless authorized to do so under:
                (i) A license or a permit issued pursuant to the Act and implementing regulations;
                (ii) A license, permit, or equivalent authorization issued by a reciprocating state; or
                (iii) An international agreement which is in force with respect to the United States.
                (2) The prohibitions of paragraph (a)(1) of this section will not apply to any of the following activities:
                (i) Scientific research, including that concerning hard mineral resources;
                (ii) Mapping, or the taking of any geophysical, geochemical, oceanographic, or atmospheric measurements or random bottom samplings of the deep seabed, if such taking does not significantly alter the surface or subsurface of the deep seabed or significantly affect the environment;
                (iii) The design, construction, or testing of equipment and facilities which will or may be used for exploration or commercial recovery, if such design, construction or testing is conducted on shore, or does not involve the recovery of any but incidental hard mineral resources;
                (iv) The furnishing of machinery, products, supplies, services, or materials for any exploration or commercial recovery conducted under a license or permit issued under the Act and implementing regulations, a license or permit or equivalent authorization issued by a reciprocating state, or under an international agreement; and
                (v) Activities, other than exploration or commercial recovery activities, of the Federal Government.

                (3) No United States citizen may interfere or participate in interference with any activity conducted by any licensee or permittee which is authorized to be undertaken under a license or permit issued by the Administrator to a licensee or permittee under the Act or with any activity conducted by the holder of, and authorized to be undertaken under, a license or permit or equivalent authorization issued by a reciprocating state for the exploration or commercial recovery of hard mineral resources. For purposes of this section, interference includes physical interference with activities authorized by the Act, this part, and a license issued pursuant thereto; the filing of specious claims in the United States or any other nation; and any other activity designed to harass deep seabed mining activities authorized by law. Interference does not include the exercise of any rights granted to United States citizens by the Constitution of the United States, any Federal or State law, treaty, or agreement or regulation promulgated pursuant thereto.
                (4) United States citizens must exercise their rights on the high seas with reasonable regard for the interests of other states in their exercise of the freedoms of the high seas.
                (b) Restrictions on issuance of licenses or permits. The Administrator will not issue:
                (1) Any license or permit after the date on which an international agreement is ratified by and enters into force with respect to the United States, except to the extent that issuance of such license or permit is not inconsistent with such agreement;
                (2) Any license or permit the exploration plan or recovery plan of which, submitted pursuant to the Act and implementing regulations, would apply to an area to which applies, or would conflict with:
                (i) Any exploration plan or recovery plan submitted with any pending application to which priority of right for issuance applies under this part;
                (ii) Any exploration plan or recovery plan associated with any existing license or permit; or
                (iii) Any equivalent authorization which has been issued, or for which formal notice of application has been submitted, by a reciprocating state prior to the filing date of any relevant application for licenses or permits pursuant to the Act and implementing regulations;
                (3) A permit authorizing commercial recovery within any area of the deep seabed in which exploration is authorized under a valid existing license if such permit is issued to a person other than the licensee for such area;
                (4) Any exploration license before July 1, 1981, or any permit which authorizes commercial recovery to commence before January 1, 1988;
                (5) Any license or permit the exploration plan or recovery plan for which applies to any area of the deep seabed if, within the 3-year period before the date of application for such license or permit:
                (i) The applicant therefor surrendered or relinquished such area under an exploration plan or recovery plan associated with a previous license or permit issued to such applicant; or
                (ii) A license or permit previously issued to the applicant had an exploration plan or recovery plan which applied to such area and such license or permit was revoked under section 106 of the Act; or
                (6) A license or permit, or approve the transfer of a license or permit, except to a United States citizen.

              Subpart B—Applications

                Source:
                46 FR 45898, Sept. 15, 1981, unless otherwise noted.

                § 970.200
                General.
                (a) Who may apply; how. Any United States citizen may apply to the Administrator for issuance or transfer of an exploration license. Applications must be submitted in the form and manner prescribed in this subpart.
                (b) Place, form and copies. Applications for the issuance or transfer of exploration licenses must be submitted in writing, verified and signed by an authorized officer or other authorized representative of the applicant, in 30 copies, to the following address: Office of Ocean Minerals and Energy, National Oceanic and Atmospheric Administration, suite 410, Page 1 Building, 2001 Wisconsin Avenue, NW., Washington, DC 20235. The Administrator may waive, in whole or in part, at his discretion, the requirement that 30 copies of an application be filed with NOAA.
                (c) Use of application information. The contents of an application, as set forth below, must provide NOAA with the information necessary to make determinations required by the Act and this part pertaining to the issuance or transfer of an exploration license. Thus, each portion of the application should identify the requirement in this part to which it responds. In addition, the information will be used by NOAA in its function under the Act of consultation and cooperation with other Federal agencies or departments in relation to their programs and authorities, in order to reduce the number of separate actions required to satisfy Federal agencies' responsibilities.
                (d) Pre-application consultation. To assist in the development of adequate applications and assure that applicants understand how to respond to the provisions of this subpart, NOAA will be available for pre-application consultations with potential applicants. This includes consultation on the procedures in subpart C. In appropriate circumstances, NOAA will provide written confirmation to the applicant of any oral guidance resulting from such consultations.
                (e) Priority of right. (1) Priority of right for issuance of licenses to pre-enactment explorers will be established pursuant to subpart C of this part.
                (2) Priority of right for issuance of licenses to new entrants will be established on the basis of the chronological order in which license applications, which are in substantial compliance with the requirements established under this subpart, pursuant to § 970.209, are filed with the Administrator.
                (3) Applications must be received by the Office of Ocean Minerals and Energy on behalf of the Administrator before a priority can be established.
                (4) Upon (i) a determination that:
                (A) An application is not in substantial compliance in accordance with § 970.209 or subpart C, as applicable;
                (B) An application has not been brought into substantial compliance in accordance with § 970.210 or subpart C, as applicable;
                (C) A license has been relinquished or surrendered in accordance with § 970.903; or
                (ii) A decision to:
                (A) Deny certification of a license pursuant to § 970.407; or
                (B) Deny issuance of a license pursuant to § 970.508,
                and after the exhaustion of any administrative or judicial review of such determination or decision, the priority of right for issuance of a license will lapse.
                (f) Request for confidential treatment of information. If an applicant wishes to have any information in his application treated as confidential, he must so indicate pursuant to 15 CFR 971.802.
                [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 5968, Feb. 9, 1982; 54 FR 547, Jan. 6, 1989]

                Contents

                  § 970.201
                  Statement of financial resources.
                  (a) General. The application must contain information sufficient to demonstrate to the Administrator the financial resources of the applicant to carry out, in accordance with this part, the exploration program set forth in the applicant's exploration plan. The information must show that the applicant is reasonably capable of committing or raising sufficient resources to cover the estimated costs of the exploration program. The information must be sufficient for the Administrator to make a determination on the applicant's financial responsibility pursuant to § 970.401.
                  (b) Contents. In particular, the information on financial resources must include:
                  (1) A description of how the applicant intends to finance the exploration program;
                  (2) The estimated cost of the exploration program;
                  (3) With respect to the applicant and those entities upon which the applicant will rely to finance his exploration activities, the most recent audited financial statement (for publicly-held companies, the most recent annual report and Form 10-K filed with the Securities and Exchange Commission will suffice in this regard); and
                  (4) The credit rating and bond rating of the applicant, and such financing entities, to the extent they are relevant.

                  § 970.202
                  Statement of technological experience and capabilities.
                  (a) General. The application must contain information sufficient to demonstrate to the Administrator the technological capability of the applicant to carry out, in accordance with the regulations contained in this part, the exploration program set out in the applicant's exploration plan. It must contain sufficient information for the Administrator to make a determination on the applicant's technological capability pursuant to § 970.402.
                  (b) Contents. In particular, the information submitted pursuant to this section must demonstrate knowledge and skills which the applicant either possesses or to which he can demonstrate access. The information must include:
                  (1) A description of the exploration equipment to be used by the applicant in carrying out the exploration program;
                  (2) A description of the environmental monitoring equipment to be used by the applicant in monitoring the environmental effects of the exploration program; and
                  (3) The experience on which the applicant will rely in using this or similar equipment.

                  § 970.203
                  Exploration plan.
                  (a) General. Each application must include an exploration plan which describes the applicant's projected exploration activities during the period to be covered by the proposed license. Generally, the exploration plan must demonstrate to a reasonable extent that the applicant's efforts, by the end of the 10-year license period, will likely lead to the ability to apply for and obtain a permit for commercial recovery. In particular, the plan must include sufficient information for the Administrator, pursuant to this part, to make the necessary determinations pertaining to the certification and issuance or transfer of a license and to the development and enforcement of the terms, conditions and restrictions for a license.
                  (b) Contents. The exploration plan must contain the following information. In presenting this information, the plan should incorporate the applicant's proposed individual approach, including a general description of how projected participation by other entities will relate to the following elements, if appropriate. The plan must present:
                  (1) The activities proposed to be carried out during the period of the license;
                  (2) A description of the area to be explored, including its delineation according to § 970.601;
                  (3) The intended exploration schedule which must be responsive to the diligence requirements in § 970.602. Taking into account that different applicants may have different concepts and chronologies with respect to the types of activities described, the schedule should include an approximate projection for the exploration activities planned. Although the details in each schedule may vary to reflect the applicant's particular approach, it should address in some respect approximately when each of the following types of activities is projected to occur.
                  (i) Conducting survey cruises to determine the location and abundance of nodules as well as the sea floor configuration, ocean currents and other physical characteristics of potential commercial recovery sites;
                  (ii) Assaying nodules to determine their metal contents;
                  (iii) Designing and testing system components onshore and at sea;
                  (iv) Designing and testing mining systems which simulate commercial recovery;
                  (v) Designing and testing processing systems to prove concepts and designing and testing systems which simulate commercial processing;
                  (vi) Evaluating the continued feasibility of commercial scale operations based on technical, economic, legal, political and environmental considerations; and
                  (vii) Applying for a commercial recovery permit and, to the extent known, other permits needed to construct and operate commercial scale facilities (if application for such permits is planned prior to obtaining a commercial recovery permit);

                  (4) A description of the methods to be used to determine the location, abundance, and quality (i.e., assay) of nodules, and to measure physical conditions in the area which will affect nodule recovery system design and operations (e.g., seafloor topography, seafloor geotechnic properties, and currents);

                  (5) A general description of the developing recovery and processing technology related to the proposed license, and of any planned or ongoing testing and evaluation of such technology. To the extent possible at the time of application, this description should address such factors as nodule collection technique, seafloor sediment rejection subsystem, mineship nodule separation scheme, pumping method, anticipated equipment test areas, and details on the testing plan;
                  (6) An estimated schedule of expenditures, which must be responsive to the diligence requirements as discussed in § 970.602;
                  (7) Measures to protect the environment and to monitor the effectiveness of environmental safeguards and monitoring systems for commercial recovery. These measures must take into account the provisions in §§ 970.506, 970.518, 970.522 and subpart G of this part; and
                  (8) A description of any relevant activity that the applicant has completed prior to the submission of the application.

                  § 970.204
                  Environmental and use conflict analysis.
                  (a) Environmental information. To enable NOAA to implement better its responsibility under section 109(d) of the Act to develop an environmental impact statement (EIS) on the issuance of an exploration license, the application must include information for use in preparing NOAA's EIS on the environmental impacts of the activities proposed by the applicant. The applicant must present physical, chemical and biological information for the exploration area. This information should include relevant environmental information, if any, obtained during past exploration activities, but need not duplicate information obtained during NOAA's DOMES Project. Planned activities in the area, including the testing of integrated mining systems which simulate commercial recovery, also must be described. NOAA will need information with the application on location and boundaries of the proposed exploration area, and plans for delineation of features of the exploration area including baseline data or plans for acquiring them. The applicant may at his option delay submission of baseline and equipment data and system test plans. However, applicants so electing should plan to submit this latter information at least one year prior to the initial test, to allow time for the supplement to the site-specific EIS, if one is required, to be prepared by NOAA, circulated, reviewed and filed with EPA. The submission of this information with the application is strongly encouraged, however, to minimize the possibility that a supplement will be required. If such latter information is submitted subsequent to the original application such tests may not be undertaken in the absence of concurrence by NOAA (which, if applicable, will be required in a term, condition, or restriction in the license). NOAA has developed a technical guidance document which will provide assistance for the agency and the applicant, in consultation, to identify the details on information needed in each case. NOAA may refer to such information for purposes of other determinations under the Act as well. NOAA also will seek to facilitate other Federal and, as necessary, state decisions on exploration activities by functioning as lead agency for the EIS on the application and related actions by other agencies, including those pertaining to any onshore impacts which may result from the proposed exploration activities.
                  (b) Use conflict information. To assist the Administrator in making determinations relating to potential use conflicts between the proposed exploration and other activities in the exploration area, pursuant to §§ 970.503, 970.505, and 970.520, the application must include information known to the applicant with respect to such other activities.

                  § 970.205
                  Vessel safety.
                  In order to provide a basis for the necessary determinations with respect to the safety of life and property at sea, pursuant to §§ 970.507, 970.521 and subpart H of this part, the application must contain the following information, except for those vessels under 300 gross tons which are engaged in oceanographic research if they are used in exploration.
                  (a) U.S. flag vessel. The application must contain a demonstration or affirmation that any United States flag vessel utilized in exploration activities will possess a current valid Coast Guard Certificate of Inspection (COI). To the extent that the applicant knows which United States flag vessel he will be using, the application must include a copy of the COI.
                  (b) Foreign flag vessel. The application must also contain information on any foreign flag vessels to be used in exploration activities, which responds to the following requirements. To the extent that the applicant knows which foreign flag vessel he will be using, the application must include evidence of the following:
                  (1) That any foreign flag vessel whose flag state is party to the International Convention for Safety of Life at Sea, 1974 (SOLAS 74) possesses current valid SOLAS 74 certificates;
                  (2) That any foreign flag vessel whose flag state is not party to SOLAS 74 but is party to the International Convention for the Safety of Life at Sea, 1960 (SOLAS 60) possesses current valid SOLAS 60 certificates; and
                  (3) That any foreign flag vessel whose flag state is not a party to either SOLAS 74 or SOLAS 60 meets all applicable structural and safety requirements contained in the published rules of a member of the International Association of Classification Societies (IACS).
                  (c) Supplemental certificates. If the applicant does not know at the time of submitting an application which vessels he will be using, he must submit the applicable certification for each vessel before the cruise on which it will be used.

                  § 970.206
                  Statement of ownership.
                  The application must include sufficient information to demonstrate that the applicant is a United States citizen, as required by § 970.103(b)(6), and as defined in § 970.101(t). In particular, the application must include:
                  (a) Name, address, and telephone number of the United States citizen responsible for exploration operations to whom notices and orders are to be delivered; and
                  (b) A description of the citizen or citizens engaging in such exploration, including:
                  (1) Whether the citizen is a natural person, partnership, corporation, joint venture, or other form of association;
                  (2) The state of incorporation or state in which the partnership or other business entity is registered;
                  (3) The name of registered agent or equivalent representative and places of business;
                  (4) Certification of essential and nonproprietary provisions in articles of incorporation, charter or articles of association; and
                  (5) The name of each member of the association, partnership, or joint venture, including information about the participation of each partner and joint venturer and/or ownership of stock.

                  § 970.207
                  Antitrust information.
                  (a) General. Section 103(d) of the Act specifically provides for antitrust review of applications by the Attorney General of the United States and the Federal Trade Commission.
                  (b) Contents. In order to provide information for this antitrust review, the application must contain the following:
                  (1) A copy of each agreement between any parties to any joint venture which is applying for a license, provided that said agreement relates to deep seabed hard mineral resource exploration or mining;
                  (2) The identity of any affiliate of any person applying for a license; and
                  (3) For each applicant, its affiliate, or parent or subsidiary of an affiliate which is engaged in production in, or the purchase or sale in or to, the United States of copper, nickel, cobalt or manganese minerals or any metals refined from these minerals:
                  (i) The annual tons and dollar value of any of these minerals and metals so purchased, sold or produced for the two preceding years;
                  (ii) Copies of the annual report, balance sheet and income statement for the two preceding years; and
                  (iii) Copies of each document submitted to the Securities and Exchange Commission.

                  § 970.208
                  Fee.
                  (a) General. Section 104 of the Act provides that no application for the issuance or transfer of an exploration license will be certified unless the applicant pays to NOAA a reasonable administrative fee, which must reflect the reasonable administrative costs incurred in reviewing and processing the application.
                  (b) Amount. In order to meet this requirement, the application must include a fee payment of $100,000, payable to the National Oceanic and Atmospheric Administration, Department of Commerce. If costs incurred by NOAA in reviewing and processing an application are significantly less than or in excess of the original fee, the agency subsequently will determine those differences in costs and adjust the fee accordingly. If the costs are significantly less, NOAA will refund the difference. If they are significantly greater, the applicant will be required to submit the additional payment prior to issue or transfer of the license. In the case of an application for transfer of a license to an entity which has previously been found qualified for a license, the Administrator may, on the basis of pre-application consultations pursuant to § 970.200(d), reduce the fee in advance by an appropriate amount which reflects costs avoided by reliance on previous findings made in relation to the proposed transferee. If an applicant elects to pursue the ‘banking’ option under § 970.601(d), and exercises that option by submitting two applications, only one application fee needs to be submitted with respect to each use of the ‘banking’ option.
                  [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 5966, 5968, Feb. 9, 1982]

                Procedures

                  § 970.209
                  Substantial compliance with application requirements.
                  (a) Priority of right for the issuance of licenses to new entrants will be established on the basis of the chronological order in which license applications which are in substantial compliance with the requirements established under this subpart are filed with the Administrator pursuant to § 970.200.
                  (b) In order for an application to be in substantial compliance with the requirements of this subpart, it must include information specifically identifiable with and materially responsive to each requirement contained in §§ 970.201 through 970.208. A determination on substantial compliance relates only to whether the application contains the required information, and does not constitute a determination on certification of the application, or on issuance or transfer of a license.
                  (c) The Administrator will make a determination as to whether the application is in substantial compliance. Within 30 days after receipt of an application and the opening of coordinates describing the application area, he will issue written notice to the applicant regarding such determination. The notice will identify, if applicable, in what respects the application is not in either full or substantial compliance. If the application is in substantial but not full compliance, the notice will specify the information which the applicant must submit in order to bring it into full compliance, and why the additional information is necessary.
                  [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 11513, Mar. 17, 1982]

                  § 970.210
                  Reasonable time for full compliance.
                  Priority of right will not be lost in case of any application filed which is in substantial but not full compliance, as specified in § 970.209, if the Administrator determines that the applicant, within 60 days after issuance to the applicant by the Administrator of written notice that the application is in substantial but not full compliance, has brought the application into full compliance with the requirements of §§ 970.201 through 970.208.
                  [46 FR 45898, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982]

                  § 970.211
                  Consultation and cooperation with Federal agencies.

                  (a) Promptly after his receipt of an application and the opening of coordinates describing the application area, the Administrator will distribute a copy of the application to each other Federal agency or department which, pursuant to section 103(e) of the Act, has identified programs or activities within its statutory responsibilities which would be affected by the activities proposed in the application (i.e., the Departments of State, Transportation, Justice, Interior, Defense, Treasury and Labor, as well as the Environmental Protection Agency, Federal Trade Commission, Small Business Administration and National Science Foundation). Based on its legal responsibilities and authorities, each such agency or department may, not later than 60 days after it receives a copy of the application which is in full compliance with this subpart, recommend certification of the application, issuance or transfer of the license, or denial of such certification, issuance or transfer. The advice or recommendation by the Attorney General or Federal Trade Commission on antitrust review, pursuant to § 970.207, must be submitted within 90 days after their receipt of a copy of the application which is in full compliance with this subpart. NOAA will use the benefits of this process of consultation and cooperation to facilitate necessary Federal decisions on the proposed exploration activities, pursuant to the mandate of section 103(e) of the Act to reduce the number of separate actions required to satisfy Federal agencies' statutory responsibilities.
                  (b) In any case in which a Federal agency or department recommends a denial, it will set forth in detail the manner in which the application does not comply with any law or regulation within its area of responsibility and will indicate how the application may be amended, or how terms, conditions or restrictions might be added to the license to assure compliance with such law or regulation.
                  (c) A recommendation from another Federal agency or department for denying or amending an application will not affect its having been in substantial compliance with the requirements of this subpart, pursuant to § 970.209, for purposes of establishing priority of right. However, pursuant to section 103(e) of the Act, NOAA will cooperate with such agencies and with the applicant with the goal of resolving the concerns raised and satisfying the statutory responsibilities of these agencies.
                  [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 11513, Mar. 17, 1982]

                  § 970.212
                  Public notice, hearing and comment.
                  (a) Notice and comments. The Administrator will publish in the Federal Register, for each application for an exploration license, notice that such application has been received. Subject to 15 CFR 971.802, interested persons will be permitted to examine the materials relevant to such application. Interested persons will have at least 60 days after publication of such notice to submit written comments to the Administrator.
                  (b) Hearings. (1) After preparation of the draft EIS on an application pursuant to section 109(d) of the Act, the Administrator shall hold a public hearing on the application and the draft EIS in an appropriate location, and may employ such additional methods as he deems appropriate to inform interested persons about each application and to invite their comments thereon.
                  (2) If the Administrator determines there exists one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing will be held in the District of Columbia metropolitan area in accordance with the provisions of subpart I of 15 CFR part 971. The record developed in any such formal hearing will be part of the basis of the Administrator's decisions on an application.
                  (c) Hearings held pursuant to this section and other procedures will be consolidated insofar as practicable with hearings held and procedures employed by other agencies.
                  [46 FR 45898, Sept. 15, 1981, as amended at 54 FR 547, Jan. 6, 1989]

                  § 970.213
                  Amendment to an application.

                  After an application has been submitted to the Administrator, but before a determination is made on the issuance or transfer of a license, the applicant must submit an amendment to the application if required by a significant change in the circumstances represented in the original application and affecting the requirements of this subpart. Applicants should consult with NOAA to determine if changes in circumstances are sufficiently significant to require submission of an amendment. The application, as amended, would then serve as the basis for determinations by the Administrator under this part. For each amendment judged by the Administrator to be significant, he will provide a copy of such amendment to each other Federal agency and department which received a copy of the original application, and also will provide for public notice, hearing and comment on the amendment pursuant to § 970.212. Such amendment, however, will not affect the priority of right established by the filing of the original application. After the issuance of or transfer of a license, any revision by the licensee will be made pursuant to § 970.513.

              Subpart C—Procedures for Applications Based on Exploration Commenced Before June 28, 1980; Resolution of Conflicts Among Overlapping Applications; Applications by New Entrants

                Source:
                47 FR 24948, July 8, 1982, unless otherwise noted.

                § 970.300
                Purposes and definitions.
                (a) This subpart sets forth the procedures which the Administrator will apply to applications filed with NOAA covering areas of the deep seabed where the applicants have engaged in exploration prior to June 28, 1980, and to the resolution of conflicts arising out of such applications. This subpart also establishes the date on which NOAA will begin to accept applications or amendments filed by new entrants, and certain other procedures for new entrants.
                (b) For the purposes of this subpart the term:
                (1) Amendment means an amendment to an application which changes the area applied for;
                (2) Application means an application for an exploration license which is filed pursuant to the Act and this subpart;
                (3) Conflict means the existence of more than one application or amendment with the same priority of right:
                (i) Which are filed with the Administrator or with the Administrator and a reciprocating state; and
                (ii) In which the deep seabed areas applied for overlap in whole or part, to the extent of the overlap;
                (4) Original conflict means a conflict solely between or among applications;
                (5) New conflict means a conflict between or among amendments filed after July 22, 1982, and on or before October 15, 1982;
                (6) Domestic conflict means a conflict solely between or among applications or amendments which have been filed with the Administrator.
                (7) International conflict means a conflict arising between or among applications or amendments filed with the Administrator and a reciprocating state.

                § 970.301
                Requirements for applications based on pre-enactment exploration.
                (a) Pursuant to section 101(b) of the Act, any United States citizen who was engaged in exploration before the effective date of the Act (June 28, 1980) qualifies as a pre-enactment explorer and may continue to engage in such exploration without a license:
                (1) If such citizen applies under this part for a license with respect to such exploration within the time period specified in paragraph (b) of this section; and
                (2) Until such license is issued to such citizen or a final administrative or judicial determination is made affirming the denial of certification of the application for, or issuance of, such license.
                (b) Any application for a license based upon pre-enactment exploration must be filed, at the address specified in § 970.200(b), no later than 5:00 p.m. EST on March 12, 1982 (or such later date and time as the Administrator may announce by regulation). All such applications filed at or before that time will be deemed to be filed on such closing date.
                (c) Applications not filed in accordance with this section will not be considered to be based on pre-enactment exploration, and may be filed only as new entrant applications under § 970.303.

                (d) To receive a pre-enactment explore priority of right for issuance of a license, and application must be, when filed, in substantial compliance with requirements described in § 970.209(b). An application which is in substantial but not full compliance will not lose its priority of right if it is brought into full compliance according to § 970.210.

                (e) Any application based on pre-enactment exploration must be for a reasonably compact area with respect to which the applicant is a pre-enactment explorer, and, notwithstanding any part of § 970.601 which indicates otherwise, such area must be bounded by a single continuous boundary.
                (f) The coordinates and any chart of the logical mining unit applied for in an application based on a pre-enactment exploration must be submitted in a separate, sealed envelope.
                (g) On or before March 12, 1982, the applicants must indicate to the Administrator, other than in the sealed portion of the application:
                (1) The size of the area applied for;
                (2) Whether the applicant or any person on the applicant's behalf has applied, or intends to apply, for the same area or substantially the same area to one or more nations, and the number of such other applications; and
                (3) Whether the other applicant is pursuing the “banking” option under § 970.601(d), and the number of applications filed, or to be filed, in pursuit of the “banking” option.

                § 970.302
                Procedures and criteria for resolving conflicts.
                (a) General. This section governs the resolution of all conflicts between or among applications or amendments having pre-enactment explorer priority of right.
                (b) Identification of applicants. On June 21, 1982, the Administrator will meet with representatives of reciprocating states to identify their respective pre-enactment explorer applicants, and will identify the coordinates of the application areas applied for by such applicants.
                (c) Initial processing. On or before July 13, 1982, the Administrator will determine whether each domestic application is entitled to a priority of right based on pre-enactment exploration in accordance with § 970.301.
                (d) Identification of conflicts. On July 14, 1982, the Administrator will meet with representatives of reciprocating states to exchange lists of applications accorded pre-enactment explorer priorities of right, and will identify any conflicts existing among such applications.
                (e) Notification to applicants of conflicts. If the Administrator identifies a conflict, he will send, no later than July 22, 1982, written notice of the conflict to each domestic applicant involved in the conflict. The notice will:
                (1) Identify each applicant involved in the conflict in question:
                (2) Identify the coordinates of the portions of the application areas which are in conflict;
                (3) Indicate that the applicant may request from the Administrator the coordinates of the application areas from any other applications filed with the Administrator or with a reciprocating state (such coordinates will be provided subject to appropriate confidentiality arrangements);
                (4) State whether;
                (i) Each domestic application involved in the conflict is in substantial or, if known, full compliance with the requirements described in § 970.209(b); and
                (ii) Each foreign application involved in the conflict meets, if known, the legal requirements of the reciprocating state in which it is filed;
                (5) Notify each domestic applicant involved in a conflict that he may, after July 22, 1982, and on or before November 16, 1982, resolve the conflict voluntarily according to paragraph (f) of this section, and that on or after November 17, 1982, any unresolved conflict shall be resolved in accordance with paragraph (j) or (k) of this section, as applicable; and
                (6) In the case of an international conflict, include a copy of any applicable conflict resolution procedures in force between the United States and its reciprocating states pursuant to section 118 of the Act.
                (f) Voluntary resolution of conflicts. Each U.S. applicant involved in a conflict may resolve the conflict after July 22, 1982, and on or before November 16, 1982, by:
                (1) Unilaterally, or by agreement with each other applicant involved in the conflict, filing an amendment to the application eliminating the conflict; or

                (2) Agreeing in writing with the other applicant(s) involved in the conflict to submit it to an agreed binding conflict resolution procedure.

                (g) Amendments. (1) Amendments must be filed in accordance with the requirements for applications described in § 970.200.
                (2) The Administrator will:
                (i) Accept no amendment prior to July 23, 1982;
                (ii) Accord pre-enactment explorer priority of right only to amendments which:
                (A) Pertain to areas with respect to which the applicant has engaged in pre-enactment exploration;
                (B) Resolve an existing conflict with respect to that application;
                (C) Do not apply for an area included in an application filed pursuant to § 970.301 which is accorded pre-enactment explorer priority of right or an application identified pursuant to § 970.302(b) which has been filed with a reciprocating state; and
                (D) Are filed on or before October 15, 1982; and
                (iii) Accord amendments which meet the requirements of this paragraph (g) the same priority of right as the applications to which they pertain.
                (3) The area applied for in an amendment need not be adjacent to the area applied for in the original application.
                (4) Amendments not accorded pre-enactment explorer priority of right may be filed as new entrant amendments under § 970.303.
                (h) Notification of amendments and new conflicts. The Administrator will:
                (1) No later than October 25, 1982, notify each reciprocating state of any amendment accorded pre-enactment explorer priority of right pursuant to paragraph (g) of this section and, in cooperation with such states, identify any new conflicts;
                (2) No later than October 27, 1982, notify each domestic applicant who is involved in a new conflict. The notice will:
                (i) Identify each applicant with whom each new conflict has arisen;
                (ii) Identify the coordinates of each area in which the applicant is involved in a new conflict;
                (iii) Indicate that the applicant may request from the Administrator the coordinates of each area included in an amendment accorded pre-enactment explorer priority of right pursuant to paragraph (g) of this section, or for which notice has been received from a reciprocating state (such coordinates will be provided subject to appropriate confidentiality arrangements);
                (iv) Notify the applicant that he may, on or before November 16, 1982, resolve the conflict voluntarily according to paragraph (f) of this section, and that on or after November 17, 1982, any unresolved conflict shall be resolved in accordance with paragraph (j) or (k) of this section, as applicable; and
                (v) In the case of an international conflict, include a copy of any applicable conflict resolution procedures in force between the United States and its reciprocating states pursuant to section 118 of the Act.
                (i) Government assistance in resolving international conflicts. If, by October 26 1982, the applicants have not resolved, or agreed in writing to a specified binding procedure to resolve, an original international conflict, or new international conflict, the Administrator, the Secretary of State of the United States, and appropriate officials of the government of the reciprocating state to which the other applicant involved in the conflict applied will use their good offices to assist the applicants to resolve the conflict. After November 16, 1982, any unresolved international conflicts will be resolved in accordance with paragraph (k) of this section.
                (j) Unresolved domestic conflict—(1) Procedure. (i) In the case of an original domestic conflict or a new domestic conflict, the applicants will be allowed until April 15, 1983, to resolve the conflict or agree in writing to submit the conflict to a specified binding conflict resolution procedure. If, by April 15, 1983, all applicants involved in an original or new domestic conflict have not resolved that conflict, or agreed in writing to submit the conflict to a specified binding conflict resolution procedure, the conflict will be resolved in a formal hearing held in accordance with subpart I of 15 CFR part 971, except that:

                (A) The General Counsel of NOAA will not, as a matter of right, be a party to the hearing; however, the General Counsel may be admitted to the hearing by the administrative law judge as a party or as an interested person pursuant to 15 CFR 971.901 (f)(2) or (f)(3); and
                (B) The administrative law judge will take such actions as he deems necessary and appropriate to conclude the hearing and transmit a recommended decision to the Administrator in an expeditious manner.
                (ii) Notwithstanding the above, at any time on or after November 17, 1982, and on or before April 14, 1983, the applicants involved in the conflict may, by agreement, request the Administrator to resolve the conflict in a formal hearing as described above.
                (2) Decision principles for NOAA formal conflict resolution. (i) The Administrator shall determine which applicant involved in a conflict between or among pre-enactment explorer applications or amendments shall be awarded all or part of each area in conflict.
                (ii) The determination of the Administrator shall be based on the application of principles of equity which take into consideration, with respect to each applicant involved in the conflict, the following factors:
                (A) The continuity and extent of activities relevant to each area in conflict and the application area of which it is a part;
                (B) The date on which each applicant involved in the conflict, or predecessor in interest or component organization thereof, commenced activities at sea in the application area;
                (C) The financial cost of activities relevant to each area in conflict and to the application area of which it is a part, measured in constant dollars;
                (D) The time when the activities were carried out, and the quality of the activities; and
                (E) Such additional factors as the Administrator determines to be relevant, but excluding consideration of the future work plans of the applicants involved in any conflict.

                (iii) For the purposes of this paragraph (j) of this section, the word activities means the undertakings, commitments of resources investigations, findings, research, engineering development and other activities relevant to the identification, discovery, and systematic analysis and evaluation of hard mineral resources and to the determination of the technical and economic feasibility of commercial recovery.

                (iv) When considering the factors specified in paragraph (j)(2)(ii) of this section, the Administrator shall hear, and shall (except for purposes of apportionment pursuant to paragraph (j)(2)(v) of this section) limit his consideration to, all evidence based on the activities specified in paragraph (j)(2)(ii) of this section which were conducted on or before January 1, 1982, Provided, however, That an applicant must prove at-sea activities in the area in conflict prior to June 28, 1980, as a pre-condition to presentation of further evidence to the Administrator regarding activities in the area in conflict.
                (v) In making his determination, the Administrator may award the entire area in conflict to one applicant involved in the conflict, or he may apportion the area among any or all of the applicants involved in the conflict. If, after applying the principles of equity, the Administrator determines that the area in conflict should be apportioned, the Administrator shall (to the maximum extent practicable consistent with the Administrator's application of the principles of equity) apportion the area in a manner designed to satisfy the plan of work set forth in the application of each applicant which is awarded part of the area.
                (vi) Each applicant involved in the conflict must file an amendment to its application if necessary to implement the determination made by the Administrator.
                (k) Unresolved international conflicts. (1) If, by November 17, 1982, all applicants involved in an original or new international conflict have not resolved that conflict, or agreed in writing to submit the conflict to a specified binding conflict resolution procedure, the applicants shall proceed in accordance with the conflict resolution procedures agreed to between the United States and its reciprocating states pursuant to section 118 of the Act.

                (2) Each applicant whose application is involved in an international conflict shall be responsible for actions required in the conduct of the conflict resolution procedures, including bearing a proportional cost of implementing the procedures, representing himself in any proceedings, and assisting in the selection of arbitrators if necessary.
                (l) Continued opportunity for voluntary resolutions. Each applicant may resolve any conflict by voluntary procedures at any time while that conflict persists.
                (m) Effect on priorities of new entrants. (1) A pre-enactment explorer is entitled to a priority of right over a new entrant for any area in which the pre-enactment explorer has engaged in exploration prior to June 28, 1980 if, with respect to that area, the pre-enactment explorer files an application in accordance with this part on or after January 25, 1982 and on or before the closing date for pre-enactment explorer applications established under § 970.301(b).
                (2) Any amendment which is filed by a pre-enactment explorer on or before October 15, 1982, relates back to the date of filing of the original application and shall give the pre-enactment explorer priority of right over all new entrants if the amendment is accorded a pre-enactment explorer priority of right under paragraph (g) of this section.
                [47 FR 24948, July 8, 1982, as amended at 54 FR 548, Jan. 6, 1989]

                § 970.303
                Procedures for new entrants.
                (a) Filing of new entrant applications or amendments; priority of right. New entrant applications or amendments must be filed in accordance with § 970.200. A new entrant may file an application or amendment only at or after 1500 hours G.m.t. (11:00 a.m. EDT) January 3, 1983. All applications or amendments filed at that time shall be deemed to be filed simultaneously, and, if in accordance with § 970.209, shall have priority of right over any application or amendment filed subsequently. Priority of right for any application or amendment filed after that time will be established as described in § 970.209.
                (b) Conflicts. (1) If a domestic conflict exists between or among new entrant applications or amendments, the applicants involved in the conflict shall resolve it.
                (2) If an international conflict exists between or among new entrant applications or amendments, the conflict shall be resolved in accordance with applicable conflict resolution procedures agreed to between the United States and its reciprocating States pursuant to section 118 of the Act. The Administrator will provide each domestic applicant involved in an international conflict a copy of any such procedures in force when the Administrator issues notice to the applicant that an international conflict exists. Each applicant whose application is involved in an international conflict shall be responsible for actions required in the conduct of the conflict resolution procedures, including bearing a proportional cost of implementing the procedures, representing himself in any proceedings, and assisting in the selection of arbitrators if necessary.

                § 970.304
                Action on portions of applications or amendments not in conflict.
                If an applicant so requests, the Administrator will proceed in accordance with this part to review that portion of an area included in an application or amendment that is not involved in a conflict. However, the Administrator will proceed with such review only if the applicant advises the Administrator in writing that the applicant will continue to seek a license for the proposed exploration activities in the portion of the application area that is not in conflict. To the extent practicable, the deadlines for certification of an application or amendment and issuance of a license provided in §§ 970.400 and 970.500, respectively, will run from the date of filing of the original application.

              Subpart D—Certification of Applications

                Source:
                46 FR 45902, Sept. 15, 1981, unless otherwise noted.

                § 970.400
                General.

                (a) Certification is an intermediate step between receipt of an application for issuance or transfer of a license and its actual issuance or transfer. It is a determination which focuses on the eligibility of the applicant.
                (b) Before the Administrator may certify an application for issuance or transfer of a license, he must determine that issuance of the license would not violate any of the restrictions in § 970.103(b). He also must make written determinations with respect to the requirements set forth in §§ 970.401 through 970.406. This will be done after consultation with other departments and agencies pursuant to § 970.211.
                (c) To the maximum extent possible, the Administrator will endeavor to complete certification of an application within 100 days after submission of an application which is in full compliance with subpart B of this part. If final certification or denial of certification has not occurred within 100 days after such submission of the application, the Administrator will inform the applicant in writing of the pending unresolved issues, the agency's efforts to resolve them, and an estimate of the time required to do so.

                § 970.401
                Financial responsibility.
                (a) Before the Administrator may certify an application for an exploration license he must find that the applicant has demonstrated that, upon issuance or transfer of the license, the applicant will be financially responsible to meet all obligations which he may require to engage in the exploration proposed in the application.
                (b) In order for the Administrator to make this determination, the applicant must show to the Administrator's satisfaction that he is reasonably capable of committing or raising sufficient resources to carry out, in accordance with the provisions contained in this part, the exploration program set forth in his exploration plan.

                § 970.402
                Technological capability.
                (a) Before the Administrator may certify an application for an exploration license, he must find that the applicant has demonstrated that, upon issuance or transfer of the license, the applicant will possess, or have access to or a reasonable expectation of obtaining, the technological capability to engage in the proposed exploration.
                (b) In order for the Administrator to make this determination, the applicant must demonstrate to the Administrator's satisfaction that the applicant will possess or have access to, at the time of issuance or transfer of the license, the technology and expertise, as needed, to carry out the exploration program set forth in his exploration plan.

                § 970.403
                Previous license and permit obligations.
                In order to certify an application, the Administrator must find that the applicant has satisfactorily fulfilled all past obligations under any license or permit previously issued or transferred to the applicant under the Act.

                § 970.404
                Adequate exploration plan.
                Before he may certify an application, the Administrator must find that the proposed exploration plan of the applicant meets the requirements of § 970.203.

                § 970.405
                Appropriate exploration site size and location.
                Before the Administrator may certify an application, he must approve the size and location of the exploration area selected by the applicant. The Administrator will approve the size and location of the area unless he determines that the area is not a logical mining unit pursuant to § 970.601.

                § 970.406
                Fee payment.
                Before the Administrator may certify an application, he must find that the applicant has paid the license fee as specified in § 970.208.

                § 970.407
                Denial of certification.
                (a) The Administrator may deny certification of an application if he finds that the requirements of this subpart have not been met. If, in the course of reviewing an application for certification, the Administrator becomes aware of the fact that one or more of the requirements for issuance or transfer under §§ 970.503 through 970.507 will not be met, he may also deny certification of the application.

                (b) When the Administrator proposes to deny certification he will send to the applicant, and publish in the Federal Register, written notice of intention to deny certification. Such notice will include:
                (1) The basis upon which the Administrator proposes to deny certification; and
                (2) If the basis for the proposed denial is a deficiency which the Administrator believes the applicant can correct:
                (i) The action believed necessary to correct the deficiency; and
                (ii) The time within which any correctable deficiency must be corrected (the period of time may not exceed 180 days except as specified by the Administrator for good cause).
                (c) The Administrator will deny certification:
                (1) On the 30th day after the date the notice is sent to the applicant, under paragraph (b) of this section, unless before such 30th day the applicant files with the Administrator a written request for an administrative review of the proposed denial; or
                (2) On the last day of the period established under paragraph (b)(2)(ii) of this section in which the applicant must correct a deficiency, if such deficiency has not been corrected before such day and an administrative review requested pursuant to paragraph (c)(1) of this section is not pending or in progress.
                (d) If a timely request for administrative review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with Subpart I of 15 CFR part 971. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed concurrently with any attempts to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently.
                (e) If the Administrator denies certification, he will send to the applicant written notice of the denial, including the reasons therefor.
                (f) Any final determination by the Administrator granting or denying certification is subject to judicial review as provided in Chapter 7 of Title 5, United States Code.
                [46 FR 45902, Sept. 15, 1981, as amended at 54 FR 547, Jan. 6, 1989]

                § 970.408
                Notice of certification.
                Upon making a final determination to certify an application for an exploration license, the Administrator will promptly send written notice of his determination to the applicant.

              Subpart E—Issuance/Transfer/Terms, Conditions and Restrictions

                Source:
                46 FR 45903, Sept. 15, 1981, unless otherwise noted.

                § 970.500
                General.
                (a) Proposal. After certification of an application pursuant to Subpart D of this part, the Administrator will proceed with a proposal to issue or transfer a license for the exploration activities described in the application.
                (b)(1) Terms, conditions and restrictions. Within 180 days (or such longer period as the Administrator may establish for good cause shown in writing) after certification, the Administrator will propose terms and conditions for, and restrictions on, the proposed exploration which are consistent with the provisions of the Act and this part as set forth in §§ 970.517 through 970.524. Proposed and final terms, conditions and restrictions will be uniform in all licenses, except to the extent that differing physical and environmental conditions require the establishment of special terms, conditions and restrictions for the conservation of natural resources, protection of the environment, or the safety of life and property at sea. The Administrator will propose these in writing to the applicant. Also, public notice thereof will be provided pursuant to § 970.501, and they will be included with the draft of the EIS on the issuance of a license which is required by section 109(d) of the Act.

                (2) If the Administrator does not propose terms, conditions and restrictions within 180 days after certification, he will notify the applicant in writing of the reasons for the delay and will indicate the approximate date on which the proposed terms, conditions and restrictions will be completed.
                (c) Findings. Before issuing or transferring an exploration license, the Administrator must make written findings in accordance with the requirements of §§ 970.503 through 970.507. These findings will be made after considering all information submitted with respect to the application and proposed issuance or transfer. He will make a final determination on issuance or transfer of a license, and will publish a final EIS on that action, within 180 days (or such longer period of time as he may establish for good cause shown in writing) following the date on which proposed terms, conditions and restrictions, and the draft EIS, are published.

                Issuance/Transfer; Modification/Revision; Suspension/Revocation

                  § 970.501
                  Proposal to issue or transfer and of terms, conditions and restrictions.
                  (a) Notice and comment. The Administrator will publish in the Federal Register notice of each proposal to issue or transfer, and of terms and conditions for, and restrictions on, an exploration license. Subject to 15 CFR 971.802, interested persons will be permitted to examine the materials relevant to such proposals. Interested persons will have at least 60 days after publication of such notice to submit written comments to the Administrator.
                  (b) Hearings. (1) The Administrator will hold a public hearing in an appropriate location and may employ such additional methods as he deems appropriate to inform interested persons about each proposal and to invite their comments thereon.
                  (2) If the Administrator determines there exists one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing will be held in the District of Columbia metropolitan area in accordance with the provisions of subpart I of 15 CFR part 971. The record developed in any such formal hearing will be part of the basis for the Administrator's decisions on issuance or transfer of, and of terms, conditions and restrictions for the license.
                  (c) Hearings held pursuant to this section will be consolidated insofar as
                  practicable with hearings held by other agencies.
                  [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989]

                  § 970.502
                  Consultation and cooperation with Federal agencies.
                  Prior to the issuance or transfer of an exploration license, the Administrator will continue the consultation and cooperation with other Federal agencies which were initiated pursuant to § 970.211. This consultation will be to assure compliance with, among other statutes, the Endangered Species Act of 1973, as amended, the Marine Mammal Protection Act of 1972, as amended, and the Fish and Wildlife Coordination Act. He also will consult, prior to any issuance, transfer, modification or renewal of a license, with any affected Regional Fishery Management Council established pursuant to section 302 of the Fishery Conservation and Management Act of 1976 (16 U.S.C. 1852) if the activities undertaken pursuant to such license could adversely affect any fishery within the Fishery Conservation Zone, or any anadromous species or Continental Shelf fishery resource subject to the exclusive management authority of the United States beyond such zone.

                  § 970.503
                  Freedom of the high seas.
                  (a) Before issuing or transferring an exploration license, the Administrator must find that the exploration proposed in the application will not unreasonably interfere with the exercise of the freedoms of the high seas by other nations, as recognized under general principles of international law.
                  (b) In making this finding, the Administrator will recognize that exploration for hard mineral resources of the deep seabed is a freedom of the high seas. In the exercise of this right, each licensee must act with reasonable regard for the interests of other nations in their exercise of the freedoms of the high seas.

                  (c)(1) In the event of a conflict between the exploration program of an applicant or licensee and a competing use of the high seas by another nation or its nationals, the Administrator, in consultation and cooperation with the Department of State and other interested agencies, will enter into negotiations with that nation to resolve the conflict. To the maximum extent possible the Administrator will endeavor to resolve the conflict in a manner that will allow both uses to take place in a manner in which neither will unreasonably interfere with the other.
                  (2) If both uses cannot be conducted harmoniously in the area subject to the exploration plan, the Administrator will decide whether to issue or transfer the license.

                  § 970.504
                  International obligations of the United States.
                  Before issuing or transferring an exploration license, the Administrator must find that the exploration proposed in the application will not conflict with any international obligation of the United States established by any treaty or international convention in force with respect to the United States.

                  § 970.505
                  Breach of international peace and security involving armed conflict.
                  Before issuing or transferring an exploration license, the Administrator must find that the exploration proposed in the application will not create a situation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict.

                  § 970.506
                  Environmental effects.
                  Before issuing or transferring an exploration license, the Administrator must find that the exploration proposed in the application cannot reasonably be expected to result in a significant adverse effect on the quality of the environment, taking into account the analyses and information in any applicable EIS prepared pursuant to section 109(c) or 109(d) of the Act. This finding also will be based upon the considerations and approach in § 970.701.

                  § 970.507
                  Safety at sea.
                  Before issuing or transferring an exploration license, the Administrator must find that the exploration proposed in the application will not pose an inordinate threat to the safety of life and property at sea. This finding will be based on the requirements reflected in §§ 970.205 and 970.801.

                  § 970.508
                  Denial of issuance or transfer.
                  (a) The Administrator may deny issuance or transfer of a license if he finds that the applicant or the proposed exploration activities do not meet the requirements of this part for the issuance or transfer of a license.

                  (b) When the Administrator proposes to deny issuance or transfer, he will send to the applicant, and publish in the Federal Register, written notice of such intention to deny issuance or transfer. Such notice will include:
                  (1) The basis upon which the Administrator proposes to deny issuance or transfer; and
                  (2) If the basis for the proposed denial is a deficiency which the Administrator believes the applicant can correct:
                  (i) The action believed necessary to correct the deficiency; and

                  (ii) The time within which any correctable deficiency must be corrected (the period of time may not exceed 180 days except as specified by the Administrator for good cause).

                  The Federal Register notice will not include the coordinates of the proposed exploration area.
                  (c) The Administrator will deny issuance or transfer:
                  (1) On the 30th day after the date the notice is sent to the applicant under paragraph (b) of this section, unless before such 30th day the applicant files with the Administrator a written request for an administrative review of the proposed denial; or
                  (2) On the last day of the period established under paragraph (b)(2)(ii) of this section in which the applicant must correct a deficiency, if such deficiency has not been corrected before such day and an administrative review requested pursuant to paragraph (c)(1) of this section is not pending or in progress.

                  (d) If a timely request for administrative review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I of 15 CFR part 971. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed concurrently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently.
                  (e) If the Administrator denies issuance or transfer, he will send to the applicant written notice of the denial, including the reasons therefor.
                  (f) Any final determination by the Administrator granting or denying issuance of a license is subject to judicial review as provided in chapter 7 of title 5, United States Code.
                  [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989]

                  § 970.509
                  Notice of issuance or transfer.

                  If the Administrator finds that the requirements of this part have been met, he will issue or transfer the license along with the appropriate terms, conditions and restrictions. Notification thereof will be made in writing to the applicant and in the Federal Register.

                  § 970.510
                  Objections to terms, conditions and restrictions.
                  (a) The licensee may file a notice of objection to any term, condition or restriction in the license. The licensee may object on the grounds that any term, condition or restriction is inconsistent with the Act or this part, or on any other grounds which may be raised under applicable provisions of law. If the licensee does not file notice of an objection within the 60-day period immediately following the licensee's receipt of the notice of issuance or transfer under § 970.509, he will be deemed conclusively to have accepted the terms, conditions and restrictions in the license.
                  (b) Any notice of objection filed under paragraph (a) of this section must be in writing, must contain the precise legal basis for the objection, and must provide information relevant to any underlying factual issues deemed by the licensee as necessary to the Administrator's decision upon the objection.

                  (c) Within 90 days after receipt of the notice of objection, the Administrator will act on the objection and publish in the Federal Register, as well as provide to the licensee, written notice of his decision.
                  (d) If, after the Administrator takes final action on an objection, the licensee demonstrates that a dispute remains on a material issue of fact, the Administrator will provide for a formal hearing which will proceed in accordance with subpart I of 15 CFR part 971.
                  (e) Any final determination by the Administrator on an objection to terms, conditions or restrictions in a license after the formal hearing provided in paragraph (d) of this section is subject to judicial review as provided in chapter 7 of title 5, United States Code.
                  [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989]

                  § 970.511
                  Suspension or modification of activities; suspension or revocation of licenses.
                  (a) The Administrator may:
                  (1) In addition to, or in lieu of, the imposition of any civil penalty under subpart J of 15 CFR part 971, or in addition to the imposition of any fine under subpart J, suspend or revoke any license issued under this part, or suspend or modify any particular activities under such a license, if the licensee substantially fails to comply with any provision of the Act, this part, or any term, condition or restriction of the license; and
                  (2) Suspend or modify particular activities under any license, if the President determines that such suspension or modification is necessary:
                  (i) To avoid any conflict with any international obligation of the United States established by any treaty or convention in force with respect to the United States; or
                  (ii) To avoid any situation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict.

                  (b) Any action taken by the Administrator in accordance with paragraph (a)(1) will proceed pursuant to the procedures in 15 CFR 971.1003. Any action taken in accordance with paragraph (a)(2) will proceed pursuant to paragraphs (c) through (i) of this section, other than paragraph (h)(2).

                  (c) Prior to taking any action specified in paragraph (a)(2) of this section the Administrator will publish in the Federal Register, and send to the licensee, written notice of the proposed action. The notice will include:
                  (1) The basis of the proposed action; and
                  (2) If the basis for the proposed action is a deficiency which the Administrator believes the licensee can correct:
                  (i) The action believed necessary to correct the deficiency; and
                  (ii) The time within which any correctable deficiency must be corrected (this period of time may not exceed 180 days except as specified by the Administrator for good cause).
                  (d) The Administrator will take the proposed action:
                  (1) On the 30th day after the date the notice is sent to the licensee, under paragraph (c) of this section, unless before such 30th day the licensee files with the Administrator a written request for an administrative review of the proposed action; or
                  (2) On the last day of the period established under paragraph (c)(2)(ii) of this section in which the licensee must correct the deficiency, if such deficiency has not been corrected before such day and an administrative review requested pursuant to paragraph (d)(1) of this section is not pending or in progress.
                  (e) If a timely request for administrative review of the proposed action is made by the licensee under paragraph (d)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I of 15 CFR part 971. If the proposed action is the result of a correctable deficiency, the administrative review will proceed concurrently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently.

                  (f) The Administrator will serve on the licensee, and publish in the Federal Register, written notice of the action taken including the reasons therefor.
                  (g) Any final determination by the Administrator to take the proposed action is subject to judicial review as provided in chapter 7 of title 5, United States Code.
                  (h) The issuance of any notice of proposed action under this section will not affect the continuation of exploration activities by a licensee, except as provided in paragraph (i) of this section.
                  (i) The provisions of paragraphs (c), (d), (e) and (h) of this section will not apply when:
                  (1) The President determines by Executive Order that an immediate suspension of a license, or immediate suspension or modification of particular activities under such license, is necessary for the reasons set forth in paragraph (a)(2) of this section; or
                  (2) The Administrator determines that immediate suspension of such a license, or immediate suspension or modification of particular activities under a license, is necessary to prevent a significant adverse effect on the environment or to preserve the safety of life or property at sea, and the Administrator issues an emergency order in accordance with § 971.1003(d)(4).
                  (j) The Administrator will immediately rescind the emergency order as soon as he has determined that the cause for the order has been removed.
                  [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989]

                  § 970.512
                  Modification of terms, conditions and restrictions.
                  (a) After issuance or transfer of any license, the Administrator, after consultation with interested agencies and the licensee, may modify any term, condition, or restriction in such license for the following purposes:
                  (1) To avoid unreasonable interference with the interests of other nations in their exercise of the freedoms of the high seas, as recognized under general principles of international law. This determination will take into account the provisions of § 970.503;
                  (2) If relevant data and other information (including, but not limited to, data resulting from exploration activities under the license) indicate that modification is required to protect the quality of the environment or to promote the safety of life and property at sea;

                  (3) To avoid a conflict with any international obligation of the United States, established by any treaty or convention in force with respect to the United States, as determined in writing by the President; or
                  (4) To avoid any situation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict, as determined in writing by the President.
                  (b) The procedures for objection to the modification of a term, condition or restriction will be the same as those for objection to an original term, condition or restriction under § 970.510, except that the period for filing notice of objection will run from the receipt of notice of proposed modification. Public notice of proposed modifications under this section will be made according to § 970.514. On or before the date of publication of public notice, written notice will be provided to the licensee.
                  [46 FR 45903, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982]

                  § 970.513
                  Revision of a license.
                  (a) During the term of an exploration license, the licensee may submit to the Administrator an application for a revision of the license or the exploration plan associated with it. NOAA recognizes that changes in circumstances encountered, and in information and technology developed, by the licensee during exploration may require such revisions. In some cases it may even be advisable to recognize at the time of filing the original license application that although the essential information for issuing or transferring a license as specified in §§ 970.201 through 920.208 must be included in such application, some details may have to be provided in the future in the form of a revision. In such instances, the Administrator may issue or transfer a license which would authorize exploration activities and plans only to the extent described in the application.
                  (b) The Administrator will approve such application for a revision upon a finding in writing that the revision will comply with the requirements of the Act and this part.
                  (c) A change which would require an application to and approval by the Administrator as a revision is a major change in one or more of:
                  (1) The bases for certifying the original application pursuant to §§ 970.401 through 970.406;
                  (2) The bases for issuing or transferring the license pursuant to §§ 970.503 through 970.507; or
                  (3) The terms, conditions and restrictions issued for the license pursuant to §§ 970.517 through 970.524.
                  A major change is one which is of such significance so as to raise a question as to:
                  (i) The applicant's ability to meet the requirements of the sections cited in paragraphs (c) (1) and (2) of this section; or
                  (ii) The sufficiency of the terms, conditions and restrictions to accomplish their intended purpose.

                  § 970.514
                  Scale requiring application procedures.
                  (a) A proposal by the Administrator to modify a term, condition or restriction in a license pursuant to § 970.512, or an application by a licensee for revision of a license or exploration plan pursuant to § 970.513, is significant, and the full application requirements and procedures will apply, if it would result in other than an incidental:
                  (1) Increase in the size of the exploration area; or
                  (2) Change in the location of the area.
                  An incidental increase or change is that which equals two percent or less of the original exploration area, so long as such adjustment is contiguous to the licensed area.

                  (b) All proposed modifications or revisions other than described in paragraph (a) of this section will be acted on after a notice thereof is published by the Administrator in the Federal Register, with a 60-day opportunity for public comment. On a case-by-case basis, the Administrator will determine if other procedures, such as a public hearing in a potentially affected area, are warranted. Notice of the Administrator's decision on the proposed modification will be provided to the licensee in writing and published in the Federal Register.

                  § 970.515
                  Duration of a license.

                  (a) Each exploration license will be issued for a period of 10 years.

                  (b) If the licensee has substantially complied with the license and its associated exploration plan and requests an extension of the license, the Administrator will extend the license on terms, conditions and restrictions consistent with the Act and this part for a period of not more than 5 years.
                  In determining substantial compliance for purposes of this section, the Administrator may make allowance for deviation from the exploration plan for good cause, such as significantly changed market conditions. However, a request for extension must be accompanied by an amended exploration plan to govern the activities by the licensee during the extended period.
                  (c) Successive extensions may be requested, and will be granted by the Administrator, based on the criteria, and for the length of time, specified in paragraph (b) of this section.

                  § 970.516
                  Approval of license transfers.
                  (a) The Administrator may transfer a license after a written request by the licensee. After a licensee submits such a request to the Administrator, the proposed transferee will be deemed an applicant for an exploration license, and will be subject to the requirements and procedures of this part.
                  (b) The Administrator will transfer a license if the proposed transferee and exploration activities meet the requirements of the Act and this part, and if the proposed transfer is in the public interest. The Administrator will presume that the transfer is in the public interest if it meets the requirements of the Act and this part. In case of mere change in the form or ownership of a licensee, the Administrator may waive relevant determinations for requirements for which no changes have occurred since the preceding application.

                Terms, Conditions, and Restrictions

                  § 970.517
                  Diligence requirements.
                  The terms, conditions and restrictions in each exploration license must include provisions to assure diligent development. The Administrator will establish these pursuant to § 970.602.

                  § 970.518
                  Environmental protection requirements.
                  (a) Each exploration license must contain such terms, conditions and restrictions, established by the Administrator, which prescribe actions the licensee must take in the conduct of exploration activities to assure protection of the environment. The Administrator will establish these pursuant to § 970.702.
                  (b) Before establishing the terms, conditions and restrictions pertaining to environmental protection, the Administrator will consult with the Administrator of the Environmental Protection Agency, the Secretary of State and the Secretary of the department in which the Coast Guard is operating. He also will take into account and give due consideration to the information contained in the final EIS prepared with respect to that proposed license.

                  § 970.519
                  Resource conservation requirements.
                  For the purpose of conservation of natural resources, each license issued under this part will contain, as needed, terms, conditions and restrictions which have due regard for the prevention of waste and the future opportunity for the commercial recovery of the unrecovered balance of the hard mineral resources in the license area. The Administrator will establish these pursuant to § 970.603.

                  § 970.520
                  Freedom of the high seas requirements.
                  Each license issued under this part must include such restrictions as may be necessary and appropriate to ensure that the exploration activities do not unreasonably interfere with the interests of other nations in their exercise of the freedoms of the high seas, as recognized under general principles of international law, such as fishing, navigation, submarine pipeline and cable laying, and scientific research. The Administrator will consider the provisions in § 970.503 in establishing these restrictions.

                  § 970.521
                  Safety at sea requirements.

                  The Secretary of the department in which the Coast Guard is operating, in consultation with the Administrator, will require in any license issued under this part, in conformity with principles of international law, that vessels documented under the laws of the United States and used in activities authorized under the license comply with conditions regarding the design, construction, alteration, repair, equipment, operation, manning and maintenance relating to vessel and crew safety and the promotion of safety of life and property at sea. These requirements will be established with reference to subpart H of this part.

                  § 970.522
                  Monitoring requirements.
                  Each exploration license must require the licensee:
                  (a) To allow the Administrator to place appropriate Federal officers or employees as observers aboard vessels used by the licensee in exploration activities to:
                  (1) Monitor such activities at such time, and to such extent, as the Administrator deems reasonable and necessary to assess the effectiveness of the terms, conditions, and restrictions of the license; and
                  (2) Report to the Administrator whenever such officers or employees have reason to believe there is a failure to comply with such terms, conditions, and restrictions;
                  (b) To cooperate with such officers and employees in the performance of monitoring functions; and
                  (c) To monitor the environmental effects of the exploration activities in accordance with a monitoring plan approved and issued by the Administrator as license terms, conditions and restrictions, and to submit such information as the Administrator finds to be necessary and appropriate to assess environmental impacts and to develop and evaluate possible methods of mitigating adverse environmental effects. This environmental monitoring plan and reporting will respond to the concerns and procedures discussed in Subpart G of this part.

                  § 970.523
                  Special terms, conditions, and restrictions.
                  Although the general criteria and standards to be used in establishing terms, conditions, and restrictions for a license are set forth in this part, as referenced in §§ 970.517 through 970.522, the Administrator may impose special terms, conditions, and restrictions for the conservation of natural resources, protection of the environment, or the safety of life and property at sea when required by differing physical and environmental conditions.

                  § 970.524
                  Other Federal requirements.
                  Pursuant to § 970.211, another Federal agency, upon review of an exploration license application submitted under this part, may indicate how terms, conditions, and restrictions might be added to the license, to assure compliance with any law or regulation within that agency's area of responsibility. In response to the intent, reflected in section 103(e) of the Act, to reduce the number of separate actions to satisfy the statutory responsibilities of these agencies, the Administrator may include such terms, conditions, and restrictions in a license.

              Subpart F—Resource Development Concepts

                Source:
                46 FR 45907, Sept. 15, 1981, unless otherwise noted.

                § 970.600
                General.
                Several provisions in the Act relate to appropriate mining techniques or mining efficiency. These raise what could be characterized as resource development issues. In particular, under section 103(a)(2)(D) of the Act, the applicant will select the size and location of the area of an exploration plan, which will be approved unless the Administrator finds that the area is not a “logical mining unit.” Also, pursuant to section 108 of the Act the applicant's exploration plan and the terms, conditions and restrictions of each license must be designed to ensure diligent development. In addition, for the purpose of conservation of natural resources, section 110 of the Act provides that each license is to contain, but only as needed, terms, conditions, and restrictions which have due regard for the prevention of waste and the future opportunity for the commercial recovery of the unrecovered balance of the resources.

                § 970.601
                Logical mining unit.
                (a) In the case of an exploration license, a logical mining unit is an area of the deep seabed which can be explored under the license, and within the 10-year license period, in an efficient, economical and orderly manner with due regard for conservation and protection of the environment, taking into consideration the resource data, other relevant physical and environmental characteristics, and the state of the technology of the applicant as set forth in the exploration plan. In addition, it must be of sufficient size to allow for intensive exploration.
                (b) Approval by the Administrator of a proposed exploration logical mining unit will be based on a case-by-case review of each application. In order to provide a proper basis for this evaluation, the applicant's exploration plan should describe the seabed topography, the location of mineral deposits and the nature of planned equipment and operations. Also, the exploration plan must show the relationship between the area to be explored and the applicant's plans for commercial recovery volume, to the extent projected in the exploration plan.
                (c) In delineating an exploration area, the applicant need not include unmineable areas. Thus, the area need not consist of contiguous segments, as long as each segment would be efficiently mineable and the total proposed area constitutes a logical mining unit. In describing the area, the applicant must present the geodetic coordinates of the points defining the boundaries, referred to the World Geodetic System (WGS) Datum. A boundary between points must be a geodesic. If grid coordinates are desired, the Universal Transverse Mercator Grid System must be used.
                (d) At the applicant's option, for the purpose of satisfying a possible obligation under a future Law of the Sea Treaty, the applicant may propose an exploration area which includes two exploration logical mining units. The applicant should specify in the application if this “banking” option is chosen, and any applicant choosing this option and filing an application based on pre-enactment exploration under § 970.301 shall so notify the Administrator in accordance with § 970.301(g).
                (e) Applicants are advised that NOAA will not accept an application or issue a license for an exploration area larger than 150,000 square kilometers unless the applicant can demonstrate the necessity of a larger area based on factors such as topography, nodule abundance, distribution and ore grade. If the applicant elects to pursue the “banking” option described in paragraph (d) of this section, and wishes to apply for an exploration area larger than 150,000 square kilometers, the applicant must file a second application with respect to at least the area in excess of 150,000 square kilometers, unless the applicant justifies such excess area as part of a single application under the preceding sentence.
                [46 FR 45907, Sept. 15, 1981, as amended at 47 FR 5968, Feb. 9, 1982]

                § 970.602
                Diligent exploration.
                (a) Each licensee must pursue diligently the activities described in his approved exploration plan. This requirement applies to the full scope of the plan, including environmental safeguards and monitoring systems. To help assure this diligence, terms, conditions and restrictions which the Administrator issues with a license will require such periodic reasonable expenditures for exploration by the licensee as the Administrator may establish, taking into account the size of the area of the deep seabed to which the exploration plan applies and the amount of funds which is estimated by the Administrator to be required during exploration for commercial recovery of hard mineral resources to begin within the time limit established by the Administrator. However, such required expenditures will not be established at a level which would discourage exploration by persons with less costly technology than is prevalently in use.

                (b) In order to fulfill the diligence requirement, the applicant first must propose to the Administrator an estimated schedule of activities and expenditures pursuant to § 970.203(b) (3) and (6). The schedule must show, and the Administrator must be able to make a reasonable determination, that the applicant can complete his exploration activities within the term of the license. In this regard, there must be a reasonable relationship between the size of the exploration area and the financial and technological resources reflected in the application. Also, the exploration must clearly point toward developing the ability, by the end of the 10-year license period, to apply for and obtain a permit for commercial recovery.
                (c) Ultimately, the diligence requirement will involve a retrospective determination by the Administrator, based on the licensee's reasonable conformance to the approved exploration plan. Such determination, however, will take into account the need for some degree of flexibility in an exploration plan. It also will include consideration of the needs and stage of development of each licensee, again based on the approved exploration plan. In addition, the determination will take account of legitimate periods of time when there is no or very low expenditure, and will allow for a certain degree of flexibility for changes encountered by the licensee in such factors as its resource knowledge and financial considerations.
                (d) In order for the Administrator to make determinations on a licensee's adherence to the diligence requirements, the licensee must submit a report annually reflecting his conformance to the schedule of activities and expenditures contained in the license. In case of any changes requiring a revision to an approved license and exploration plan, the licensee must advise the Administrator in accordance with § 970.513.

                § 970.603
                Conservation of resources.
                (a) With respect to the exploration phase of seabed mining, the requirement for the conservation of natural resources, encompassing due regard for the prevention of waste and the future opportunity for the commercial recovery of the unrecovered balance of the hard mineral resources in the area to which the license applies, may not be particularly relevant. Thus, since the Act requires such terms, conditions and restrictions only as needed, exploration licenses will require such provisions only as the Administrator deems necessary.
                (b) NOAA views license phase mining system tests as an opportunity to examine, with industry, the conservation implications of any mining patterns used. Thus, in order to develop information needed for future decisions during commercial recovery, NOAA will include with a license a requirement for the submission of collector track and nodule production data. Only if information submitted reflects that the integrated system tests are resulting in undue waste or threatening the future opportunity for commercial recovery of the unrecovered balance of hard mineral resources will the Administrator modify the terms, conditions or restrictions pertaining to the conservation of natural resources, in order to address such problems.
                (c) If the Administrator so modifies such terms, conditions and restrictions relating to conservation of resources, he will employ a balancing process in the consideration of the state of the technology being developed, the processing system utilized and the value and potential use of any waste, the environmental effects of the exploration activities, economic and resource data, and the national need for hard mineral resources.

              Subpart G—Environmental Effects

                Source:
                46 FR 45908, Sept. 15, 1981, unless otherwise noted.

                § 970.700
                General.

                Congress, in authorizing the exploration for hard mineral resources under the Act, also enacted provisions relating to the protection of the marine environment from the effects of exploration activities. For example, before the Administrator may issue a license, pursuant to section 105(a)(4) of the Act he must find that the exploration proposed in an application cannot reasonably be expected to result in a significant adverse effect on the quality of the environment. Also, the Act requires in section 109(b) that each license issued by the Administrator must contain such terms, conditions and restrictions which prescribe the actions the licensee must take in the conduct of exploration activities to assure protection of the environment. Furthermore, the Act in section 105(c)(1)(B) provides for the modification by the Administrator of any term, condition or restriction if relevant data and other information indicates that modification is required to protect the quality of the environment. In addition, section 114 of the Act specifies that each license issued under the Act must require the licensee to monitor the environmental effects of the exploration activities in accordance with guidelines issued by the Administrator, and to submit such information as the Administrator finds to be necessary and appropriate to assess environmental impacts and to develop and evaluate possible methods of mitigating adverse environmental effects.

                § 970.701
                Significant adverse environmental effects.
                (a) Activities with no significant impact. NOAA believes that exploration activities of the type listed below are very similar or identical to activities considered in section 6(c)(3) of NOAA Directives Manual 02-10, and therefore have no potential for significant environmental impact, and will require no further environmental assessment.
                (1) Gravity and magnetometric observations and measurements;
                (2) Bottom and sub-bottom acoustic profiling or imaging without the use of explosives;
                (3) Mineral sampling of a limited nature such as those using either core, grab or basket samplers;
                (4) Water and biotic sampling, if the sampling does not adversely affect shellfish beds, marine mammals, or an endangered species, or if permitted by the National Marine Fisheries Service or another Federal agency;
                (5) Meteorological observations and measurements, including the setting of instruments;
                (6) Hydrographic and oceanographic observations and measurements, including the setting of instruments;
                (7) Sampling by box core, small diameter core or grab sampler, to determine seabed geological or geotechnical properties;
                (8) Television and still photographic observation and measurements;
                (9) Shipboard mineral assaying and analysis; and

                (10) Positioning systems, including bottom transponders and surface and subsurface buoys filed in Notices to Mariners.

                (b) Activities with potential impact. (1) NOAA research has identified at-sea testing of recovery equipment and the operation of processing test facilities as activities which have some potential for significant environmental impacts during exploration. However, the research has revealed that only the following limited effects are expected to have potential for significant adverse environmental impact.
                (2) The programmatic EIS's documents three at-sea effects of deep seabed mining which cumulatively during commercial recovery have the potential for significant effect. These three effects also occur during mining system tests that may be conducted under a license, but are expected to be insignificant. These include the following:
                (i) Destruction of benthos in and near the collector track. Present information reflects that the impact from this effect during mining tests under exploration licenses will be extremely small.
                (ii) Blanketing of benthic fauna and dilution of food supply away from mine site subareas. The settling of fine sediments disturbed by tests under a license of scale-model mining systems which simulate commercial recovery could adversely affect benthic fauna by blanketing, diluation of their food supply, or both. Because of the anticipated slow settling rate of the sediments, the affected area could be quite large. However, research results are insufficient to conclude that this will indeed be a problem.
                (iii) Surface plume effect on fish larvae. The impact of demonstration-scale mining tests during exploration is expected to be insignificant.
                (3) If processing facilities in the United States are planned to be used for testing during exploration, NOAA also will assess their impacts in the site-specific EIS developed for each license.
                (c) NOAA approach. In making determinations on significant adverse environmental effects, the Administrator will draw on the above conclusions and other findings in NOAA's programmatic environmental statement and site-specific statements issued in accordance with the Act. He will issue licenses with terms, conditions and restrictions containing, as appropriate, environmental protection or mitigation requirements (pursuant to § 970.518) and monitoring requirements (pursuant to § 970.522). The focus of NOAA's environmental efforts will be on environmental research and on monitoring during mining tests to acquire more information on the environmental effects of deep seabed mining. If these efforts reveal that modification is required to protect the quality of the environment, NOAA then may modify terms, conditions and restrictions pursuant to § 970.512.

                § 970.702
                Monitoring and mitigation of environmental effects.
                (a) Monitoring. If an application is determined to be otherwise acceptable, the Administrator will specify an environmental monitoring plan as part of the terms, conditions and restrictions developed for each license. The plan will be based on the monotoring plan proposed by the applicant and reviewed by NOAA for completeness, accuracy and statistical reliability. This monitoring strategy will be devised to insure that the exploration activities do not deviate significantly from the approved exploration plan and to determine if the assessment of the plan's acceptability was sound. The monitoring plan, among other things, will include monitoring environmental parameters relating to verficiation of NOAA's findings concerning potential impacts, but relating mainly to the three unresolved concerns with the potential for significant environmental effect, as identified in § 970.701(b)(2). NOAA has developed a technical guidance document, which includes parameters pertaining to the upper and lower water column and operational aspects, which document will provide assistance in developing monitoring plans in consultation with applicants.
                (b) Mitigation. Monitoring and continued research may develop information on future needs for mitigating environmental effects. If such needs are identified, terms, conditions and restrictions can be modified appropriately.

              Subpart H—Safety of Life and Property at Sea

                § 970.800
                General.
                The Act contains requirements, in the context of several decisions, that relate to assuring the safety of life and property at sea. For instance, before the Administrator may issue a license, section 105(a)(5) of the Act requires that he find that the proposed exploration will not pose an inordinate threat to the safety of life and property at sea. Also, under section 112(a) of the Act the Coast Guard, in consultation with NOAA, must require in any license or permit issued under the Act, in conformity with principles of international law, that vessels documented in the United States and used in activities authorized under the license comply with conditions regarding the design, construction, alteration, repair, equipment, operation, manning and maintenance relating to vessel and crew safety and the safety of life and property at sea. In addition, under section 105(c)(1)(B) of the Act, the Administrator may modify terms, conditions and restrictions for a license if required to promote the safety of life and property at sea.
                [46 FR 45909, Sept. 15, 1981]

                § 970.801
                Criteria for safety of life and property at sea.

                Response to the safety at sea requirements in essence will involve vessel inspection requirements. These inspection requirements may be identified by reference to present laws and regulations. The primary inspection statutes pertaining to United States flag vessels are: 46 U.S.C. 86 (Loadlines); 46 U.S.C. 395 (Inspection of seagoing barges over 100 gross tons); 46 U.S.C. 367 (Inspection of sea-going motor vessels over 300 gross tons); and 46 U.S.C. 404 (Inspection of vessels above 15 gross tons carrying freight for hire). All United States flag vessels will be required to meet existing regulatory requirements applicable to such vessels. This includes the requirement for a current valid Coast Guard Certificate of Inspection, as specified in § 970.205. Being United States flag, these vessels will be under United States jurisdiction on the high seas and subject to domestic enforcement procedures. With respect to foreign flag vessels, the SOLAS 74 or SOLAS 60 certificate requirements or alternative IACS requirements, as specified in § 970.205, apply.
                [46 FR 45909, Sept. 15, 1981]

              Subpart I—Miscellaneous

                § 970.900
                Other applicable regulations.
                The regulations in subparts H, I and J of 15 CFR part 971 are consolidated regulations and are applicable both to licenses under this part and to permits under 15 CFR part 971. The regulations in subparts H, I and J of part 971 govern records to be maintained and information to be submitted by licensees and permittees, public disclosure of documents received by NOAA, relinquishment and surrender of licenses and permits, amendment of regulations, competition of time, uniform hearing procedures, and enforcement under the Act.
                [54 FR 548, Jan. 6, 1989]

              Subparts J-W [Reserved]

              Subpart X—Pre-enactment Exploration

                § 970.2401
                Definitions.
                (a) Engage in exploration means:
                (1) To cause or authorize exploration to occur, including but not limited to a person's actions as a sponsor, principal, or purchaser of exploration services; or
                (2) To conduct exploration on behalf of a person described in paragraph (a)(1) of this section.
                (b) [Reserved]
                [45 FR 76662, Nov. 20, 1980, as amended at 47 FR 5966, Feb. 9, 1982]

                § 970.2402
                Notice of pre-enactment exploration.
                (a) General. NOAA encourages any United States citizen who engaged in exploration for deep seabed hard mineral resources before June 28, 1980, to file not later than February 1, 1981, a written notice with the Administrator, in care of: The Director, Office of Ocean Minerals and Energy, National Oceanic and Atmospheric Administration, Department of Commerce, Page Building 1, Suite 410, 2001 Wisconsin Avenue, NW., Washington, DC 20235. Such notice shall not constitute an application for a license or permit and shall not confer or confirm any priority of right to any site.
                (b) Content of pre-enactment exploration Notice. If a notice of exploration commenced prior to June 28, 1980, is filed pursuant to paragraph (a) it should be in writing and include the following:
                (1) Names, addresses, and telephone numbers of the United States citizens responsible for exploration operations to whom notices and orders are to be delivered;
                (2) A description of the citizen or citizens engaging in such exploration including:
                (i) Whether the citizen is a natural person, partnership, corporation, joint venture, or other form of association;
                (ii) The state of incorporation of state in which the partnership or other business entity is registered;
                (iii) The name of registered agent and places of business;
                (iv) Certification of essential and non-proprietary provisions in articles of incorporation, charter, or articles of association; and
                (v) Membership of the association, partnership, or joint venture, including information about the participation of partners and joint venturers, and/or ownership of stock.
                (3) A general description of the exploration activities conducted prior to June 28, 1980, including:
                (i) The approximate date that the citizen, or predecessor in interest, commenced exploration activities;
                (ii) A general estimate of expenditures made on the exploration program prior to June 28, 1980;
                (iii) A statement of whether the citizen intends to file an application for an exploration license pursuant to section 101(b)(1)(A) of the Act after NOAA issues regulations implementing section 103(a) of the Act; and

                (iv) A statement of whether the citizen intends to continue to engage in exploration as allowed by section 101(b) of the Act, pending a final determination on his application for an exploration license.
                (c) Exclusion of location information. The information submitted in the notice of pre-enactment exploration required by this section shall not include the location of past or future exploration or prospective mine sites.
                [45 FR 76662, Nov. 20, 1980]

              Subpart Y—Pre-license Exploration

                Source:
                45 FR 76662, Nov. 20, 1980, unless otherwise noted.

                § 970.2501
                Notice of pre-license exploration voyages.
                (a) General. Any United States citizen who schedules an exploration voyage to begin after November 20, 1980 shall file written notice with the Administrator which sets out:
                (1) The name, address and telephone number of the citizen;
                (2) The anticipated date of commencement of the voyage and its planned duration;
                (3) The exploration activities to be carried out on the voyage, including a general description of the equipment and methods to be used, and an estimate of the anticipated extent of seabed disturbance and effluent discharge; and
                (4) If the U.S. citizen has not filed a notice of pre-enactment exploration in accordance with § 970.2402, the information specified in § 970.2402(b).
                (b) When and where to file Notice of future exploration—(1) When. (i) Except as allowed in paragraph (b)(2) of this section, the notice required by paragraph (a) of this section must be filed not later than 45 days prior to the date on which the exploration voyage is scheduled to begin.
                (ii) With respect to filing of the information referred to in paragraph (a)(4) of this section, the filing dates specified in paragraph (b) of this section shall prevail over the date specified in § 970.2402(a).
                (2) Exception. If an exploration voyage is scheduled to begin before January 5, 1981, the notice required by paragraph (a) of this section must be filed on or before December 22, 1980.
                (3) Where. The notice required by paragraph (a) of this section must be filed in writing with the Administrator, at the address specified in § 970.2402(a) of this part.

                § 970.2502
                Post voyage report.
                Within 30 days of the conclusion of each exploration voyage, the United States citizen engaging in the voyage shall submit to NOAA a report containing any environmental data or information obtained during that voyage.

                § 970.2503
                Suspension of exploration activities.
                (a) The Administrator may issue an emergency order, either in writing or orally with written confirmation, requiring the immediate suspension of exploration activities or any particular exploration activity when, in his judgment, immediate suspension of such activity or activities is necessary to prevent a significant adverse effect on the environment. Upon receipt of notice of the emergency order, the United States citizen engaged in the exploration shall immediately cease the activity that is the subject of the emergency order. During any suspension NOAA will consult with the citizen engaged in the activity suspended concerning appropriate measures to remove the cause of suspension. A suspension may be rescinded at any time by written notice from the Administrator upon presentation of satisfactory evidence by the citizen that the activity will no longer threaten a significant adverse effect on the environment.
                (b) [Reserved]

              Subpart Z—Miscellaneous

                § 970.2601
                Additional information.
                Any United States citizen filing notice under § 970.2402 or § 970.2501 of this part shall provide such additional information as the Administrator may require as necessary and appropriate to implement section 101 of the Act.
                [45 FR 76662, Nov. 20, 1980]

            Pt. 971
            PART 971—DEEP SEABED MINING REGULATIONS FOR COMMERCIAL RECOVERY PERMITS

                Subpart A—General
                Sec.
                971.100
                Purpose.
                971.101
                Definitions.
                971.102
                Nature of permits.
                971.103
                Prohibited activities and restrictions.
                971.104
                OMB control number.

                Subpart B—Applications
                971.200
                General.

                  Contents
                  971.201
                  Statement of financial resources.
                  971.202
                  Statement of technological experience and capabilities.
                  971.203
                  Commercial recovery plan.
                  971.204
                  Environmental and use conflict analysis.
                  971.205
                  Vessel safety and documentation.
                  971.206
                  Statement of ownership.
                  971.207
                  Antitrust information.
                  971.208
                  Fee.
                  971.209
                  Processing outside the United States.

                  Procedures
                  971.210
                  Determination whether application is complete for further processing.
                  971.211
                  Consultation and cooperation with Federal agencies.
                  971.212
                  Public notice, hearing and comment.
                  971.213
                  Amendment to an application.
                  971.214
                  Consolidated license and permit procedures. [Reserved]

                Subpart C—Certification of Applications
                971.300
                General.
                971.301
                Required findings.
                971.302
                Denial of certification.
                971.303
                Notice of certification.

                Subpart D—Issuance/Transfer: Terms, Conditions and Restrictions
                971.400
                General.

                  Issuance/Transfer, Modification/Revision; Suspension/Revocation
                  971.401
                  Proposal to issue or transfer and proposed terms, conditions and restrictions.
                  971.402
                  Consultation and cooperation with Federal and State agencies.
                  971.403
                  Freedom of the high seas.
                  971.404
                  International obligations of the United States.
                  971.405
                  Breach of international peace and security involving armed conflict.
                  971.406
                  Environmental effects.
                  971.407
                  Safety at sea.
                  971.408
                  Processing outside the United States.
                  971.409
                  Denial of issuance or transfer.
                  971.410
                  Notice of issuance or transfer.
                  971.411
                  Objections to terms, conditions and restrictions.
                  971.412
                  Changes in permits and permit terms, conditions, and restrictions.
                  971.413
                  Revision of a permit.
                  971.414
                  Modification of permit terms, conditions, and restrictions.
                  971.415
                  Duration of a permit.
                  971.416
                  Approval of permit transfers.
                  971.417
                  Suspension or modification of activities; suspension or revocation of permits.

                  Terms, Conditions and Restrictions
                  971.418
                  Diligence requirements.
                  971.419
                  Environmental protection requirements.
                  971.420
                  Resource conservation requirements.
                  971.421
                  Freedom of the high seas requirements.
                  971.422
                  Safety at sea requirements.
                  971.423
                  Best available technology.
                  971.424
                  Monitoring requirements.
                  971.425
                  Changes of circumstances.
                  971.426
                  Annual report and records maintenance.
                  971.427
                  Processing outside the United States.
                  971.428
                  Other necessary permits.
                  971.429
                  Special terms, conditions and restrictions.
                  971.430
                  Other Federal requirements.

                Subpart E—Resource Development
                971.500
                General.
                971.501
                Resource assessment, recovery plan, and logical mining unit.
                971.502
                Conservation of resources.
                971.503
                Diligent commercial recovery.

                Subpart F—Environmental Effects
                971.600
                General.
                971.601
                Environmental requirements.
                971.602
                Significant adverse environmental effects.
                971.603
                At-sea monitoring.
                971.604
                Best available technologies (BAT) and mitigation.
                971.605
                Stable References Areas. [Reserved]
                971.606
                Onshore information.

                Subpart G—Safety of Life and Property at Sea
                971.700
                General.
                971.701
                Criteria for safety of life and property at sea.

                Subpart H—Miscellaneous
                971.800
                General.

                971.801
                Records to be maintained and information to be submitted by licensees and permittees.
                971.802
                Public disclosure of documents received by NOAA.
                971.803
                Relinquishment and surrender of licenses and permits.
                971.804
                Amendment to regulations for conservation, protection of the environment, and safety of life and property at sea.
                971.805
                Computation of time.

                Subpart I—Uniform Procedures
                971.900
                Applicability.
                971.901
                Formal hearing procedures.

                Subpart J—Enforcement
                971.1000
                General.
                971.1001
                Assessment procedure.
                971.1002
                Hearing and appeal procedures.
                971.1003
                License and permit sanctions.
                971.1004
                Remission or mitigation of forfeitures.
                971.1005
                Observers.
                971.1006
                Proprietary enforcement information.
                971.1007
                Advance notice of civil actions.

              Authority:
              30 U.S.C. 1401 et seq.

              Source:
              54 FR 525, Jan. 6, 1989, unless otherwise noted.

              Subpart A—General

                § 971.100
                Purpose.
                The purpose of this part is to implement the responsibilities and authorities of the Administrator of the National Oceanic and Atmospheric Administration (NOAA) pursuant to Public Law 96-283, the Deep Seabed Hard Mineral Resources Act (the Act), to issue to eligible United States citizens permits for the commercial recovery of deep seabed hard minerals.

                § 971.101
                Definitions.
                For purposes of this part, the term
                (a) Act means the Deep Seabed Hard Mineral Resources Act (Pub. L. 96-283; 94 Stat. 553; 30 U.S.C. 1401 et seq.);
                (b) Administrator means the Administrator of the National Oceanic and Atmospheric Administration, or the Administrator's designee;
                (c) Affected State means any State with a coastal zone management program approved under Section 306 of the Coastal Zone Management Act, as amended, where coastal zone land and water uses are affected by the issuance of a commercial recovery permit under the provisions of the Act or this part;
                (d) Applicant means an applicant for a commercial recovery permit pursuant to the Act and this part; as used in subparts H, I and J of this part, “applicant” also means an applicant for an exploration license pursuant to the Act and part 970 of the title. “Applicant” also means a proposed permit transferee;
                (e) Commercial recovery means—
                (1) Any activity engaged in at sea to recover any hard mineral resource at a substantial rate for the primary purpose of marketing or commercially using such resource to earn a net profit, whether or not such net profit is actually earned;
                (2) If such recovered hard mineral resource will be processed at sea, such processing; and
                (3) If the waste of such activity to recover any hard mineral resource, or of such processing at sea, will be disposed of at sea, such disposal;
                (f) Continental Shelf means—
                (1) The seabed and subsoil of the submarine areas adjacent to the coast, but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit to where the depth of the superjacent waters admits of the exploitation of the natural resources of such submarine area; and
                (2) The seabed and subsoil of similar submarine areas adjacent to the coast of islands;
                (g) Controlling interest, for purposes of paragraph (v)(3) of this section, means a direct or indirect legal or beneficial interest in or influence over another person arising through ownership of capital stock, interlocking directorates or officers, contractual relations, or other similar means, which substantially affect the independent business behavior of such person;
                (h) Deep seabed means the seabed, and the subsoil thereof to a depth of ten meters, lying seaward of and outside—
                (1) The Continental Shelf of any nation; and

                (2) Any area of national resource jurisdiction of any foreign nation, if such area extends beyond the Continental Shelf of such nation and such jurisdiction is recognized by the United States;

                (i) Environment or environmental as used in the definitions of “irreparable harm” and “significant adverse environmental effect” means or pertains to the deep seabed and ocean waters lying at and within the permit area, and in surrounding areas including transportation corridors to the extent that they might be affected by the commercial recovery activities, and the living and non-living resources of those areas;
                (j) Exploration means—
                (1) Any at-sea observation and evaluation activity which has, as its objective, the establishment and documentation of—
                (i) The nature, shape, concentration, location, and tenor of a hard mineral resource; and
                (ii) The environmental, technical, and other appropriate factors which must be taken into account to achieve commercial recovery; and
                (2) The taking from the deep seabed of such quantities of any hard mineral resource as are necessary for the design, fabrication and testing of equipment which is intended to be used in the commercial recovery and processing of such resource;
                (k) Hard mineral resource means any deposit or accretion on, or just below, the surface of the deep seabed of nodules which include one or more minerals, at least one of which is manganese, nickel, cobalt, or copper;
                (l) Irreparable harm means significant undesirable effects to the environment occurring after the date of the permit issuance which will not be reversed after cessation or modification of the activities authorized under the permit;
                (m) Licensee means the holder of a license issued under NOAA regulations to engage in exploration;
                (n) NOAA means the National Oceanic and Atmospheric Administration;
                (o) Permittee means the holder of a permit issued or transferred under this part to engage in commercial recovery;
                (p) Person means any United States citizen, any individual, and any corporation, partnership, joint venture, association, or other entity organized or existing under the laws of any nation;
                (q) Reciprocating state means any foreign nation designated as such by the Administrator under section 118 of the Act;
                (r) Recovery plan or commercial recovery plan means the plan submitted by an applicant for a commercial recovery permit pursuant to § 971.203;
                (s) Significant adverse environmental effect means: (1) Important adverse changes in ecosystem diversity, productivity, or stability of the biological communities within the environment; (2) threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms; or (3) important loss of aesthetic, recreational, scientific or economic values;
                (t) State agency means the agency responsible for implementing the responsibilities of section 306(c)(5) under the Coastal Zone Management Act, as amended, and 15 CFR part 930;
                (u) United States means the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the United States Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States; and
                (v) United States citizen means—
                (1) Any individual who is a citizen of the United States;
                (2) Any corporation, partnership, joint venture, association, or other entity organized or existing under the laws of any of the United States; and
                (3) Any corporation, partnership, joint venture, association, or other entity (whether organized or existing under the laws of any of the United States or a foreign nation) if the controlling interest in such entity is held by an individual or entity described in paragraph (v)(1) or (v)(2).

                § 971.102
                Nature of permits.
                (a) A permit issued under this part authorizes the holder thereof to engage in commercial recovery within a specific portion of the sea floor consistent with the provisions of the Act and this part and consistent with the specific terms, conditions, and restrictions (TCRs) applied to the permit by the Administrator.

                (b) A permit issued under this part is exclusive with respect to the holder thereof as against any other United States citizen or any citizen, national or governmental agency of, or any legal entity organized or existing under the laws of, any reciprocating state.
                (c) A valid existing license under 15 CFR part 970 will entitle the holder, if otherwise eligible under the provisions of the Act and implementing regulations, to a permit for commercial recovery from an area selected from within the license area. Such a permit will recognize the right of the holder to recover hard mineral resources, and to own, tranport, use, and sell hard mineral resources recovered under the permit and in accordance with the requirements of the Act and this part.

                § 971.103
                Prohibited activities and restrictions.
                (a) Prohibited activities and exceptions. (1) No United States citizen may engage in any commercial recovery unless authorized to do so under—
                (i) A permit issued pursuant to the Act and implementing regulations;
                (ii) A license, permit or equivalent authorization issued by a reciprocating state; or
                (iii) An international agreement which is in force with respect to the United States.
                (2) The prohibitions of paragraph (a)(1) of this section do not apply to any of the following activities:
                (i) Scientific research, including that concerning hard mineral resources;
                (ii) Mapping, or the taking of any geophysical, geochemical, oceanographic, or atmospheric measurements or random bottom samplings of the deep seabed, if such taking does not significantly alter the surface or subsurface of the seabed or significantly affect the environment;
                (iii) The design, construction, or testing of equipment and facilities which will or may be used for exploration or commercial recovery, if such design, construction or testing is conducted onshore, or does not involve the recovery of any but incidental hard mineral resources;
                (iv) The furnishing of machinery, products, supplies, services, or materials for any exploration or commercial recovery conducted under a license or permit issued under the Act and implementing regulations, a license or permit or equivalent authorization issued by a reciprocating state, or any relevant international agreement; and
                (v) Activities, other than exploration or commercial recovery activities, of the Federal Government.
                (3) No United States citizen may interfere or participate in interference with any activity conducted by any permittee which is authorized to be undertaken under a permit issued by the Administrator to a permittee under the Act or with any activity conducted by the holder of, and authorized to be undertaken under, a license or permit or equivalent authorization issued by a reciprocating state for the commercial recovery of hard mineral resources. For purposes of this section, interference includes physical interference with activities authorized by the Act, this part, and a license or permit issued pursuant thereto; the filing of a specious claim in the United States or any other nation; and any other activity designed to harass, or which has the effect of harassing, persons conducting deep seabed mining activities authorized by law. Interference does not include the exercise of any superior rights granted to United States citizens by the Constitution of the United States, or any Federal or State law, treaty, or agreement or regulation promulgated pursuant thereto.
                (4) United States citizens shall exercise their rights on the high seas with reasonable regard for the interests of other states in their exercise of the freedoms of the high seas.
                (b) Restrictions on issuance of permits. The Administrator will not issue any permit—
                (1) After the date on which any relevant international agreement is ratified by and enters into force with respect to the United States, except to the extent that issuance of the permit is not inconsistent with that agreement.
                (2) The recovery plan of which, submitted pursuant to the Act and implementing regulations, would apply to an area to which applies, or would conflict with:

                (i) Any exploration plan or recovery plan submitted with any pending application to which priority of right for issuance applies under 15 CFR part 970 or this part;

                (ii) Any exploration plan or recovery plan associated with any existing license or permit; or
                (iii) An equivalent authorization which has been issued, or for which formal notice of application has been submitted, by a reciprocating state prior to the filing date of any relevant application for licenses or permits pursuant to the Act and implementing regulations;
                (3) Authorizing commercial recovery within any area of the deep seabed in which exploration is authorized under a valid existing license if such permit is issued to a person other than the licensee for such area;
                (4) Which authorizes commercial recovery to commence before January 1, 1988;
                (5) The recovery plan for which applies to any area of the deep seabed if, within the 3-year period before the date of application for that permit:
                (i) The applicant therefor surrendered or relinquished such area under an exploration plan or recovery plan associated with a previous license or permit issued to such applicant; or
                (ii) A permit previously issued to the applicant had an exploration plan or recovery plan which applied to such area and such license or permit was revoked under section 106 of the Act;
                (6) Or approve the transfer of a permit, except to a United States citizen; or
                (7) That would authorize commercial recovery activities in an area other than for which the applicant therefore holds a valid exploration license under part 970 of this title.

                § 971.104
                OMB control number.
                The information collection requirements and reporting and recordkeeping requirements contained in this part were approved by the Office of Management and Budget under control number 0648-0170.

              Subpart B—Applications

                § 971.200
                General.
                (a) Who may apply; how. Any United States citizen holding a valid exploration license may apply to the Administrator for issuance of a commercial recovery permit for all or part of the area to which the license applies. Any holder of a commercial recovery permit may apply to the Administrator for transfer of the permit. Applications must be submitted in the form and manner described in this subpart.
                (b) Place, form and copies. An application for the issuance or transfer of a commerical recovery permit must be in writing, verified and signed by an authorized officer or other authorized representative of the applicant. The application and 25 copies thereof must be submitted to:

                  Ocean Minerals and Energy Division, Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, Suite 710, 1825 Connecticut Avenue, NW., Washington, DC 20235.

                The Administrator may waive in whole or in part, at his discretion, the requirement that 25 copies of an application be filed with NOAA.
                (c) General contents. The application must contain a proposed commerical recovery plan and the financial, technical, environmental and other information specified in this part, which in total are necessary for the Administrator to make the determinations required by the Act and this part. Although the ultimate standards for determinations under these rules are identical for both transferees and original preexisting licensees, NOAA anticipates that applicants who are transferees will have to supply more information with the application than licensees will [see subsection (e) in this section].
                (d) Identification of requirements. Each portion of the application should identify the requirements of this part to which it responds.
                (e) Information previously submitted in connection with an exploration license. Information previously submitted as part of an exploration license application, as well as information submitted during the course of license activities (such as data included in annual reports to NOAA), may be incorporated in the commercial recovery permit application by reference.
                (f) Request for confidential treatment of information. If an applicant wishes to have any information in its application not be subject to public disclosure, it must so request, at the time of submitting the information, pursuant to § 971.802 which will govern disposition of the request.
                (g) Pre-application consultation. The Administrator will make NOAA staff available to potential applicants for pre-application consultations on how to respond to the provisions of this part. In appropriate circumstances, the Administrator will provide written confirmation to the applicant of oral guidance resulting from such consultations. Such consultation is required for the purpose of § 971.207. The applicant is encouraged to consult with affected States as early as is practicable [see also §§ 971.213 and 971.606(b)].
                (h) Compliance with Federal consistency requirements. An applicant for a commercial recovery permit must comply with all necessary requirements, including procedures, pursuant to 15 CFR part 930, subpart D. Applications and other necessary data and information must be transmitted to the designated State agency as prescribed under 15 CFR 930.50.

                Contents

                  § 971.201
                  Statement of financial resources.
                  (a) General. The application must contain information sufficient to demonstrate to the Administrator pursuant to § 971.301 that, upon issuance or transfer of the permit, the applicant will have access to the financial resources to carry out, in accordance with this part, the commercial recovery program set forth in the applicant's commercial recovery plan.
                  (b) Specific. In particular, the information on financial resources is expected to be general in nature but must include the likely sources and timing of funds to meet the applicant's scheduled expenditures in the recovery plan. These sources may include cash flow, reserves, and outside funding.

                  § 971.202
                  Statement of technological experience and capabilities.
                  (a) General. The application must contain information sufficient to demonstrate to the Administrator pursuant to § 971.301 that, upon issuance or transfer of the permit, the applicant will have the technological capability to carry out, in accordance with the regulations contained in this part, the commercial recovery program set out in the applicant's commercial recovery plan.
                  (b) Specific. In particular, the information submitted pursuant to this section must describe the equipment, knowledge, and skills the applicant possesses, or to which it can demonstrate access [see § 971.200(e)]. The information must include:
                  (1) A description of the technology or the equipment and methods to be used by the applicant in carrying out each step in the mining process, including nodule collection, retrieval, transfer to ship, environmental monitoring, transport to processing facilities, nodule processing, waste disposal and compliance with applicable water quality standards. The description must include:
                  (i) An analysis of the performance of experimental systems, sub-systems, or analogous machinery;
                  (ii) The rationale for extrapolating from test results to commercial mining. The more test data offered with the application the less analysis will be expected; and
                  (iii) Anticipated system reliability within the context of anticipated production time lost through equipment failure.
                  (2) A functional description of the types of technical persons on whom the applicant will rely to operate its equipment.

                  § 971.203
                  Commercial recovery plan.
                  (a) General. The application must include a proposed commercial recovery plan which describes the applicant's projected commercial recovery activities, in a general way, for the twenty year period to be covered by the proposed permit. Although preliminary and subject to change, the plan must be more detailed for that portion of the permit term leading up to the initiation of commercial recovery. The plan must include sufficient information for the Administrator, pursuant to this part, to make the necessary determinations pertaining to the certification and issuance or transfer of a permit and to the development and enforcement of the TCRs for a permit.
                  (b) Specific. The plan must include:
                  (1) A description of the activities proposed to be carried out during the period of the permit;
                  (2) The intended schedule of commercial recovery (see “Diligent commercial recovery,” § 971.503);
                  (3) Environmental safeguards and monitoring systems, which must take into account requirements under subpart F of this part, including best available technologies (BAT) (§ 971.604) and monitoring (§ 971.603);
                  (4) Details of the area or areas proposed for commercial recovery, which meet requirements for diligence (§ 971.503) and conservation of resources pursuant to subpart E (especially § 971.502);
                  (5) A resource assessment of the area or areas proposed for commercial recovery which meets the requirements for resource assessment and logical mining unit (§ 971.501);
                  (6) A description of the methods and technology to be used for commercial recovery and processing (see § 971.202(b)(1)); and
                  (7) The methods to be used for disposal of wastes from recovery and processing, including the areas for disposal and identification of any toxic substances in wastes.

                  § 971.204
                  Environmental and use conflict analysis.
                  (a) Environmental information submission. The application must be supported by sufficient marine environmental information for the Administrator to prepare an environmental impact statement (EIS) on the proposed mining activities, and to determine the appropriate permit TCRs based on environmental characteristics of the requested minesite. The Administrator may require the submission of additional data, in the event he determines that the basis for a suitable EIS, or a determination of appropriate TCRs, is not available.
                  (b)(1) In preparing the EIS, the Administrator will attempt to characterize the environment in such a way as to provide a basis for judging the potential for significant adverse effects or irreparable harm triggered by commercial mining (see subpart F). In compiling these data, the Administrator will utilize existing information including the relevant license EIS, additional exploration data acquired by the applicant, and other data in the public domain.
                  (2) The EIS must present adequate physical, chemical, and biological information for the permit area. If the permit area lies within the area of NOAA's Deep Ocean Mining Environmental Study (DOMES), the parameters listed in NOAA's Technical Guidance Document pertaining to the upper and lower water column should be included. Specifically, these parameters include:
                  (i) Upper water column—

                    Nutrients
                    Endangered species
                    Salinity, temperature, density
                    Currents.

                  (ii) Lower water column and seafloor—

                    Currents
                    Suspended particulate matter dispersion
                    Sediment characteristics (mineralogy, particle size, shape and density, and water content)
                    Topography
                    Benthos.

                  (3) For a permit area outside the DOMES area, the applicant is encouraged to consult with NOAA at the earliest opportunity in order to determine the specific parameters to be measured based on the location and specific environmental characteristics of the permit area. The Administrator, in consultation with the Administrator of the Environmental Protection Agency and with the assistance of other appropriate Federal agencies, may determine that a programmatic EIS is required for any new area.
                  (c) The application must include a monitoring plan for test mining and at-sea commercial recovery activities which meets the objectives and requirements of § 971.603.
                  (d) Use conflict analysis. The application must include information known to the applicant on other uses of the proposed mining area to support the Administrator's determination regarding potential use conflicts between commercial mining activities and those activities of other nations or of other U.S. citizens.
                  (e) Onshore information. Because of NEPA requirements, the Administrator must include in the EIS on the proposed permit the complete spectrum of activities resulting from the issuance of a permit. Therefore, onshore information including the location and operation of nodule processing facilities must be submitted with the application in accordance with the details in § 971.606.

                  § 971.205
                  Vessel safety and documentation.
                  In order to provide a basis for the necessary determinations with respect to the safety of life and property at sea, pursuant to § 971.407, § 971.422 and Subpart G of this part, the application must contain the following information for vessels used in commercial recovery, except for those vessels under 300 gross tons which are engaged in oceanographic research:
                  (a) U.S. flag vessel. All mining ships and at least one of the transport ships used by each permittee must be documented under the laws of the United States. To the extent that the applicant knows which United States flag vessels it will use, it must include with its application copies of the vessels' current valid Coast Guard Certificates of Inspection.
                  (b) Foreign flag vessels. To the extent that the applicant knows which foreign flag vessel(s) it will be using for other purposes, the application must include evidence of the following:
                  (1) That any foreign flag vessel whose flag state is party to the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74) possesses current valid SOLAS 74 certificates;
                  (2) That any foreign flag vessel whose flag state is not party to SOLAS 74 but is party to the International Convention for the Safety of Life at Sea, 1960 (SOLAS 60) possesses current valid SOLAS 60 certificates; and
                  (3) That any foreign flag vessel whose flag state is not a party to either SOLAS 74 or SOLAS 60 meets all applicable structural and safety requirements contained in the published rules of a member of the International Association of Classification Societies (IACS).
                  (c) Supplemental certificates. If the applicant does not know at the time of submitting an application which vessels it will be using, it must submit the applicable certification for each vessel before the cruise on which it will be used.

                  § 971.206
                  Statement of ownership.
                  (a) General. The application must include sufficient information to demonstrate that the applicant is a United States citizen.
                  (b) Specific. In particular, the application must include:
                  (1) Name, address, and telephone number of the United States citizen responsible for commercial recovery operations;
                  (2) A description of the citizen or citizens engaging in commercial recovery, including:
                  (i) Whether the citizen is a natural person, partnership, corporation, joint venture, or other form of association;
                  (ii) The state of incorporation or state in which the partnership or other business entity is registered;
                  (iii) The name and place of business of the registered agent or equivalent representative to whom notices and orders are to be delivered;
                  (iv) Copies of all essential and nonproprietary provisions in articles of incorporation, charter or articles of association; and
                  (v) The name of each member of the association, partnership, or joint venture, including information about the participation and/or ownership of stock of each partner or joint venturer.

                  § 971.207
                  Antitrust information.
                  In order to support the antitrust review referenced in § 971.211, the application must contain information sufficient, in the applicant's view and based on preapplication consultations pursuant to § 971.200(g), to identify the applicant and describe any significant existing market share it has with respect to the mining or marketing of the metals proposed to be recovered under the permit.

                  § 971.208
                  Fee.
                  (a) General. Section 104 of the Act provides that no application for the issuance or transfer of a permit will be certified unless the applicant pays to NOAA an administrative fee which reflects the reasonable administrative costs incurred in reviewing and processing the application.
                  (b) Amount. A fee payment of $100,000, payable to the National Oceanic and Atmospheric Administration, Department of Commerce, must accompany each application. If the administrative costs of reviewing and processing the application are significantly less than or in excess of $100,000, the Administrator, after determining the amount of the under- or over-charge, as applicable, will refund the difference or require the applicant to pay the additional amount before issuance or transfer of the permit. In the case of an application for transfer of a permit to, or for a significant change to a permit held by, an entity which has previously been found qualified for a permit, the Administrator may reduce the fee in advance by an appropriate amount which reflects costs avoided by reliance on previous findings made in relation to the proposed transferee.

                  § 971.209
                  Processing outside the United States.
                  (a) Except as provided in this section and § 971.408, the processing of hard minerals recovered pursuant to a permit shall be conducted within the U.S., provided that the President or his designee does not determine that this restriction contravenes the overriding national interests of the United States.
                  (b) If foreign processing is proposed, the applicant shall submit a justification demonstrating the basis for a finding pursuant to § 971.408(a)(1). The justification shall include an analysis of each factor which the applicant considers essential to its conclusion that processing at a site within the U.S. is not economically viable.
                  (c) If the Administrator determines that the justification provided by the applicant is insufficient, or if the Administrator receives during the public comment or hearing period what the Administrator determines to be a serious alternative U.S. processing site proposal, the Administrator may require the applicant to supply, within a specified reasonable time, additional information relevant to the § 971.408(a)(1) finding.
                  (d) The applicant must include in its application satisfactory assurances that such resources after processing, to the extent of the permittee's ownership therein, will be returned to the United States for domestic use if the Administrator determines pursuant to § 971.408 that the national interest necessitates such return. Assurances must include proposed arrangements with the host country.

                Procedures

                  § 971.210
                  Determination whether application is complete for further processing.
                  Upon receipt of an application, the Administrator will review it to determine whether it includes information specifically identifiable with and fully responsive to each requirement in § 971.201 through § 971.209. The Administrator will notify the applicant whether the application is complete within 60 days after it is received. The notice will identify, if applicable, in what respects the application is not complete, and will specify the information which the applicant must submit in order to make it complete, why the additional information is necessary, and a reasonable date by which the application must be completed. Application processing will not begin until the Administrator determines that the application is complete.

                  § 971.211
                  Consultation and cooperation with Federal agencies.

                  (a) Promptly after receipt of an application that the Administrator has determined pursuant to § 971.210 is complete, the Administrator will distribute a copy of the application to every Federal agency or department which, pursuant to section 103(e) of the Act, has identified programs or activities within its statutory responsibilities which would be affected by the activities proposed in the application (e.g., the Departments of State, Transportation, Justice, Interior, Defense, Treasury and Labor, as well as the Environmental Protection Agency, Federal Trade Commission, International Trade Administration and National Science Foundation). Based on its legal responsibilities and authorities, each such agency or department may, not later than 60 days after it receives a copy of the application, recommend certification of the application, issuance or transfer of the permit, or denial of such certification, issuance or transfer. The advice or recommendation by the Attorney General or Federal Trade Commission on antitrust review, pursuant to section 103(d) of the Act, must be submitted within 90 days after their receipt of a copy of the application.
                  (b) NOAA will use this process of consultation and cooperation to facilitate necessary Federal decisions on proposed commercial recovery activities, pursuant to the mandate of section 103(e) of the Act to reduce the number of separate actions required to satisfy Federal agencies' statutory responsibilities. The Administrator will not issue or transfer the permit during the 90 day period after receipt by the Attorney General and the Federal Trade Commission except upon written confirmation of the Attorney General and the Federal Trade Commission that neither intends to submit further comments or recommendations with respect to the application.
                  (c) In any case in which a Federal agency or department recommends a denial, it must set forth in detail the manner in which the application does not comply with any law or regulation within its area of responsibility and how the application may be amended, or how TCRs might be added to the permit, to assure compliance with such law or regulation.
                  (d) NOAA will cooperate with such agencies and with the applicant with the goal of resolving any concerns raised and satisfying the statutory responsibilities of these agencies.
                  (e) If the Administrator decides to issue or transfer a permit with respect to which denial of the issuance or transfer has been recommended by the Attorney General or the Federal Trade Commission, or to issue or transfer a permit without imposing TCRs recommended by the Attorney General or the Federal Trade Commission, as appropriate, the Administrator will, before or at issuance or transfer of the permit, notify the Attorney General and the Federal Trade Commission of the reasons for his decision.

                  § 971.212
                  Public notice, hearing and comment.
                  (a) Notice and comments. The Administrator will publish in the Federal Register, for each complete application for issuance or transfer of a commercial recovery permit, notice that the application has been received. Subject to § 971.802, interested persons will be allowed to examine the materials relevant to the application, and will have at least 60 days after publication of notice to submit written comments to the Administrator.
                  (b) Hearings. After preparation of the draft environmental impact statement (EIS) on an application, the Administrator will hold a public hearing on the application and the draft EIS in an appropriate location and may employ additional methods he/she deems appropriate to inform interested persons about each application and to invite comments thereon. A hearing will be conducted in any State in which a processing plant or any of its ancillary facilities (such as a marine terminal or a waste disposal facility) are proposed to be located.
                  (c) If the Administrator determines there exist one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing will be held in the District of Columbia metropolitan area in accordance with the provisions of Subpart I of this part. The record developed in any such formal hearing will be part of the basis of the Administrator's decisions on an application.
                  (d) Hearings held pursuant to this section and other procedures will be consolidated, if practicable, with hearings held and procedures employed by other Federal and State agencies.

                  § 971.213
                  Amendment to an application.

                  After an application has been submitted to the Administrator, but before a determination is made on the issuance or transfer of a permit, the applicant must submit an amendment to the application if there is a significant change in the circumstances represented in the original application which affects the requirements of this subpart. Applicants should consult with NOAA to determine if changes in circumstances are sufficiently significant to require submission of an amendment. The application, as amended, would then serve as the basis for determinations by the Administrator under this part. For each amendment judged by the Administrator to be significant, the Administrator will provide a copy of that amendment to each other Federal agency and department which received a copy of the original application, and also will provide for public notice, hearing and comment on the amendment pursuant to § 971.212. After the issuance or transfer of a permit, any revision of the permit will be made pursuant to § 971.413. Any amendment or modification which would cause coastal zone effects substantially different than those originally reviewed by the state agency would be subject to Federal consistency review as prescribed in 15 CFR part 930.

                  § 971.214
                  Consolidated license and permit procedures. [Reserved]

              Subpart C—Certification of Applications

                § 971.300
                General.
                (a) Certification is an intermediate step between receipt of an application for issuance or transfer of a permit and actual issuance or transfer. It is a determination which focuses on the eligibility of the applicant.
                (b) Before the Administrator may certify an application for issuance or transfer of a permit, the Administrator must determine that issuance of the permit would not violate any of the restrictions in § 971.103(b). The Administrator also must make written determinations with respect to the requirements with respect to the requirements set forth in § 971.301.
                (c) To the maximum extent possible, the Administrator will endeavor to complete certification within 100 days after receipt of a complete application. If final certification or denial of certification has not occurred within 100 days after receipt of the application, the Administrator will inform the applicant in writing of the pending unresolved issues, the efforts to resolve them, and an estimate of the time required to do so.

                § 971.301
                Required findings.
                Before the Administrator may certify an application for a commercial recovery permit, the Administrator must:
                (a) Approve the size and location of the commercial recovery area selected by the applicant, and this approval will occur unless the Administrator determines that (1) the area is not a logical mining unit under § 971.501, or (2) commercial recovery activities in the proposed area would result in a significant adverse environmental effect which cannot be avoided by imposition of reasonable restrictions; and
                (b) Find that the applicant—
                (1) Has demonstrated that, upon issuance or transfer of the permit, the applicant will be financially responsible to meet all obligations which may be required to engage in its proposed commercial recovery activities;
                (2) Has demonstrated that, upon permit issuance or transfer, it will possess, or have access to, the technological capability to engage in the proposed commercial recovery;
                (3) Has satisfactorily fulfilled all past obligations under any license or permit previously issued or transferred to the applicant under the Act;
                (4) Has a commercial recovery plan which meets the requirements of § 971.203; and
                (5) Has paid the permit fee specified in § 971.208.

                § 971.302
                Denial of certification.
                (a) The Administrator may deny certification of an application if the Administrator finds that the requirements of this subpart, or the requirements for issuance or transfer under § 971.403 through § 971.408, have not been met.

                (b) When the Administrator proposes to deny certification the Administrator will send to the applicant, via certified mail, return receipt requested, and publish in the Federal Register, written notice of intention to deny certification. The notice will include:
                (1) The basis upon which the Administrator proposes to deny certification; and
                (2) If the basis for the proposed denial is a deficiency which the Administrator believes the applicant can correct:
                (i) The action believed necessary to correct the deficiency; and
                (ii) The time within which any correctable deficiency must be corrected (not to exceed 180 days except as specified by the Administrator for good cause).
                (c) The Administrator will deny certification:
                (1) On the 30th day after the date the notice is received by the applicant, under paragraph (b) of the section, unless before the 30th day the applicant files with the Administrator a written request for an administrative review of the proposed denial; or
                (2) On the last day of the period established under paragraph (b)(2)(ii) in which the applicant must correct a deficiency, if that deficiency has not been corrected before that day and an administrative review requested pursuant to paragraph (c)(1) is not pending or in progress.
                (d) If a timely request for administrative review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed concurrently with any attempts to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently.
                (e) If the Administrator denies certification, he will send to the applicant written notice of the denial, including the reasons therefor.
                (f) Any final determination by the Administrator granting or denying certification is subject to judicial review as provided in chapter 7 of title 5, United States Code.

                § 971.303
                Notice of certification.
                Upon making a final determination to certify an application for a commercial recovery permit, the Administrator will promptly send written notice of the determination to the applicant.

              Subpart D—Issuance/Transfer: Terms, Conditions and Restrictions

                § 971.400
                General.
                (a) Proposal. After certification of an application pursuant to subpart C of this part, the Administrator will proceed with a proposal to issue or transfer a permit for the commercial recovery activities described in the application.
                (b) Terms conditions and restrictions. (1) Within 180 days after certification (or such longer period as the Administrator may establish for good cause shown in writing), the Administrator will propose terms and conditions for, and restrictions on, the proposed commercial recovery which are consistent with the provisions of the Act and this part as set forth in §§ 971.418 through 971.430. Proposed and final TCRs will be uniform in all permits, except to the extent that differing physical and environmental conditions and/or mining methods require the establishment of special TCRs for the conservation of natural resources, protection of the environment, or the safety of life and property at sea. The Administrator will propose TCRs in writing to the applicant, and public notice thereof will be provided pursuant to § 971.401. The proposed TCRs will be included with the draft of the EIS on permit issuance.
                (2) If the Administrator does not propose TCRs within 180 days after certification, the Administrator will notify the applicant in writing of the reasons for delay and of the approximate date on which the proposed TCRs will be completed.
                (c) Findings. Before issuing or transferring a commercial recovery permit, the Administrator must make written findings in accordance with the requirements of § 971.403 through § 971.408. These findings will be made after considering all information submitted with respect to the application and proposed issuance or transfer. The Administrator will make a final determination of issuance or transfer of a permit, and will publish a final EIS on that action, within 180 days (or such longer period of time as the Administrator may establish for good cause shown in writing) following the date on which proposed TCRs and the draft EIS are published.

                Issuance/Transfer, Modification/Revision; Suspension/Revocation

                  § 971.401
                  Proposal to issue or transfer and proposed terms, conditions and restrictions.
                  (a) Notice and comment. The Administrator will publish in the Federal Register notice of each proposal to issue or transfer, including notice of a draft EIS, and of proposed terms and conditions for, and restrictions on, a commercial recovery permit that will be included with the draft EIS [see § 971.400(b)]. Subject to § 971.802, interested persons will be permitted to examine the materials relevant to such proposals. Interested persons and affected States will have at least 60 days after publication of such notice to submit written comments to the Administrator.
                  (b) Hearings. (1) The Administrator will hold the public hearing(s) required by § 971.212(b) in an appropriate location and may employ such additional methods as he deems appropriate to inform interested persons about each proposal and to invite their comments thereon. A copy of the notice and draft EIS will be provided to the affected State agency. Information provided by NOAA may be used to supplement information provided by the applicant, however it will not affect schedules for State agency review and decisions with respect to consistency determinations as required in 15 CFR part 930, subpart D.
                  (2) If the Administrator determines there exist one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing, which may be consolidated with a hearing held by another agency, will be held in the District of Columbia metropolitan area in accordance with the provisions of subpart I of this part. The record developed in any such formal hearing will be part of the basis for the Administrator's decisions on issuance or transfer of, and on TCRs for, the permit.

                  § 971.402
                  Consultation and cooperation with Federal and State agencies.
                  Before issuance or transfer of a commercial recovery permit, the Administrator will conclude any consultations in cooperation with other Federal and State agencies which were initiated pursuant to §§ 971.211 and 971.200(g). These consultations will be held to assure compliance with, as applicable and among other statutes, the Endangered Species Act of 1973, as amended, the Marine Mammal Protection Act of 1972, as amended, the Fish and Wildlife Coordination Act, and the Coastal Zone Management Act of 1972, as amended. The Administrator also will consult, before any issuance, transfer, modification or renewal of a permit, with any affected Regional Fishery Management Council established pursuant to section 302 of the Magnuson Fishery Conservation and Management Act of 1976 (16 U.S.C. 1852) if the activities undertaken pursuant to the permit could adversely affect any fishery within the Fishery Conservation Zone (now known as the Exclusive Economic Zone), or any anadromous species or Continental Shelf fishery resource subject to the exclusive management authority of the United States beyond that zone.

                  § 971.403
                  Freedom of the high seas.
                  (a) Before issuing or transferring a commercial recovery permit, the Administrator must find the recovery proposed in the application will not unreasonably interfere with the exercise of the freedoms of the high seas by other nations, as recognized under general principles of international law.
                  (b) In making this finding, the Administrator will recognize that commercial recovery of hard mineral resources of the deep seabed is a freedom of the high seas. In the exercise of this right, each permittee shall act with reasonable regard for the interests of other nations in their exercise of the freedoms of the high seas.

                  (c)(1) In the event of a conflict between the commercial recovery program of an applicant or permittee and a competing use of the high seas by another nation or its nationals, the Administrator, in consultation and cooperation with the Department of State and other interested agencies, will enter into negotiations with that nation to resolve the conflict. To the maximum extent possible the Administrator will endeavor to resolve the conflict in a manner that will allow both uses to take place such that neither will unreasonably interfere with the other.
                  (2) If both uses cannot be conducted harmoniously in the area subject to the recovery plan, the Administrator will decide whether to issue or transfer the permit.

                  § 971.404
                  International obligations of the United States.
                  Before issuing or transferring a commercial recovery permit, the Administrator must find that the commercial recovery proposed in the application will not conflict with any international obligation of the United States established by any treaty or international convention in force with respect to the United States.

                  § 971.405
                  Breach of international peace and security involving armed conflict.
                  Before issuing or transferring a commercial recovery permit, the Administrator must find that the recovery proposed in the application will not create a situation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict.

                  § 971.406
                  Environmental effects.
                  Before issuing or transferring a commercial recovery permit, the Administrator must find that the commercial recovery proposed in the application cannot reasonably be expected to result in a significant adverse environmental effect, taking into account the analyses and information in any applicable EIS and any TCRs associated with the permit. This finding also will be based upon the requirements in subpart F. However, as also noted in subpart F, if a determination on this question cannot be made on the basis of available information, and it is found that irreparable harm will not occur during a period when an approved monitoring program is undertaken to further examine the significant adverse environmental effect issue, a permit may be granted, subject to modification or suspension and, if necessary and appropriate, revocation pursuant to § 971.417(a), or subject to emergency suspension pursuant to § 971.417(h).

                  § 971.407
                  Safety at sea.
                  Before issuing or transferring a commercial recovery permit, the Administrator must find that the commercial recovery proposed in the application will not pose an inordiante threat to the safety of life and property at sea. This finding will be based on the requirements in § 971.205 and subpart G.

                  § 971.408
                  Processing outside the United States.
                  (a) Before issuing or transferring a commercial recovery permit which authorizes processing outside the U.S., the Administrator must find, after the opportunity for an agency hearing required by § 971.212(b), that:
                  (1) The processing of the quantity concerned of hard mineral resource at a place other than within the United States is necessary for the economic viability of the commercial recovery activities of the permittee; and
                  (2) Satisfactory assurances have been given by the permittee that such resources, after processing, to the extent of the permittee's ownership therein, will be returned to the United States for domestic use, if the Administrator so requires after determining that the national interest necessitates such return.
                  (b) At or after permit issuance the Administrator may determine, or revise a prior determination, that the national interest necessitates return to the U.S. of a specified amount of hard mineral resource recovered pursuant to the permit and authorized to be processed outside the United States. Considerations in making this determination may include:
                  (1) The national interest in an adequate supply of minerals;

                  (2) The foreign policy interests of the United States; and

                  (3) The multi-national character of deep seabed mining operations.
                  (c) As appropriate, TCRs will incorporate provisions to implement the decision of the Administrator made pursuant to this section.
                  (d) Environmental considerations of the proposed activity will be addressed in accordance with § 971.606(c).

                  § 971.409
                  Denial of issuance or transfer.
                  (a) The Administrator may deny issuance or transfer of a permit if he finds that the applicant or the proposed commercial recovery activities do not meet the rquirements of this part for the issuance or transfer of a permit.

                  (b) When the Administrator proposes to deny issuance or transfer, he will send to the applicant, via certified mail, return receipt requested, and publish in the Federal Register, written notice of his intention to deny issuance or transfer. The notice will include:
                  (1) The basis upon which the Administrator proposes to deny issuance or transfer; and
                  (2) If the basis for the proposed denial is a deficiency which the Administrator believes the applicant can correct:
                  (i) The action believed necessary to correct the deficiency; and
                  (ii) The time within which any correctable deficiency must be corrected (not to exceed 180 days except as specified by the Administrator for good cause).
                  (c) The Administrator will deny issuance or transfer:
                  (1) On the 30th day after the date the notice is received by the applicant under paragraph (b) of this section, unless before the 30th day the applicant files with the Administrator a written request for an administrative review of the proposed denial; or
                  (2) On the last day of the period established under paragraph (b)(2)(ii) in which the applicant must correct a deficiency, if the deficiency has not been corrected before that day and an administrative review requested pursuant to paragraph (c)(1) is not pending or in progress.
                  (d) If a timely request for administrative review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed concurrently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently.
                  (e) If the Administrator denies issuance or transfer, the Administrator will send to the applicant written notice of final denial, including the reasons therefor.
                  (f) Any final determination by the Administrator granting or denying issuance or transfer of a permit is subject to judicial review as provided in chapter 7 of title 5, United States Code.

                  § 971.410
                  Notice of issuance or transfer.

                  If the Administrator finds that the requirements of this subpart have been met, he will issue or transfer the permit along with the appropriate TCRs. Notice of issuance or transfer will be made in writing to the applicant and published in the Federal Register.

                  § 971.411
                  Objections to terms, conditions and restrictions.
                  (a) The permittee may file a notice of objection to any TCR in the permit. The permittee may object on the grounds that any TCR is inconsistent with the Act or this part, or on any other grounds which may be raised under applicable provisions of law. If the permittee does not file notice of an objection within the 60-day period immediately following the permittee's receipt of the notice of issuance or transfer under § 971.410, the permittee will be deemed conclusively to have accepted the TCRs in the permit.

                  (b) Any notice of objection filed under paragraph (a) of this section must be in writing, must indicate the legal or factual basis for the objection, and must provide information relevant to any underlying factual issues deemed by the permittee as necessary to the Administrator's decision upon the objection.

                  (c) Within 90 days after receipt of the notice of objection, the Administrator will act on the objection and publish in the Federal Register, as well as provide to the permittee, written notice of the decision.
                  (d) If, after the Administrator takes final action on an objection, the permittee demonstrates that a dispute remains on a material issue of fact, the Administrator will provide for a formal hearing which will proceed in accordance with Subpart I of this part.
                  (e) Any final determination by the Administrator on an objection to TCRs in a permit, after the formal hearing provided in paragraph (d), is subject to judicial review as provided in chapter 7 of title 5, United States Code.

                  § 971.412
                  Changes in permits and permit terms, conditions, and restrictions.
                  (a) During the duration of a commercial recovery permit, changes in the permit or its associated commercial recovery plan may be initiated by either the permittee or the Administrator.
                  (b) A significant change is one which, if approved, would result in:
                  (1) An increase of more than five percent in the size of the commercial recovery area; or
                  (2) A change in the location of five percent or more of the commercial recovery area.
                  (c) A major change is one affecting one or more of:
                  (1) The bases for certifying the original application pursuant to § 971.301;
                  (2) The bases for issuing or transferring the permit pursuant to § 971.403 through § 971.408;
                  (3) The TCRs issued as part of the permit pursuant to §§ 971.418 through 971.430; or
                  (4) The ownership of a permittee (or the membership of the joint venture, partnership or other entity on whose behalf the permit was issued); and which change is sufficiently broad in scope to raise a question as to:
                  (i) The permittee's ability to meet the requirements of the sections cited in paragraphs (c)(1) and (2) of this section;
                  (ii) The sufficiency of the TCRs to accomplish their intended purpose; or
                  (iii) The antitrust characteristic of the permittee.
                  (d) A minor change is one that is clearly more modest in scope than the changes described in paragraph (b) or (c) of this section.
                  (e) A permittee may not implement a significant or major change, as defined in paragraphs (b) and (c) of this section, until an application for revision of the permit or its associated commercial recovery plan has been approved by the Administrator. However, advance notice of proposed major changes in a permittee's corporate membership or legal structure is not required, unless practicable, but the Administrator expects prompt notification of the occurrence of such a major change.
                  (f) A proposed significant or major change, as defined in paragraphs (b) and (c) of this section, may trigger the need for additional review, under the Federal consistency provisions of the Coastal Zone Management Act of 1972, as amended.

                  § 971.413
                  Revision of a permit.
                  (a) During the term of a commercial recovery permit, the permittee may submit to the Administrator an application for a revision of the permit or the commercial recovery plan associated with it to accommodate changes desired by the permittee. In some cases it may be advisable to recognize at the time of filing the original permit application that, although the essential information for issuing or transferring a permit as specified in § 971.201 through § 971.209 must be included in such application, some details may have to be provided in the future in the form of a revision. In such instances, the Administrator may issue or transfer a permit which would authorize commercial recovery activities and plans only to the extent described in the application.
                  (b) An application by a permittee for a revision of a permit or its associated commercial recovery plan involving a significant change, as defined in § 971.412(b), must be followed by the full application procedures in this part, including a public hearing.

                  (c) An application by a permittee for a revision of a permit or its associated commercial recovery plan involving a major change, as defined in § 971.412(c) (See also § 971.425 of this part), will be acted on after notice thereof is published by the Administrator in the Federal Register with a 60-day opportunity for public comment and consultation with appropriate Federal agencies.
                  (d)(1) The Administrator will approve a revision if the Administrator finds in writing that the revision will comply with the requirements of the Act and this part.

                  (2) Notice of the Administrator's decision on the proposed revision will be provided to the permittee in writing and published in the Federal Register.

                  (e) A permittee may notify the Administrator of minor changes, as defined in § 971.412(d), subsequently in the annual report (See § 971.801 of this part).
                  (f) If the relative importance of the change is unclear to the permittee, the Administrator should be notified in advance so that the Administrator can decide whether a revision in accordance with § 971.412(e) is required.

                  § 971.414
                  Modification of permit terms, conditions, and restrictions.
                  (a) After issuance or transfer of any permit, the Administrator, after consultation with appropriate Federal agencies and the permittee, may modify the TCRs in a permit for the following purposes:
                  (1) To avoid unreasonable interference with the interests of other nations in their exercise of the freedoms of the high seas, as recognized under general principles of international law. This determination will take into account the considerations listed in § 971.403;
                  (2) If relevant data and information (including, but not limited to, data resulting from activities under a permit) indicate that modification is required to protect the quality of the environment or to promote the safety of life and property at sea;
                  (3) To avoid a conflict with any international obligation of the United States, established by any treaty or convention in force with respect to the United States, as determined in writing by the President; or
                  (4) To avoid any situation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict, as determined in writing by the President.
                  (b) A proposal by the Administrator to modify the TCRs in a permit is significant and must be followed by the full application procedures in this part, including a public hearing, if it would result in either of the changes identified in § 971.412(b).
                  (c) All proposed modifications other than those described in paragraph (b) of this section will be acted on after the Administrator provides:
                  (1) Written notice of the proposal to the permittee; and
                  (2) Publication of this proposal in the Federal Register with a 60-day opportunity for comment.
                  (d)(1) The Administrator will effect a modification of the TCRs if the Administrator finds in writing that the proposed modification will comply with the requirements of the Act and this part.

                  (2) Upon adopting a TCR modification, the Administrator shall issue to the permittee an amended permit including the modified TCRs, and shall publish notice of issuance in the Federal Register.

                  (3) The procedures for objection to modification of the TCRs are the same as those for objection to a TCR under § 971.411 of this part.

                  § 971.415
                  Duration of a permit.
                  (a) Unless suspended or revoked pursuant to §§ 971.406 and 971.417, each commercial recovery permit will be issued for a period of 20 years and for so long thereafter as hard mineral resources are recovered annually in commercial quantities from the area listed in the permit.

                  (b) If the permittee has substantially complied with the permit and its associated recovery plan and requests an extension of the permit, the Administrator will extend the permit with appropriate TCRs, consistent with the Act, for so long thereafter as hard mineral resources are recovered annually in commercial quantities from the area to which the recovery plan associated with the permit applies. The Administrator may make allowance for deviation from the recovery plan for good cause, such as significantly changed market conditions. However, a request for extension must be accompanied by an amended recovery plan to govern the activities by the permittee during the extended period.
                  (c) Successive extensions may be requested, and will be granted by the Administrator, based on the criteria specified in paragraphs (a) and (b).

                  § 971.416
                  Approval of permit transfers.
                  (a) The Administrator may transfer a permit after a written request by the permittee. After a permittee submits a transfer request to the Administrator, the proposed transferee will be deemed an applicant for a commercial recovery permit, and will be subject to the requirements and procedures of this part.
                  (b) The Administrator will transfer a permit if the proposed transferee is a United States citizen and proposed commercial recovery activities meet the requirements of the Act and this part, and if the proposed transfer is in the public interest. The Administrator will presume that the transfer is in the public interest if it meets the requirements of the Act and this part. In case of mere change in the form or ownership of a permittee, the Administrator may waive relevant determinations for requirements for which no changes have occurred since the preceding application.

                  § 971.417
                  Suspension or modification of activities; suspension or revocation of permits.
                  (a) The Administrator may:
                  (1) In addition to, or in lieu of, the imposition of any civil penalty under subpart J of this part, or in addition to the imposition of any fine under subpart J, suspend or revoke any permit issued under this part, or suspend or modify any particular activities under such a permit, if the permittee substantially fails to comply with any provision of the Act, this part, or any term, condition or restriction of the permit; and
                  (2) Suspend or modify particular activities under any permit, if the President determines that such suspension or modification is necessary:
                  (i) To avoid any conflict with any international obligation of the United States established by any treaty or convention in force with respect to the United States; or
                  (ii) To avoid any situtation which may reasonably be expected to lead to a breach of international peace and security involving armed conflict.
                  (b) Any action taken by the Administrator in accordance with paragraph (a)(1) will proceed pursuant to the procedures in § 971.1003. Any action taken in accordance with paragraph (a)(2) will proceed pursuant to paragraphs (c) through (i) of this section, other than paragraph (h)(2).

                  (c) Prior to taking any action specified in paragraph (a)(2) the Administrator will publish in the Federal Register, and send to the permittee, written notice of the proposed action. The notice will include:
                  (1) The basis of the proposed action; and
                  (2) If the basis for the proposed action is a deficiency which the Administrator believes the permittee can correct:
                  (i) The action necessary to correct the deficiency; and
                  (ii) The time within which any correctable deficiency must be corrected (not to exceed 180 days except as specified by the Administrator for good cause).
                  (d) The Administrator will take the proposed action:
                  (1) On the 30th day after the date notice is sent to the permittee, under paragraph (c) of this section, unless before the 30th day the permittee files with the Administrator a written request for an administrative review of the proposed action; or
                  (2) On the last day of the period established under paragraph (c)(2)(ii) in which the permittee must correct the deficiency, if such deficiency has not been corrected before that day and an administrative review requested pursuant to paragraph (d)(1) is not pending or in progress.

                  (e) If a timely request for administrative review of the proposed denial is made by the permittee under paragraph (d)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I of this part. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed concurrently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently.

                  (f) The Administrator will serve on the permittee, and publish in the Federal Register, written notice of the action taken including the reasons therefor.
                  (g) Any final determination by the Administrator to take the proposed action is subject to judicial review as provided in chapter 7 of title 5, United States Code.
                  (h) The issuance of any notice of proposed action under this section will not affect the continuation of commercial recovery activities by a permittee. The provisions of paragraphs (c), (d), (e) and the first sentence of this paragraph (h) of this section will not apply when:
                  (1) The President determines by Executive Order that an immediate suspension or modification of particular activities under that permit, is necessary for the reasons set forth in paragraph (a)(2); or
                  (2) The Administrator determines that immediate suspension of such a permit or immediate suspension or modification of particular activities under a permit, is necessary to prevent a significant adverse environmental effect or to preserve the safety of life or property at sea, and the Administrator issues an emergency order in accordance with § 971.1003(d)(4).
                  (i) The Administrator will immediately rescind the suspension order as soon as he has determined that the cause for suspension has been removed.

                Terms, Conditions and Restrictions

                  § 971.418
                  Diligence requirements.
                  The TCRs in each commercial recovery permit must include provisions to assure diligent development consistent with § 971.503, including a requirement that recovery at commercial scale be underway within ten years from the date of permit issuance unless that deadline is extended by the Administrator for good cause.

                  § 971.419
                  Environmental protection requirements.
                  (a) Each commercial recovery permit must contain TCRs established by the Administrator pursuant to subpart F which prescribe actions the permittee must take in the conduct of commercial recovery activities to assure protection of the environment. Factors to be taken into account regarding the potential for significant adverse environmental effects are discussed in §§ 971.601 and 971.602.
                  (b) Before establishing the TCRs pertaining to environmental protection, the Administrator will consult with the Administrator of the Environmental Protection Agency, the Secretary of State and the Secretary of the department in which the Coast Guard is operating. The Administrator also will take into account and give due consideration to formal comments received from the public, including those from the State agency, and to the information contained in the final site-specific EIS prepared with respect to the proposed permit.

                  § 971.420
                  Resource conservation requirements.
                  For the purpose of conservation of natural resources, each permit issued under this part will contain, as needed, TCRs which have due regard for the prevention of waste and the future opportunity for the commercial recovery of the unrecovered balance of the hard mineral resources in the recovery area. The Administrator will establish these requirements pursuant to § 971.502.

                  § 971.421
                  Freedom of the high seas requirements.
                  Each permit issued under this part must include appropriate restrictions to ensure that commercial recovery activities do not unreasonably interfere with the interests of other nations in their exercise of the freedoms of the high seas, as recognized under general principles of international law. The Administrator will consider the factors in § 971.403 in establishing these restrictions.

                  § 971.422
                  Safety at sea requirements.
                  The Secretary of the department in which the Coast Guard is operating, in consultation with the Administrator, will require in any permit issued under this part, in conformity with principles of international law, that vessels documented under the laws of the United States and used in activities authorized under the permit comply with conditions regarding design, construction, alteration, repair, equipment, operation, manning and maintenance relating to vessel and crew safety and the promotion of safety of life and property at sea. These requirements will be established with reference to subpart G of this part.

                  § 971.423
                  Best available technology.
                  The Administrator will require in all activities under new permits, and wherever practicable in activities under existing permits, the use of the best available technologies for the protection of safety, health, and the environment wherever such activities would have a significant adverse effect on safety, health, or the environment, (see §§ 971.203(b)(3), 971.602(f), and 971.604(a)), except where the Administrator determines that the incremental benefits are clearly insufficient to justify the incremental costs of using such technologies.

                  § 971.424
                  Monitoring requirements.
                  Each commercial recovery permit will require the permittee:
                  (a) To allow the Administrator to place appropriate Federal officers or employees as observers aboard vessels used by the permittee in commercial recovery activities to:
                  (1) Monitor activities at times, and to the extent, the Administrator deems reasonable and necessary to assess the effectiveness of the TCRs of the permit; and
                  (2) Report to the Administrator whenever those officers or employees have reason to believe there is a failure to comply with the TCRs;
                  (b) To cooperate with Federal officers and employees in the performance of monitoring functions; and
                  (c) To monitor the environmental effects of the commercial recovery activities in accordance with a monitoring plan approved and issued by NOAA as permit TCRs and to submit data and other information as necessary to permit evaluation of environmental effects. The environmental monitoring plan and reporting will respond to the concerns and procedures discussed in subpart F.

                  § 971.425
                  Changes of circumstances.
                  Each permit must require the permittee to advise the Administrator of any changes of circumstances which might constitute a revision which would be a major change under § 971.412(c). Changes in ownership, financing, and use conflicts are examples, as are technology or methodology changes including those which might result in significant adverse environmental effects.

                  § 971.426
                  Annual report and records maintenance.
                  Each permit will require the permittee to submit an annual report and maintain information in accordance with § 971.801 including compliance with the commercial recovery plan and the quantities of hard mineral resources recovered and the disposition of such resources.

                  § 971.427
                  Processing outside the United States.
                  If appropriate TCRs will incorporate provisions to implement the decision of the Administrator regarding the return of resources processed outside the United States, in accordance with § 971.408.

                  § 971.428
                  Other necessary permits.
                  Each permit will provide that securing the deep seabed mining permit for activities described in the recovery plan and accompanying application does not eliminate the need to secure all other necessary Federal, State, and local permits.

                  § 971.429
                  Special terms, conditions and restrictions.

                  Although the general criteria and standards to be used in establishing TCRs for a permit are set forth in this part, as referenced in §§ 971.418 through 971.428, the Administrator may impose special TCRs for the conservation of natural resources, protection of the environment, or the safety of life and property at sea when required by differing physical and environmental conditions.

                  § 971.430
                  Other Federal requirements.
                  Pursuant to § 971.211, another Federal agency, or a State acting under Federal authority, upon review of a commercial recovery permit application submitted under this part, may propose that certain TCRs be added to the permit, to assure compliance with any law or regulation within that agency's area of responsibility. The Administrator will include appropriate TCRs in a permit.

              Subpart E—Resource Development

                § 971.500
                General.
                Several provisions in the Act relate to appropriate mining techniques or mining efficiency. These raise what could be characterized as resource development issues. In particular, section 103(a)(2)(C) requires a resource assessment to be provided with the recovery plan. Section 103(a)(2)(D) of the Act provides that the applicant will select the size and location of the area of a recovery plan, which will be approved unless the Administrator finds that the area is not a “logical mining unit” or the commercial recovery activities in the proposed site would result in a significant adverse environmental effect which cannot be avoided by the imposition of reasonable restrictions. Also, pursuant to section 108 of the Act, the applicant's recovery plan and the TCRs of each permit must be designed to ensure diligent development. In addition, for the purpose of conservation of natural resources, section 110 of the Act provides that each permit is to contain, as needed, terms, conditions, and restrictions which have due regard for the prevention of waste and the future opportunity for the commercial recovery of the unrecovered balance of the resources.

                § 971.501
                Resource assessment, recovery plan, and logical mining unit.
                (a) The applicant must submit with the application a resource assessment to provide a basis for assessing the area applied for. This assessment must include a discussion of mineable and unmineable areas, taking into account nodule grade, nodule concentration, and other factors such as seafloor topography. These areas may be delineated graphically. The resources in the area must be described in relation to the applicant's production requirements, operating period, and recovery efficiency in order to justify the area applied for.
                (b) The applicant shall select the size and location of the area of the recovery plan, which area shall be approved unless the Administrator finds that, among other considerations (see § 971.301(a)), the area is not a logical mining unit. In the case of a commercial recovery permit, a logical mining unit is an area of the deep seabed:
                (1) In which hard mineral resources can be recovered in sufficient quantities to satisfy the permittee's estimated production requirements over the initial 20-year term of the permit in an efficient, economical, and orderly manner with due regard for conservation and protection of the environment, taking into consideration the resource data, other relevant physical and environmental characteristics, and the state of the technology of the applicant set out in the recovery plan;
                (2) Which is not larger than necessary to satisfy the permittee's estimated production requirements over the initial 20-year term of the permit; and
                (3) In relation to which the permittee's estimated production requirements are not found by the Administrator to be unreasonable.
                (c) Approval by the Administrator of a proposed logical mining unit will be based on a case-by-case review of each application. The area need not consist of contiguous segments, as long as each segment would be efficiently mineable and the total proposed area constitutes a logical mining unit.

                (d) In describing the area, the applicant must present the geodetic coordinates of the points defining the boundaries referred to the World Geodetic System (WGS) Datum. A boundary between points must be a geodesic. If grid coordinates are desired, the Universal Transverse Mercator Grid System must be used.

                § 971.502
                Conservation of resources.
                (a) If the Administrator establishes terms, conditions and restrictions relating to conservation of resources, he will employ a balancing process in the consideration of the state of the technology being developed, the processing system utilized and the value and potential use of any waste, the environmental effects of the recovery activities, economic and resource data, and the national need for hard mineral resources.
                (b) The application must set forth how the applicant's proposed method of collecting nodules will conserve resources by providing for the future opportunity for commercial recovery of the unrecovered balance of the resources in the proposed permit area. Although preliminary and subject to change, the discussion must include a plan for the chronology of areas to be mined. This is needed in order for the Administrator to determine if selective mining, expected to be carried out in the early years to improve cash flow, is part of a long range recovery plan.
                (c) If the applicant proposes a refining process that does not include the use of manganese in a productive manner, it may not render the manganese unavailable to future users by dispersing the tailings over a vast area unless such a scheme is necessary for the financial practicability of the commercial recovery activities of the applicant. A permittee must advise the Administrator in the annual report of the location, composition and quantity of manganese in tailings which remain after processing. Should national needs for manganese develop during the duration of a permit, e.g., in case of national emergency, the Administrator may cancel the exception granted involving dispersion of tailings. Applicants seeking an exception would be required to demonstrate how and in what time frame their commercial recovery processing activities could be modified to respond to new national needs.

                § 971.503
                Diligent commercial recovery.
                (a) Each permittee must pursue diligently the activities described in its approved commercial recovery plan. This requirement applies to the full scope of the plan, including environmental safeguards and monitoring systems. Permit TCRs will require periodic reasonable expenditures for commercial recovery by the permittee, taking into account the size of the area of the deep seabed to which the recovery plan applies and the amount of funds estimated by the Administrator to be required to initiate commercial recovery of hard mineral resources within the time limit established by the Administrator. However, required expenditures will not be established at a level which would discourage commercial recovery or operational efficiency.
                (b) To meet the diligence requirement, the applicant must propose to the Administrator an estimated schedule of activities and expenditures pursuant to § 971.203(b)(2). The schedule must show, and the Administrator must be able to make a reasonable determination, that the applicant can reasonably develop the resources in the permit area within the term of the permit. There must be a reasonable relationship between the size of the recovery area and the financial and technological resources reflected in the application. The permittee must initiate the recovery of nodules in commerical quantities within ten years of the issuance of the permit unless this deadline is extended by the Administrator for good cause.
                (c) Once commercial recovery is achieved, the permittee must, within reasonable limits and taking into consideration all relevant factors, maintain commercial recovery throughout the period of the permit. However, the Administrator will, for good cause shown, authorize temporary suspension of commercial recovery activities. The duration of any suspension will not exceed one year, unless the Administrator determines that conditions justify an extension of the suspension.

                (d) Ultimately, the diligence requirement will involve a retrospective determination by the Administrator, based on the permittee's reasonable conformance to the approved recovery plan. This determination, however, will take into account the need for some degree of flexibility in a recovery plan. It also will include consideration of the needs and stage of development of the permittee based on the approved recovery plan; legitimate periods of time when there is no or very low expenditure; and allowance for a certain degree of flexibility for changes encountered by the permittee in market conditions or other factors.
                (e) The permittee must submit a report annually reflecting its conformance to the schedule of activities and expenditures contained in the permit and its associated recovery plan. In case of any changes requiring a revision to an approved permit and recovery plan, the permittee must advise the Administrator in accordance with § 971.413.

              Subpart F—Environmental Effects

                § 971.600
                General.
                The Act contains several provisions which relate to environmental protection. For example, section 105(a)(4) requires that, before the Administrator may issue a commercial recovery permit, he must find that the commercial recovery proposed in the application cannot reasonably be expected to result in a significant adverse environmental effect. In addition, each permit issued must contain TCRs which prescribe actions the permittee must take in the conduct of commercial recovery activities to assure protection of the environment (section 109(b)). The Act also provides for modification by the Administrator of any TCR if relevant data and information indicate that modification is required to protect the quality of the environment (section 105(c)(1)(B)). The Administrator also may order an immediate suspension or modification of activities (section 106(c)), or require use of best available technologies (section 109(b)), to prevent a significant adverse environmental effect. Furthermore, each permit issued under the Act must require the permittee to monitor the environmental effects of commercial recovery activities in accordance with guidelines issued by the Administrator, and to submit information the Administrator finds necessary and appropriate to assess environmental effects and to develop and evaluate possible methods of mitigating adverse effects (section 114).

                § 971.601
                Environmental requirements.
                Before issuing a permit for the commercial recovery of deep seabed hard mineral resources, the Administrator must find that:
                (a) The issuance of a permit cannot reasonably be expected to result in a significant adverse environmental effect, or, if there is insufficient information to make that determination, that no irreparable harm will result during a period when monitoring of commerical recovery is undertaken to gather sufficient information in order to determine the potential for or occurrence of any significant adverse environmental effect. In examining this issue, NOAA will give consideration to the following Ocean Discharge Criteria of the Clean Water Act (40 CFR part 125, subpart M), as they may pertain to discharges and other environmental perturbations related to the commercial recovery operations:
                (1) The quantities, composition and potential for bioaccumulation or persistence of the pollutants to be discharged;
                (2) The potential transport of such pollutants by biological, physical or chemical processes;
                (3) The composition and vulnerability of the biological communities which may be exposed to such pollutants including the presence of unique species or communities of species, the presence of species identified as endangered or threatened pursuant to the Endangered Species Act, or the presence of those species critical to the structure or function of the ecosystem such as those important for the food chain;

                (4) The importance of the receiving water area to the surrounding biological community, including the presence of spawning sites, nursery/forage areas, migratory pathways, or areas necessary for other functions or critical stages in the life cycle of an organism;

                (5) The existence of special aquatic sites including but not limited to marine sanctuaries and refuges, parks, national and historic monuments, national seashores, wilderness areas and coral reefs;
                (6) The potential impacts on human health through direct and indirect pathways;
                (7) Existing or potential recreational and commercial fishing, including finfishing and shellfishing;
                (8) Any applicable requirements of an approved Coastal Zone Management plan;
                (9) Such other factors relating to the effects of the discharge as may be appropriate;
                (10) Marine water quality criteria developed pursuant to section 304(a)(1) of the Clean Water Act; and
                (b) The applicant has an approved monitoring plan (§ 971.603) and the resources and other capabilities to implement it.

                § 971.602
                Significant adverse environmental effects.
                (a) Determination of significant adverse environmental effects. The Administrator will determine the potential for or the occurrence of any significant adverse environmental effect or impact (for the purposes of sections 103(a)(2)(D), 105(a)(4), 106(c) and 109(b) (second sentence) of the Act), on a case-by-case basis.
                (b) Basis for determination. Determinations will be based upon the best information available, including relevant environmental impact statements, NOAA-collected data, monitoring results, and other data provided by the applicant or permittee, as well as consideration of the criteria in § 971.601(a).
                (c) Related considerations. In making a determination the Administrator may take into account any TCRs or other mitigation measures.
                (d) Activities with no significant adverse environmental effect. NOAA believes that exploration-type activities, as listed in the license regulations (15 CFR 970.701), require no further environmental assessment.
                (e) Activities with potential for significant adverse environmental effects. NOAA research has identified at-sea testing of recovery equipment, the recovery of manganese nodules in commercial quantities from the deep seabed, and the construction and operation of commercial-scale processing facilities as activities which may have some potential for significant adverse envirnomental effects.
                (f) Related terms, conditions and restrictions. Permits will be issued with TCRs containing environmental requirements with respect to protection (pursuant to § 971.419), mitigation (pursuant to § 971.419), or best available technology requirements (pursuant to § 971.423), as appropriate, and monitoring requirements (pursuant to § 971.424) to acquire more information on the environmental effects of deep seabed mining.

                § 971.603
                At-sea monitoring.
                (a) An applicant must submit with its application a monitoring plan designed to enable the Administrator to assess environmental impacts and to develop and evaluate possible methods of mitigating adverse environmental effects, to validate assessments made in the EIS, and to assure compliance with the environmental protection requirements of this part.
                (b) The monitoring plan shall include a characterization of the proposed mining system in terms of collector contact, benthic discharge and surface discharge.
                (c) The monitoring plan shall include determination of (1) the spatial and temporal characteristics of the mining ship discharges; (2) the spatial extent and severity of the benthic impact, including recovery rate and pattern of benthic recolonization; and (3) any secondary effects that result from the impact of the mining collector and benthic plume.
                (d) The monitoring of benthic impact shall involve the study of two types of areas, each selected by the permittee in consultation with NOAA, which areas shall be representative of the environmental characteristics of the permittee's site:
                (1) An impact reference area, located in a portion of a permit area tentatively scheduled to be mined early in a commercial recovery plan; and

                (2) An interim preservational reference area, located in a portion of a permit area tentatively determined: to be non-mineable, not to be scheduled for mining during the commercial recovery plan, or to be scheduled for mining late in the plan.
                Reference areas may be selected provisionally prior to application for a commercial recovery permit.
                (e) The following specific environmental parameters must be proposed for examination in the applicant's monitoring plan:
                (1) Discharges—
                (i) Salinity, temperature, density.
                (ii) Suspended particulates concentration and density.
                (iii) Particulate and dissolved nutrients and metals.
                (iv) Size, configuration, and velocities of discharge.
                (2) Upper water column—
                (i) Nutrients.
                (ii) Endangered species (observations).
                (iii) Salinity, temperature, density.
                (iv) Currents and direct current shear.
                (v) Vertical distribution of light.
                (vi) Suspended particulate material advection and diffusion.
                (vii) In-situ settling velocities of suspended particulates.
                (viii) Zooplankton and trace metals uptake.
                (ix) Fish larvae.
                (x) Behavior of biota, including commercially and recreationally valuable fish.
                (3) Lower water column and seafloor—
                (i) Currents.
                (ii) Suspended particulate material advection and diffusion.
                (iii) In-situ settling velocities of suspended particulates.
                (iv) Benthic scraping and blanketing, and their impacts and recovery.
                (f) The monitoring plan shall include provision for monitoring those areas impacted by the permittee's mining activities, even if such areas fall outside its minesite, where the proposed activities have the potential to cause significant adverse environmental effect or irreparable harm in the outside area.
                (g) After the Administrator's approval of the monitoring plan, this plan will become a permit TCR. The monitoring plan TCR will include, to the maximum extent practicable, identification of those activities or events that could cause suspension or modification due to environmental effects under § 971.417, or permit revocation in the event that these effects cannot be adequately mitigated. The TCR also will authorize refinement of the monitoring plan prior to testing and commercial-scale recovery, and at other appropriate times, if refinement is necessary to reflect accurately proposed operations or to incorporate recent research or monitoring results.
                (h) If test mining is proposed, the applicant shall include in the monitoring plan a monitoring plan for the test(s) as well as a strategy for using the result to monitor more effectively commercial-scale recovery. This monitoring shall address concerns expressed in the PEIS and in the permit EIS.
                (i) The monitoring plan shall include a sampling strategy that assures: that it is based on sound statistical methods, that equipment and methods be scientifically accepted, that the personnel who are planning, collecting and analyzing data be scientifically well qualified, and that the resultant data be submitted to the Administrator in accordance with formats of the National Oceanographic Data Center and other formats as may be specified by the Administrator.
                (j) Pursuant to section 114(1) of the Act, the Administrator intends to place observers onboard mining vessels, not only to ensure that permit TCRs are followed, but also to evaluate the effectiveness of monitoring strategies, both in terms of protecting the environment and in being cost-effective (See § 971.1005), and if necessary, to develop potential mitigation measures. If modification of permit TCRs or regulations is required to protect the quality of the environment, the Administrator may modify TCRs pursuant to § 971.414, or the regulations pursuant to § 971.804.

                § 971.604
                Best available technologies (BAT) and mitigation.

                (a) The Administrator shall require in all activities under new permits, and wherever practicable in activities under existing permits, the use of the best available technologies for the protection of safety, health, and the environment wherever such activities would have a significant adverse effect on safety, health, or the environment, except where the Administrator determines that the incremental benefits are clearly insufficient to justify the incremental costs of using such technologies. Because of the embryonic nature of the industry, NOAA is unable either to specify particular equipment or procedures comprising BAT or to define performance standards. Until such experience exists, the applicant shall submit such information as is necessary to indicate, as required above, the use of BAT, the alternatives considered to the specific equipment or procedures proposed, and the rationale as to why one alternative technology was selected in place of another. This analysis shall include a discussion of the relative costs and benefits of the technologies considered.
                (b) NOAA is not specifying particular mitigation methodologies or techniques at this time (such as requiring the sub-surface release of mining vessel discharges), but expects applicants and permittees to develop and carry out their operations, to the extent possible, to minimize adverse environmental effects and to be able to demonstrate efforts to that end. The applicant must submit a plan describing how he would mitigate a problem, if it were caused by the surface release of mining vessel discharges, including a plan for the monitoring of any discharges. Based upon monitoring results, NOAA may find it necessary in the future to specify particular procedures for minimizing adverse environmental effects. These procedures would be incorporated into permit TCRs.
                (c) NOAA will require the permittee to report, prior to implementation, any proposed technological or operational changes that will increase or have unknown environmental effects. Changes in composition, concentration or size distribution of suspended particulates discharged from the mining vessel, water depth of vessel discharges, depth of cut in the seafloor of the mining collector, and direction or amount of sediment discharged at the seafloor are factors of concern to NOAA. In reporting any such change, the permittee shall submit information to indicate the use of BAT, alternatives considered, and rationale for selecting one technology in place of another, in a manner comparable to and to the extent required in paragraph (a) of this section. If proposed changes have a high potential for increasing adverse environmental effects, the Administrator may disapprove or require modification of the changes.

                § 971.605
                Stable Reference Areas. [Reserved]

                § 971.606
                Onshore information.
                (a) To assist the Administrator in complying with NEPA requirements and to enable NOAA to function as lead agency in preparing permit site-specific environmental impact statements (EISs) and facilitating the preparation and processing of other environmental documents and permits, the applications must include the following information:
                (1) The location and affected environment of port, transport, processing and waste disposal facilities and associated facilities (e.g., maps, land use and layout);
                (2) A description of the environmental consequences and socio-economic effects of construction and operation of the facilities, including waste characteristics and toxicity;
                (3) Any mitigating measures that may be proposed;
                (4) Certification of consistency with the federally approved State coastal management program, where applicable, and evidence of the status of compliance with other State or local requirements relating to protection of the environment; and
                (5) Alternative sites and technologies considered by the applicant and the considerations which eliminate their selection.

                (b) The applicant must consult with NOAA as early as possible concerning the information to be submitted to NOAA to prepare an adequate environmental impact statement. The applicant is encouraged to consult with potentially affected States as early as is practicable [see also §§ 971.200(g) and 971.213].

                (c) The requirements of paragraphs (a)(1)-(3) and (5) of this section also apply if approval of processing outside the United States is requested by the applicant, in accordance with Executive Order 12114 which requires the environmental review of major Federal actions abroad. Information detailing the socio-economic impacts of foreign processing activities is not required.

              Subpart G—Safety of Life and Property at Sea

                § 971.700
                General.
                The Act contains several requirements that relate to assuring the safety of life and property at sea. For example, before the Administrator may issue a permit, he must find that the proposed recovery will not pose an inordinate threat to the safety of life and property at sea (section 105(a)(5)). The Coast Guard, in consultation with NOAA, must require in any permit issued under the Act, in conformity with principles of international law, that vessels documented in the United States and used in activities authorized under the permit comply with conditions regarding the design, construction, alteration, repair, equipment, operation, manning and maintenance relating to vessel and crew safety and the safety of life and property at sea (section 112(a)). The Administrator may impose or modify TCRs for a permit if required to promote the safety of life and property at sea (section 105(c)(1)(B)).

                § 971.701
                Criteria for safety of life and property at sea.
                Response to the safety at sea requirements in essence will involve vessel inspection requirements, as identified by present laws and regulations. The primary inspection statutes pertaining to United States flag vessels are: 46 App. U.S.C. 86 (Loadlines) and 46 U.S.C. 3301 (Inspection of Seagoing Barges, Seagoing Motor Vessels, and Freight Vessels). United States flag vessels will be required to meet all applicable regulatory requirements, including the requirement for a current valid Coast Guard Certificate of Inspection (pursuant to § 971.205(a)). United States flag vessels are under United States jurisdiction on the high seas and subject to domestic enforcement procedures. With respect to foreign flag vessels, the SOLAS 74 or SOLAS 60 certificate requirements specified in § 971.205(b) apply.

              Subpart H—Miscellaneous

                § 971.800
                General.
                The subpart contains miscellaneous provisions pursuant to the Act which are applicable to exploration licenses and commercial recovery permits.

                § 971.801
                Records to be maintained and information to be submitted by licensees and permittees.
                (a)(1) In addition to the information specified elsewhere in the part and in 15 CFR part 970, each licensee and permittee must keep such records, consistent with standard accounting principles, as specified by the Administrator in the license or permit. Such records shall include information which will fully disclose expenditures for exploration for, or commercial recovery of hard mineral resources in the area under license or permit, and any other information which will facilitate an effective audit of these expenditures.
                (2) The Administrator and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access, for purposes of audit and examination to any books, documents, papers, and records of licensees and permittees which are necessary and directly pertinent to verification of the expenditures referred to in paragraph (a)(1) of this section.
                (b) In addition to the information specified elsewhere in this part and in 15 CFR part 970, each applicant, licensee or permittee will be required to submit to the Administrator, upon request, data or other information the Administrator may reasonably need for purposes of:
                (1) Making determinations with respect to the issuance, revocation, modification, or suspension of the license or permit in question;

                (2) Evaluating the effectiveness of license or permit TCRs;

                (3) Compliance with the biennial Congressional report requirement contained in section 309 of the Act; and
                (4) Evaluation of the exploration or commercial recovery activities conducted by the licensee or permittee.
                At a minimum, licensees and permittees shall submit an annual written report within 90 days after each anniversary of the license or permit issuance or transfer, discussing exploration or commercial recovery activities and expenditures. The report shall address diligence requirements (see § 971.503 and 15 CFR 970.602), implementation of any approved monitoring plan (see § 971.602 and 15 CFR 970.522(c) and 970.702(a)), and applicable changes which do not constitute revisions (see § 971.413(e) and 15 CFR 970.513(c)). Permittees must also report the tonnage of nodules recovered (§ 971.426) and discuss manganese conservation measures (see § 971.502).

                § 971.802
                Public disclosure of documents received by NOAA.
                (a) Purpose. This section provides a procedure by which persons submitting information pursuant to this part and 15 CFR part 970 may request that certain information not be subject to public disclosure. The substantiation requested is intended to assure that NOAA has a complete and proper basis for determining the legality and appropriateness of withholding or releasing the identified information if a public request for disclosure is received.
                (b) Written requests for confidential treatment. (1) Any person who submits any information pursuant to this part or 15 CFR part 970, which information is considered by that person to be protected by the Trade Secrets Act (18 U.S.C. 1905) or otherwise to be a trade secret or commercial or financial information which is privileged or confidential, may request that the Administrator give the information confidential treatment.
                (2)(i) Any request for confidential treatment of information:
                (A) Should be submitted at the time of submission of information;
                (B) Should state the period of time for which confidential treatment is desired (e.g., until a certain date, or until the occurrence of a certain event, or permanently);
                (C) Must be submitted in writing; and
                (D) Must include the name, mailing address, and telephone number of an agent of the submitter who is authorized to receive notice of requests for disclosure of the information pursuant to paragraph (d) of this section.
                (ii) If information is submitted to the Administrator without an accompanying request for confidential treatment, the notice referred to in paragraph (d)(2) of this section need not be given. If a request for confidential treatment is received after the information itself is received, the Administrator will make efforts to the extent administratively practicable to associate the request with copies of the previously submitted information in the files of NOAA and the Federal agencies to which the Administrator distributed the information.
                (3)(i) Information subject to a request for confidential treatment must be segregated from information for which confidential treatment is not being requested, and each page (or segregable portion of each page) subject to the request must be clearly marked with the name of the person requesting confidential treatment, the name of the applicant, licensee or permittee, and an identifying legend such as “Proprietary Information” or “Confidential Treatment Requested.” Where this marking proves impracticable, a cover sheet containing the identifying names and legend must be securely attached to the compilation of information for which confidential treatment is requested. Each copy of the information for which confidential treatment has been requested must be cross-referenced to the appropriate section of the application or other document. All information for which confidential treatment is requested pertaining to the same application or other document must be submitted to the Administrator in a package separate from that information for which confidential treatment is not being requested.

                (ii) Each copy of any application or other document with respect to which confidential treatment of information has been requested must indicate, at each place in the application or document where confidential information has been deleted, that confidential treatment of information has been requested.
                (4) Normally, the Administrator will not make a determination as to whether confidential treatment is warranted until a request for disclosure of the information is received. However, on a case-by-case basis, the Administrator may make a determination in advance of a request, where it would facilitate obtaining voluntarily submitted information (rather than information required to be submitted under this part).
                (c) Substantiation of request for confidential treatment. (1) Any request for confidential treatment may include a statement of the basis for believing that the information is deserving of confidential treatment, which addresses the issues relevant to a determination of whether the information is a trade secret, or commercial or financial information which is privileged or confidential. To the extent permitted by applicable law, part or all of any substantiation statement submitted will be treated as confidential if so requested, and must be segregated, marked, and submitted in accordance with the procedure described in paragraph (b)(3) of this section.
                (2) Issues addressed in the statement should include:
                (i) The commercial or financial nature of the information;
                (ii) The nature and extent of the competitive advantage enjoyed as a result of possession of the information;
                (iii) The nature and extent of the competitive harm which would result from public disclosure of the information;
                (iv) The extent to which the information has been disseminated to employees and contractors of the person submitting the information;
                (v) The extent to which persons other than the person submitting the information possesses, or have access to, the same information; and
                (vi) The nature of the measures which have been and are being taken to protect the information from disclosure.
                (d) Requests for disclosure of trade secrets, privileged, or confidential information. (1) Any request for disclosure of information submitted, reported or collected pursuant to this part must be made in accordance with 15 CFR 903.7.
                (2) Upon receipt of a request for disclosure of information for which confidential treatment has been requested, the Administrator immediately will issue notice by an expeditious means (such as by telephone, confirmed by certified or registered mail, return receipt requested) of the request for disclosure to the person who requested confidential treatment of the information or to the designated agent. The notice also will:
                (i) Inquire whether that person continues to maintain the request for confidential treatment;
                (ii) Notify that person of the date (generally, not later than the close of business on the seventh working day after issuance of the notice) by which the person is strongly encouraged to deliver to the Administrator a written statement that the person either:
                (A) Waives or withdraws the request for confidential treatment in full or in part; or
                (B) Confirms that the request for confidential treatment is maintained;
                (iii) Inform that person that by a date the Administrator specifies (generally, not later than the close of business on the seventh working day after issuance of the notice), the person:
                (A) Is strongly encouraged to deliver to the Administrator a written statement addressing the issues listed in paragraph (c)(2) of this section, describing the basis for believing that the information is deserving of confidential treatment, if this statement was not previously submitted;
                (B) Is strongly encouraged to deliver to the Administrator an update of or supplement to any statement previously submitted under paragraph (c) of this section; and

                (C) May present to the Administrator in a form the Administrator deems appropriate (such as by telephone or in an informal conference) agruments against disclosure of the information; and

                (iv) Inform that person that the burden is on him to assure that any response to the notice is delivered to the Administrator within the time specified in the notice.
                (3) To the extent permitted by applicable law, part or all or of any statement submitted in response to any notice issued under paragraph (d)(2) will be treated as confidential if so requested by the person submitting the response. Any response for which confidential treatment is requested must be segregated, marked and submitted in accordance with the procedures described in paragraph (b)(3) of this section.
                (4) Upon the expiration of the time allowed for response under paragraph (d)(2) of this section, the Administrator will determine, in consultation with the General Counsel for the Department of Commerce, whether confidential treatment is warranted based on the information then available to NOAA.
                (5) If the person who requested confidential treatment waives or withdraws that request, the Administrator will proceed with appropriate disclosure of the information.
                (6) If the Administrator determines that confidential treatment is warranted, he will so notify the person requesting confidential treatment, and will issue an initial denial of the request for disclosure of records in accordance with 15 CFR 903.8.
                (7) If the Administrator determines that confidential treatment is not warranted for part or all of the information, the Administrator immediately will issue notice by an expeditious means (such as by telephone, confirmed by certified or registered mail, return receipt requested) to the person who requested confidential treatment. The notice will state:
                (i) The basis for the Administrator's determination;
                (ii) That the Administrator's determination constitutes final agency action on the request for confidential treatment;
                (iii) That the final agency action is subject to judicial review under chapter 7 of title 5, United States Code; and
                (iv) That on the seventh working day after issuance of the notice described in this paragraph (d)(7), the Administrator will make the information available to the person who requested disclosure unless the Administrator has first been notified of the filing of an action in a Federal court to obtain judicial review of the determination, and the court has issued an appropriate order preventing or limiting disclosure.
                (8) The Administrator will keep a record of the date any notice is issued and the date any response is received, by the Administrator, under this paragraph (d).
                (9) In all other respects, procedures for handling requests for records containing information submitted to, reported to, or collected by the Administrator pursuant to this part will be in accordance with 15 CFR Part 903. For example, if ten working days have passed after the receipt of a request for disclosure and, despite the exercise of due diligence by the agency, the Administrator cannot make a determination as to whether confidential treatment is warranted, the Administrator will issue appropriate notice in accordance with 15 CFR 903.8(b)(5).
                (e) Direct submission of confidential information. If any person has reason to believe that it would be prejudiced by furnishing information required from it to the applicant, licensee or permittee, that person may file the required information directly with the Administrator. Information for which the person requests confidential treatment must be segregated, marked, and submitted in accordance with the procedures described in paragraph (b)(3) of this section.
                (f) Protection of confidential information transmitted by the Administrator to other agencies. Each copy of information for which confidential treatment has been requested which is transmitted by the Administrator to other Federal agencies will be accompanied by a cover letter containing:

                (1) A request that the other Federal agency maintain the information in confidence in accordance with applicable law (including the Trade Secret Act, 18 U.S.C. 1905) and any applicable protective agreement entered into by the Administrator and the Federal agency receiving the information;

                (2) A request that the other Federal agency notify the Administrator immediately upon receipt of any request for disclosure of the information; and
                (3) A request that all copies of the information be returned to the Administrator for secure storage or disposal promptly after the Federal agency determines that it no longer needs the information for its official use.
                (g) When satisfied that adequate protection against public disclosure exists, applicants should provide the State agency with confidential and proprietary information which the State agency maintains is necessary to make a reasoned decision on the consistency of the proposal. State agency requests for such information must be related to the necessity of having such information to assess adequately the coastal zone effects of the proposal.

                § 971.803
                Relinquishment and surrender of licenses and permits.
                (a) Any licensee or permittee may at any time, without penalty:
                (1) Surrender to the Administrator a license or permit issued to the licensee or permittee; or
                (2) Relinquish to the Administrator, in whole or in part, any right to conduct any exploration or commercial recovery activities authorized by the license or permit.
                (b) Any licensee or permittee who surrenders, or relinquishes any right under, a license or permit will remain liable with respect to all violations and penalties incurred, and damage to persons or property caused, by the licensee or permittee as a result of activities engaged in by the licensee or permittee under the license or permit.

                § 971.804
                Amendment to regulations for conservation, protection of the environment, and safety of life and property at sea.
                The Administrator may amend the regulations in this part and 15 CFR part 970 at any time as the Administrator determines to be necessary and appropriate in order to provide for the conservation of natural resources, protection of the environment, or the safety of life and property at sea. The amended regulations will apply to all exploration or commercial recovery activities conducted under any license or permit issued or maintained pursuant to this part or 15 CFR part 970, except that amended regulations which provide for conservation of natural resources will apply to activities conducted under an existing license or permit during the present term of that license or permit only if the Administrator determines that the amended regulations providing for conservation of natural resources will not impose serious or irreparable economic hardship on the licensee or permittee. Any amendment to regulations under this section will be made pursuant to the procedures in subpart I of this part.

                § 971.805
                Computation of time.
                Except where otherwise specified, Saturdays, Sundays and Federal Government holidays will be included in computing the time period allowed for filing any document or paper under this part or 15 CFR part 970, but when a time period expires on any of these days, that time period will be extended to include the next following Federal Government work day. Filing periods expire at the close of business on the day specified, for the office specified.

              Subpart I—Uniform Procedures

                § 971.900
                Applicability.
                The regulations of this subpart govern the following hearings conducted by NOAA under this part and under 15 CFR part 970:
                (a) All adjudicatory hearings required by section 116(b) of the Act to be held on the following actions upon a finding by the Administrator that one or more specific and material issues of fact exist which require resolution by formal process, including but not limited to:
                (1) All applications for issuance or transfer of licenses or permits;
                (2) All proposed TCRs on a license or permit; and
                (3) All proposals to modify significantly a license or permit;

                (b) Hearings conducted under section 105(b)(3) of the Act on objection by a licensee or permittee to any term, condition or restriction in a license or permit, or to modification thereto, where the licensee or permittee demonstrates, after final action by the Administrator on the objection, that a dispute remains as to a material issue of fact;
                (c) Hearings conducted in accordance with section 106(b) of the Act pursuant to a timely request by an applicant or a licensee or permittee for review of:
                (1) A proposed denial of issuance or transfer of a license or permit; or
                (2) A proposed suspension or modification of particular activities under a license or permit after a Presidential determination pursuant to section 106(a)(2)(B) of the Act;
                (d) Hearings conducted in accordance with section 308(c) of the Act to amend regulations for the purpose of conservation of natural resources, protection of the environment, and safety of life and property at sea;
                (e) Hearings conducted in accordance with § 971.302 or 15 CFR 970.407 on a proposal to deny certification of an application; and
                (f) Hearings conducted in accordance with 15 CFR part 970, subpart C to determine priority of right among preenactment explorers.

                § 971.901
                Formal hearing procedures.
                (a) General. (1) All hearings described in § 971.900 are governed by subpart C of 15 CFR part 904, as modified by this section. The rules in this subpart take precedence over 15 CFR part 904, subpart C, to the extent there is a conflict.
                (2) Hearings held under this section will be consolidated insofar as practicable with hearings held by other agencies.
                (3) For the purposes of this subpart, involved applicant, licensee or permittee means an applicant, licensee or permittee the status of whose application, license, permit or activities conducted under the license or permit may be altered by the Administrator as a result of proceedings under this subpart.
                (b) Decision to hold a hearing. Whenever the Administrator finds that a formal hearing is required by the provisions of this part or 15 CFR part 970, he will provide for a formal hearing. Upon deciding to hold a formal hearing, the Administrator will refer the proceeding to the Department of Commerce Office of Administrative Law Judges for assignment to an Administrative Law Judge to serve as presiding officer for the hearing.
                (c) Notice of formal hearing. (1) The Administrator will publish notice of the formal hearing in the Federal Register at least 15 days before the beginning of the hearing, and will send written notice by registered or certified mail to any involved applicant, licensee or permittee and to all persons who submitted written comments upon the action in question, or who testified at any prior informal hearing on the action or who filed a request for the formal hearing under this part or 15 CFR part 970.
                (2) Notice of a formal hearing will include, among other things:
                (i) Time and place of the hearing and the name of the presiding judge, as determined under paragraph (b) of this section;
                (ii) The name and address of the person(s) requesting the formal hearing or a statement that the formal hearing is being held by order of the Administrator;
                (iii) The issues in dispute which are to be resolved in the formal hearing;
                (iv) The due date for filing a written request to participate in the hearing in accordance with paragraphs (f)(2) and (f)(3) of this section; and
                (v) Reference to any prior informal hearing from which the issues to be determined arose.
                (d) Powers and duties of the administrative law judge. In addition to the powers enumerated in 15 CFR part 904. Subpart C, judges will have the power to:
                (1) Regulate the course of the hearing and the conduct of the parties, interested persons and others submitting evidence, including but not limited to the power to require the submission of part or all of the evidence in written form if the judge determines a party will not be prejudiced thereby, and if otherwise in accordance with law;

                (2) Rule upon requests submitted in accordance with paragraph (f)(2) of this section to participate as a party, or requests submitted in accordance with paragraph (f)(3) of this section to participate as an interested person in a proceeding, by allowing, denying, or limiting such participation; and

                (3) Require at or prior to any hearing, the submission and exchange of evidence.
                (e) Argument. At the close of the formal hearing, each party will be given the opportunity to submit written arguments on the issues before the judge.
                (f) Hearing participation. (1) Parties to the formal hearing will include:
                (i) The NOAA General Counsel;
                (ii) Any involved applicant, licensee or permittee; and
                (iii) Any other person determined by the judge, in accordance with paragraph (f)(2) below, to be eligible to participate as a full party.
                (2) Any person desiring to participate as a party in a formal hearing must submit a request to the judge to be admitted as a party. The request must be submitted within ten days after the date of mailing or publication of notice of a decision to hold a formal hearing, whichever occurs later. Such person will be allowed to participate if the judge finds that the interests of justice and a fair determination of the issues would be served by granting the request. The judge may entertain a request submitted after the expiration of the ten days, but such a request may only be granted upon an express finding on the record that:
                (i) Special circumstances justify granting the request;
                (ii) The interests of justice and a fair determination of the issues would be served by granting the request;
                (iii) The requestor has consented to be bound by all prior written agreements and stipulations agreed to by the existing parties, and all prior orders entered in the proceedings; and
                (iv) Granting the request will not cause undue delay or prejudice the rights of the existing parties.
                (3)(i) Any interested person who desires to submit evidence in a formal hearing must submit a request within ten days after the dates of mailing or publication of notice of a decision to hold a formal hearing, whichever occurs later. The judge may waive the ten day rule for good cause, such as if the interested person, making this request after the expiration of the ten days, the formal hearing, and the evidence he proposes to submit may significantly affect the outcome of the proceedings.
                (ii) The judge may permit an interested person to submit evidence at any formal hearing if the judge determines that such evidence is relevant to facts in dispute concerning the issue(s) being adjudicated. The fact that an interested person may submit evidence under this paragraph at a hearing does not entitle the interested person to participate in other ways in the hearing unless allowed by the judge under paragraph (f)(3)(iii) below.
                (iii) The judge may allow an interested person to submit oral testimony, oral arguments or briefs, or to cross-examine witnesses or participate in other ways, if the judge determines:
                (A) That the interests of justice would be better served by allowing such participation by the interested person; and
                (B) That there are compelling circumstances favoring such participation by the interested person.
                (g) Definition of issues. (1) Whenever a formal hearing is conducted pursuant to this section the Administrator may certify the issues for decision to the judge, and if the issues are so certified, the formal hearing will be limited to those issues.

                (2) Whenever a formal hearing is conducted pursuant to a request by an applicant, licensee or permittee for review of a denial of certification, issuance or transfer of a license or permit in accordance with section 106(a)(4) of the Act, or pursuant to an objection to any term, condition, or restriction in a permit in accordance with section 105(b)(3) or (c)(4) of the Act, no issues may be raised by any party or interested person that were not previously raised in the administrative proceedings on the action pursuant to any such section, unless the judge determines that good cause is shown for the failure to raise them. Good cause includes the case where the party seeking to raise the new issues shows that it could not reasonably have ascertained the issues at a prior stage in the administrative process, or that it could not have reasonably anticipated the relevance or materiality of the information sought to be introduced.

                (h) Decisions—(1) Proposed findings of fact and conclusions of law. The judge will allow each party to file with the judge proposed findings of fact, and in appropriate cases conclusions of law, together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs must be filed within ten days after the hearing or within such additional time as the judge may allow. Such proposals and briefs must refer to all portions of the record and to all authorities relied upon in support of each proposal. Reply briefs must be submitted within ten days after receipt of the proposed findings and conclusions to which they respond, unless the judge allows additional time.
                (2) Recommended decision. (i) As soon as practicable, but normally not later than 90 days after the conclusion of the formal hearing, the judge will evaluate the record of the formal hearing and prepare and file a recommended decision with the Administrator. The decision will contain findings of fact, when appropriate, conclusions regarding all material isuses of law, and a recommendation as to the appropriate action to be taken by the Administrator. The judge will serve a copy of the decision on each party and upon the Administrator.
                (ii) Within thirty days after the date the recommended decision is served, any party may file with the Administrator exceptions to the recommended decision. The exceptions must refer to all portions of the record and to all authorities relied on in support of the exceptions.
                (3) Final decision. (i) As soon as practicable, but normally not later than 60 days after receipt of the recommended decision, the Administrator will issue a final decision. The final decision will include findings of fact and conclusions regarding material issues of law or discretion, as well as reasons therefor. The final decision may accept or reject all or part of the recommended decision. The Administrator shall assure that the record shows the ruling on each exception presented.
                (ii) With respect to hearings held pursuant to section 116(b), the Administrator may defer announcement of his findings of fact until the time he takes final action with respect to any action described in section 116(a).
                (iii) The Administrator will base the final decision upon the record already made except that the Administrator may issue orders:
                (A) Specifying the filing of supplemental briefs; or
                (B) Remanding the matter to the judge for the receipt of further evidence, or otherwise assisting in the determination of the matter.
                (i) Filing and service of documents. (1) Whenever the regulations in this subpart or an order issued hereunder require a document to be filed within a certain period of time, such document will be considered filed as of the date of the postmark, if mailed, or (if not mailed) as of the date actually delivered to the office where filing is required. Time periods will begin to run on the day following the date of the document, paper, or event which begins at the time period.
                (2) All submissions must be signed by the person making the submission, or by the person's attorney or other authorized agent or representative.
                (3) Service of a document must be made by delivering or mailing a copy of the document to the known address of the person being served.
                (4) Whenever the regulations in this subpart require service of a document, such service may effectively be made on the agent for the service of process or on the attorney for the person to be served.
                (5) Refusal of service of a document by the person, his agent, or attorney will be deemed effective service of the document as of the date of such refusal.
                (6) A certficate of the person serving the document by personal delivery or by mailing, setting forth the manner of the service, will be proof of the service.

              Subpart J—Enforcement

                § 971.1000
                General.
                (a) Purpose and scope. (1) Section 302 of the Act authorizes the Administrator to assess a civil penalty, in an amount not to exceed $25,000 for each violation, against any person found to have committed an act prohibited by section 301 of the Act. Each day of a continuing violation is a separate offense.
                (2) Section 106 of the Act describes the circumstances under which the Administrator may suspend or revoke a license or permit, or suspend or modify activities under a license or permit, in addition to or in lieu of imposing of a civil penalty, or in addition to imposing a fine.
                (3) Section 306 of the Act makes provisions of the customs laws relating to, among other things, the remission or mitigation of forfeitures, applicable to forfeitures of vessels and hard mineral resources. The Administrator is authorized to entertain petitions for administrative settlement of property seizures made under the Act which would otherwise proceed to judicial forfeiture.
                (4) Section 114 of the Act authorizes the Administrator to place observers on vessels used by a licensee or permittee under the Act to monitor compliance and environmental effects of activities under the license or permit.
                (5) Section 117 of the Act describes the circumstances under which a person may bring a civil action against an alleged violator or against the Administrator for failure to perform a nondiscretionary duty, and directs the Administrator to issue regulations governing procedures prerequisite to such a civil action.
                (6) The regulations in this subpart provide uniform rules and procedures for the assessment of civil penalties (§§ 971.1001-971.1002), and license and permit sanctions (§ 971.1003); the remission or mitigation of forfeitures (§ 971.1004); observers (§ 971.1005); protection of certain information related to enforcement (§ 971.1006); and procedures requiring persons planning to bring a civil action under section 117 of the Act to give advance notice (§ 971.1007).
                (b) Filing and service of documents. (1) Except as otherwise provided by this subpart, filing and service of documents required by this subpart will be in accordance with § 971.901(i). The method for computing time periods set forth in § 971.901(i) also applies to any action or event, such as payment of a civil penalty, required by this subpart to take place within a specified period of time.
                (2) If an oral or written request is made to the Administrator within ten days after the expiration of a time period established in this subpart for the required filing of documents, the Administrator may permit a late filing if the Administrator finds reasonable grounds for an inability or failure to file within the time periods. All extensions will be in writing. Except as provided by this paragraph, by 15 CFR 904.102 or by order of an administrative law judge, no requests for an extension of time may be granted.

                § 971.1001
                Assessment procedure.
                Subpart B of 15 CFR part 904 governs the procedures for assessing a civil penalty under the Act, and the rights of any person against whom a civil penalty is assessed.

                § 971.1002
                Hearing and appeal procedures.
                (a) Beginning of hearing procedures. Following receipt of a written request for a hearing timely filed under 15 CFR 904.102, the Administrator will begin procedures under this section by forwarding the request, a copy of the NOVA, and any response thereto to the Department of Commerce, Office of Administrative Law Judges.
                (b) Subpart C of 15 CFR part 904 governs the hearing and appeal procedures for civil penalties assessed under the Act.

                § 971.1003
                License and permit sanctions.
                (a) Application of this section. This section governs the suspension or revocation of any license or permit issued under the Act, or the suspension or modification of any particular activity or activities under a license or permit, which suspension, revocation or modification is undertaken in addition to, or in lieu of, imposing a civil penalty under this subpart, or in addition to imposing a fine.
                (b) Basis for sanctions. The Administrator may act under this section with respect to a license or permit issued under the Act, or any particular activity or activities under such a license or permit, if the licensee or permittee substantially fails to comply with any provision of the Act, any regulation or order issued under the Act, or any term, condition, or restriction in the license or permit.
                (c) Nature of sanctions. In the Administrator's discretion and subject to the requirements of this section, the Administrator may take any of the following actions or combinations thereof with respect to a license or permit issued under the Act:
                (1) Revoke the license or permit;
                (2) Suspend the license or permit, either for a specified period of time or until certain stated requirements are met, or both; or
                (3) Modify any activity under the license or permit, as by imposing additional requirements or restraints on the activity.
                (d) Notice of sanction. (1) The Administrator will prepare a notice of sanction (NoS) setting forth the sanction to be imposed and the basis therefore. The NoS will state:
                (i) A concise statement of the facts believed to show a violation;
                (ii) A specific reference to the provisions of the Act, regulation, license or permit, or order allegedly violated;
                (iii) The nature and duration of the proposed sanction;
                (iv) The effective date of the sanction, which is 30 days after the date of the notice unless the Administrator establishes a different effective date under paragraph (d)(4) or paragraph (e) of this section;
                (v) That the licensee or permittee has 30 calendar days from receipt of the notice in which to request or waive a hearing, under paragraph (f) of this section; and
                (vi) The determination made by the Administrator under paragraph (e)(1) of this section, and any time period that the Administrator provides the licensee or permittee under paragraph (e)(1) to correct a deficiency.
                (2) If a hearing is requested in a timely manner, the sanction becomes effective as provided in the final decision of the Administrator issued pursuant to paragraph (g) of this section, unless the Administrator provides otherwise under paragraph (d)(4) of this section.

                (3) The NoS will be served personally or by registered or certified mail, return receipt requested, on the licensee or permittee. The Administrator will also publish in the Federal Register a notice of his intention to impose a sanction.
                (4) The Administrator may make the sanction effective immediately or otherwise earlier than 30 days after the date of the NoS if the Administrator finds, and issues an emergency order summarizing such finding and the basis therefor, that an earlier date is necessary to:
                (i) Prevent a significant adverse environmental effect; or
                (ii) Preserve the safety of life and property at sea.
                If the Administrator acts under this paragraph (d)(4), the Administrator will serve the emergency order as provided in paragraph (d)(3) of this section.
                (5) The NoS will be accompanied by a copy of this subpart and the applicable provisions of 15 CFR part 904 and 15 CFR part 971, subpart I.
                (e) Opportunity to correct deficiencies. (1) Prior to issuing the NoS, the Administrator will determine whether the reason for the proposed sanction is a deficiency which the licensee or permittee can correct. Such determination, and the basis therefor, will be set forth in the NoS.
                (2) If the Administrator determines that the reason for the proposed sanction is a deficiency which the licensee or permittee can correct, the Administrator will allow the licensee or permittee a reasonable period of time, up to 180 days from the date of the NoS, to correct the deficiency. The NoS will state the effective date of the sanction, and that the sanction will take effect on that date unless the licensee or permittee corrects the deficiency within the time prescribed or unless the Administrator grants an extension of time to correct the deficiency under paragraph (e)(3) of this section.

                (3) The licensee or permittee may, within the time period prescribed by the Administrator under paragraph (e)(2) of the section, request an extension of time to correct the deficiency. The Administrator may, for good cause shown, grant an extension. If the Administrator does not grant the request, either orally or in writing before the effective date of the sanction, the request will be considered denied.

                (4) When the licensee or permittee believes that the deficiency has been corrected, the licensee or permittee shall so advise the Administrator in writing. The Administrator will, as soon as practicable, determine whether or not the deficiency has been corrected and advise the licensee or permittee of such determination.
                (5) If the Administrator determines that the deficiency has not been corrected by the licensee or permittee within the time prescribed under paragraph (e)(2) or (e)(3) of this section, the Administrator may:
                (i) Grant the licensee or permittee additional time to correct the deficiency, for good cause shown;
                (ii) If no hearing has been timely requested under paragraph (f)(1) of this section, notify the licensee or permittee that the sanction will take effect as provided in paragraph (e)(2) or (e)(3) of this section; or
                (iii) If a request for hearing has been timely filed under paragraph (f)(1) of this section, and hearing proceedings have not already begun, or if the Administrator determines under paragraph (f)(3) of this section to hold a hearing, notify the licensee or permittee of the Administrator's intention to proceed to a hearing on the matter.
                (f) Opportunity for hearing. (1) The licensee or permittee has 30 days from receipt of the NoS to request a hearing. However, no hearing is required with respect to matters previously adjudicated in an administrative or judicial hearing in which the licensee or permittee has had an opportunity to participate.
                (2) If the licensee or permittee requests a hearing, a written and dated request shall be served either in person or by certified or registered mail, return receipt requested, at the address specified in the NoS. The request shall either attach a copy of the relevant NoS or refer to the relevant NOAA case number.
                (3) If no hearing is requested under paragraph (f)(2) of this section, the Administrator may nonetheless order a hearing if the Administrator determines that there are material issues of fact, law, or equity to be further explored.
                (g) Hearing and decision. (1) If a timely request for a hearing under paragraph (f) of this section is received, or if the Administrator orders a hearing under paragraph (f)(3) of this section, the Administrator will promptly begin proceedings under this section by forwarding the request, a copy of the NoS and any response thereto to the Department of Commerce Office of Administrative Law Judges which will docket the matter for hearing. Written notice of the referral will promptly be given to the licensee or permittee, with the name and address of the attorney representing the Administrator in the proceedings (the agency representative). Thereafter, all pleading and other documents must be filed directly with the Department of Commerce Office of Administrative Law Judges, and a copy must be served on the opposing party (respondent or agency representative).
                (2) Except as provided in this section, the hearing and appeal procedures in 15 CFR part 904, subpart C apply to any hearing held under this section.
                (3) If the proposed sanction is the result of a correctable deficiency, the hearing will proceed concurrently with any attempt to correct the deficiency unless the parties agree otherwise or the Administrative Law Judge orders differently.
                (4) As soon as practicable, but normally not later than 90 days after the conclusion of the formal hearing, the judge will file with the Administrator a recommended decision prepared in accordance with § 971.901(h)(2).
                (5) The Administrator will issue a final decision in accordance with § 971.901(h)(3). The decision will be a final order of the Administrator.
                (6) The Administrator will serve notice of the final decision on the licensee or permittee in the manner described by paragraph (d)(3) of this section.

                § 971.1004
                Remission or mitigation of forfeitures.

                (a) Authorized enforcement officers are empowered by section 304 of the Act to seize any vessel (together with its gear, furniture, appurtenances, stores, and cargo) which reasonably appears to have been used in violation of the Act, if necessary to prevent evasion of the enforcement of this Act, or of any regulation, order or license or permit issued pursuant to the Act. Enforcement agents may also seize illegally recovered or processed hard mineral resources, as well as other evidence related to a violation. Section 306 of the Act provides for the judicial forfeiture of vessels and hard mineral resources.
                (b) Subpart F of 15 CFR part 904 governs procedures regarding seized property that is subject to forfeiture or has been forfeited under the Act, including the remission or mitigation of forfeitures.
                (c) Unless otherwise directed in a notice concerning the seized property, a petition for relief from forfeiture under the Act and pursuant to 15 CFR 904.506(b) shall be addressed to the Administrator and filed with the Ocean Minerals and Energy Division at the address specified in § 971.200(b).

                § 971.1005
                Observers.
                (a) Purpose of observers. Each licensee and permittee shall allow, at such times and to such extent as the Administrator deems reasonable and necessary, an observer (as used in this section, the term “observer” means “one or more observers”) duly authorized by the Administrator to board and accompany any vessel used by the licensee or permittee in exploration or commercial recovery activities (hereafter referred to in this section as a “vessel”), for the purpose of observing, evaluating and reporting on:
                (1) The effectiveness of the terms, conditions, and restrictions of the license or permit;
                (2) Compliance with the Act, regulations and orders issued under the Act, and the license or permit terms, conditions, and restrictions; and
                (3) The environmental and other effects of the licensee's or permittee's activities under the license or permit.
                (b) Notice to licensee or permittee. (1) If the Administrator plans to place an observer aboard a vessel, the Administrator will so notify the affected licensee or permittee.
                (2) The Administrator normally will issue any such notice as far in advance of placement of the observer as is practicable.
                (3) Contents of notice. The notice given by the Administrator will include, among other things:
                (i) The name of the observer, if known at the time notice is issued;
                (ii) The length of time which the observer likely will be aboard the vessel;
                (iii) Information concerning activities the observer is likely to conduct, such as:
                (A) Identification of special activities that the observer will monitor;
                (B) Planned tests of equipment used for monitoring;
                (C) Activities of the observer that are likely to require assistance from the vessel's personnel or crew or use of the vessel's equipment; and
                (D) Planned tests of alternative operating procedures or technologies for mitigation of environmental effects.
                (iv) Information concerning the equipment that will be brought aboard the vessel, such as a description of the monitoring equipment, and any special requirements concerning the handling, storage, location or operation of, or the power supply for, the equipment.
                (c) Initial monitoring period. The Administrator shall require the placement of an observer on each permittee's mining vessel(s) at least once during the initial year of the permittee's commercial recovery activities.
                (d) Licensee's and permittee's responsibilities for observer placement. (1) Upon request by the Administrator, a licensee or permittee shall facilitate observer placement by promptly notifying the Administrator regarding the timing of planned system tests and the departure date of the next voyage, or, if the vessel is at sea, suggesting a time and method for transporting the observer to the vessel.

                (2) In addition, the licensee or permittee shall notify NOAA of the date of departure of planned cruises 60 days in advance of ship departure from port for purposes of NOAA's determination of whether to place Federal observers onboard. If cruise plans are changed by more than 30 days from the date stated by the exploration or commercial recovery plan, the licensee or permittee shall notify NOAA as soon as such changes are made, or 90 days prior to the previously scheduled departure.
                (e) Duties of licensee, permittee, owner or operator. Each licensee, permittee, owner or operator of a vessel aboard which an observer is assigned shall:
                (1) Allow the observer access to and use of the vessel's communications equipment and personnel when the observer deems such access necessary for the transmission and receipt of messages;
                (2) Allow the observer access to and use of the vessel's navigation equipment and personnel when the observer deems such access necessary to determine the vessel's location;
                (3) Provide all other reasonable cooperation and assistance to enable the observer to carry out the observer's duties; and
                (4) Provide temporary accommodations and food to the observer aboard the vessel which are equivalent to those provided to officers of the vessel.
                (f) Reasonableness of observer activities. (1) To the maximum extent practicable, observation duties will be planned and carried out in a manner that minimizes interference with the licensee's or permittee's activities under the license or permit.
                (2) The Administrator will assure that equipment brought aboard a vessel by the observer is reasonable as to size, weight, and electric power and storage requirements, taking into consideration the necessity of the equipment for carrying out the observer's functions.
                (3) The observer will have no authority over the operation of the vessel or its activities, or the officers, crew, or personnel of the vessel. The observer will comply with all rules and regulations issued by the licensee or permittee, and all orders of the Master or senior operations official, with respect to ensuring safe operation of the vessel and the safety of its personnel.
                (g) Non-interference with observer. Licensees, permittees and other persons are reminded that the Act (see, for example, sections 301(3) and 301(4)) makes it unlawful for any person subject to section 301 of the Act to interfere with any observer in the performance of the observer's duties.
                (h) Confidentiality of information. NOAA recognizes the possibility that an observer, in performing observer functions, will record information which the licensee or permittee considers to be proprietary. NOAA intends to protect such information consistent with applicable law. The Administrator may in appropriate cases provide the licensee or permittee an opportunity:
                (1) To review those parts of the observer's report which may contain proprietary information; and
                (2) To request confidential treatment of such information under § 971.802.

                § 971.1006
                Proprietary enforcement information.
                (a) Proprietary and privileged information seized or maintained under Title III of the Act concerning a person or vessel engaged in commercial recovery will not be made available for general or public use or inspection.
                (b) Although presentation of evidence in a proceeding under this subpart is not deemed general or public use of information, the Administrator will, consistent with due process, move to have records sealed, under 15 CFR part 904 subpart C, or other applicable provisions of law, in any administrative or judicial proceeding where the use of proprietary or privileged information is required to serve the purpose of the Act.

                § 971.1007
                Advance notice of civil actions.
                (a) Actions against alleged violators. (1) No civil action may be filed in a United States District Court under section 117 of the Act against any person for alleged violation of the Act, or any regulation, or license or permit term, condition, or restriction issued under the Act, until 60 days after the Administrator and any alleged violator receive written and dated notice of alleged violation.
                (2) The notice shall contain:
                (i) A concise statement of the facts believed to show a violation;
                (ii) A specific reference to the provisions of the Act, regulation or license or permit allegedly violated; and

                (iii) Any documentary or other evidence of the alleged violation.

                (b) Action against the Administrator. (1) No civil action may be filed in a United States District Court under section 117 of the Act against the Administrator for an alleged failure to perform any act or duty under the Act which is not discretionary until 60 days after receipt by the Administrator of a written and dated notice of intent to file the action.
                (2) The notice shall contain:
                (i) A specific reference to the provisions of the Act, regulation or permit believed to require the Administrator to perform a nondiscretionary act or duty;
                (ii) A precise description of the nondiscretionary act or duty believed to be required by such provision;
                (iii) A concise statement of the facts believed to show a failure to perform the act or duty; and
                (iv) Any documentary or other evidence of the alleged failure to perform the act or duty.

          SUBCHAPTER E—OIL POLLUTION ACT REGULATIONS

            Pt. 990
            PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS

                Subpart A—Introduction
                Sec.
                990.10
                Purpose.
                990.11
                Scope.
                990.12
                Overview.
                990.13
                Rebuttable presumption.
                990.14
                Coordination.
                990.15
                Considerations to facilitate restoration.

                Subpart B—Authorities
                990.20
                Relationship to the CERCLA natural resource damage assessment regulations.
                990.21
                Relationship to the NCP.
                990.22
                Prohibition on double recovery.
                990.23
                Compliance with NEPA and the CEQ regulations.
                990.24
                Compliance with other applicable laws and regulations.
                990.25
                Settlement.
                990.26
                Emergency restoration.
                990.27
                Use of assessment procedures.

                Subpart C—Definitions
                990.30
                Definitions.

                Subpart D—Preassessment Phase
                990.40
                Purpose.
                990.41
                Determination of jurisdiction.
                990.42
                Determination to conduct restoration planning.
                990.43
                Data collection.
                990.44
                Notice of Intent to Conduct Restoration Planning.
                990.45
                Administrative record.

                Subpart E—Restoration Planning Phase
                990.50
                Purpose.
                990.51
                Injury assessment—injury determination.
                990.52
                Injury assessment—quantification.
                990.53
                Restoration selection—developing restoration alternatives.
                990.54
                Restoration selection—evaluation of alternatives.
                990.55
                Restoration selection—developing restoration plans.
                990.56
                Restoration selection—use of a Regional Restoration Plan or existing restoration project.

                Subpart F—Restoration Implementation Phase
                990.60
                Purpose.
                990.61
                Administrative record.
                990.62
                Presenting a demand.
                990.63
                Discounting and compounding.
                990.64
                Unsatisfied demands.
                990.65
                Opening an account for recovered damages.
                990.66
                Additional considerations.

              Authority:
              33 U.S.C. 2701 et seq.

              Source:
              61 FR 500, Jan. 5, 1996, unless otherwise noted.

              Subpart A—Introduction

                § 990.10
                Purpose.

                The goal of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., is to make the environment and public whole for injuries to natural resources and services resulting from an incident involving a discharge or substantial threat of a discharge of oil (incident).
                This goal is achieved through the return of the injured natural resources and services to baseline and compensation for interim losses of such natural resources and services from the date of the incident until recovery. The purpose of this part is to promote expeditious and cost-effective restoration of natural resources and services injured as a result of an incident. To fulfill this purpose, this part provides a natural resource damage assessment process for developing a plan for restoration of the injured natural resources and services and pursuing implementation or funding of the plan by responsible parties. This part also provides an administrative process for involving interested parties in the assessment, a range of assessment procedures for identifying and evaluating injuries to natural resources and services, and a means for selecting restoration actions from a reasonable range of alternatives.

                § 990.11
                Scope.

                The Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., provides for the designation of federal, state, and, if designated by the Governor of the state, local officials to act on behalf of the public as trustees for natural resources and for the designation of Indian tribe and foreign officials to act as trustees for natural resources on behalf of, respectively, the tribe or its members and the foreign government. This part may be used by these officials in conducting natural resource damage assessments when natural resources and/or services are injured as a result of an incident involving an actual or substantial threat of a discharge of oil. This part is not intended to affect the recoverability of natural resource damages when recoveries are sought other than in accordance with this part.

                § 990.12
                Overview.
                This part describes three phases of a natural resource damage assessment. The Preassessment Phase, during which trustees determine whether to pursue restoration, is described in subpart D of this part. The Restoration Planning Phase, during which trustees evaluate information on potential injuries and use that information to determine the need for, type of, and scale of restoration, is described in subpart E of this part. The Restoration Implementation Phase, during which trustees ensure implementation of restoration, is described in subpart F of this part.

                § 990.13
                Rebuttable presumption.
                Any determination or assessment of damages to natural resources made by a Federal, State, or Indian trustee in accordance with this part shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding under OPA.

                § 990.14
                Coordination.
                (a) Trustees. (1) If an incident affects the interests of multiple trustees, the trustees should act jointly under this part to ensure that full restoration is achieved without double recovery of damages. For joint assessments, trustees must designate one or more Lead Administrative Trustee(s) to act as coordinators.
                (2) If there is a reasonable basis for dividing the natural resource damage assessment, trustees may act independently under this part, so long as there is no double recovery of damages.
                (3) Trustees may develop pre-incident or incident-specific memoranda of understanding to coordinate their activities.
                (b) Response agencies. Trustees must coordinate their activities conducted concurrently with response operations with response agencies consistent with the NCP and any pre-incident plans developed under § 990.15(a) of this part. Trustees may develop pre-incident memoranda of understanding to coordinate their activities with response agencies.
                (c) Responsible parties—(1) Invitation. Trustees must invite the responsible parties to participate in the natural resource damage assessment described in this part. The invitation to participate should be in writing, and a written response by the responsible parties is required to confirm the desire to participate.
                (2) Timing. The invitation to participate should be extended to known responsible parties as soon as practicable, but not later than the delivery of the “Notice of Intent to Conduct Restoration Planning,” under § 990.44 of this part, to the responsible party.
                (3) Agreements. Trustees and responsible parties should consider entering into binding agreements to facilitate their interactions and resolve any disputes during the assessment. To maximize cost-effectiveness and cooperation, trustees and responsible parties should attempt to develop a set of agreed-upon facts concerning the incident and/or assessment.
                (4) Nature and extent of participation. If the responsible parties accept the invitation to participate, the scope of that participation must be determined by the trustees, in light of the considerations in paragraph (c)(5) of this section. At a minimum, participation will include notice of trustee determinations required under this part, and notice and opportunity to comment on documents or plans that significantly affect the nature and extent of the assessment. Increased levels of participation by responsible parties may be developed at the mutual agreement of the trustees and the responsible parties. Trustees will objectively consider all written comments provided by the responsible parties, as well as any other recommendations or proposals that the responsible parties submit in writing to the Lead Administrative Trustee. Submissions by the responsible parties will be included in the administrative record. Final authority to make determinations regarding injury and restoration rest solely with the trustees. Trustees may end participation by responsible parties who, during the conduct of the assessment, in the sole judgment of the trustees, cause interference with the trustees' ability to fulfill their responsibilities under OPA and this part.
                (5) Considerations. In determining the nature and extent of participation by the responsible parties or their representatives, trustees may consider such factors as:
                (i) Whether the responsible parties have been identified;
                (ii) The willingness of responsible parties to participate in the assessment;
                (iii) The willingness of responsible parties to fund assessment activities;
                (iv) The willingness and ability of responsible parties to conduct assessment activities in a technically sound and timely manner and to be bound by the results of jointly agreed upon studies;
                (v) The degree of cooperation of the responsible parties in the response to the incident; and
                (vi) The actions of the responsible parties in prior assessments.
                (6) Request for alternative assessment procedures. (i) The participating responsible parties may request that trustees use assessment procedures other than those selected by the trustees if the responsible parties:
                (A) Identify the proposed procedures to be used that meet the requirements of § 990.27 of this part, and provide reasons supporting the technical adequacy and appropriateness of such procedures for the incident and associated injuries;
                (B) Advance to the trustees the trustees' reasonable estimate of the cost of using the proposed procedures; and
                (C) Agree not to challenge the results of the proposed procedures. The request from the responsible parties may be made at any time, but no later than, fourteen (14) days of being notified of the trustees' proposed assessment procedures for the incident or the injury.
                (ii) Trustees may reject the responsible parties' proposed assessment procedures if, in the sole judgment of the trustees, the proposed assessment procedures:
                (A) Are not technically feasible;
                (B) Are not scientifically or technically sound;
                (C) Would inadequately address the natural resources and services of concern;
                (D) Could not be completed within a reasonable time frame; or
                (E) Do not meet the requirements of § 990.27 of this part.
                (7) Disclosure. Trustees must document in the administrative record and Restoration Plan the invitation to the responsible parties to participate, and briefly describe the nature and extent of the responsible parties' participation. If the responsible parties' participation is terminated during the assessment, trustees must provide a brief explanation of this decision in the administrative record and Restoration Plan.
                (d) Public. Trustees must provide opportunities for public involvement after the trustees' decision to develop restoration plans or issuance of any notices to that effect, as provided in § 990.55 of this part. Trustees may also provide opportunities for public involvement at any time prior to this decision if such involvement may enhance trustees' decisionmaking or avoid delays in restoration.

                § 990.15
                Considerations to facilitate restoration.
                In addition to the procedures provided in subparts D through F of this part, trustees may take other actions to further the goal of expediting restoration of injured natural resources and services, including:
                (a) Pre-incident planning. Trustees may engage in pre-incident planning activities. Pre-incident plans may identify natural resource damage assessment teams, establish trustee notification systems, identify support services, identify natural resources and services at risk, identify area and regional response agencies and officials, identify available baseline information, establish data management systems, and identify assessment funding issues and options. Potentially responsible parties, as well as all other members of the public interested in and capable of participating in assessments, should be included in pre-incident planning to the fullest extent practicable.
                (b) Regional Restoration Plans. Where practicable, incident-specific restoration plan development is preferred, however, trustees may develop Regional Restoration Plans. These plans may be used to support a claim under § 990.56 of this part. Regional restoration planning may consist of compiling databases that identify, on a regional or watershed basis, or otherwise as appropriate, existing, planned, or proposed restoration projects that may provide appropriate restoration alternatives for consideration in the context of specific incidents.

              Subpart B—Authorities

                § 990.20
                Relationship to the CERCLA natural resource damage assessment regulations.
                (a) General. Regulations for assessing natural resource damages resulting from hazardous substance releases under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9601 et seq., and the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1321 et seq., are codified at 43 CFR part 11. The CERCLA regulations originally applied to natural resource damages resulting from oil discharges as well as hazardous substance releases. This part supersedes 43 CFR part 11 with regard to oil discharges covered by OPA.
                (b) Assessments commenced before February 5, 1996. If trustees commenced a natural resource damage assessment for an oil discharge under 43 CFR part 11 prior to February 5, 1996 they may complete the assessment in compliance with 43 CFR part 11, or they may elect to use this part, and obtain a rebuttable presumption.
                (c) Oil and hazardous substance mixtures. For natural resource damages resulting from a discharge or release of a mixture of oil and hazardous substances, trustees must use 43 CFR part 11 in order to obtain a rebuttable presumption.

                § 990.21
                Relationship to the NCP.
                This part provides procedures by which trustees may determine appropriate restoration of injured natural resources and services, where such injuries are not fully addressed by response actions. Response actions and the coordination with damage assessment activities are conducted pursuant to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300.

                § 990.22
                Prohibition on double recovery.
                When taking actions under this part, trustees are subject to the prohibition on double recovery, as provided in 33 U.S.C. 2706(d)(3) of OPA.

                § 990.23
                Compliance with NEPA and the CEQ regulations.
                (a) General. The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. and Council on Environmental Quality (CEQ) regulations implementing NEPA, 40 CFR chapter V, apply to restoration actions by federal trustees, except where a categorical exclusion or other exception to NEPA applies. Thus, when a federal trustee proposes to take restoration actions under this part, it must integrate this part with NEPA, the CEQ regulations, and NEPA regulations promulgated by that federal trustee agency. Where state NEPA-equivalent laws may apply to state trustees, state trustees must consider the extent to which they must integrate this part with their NEPA-equivalent laws. The requirements and process described in this section relate only to NEPA and federal trustees.
                (b) NEPA requirements for federal trustees. NEPA becomes applicable when federal trustees propose to take restoration actions, which begins with the development of a Draft Restoration Plan under § 990.55 of this part. Depending upon the circumstances of the incident, federal trustees may need to consider early involvement of the public in restoration planning in order to meet their NEPA compliance requirements.
                (c) NEPA process for federal trustees. Although the steps in the NEPA process may vary among different federal trustees, the process will generally involve the need to develop restoration plans in the form of an Environmental Assessment or Environmental Impact Statement, depending upon the trustee agency's own NEPA regulations.
                (1) Environmental Assessment. (i) Purpose. The purpose of an Environmental Assessment (EA) is to determine whether a proposed restoration action will have a significant (as defined under NEPA and § 1508.27 of the CEQ regulations) impact on the quality of the human environment, in which case an Environmental Impact Statement (EIS) evaluating the impact is required. In the alternative, where the impact will not be significant, federal trustees must issue a Finding of No Significant Impact (FONSI) as part of the restoration plans developed under this part. If significant impacts to the human environment are anticipated, the determination to proceed with an EIS may be made as a result, or in lieu, of the development of the EA.
                (ii) General steps. (A) If the trustees decide to pursue an EA, the trustees may issue a Notice of Intent to Prepare a Draft Restoration Plan/EA, or proceed directly to developing a Draft Restoration Plan/EA.
                (B) The Draft Restoration Plan/EA must be made available for public review before concluding a FONSI or proceeding with an EIS.
                (C) If a FONSI is concluded, the restoration planning process should be no different than under § 990.55 of this part, except that the Draft Restoration Plan/EA will include the FONSI analysis.
                (D) The time period for public review on the Draft Restoration Plan/EA must be consistent with the federal trustee agency's NEPA requirements, but should generally be no less than thirty (30) calendar days.
                (E) The Final Restoration Plan/EA must consider all public comments on the Draft Restoration Plan/EA and FONSI.
                (F) The means by which a federal trustee requests, considers, and responds to public comments on the Draft Restoration Plan/EA and FONSI must also be consistent with the federal agency's NEPA requirements.
                (2) Environmental Impact Statement. (i) Purpose. The purpose of an Environmental Impact Statement (EIS) is to involve the public and facilitate the decisionmaking process in the federal trustees' analysis of alternative approaches to restoring injured natural resources and services, where the impacts of such restoration are expected to have significant impacts on the quality of the human environment.
                (ii) General steps. (A) If trustees determine that restoration actions are likely to have a significant (as defined under NEPA and § 1508.27 of the CEQ regulations) impact on the environment, they must issue a Notice of Intent to Prepare a Draft Restoration Plan/EIS. The notice must be published in the Federal Register.

                (B) The notice must be followed by formal public involvement in the development of the Draft Restoration Plan/EIS.

                (C) The Draft Restoration Plan/EIS must be made available for public review for a minimum of forty-five (45) calendar days. The Draft Restoration Plan/EIS, or a notice of its availability, must be published in the Federal Register.

                (D) The Final Restoration Plan/EIS must consider all public comments on the Draft Restoration Plan/EIS, and incorporate any changes made to the Draft Restoration Plan/EIS in response to public comments.

                (E) The Final Restoration Plan/EIS must be made publicly available for a minimum of thirty (30) calendar days before a decision is made on the federal trustees' proposed restoration actions (Record of Decision). The Final Restoration Plan/EIS, or a notice of its availability, must be published in the Federal Register.

                (F) The means by which a federal trustee agency requests, considers, and responds to public comments on the Final Restoration Plan/EIS must also be consistent with the federal agency's NEPA requirements.

                (G) After appropriate public review on the Final Restoration Plan/EIS is completed, a Record of Decision (ROD) is issued. The ROD summarizes the trustees' decisionmaking process after consideration of any public comments relative to the proposed restoration actions, identifies all restoration alternatives (including the preferred alternative(s)), and their environmental consequences, and states whether all practicable means to avoid or minimize environmental harm were adopted (e.g., monitoring and corrective actions). The ROD may be incorporated with other decision documents prepared by the trustees. The means by which the ROD is made publicly available must be consistent with the federal trustee agency's NEPA requirements.
                (d) Relationship to Regional Restoration Plans or an existing restoration project. If a Regional Restoration Plan or existing restoration project is proposed for use, federal trustees may be able to tier their NEPA analysis to an existing EIS, as described in §§ 1502.20 and 1508.28 of the CEQ regulations.

                § 990.24
                Compliance with other applicable laws and regulations.
                (a) Worker health and safety. When taking actions under this part, trustees must comply with applicable worker health and safety considerations specified in the NCP for response actions.
                (b) Natural Resources protection. When acting under this part, trustees must ensure compliance with any applicable consultation, permitting, or review requirements, including but not limited to: the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.; the Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq.; the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq.; the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; the National Historic Preservation Act, 12 U.S.C. 470 et seq.; the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; and the Archaeological Resources Protection Act, 16 U.S.C. 470 et seq.

                § 990.25
                Settlement.
                Trustees may settle claims for natural resource damages under this part at any time, provided that the settlement is adequate in the judgment of the trustees to satisfy the goal of OPA and is fair, reasonable, and in the public interest, with particular consideration of the adequacy of the settlement to restore, replace, rehabilitate, or acquire the equivalent of the injured natural resources and services. Sums recovered in settlement of such claims, other than reimbursement of trustee costs, may only be expended in accordance with a restoration plan, which may be set forth in whole or in part in a consent decree or other settlement agreement, which is made available for public review.

                § 990.26
                Emergency restoration.
                (a) Trustees may take emergency restoration action before completing the process established under this part, provided that:
                (1) The action is needed to avoid irreversible loss of natural resources, or to prevent or reduce any continuing danger to natural resources or similar need for emergency action;
                (2) The action will not be undertaken by the lead response agency;
                (3) The action is feasible and likely to succeed;
                (4) Delay of the action to complete the restoration planning process established in this part likely would result in increased natural resource damages; and
                (5) The costs of the action are not unreasonable.
                (b) If response actions are still underway, trustees must coordinate with the On-Scene Coordinator (OSC), consistent with the NCP, to ensure that emergency restoration actions will not interfere with or duplicate ongoing response actions. Emergency restoration may not address residual oil unless:
                (1) The OSC's response is complete; or
                (2) The OSC has determined that the residual oil identified by the trustee as part of a proposed emergency restoration action does not merit further response.
                (c) Trustees must provide notice to identified responsible parties of any emergency restoration actions and, to the extent time permits, invite their participation in the conduct of those actions as provided in § 990.14(c) of this part.

                (d) Trustees must provide notice to the public, to the extent practicable, of these planned emergency restoration actions. Trustees must also provide public notice of the justification for, nature and extent of, and results of emergency restoration actions within a reasonable time frame after completion of such actions. The means by which this notice is provided is left to the discretion of the trustee.
                [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61492, Oct. 1, 2002]

                § 990.27
                Use of assessment procedures.
                (a) Standards for assessment procedures. Any procedures used pursuant to this part must comply with all of the following standards if they are to be in accordance with this part:
                (1) The procedure must be capable of providing assessment information of use in determining the type and scale of restoration appropriate for a particular injury;
                (2) The additional cost of a more complex procedure must be reasonably related to the expected increase in the quantity and/or quality of relevant information provided by the more complex procedure; and
                (3) The procedure must be reliable and valid for the particular incident.
                (b) Assessment procedures available. (1) The range of assessment procedures available to trustees includes, but is not limited to:
                (i) Procedures conducted in the field;
                (ii) Procedures conducted in the laboratory;
                (iii) Model-based procedures, including type A procedures identified in 43 CFR part 11, subpart D, and compensation formulas/schedules; and
                (iv) Literature-based procedures.
                (2) Trustees may use the assessment procedures in paragraph (b)(1) of this section alone, or in any combination, provided that the standards in paragraph (a) of this section are met, and there is no double recovery.
                (c) Selecting assessment procedures. (1) When selecting assessment procedures, trustees must consider, at a minimum:
                (i) The range of procedures available under paragraph (b) of this section;
                (ii) The time and cost necessary to implement the procedures;
                (iii) The potential nature, degree, and spatial and temporal extent of the injury;
                (iv) The potential restoration actions for the injury; and
                (v) The relevance and adequacy of information generated by the procedures to meet information requirements of restoration planning.
                (2) If a range of assessment procedures providing the same type and quality of information is available, the most cost-effective procedure must be used.

              Subpart C—Definitions

                § 990.30
                Definitions.
                For the purpose of this rule, the term:

                  Baseline means the condition of the natural resources and services that would have existed had the incident not occurred. Baseline data may be estimated using historical data, reference data, control data, or data on incremental changes (e.g., number of dead animals), alone or in combination, as appropriate.

                  Cost-effective means the least costly activity among two or more activities that provide the same or a comparable level of benefits, in the judgment of the trustees.

                  CEQ regulations means the Council on Environmental Quality regulations implementing NEPA, 40 CFR chapter V.

                  Damages means damages specified in section 1002(b) of OPA (33 U.S.C. 1002(b)), and includes the costs of assessing these damages, as defined in section 1001(5) of OPA (33 U.S.C. 2701(5)).

                  Discharge means any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping, as defined in section 1001(7) of OPA (33 U.S.C. 2701(7)).

                  Exclusive Economic Zone means the zone established by Presidential Proclamation 5030 of March 10, 1983 (3 CFR, 1984 Comp., p. 22), including the ocean waters of the areas referred to as “eastern special areas” in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, as defined in section 1001(8) of OPA (33 U.S.C. 2701(8)).

                  Exposure means direct or indirect contact with the discharged oil.

                  Facility means any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil. This term includes any motor vehicle, rolling stock, or pipeline used for one or more of these purposes, as defined in section 1001(9) of OPA (33 U.S.C. 2701(9)).

                  Fund means the Oil Spill Liability Trust Fund, established by section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), as defined in section 1001(11) of OPA (33 U.S.C. 2701(11)).

                  Incident means any occurrence or series of occurrences having the same origin, involving one or more vessels, facilities, or any combination thereof, resulting in the discharge or substantial threat of discharge of oil into or upon navigable waters or adjoining shorelines or the Exclusive Economic Zone, as defined in section 1001(14) of OPA (33 U.S.C. 2701(14)).

                  Indian tribe (or tribal) means any Indian tribe, band, nation, or other organized group or community, but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and has governmental authority over lands belonging to or controlled by the tribe, as defined in section 1001(15) of OPA (33 U.S.C. 2701(15)).

                  Indirect costs means expenses that are jointly or commonly incurred to produce two or more products or services. In contrast to direct costs, indirect costs are not specifically identifiable with any of the products or services, but are necessary for the organization to function and produce the products or services. An indirect cost rate, developed in accordance with generally accepted accounting principles, may be used to allocate indirect costs to specific assessment and restoration activities. Both direct and indirect costs contribute to the full cost of the assessment and restoration, as provided in this part.

                  Injury means an observable or measurable adverse change in a natural resource or impairment of a natural resource service. Injury may occur directly or indirectly to a natural resource and/or service. Injury incorporates the terms “destruction,” “loss,” and “loss of use” as provided in OPA.

                  Lead Administrative Trustee(s) (or LAT) means the trustee(s) who is selected by all participating trustees whose natural resources or services are injured by an incident, for the purpose of coordinating natural resource damage assessment activities. The LAT(s) should also facilitate communication between the OSC and other natural resource trustees regarding their activities during the response phase.

                  Legal costs means the costs of attorney actions performed for the purpose of assessment or developing a restoration plan, in accordance with this part.
                (1) When making a determination of the nature of attorneys' actions for purposes of this definition, trustees must consider whether:
                (i) The action comprised all or part of an action specified either in this part or in OPA section 1006(c);
                (ii) The action was performed prior to, or in the absence of, the filing of ligation by or on behalf of the trustee in question to recover damages; and
                (iii) The action was performed by an attorney who was working for or on behalf of the trustee agency, as opposed to a prosecutorial agency.
                (2) If all of the criteria in paragraph (1) of this definition are met, the costs associated with attorney's actions are deemed assessment costs. If the criteria are not met, the trustee must explain why the action was not
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