[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2009 Edition]
[From the U.S. Government Printing Office]



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          15


          Part 800 to End

                         Revised as of January 1, 2009


          Commerce and Foreign Trade
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    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                    35
          Chapter XI--Technology Administration, Department of 
          Commerce                                                 449
          Chapter XIII--East-West Foreign Trade Board              463
          Chapter XIV--Minority Business Development Agency        467
    Subtitle C--Regulations Relating to Foreign Trade 
      Agreements
          Chapter XX--Office of the United States Trade 
          Representative                                           475
    Subtitle D--Regulations Relating to Telecommunications and 
      Information
          Chapter XXIII--National Telecommunications and 
          Information Administration, Department of Commerce       529
  Finding Aids:
      Table of CFR Titles and Chapters........................     549
      Alphabetical List of Agencies Appearing in the CFR......     569

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      List of CFR Sections Affected...........................     579

[[Page v]]





                     ----------------------------

                     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.

                     ----------------------------

[[Page vi]]



                               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, 2009), 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.

[[Page vii]]

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.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

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 in 
the Finding Aids of this volume 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, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
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.



[[Page viii]]


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, Washington, DC 20408 or e-mail 
[email protected].

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ELECTRONIC SERVICES

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2009.







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                               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, 2009.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


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                  TITLE 15--COMMERCE AND FOREIGN TRADE




                    (This book contains part 800-end)

  --------------------------------------------------------------------
                                                                    Part

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

chapter viii--Bureau of Economic Analysis, Department of 
  Commerce..................................................         801

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

chapter xi--Technology Administration, Department of 
  Commerce..................................................        1150

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

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

[[Page 5]]



    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........           7
806             Direct investment surveys...................          17
807             Public information..........................          34

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                           PART 800 [RESERVED]



PART 801_SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. AND FOREIGN 

PERSONS--Table of Contents




Sec.
801.1 Purpose.
801.2 Recordkeeping requirements.
801.3 General reporting requirements.
801.4 Response required.
801.5 Confidentiality.
801.6 Penalties.
801.7 General definitions.
801.8 Miscellaneous.
801.9 Reports required.
801.10 Rules and regulations for the BE-120, Benchmark Survey of 
          Transactions in Selected Services and Intangible Assets with 
          Foreign Persons.
801.11 Rules and regulations for the BE-80, Benchmark Survey of 
          Financial Services Transactions Between U.S. Financial 
          Services Providers and Unaffiliated Foreign Persons.

    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: 51 FR 7772, Mar. 6, 1986, unless otherwise noted.



Sec. 801.1  Purpose.

    The purpose of this part is to set forth the rules and regulations 
necessary to carry out the data collection program concerning 
international trade in services that is required by, or provided for in, 
the International Investment and Trade in Services Survey Act (Pub. L. 
94-472, 90 Stat. 2059, 22 U.S.C. 3101 to 3108, as amended by section 306 
of Pub. L. 98-573), hereafter ``the Act.'' The overall purpose of the 
Act with respect to services trade is to provide comprehensive and 
reliable information pertaining to international trade in services, and 
to do so with the minimum burden on respondents and with no unnecessary 
duplication of effort. The data are needed for policymaking purposes, 
for conducting international negotiations on trade in services, and for 
improving the recording of services transactions in the U.S. balance of 
payments accounts.



Sec. 801.2  Recordkeeping requirements.

    In accordance with section 5(b)(1) of the Act (22 U.S.C 3104), 
persons subject to the jurisdiction of the United States shall maintain 
any information (including journals or other books of original entry, 
minute books, stock transfer records, lists of shareholders, or 
financial statements) which is essential for carrying out the surveys 
and studies provided for by the Act.



Sec. 801.3  General reporting requirements.

    (a) In accordance with section 5(b)(2) of the Act (22 U.S.C. 3104) 
persons 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.
    (b) Such reports may be required from any U.S. person, other than 
the U.S. Government, engaged in international trade in services. 
Specific reporting requirements for a given report form are set forth 
below and, in more detail, on the form itself.



Sec. 801.4  Response required.

    Reports, as specified below, are required from all U.S. persons 
coming within the reporting requirements, whether or not they are 
contacted by BEA. In addition, any person BEA contacts by sending them 
report forms must respond in writing. The response must be made by the 
due date of the report, either by filing the properly completed report 
form or by certifying in writing on the form that the person has no 
international services transactions within the purview of the Act or the 
regulations contained herein. The latter requirement is necessary to 
ensure compliance with reporting requirements and efficient 
administration of the Act.



Sec. 801.5  Confidentiality.

    Information collected pursuant to Sec. 801.3 is confidential (see 
section 5(c) of the Act, 22 U.S.C. 3104).

[[Page 8]]

    (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 Sec. 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 it identifiable as being derived from the records of such 
customer.



Sec. 801.6  Penalties.

    (a) Whoever fails to furnish any information required by the Act or 
by Sec. 801.3, or to comply with any other rule, regulation, order or 
instruction promulgated under the Act, may be subject to a civil penalty 
not exceeding $10,000 in a proceeding brought in an appropriate United 
States court and to injunctive relief commanding such person to comply, 
or both (see section 6 (a) and (b) of the Act, 22 U.S.C. 3105).
    (b) Whoever willfully fails to submit any information required by 
the Act or by Sec. 801.3, or willfully violates any other 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 or any corporation who knowingly 
participates in such violation, upon conviction, may be punished by a 
like fine, imprisonment, or both (see section 6(c) of the Act, 22 U.S.C. 
3105).
    (c) Any person who willfully violates Sec. 801.5 relating to 
confidentially, shall, upon conviction, be fined not more than $10,000, 
in addition to any other penalty imposed by law (see section 5(d) of the 
Act, 22 U.S.C. 3104).



Sec. 801.7  General definitions.

    (a) Services means economic activities whose outputs are other than 
tangible goods. Such term includes, but is not limited to, banking, 
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.
    (b) 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.
    (c) 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.
    (d) 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).
    (e) United States person means any person resident in the United 
States or subject to the jurisdiction of the United States.
    (f) Foreign person means any person resident outside the United 
States or subject to the jurisdiction of a country other than the United 
States.
    (g) Business enterprise means any organization, association, branch, 
or venture which exists for profitmaking purposes or to otherwise secure 
economic

[[Page 9]]

advantage, and any ownership of any real estate.
    (h) Unaffiliated foreign person means, with respect to a given U.S. 
person, any foreign person that is not an ``affiliated foreign person'' 
as defined in paragraph (i) of this section.
    (i) Affiliated foreign person means, with respect to a given U.S. 
person--
    (1) A foreign affiliate of which the U.S. person is a U.S. parent; 
or
    (2) The foreign parent or other member of the affiliated foreign 
group of which the U.S. person is a U.S. affiliate.
    (j) Parent means a person of one country who directly or indirectly, 
owns or controls 10 per centum or more of the voting stock of an 
incorporated business enterprise, or an equivalent ownership interest in 
an unincorporated business enterprise, which is located outside that 
country.
    (k) Affiliate means a business enterprise located in one country 
which is directly or indirectly owned or controlled by a person of 
another country to the extent of 10 per centum or more of its voting 
stock for an incorporated business or an equivalent interest for an 
unincorported business, including a branch.
    (l) U.S. parent means the U.S. person that has direct investment in 
a foreign business enterprise.
    (m) Foreign affiliate means an affiliate located outside the United 
States in which a U.S. person has direct investment.
    (n) Foreign parent means the foreign person, or the first person 
outside the United States in a foreign chain of ownership, which has 
direct investment in a U.S. business enterprise, including a branch.
    (o) U.S. affiliate means an affiliate located in the United States 
in which a foreign person has a direct investment.
    (p) Affiliated foreign group means--
    (1) The foreign parent;
    (2) Any foreign person, proceeding up the foreign parent's ownership 
chain, which owns more than 50 per centum of the person below it up to 
and including that person which is not owned more than 50 per centum by 
another foreign person; and
    (3) Any foreign person, proceeding down the ownership chain(s) of 
each of these members, which is owned more than 50 per centum by the 
person above it.



Sec. 801.8  Miscellaneous.

    (a) Required information not available. All reasonable efforts 
should be made to obtain information required for reporting. Every 
applicable question on each form or schedule should be answered. When 
only partial information is available, an appropriate indication should 
be given.
    (b) Estimates. If actual figures are not available, estimates should 
be supplied and labeled as such. When a data item cannot be fully 
subdivided as required, a total and an estimated breakdown of the total 
should be supplied.
    (c) Specify. When ``specify'' is included in certain data items, the 
type and dollar amount of the major items included must be given for at 
least the items mentioned in the line or column instruction.
    (d) Space on form insufficient. When space on a form is insufficient 
to permit a full answer to any item, the required information should be 
submitted on supplementary sheets, appropriately labeled and referenced 
to the item of column number and the form.
    (e) Extensions. Requests for an extension of a reporting deadline 
will not normally be granted. However, in a hardship case, a written 
request for an extension will be considered provided it is received at 
least 15 days prior to the due date of the report and enumerates 
substantive reasons necessitating the extension.
    (f) Number of copies. A single original copy of each form or 
schedule shall be filed with the Bureau of Economic Analysis. This 
should be the copy with the address label if such a labeled copy has 
been provided. In addition, each respondent must retain a copy of its 
report to facilitate resolution of problems. Both copies are protected 
by law; see Sec. 801.5.
    (g) Other. Instructions concerning filing dates, where to send 
reports, and whom to contact concerning a given report are contained on 
each form.

[[Page 10]]



Sec. 801.9  Reports required.

    (a) Benchmark surveys. Section 4(a)(4) of the Act (22 U.S.C. 3103) 
provides that benchmark surveys of trade in services between U.S. and 
unaffiliated foreign persons be conducted, but not more frequently than 
every 5 years. General reporting requirements, exemption levels, and the 
year of coverage of the BE-20 survey may be found in Sec. 801.10, and 
general reporting requirements, exemption levels, and the year of 
coverage of the BE-80 survey may be found in Sec. 801.11. More detailed 
instructions are given on the forms themselves.
    (b) Annual surveys. (1) BE-29, Foreign Ocean Carriers' Expenses in 
the United States:
    (i) Who must report. A BE-29 report is required from U.S. agents on 
behalf of foreign ocean carriers transporting freight or passengers to 
or from the United States. U.S. agents are steamship agents and other 
persons representing foreign carriers in arranging ocean transportation 
of freight and cargo between U.S. and foreign ports and in arranging 
port services in the United States. Foreign carriers are foreign persons 
that own or operate ocean going vessels calling at U.S. ports, including 
VLCC tankers discharging petroleum offshore to pipelines and lighter 
vessels destined for U.S. ports. They include carriers who own or who 
operate their own or chartered (United States or foreign-flag) vessels. 
They also include foreign subsidiaries of U.S. companies operating their 
own or chartered vessels as carriers for their own accounts. Where the 
vessels under foreign registry are operated directly by a U.S. carrier 
for its own account, the operations of such vessels should be reported 
on Form BE-30, Ocean Freight Revenues and Foreign Expenses of United 
States Carriers. The Bureau of Economic Analysis may, in lieu of BE-29 
reports required from foreign carriers' U.S. agents, accept consolidated 
reports from foreign governments covering the operations of their 
national shipping concerns when, in the Bureau's discretion, such 
consolidated reports would provide the required information. Where such 
reports are accepted, the individual reports from foreign carriers' U.S. 
agents will not be required.
    (ii) Exemption. Any U.S. person otherwise required to report is 
exempted from reporting if the total number of port calls by foreign 
vessels handled in the reporting period is less than forty or total 
covered expenses are less than $250,000. For example, if an agent 
handled less than 40 port calls in a calendar year, the agent is 
exempted from reporting. If the agent handled 40 or more calls, the 
agent must report unless covered expenses for all foreign carriers 
handled by the agent were less than $250,000. The determination of 
whether a U.S. person is exempt may be based on the judgment of 
knowledgeable persons who can identify reportable transactions without 
conducting a detailed manual records search.
    (2) [Reserved]
    (c) Quarterly surveys. (1) BE-30, Ocean Freight Revenues and Foreign 
Expenses of United States Carriers:
    (i) Who must report. A BE-30 report is required from U.S. carriers, 
i.e., from U.S. persons that own or operate dry cargo, passenger 
(including combination), and tanker vessels regardless of whether the 
vessels are registered in the United States or in foreign countries. 
Operators are persons who enter into any form of transportation contract 
with shippers of merchandise (or their agents) for the transportation of 
freight and cargo between U.S. and foreign ports or between foreign 
ports, whether on the operators' own vessels or chartered vessels.
    (ii) Exemption. A U.S. person otherwise required to report is 
exempted from reporting if total annual covered revenues (i.e., revenues 
on outbound, cross-trade, and inbound cargoes and charter hire received) 
and total annual covered expenses (i.e., charter hire paid and expenses 
in foreign countries) are, or are expected to be, each less than 
$500,000. If either total annual covered revenues or total annual 
covered expenses are, or are expected to be, $500,000 or more, a report 
must be filed.
    (2) BE-37, U.S. Airline Operators' Foreign Revenues and Expenses:
    (i) Who must report. A BE-37 report is required from all U.S. 
airline operators engaged in transportation of passengers and freight to 
and from the

[[Page 11]]

United States or between foreign points.
    (ii) Exemption. A U.S. person otherwise required to report is 
exempted from reporting if total annual covered revenues (i.e., revenues 
from carrying U.S. export freight to foreign countries) and total annual 
covered expenses (i.e., expenses incurred outside the United States and 
aircraft leasing expenses) are, or are expected to be, each less than 
$500,000. If either total annual covered revenues or total annual 
covered expenses are, or are expected to be, $500,000 or more, a report 
must be filed.
    (3) BE-9, Quarterly Survey of Foreign Airline Operators' Revenues 
and Expenses in the United States:
    (i) Who must report. A BE-9 report is required from U.S. offices, 
agents, or other representatives of foreign airlines that are engaged in 
transporting passengers or freight and express to or from the United 
States. If the U.S. office, agent, or other representative does not have 
all the information required, it must obtain the additional information 
from the foreign airline operator.
    (ii) Exemption. A U.S. person otherwise required to report is exempt 
from reporting if total annual covered revenues and total annual covered 
expenses incurred in the United States were each less than $5 million 
during the previous year and are expected to be less than $5 million 
during the current year. If either total annual covered revenues or 
total annual covered expenses were or are expected to be $5 million or 
more, a report must be filed.
    (4) BE-185, Quarterly Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Foreign Persons:
    (i) A BE-185, Quarterly Survey of Financial Services Transactions 
Between U.S. Financial Services Providers and Foreign Persons, will be 
conducted covering the first quarter of the 2007 calendar year and every 
quarter thereafter.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person who 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 sales of covered services to 
foreign persons that exceeded $20 million for the previous fiscal year 
or expects sales to exceed that amount during the current fiscal year, 
or had purchases of covered services from foreign persons that exceeded 
$15 million for the previous fiscal year or expects purchases to exceed 
that amount during the current fiscal year. These thresholds 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 thresholds are applied 
separately to sales and purchases, the mandatory reporting requirement 
may apply only to sales, only to purchases, or to both sales and 
purchases. Quarterly reports for a year may be required retroactively 
when it is determined that the exemption level has been exceeded.
    (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 records search.
    (ii) Reporters who 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.
    (2) Voluntary reporting. If a financial services provider or 
intermediary, or all of a firm's subsidiaries or parts combined that are 
financial services providers or intermediaries, had covered sales of $20 
million or less, or covered purchases of $15 million or less during the 
previous fiscal year, and if covered sales or purchases are not to 
expected to exceed these amounts in the current fiscal year, a person is 
requested to provide an estimate of the total for each type of service 
for the most recent quarter. Provision of this information is voluntary. 
The estimates may be based on the reasoned

[[Page 12]]

judgment of the reporting entity. Because these thresholds apply 
separately to sales and purchases, voluntary reporting may apply only to 
sales, only to purchases, or to both.
    (B) BE-185 definition of financial services provider. The definition 
of financial services provider used for this survey is identical in 
coverage to Sector 52 B 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 B Management of Companies 
and Enterprises) of the North American Industry Classification System, 
United States, 2002. 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); nondepository credit intermediation (including credit 
card issuing, sales financing, and other nondepository 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 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 funds 
(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.
    (C) Covered types of services. The BE-185 survey covers the 
following types of financial services transactions (purchases and/or 
sales) between U.S. financial services providers and foreign persons: 
Brokerage services related to equities transactions; other brokerage 
services; underwriting and private placement services; financial 
management services; 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.
    (ii) [Reserved]
    (5) BE-45, Quarterly Survey of Insurance Transactions by U.S. 
Insurance Companies with Foreign Persons:
    (i) A BE-45, Quarterly Survey of Insurance Transactions by U.S. 
Insurance Companies with Foreign Persons, will be conducted covering the 
first quarter of the 2004 calendar year and every quarter thereafter.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. insurance company whose covered transactions with foreign 
persons exceeded $8 million for the previous fiscal year or are expected 
to exceed that amount during the current fiscal year. This threshold is 
applied separately to each of the eight individual types of transactions 
covered by the survey rather than to the sum of the data for all eight 
types combined. Quarterly reports for a year may be required 
retroactively when it is determined that the exemption level has been 
exceeded.
    (2) Voluntary reporting. Reports are requested from each U.S. 
insurance company whose covered transactions with foreign persons were 
$8 million or less for the previous fiscal year and are not expected to 
exceed the $8 million amount during the current fiscal year. Provision 
of this information is voluntary. The estimates may be based on recall, 
without conducting a detailed records search.
    (B) Any person receiving a BE-45 survey form from BEA must complete 
all relevant parts of the form and return the form to BEA. A person not 
subject

[[Page 13]]

to the mandatory reporting requirement in paragraph (c)(5)(i)(A) of this 
section and is not filing information on a voluntary basis must only 
complete the ``Determination of reporting status'' and the 
``Certification'' sections of the survey. This requirement is necessary 
to ensure compliance with the reporting requirements and efficient 
administration of the survey by eliminating unnecessary followup 
contact.
    (C) Covered insurance transactions. The transactions covered by this 
survey are: reinsurance premiums received, reinsurance premiums paid, 
reinsurance losses paid, reinsurance losses recovered, primary insurance 
premiums received, primary insurance losses paid, auxiliary insurance 
services receipts, and auxiliary insurance services payments. (Auxiliary 
insurance services include agent's commissions, insurance brokering and 
agency services, insurance consulting services, evaluation and 
adjustment services, actuarial services, salvage administration 
services, and regulatory and monitoring services on indemnities and 
recovery services.)
    (ii) [Reserved]
    (6) BE-125, Quarterly Survey of Transactions in Selected Services 
and Intangible Assets with Foreign Persons:
    (i) A BE-125, Quarterly Survey of Transactions in Selected Services 
and Intangible Assets with Foreign Persons, will be conducted covering 
the first quarter of the 2007 calendar year and every quarter 
thereafter.
    (A) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person that: (a) Had sales of covered services or 
intangible assets to foreign persons that exceeded $6 million for the 
previous fiscal year or are expected to exceed that amount during the 
current fiscal year; or (b) had purchases of covered services or 
intangible assets from foreign persons that exceeded $4 million for the 
previous fiscal year or are expected to exceed that amount during the 
current fiscal year. Because the thresholds are applied separately to 
sales and purchases, the mandatory reporting requirement may apply only 
to sales, only to purchases, or to both sales and purchases. Quarterly 
reports for a year may be required retroactively when it is determined 
that the exemption level has been exceeded.
    (2) Voluntary reporting. Reports are requested from each U.S. person 
that had sales of covered services or intangible assets to foreign 
persons that were $6 million or less for the previous fiscal year and 
are expected to be less than or equal to that amount during the current 
fiscal year, or had purchases of covered services or intangible assets 
from foreign persons that were $4 million or less for the previous 
fiscal year and are expected to be less than or equal to that amount 
during the current fiscal year. Provision of this information is 
voluntary. The estimates may be based on recall, without conducting a 
detailed records search. Because these thresholds apply separately to 
sales and purchases, voluntary reporting may apply only to sales, only 
to purchases, or to both.
    (B) Any person receiving a BE-125 survey form from BEA must complete 
all relevant parts of the form and return the form to BEA. A person that 
is not subject to the mandatory reporting requirement in paragraph 
(c)(6)(i)(A)(1) of this section and is not filing information on a 
voluntary basis must complete Parts 1 and 2 of the survey. This 
requirement is necessary to ensure compliance with the reporting 
requirements and efficient administration of the survey by eliminating 
unnecessary follow-up contact.
    (C) Covered services and intangible assets. The BE-125 survey is 
intended to collect information on U.S. international trade in all types 
of services and intangible assets for which information is not collected 
in other BEA surveys and is not available to BEA from other sources. The 
major types of services transactions not covered by the BE-125 survey 
are travel, transportation, insurance (except for purchases of primary 
insurance), financial services (except for purchases by non-financial 
firms), and expenditures by students and medical patients who are 
studying or seeking treatment in a country different from their country 
of residence. Covered services are: Advertising services; accounting, 
auditing, and bookkeeping services; auxiliary insurance services; 
computer and data

[[Page 14]]

processing services; construction services; data base and other 
information services; educational and training services; engineering, 
architectural, and surveying services; financial services (purchases 
only, by companies or parts of companies that are not financial services 
providers); industrial engineering services; industrial-type 
maintenance, installation, alteration, and training services; legal 
services; management, consulting, and public relations services 
(including allocated expenses); merchanting services (sales only); 
mining services; operational leasing services; other trade-related 
services; performing arts, sports, and other live performances, 
presentations, and events; premiums paid on purchases of primary 
insurance; losses recovered on purchases of primary insurance; research, 
development, and testing services; telecommunications services; and 
other selected services. ``Other selected services'' includes, but is 
not limited to: Agricultural services; account collection services; 
disbursements to fund news-gathering costs of broadcasters; 
disbursements to fund news-gathering costs of print media; disbursements 
to fund production costs of motion pictures; disbursements to fund 
production costs of broadcast program material other than news; 
disbursements to maintain government tourism and business promotion 
offices; disbursements for sales promotion and representation; 
disbursements to participate in foreign trade shows (purchases only); 
employment agencies and temporary help supply services; language 
translation services; mailing, reproduction, and commercial art; 
management of health care facilities; salvage services; satellite 
photography and remote sensing/satellite imagery services; security 
services; space transport (includes satellite launches, transport of 
goods and people for scientific experiments, and space passenger 
transport); transcription services; and waste treatment and depollution 
services. The intangible assets covered by the BE-125 survey are rights 
related to: Industrial processes and products; books, compact discs, 
audio tapes and other copyrighted material and intellectual property; 
trademarks, brand names, and signatures; performances and events pre-
recorded on motion picture film and television tape, including digital 
recording; broadcast and recording of live performances and events; 
general use computer software; business format franchising fees; and 
other intangible assets, including indefeasible rights of users.
    (ii) [Reserved]

[51 FR 7772, Mar. 6, 1986, as amended at 59 FR 53935, Oct. 27, 1994; 68 
FR 69956, Dec. 16, 2003; 68 FR 75409, 75411, Dec. 31, 2003; 69 FR 50064, 
Aug. 13, 2004; 70 FR 48271, Aug. 17, 2005; 72 FR 5168, 5170, Feb. 5, 
2007]



Sec. 801.10  Rules and regulations for the BE-120, Benchmark Survey of 

Transactions in Selected Services and Intangible Assets with Foreign Persons.

    The BE-120, Benchmark Survey of Transactions in Selected Services 
and Intangible Assets with Foreign Persons, will be conducted covering 
fiscal year 2006 and every fifth year thereafter. All legal authorities, 
provisions, definitions, and requirements contained in Sec. 801.1 
through 801.9(a) are applicable to this survey. Additional rules and 
regulations for the BE-120 survey are given in paragraphs (a) through 
(c) of this section. More detailed instructions and descriptions of the 
individual types of transactions covered are given on the report form 
itself.
    (a) The BE-120 survey consists of two parts and three schedules. 
Part I requests information needed to determine whether a report is 
required and which schedules apply. Part II requests information about 
the reporting entity. Each of the three schedules covers one or more 
types of transactions and is to be completed only if the U.S. reporter 
has transactions of the type(s) covered by the particular schedule.
    (b) Who must report--(1) Mandatory reporting. A BE-120 report is 
required from each U.S. person that had sales to foreign persons that 
exceeded $2 million during the fiscal year covered of any of the types 
of services or intangible assets listed in paragraph (c) of this 
section, or had purchases from foreign persons that exceeded $1 million 
during the fiscal year covered of any of

[[Page 15]]

the types of services or intangible assets listed in paragraph (c) of 
this section.
    (i) The determination of whether a U.S. person is subject to this 
mandatory reporting requirement may be judgmental, that is, 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 records search. Because the 
reporting threshold ($2 million for sales and $1 million for purchases) 
applies separately to sales and purchases, the mandatory reporting 
requirement may apply only to sales, only to purchases, or to both sales 
and purchases.
    (ii) U.S. persons that file pursuant to this mandatory reporting 
requirement must complete Parts I and II of Form BE-120 and all 
applicable schedules. The total amounts of transactions applicable to a 
particular schedule are to be entered in the appropriate column(s) and, 
except for sales of merchanting services, these amounts must be 
distributed among the countries involved in the transactions. For sales 
of merchanting services, the data are not required to be reported by 
individual foreign country, although this information may be provided 
voluntarily.
    (iii) Application of the exemption levels to each covered 
transaction is indicated on the schedule for that particular type of 
transaction. It should be noted that an item other than sales or 
purchases may be used as the measure of a given type of transaction for 
purposes of determining whether the threshold for mandatory reporting of 
the transaction is exceeded.
    (2) Voluntary reporting. If, during the fiscal year covered, the 
U.S. person's total transactions (either sales or purchases) in any of 
the types of transactions listed in paragraph (c) of this section are $2 
million or less for sales or $1 million or less for purchases, the U.S. 
person is requested to provide an estimate of the total for each type of 
transaction. Provision of this information is voluntary. The estimates 
may be judgmental, that is, based on recall, without conducting a 
detailed records search. Because the exemption threshold applies 
separately to sales and purchases, the voluntary reporting option may 
apply only to sales, only to purchases, or to both sales and purchases.
    (3) Any U.S. person that receives the BE-120 survey form from BEA, 
but is not reporting data in either the mandatory or voluntary section 
of the form, must nevertheless provide information on the reason for not 
reporting. This requirement is necessary to ensure compliance with 
reporting requirements and efficient administration of the Act by 
eliminating unnecessary follow-up contact.
    (c) Covered types of services and intangible assets. The BE-120 
survey is intended to collect information on U.S. international trade in 
all types of services and intangible assets for which information is not 
collected in other BEA surveys and is not available to BEA from other 
sources. The major types of services transactions not covered by the BE-
120 survey are travel, transportation, insurance (except for purchases 
of primary insurance), financial services (except for purchases by non-
financial firms), and expenditures by students and medical patients who 
are studying or seeking treatment in a country different from their 
country of residence. Covered services are: Advertising services; 
accounting, auditing, and bookkeeping services; auxiliary insurance 
services; computer and data processing services; construction services; 
data base and other information services; educational and training 
services; engineering, architectural, and surveying services; financial 
services (purchases only, by companies or parts of companies that are 
not financial services providers); industrial engineering services; 
industrial-type maintenance, installation, alteration, and training 
services; legal services; management, consulting, and public relations 
services (including allocated expenses); merchanting services (sales 
only); mining services; operational leasing services; other trade-
related services; performing arts, sports, and other live performances, 
presentations, and events; premiums paid on purchases of primary 
insurance; losses recovered on purchases of primary insurance; research, 
development, and testing services; telecommunications services; and 
other selected services.

[[Page 16]]

``Other selected services'' includes, but is not limited to: Account 
collection services; disbursements to fund news-gathering costs of 
broadcasters; disbursements to fund news-gathering costs of print media; 
disbursements to fund production costs of motion pictures; disbursements 
to fund production costs of broadcast program material other than news; 
disbursements to maintain government tourism and business promotion 
offices; disbursements for sales promotion and representation; 
disbursements to participate in foreign trade shows (purchases only); 
employment agencies and temporary help supply services; language 
translation services; mailing, reproduction, and commercial art; medical 
services (non-patient--e.g., laboratory or diagnostic services); salvage 
services; satellite photography and remote sensing/satellite imagery 
services; security services; space transport (includes satellite 
launches, transport of goods and people for scientific experiments, and 
space passenger transport); transcription services; and waste treatment 
and depollution services. The intangible assets covered by the BE-120 
survey are rights related to: Industrial processes and products; books, 
compact discs, audio tapes and other copyrighted material and 
intellectual property; trademarks, brand names, and signatures; 
performances and events pre-recorded on motion picture film and 
television tape, including digital recording; broadcast and recording of 
live performances and events; general use computer software; business 
format franchising fees; and other intangible assets, including 
indefeasible rights of users.

[71 FR 75419, Dec. 15, 2006]



Sec. 801.11  Rules and regulations for the BE-80, Benchmark Survey of 

Financial Services Transactions Between U.S. Financial Services Providers and 

Unaffiliated Foreign Persons.

    A BE-80, Benchmark Survey of Financial Services Transactions Between 
U.S. Financial Services Providers and Unaffiliated Foreign Persons, will 
be conducted covering 1999 and every fifth year thereafter. All legal 
authorities, provisions, definitions, and requirements contained in 
Sec. Sec. 801.1 through 801.9 are applicable to this survey. Additional 
rules and regulations for the BE-80 survey are given in paragraphs (a) 
through (d) of this section. More detailed instructions are given on the 
report forms and instructions.
    (a) Who must report--(1) Mandatory reporting. Reports are required 
from each U.S. person who 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 who had transactions (either sales or 
purchases) directly with unaffiliated foreign persons in all financial 
services combined in excess of $3,000,000 during its fiscal year covered 
by the survey. The $3,000,000 threshold should be applied to financial 
services transactions with unaffiliated foreign persons by all part 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 who 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.
    (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. Because the $3,000,000 threshold applies separately to sales 
and purchases, this

[[Page 17]]

voluntary reporting option may apply only to sales, only to purchases, 
or to both.
    (b) BE-80 definition of financial services provider. The definition 
of financial services provider used for this survey is identical in 
coverage to 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, of the North American Industry Classification System, 
United States, 2002). 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); nondepository credit intermediation (including credit 
card issuing, sales financing, and other nondepository 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 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 funds 
(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.
    (c) Covered types of services. The BE-80 survey covers the following 
types of financial services transactions (purchases and/or sales) 
between U.S. financial services providers and unaffiliated foreign 
persons: Brokerage services related to equities transactions; other 
brokerage services; underwriting and private placement services; 
financial management services; 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. The BE-80 also covers total 
receipts and total payments for the above-listed types of financial 
services transactions with affiliated foreign parties (foreign 
affiliates and foreign parents).
    (d) What to file. (1) The BE-80 survey consists of Forms BE-80 (A) 
and BE-80(B). Before completing a form BE-80 (B), a consolidated U.S. 
enterprise (including the top U.S. parent and all of its subsidiaries 
and parts combined) must complete Form BE-80(A) to determine its 
reporting status. If the enterprise is subject to the mandatory 
reporting requirement, or if it is exempt from the mandatory reporting 
requirement but chooses to report data voluntarily, it should either:
    (i) File a separate Form BE-80(B) for each separately organized 
financial services subsidiary or part of a consolidated U.S. enterprise; 
or
    (ii) File a single BE-80(B) representing the sum of all covered 
transactions by all financial services subsidiaries or parts of the 
enterprise combined.
    (2) Reporters who receive the BE-80 survey from BEA but are not 
subject to the mandatory reporting requirements and choose not to report 
data voluntarily must complete and return to BEA the Exemption Claim.

[64 FR 59121, Nov. 2, 1999, as amended at 69 FR 69510, Nov. 30, 2004]



PART 806_DIRECT INVESTMENT SURVEYS--Table of Contents




Sec.
806.1 Purpose.
806.2 Recordkeeping requirements.
806.3 Reporting requirements.
806.4 Response required.

[[Page 18]]

806.5 Confidentiality.
806.6 Penalties.
806.7 General definitions.
806.8 Real estate.
806.9 Airlines and ship operators.
806.10 Determining place of residence and country of jurisdiction of 
          individuals.
806.11 Estates, trusts, and intermediaries.
806.12 Partnerships.
806.13 Miscellaneous.
806.14 U.S. direct investment abroad.
806.15 Foreign direct investment in the United States.
806.16 Rules and regulations for BE-10, Benchmark Survey of U.S. Direct 
          Investment Abroad--2004.
806.17 Rules and regulations for BE-12, 2007 Benchmark Survey of Foreign 
          Direct Investment in the United States.
806.18 OMB control numbers assigned to the Paperwork Reduction Act.

    Authority: 5 U.S.C. 301; 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); E.O. 12518 (3 CFR, 1985 Comp., p. 348).

    Source: 42 FR 64315, Dec. 22, 1977, unless otherwise noted.



Sec. 806.1  Purpose.

    The purpose of this part is to set forth the rules and regulations 
necessary to carry out the data collection program and analyses 
concerning direct investment as required by, or provided for in, the 
International Investment Survey Act of 1976 (Pub. L. 94-472, 90 Stat. 
2059, 22 U.S.C. 3101 to 3108), hereinafter ``the Act''. The overall 
purpose of the Act is to provide comprehensive and reliable information 
pertaining to international investment, including direct investment, and 
to do so with a minimum of burden on respondents and with no unnecessary 
duplication of effort.



Sec. 806.2  Recordkeeping requirements.

    In accordance with section 5(b)(1) of the Act (22 U.S.C. 3104) 
persons subject to the jurisdiction of the United States shall maintain 
any information (including journals or other books of original entry, 
minute books, stock transfer records, lists of shareholders, or 
financial statements) which is essential for carrying out the surveys 
and studies provided for by the Act.



Sec. 806.3  Reporting requirements.

    (a) In accordance with section 5 (b)(2) of the Act (22 U.S.C. 3104) 
persons 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.
    (b) Such reports may be required from among others, U.S. persons 
which have direct investment abroad, U.S. persons in which foreign 
persons have direct investment, U.S. intermediaries, and U.S. persons 
which assist or intervene in the purchase or sale of direct investment 
interests, such as real estate brokers and brokerage houses acting as 
managers of tender offers.



Sec. 806.4  Response required.

    Reports, as specified below, are required from all persons coming 
within the reporting requirements, whether or not they are contacted by 
BEA. In addition, any person BEA contacts, either by sending them report 
forms or buy written inquiry concerning the person's being subject to 
the reporting requirements of a survey conducted pursuant to this part 
must respond in writing. The reponse must be made by filing the properly 
completed report form, or by submitting in writing, or within 30 days of 
being contacted, a valid exemption claim (including the situation where 
the statistical data requested on the form are not applicable) or by 
certifying in writing to the fact that the person has no direct 
investments within the purview of the Act or the regulations contained 
herein. This requirement is necessary to ensure compliance with 
reporting requirements and efficient administration of the Act.



Sec. 806.5  Confidentiality.

    Information collected pursuant to Sec. 806.3 is confidential (see 
section 5(c) of the Act, 22 U.S.C. 3104).
    (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.

[[Page 19]]

    (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 Sec. 806.6.
    (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.



Sec. 806.6  Penalties.

    (a) Whoever fails to furnish any information required by the Act or 
required by Sec. 806.3 or to comply with any other rule, regulation, 
order or instruction promulgated under the Act may be subject to a civil 
penalty not exceeding $10,000 in a proceeding brought in an appropriate 
United States court and to injunctive relief commanding such person to 
comply, or both (see section 6(a) and (b) of the Act, 22 U.S.C. 3105).
    (b) Whoever willfully fails to submit any information required by 
the Act or required by Sec. 806.3 or willfully violates any other 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 imprisioned for not more than one year, or both. Any officer, 
director, employee, or agent of any corporation who knowingly 
participates in such violation, upon conviction, may be punished by a 
like fine, imprisonment, or both (see section 6(c) of the Act, 22 U.S.C. 
3105).
    (c) Any person who willfully violates Sec. 806.5 relating to 
confidentiality, shall, upon conviction, be fined not more than $10,000, 
in addition to any other penalty imposed by law (see section 5(d) of the 
Act, 22 U.S.C. 3104).



Sec. 806.7  General definitions.

    (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 profitmaking purposes or to otherwise secure 
economic advantage, and any ownership of any real estate;
    (g) Parent means a person of one country who, directly or 
indirectly, owns or controls 10 per centum or more of the voting stock 
of an incorporated business enterprise, or an equivalent ownership 
interest in an unincorporated business enterprise, which is located 
outside that country;
    (h) Affiliate means a business enterprise located in one country 
which is directly or indirectly owned or controlled by a person of 
another country to the extent of 10 per centum or more of its voting 
stock for an incorporated business or an equivalent interest for an 
unincorporated business, including a branch;
    (i) International investment means (1) the ownership or control, 
directly or indirectly, by contractual commitment

[[Page 20]]

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;
    (j) Direct investment means the ownership or control, directly or 
indirectly, by one person of 10 per centum or more of the voting 
securities of an incorporated business enterprise or an equivalent 
interest in an unincorporated business enterprise;
    (k) Portfolio investment means any international investment which is 
not direct investment;
    (l) Associated group means two or more persons who, by the 
appearance of their actions, by agreement, or by an understanding, 
exercise their voting privileges in a concerted manner to influence the 
management of a business enterprise. Each of the following are deemed to 
be an associated group:
    (1) Members of the same family,
    (2) A business enterprise and one or more of its officers and 
directors,
    (3) Members of a syndicate or joint venture, or
    (4) A corporation and its domestic subsidiaries;
    (m) Branch means the operations or activities conducted by a person 
in a different location in its own name rather than through an 
incorporated entity; and
    (n) Intermediary means an agent, nominee, manager, custodian, trust, 
or any person acting in a similar capacity.

[42 FR 64315, Dec. 22, 1977, as amended at 43 FR 54624, Nov. 22, 1978; 
46 FR 23226, Apr. 24, 1981]



Sec. 806.8  Real estate.

    Residential real estate held exclusively for personal use and not 
for profitmaking purposes is not subject to the reporting requirements 
of this part. A residence which was an owner's primary residence that is 
then leased by the owner while outside his/her country of usual 
residence but which the owner intends to reoccupy, is considered real 
estate held for personal use. Ownership of residential real estate by a 
corporation whose sole purpose is to hold the real estate and where the 
real estate is for the personal use of the individual owner(s) of the 
corporation, is considered real estate held for personal use. If a 
business enterprise, otherwise required to report, is in the form of 
real property not identifiable by name, reports are required to be filed 
by and in the name of the beneficial owner, or in the name of such 
beneficial owner by the intermediary of such beneficial owner.

[46 FR 23226, Apr. 24, 1981]



Sec. 806.9  Airlines and ship operators.

    Foreign stations, ticket offices, and terminal and port facilities 
of U.S. airlines and ship operators; and U.S. stations, ticket offices, 
and terminal and port facilities of foreign airlines and ship operators; 
which provide services only to their own operations are exempted from 
being reported. Reports are required when such affiliates produce 
significant revenues from services provided to unaffiliated persons.



Sec. 806.10  Determining place of residence and country of jurisdiction of 

individuals.

    An individual will be considered a resident of, and subject to the 
jurisdiction of, the country in which physically located, subject to the 
following qualifications:
    (a) Individuals who reside, or expect to reside, outside their 
country of citizenship for less than one year are considered to be 
residents of their country of citizenship.
    (b) Individuals who reside, or expect to reside, outside their 
country of citizenship for one year or more are considered to be 
residents of the country in which they are residing, except as provided 
in paragraph (c) of this section.
    (c) Notwithstanding paragraph (b) of this section, if an owner or 
employee of a business enterprise resides outside the country of 
location of the enterprise for one year or more for the purpose of 
furthering the business of the

[[Page 21]]

enterprise, and the country of the business enterprise is the country of 
citizenship of the owner then such owner or employee shall nevertheless 
be considered a resident of the country of citizenship provided there is 
the intent to return within a reasonable period of time.
    (d) Individuals and members of their immediate families who are 
residing outside their country of citizenship as a result of employment 
by the government of that country--diplomats, consular officials, 
members of the armed forces, etc.--are considered to be residents of 
their country of citizenship.



Sec. 806.11  Estates, trusts, and intermediaries.

    (a) An estate, either U.S. or foreign, is a person and therefore may 
have direct investment, and the estate, not the beneficiary, is 
considered to be the owner.
    (b) A trust, either U.S. or foreign, is a person, but is not a 
business enterprise. The trust shall be considered the same as an 
intermediary and reporting should be as outlined in paragraph (c) of 
this section. For reporting purposes, the beneficiary(ies) of the trust, 
or the creator(s) of the trust in the situation detailed below or if 
there is, or may be, a reversionary interest, shall be considered to be 
the owner(s) of the investments of the trust for determining the 
existence of direct investment. Where a corporation or other 
organization creates a trust designating its shareholders or members as 
beneficiaries, the creating corporation or organization shall be deemed 
to be the owner of the investments of the trust, or succeeding trusts 
where the presently existing trust has evolved out of a prior trust, for 
the purposes of determining the existence and reporting of direct 
investment.

This procedure is adopted in order to fulfill the statistical purposes 
of this part and does not imply that control over an enterprise owned or 
controlled by a trust is, or can be, exercised by the beneficiary(ies) 
or creator(s).
    (c) Intermediary. (1) If a particular U.S. direct investment abroad 
is held, administered, or managed by a U.S. intermediary, such 
intermediary shall be responsible for reporting the required information 
for, and in the name of, its principal or shall instruct the principal 
to submit the required information. Upon instructing the principal, the 
intermediary shall be released from further liability to report provided 
it has informed this bureau of the date such instructions were given and 
the name and address of the principal, and has supplied the principal 
with any information in the possession of, or which can be secured by, 
the intermediary, that is necessary to permit the principal to complete 
the required reports. When acting in the capacity of an intermediary, 
the accounts or transactions of the U.S. intermediary with the foreign 
affiliate shall be considered as accounts or transactions of the U.S. 
principal with the foreign affiliate. To the extent such transactions or 
accounts are unavailable to the principal, they may be required to be 
reported by the intermediary.
    (2) If a U.S. person holds a foreign affiliate through a foreign 
intermediary, the U.S. person will be considered to own the foreign 
affiliate directly and all accounts or transactions of the U.S. person 
with the intermediary will be considered to be with the foreign 
affiliate.
    (3) If a particular foreign direct investment in the United States 
is held, exercised, administered, or managed by a U.S. intermediary for 
the foreign beneficial owner, such intermediary shall be responsible for 
reporting the required information for, and in the name of, the U.S. 
affiliate, and shall report on behalf of the U.S. affiliate or shall 
instruct the U.S. affiliate to submit the required information. Upon so 
instructing the U.S. affiliate, the intermediary shall be released from 
further liability to report provided it has informed this Bureau of the 
date such instructions were given and the name and address of the U.S. 
affiliate, and has supplied the U.S. affiliate with any information in 
the possession of, or which can be secured by, the intermediary that is 
necessary to permit the U.S. affiliate to complete the required reports. 
When acting in the capacity of an intermediary, the accounts or 
transactions of the U.S. intermediary with a foreign beneficial

[[Page 22]]

owner shall be considered as accounts or transactions of the U.S. 
affiliate with the foreign beneficial owner. To the extent such 
transactions or accounts are unavailable to the U.S. affiliiate, they 
may be required to be reported by the intermediary.
    (4) If a foreign beneficial owner holds a U.S. affiliate through a 
foreign intermediary, the U.S. affiliate may report the intermediary as 
its foreign parent but, when requested, must also identify and furnish 
information concerning the foreign beneficial owner, if known, or if 
such information can be secured. Accounts or transactions of the U.S. 
affiliate with the foreign intermediary shall be considered as accounts 
or transactions of the U.S. affiliate with the foreign beneficial owner.

[42 FR 64315, Dec. 22, 1977, as amended at 43 FR 54624, Nov. 22, 1978]



Sec. 806.12  Partnerships.

    Limited partners do not have voting rights in a partnership and 
therefore cannot have a direct investment in a partnership; their 
investment is considered to be portfolio investment. Determination of 
the existence of direct investment in a partnership shall be based on 
the country of residence of, and the percentage control exercised by, 
the general partner(s), although the latter may differ from the 
financial interest of the general partners.



Sec. 806.13  Miscellaneous.

    (a) Accounting methods and records. Generally accepted U.S. 
accounting principles should be followed. Corporations should generally 
use the same methods and records that are used to generate reports to 
stockholders, unless otherwise specified in the reporting instructions 
for a given report form. Reports for unincorporated persons must be 
generated on an equivalent basis.
    (b) Annual stockholder's report. Business enterprises issuing annual 
reports to stockholders are requested to furnish a copy of their annual 
reports to this Bureau.
    (c) Required information not available. All reasonable efforts 
should be made to obtain information required for reporting. Every 
question on each form should be answered, except where specifically 
exempted. When only partial information is available, an appropriate 
indication should be given.
    (d) Estimates. If actual figures are not available, estimates should 
be supplied and labeled as such. When a data item cannot be fully 
subdivided as required, a total and an estimated breakdown of the total 
should be supplied.
    (e) Specify. When ``specify'' is included in certain data items, the 
type and dollar amount of the major items included must be given for at 
least the items mentioned in the line instruction.
    (f) Space on form insufficient. When space on a form is insufficient 
to permit a full answer to any item, the required information should be 
submitted on supplementary sheets, appropriately labeled and referenced 
to the item number and the form.
    (g) Extensions. Requests for an extension of a reporting deadline 
will not normally be granted. However, in hardship cases, written 
requests for an extension will be considered provided they are received 
15 days prior to the date of the report and enumerate substantive 
reasons necessitating the extension.
    (h) Number of copies. A single original copy of each report shall be 
filed with the Bureau of Economic Analysis; this should be the copy with 
the address label if such a labeled copy has been provided. In addition, 
each respondent must retain a copy of its report. Both copies are 
protected by law; see Sec. 806.5.
    (i) Other. Instructions concerning filing dates, where to send 
reports, and whom to contact concerning a given report are contained on 
each form. General inquiries should be directed to the:

U.S. Department of Commerce, Bureau of Economic Analysis, International 
Investment Division (BE-50), Washington, DC 20230.



Sec. 806.14  U.S. direct investment abroad.

    (a) Specific definitions--(1) U.S. direct investment abroad means 
the ownership or control, directly or indirectly, by one U.S. person of 
10 per centum or more of the voting securities of an incorporated 
foreign business enterprise or an equivalent interest in an 
unincorporated foreign business enterprise, including a branch.

[[Page 23]]

    (2) U.S. Reporter means the U.S. person which has direct investment 
in a foreign business enterprise, including a branch. If the U.S. person 
is an incorporated business enterprise, the U.S. Reporter is the fully 
consolidated U.S. domestic enterprise consisting of (i) the U.S. 
corporation whose voting securities are not owned more than 50 percent 
by another U.S. corporation, and (ii) proceeding down each ownership 
chain from that U.S. corporation, any U.S. corporation (including 
Domestic International Sales Corporations) whose voting securities are 
more than 50 percent owned by the U.S. corporation above it.
    (3) Foreign affiliate means an affiliate located outside the United 
States in which a U.S. person has direct investment.
    (4) Majority-owned foreign affiliate means a foreign affiliate in 
which the combined ``direct investment interest'' of all U.S. Reporters 
of the affiliate exceeds 50 per centum.
    (b) Foreign affiliate consolidation. In cases where the 
recordkeeping system of foreign affiliates makes it impossible or 
extremely difficult to file a separate report for each foreign 
affiliate, a U.S. Reporter may consolidate affiliates in the same 
country when the following conditions apply:
    (1) The affiliates are in the same BEA 3-digit industry as defined 
in the industry Classifications and Export and Import Trade 
Classifications Booklet; or
    (2) The affiliates are integral parts of the same business 
operation. For example, if German affiliate A manufactures tires and a 
majority of its sales are to German affiliate B which produces autos, 
then affiliates A and B may be consolidated.


Any affiliates consolidated shall thereafter be considered to be one 
affiliate and should be consolidated in the same manner for all reports 
required to be filed pursuant to this section.
    (c) Reports required. The place and time for filing, and specific 
instructions and definitions relating to, a given report form are given 
on the form. Reports are required even though a foreign affiliate may 
have been established, acquired, seized, liquidated, sold, expropriated, 
or inactivated during the reporting period.
    (d) Exemption levels. Exemption levels for individual report forms 
will normally be stated in terms of total assets, net sales or gross 
operating revenues excluding sales taxes, and net income after income 
taxes, whether positive or negative, although different or special 
criteria may be specified for a given report form. If any one of the 
three items exceeds the exemption level and if the statistical data 
requested in the report are applicable to the entity being reported, 
then a report must be filed. Since these items may not have to be 
reported on a given form, a U.S. Reporter claiming exemption from filing 
a given form must furnish a certification as to the levels of the items 
on which the exemption is based or must certify that the data requested 
are not applicable. The exemption-level tests shall be applied as 
outlined below.
    (1) For quarterly report forms, as to the assets test reports are 
required beginning with the quarter in which total assets exceed the 
exemption level; as to the test for sales (revenues) and net income 
after income taxes, reports are required for each quarter of a year in 
which the annual amount of these items exceeds or can be expected to 
exceed, the exemption level. Quarterly reports for a year may be 
required retroactively when it is determined that the exemption level 
has been exceeded.
    (2) For report forms requesting annual data after the close of the 
year in question, the test shall be whether any one of the three items 
exceeded the exemption level during that year.
    (3) For the semi-annual plant and equipment expenditures survey, 
which requests actual data for the past year and/or annual projections 
for the current and following year, the test will be made for each year 
as to whether any one of the three items exceeded, or is expected to 
exceed, the exemption level; data must be reported only for the year or 
years in which the exemption level is, or is expected to be, exceeded.

If total assets, sales or net income exceed the exemption level in a 
given year, it is deemed that the exemption level will also be exceeded 
in the following year.


[[Page 24]]



The number and title of each report form, its exemption level, and other 
reporting criteria, if any, pertaining to it, are given below.
    (e) Quarterly report form. BE-577--Transactions of U.S. Reporter 
with Foreign Affiliate: One report is required for each foreign 
affiliate exceeding an exemption level of $40,000,000 except that a 
report need not be filed by a U.S. Reporter to report direct 
transactions with one of its foreign affiliates in which it does not 
hold a direct equity interest unless an intercompany balance or fee and 
royalty receipts or payments for the quarter exceed $1,000,000.
    (f) Annual report forms. (1) BE-133B--Follow-up Schedule of 
Expenditures for property, Plant, and Equipment of U.S. Direct 
Investment Abroad: This is a schedule-type report form on which each 
majority-owned foreign affiliate exceeding an exemption level of 
$10,000,000 must be listed and the requested data given for each.
    (2) BE-133C--Schedule of Expenditures for Property, Plant, and 
Equipment of U.S. Direct Investment Abroad: This is a schedule-type 
report form on which each majority-owned foreign affiliate exceeding an 
exemption level of $10,000,000 must be listed and the requested data 
given for each.
    (3) BE-11--Annual survey of U.S. Direct Investment Abroad: A report, 
consisting of Form BE-11A and Form(s) BE-11B(LF)(Long Form), BE-
11B(SF)(Short Form), BE-11B(FN), BE-11B(EZ), and/or BE-11C, is required 
of each U.S. Reporter that, at the end of the Reporter's fiscal year, 
had a foreign affiliate reportable on Form BE-11B(LF), (SF), (FN), (EZ), 
or BE-11C. Forms required and the criteria for reporting on each are as 
follows:
    (i) Form BE-11A (Report for U.S. Reporter) must be filed by each 
U.S. person having a foreign affiliate reportable on Form BE-11B(LF), 
(SF), (FN), (EZ), or BE-11C. If the U.S. Reporter is a corporation, Form 
BE-11A is required to cover the fully consolidated U.S. domestic 
business enterprise. However, where a U.S. Reporter's primary line of 
business is not in banking (or related financial activities), but the 
Reporter also has ownership in a bank, the bank, including all of its 
domestic subsidiaries or units, must file on a separate Form BE-11A. The 
nonbanking U.S. operations not owned by the bank must also file on a 
Form BE-11A.
    (A) If for a U.S. Reporter any one of the following three items--
total assets, sales or gross operating revenues excluding sales taxes, 
or net income after provision for U.S. income taxes--was greater than 
$150 million (positive or negative) at the end of, or for, the 
Reporter's fiscal year, the U.S. Reporter must file a complete Form BE-
11A. It must also file a Form BE-11B(LF), (SF), (FN), (EZ), or BE-11C as 
applicable, for each nonexempt foreign affiliate.
    (B) If for a U.S. Reporter no one of the three items listed in 
paragraph (f)(3)(i)(A) of this section was greater than $150 million 
(positive or negative) at the end of, or for, the Reporter's fiscal 
year, the U.S. Reporter is required to file on Form BE-11A only items 1 
through 31 and Part IV. It must also file a Form BE-11B(LF), (SF), (FN), 
(EZ), or BE-11C as applicable, for each nonexempt foreign affiliate.
    (ii) Forms BE-11B(LF), (SF), and (EZ) (Report for Majority-owned 
Nonbank Foreign Affiliate of Nonbank U.S. Reporter).
    (A) A BE-11B(LF)(Long Form) must be filed for each majority-owned 
nonbank foreign affiliate of a nonbank U.S. Reporter for which any one 
of the three items--total assets, sales or gross operating revenues 
excluding sales taxes, or net income after provision for foreign income 
taxes--was greater than $150 million (positive or negative) at the end 
of, or for, the affiliate's fiscal year, unless the nonbank foreign 
affiliate is selected to be reported on Form BE-11B(EZ).
    (B) A BE-11B(SF)(Short Form) must be filed for each majority-owned 
nonbank foreign affiliate of a nonbank U.S. Reporter for which any one 
of the three items listed in paragraph (f)(3)(ii)(A) of this section was 
greater than $40 million (positive or negative), but for which no one of 
these items was greater than $150 million (positive or negative), at the 
end of, or for, the affiliate's fiscal year, unless the nonbank foreign 
affiliate is selected to be reported on Form BE-11B(EZ).

[[Page 25]]

    (C) A BE-11B(EZ) must be filed for each nonbank foreign affiliate of 
a nonbank U.S. Reporter that is selected to be reported on this form in 
lieu of Form BE-11B(LF) or Form BE-11B(SF).
    (iii) Form BE-11B(FN) (Report for Foreign Affiliate of Bank U.S. 
Reporter and Bank Affiliate of Nonbank U.S. Reporter) must be filed for 
1) each foreign affiliate (bank and nonbank) of a bank U.S. Reporter for 
which any one of the three items listed in paragraph (f)(3)(ii)(A) of 
this section was greater than $250 million (positive or negative) at the 
end of, or for, the affiliate's fiscal year and 2) each bank foreign 
affiliate of a nonbank U.S. Reporter for which any one of the three 
items listed in paragraph (f)(3)(ii)(A) of this section was greater than 
$250 million (positive or negative) at the end of, or for, the 
affiliate's fiscal year.
    (iv) Form BE-11C (Report for Minority-owned Nonbank Foreign 
Affiliate of Nonbank U.S. Reporter) must be filed for each minority-
owned nonbank foreign affiliate of a nonbank U.S. Reporter that is owned 
at least 20 percent, but not more than 50 percent, directly and/or 
indirectly, by all U.S. Reporters of the affiliate combined, and for 
which any one of the three items listed in paragraph (f)(3)(ii)(A) of 
this section was greater than $40 million (positive or negative) at the 
end of, or for, the affiliate's fiscal year. In addition, for the report 
covering fiscal year 2007 only, a Form BE-11C must be filed for each 
minority-owned nonbank foreign affiliate that is owned, directly or 
indirectly, at least 10 percent by one nonbank U.S. Reporter, but less 
than 20 percent by all nonbank U.S. Reporters of the affiliate combined, 
and for which any one of the three items listed in paragraph 
(f)(3)(ii)(A) of this section was greater than $100 million (positive or 
negative) at the end of, or for, the affiliate's fiscal year.
    (v) Based on the preceding, an affiliate is exempt from being 
reported if it meets any one of the following criteria:
    (A) For nonbank affiliates of nonbank U.S. Reporters, none of the 
three items listed in paragraph (f)(3)(ii)(A) of this section exceeds 
$40 million (positive or negative). However, affiliates that were 
established or acquired during the year and for which at least one of 
these items was greater than $10 million but not over $40 million must 
be listed, and key data items reported, on a supplement schedule on Form 
BE-11A.
    (B) For affiliates of bank U.S. Reporters and bank affiliates of 
nonbank U.S. Reporters, none of the three items listed in paragraph 
(f)(3)(ii)(A) of this section exceeds $250 million (positive or 
negative). However, affiliates that were established or acquired during 
the year and for which at least one of these items was greater than $10 
million but not over $250 million must be listed, and key data items 
reported, on a supplement schedule on Form BE-11A.
    (C) For nonbank foreign affiliates of nonbank U.S. Reporters, for 
fiscal year 2007 only, it is less than 20 percent owned, directly or 
indirectly, by all U.S. Reporters of the affiliate combined and none of 
the three items listed in paragraph (f)(3)(ii)(A) of this section 
exceeds $100 million (positive or negative).
    (D) For fiscal years other than 2007, it is less than 20 percent 
owned, directly or indirectly, by all U.S. Reporters of the affiliate 
combined.
    (vi) Notwithstanding paragraph (f)(3)(v) of this section, a Form BE-
11B(LF), (SF), (FN), (EZ) or BE-11C must be filed for a foreign 
affiliate of the U.S. Reporter that owns another non-exempt foreign 
affiliate of that U.S. Reporter, even if the foreign affiliate parent is 
otherwise exempt. That is, all affiliates upward in the chain of 
ownership must be reported.
    (g) Other report forms. (1) BE-507--Industry Classification 
Questionnaire: In general, U.S. Reporters and their foreign affiliates 
will each be assigned a BEA 3-digit industry code in the BE-10 Benchmark 
Surveys required by the Act to be conducted in 1982, 1989, and every 
fifth year thereafter. However, interim reports on Form BE-507 are 
required:
    (i) For each foreign affiliate newly established or acquired by a 
U.S. person on or after January 1, 1978; or
    (ii) For each U.S. person who becomes a U.S. Reporter on or after 
January 1, 1978 by virtue of establishing or acquiring a foreign 
affiliate; or

[[Page 26]]

    (iii) For an existing foreign affiliate or U.S. Reporter whose 
industry classification changes on or after January 1, 1978 so that a 
previous BE-507 report or the BE-10 report required to be filed for 1977 
does not accurately reflect the current industry classification of the 
entity.

For new U.S. Reporters or foreign affiliates, the BE-507 report must be 
filed only if one of the other reports must be filed and shall be 
submitted with the initial filing of the related report. For a change in 
an existing U.S. Reporter or foreign affiliate which is currently filing 
one of the other reports, the BE-507 report must be filed whenever it is 
determined that change from one 3-digit industry classification to 
another has occurred.
    (2) BE-10-Benchmark Survey of U.S. Direct Investment Abroad: Section 
4(b) of the Act (22 U.S.C. 3103) provides that a comprehensive benchmark 
survey of U.S. direct investment abroad will be conducted in 1982, 1989, 
and every fifth year thereafter. The survey, referred to as the ``BE-
10,'' consists of a Form BE-10A or BE-10A BANK for reporting information 
concerning the U.S. Reporter and Form(s) BE-10B(LF), BE-10B(SF), or BE-
10B BANK for reporting information concerning each foreign affiliate. 
Exemption levels, specific requirements for, and the year of coverage 
of, a given BE-10 survey may be found in Sec. 806.16.

[42 FR 64315, Dec. 22, 1977]

    Editorial Note: For Federal Register citations affecting Sec. 
806.14, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 806.15  Foreign direct investment in the United States.

    (a) Specific definitions--(1) Foreign direct investment in the 
United States means the ownership or control, directly or indirectly, by 
one foreign person of 10 per centum or more of the voting securities of 
an incorporated U.S. business enterprise or an equivalent interest in an 
unincorporated U.S. business enterprise, including a branch.
    (2) U.S. affiliate means an affiliate located in the United States 
in which a foreign person has a direct investment.
    (3) Foreign parent means the foreign person, or the first person 
outside the United States in a foreign chain of ownership, which has 
direct investment in a U.S. business enterprise, including a branch.
    (4) Affiliated foreign group means (i) the foreign parent, (ii) any 
foreign person, proceeding up the foreign parent's ownership chain, 
which owns more than 50 per centum of the person below it up to and 
including that person which is not owned more than 50 per centum by 
another foreign person, and (iii) any foreign person, proceeding down 
the ownership chain(s) of each of these members, which is owned more 
than 50 per centum by the person above it.
    (5) Foreign affiliate of foreign parent means, with reference to a 
given U.S. affiliate, any member of the affiliated foreign group owning 
the affiliate that is not a foreign parent of the affiliate.
    (6) Ultimate beneficial owner (UBO) is that person, proceeding up 
the ownership chain beginning with and including the foreign parent, 
that is not more than 50 percent owned or controlled by another person. 
(An owner who creates a trust, proxy, power of attorney, arrangement, or 
device with the purpose or effect of divesting such owner of the 
ownership of an equity interest as part of a plan or scheme to avoid 
reporting information, is deemed to be the owner of the equity 
interest.)
    (b) Beneficial, not record, ownership is the basis of the reporting 
criteria. In those cases where a U.S. affiliate is also required to 
identify the ultimate beneficial owner (UBO) of the foreign investment, 
if the UBO is an individual, only the country of location of the 
individual must be given.
    (c) Bearer shares. If the ownership in a U.S. affiliate by any owner 
in the ownership chain from the U.S. affiliate up to and including the 
ultimate beneficial owner (UBO) is represented by bearer shares, the 
requirement to disclose the information regarding the UBO remains with 
the reporting U.S. affiliate, except where a company in the ownership 
chain has publicly traded bearer shares. In that case, identification of 
the UBO may stop with the identification of the company whose

[[Page 27]]

capital stock is represented by the publicly traded bearer shares. For 
closely held companies with nonpublicly traded bearer shares, 
identifying the foreign parent or the UBO as ``bearer shares'' is not an 
acceptable response. The U.S. affiliate must pursue the identification 
of the UBO through managing directors or any other official or 
intermediary.
    (d) Aggregation of real estate investments. A foreign person holding 
real estate investments that are foreign direct investments in the 
United States must aggregate all such holdings for the purpose of 
applying the exemption level tests. If the aggregate of such holdings 
exceeds one or more of the exemption levels, then the holdings must be 
reported even if they individually would be exempt.
    (e) Consolidated reporting by U.S. affiliates. A U.S. affiliate 
shall file on a fully consolidated basis, including in the consolidation 
all other U.S. affiliates in which it directly or indirectly owns more 
than 50 per centum of the outstanding voting stock, unless the 
instructions for a given report form specifically provide otherwise. 
However, separate reports may be filed where a given U.S. affiliate is 
not normally consolidated due to unrelated operations or lack of 
control, provided written permission has been requested from and granted 
by BEA.
    (f) The place and time for filing, and specific instructions and 
definitions relating to, a given report form will be given on the report 
form. Reports are required even though the foreign person's equity 
interest in the U.S. business enterprise may have been established, 
acquired, liquidated, or sold during the reporting period.
    (g) Exemption levels. Exemption levels for individual report forms 
will normally be stated in terms of total assets, sales or gross 
operating revenues excluding sales taxes, and net income after income 
taxes, whether positive or negative, although different or special 
criteria may be specified for a given report form. If any one of the 
three items exceeds the exemption level and if the statistical data 
requested in the report are applicable to the entity being reported, 
then a report must be filed. Since these items may not have to be 
reported on a given form, a person claiming exemption from filing a 
given report form must furnish a certification as to the levels of the 
items on which the exemption is based or must certify that the data 
requested are not applicable. The exemption level tests shall be applied 
as outlined below.
    (1) For quarterly report forms, as to the assets test, reports are 
required beginning with the quarter in which total assets exceed the 
exemption level; as to the test for sales (revenues) and net income 
after income taxes, reports are required for each quarter of a year in 
which the annual amount of these items exceeds or can be expected to 
exceed the exemption level. Quarterly reports for a year may be required 
retroactively when it is determined that the exemption level has been 
exceeded.
    (2) For report forms requesting annual data after the close of the 
year in question, the test shall be whether any one of the three items 
exceeded the exemption level during that year.


If total assets, sales or net income exceed the exemption level in a 
given year, it is deemed that the exemption level will also be exceeded 
in the following year.
    The number and title of each report form, its exemption level and 
other reporting criteria, if any, pertaining to it, are given below.
    (h) Quarterly report forms. (1) BE-605--Transactions of U.S. 
Affiliate, Except a U.S. Banking Affiliate, With Foreign Parent: One 
report is required for each U.S. affiliate exceeding an exemption level 
of $30,000,000, that does not qualify for reporting on form BE-605 Bank.
    (2) BE-605 Bank--Transactions of U.S. Banking Affiliate with Foreign 
Parent: One report is required for each U.S. banking affiliate or U.S. 
bank holding company affiliate, including all of the subsidiaries and 
units of the bank holding company, exceeding an exemption level of 
$30,000,000.
    (i) Annual report form. BE-15-Annual Survey of Foreign Direct 
Investment in the United States: One report is required for each 
consolidated U.S. affiliate, except a U.S. banking affiliate or U.S. 
bank holding company affiliate (including all of the subsidiaries and 
units of the bank holding company), exceeding an exemption level of $30

[[Page 28]]

million. A long form, BE-15(LF), must be filed by each nonbank majority-
owned U.S. affiliate (a ``majority-owned'' U.S. affiliate is one in 
which the combined direct and indirect ownership interests of all 
foreign parents of the U.S. affiliate exceed 50 percent) for which at 
least one of the three items-total assets, sales or gross operating 
revenues excluding sales taxes, or net income after provision for U.S. 
income taxes-exceeds $125 million (positive or negative), unless the 
nonbank majority-owned U.S. affiliate is selected to file a BE-15(EZ) 
form. A short form, BE-15(SF), must be filed by each nonbank majority-
owned U.S. affiliate for which at least one of the three items-total 
assets, sales or gross operating revenues excluding sales taxes, or net 
income after provision for U.S. income taxes-exceeds $30 million but no 
one item exceeds $125 million (positive or negative), and by each 
nonbank minority-owned U.S. affiliate (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) for which at least one of the three items-total assets, sales or 
gross operating revenues excluding sales taxes, or net income after 
provision for U.S. income taxes-exceeds $30 million (positive or 
negative), unless the nonbank U.S. affiliate is selected to file a BE-
15(EZ) form. A BE-15(EZ) form must be filed by each nonbank U.S. 
affiliate that is selected to file this form in lieu of filing the BE-
15(LF) or BE-15(SF). A BE-15 Supplement C (Exemption Claim) must be 
filed by each nonbank U.S. affiliate to claim exemption from filing a 
BE-15(LF), BE-15(SF), or BE-15(EZ). Following an initial filing, the BE-
15 Supplement C is not required annually from those nonbank U.S. 
affiliates that meet the stated exemption criteria from year to year.
    (j) Other report forms. (1) BE-607--Industry Classification 
Questionnaire: In general, a U.S. affiliate will be assigned a BEA 3-
digit industry code in the BE-12 Benchmark Surveys required by the Act 
to be conducted in 1980, 1987, and every fifth year thereafter. However, 
interim reports on Form BE-607 are required:
    (i) For each U.S. affiliate newly established or acquired by a 
foreign person; or
    (ii) For an existing U.S. affiliate whose industry classification 
changes so that either a previous BE-607 report or the last BE-12 report 
required to be filed does not accurately reflect the current industry 
classification of the U.S. affiliate.


For new U.S. affiliates, the BE-607 report must be filed only if the 
affiliate must file one of the other reports and shall be submitted with 
the initial filing of the related report. For a change in an existing 
U.S. affiliate which is currently filing one of the other reports, the 
BE-607 report must be filed whenever it is determined that a change from 
one BEA 3-digit industry classification to another has occurred.
    (2) BE-12--Benchmark Survey of Foreign Direct Investment in the 
United States: Section 4b of the Act (22 U.S.C. 3103) provides that a 
comprehensive benchmark survey of foreign direct investment in the 
United States shall be conducted in 1980, 1987, and every fifth year 
thereafter. The survey is referred to as the ``BE-12''. Exemption 
levels, specific requirements for, and the year of coverage of, a given 
BE-12 Survey may be found in Sec. 806.17.
    (3) BE-13--Initial Report on a Foreign Person's Direct or Indirect 
Acquisition, Establishment, or Purchase of the Operating Assets, of a 
U.S. Business Enterprise, Including Real Estate. This report is to be 
filed either:
    (i) By a U.S. business enterprise when a foreign person establishes 
or acquires directly, or indirectly through an existing U.S. affiliate, 
a 10 percent or more voting interest in that enterprise, including an 
enterprise that results from the direct or indirect acquisition by a 
foreign person of a business segment or operating unit of an existing 
U.S. business enterprise that is then organized as a separate legal 
entity; or
    (ii) By the existing U.S. affiliate of a foreign person when it 
acquires a U.S. business enterprise, or a business segment or operating 
unit of a U.S. business enterprise, that the existing U.S. affiliate 
merges into its own operations rather than continuing or organizing as a 
separate legal entity.

[[Page 29]]


A separate report must be filed for each foreign parent or existing U.S. 
affiliate that is a party to the transaction.

                        Exclusions and Exemptions

    (a) Residential real estate held exclusively for personal use and 
not for profitmaking purposes is not subject to the reporting 
requirements. A residence which is an owner's primary residence that is 
then leased by the owner while outside the United States but which the 
owner intends to reoccupy, is considered real estate held for personal 
use. Ownership of residential real estate by a corporation whose sole 
purpose is to hold the real estate and where the real estate is for the 
personal use of the individual owner(s) of the corporation, is 
considered real estate held for personal use.
    (b) An existing U.S. affiliate is exempt from reporting the 
acquisition of either a U.S. business enterprise, or a business segment 
or operating unit of a U.S. business enterprise, that it then merges 
into its own operations, if the total cost of the acquisition was 
$3,000,000 or less and does not involve the purchase of 200 acres or 
more of U.S. land. (If the acquisition involves the purchase of 200 
acres or more of U.S. land, it must be reported regardless of the total 
cost of the acquisition.)
    (c) An established or acquired U.S. business enterprise, as 
consolidated, is exempt if its total assets (not the foreign parent's or 
existing U.S. affiliate's share) at the time of acquisition or 
immediately after being established were $3,000,000 or less and it does 
not own 200 acres or more of U.S. land. (If it owns 200 acres or more of 
U.S. land, it must report regardless of the value of total assets.)

If exempt under (b) or (c), the existing U.S. affiliate or the 
established or acquired U.S. business enterprise must, nevertheless, 
file an ``Exemption Claim, Form BE-13'' to validate the exemption.
    (4) Form BE-14--Report by a U.S. Person Who Assists or Intervenes in 
the Acquisition of a U.S. Business Enterprise by, or Who Enters into a 
Joint Venture With, a Foreign Person--to be completed either by:
    (i) A U.S. person--including, but not limited to, an intermediary, a 
real estate broker, business broker, and a brokerage house--who assists 
or intervenes in the sale to, or purchase by, a foreign person or a U.S. 
affiliate of a foreign person, of a 10 percent or more voting interest 
in a U.S. business enterprise, including real estate; or
    (ii) A U.S. person who enters into a joint venture with a foreign 
person to create a U.S. business enterprise.


A U.S. person is required to report only when such a foreign involvement 
is known; it is not incumbent upon the U.S. person to ascertain the 
foreign status of a person involved in an acquisition unless the U.S. 
person has reason to believe the acquiring party may be a foreign 
person. If a U.S. person required to file a Form BE-14 files Form BE-13 
relating to the acquisition of the U.S. business enterprise by a foreign 
person, then Form BE-14 is not required.

    Total Exemptions--(a) Residential real estate held exclusively for 
personal use and not for profitmaking purposes is not subject to the 
reporting requirements. A residence which is an owner's primary 
residence that is then leased by the owner while outside the United 
States but which the owner intends to reoccupy, is considered real 
estate held for personal use. Ownership of residential real estate by a 
corporation whose sole purpose is to hold the real estate and where the 
real estate is for the personal use of the individual owner(s) of the 
corporation, is considered real estate for personal use.
    (b) If the U.S. business enterprise acquired has total assets of, or 
if the capitalization (including loans from the joint venturers) of the 
joint venture to be established is, $3,000,000 or less, than no report 
is required, provided the enterprise does not own 200 acres or more of 
U.S. land. (If it owns 200 acres or more of U.S. land, a report is 
required regardless of the value of total assets.)

    (5) BE-21--Survey of Foreign Direct Investment in U.S. Business 
Enterprises Engaged in the Processing, Packaging, or Wholesale 
Distribution of Fish or Seafoods. Reporting consists of:
    (i) Form BE-21P--Identification Questionnaire. A completed 
questionnaire is required from (a) each U.S. business enterprise that is 
a U.S. affiliate of a foreign person and that engaged in the processing, 
packaging, or wholesale distribution of fish or seafoods, and (b) any 
person to whom a questionnaire is sent by BEA.
    (ii) Form BE-21A--Report for a U.S. Business Enterprise that is a 
U.S. Affiliate of a Foreign Person. A completed report is required from 
each U.S. business enterprise that is a U.S. affiliate of a foreign 
person and that engaged in

[[Page 30]]

the processing, packaging, or wholesale distribution of fish or 
seafoods.
    (iii) Form BE-21B--Report for each Establishment of a U.S. Business 
Enterprise that is a U.S. Affiliate of a Foreign Person. A completed 
report is required for each establishment, of the U.S. affiliate, that 
engaged in the processing, packaging, or wholesale distribution of fish 
or seafoods.

[42 FR 64315, Dec. 22, 1977; 43 FR 2169, Jan. 16, 1978, as amended at 44 
FR 32586, June 6, 1979; 46 FR 23226, Apr. 24, 1981; 46 FR 60191, Dec. 9, 
1981; 47 FR 13139, Mar. 29, 1982; 47 FR 14138, Apr. 2, 1982; 49 FR 3174, 
Jan. 26, 1984; 53 FR 1016, Jan. 15, 1988; 63 FR 16892, Apr. 7, 1998; 68 
FR 3813, Jan. 27, 2003; 68 FR 67940, Dec. 5, 2003]



Sec. 806.16  Rules and regulations for BE-10, Benchmark Survey of U.S. Direct 

Investment Abroad--2004.

    A BE-10, Benchmark Survey of U.S. Direct Investment Abroad will be 
conducted covering 2004. All legal authorities, provisions, definitions, 
and requirements contained in Sec. 806.1 through Sec. 806.13 and Sec. 
806.14(a) through (d) are applicable to this survey. Specific additional 
rules and regulations for the BE-10 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-10, Benchmark Survey of U.S. 
Direct Investment Abroad--2004, contained in this section, whether or 
not they are contacted by BEA. Also, a person, or their agent, that is 
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 
Sec. 806.4. This may be accomplished by:
    (1) Certifying in writing, by the due date of the survey, to the 
fact that the person had no direct investment within the purview of the 
reporting requirements of the BE-10 survey;
    (2) Completing and returning the ``BE-10 Claim for Not Filing'' by 
the due date of the survey; or
    (3) Filing the properly completed BE-10 report (comprising Form BE-
10A or BE-10A BANK and Forms BE-10B(LF), BE-10B(SF), BE-10B Mini and/or 
BE-10B BANK) by May 31, 2005, or June 30, 2005, as required.
    (b) Who must report. (1) 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--at any time 
during the U.S. person's 2004 fiscal year.
    (2) If the U.S. person had no foreign affiliates during its 2004 
fiscal year, a ``BE-10 Claim for Not Filing'' must be filed by the due 
date of the survey; no other forms in the survey are required. If the 
U.S. person had any foreign affiliates during its 2004 fiscal year, a 
BE-10 report is required and the U.S. person is a U.S. Reporter in this 
survey.
    (3) Reports are required even if the foreign business enterprise was 
established, acquired, seized, liquidated, sold, expropriated, or 
inactivated during the U.S. person's 2004 fiscal year.
    (4) The amount and type of data required to be reported vary 
according to the size of the U.S. Reporters or foreign affiliates, 
whether they are banks or nonbanks, and, for foreign affiliates, whether 
they are majority-owned or minority-owned by U.S. direct investors. For 
purposes of the BE-10 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; all other 
affiliates are referred to as ``minority-owned'' affiliates. In 
addition, a ``bank'' is a business entity engaged in deposit banking or 
closely related functions, including commercial banks, Edge Act 
corporations, foreign branches and agencies of U.S. banks whether or not 
they accept deposits abroad, savings and loans, savings banks, bank 
holding companies, and financial holding companies. Elsewhere in this 
section, when ``bank'' is used, it refers to all such organizations.
    (c) Forms for nonbank U.S. Reporters and foreign affiliates--(1) 
Form BE-10A (Report for nonbank U.S. Reporter). A BE-10A report must be 
completed by a U.S. Reporter that is not a bank. If the U.S. Reporter is 
a corporation, Form

[[Page 31]]

BE-10A is required to cover the fully consolidated U.S. domestic 
business enterprise. However, where a U.S. Reporter's primary line of 
business is not in banking (or related financial activities), but the 
Reporter also has ownership in a bank, the bank, including all of its 
domestic subsidiaries or units, must file on the BE-10A BANK form and 
the nonbanking U.S. operations not owned by the bank must file on the 
BE-10A.
    (i) If for a nonbank U.S. Reporter any one of the following three 
items--total assets, sales or gross operating revenues excluding sales 
taxes, or net income after provision for U.S. income taxes--was greater 
than $150 million (positive or negative) at any time during the 
Reporter's 2004 fiscal year, the U.S. Reporter must file a complete Form 
BE-10A and, as applicable, a BE-10A SUPPLEMENT A listing each, if any, 
foreign affiliate that is exempt from being reported on Form BE-10B(LF), 
BE-10B(SF), BE-10B Mini, or BE-10B BANK. It must also file a Form BE-
10B(LF), BE-10B(SF), BE-10B Mini, or BE-10B BANK, as appropriate, for 
each nonexempt foreign affiliate.
    (ii) If for a nonbank U.S. Reporter none of the three items listed 
in paragraph (c)(1)(i) of this section was greater than $150 million 
(positive or negative) at any time during the Reporter's 2004 fiscal 
year, the U.S. Reporter is required to file on Form BE-10A only certain 
items as designated on the form and, as applicable, a BE-10A SUPPLEMENT 
A listing each, if any, foreign affiliate that is exempt from being 
reported on Form BE-10B(LF), BE-10B(SF), BE-10B Mini, or BE-10B BANK. It 
must also file a Form BE-10B(LF), BE-10B(SF), BE-10B Mini, or BE-10B 
BANK, as appropriate, for each nonexempt foreign affiliate.
    (2) Form BE-1OB(LF), (SF), or Mini (Report for nonbank foreign 
affiliate). (i) A BE-10B(LF) (Long Form) must be filed for each 
majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter, 
whether held directly or indirectly, for which any one of the three 
items--total assets, sales or gross operating revenues excluding sales 
taxes, or net income after provision for foreign income taxes--was 
greater than $150 million (positive or negative) at any time during the 
affiliate's 2004 fiscal year.
    (ii) A BE-10B(SF) (Short Form) must be filed:
    (A) For each majority-owned nonbank foreign affiliate of a nonbank 
U.S. Reporter, whether held directly or indirectly, for which any one of 
the three items listed in paragraph (c)(2)(i) of this section was 
greater than $25 million but for which none of these items was greater 
than $150 million (positive or negative), at any time during the 
affiliate's 2004 fiscal year, and
    (B) For each minority-owned nonbank foreign affiliate of a nonbank 
U.S. Reporter, whether held directly or indirectly, for which any one of 
the three items listed in paragraph (c)(2)(i) of this section was 
greater than $25 million (positive or negative), at any time during the 
affiliate's 2004 fiscal year, and
    (C) For each nonbank foreign affiliate of a U.S. bank Reporter, 
whether held directly or indirectly, for which any one of the three 
items listed in paragraph (c)(2)(i) of this section was greater than $25 
million (positive or negative), at any time during the affiliate's 2004 
fiscal year.
    (iii) A BE-10B Mini must be filed for each nonbank foreign 
affiliate, whether held directly or indirectly, for which any one of the 
three items listed in paragraph (c)(2)(i) of this section was greater 
than $10 million but for which none of these items was greater than $25 
million (positive or negative), at any time during the affiliate's 2004 
fiscal year.
    (iv) Notwithstanding paragraphs (c)(2)(i), (c)(2)(ii), and 
(c)(2)(iii) of this section, a Form BE-10B(LF), (SF), or Mini must be 
filed for a foreign affiliate of the U.S. Reporter that owns another 
nonexempt foreign affiliate of that U.S. Reporter, even if the foreign 
affiliate parent is otherwise exempt, i.e., a Form BE-10B(LF), (SF), 
Mini, or BANK must be filed for all affiliates upward in a chain of 
ownership.
    (d) Forms for U.S. Reporters and foreign affiliates that are banks, 
bank holding companies, or financial holding companies--(1) Form BE-10A 
BANK (Report for a U.S. Reporter that is a bank). A BE-10A BANK report 
must be completed by a

[[Page 32]]

U.S. Reporter that is a bank. For purposes of filing Form BE-10A BANK, 
the U.S. Reporter is deemed to be the fully consolidated U.S. domestic 
business enterprise and all required data on the form shall be for the 
fully consolidated domestic entity.
    (i) If a U.S. bank had any foreign affiliates at any time during its 
2004 fiscal year, whether a bank or nonbank and whether held directly or 
indirectly, for which any one of the three items--total assets, sales or 
gross operating revenues excluding sales taxes, or net income after 
provision for foreign income taxes--was greater than $10 million 
(positive or negative) at any time during the affiliate's 2004 fiscal 
year, the U.S. Reporter must file a Form BE-10A BANK and, as applicable, 
a BE-10A BANK SUPPLEMENT A listing each, if any, foreign affiliate, 
whether bank or nonbank, that is exempt from being reported on Form BE-
10B(SF), BE-10B Mini, or BE-10B BANK. It must also file a Form BE-
10B(SF) or BE-10B Mini for each nonexempt nonbank foreign affiliate and 
a Form BE-10B BANK for each nonexempt bank foreign affiliate.
    (ii) If the U.S. bank Reporter had no foreign affiliates for which 
any one of the three items listed in paragraph (d)(2)(i) of this section 
was greater than $10 million (positive or negative) at any time during 
the affiliate's 2004 fiscal year, the U.S. Reporter must file a Form BE-
10A BANK and a BE-10A BANK SUPPLEMENT A, listing all foreign affiliates 
exempt from being reported on Form BE-10B(SF), BE-10B Mini, or BE-10B 
BANK.
    (2) Form BE-10B BANK (Report for a foreign affiliate that is a 
bank). (i) A BE-10B BANK report must be filed for each foreign bank 
affiliate of a bank or nonbank U.S. Reporter, whether directly or 
indirectly held, for which any one of the three items--total assets, 
sales or gross operating revenues excluding sales taxes, or net income 
after provision for foreign income taxes--was greater than $10 million 
(positive or negative) at any time during the affiliate's 2004 fiscal 
year.
    (ii) Notwithstanding paragraph (d)(3)(i) of this section, a Form BE-
10B BANK must be filed for a foreign bank affiliate of the U.S. Reporter 
that owns another nonexempt foreign affiliate of that U.S. Reporter, 
even if the foreign affiliate parent is otherwise exempt, i.e., a Form 
BE-10B(LF), (SF), Mini, or BANK must be filed for all affiliates upward 
in a chain of ownership. However, a Form BE-10B BANK is not required to 
be filed for a foreign bank affiliate in which the U.S. Reporter holds 
only an indirect ownership interest of 50 percent or less and that does 
not own a reportable nonbank foreign affiliate, but the indirectly owned 
bank affiliate must be listed on the BE-10A BANK SUPPLEMENT A.
    (e) Due date. A fully completed and certified BE-10 report 
comprising Form BE-10A or 10A BANK and Form(s) BE-10B(LF), (SF), Mini, 
or BANK (as required) is due to be filed with BEA not later than May 31, 
2005 for those U.S. Reporters filing fewer than 50, and June 30, 2005 
for those U.S. Reporters filing 50 or more, Forms BE-10B(LF), (SF), 
Mini, or BANK.

[69 FR 70545, Dec. 7, 2004]



Sec. 806.17  Rules and regulations for BE-12, 2007 Benchmark Survey of Foreign 

Direct Investment in the United States.

    A BE-12, Benchmark Survey of Foreign Direct Investment in the United 
States will be conducted covering 2007. All legal authorities, 
provisions, definitions, and requirements contained in Sec. 806.1 
through Sec. 806.13 and Sec. 806.15(a) through (g) are applicable to 
this survey. Specific additional rules and regulations for the BE-12 
survey are given in this section.
    (a) Response required. A response is required from persons subject 
to the reporting requirements of the BE-12, 2007 Benchmark Survey of 
Foreign Direct Investment in the United States, 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 by written inquiry, must respond pursuant 
to Sec. 806.4. This may be accomplished by:
    (1) Filing the properly completed BE-12 report--Form BE-12(LF), Form 
BE-12(SF), Form BE-12 Mini, or Form BE-12 Bank, by May 31, 2008, as 
required;
    (2) Completing and returning the Form BE-12 Claim for Not Filing by 
May 31, 2008; or

[[Page 33]]

    (3) Certifying in writing, by May 31, 2008, to the fact that the 
person is not a U.S. affiliate of a foreign person and not subject to 
the reporting requirements of the BE-12 survey.
    (b) Who must report. A BE-12 report is required for each U.S. 
affiliate, 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 2007. A BE-12 report is required even if the 
foreign person's ownership interest in the U.S. business enterprise was 
established or acquired during the 2007 reporting year. Beneficial, not 
record, ownership is the basis of the reporting criteria.
    (c) Forms to be filed--(1) Form BE-12(LF) (Long Form) 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:
    (i) It is not a bank and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) 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 $175 million (positive or negative) at the end of, or for, 
its fiscal year that ended in calendar year 2007:
    (A) Total assets (do not net out liabilities);
    (B) Sales or gross operating revenues, excluding sales taxes; or
    (C) Net income after provision for U.S. income taxes.
    (2) Form BE-12(SF) (Short Form) must be completed by a U.S. 
affiliate if:
    (i) It is not a bank and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) 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)(ii) of this section for a majority-owned U.S. affiliate 
(not just the foreign parent's share), was greater than $40 million 
(positive or negative) but none of these items was greater than $175 
million (positive or negative) at the end of, or for, its fiscal year 
that ended in calendar year 2007.
    (iii) 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)(ii) of this section for a minority-owned U.S. affiliate 
(not just the foreign parent's share), was greater than $40 million 
(positive or negative) at the end of, or for, its fiscal year that ended 
in calendar year 2007. (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.)
    (3) Form BE-12 Mini must be completed by a U.S. affiliate if:
    (i) It is not a bank, and is not owned directly or indirectly by a 
U.S. bank holding company or financial holding company, and
    (ii) 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)(ii) of this section for a U.S. affiliate (not just the 
foreign parent's share), was greater than $40 million (positive or 
negative) at the end of, or for, its fiscal year that ended in calendar 
year 2007.
    (4) Form BE-12 Bank must be completed by a U.S. affiliate if:
    (i) The U.S. affiliate is a bank. For purposes of the BE-12 survey, 
a ``bank'' is a business entity engaged in deposit banking or closely 
related functions, including commercial banks, Edge Act corporations 
engaged in international or foreign banking, U.S. branches and agencies 
of foreign banks whether or not they accept domestic deposits, savings 
and loans, savings banks, bank holding companies and financial holding 
companies under the Gramm-Leach-Bliley Act, including all subsidiaries 
or units of a bank holding company or financial holding company, and

[[Page 34]]

    (ii) On a fully consolidated basis any one of the three items listed 
in paragraph (c)(1)(ii) of this section for a U.S. affiliate (not just 
the foreign parent's share), was greater than $15 million (positive or 
negative) at the end of, or for, its fiscal year that ended in calendar 
year 2007.
    (5) Form 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-12(LF), BE-
12(SF), BE-12 Mini, BE-12 Bank, or Form BE-12 Claim for Not Filing is 
due to be filed with BEA not later than May 31, 2008.

[72 FR 72919, Dec. 26, 2007]



Sec. 806.18  OMB control numbers assigned to the Paperwork Reduction Act.

    (a) Purpose. This section complies with the requirements of section 
3507 (f) of the Paperwork Reduction Act (PRA) which requires agencies to 
display a current control number assigned by the Director of OMB for 
each agency information collection requirement.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
       15 CFR section where identified and described         control No.
------------------------------------------------------------------------
806.1 through 806.17.......................................    0608-0020
                                                                    0024
                                                                    0032
                                                                    0004
                                                                    0035
                                                                    0030
                                                                    0009
                                                                    0023
                                                                    0034
                                                                    0042
                                                                    0053
------------------------------------------------------------------------


[72 FR 72919, Dec. 26, 2007]



PART 807_PUBLIC INFORMATION--Table of Contents




Sec.
807.1 Public Reference Facility.
807.2 Department of Commerce rules applicable.



Sec. 807.1  Public Reference Facility.

    The Public Reference Facility of the Bureau of Economic Analysis is 
located in room B7 of the Tower Building. 1401 K Street NW., Washington, 
DC 20230. The telephone number is 202-523-0595. The facility is open to 
the public from 8:30 a.m. to 5 p.m., Monday through Friday, except legal 
holidays.

(5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301; 
Reorganization Plan No. 5 of 1950; and 15 CFR part 4 of Subtitle A)

[42 FR 38574, July 29, 1977]



Sec. 807.2  Department of Commerce rules applicable.

    The rules applicable to the services provided in the facility and 
procedures to be followed for public inspection and copying of materials 
are found in part 4 of subtitle A of title 15 CFR.

(5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301; 
Reorganization Plan No. 5 of 1950; and 15 CFR Part 4 of Subtitle A)

[42 FR 38574, July 29, 1977]

[[Page 35]]



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




  --------------------------------------------------------------------

                    SUBCHAPTER A--GENERAL REGULATIONS
Part                                                                Page
902             NOAA information collection requirements 
                    under the Paperwork Reduction Act: OMB 
                    control numbers.........................          37
903             Public information..........................          40
904             Civil procedures............................          40
905             Use in enforcement proceedings of 
                    information collected by voluntary 
                    fishery data collectors.................          71
908             Maintaining records and submitting reports 
                    on weather modification activities......          72
909

[Reserved]

911             Policies and procedures concerning use of 
                    the NOAA space-based data collection 
                    systems.................................          78
917             National sea grant program funding 
                    regulations.............................          85
918             Sea grants..................................          92
           SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT
921             National Estuarine Research Reserve System 
                    regulations.............................          97
922             National Marine Sanctuary program 
                    regulations.............................         121
923             Coastal zone management program regulations.         221
930             Federal consistency with approved coastal 
                    management programs.....................         261
932-933

[Reserved]

        SUBCHAPTER C--REGULATIONS OF THE NATIONAL WEATHER SERVICE
946             Modernization of the National Weather 
                    Service.................................         303
   SUBCHAPTER D--GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE
950             Environmental data and information..........         316
960             Licensing of private remote sensing systems.         320

[[Page 36]]

970             Deep seabed mining regulations for 
                    exploration licenses....................         338
971             Deep seabed mining regulations for 
                    commercial recovery permits.............         369
               SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
990             Natural resource damage assessments.........         409
SUBCHAPTER F--QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA 
                   HYDROGRAPHIC PRODUCTS AND SERVICES
995             Certification requirements for distributors 
                    of NOAA hydrographic products...........         428
996             Quality assurance and certification 
                    requirements for NOAA hydrographic 
                    products and services...................         440

[[Page 37]]



                    SUBCHAPTER A_GENERAL REGULATIONS



PART 902_NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK 

REDUCTION ACT: OMB CONTROL NUMBERS--Table of Contents




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



Sec. 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.

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (all numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
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..................................  -0387
  216.26..................................  -0084
  216.27..................................  -0084
  216.33..................................  -0084
  216.37..................................  -0084
  216.38..................................  -0084
  216.39..................................  -0084
  216.41..................................  -0084
  216.45..................................  -0084
  216.104.................................  -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
  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
  300.13..................................  -0304
  300.14..................................  -0348
  300.17..................................  -0349
  300.22..................................  -0148
  300.24..................................  -0202
  300.25..................................  -0239
  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 introductory text; (h)(1)(ii) and  -0460
   (iii); and (i).
  300.65(d)...............................  -0575
  300.65(h)(1)(i).........................  -0460 and -0512
  300.65(j), (k), and (l).................  -0512
  300.103(a)..............................  -0194
  300.104(d)..............................  -0194
  300.104(e)..............................  -0194
  300.105(c)..............................  -0194
  300.106(e)..............................  -0194
  300.107.................................  -0194

[[Page 38]]

 
  300.108(a)..............................  -0368
  300.108(c)..............................  -0367
  300.112.................................  -0194
  300.113.................................  -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
  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...................................  -0205
  622.5...................................  -0013, -0016, and -0392
  622.6...................................  -0358 and -0359
  622.8...................................  -0205
  622.9...................................  -0205
  622.15..................................  -0013 and -0262
  622.16..................................  -0551
  622.18..................................  -0205
  622.19..................................  -0205
  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
  635.4(b)................................  -0327
  635.4(d)................................  -0327
  635.4(g)................................  -0202 and -0205
  635.5(a)................................  -0371, -0328, and -0452
  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
  635.21(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
  640.4...................................  -0205
  640.6...................................  -0358 and -0359
  648.4...................................  -0202, -0212, -0489, and -
                                             0529
  648.5...................................  -0202
  648.6...................................  -0202 and -0555
  648.7...................................  -0018, -0202, -0212, and -
                                             0229
  648.8...................................  -0350
  648.9...................................  -0202, -0404, -0489, -0501,
                                             and -0529
  648.10..................................  -0202, -0489, -0501, and -
                                             0529
  648.11..................................  -0202, -0546, and -0555
  648.13..................................  -0391 and -0481
  648.14..................................  -0202, -0212, -0469, -0489,
                                             0501, and -0502
  648.15..................................  -0202
  648.15(b)...............................  -0558
  648.17..................................  -0202
  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, -0489, and -
                                             0521
  648.81..................................  -0202, -0412, and -0489
  648.82..................................  -0202, -0457, -0489, and -
                                             0521
  648.84..................................  -0202 and -0351
  648.85..................................  -0212, -0489, -0501, and -
                                             0502
  648.86..................................  -0202, -0391, -0457, and -
                                             0489
  648.87..................................  -0489
  648.88..................................  -0489
  648.89..................................  -0412 and -0489
  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
  648.322.................................  -0480 and -0489
  654.6...................................  -0358 and -0359
  660.303.................................  -0271
  660.305.................................  -0355
  660.322.................................  -0352
  660.323.................................  -0243
  660.333.................................  -0203
  660.504.................................  -0361
  660.512.................................  -0204
  660.704.................................  -0361
  660.707.................................  -0204

[[Page 39]]

 
  660.708.................................  -0498
  660.712(d) and (f)......................  -0498
  661.4...................................  -0222
  661.20..................................  -0222
  663.4...................................  -0271
  663.10..................................  -0203
  663.11..................................  -0203
  663.22..................................  -0305
  663.33..................................  -0203
  665.13..................................  -0490
  665.14..................................  -0214
  665.16..................................  -0360
  665.17..................................  -0214 and -0490
  665.21(k)...............................  -0490
  665.23..................................  -0214
  665.24..................................  -0360
  665.25..................................  -0441
  665.27..................................  -0490
  665.28..................................  -0214
  665.35..................................  -0456
  665.41..................................  -0490
  665.43..................................  -0214
  665.48..................................  -0360
  665.61..................................  -0490
  665.63..................................  -0214
  665.65..................................  -0214
  665.81..................................  -0490
  665.602.................................  -0463
  665.604.................................  -0462
  665.606.................................  -0360
  679.4(b), (f), (h), and (i).............  -0206
  679.4(d) and (e)........................  -0272
  679.4(g)................................  -0334
  679.4(k)................................  -0334, -0545, and -0565
  679.4(l)................................  -0393
  679.4(m)(2).............................  -0513
  679.4(m)(4).............................  -0513
  679.4(n)................................  -0545
  679.4(o)................................  -0565
  679.5(a)................................  -0213, -0269, -0272, and -
                                             0401
  679.5(b), (c), (d), (g), (h), (i), (j),   -0213
   (k) and (m).
  679.5(e), (f), and (o)..................  -0401
  679.5(l)(1), (l)(2), (l)(3), and (l)(5).  -0272
  679.5(l)(3)(i), (l)(4)..................  -0272 and -0517
  679.5(l)(7).............................  -0398
  679.5(n)................................  -0269
  679.5(p)................................  -0428
  679.5(q)................................  -0513
  679.5(r)................................  -0213, -0401, -0445, and -
                                             0545
  679.5(s)................................  -0565
  679.6...................................  -0206
  679.20(a)(8)(iii).......................  -0206
  679.24(a)...............................  -0353
  679.24(e)...............................  -0454
  679.26..................................  -0316
  679.28(b) and (d).......................  -0330
  679.28(f)...............................  -0445
  679.28(g)...............................  -0330
  679.30..................................  -0269
  679.32(c)...............................  -0269 and -0330
  679.32(d)...............................  -0269
  679.32(f)...............................  -0269 and -0272
  679.40..................................  -0272
  679.41..................................  -0272
  679.42..................................  -0272
  679.43..................................  -0272 and -0398
  679.45..................................  -0398
  679.50..................................  -0318
  679.61(c) and (f).......................  -0401
  679.61(d) and (e).......................  -0393
  679.62(b)(3) and (c)....................  -0401
  679.63(a)(2)............................  -0330
  679.80..................................  -0545
  679.81..................................  -0545
  679.82..................................  -0545
  679.83..................................  -0545
  679.84..................................  -0213, -0330, and -0545
  679.90..................................  -0565
  679.91..................................  -0565
  679.93..................................  -0213, -0330 and -0565
  679.94..................................  -0564
  680.4(a), (b)(2), and (c) through (m)...  -0514
  680.4(b)(1).............................  -0514, -0576
  680.4(b)(3) and (n).....................  -0576
  680.5...................................  -0515
  680.6...................................  -0518
  680.20..................................  -0516
  680.21..................................  -0514
  680.23(d)(1) and (d)(2).................  -0445
  680.23(e), (f), (g) and (h).............  -0330
  680.40(f), (g), (h), (i), (j), (k), (l),  -0514
   and (m).
  680.41..................................  -0514
  680.43..................................  -0514
  680.44(a), (b), (c), (d), (e)...........  -0515
  680.44(f)...............................  -0514
  697.4(a), (d) and (e)...................  -0202
  697.5...................................  -0202
  697.6...................................  -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 Sec. 
902.1, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 73 FR 76141, Dec. 15, 2008, Sec. 902.1 was 
amended in the table in paragraph (b), under the entry ``50 CFR'', by:
    1. Removing entries for ``679.5(b), (c), (d), (g), (h), (i), (j), 
(k) and (m)''; ``679.5(e), (f), and (o)''; ``679.5(l)(1), (l)(2), 
(l)(3), and (l)(5)''; ``679.5(l)(3)(i), (l)(4)''; ``679.24(e)''; 
``679.28(b) and (d)''; ``679.28(f)''; ``679.32(c)''; ``679.61(c) and 
(f)''; ``679.61(d) and (e)''; ``679.62(b)(3) and (c)''; 
``679.63(a)(2)''; ``680.5''; ``680.23(e), (f), (g), and (h)''; 
``680.44(a), (b), (c), (d), (e)''; and ``680.44(f)'';
    2. Adding entries in alphanumeric order for ``679.5(b), (h), and 
(k)''; ``679.5(c)''; ``679.5(d)''; ``679.5(e) and (f)''; ``679.5(g)''; 
``679.5(l)(1) through (l)(5)''; ``679.5(o)''; ``679.27(j)(5)''; 
``679.28(a)''; ``679.28(b), (c), (d), and (e)''; ``679.28(h)''; 
``679.32(c) and (e)''; ``679.61(c), (d), (e), and (f)''; ``679.62''; 
``679.63''; ``680.5(a) and (h) through (l)''; ``680.5(b)''; ``680.5(e) 
and (f)''; ``680.5(g)''; ``680.5(m)''; ``680.23(e), (f), and (g)''; and 
``680.44''; and

[[Page 40]]

    3. Revising entries for ``679.5(r)''; ``679.5(s)''; ``679.32(d)''; 
``679.32(f)''; and ``679.43'', effective Jan. 14, 2009. For the 
convenience of the user, the added and revised text is set forth as 
follows:



Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
          Reduction Act.

                                * * * * *

    (b) * * *

------------------------------------------------------------------------
     CFR part or section where the
 information collection requirement is   Current OMB control number (all
                located                     numbers begin with 0648-)
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
50 CFR                                  ................................
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.5(b), (h), and (k)                  -0213
------------------------------------------------------------------------
679.5(c)                                -0213, -0272, -0330, -0513, and
                                         0515
------------------------------------------------------------------------
679.5(d)                                -0213, -0272, and -0513
------------------------------------------------------------------------
679.5(e) and (f)                        -0213, -0272, -0330, -0401, -
                                         0513, and -0515
------------------------------------------------------------------------
679.5(g)                                -0213, -0272, and -0330
------------------------------------------------------------------------
679.5(l)(1) through (l)(5)              -0272
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.5(o)                                -0401
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.5(r)                                -0213, -0445, and -0545
------------------------------------------------------------------------
679.5(s)                                -0213, -0445, and -0565
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.27(j)(5)                            -0213, -0330, and -0565
------------------------------------------------------------------------
679.28(a)                               -0213 and -0330
------------------------------------------------------------------------
679.28(b), (c), (d), and (e)            -0330
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.28(h)                               -0213 and -0515
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.32(c) and (e)                       -0213 and -0269
------------------------------------------------------------------------
679.32(d)                               -0213, -0269 and -0330
------------------------------------------------------------------------
679.32(f)                               -0213, -0269, and -0272
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.43                                  -0272, -0318, -0334, -0398, -
                                         0401, -0545, -0565, and -0569
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
679.61(c), (d), (e), and (f)            -0401
------------------------------------------------------------------------
679.62                                  -0393
------------------------------------------------------------------------
679.63                                  -0213 and -0330
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
680.5(a) and (h) through (l)            -0213
------------------------------------------------------------------------
680.5(b)                                -0515
------------------------------------------------------------------------
680.5(e) and (f)                        -0570
------------------------------------------------------------------------
680.5(g)                                -0514
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
680.5(m)                                -0514
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
680.23(e), (f), and (g)                 -0330
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------
680.44                                  -0514
------------------------------------------------------------------------
* * * * * * *                           ................................
------------------------------------------------------------------------



PART 903_PUBLIC INFORMATION--Table of Contents




    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.



Sec. 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]



PART 904_CIVIL PROCEDURES--Table of Contents




                            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.

[[Page 41]]

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



Sec. 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,

[[Page 42]]

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.



Sec. 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 Sec. 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

[[Page 43]]

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 Sec. 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 Sec. 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.



Sec. 904.3  Filing and service of notices, documents, and other papers.

    (a) Service of a NOVA (Sec. 904.101), NOPS (Sec. 904.302), NIDP 
(Sec. 904.303), Notice of Proposed Forfeiture (Sec. 904.504), Notice 
of Seizure (Sec. 904.501), Notice of Summary Sale (Sec. 904.505) or 
Written Warning (Sec. 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

[[Page 44]]

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.



Sec. 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.



Sec. 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



Sec. 904.100  General.

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



Sec. 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;

[[Page 45]]

    (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.



Sec. 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 Sec. 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 Sec. 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.



Sec. 904.103  Hearing.

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



Sec. 904.104  Final administrative decision.

    (a) If no request for hearing is timely filed as provided in Sec. 
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 
Sec. 904.201(a), the date of the final administrative decision is as 
provided in subpart C of this part.



Sec. 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 Sec. 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

[[Page 46]]

States, may act under Sec. 904.106, or may commence any other lawful 
action.



Sec. 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 
Sec. 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.



Sec. 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 Sec. 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.



Sec. 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

[[Page 47]]

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 Sec. 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 Sec. 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 Sec. 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

[[Page 48]]

barred from asserting financial hardship.



                 Subpart C_Hearing and Appeal Procedures

                                 General



Sec. 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 Sec. 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.



Sec. 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.



Sec. 904.202  Filing of documents.

    (a) Pleadings, papers, and other documents in the proceeding must be 
filed in conformance with Sec. 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.



Sec. 904.203  [Reserved]



Sec. 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 Sec. 
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

[[Page 49]]

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 Sec. 904.240(d);
    (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) For stated good reason(s), assess a civil penalty de novo 
without being bound by the civil penalty assessed in the NOVA;
    (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

[[Page 50]]

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 Sec. 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.



Sec. 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.



Sec. 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 Sec. 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.



Sec. 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

[[Page 51]]

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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 
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.



Sec. 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]



Sec. 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.



Sec. 904.214  Stipulations.

    The parties may, by stipulation, agree upon any matters involved in 
the administrative proceeding and include

[[Page 52]]

such stipulations in the record with the consent of the Judge. Written 
stipulations must be signed and served upon all parties.



Sec. 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.



Sec. 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



Sec. 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

[[Page 53]]

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.



Sec. 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

[[Page 54]]

bear its own expense for any copies of the transcript. See also Sec. 
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.



Sec. 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 Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 55]]

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



Sec. 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 Sec. 904.209.



Sec. 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 Sec. 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

[[Page 56]]

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 Sec. 
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.



Sec. 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.

[[Page 57]]

    (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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 58]]

    (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



Sec. 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.



Sec. 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



Sec. 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.

[[Page 59]]



Sec. 904.271  Initial decision.

    (a) After expiration of the period provided in Sec. 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 Sec. 
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 Sec. 904.273.



Sec. 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.



Sec. 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

[[Page 60]]

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

[[Page 61]]

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



Sec. 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 Sec. 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.



Sec. 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 
Sec. 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

[[Page 62]]

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 Sec. 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.



Sec. 904.302  Notice of permit sanction (NOPS).

    (a) A NOPS will be served on the permit holder as provided in Sec. 
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 Sec. 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.



Sec. 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 Sec. 
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 Sec. 904.310(c) or Sec. 
904.320.



Sec. 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 Sec. 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.



Sec. 904.305  Final administrative decision.

    (a) If no request for hearing is timely filed as provided in Sec. 
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 
Sec. 904.201(a), the date of the final administrative decision is as 
provided in subpart C of this part.

                   Permit Sanctions for Noncompliance



Sec. 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

[[Page 63]]

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.



Sec. 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 Sec. 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



Sec. 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.



Sec. 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.



Sec. 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 Sec. 904.304.

[[Page 64]]



                       Subpart E_Written Warnings



Sec. 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 Sec. 904.1(c).



Sec. 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.



Sec. 904.402  Procedures.

    (a) Any person authorized to enforce the laws listed in Sec. 
904.1(c) or Agency counsel may issue a written warning to a respondent 
as provided in Sec. 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 
Sec. 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.



Sec. 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.

[[Page 65]]



               Subpart F_Seizure and Forfeiture Procedures



Sec. 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.



Sec. 904.501  Notice of seizure.

    Within 60 days from the date of the seizure, NOAA will serve the 
Notice of Seizure as provided in Sec. 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 Sec. 
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.



Sec. 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

[[Page 66]]

    (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).



Sec. 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.



Sec. 904.504  Administrative forfeiture proceedings.

    (a) When authorized. This section applies to property that is 
determined under Sec. 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 Sec. 
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 Sec. 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 Sec. 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

[[Page 67]]

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.



Sec. 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 Sec. 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.



Sec. 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

[[Page 68]]

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.



Sec. 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

[[Page 69]]

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.



Sec. 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 Sec. 904.510(b).
    (b) Property will be declared finally forfeited by abandonment, 
without recourse, upon a finding of abandonment by NOAA.



Sec. 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

[[Page 70]]

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 Sec. 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.



Sec. 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.

[[Page 71]]

    (b) Notice. NOAA will serve a Notice of the Return of property as 
provided by Sec. 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.



PART 905_USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED BY VOLUNTARY 

FISHERY DATA COLLECTORS--Table of Contents




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.



Sec. 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.



Sec. 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.



Sec. 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.

[[Page 72]]



Sec. 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.



Sec. 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.



PART 908_MAINTAINING RECORDS AND SUBMITTING REPORTS ON WEATHER MODIFICATION 

ACTIVITIES--Table of Contents




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.



Sec. 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.

[[Page 73]]

    (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]



Sec. 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.



Sec. 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 Sec. 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.



Sec. 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;

[[Page 74]]

    (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.



Sec. 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).

[[Page 75]]

    (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]



Sec. 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]



Sec. 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 Sec. 908.4, Sec. 908.5, or 
Sec. 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.



Sec. 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

[[Page 76]]

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.



Sec. 908.9  Retention of records.

    Records required under Sec. 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]



Sec. 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.



Sec. 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]



Sec. 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:

[[Page 77]]

    (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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.

[[Page 78]]



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 908.20  Effective date.

    These rules are effective on June 10, 1976.



Sec. 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.
---------------------------------------------------------------------------

                           PART 909 [RESERVED]



PART 911_POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-BASED DATA 

COLLECTION SYSTEMS--Table of Contents




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.



Sec. 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.



Sec. 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

[[Page 79]]

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.



Sec. 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).

[[Page 80]]

    (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]



Sec. 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.

[[Page 81]]

    (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]



Sec. 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 Sec. 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 Sec. 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

[[Page 82]]

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]



Sec. 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]



Sec. 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.



Sec. 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.

[[Page 83]]



        Sec. Appendix A to Part 911--Argos DCS Use Policy Diagram

[GRAPHIC] [TIFF OMITTED] TR01AU03.015


[68 FR 45161, Aug. 1, 2003]

[[Page 84]]



        Sec. Appendix B to Part 911--GOES DCS Use Policy Diagram

[GRAPHIC] [TIFF OMITTED] TR01AU03.016


[68 FR 45162, Aug. 1, 2003]

[[Page 85]]



PART 917_NATIONAL SEA GRANT PROGRAM FUNDING REGULATIONS--Table of Contents




                            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



Sec. 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 66\2/3\ 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.



Sec. 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.''

[[Page 86]]

    (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 Sec. 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 
benificiary developing country under Title of that Act.



               Subpart B_Sea Grant Matched Funding Program



Sec. 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.

[[Page 87]]

    (b) Federal Sea Grant funding for the section 1124(a) Matched 
Funding Program cannot exceed 66\2/3\ percent of the total cost of the 
project involved.



Sec. 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 Sec. 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 33\1/3\ 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



Sec. 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.



Sec. 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

[[Page 88]]

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.

[[Page 89]]

    (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]



Sec. 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



Sec. 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

[[Page 90]]

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



Sec. 917.40  General.

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



Sec. 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.''



Sec. 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

[[Page 91]]

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.



Sec. 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 evaulation, 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.

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PART 918_SEA GRANTS--Table of Contents




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.



Sec. 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.



Sec. 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,

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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.



Sec. 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

[[Page 94]]

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.



Sec. 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.



Sec. 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,

[[Page 95]]

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

[[Page 96]]

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.



Sec. 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.



Sec. 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.

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           SUBCHAPTER B_OCEAN AND COASTAL RESOURCE MANAGEMENT



PART 921_NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM REGULATIONS--Table of 

Contents




                            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



Sec. 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;

[[Page 98]]

    (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 Sec. 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 Sec. 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

[[Page 99]]

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 Sec. 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]



Sec. 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)).

[[Page 100]]

    (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.



Sec. 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.



Sec. 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 Sec. 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

[[Page 101]]

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



Sec. 921.10  General.

    (a) A coastal state may apply for Federal financial assistance for 
the purpose of site selection, preparation of documents specified in 
Sec. 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 Sec. 921.11 and Sec. 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 Sec. 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 Sec. 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 Sec. 
921.51. In addition, Federal funds for the acquisition of a multiple-
site Reserve remain limited to $5,000,000 (see Sec. 921.20). The 
funding for operation of a multiple-site Reserve is limited to the 
maximum allowed for any one Reserve per year (see Sec. 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]

[[Page 102]]



Sec. 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 (Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 
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

[[Page 103]]

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 (Sec. 921.11(c)) and the following information:
    (1) An analysis of the proposed site(s) based on the biogeographical 
scheme/typology discussed in Sec. 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 (Sec. 921.11a)) to determine the feasibility of 
reactivation. This feasibility study must comply with the requirements 
set forth in Sec. 921.11 (c) through (e).



Sec. 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 Sec. 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

[[Page 104]]

state's long-term commitment to operate and manage the Reserve.
    (b) The state is eligible to use the funds referenced in Sec. 
921.12(a) after the proposed site is approved by NOAA under the terms of 
Sec. 921.11.



Sec. 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 Sec. 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,

[[Page 105]]

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 
Sec. Sec. 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

[[Page 106]]

comment period, a final EIS will be prepared by the state and NOAA.



    Subpart C_Acquisition, Development and Preparation of the Final 
                             Management Plan



Sec. 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 
Sec. 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 Sec. 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]



Sec. 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 Sec. 921.13(a)(7); Sec. 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.

[[Page 107]]

    (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 Sec. 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 Sec. 
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 
Sec. 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).

[[Page 108]]



         Subpart D_Reserve Designation and Subsequent Operation



Sec. 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 Sec. 307(c)(1) of the Act, 16 
U.S.C. 1456, and 15 CFR part 930, subpart C. See Sec. 921.4(b). The 
results of this consistency determination will be published in the 
Federal Register when the notice of designation is published. See Sec. 
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 Sec. 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 
Sec. Sec. 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.



Sec. 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

[[Page 109]]

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 Sec. Sec. 
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]



Sec. 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 Sec. 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 Sec. 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]



Sec. 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.

[[Page 110]]

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 Sec. Sec. 921.4(b) and 
921.13(a)(11).
    (b) As discussed in Sec. 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 Sec. 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 Sec. 
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



Sec. 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.

[[Page 111]]

    (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.



Sec. 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



Sec. 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 Sec. 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 Sec. 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]



Sec. 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 Sec. 921.50(c).
    (c) The Estuarine Research Guidelines are reviewed annually by NOAA. 
This review will include an opportunity

[[Page 112]]

for comment by the estuarine research community.



Sec. 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



Sec. 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 Sec. 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 Sec. 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 Sec. 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



Sec. 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 Sec. 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 Sec. 921.81(e)(4) (``allowable costs''),

[[Page 113]]

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



Sec. 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 Sec. 921.31 (acquisition and 
development), and Sec. 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.



Sec. 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.

[[Page 114]]

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 Sec. 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.



Sec. 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.



    Sec. 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.)

[[Page 115]]

                               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.

[[Page 116]]

[GRAPHIC] [TIFF OMITTED] TC12SE91.000



 Sec. 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,

[[Page 117]]

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

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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

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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

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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

[[Page 121]]

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.



PART 922_NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS--Table of Contents




                            Subpart A_General

Sec.
922.1 Applicability of regulations.
922.2 Mission, goals, and special policies.
922.3 Definitions.
922.4 Effect of National Marine Sanctuary designation.

                  Subpart B_Site Evaluation List (SEL)

922.10 General.

          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.

[[Page 122]]

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.
922.73 Marine reserves and marine conservation area.
922.74 Permit procedures and 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_Gulf of the Farallones National Marine Sanctuary

922.80 Boundary.
922.81 Definitions.
922.82 Prohibited or otherwise regulated activities.
922.83 Permit procedures and criteria.
922.84 Certification of other permits.

Appendix A to Subpart H of Part 922--Gulf of the Farallones National 
          Marine Sanctuary Boundary Coordinates

             Subpart I_Gray's Reef National Marine Sanctuary

922.90 Boundary.
922.91 Definitions.
922.92 Prohibited or otherwise regulated activities.
922.93 Permit procedures and criteria.

            Subpart J_Fagatele Bay National Marine Sanctuary

922.100 Scope of regulations.
922.101 Boundary.
922.102 Prohibited or otherwise regulated activities.
922.103 Management and enforcement.
922.104 Permit procedures and criteria.

            Subpart K_Cordell Bank National Marine Sanctuary

922.110 Boundary.
922.111 Prohibited or otherwise regulated activities.
922.112 Permit procedures and criteria.

Appendix A to Subpart K of Part 922--Cordell Bank National Marine 
          Sanctuary Boundary Coordinates

         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 Notification and review.

Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
          Sanctuary Boundary Coordinates
Appendix B to Subpart M of Part 922--Dredged Material Disposal Sites 
          Adjacent to the Monterey Bay National Marine Sanctuary
Appendix C to Subpart M of Part 922--Zones Within the Sanctuary Where 
          Overflights Below 1000 Feet Are Prohibited
Appendix D to Subpart M of Part 922--Zones and Access Routes Within the 
          Sanctuary Where the Operation of Motorized Personal Watercraft 
          Is Allowed

           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

[[Page 123]]

            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 Certification of preexisting leases, licenses, permits, 
          approvals, other authorizations, or rights to conduct a 
          prohibited activity.

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
Appendix VIII to Subpart P of Part 922--Marine Life Rule As Excerpted 
          From Chapter 46-42 of the Florida Administrative Code

   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 to 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 Consultation with affected federally-recognized Indian tribes.
922.198 Procedures for determining watercraft and related items which 
          sink on or after the date of Sanctuary designation to be an 
          underwater cultural resource.

Appendix A to Subpart R of Part 922--Thunder Bay National Marine 
          Sanctuary and Underwater Preserve Boundary Coordinates
Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
          Sec. 922.193(a)(2)(iii)

    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



Sec. 922.1  Applicability of regulations.

    Unless noted otherwise, the regulations in Subparts A, D and E apply 
to all thirteen National Marine Sanctuaries for which site-specific 
regulations appear in Subparts F through R, respectively. Subparts B and 
C apply to the site evaluation list and to the designation of future 
Sanctuaries.

[65 FR 39055, June 22, 2000]

[[Page 124]]



Sec. 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

[[Page 125]]

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.



Sec. 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.
    Active Candidate means a site selected by the Secretary from the 
Site Evaluation List for further consideration for possible designation 
as a National Marine Sanctuary.
    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.
    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.

[[Page 126]]

    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 Sec. 922.191.
    Secretary means the Secretary of the United States Department of 
Commerce, or designee.
    Shunt means to discharge expended drilling cuttings and fluids near 
the ocean seafloor.
    Site Evaluation List (SEL) means a list of selected natural and 
historical resource sites selected by the Secretary as qualifying for 
further evaluation for possible designation as National Marine 
Sanctuaries.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Commonwealth of the Northern 
Mariana Islands, American Samoa, the United States Virgin Islands, Guam, 
and any other commonwealth, territory, or possession of the United 
States.
    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]



Sec. 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

[[Page 127]]

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_Site Evaluation List (SEL)



Sec. 922.10  General.

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



          Subpart C_Designation of National Marine Sanctuaries



Sec. 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.



Sec. 922.21  Selection of active candidates.

    (a) The Secretary shall, from time to time, select a limited number 
of sites from the SEL for Active Candidate consideration based on a 
preliminary assessment of the designation standards set forth in section 
303 of the Act.
    (b) Selection of a site as an Active Candidate shall begin the 
formal Sanctuary designation-evaluation process. A notice of intent to 
prepare a draft environmental impact statement shall be published in the 
Federal Register and in newspapers in the area(s) of local concern. A 
brief written analysis describing the site shall be provided. The 
Secretary, at any time, may drop a site from consideration if the 
Secretary determines that the site does not meet the designation 
standards and criteria set forth in the Act.



Sec. 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.



Sec. 922.23  Coordination with States and other Federal agencies.

    (a) The Secretary shall consult and cooperate with affected States

[[Page 128]]

throughout the National Marine Sanctuary designation process. In 
particular the Secretary shall:
    (1) Consult with the relevant State officials prior to selecting any 
site on the SEL as an Active Candidate pursuant to Sec. 922.21, 
especially concerning the relationship of any site to State waters and 
the consistency of the proposed designation with a federally approved 
State coastal zone management program. For the purposes of a consistency 
review by States with federally approved coastal zone management 
programs, designation of a National Marine Sanctuary is deemed to be a 
Federal activity, which, if affecting the State's coastal zone, must be 
undertaken in a manner consistent to the maximum extent practicable with 
the approved State coastal zone program as provided by section 307(c)(1) 
of the Coastal Zone Management Act of 1972, as amended, and implementing 
regulations at 15 CFR part 930, subpart.
    (2) Ensure that relevant State agencies are consulted prior to 
holding any public hearings pursuant to section 304(a)(3) of the Act.
    (3) Provide the Governor(s) of any State(s) in which a proposed 
Sanctuary would be located an opportunity to certify the designation or 
any of its terms as unacceptable as specified in section 304(b)(1) of 
the Act.
    (b) The Secretary shall develop proposed regulations relating to 
activities under the jurisdiction of one or more other Federal agencies 
in consultation with those agencies.



Sec. 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.



Sec. 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



Sec. 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.



Sec. 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



Sec. 922.40  Purpose.

    The purpose of the regulations in this subpart and in subparts F 
through R is to implement the designations of the thirteen National 
Marine Sanctuaries for which site specific regulations appear in 
subparts F through R, respectively, by regulating activities affecting 
them, consistent with their respective terms of designation in order to 
protect, preserve and manage and thereby ensure the health, integrity

[[Page 129]]

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 Sec. Sec. 
922.160, and 922.180, respectively.

[65 FR 39055, June 22, 2000]



Sec. 922.41  Boundaries.

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

[65 FR 39055, June 22, 2000]



Sec. 922.42  Allowed activities.

    All activities (e.g., fishing, boating, diving, research, education) 
may be conducted unless prohibited or otherwise regulated in Subparts F 
through R, subject to any emergency regulations promulgated pursuant to 
Sec. Sec. 922.44, 922.111(c), 922.165, 922.186, or 922.196, subject to 
all prohibitions, regulations, restrictions, and conditions validly 
imposed by any Federal, State, or local authority of competent 
jurisdiction, including Federal and State fishery management 
authorities, and subject to the provisions of section 312 of the 
National Marine Sanctuaries Act (NMSA), (16 U.S.C. 1431 et seq.). The 
Assistant Administrator may only directly regulate fishing activities 
pursuant to the procedure set forth in section 304(a)(5) of the NMSA.

[65 FR 39055, June 22, 2000]



Sec. 922.43  Prohibited or otherwise regulated activities.

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

[65 FR 39055, June 22, 2000]



Sec. 922.44  Emergency regulations.

    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all such activities 
are subject to immediate temporary regulation, including prohibition. 
The provisions of this section do not apply to the Cordell Bank, Florida 
Keys, Hawaiian Islands Humpback Whale, and Thunder Bay National Marine 
Sanctuaries. See Sec. Sec. 922.111(c), 922.165, and 922.186, 922.196, 
respectively, for the authority to issue emergency regulations with 
respect to those sanctuaries.

[65 FR 39055, June 22, 2000]



Sec. 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]



Sec. 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.



Sec. 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 subpart R 
do

[[Page 130]]

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]



Sec. 922.48  National Marine Sanctuary permits--application procedures and 

issuance criteria.

    (a) A person may conduct an activity prohibited by subparts F 
through O, if conducted in accordance with the scope, purpose, terms and 
conditions of a permit issued under this section and subparts F through 
O, as appropriate. For the Florida Keys National Marine Sanctuary, a 
person may conduct an activity prohibited by subpart P if conducted in 
accordance with the scope, purpose, terms and conditions of a permit 
issued under Sec. 922.166. For the Thunder Bay National Marine 
Sanctuary and Underwater Preserve, a person may conduct an activity 
prohibited by subpart R in accordance with the scope, purpose, terms and 
conditions of a permit issued under Sec. 922.195.
    (b) Applications for permits to conduct activities otherwise 
prohibited by subparts F through O should be addressed to the Director 
and sent to the address specified in subparts F through O, or subpart R, 
as appropriate. An application must include:
    (1) A detailed description of the proposed activity including a 
timetable for completion;
    (2) The equipment, personnel and methodology to be employed;
    (3) The qualifications and experience of all personnel;
    (4) The potential effects of the activity, if any, on Sanctuary 
resources and qualities; and (5) Copies of all other required licenses, 
permits, approvals or other authorizations.
    (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, or subpart R, 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, subpart R or for other good cause. Any 
such action shall be communicated in writing to the permittee or 
applicant by certified mail and shall set forth the reason(s) for the 
action taken. Procedures governing permit sanctions and denials for 
enforcement reasons are set forth in subpart D of 15 CFR part 904.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 
FR 39056, June 22, 2000]

[[Page 131]]



Sec. 922.49  Notification and review of applications for leases, licenses, 

permits, approvals, or other authorizations to conduct a prohibited activity.

    (a) A person may conduct an activity prohibited by subparts L 
through P, or subpart R, if such activity is specifically authorized by 
any valid Federal, State, or local lease, permit, license, approval, or 
other authorization issued after the effective date of Sanctuary 
designation, or in the case of the Florida Keys National Marine 
Sanctuary after the effective date of the regulations in subpart P, 
provided that:
    (1) The applicant notifies the Director, in writing, of the 
application for such authorization (and of any application for an 
amendment, renewal, or extension of such authorization) within fifteen 
(15) days of the date of filing of the application or the effective date 
of Sanctuary designation, or in the case of the Florida Keys National 
Marine Sanctuary the effective date of the regulations in subpart P, 
whichever is later;
    (2) The applicant complies with the other provisions of this Sec. 
922.49;
    (3) The Director notifies the applicant and authorizing agency that 
he or she does not object to issuance of the authorization (or 
amendment, renewal, or extension); and
    (4) The applicant complies with any terms and conditions the 
Director deems reasonably necessary to protect Sanctuary resources and 
qualities.
    (b) Any potential applicant for an authorization described in 
paragraph (a) of this section may request the Director to issue a 
finding as to whether the activity for which an application is intended 
to be made is prohibited by subparts L through P, or subpart R, as 
appropriate.
    (c) Notification of filings of applications should be sent to the 
Director, Office of Ocean and Coastal Resource Management at the address 
specified in subparts L through P, or subpart R, as appropriate. A copy 
of the application must accompany the notification.
    (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 Sec. 
922.49 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 Sec. 922.50.

[62 FR 4608, Jan. 30, 1997, as amended at 65 FR 39056, June 22, 2000]



Sec. 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 Sec. 
922.47; or, for those Sanctuaries described in subparts L through P and 
subpart R, an applicant for a lease, permit, license or

[[Page 132]]

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 Sec. 922.47; or
    (iii) For those Sanctuaries described in subparts L through P and 
subpart R, the objection to issuance of or the imposition of terms and 
conditions on a lease, permit, license or other authorization issued by 
any Federal, State, or local authority of competent jurisdiction.
    (2) For those National Marine Sanctuaries described in subparts F 
through K, any interested person may also appeal the same actions 
described in Sec. 922.50(a)(1)(i) and (ii). For appeals arising from 
actions taken with respect to these National Marine Sanctuaries, the 
term ``appellant'' includes any such interested persons.
    (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 he 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.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4608, Jan. 30, 1997; 65 
FR 39056, June 22, 2000; 65 FR 60097, Oct. 10, 2000]



               Subpart F_Monitor National Marine Sanctuary



Sec. 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[deg]00[min]23[sec] north latitude and 75[deg]24[min]32[sec] west 
longitude.



Sec. 922.61  Prohibited or otherwise regulated activities.

    Except as may be permitted by the Director, the following activities 
are

[[Page 133]]

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.



Sec. 922.62  Permit procedure and criteria.

    (a) Any person or entity may conduct in the Sanctuary any activity 
listed in Sec. 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



Sec. 922.70  Boundary.

    The Channel Islands National Marine Sanctuary (Sanctuary) consists 
of an area of the waters off the coast of California of approximately 
1,128 square nautical miles (nmi) adjacent to 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 
(collectively

[[Page 134]]

the Islands) extending seaward to a distance of approximately six nmi. 
The boundary coordinates are listed in appendix A to this subpart.

[72 FR 29232, May 24, 2007]



Sec. 922.71  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    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).

[72 FR 29232, May 24, 2007]



Sec. 922.72  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for the national defense (subject to 
the terms and conditions of Article 5, Section 2 of the Designation 
Document) or to respond to an emergency threatening life, property, or 
the environment, or except as may be permitted by the Director in 
accordance with Sec. Sec. 922.48 and 922.72, 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, and producing hydrocarbons except 
pursuant to leases executed prior to March 30, 1981, and except the 
laying of pipeline, if the following oil spill contingency equipment is 
available at the site of such operations:
    (i) 1500 feet of open ocean containment boom and a boat capable of 
deploying the boom;
    (ii) One oil skimming device capable of open ocean use; and
    (iii) Fifteen bales of oil sorbent material, and subject to all 
prohibitions, restrictions and conditions imposed by applicable 
regulations, permits, licenses or other authorizations and consistency 
reviews including those issued by the Department of the Interior, the 
Coast Guard, the Corps of Engineers, the Environmental Protection Agency 
and under the California Coastal Management Program and its implementing 
regulations.
    (2) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts and chumming materials (bait);
    (ii) Water (including cooling water) and other biodegradable 
effluents incidental to vessel use of the Sanctuary generated by:
    (A) Marine sanitation devices;
    (B) Routine vessel maintenance, e.g., deck wash down;
    (C) Engine exhaust; or
    (D) Meals on board vessels;
    (iii) Effluents incidental to hydrocarbon exploration and 
exploitation activities allowed by paragraph (a)(1) of this section.
    (3) Except in connection with the laying of any pipeline as allowed 
by paragraph (a)(1) of this section, within 2 NM of any Island:
    (i) Constructing any structure other than a navigation aid,
    (ii) Drilling through the seabed, or
    (iii) Dredging or otherwise altering the seabed in any way, other 
than
    (A) To anchor vessels, or
    (B) To bottom trawl from a commercial fishing vessel.
    (4) Except to transport persons or supplies to or from an Island, 
operating within one NM of an Island any vessel engaged in the trade of 
carrying cargo, including, but not limited to, tankers and other bulk 
carriers and barges, or any vessel engaged in the trade of servicing 
offshore installations. In no event shall this section be construed to 
limit access for fishing (including kelp harvesting), recreational, or 
research vessels.

[[Page 135]]

    (5) Disturbing seabirds or marine mammals by flying motorized 
aircraft at less than 1000 feet over the waters within one NM of any 
Island except:
    (i) For enforcement purposes;
    (ii) To engage in kelp bed surveys; or
    (iii) To transport persons or supplies to or from an Island.
    (6) Removing or damaging any historical or cultural resource.
    (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 having significant impact shall be 
determined in consultation between the Director and the Department of 
Defense.

[60 FR 66877, Dec. 27, 1995. Redesignated at 72 FR 29232, May 24, 2007]



Sec. 922.73  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:
    (1) Harvesting, removing, taking, injuring, destroying, collecting, 
moving, or causing the loss of any Sanctuary resource, including living 
or dead organisms or historical resources, 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, including living or dead 
organisms or historical resources, 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:
    (1) Harvesting, removing, taking, injuring, destroying, collecting, 
moving, or causing the loss of any Sanctuary resource, including living 
or dead organisms or historical resources, 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, including living or dead 
organisms or historical resources, except legally harvested fish.

[72 FR 29232, May 24, 2007]



Sec. 922.74  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director in accordance with this section and Sec. 922.48 may conduct 
any activity within the Sanctuary prohibited under Sec. 922.72 or Sec. 
922.73 if such activity is either:
    (1) Research related to the resources of the Sanctuary,
    (2) To further the educational value of the Sanctuary; or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to: Director, Office of 
Ocean and Coastal Resource Management, ATTN: Manager, Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109.
    (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 envisioned to 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, or as a source of educational or scientific information;
    (4) The end value of the activity and
    (5) Such other matters as may be deemed appropriate.
    (d) The Director may observe any permitted activity and/or require 
the submission of one or more reports of the status or progress of such 
activity.

[[Page 136]]

Any information obtained shall be available to the public.

[60 FR 66877, Dec. 27, 1995. Redesignated and amended at 72 FR 29232, 
29233, May 24, 2007]



   Sec. 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]



   Sec. 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

[[Page 137]]

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 [deg]N       120.60483
                                                                 [deg]W
2.....................................  34.17333 [deg]N       120.47000
                                                                 [deg]W
3.....................................  34.12900 [deg]N       120.47000
                                                                 [deg]W
4.....................................  34.03685 [deg]N       120.52120
                                                                 [deg]W
5.....................................  34.03685 [deg]N       120.60483
                                                                 [deg]W
6.....................................  34.17333 [deg]N       120.60483
                                                                 [deg]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 [deg]N       120.38830
                                                                 [deg]W
2.....................................  34.20492 [deg]N       120.30670
                                                                 [deg]W
3.....................................  34.10260 [deg]N       120.30670
                                                                 [deg]W
4.....................................  34.15200 [deg]N       120.38830
                                                                 [deg]W
5.....................................  34.20492 [deg]N       120.38830
                                                                 [deg]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 [deg]N       120.10830
                                                                 [deg]W
2.....................................  33.84000 [deg]N       120.16670
                                                                 [deg]W
3.....................................  33.86110 [deg]N       120.16670
                                                                 [deg]W
4.....................................  33.84700 [deg]N       120.10830
                                                                 [deg]W
5.....................................  33.84000 [deg]N       120.10830
                                                                 [deg]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 [deg]N       119.80000
                                                                 [deg]W
2.....................................  33.86195 [deg]N       119.88330
                                                                 [deg]W
3.....................................  33.92690 [deg]N       119.88330
                                                                 [deg]W
4.....................................  33.90700 [deg]N       119.80000
                                                                 [deg]W
5.....................................  33.86195 [deg]N       119.80000
                                                                 [deg]W
------------------------------------------------------------------------

            B.5. Scorpion (Santa Cruz Island) Marine Reserve

    The Scorpion Marine Reserve (Scorpion) boundary is defined by the 3 
nmi State

[[Page 138]]

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 [deg]N       119.59170
                                                                 [deg]W
2.....................................  34.15450 [deg]N       119.54670
                                                                 [deg]W
3.....................................  34.10140 [deg]N       119.54670
                                                                 [deg]W
4.....................................  34.10060 [deg]N       119.59170
                                                                 [deg]W
5.....................................  34.15450 [deg]N       119.59170
                                                                 [deg]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 [deg]N       119.43311
                                                                 [deg]W
2.....................................  33.90198 [deg]N       119.51609
                                                                 [deg]W
3.....................................  33.96120 [deg]N       119.51609
                                                                 [deg]W
4.....................................  33.95710 [deg]N       119.43311
                                                                 [deg]W
5.....................................  33.90198 [deg]N       119.43311
                                                                 [deg]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 [deg]N       119.41000
                                                                 [deg]W
2.....................................  34.08330 [deg]N       119.35670
                                                                 [deg]W
3.....................................  34.06450 [deg]N       119.35670
                                                                 [deg]W
4.....................................  34.06210 [deg]N       119.41000
                                                                 [deg]W
5.....................................  34.08330 [deg]N       119.41000
                                                                 [deg]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 [deg]N       118.90879
                                                                 [deg]W
2.....................................  33.36320 [deg]N       119.03670
                                                                 [deg]W
3.....................................  33.41680 [deg]N       119.03670
                                                                 [deg]W
4.....................................  33.47500 [deg]N       118.97080
                                                                 [deg]W
5.....................................  33.47500 [deg]N       118.90879
                                                                 [deg]W
6.....................................  33.36320 [deg]N       118.90879
                                                                 [deg]W
------------------------------------------------------------------------


[72 FR 29233, May 24, 2007]



   Sec. 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

[[Page 139]]

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 [deg]N       119.44500
                                                                 [deg]W
2.....................................  34.08330 [deg]N       119.41000
                                                                 [deg]W
3.....................................  34.06210 [deg]N       119.41000
                                                                 [deg]W
4.....................................  34.06300 [deg]N       119.44500
                                                                 [deg]W
5.....................................  34.08330 [deg]N       119.44500
                                                                 [deg]W
------------------------------------------------------------------------


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



       Subpart H_Gulf of the Farallones National Marine Sanctuary

    Effective Date Note: At 73 FR 70529, Nov. 20, 2008, subpart H of 
part 922 was revised, effective after the close of a review period of 45 
days of continuous session of Congress beginning on Nov. 20, 2008. 
Announcement of the effective date of the final regulations will be 
published in the Federal Register. For the convenience of the user, the 
revised text is set forth following the text currently in effect.



Sec. 922.80  Boundary.

    (a) The Gulf of the Farallones National Marine Sanctuary (Sanctuary) 
consists of an area of the waters adjacent to the coast of California 
north and south of the Point Reyes Headlands, between Bodega Head and 
Rocky Point and the Farallon Islands (including Noonday Rock), and 
includes approximately 948 square nautical miles (NM). The boundary 
coordinates are listed in Appendix A to this subpart.
    (b) The shoreward boundary follows the mean high tide line and the 
seaward limit of Point Reyes National Seashore. Between Bodega Head and 
Point Reyes Headlands, the Sanctuary extends seaward 3 NM beyond State 
waters. The Sanctuary also includes the waters within 12 NM of the 
Farallon Islands, and between the Islands and the mainland from Point 
Reyes Headlands to Rocky Point. The Sanctuary includes Bodega Bay, but 
not Bodega Harbor.



Sec. 922.81  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definition applies to this subpart:
    Areas of Special Biological Significance (ASBS) means those areas 
established by the State of California prior to the designation of the 
Sanctuary except that for purposes of the regulations in this subpart, 
the area established around the Farallon Islands shall not be included.
    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.

[60 FR 66877, Dec. 27, 1995, as amended at 66 FR 46951, Sept. 10, 2001]



Sec. 922.82  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense (subject to the 
terms and conditions of Article 5, Section 2 of the Designation 
Document) or to respond to an emergency threatening life, property or 
the environment, or except as may be permitted by the Director in 
accordance with Sec. 922.48 and Sec. 922.83, 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 and producing oil or gas except that 
pipelines related to hydrocarbon operations outside the Sanctuary may be 
placed at a distance greater than 2 NM from the Farallon Islands, 
Bolinas Lagoon, and ASBS where certified to have no significant effect 
on Sanctuary resources in accordance with Sec. 922.84.
    (2) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts and chumming materials (bait).
    (ii) Water (including cooling water) and other biodegradable 
effluents incidental to vessel use of the Sanctuary generated by:
    (A) Marine sanitation devices;

[[Page 140]]

    (B) Routine vessel maintenance, e.g., deck wash down;
    (C) Engine exhaust; or
    (D) Meals on board vessels.
    (iii) Dredge material disposed of at the interim dumpsite now 
established approximately 10 NM south of the southeast Farallon Island 
and municipal sewage provided such discharges are certified in 
accordance with Sec. 922.84.
    (3) Except in connection with the laying of pipelines or 
construction of an outfall if certified in accordance with

Sec. 922.84:
    (i) Constructing any structure other than a navigation aid,
    (ii) Drilling through the seabed, and
    (iii) Dredging or otherwise altering the seabed in any way other 
than by anchoring vessels or bottom trawling from a commercial fishing 
vessel, except for routine maintenance and navigation, ecological 
maintenance, mariculture, and the construction of docks and piers in 
Tomales Bay.
    (4) Except to transport persons or supplies to or from islands or 
mainland areas adjacent to Sanctuary waters, within an area extending 2 
NM from the Farallon Islands, Bolinas Lagoon, or any ASBS, operating any 
vessel engaged in the trade of carrying cargo, including but not limited 
to tankers and other bulk carriers and barges, or any vessel engaged in 
the trade of servicing offshore installations. In no event shall this 
section be construed to limit access for fishing, recreational or 
research vessels.
    (5) Disturbing seabirds or marine mammals by flying motorized 
aircraft at less than 1000 feet over the waters within one NM of the 
Farallon Islands, Bolinas Lagoon, or any ASBS except to transport 
persons or supplies to or from the Islands or for enforcement purposes.
    (6) Removing or damaging any historical or cultural resource.
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft for emergency search and 
rescue mission or law enforcement operations (other than routine 
training activities) carried out by National Park Service, U.S. Coast 
Guard, Fire or Police Departments or other Federal, State or local 
jurisdictions.
    (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 having significant impacts shall be 
determined in consultation between the Director and the Department of 
Defense.

[60 FR 66877, Dec. 27, 1995, as amended at 66 FR 46951, Sept. 10, 2001]



Sec. 922.83  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director in accordance with this section and Sec. 922.48 may conduct 
any activity in the Sanctuary, prohibited user Sec. 922.82, if such an 
activity is
    (1) Research related to the resources of the Sanctuary,
    (2) To further the educational value of the Sanctuary, or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management, ATTN: Manager, Gulf of the 
Farallones National Marine Sanctuary, Fort Mason, building 201, 
San Francisco, CA 94123.
    (c) In considering whether to grant a permit, the Director shall 
evaluate
    (1) The general professional and financial responsibility of the 
applicant,
    (2) The appropriateness of the methods envisioned to 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,
    (4) The end value of the activity, and
    (5) Other matters as deemed appropriate.
    (d) The Director may observe any permitted activity and/or require 
the submission of one or more reports of the status or progress of such 
activity. Any information obtained will be made available to the public.



Sec. 922.84  Certification of other permits.

    (a) A permit, license, or other authorization allowing the discharge 
of municipal sewage, the laying of any

[[Page 141]]

pipeline outside 2 NM from the Farallon Islands, Bolinas Lagoon and 
ASBS, or the disposal of dredge material at the interim dumpsite now 
established approximately 10 NM south of the Southeast Farallon Island 
prior to the selection of a permanent dumpsite shall be valid if 
certified by the Director as consistent with the purpose of the 
Sanctuary and having no significant effect on Sanctuary resources. Such 
certification may impose terms and conditions as deemed appropriate to 
ensure consistency.
    (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) Any certification called for in this section shall be presumed 
unless the Director acts to deny or condition certification within 60 
days from the date that the Director receives notice of the proposed 
permit and the necessary supporting data.
    (d) The Director may amend, suspend, or revoke any certification 
made under this section whenever continued operation would violate any 
terms or conditions of the certification. Any such action shall be 
forwarded in writing to both the holder of the certified permit and the 
issuing agency and shall set forth reason(s) for the action taken.



    Sec. Appendix A to Subpart H of Part 922--Gulf of the Farallones 
             National Marine Sanctuary Boundary Coordinates

----------------------------------------------------------------------------------------------------------------
                Point No.                            Latitude north                     Longitude west
----------------------------------------------------------------------------------------------------------------
1........................................  38[deg]15[min]50.349[sec]          123[deg]10[min]48.933[sec]
2........................................  38[deg]12[min]36.338[sec]          123[deg]07[min]04.846[sec]
3........................................  38[deg]09[min]57.033[sec]          123[deg]05[min]27.435[sec]
4........................................  38[deg]08[min]26.872[sec]          123[deg]04[min]52.524[sec]
5........................................  38[deg]07[min]42.125[sec]          123[deg]05[min]10.714[sec]
6........................................  38[deg]06[min]08.017[sec]          123[deg]05[min]48.920[sec]
7........................................  38[deg]05[min]26.765[sec]          123[deg]06[min]09.922[sec]
8........................................  38[deg]04[min]44.587[sec]          123[deg]06[min]29.251[sec]
9........................................  38[deg]03[min]54.439[sec]          123[deg]06[min]57.591[sec]
10.......................................  38[deg]03[min]07.527[sec]          123[deg]07[min]37.755[sec]
11.......................................  37[deg]59[min]32.425[sec]          123[deg]08[min]24.905[sec]
12.......................................  37[deg]59[min]22.344[sec]          123[deg]14[min]06.127[sec]
13.......................................  37[deg]57[min]31.931[sec]          123[deg]19[min]19.187[sec]
14.......................................  37[deg]54[min]16.943[sec]          123[deg]23[min]18.456[sec]
15.......................................  37[deg]50[min]05.522[sec]          123[deg]25[min]28.791[sec]
16.......................................  37[deg]45[min]33.799[sec]          123[deg]25[min]32.666[sec]
17.......................................  37[deg]41[min]20.351[sec]          123[deg]23[min]29.811[sec]
18.......................................  37[deg]38[min]01.053[sec]          123[deg]19[min]37.445[sec]
19.......................................  37[deg]36[min]04.665[sec]          123[deg]14[min]30.483[sec]
20.......................................  37[deg]35[min]30.191[sec]          123[deg]13[min]31.060[sec]
21.......................................  37[deg]33[min]47.197[sec]          123[deg]11[min]50.904[sec]
22.......................................  37[deg]31[min]12.270[sec]          123[deg]07[min]39.618[sec]
23.......................................  37[deg]30[min]29.706[sec]          123[deg]05[min]42.221[sec]
24.......................................  37[deg]29[min]39.287[sec]          123[deg]00[min]23.711[sec]
25.......................................  37[deg]30[min]34.337[sec]          122[deg]54[min]18.139[sec]
26.......................................  37[deg]31[min]47.784[sec]          122[deg]51[min]31.592[sec]
27.......................................  37[deg]34[min]17.533[sec]          122[deg]48[min]10.415[sec]
28.......................................  37[deg]36[min]58.627[sec]          122[deg]46[min]05.779[sec]
29.......................................  37[deg]39[min]59.303[sec]          122[deg]44[min]59.838[sec]
30.......................................  37[deg]52[min]56.355[sec]          122[deg]37[min]35.195[sec]
----------------------------------------------------------------------------------------------------------------


    Effective Date Note: At 73 FR 70529, Nov. 20, 2008, subpart H of 
part 922 was revised, effective after the close of a review period of 45 
days of continuous session of Congress beginning on Nov. 20, 2008. 
Announcement of the effective date of the final regulations will be 
published in the Federal Register. For the convenience of the user, the 
revised text is set forth as follows:



       Subpart H_Gulf of the Farallones National Marine Sanctuary



Sec. 922.80  Boundary.

    The Gulf of the Farallones National Marine Sanctuary (Sanctuary) 
boundary encompasses a total area of approximately 966 square nautical 
miles (nmi) of coastal and ocean waters, and submerged lands thereunder, 
surrounding the Farallon Islands (and Noonday Rock) off the northern 
coast of California. The northernmost extent of the Sanctuary boundary 
is a geodetic line extending westward from Bodega Head approximately 6 
nmi to the northern boundary of the Cordell Bank National Marine 
Sanctuary (CBNMS). The Sanctuary boundary then turns southward to a 
point approximately 6 nmi off Point Reyes, California, where it then 
turns westward again out towards the 1,000-fathom isobath. The Sanctuary 
boundary then extends in a southerly direction adjacent to the 1,000-
fathom isobath until it intersects the northern extent of the Monterey 
Bay National Marine Sanctuary (MBNMS). The Sanctuary boundary then 
follows the MBNMS boundary eastward and northward until it intersects 
the Mean High Water Line at Rocky Point, California. The Sanctuary 
boundary then follows the MHWL north until it intersects the Point Reyes 
National Seashore (PRNS) boundary. The Sanctuary boundary then 
approximates the PRNS boundary, as established at the time of 
designation of the Sanctuary, to the intersection of the PRNS boundary 
and the MHWL in Tomales Bay. The Sanctuary boundary then follows the 
MHWL up Tomales Bay and Lagunitas Creek to the Route 1 Bridge where the 
Sanctuary boundary crosses the Lagunitas Creek and follows

[[Page 142]]

the MHWL until it intersects its northernmost extent near Bodega Head. 
The Sanctuary boundary includes Bolinas Lagoon, Estero de San Antonio 
(to the tide gate at Valley Ford Franklin School Road) and Estero 
Americano (to the bridge at Valley Ford Estero Road), as well as Bodega 
Bay, but not Bodega Harbor. Where the Sanctuary boundary crosses a 
waterway, the Sanctuary boundary excludes these waterways shoreward of 
the Sanctuary boundary line delineated by the coordinates provided. The 
precise seaward boundary coordinates are listed in Appendix A to this 
subpart.



Sec. 922.81  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Areas of Special Biological Significance (ASBS) are those areas 
designated by California's State Water Resources Control Board as 
requiring protection of species or biological communities to the extent 
that alteration of natural water quality is undesirable. ASBS are a 
subset of State Water Quality Protection Areas established pursuant to 
California Public Resources Code section 36700 et seq.
    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.



Sec. 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 or gas except that 
pipelines related to hydrocarbon operations adjacent to the Sanctuary 
may be placed at a distance greater than 2 nmi from the Farallon 
Islands, Bolinas Lagoon and Areas of Special Biological Significance 
(ASBS) where certified to have no significant effect on Sanctuary 
resources in accordance with Sec. 922.84.
    (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, 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;
    (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

[[Page 143]]

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; or
    (iv) Vessel engine or generator exhaust.
    (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, 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 
exclusions listed in paragraphs (a)(2)(i) through (iv) 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 Sec. 922.82(a)(16));
    (ii) While conducting lawful fishing activities;
    (iii) The laying of pipelines related to hydrocarbon operations in 
leases adjacent to the Sanctuary in accordance with paragraph (a)(1) of 
this section;
    (iv) Routine maintenance and construction of docks and piers on 
Tomales Bay; or
    (v) Mariculture activities conducted pursuant to a valid lease, 
permit, license or other authorization issued by the State of 
California.
    (6) Operating any vessel engaged in the trade of carrying cargo 
within an area extending 2 nmi from the Farallon Islands, Bolinas Lagoon 
or any ASBS. 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 Islands or mainland areas adjacent to Sanctuary waters or any 
ASBS. In no event shall this section be construed to limit access for 
fishing, recreational or research vessels.
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft 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.
    (8) Disturbing birds or marine mammals by flying motorized aircraft 
at less than 1000 feet over the waters within one nmi of the Farallon 
Islands, Bolinas Lagoon, or any ASBS except to transport persons or 
supplies to or from the Islands or for 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 mariculture activities in Tomales Bay 
pursuant to a valid lease, permit, license or other authorization issued 
by the State of California and in effect on the effective date of the 
final regulation.
    (11) 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.
    (12) 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.
    (13) Attracting a white shark in the Sanctuary; or approaching 
within 50 meters of any white shark within the line approximating 2 nmi 
around the Farallon Islands. The coordinates for the line approximating 
2 nmi around the Farallon Islands are listed in Appendix B 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 mariculture operations conducted 
pursuant to a valid lease, permit or license. The coordinates for the 
no-anchoring seagrass protection zones are listed in Appendix C to this 
subpart.
    (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, or

[[Page 144]]

except as may be permitted by the Director in accordance with Sec. 
922.48 and Sec. 922.83.



Sec. 922.83  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.82 if 
such activity is specifically authorized by, and conducted in accordance 
with the scope, purpose, terms and conditions of, a permit issued under 
Sec. 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, Gulf of the Farallones National Marine Sanctuary, 991 
Marine Dr., The Presidio, San Francisco, CA 94129.
    (2) In addition to the information listed in Sec. 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.



Sec. 922.84  Certification of other permits.

    A permit, license, or other authorization allowing: the laying of 
any pipeline related to hydrocarbon operations in leases adjacent to the 
Sanctuary and placed at a distance greater than 2 nmi from the Farallon 
Islands, Bolinas Lagoon, and any ASBS must be certified by the Director 
as consistent with the purpose of the Sanctuary and having no 
significant effect on Sanctuary resources. Such certification may impose 
terms and conditions as deemed appropriate to ensure consistency. 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. Any certification called for in 
this section shall be presumed unless the Director acts to deny or 
condition certification within 60 days from the date that the Director 
receives notice of the proposed permit and the necessary supporting 
data. The Director may amend, suspend, or revoke any certification made 
under this section whenever continued operation would violate any terms 
or conditions of the certification. Any such action shall be forwarded 
in writing to both the holder of the certified permit and the issuing 
agency and shall set forth reason(s) for the action taken.



    Sec. Appendix A to Subpart H of Part 922--Gulf of the 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
------------------------------------------------------------------------
             Sanctuary Boundary
1..........................................     38.29896      -123.05989
2..........................................     38.26390      -123.18138
3..........................................     38.21001      -123.11913
4..........................................     38.16576      -123.09207
5..........................................     38.14072      -123.08237
6..........................................     38.12829      -123.08742
7..........................................     38.10215      -123.09804
8..........................................     38.09069      -123.10387
9..........................................     38.07898      -123.10924
10.........................................     38.06505      -123.11711
11.........................................     38.05202      -123.12827
12.........................................     37.99227      -123.14137
13.........................................     37.98947      -123.23615
14.........................................     37.95880      -123.32312
15.........................................     37.90464      -123.38958

[[Page 145]]

 
16.........................................     37.83480      -123.42579
17.........................................     37.76687      -123.42694
18.........................................     37.75932      -123.42686
19.........................................     37.68892      -123.39274
20.........................................     37.63356      -123.32819
21.........................................     37.60123      -123.24292
22.........................................     37.59165      -123.22641
23.........................................     37.56305      -123.19859
24.........................................     37.52001      -123.12879
25.........................................     37.50819      -123.09617
26.........................................     37.49418      -123.00770
27.........................................     37.50948      -122.90614
28.........................................     37.52988      -122.85988
29.........................................     37.57147      -122.80399
30.........................................     37.61622      -122.76937
31.........................................     37.66641      -122.75105
------------------------------------------------------------------------



   Sec. Appendix B to Subpart H of Part 922--2 nmi From the Farallon 
                      Islands Boundary Coordinates

    Coordinates listed in this Appendix are unprojected (Geographic) and 
based on the North American Datum of 1983.

------------------------------------------------------------------------
   Point ID No. (2 nmi from the Farallon
             Islands Boundary)                 Latitude      Longitude
------------------------------------------------------------------------
0..........................................     37.77670      -123.14954
1..........................................     37.78563      -123.14632
2..........................................     37.79566      -123.13764
3..........................................     37.80296      -123.12521
4..........................................     37.80609      -123.11189
5..........................................     37.80572      -123.09847
6..........................................     37.80157      -123.08484
7..........................................     37.79776      -123.07836
8..........................................     37.79368      -123.06992
9..........................................     37.78702      -123.06076
10.........................................     37.77905      -123.05474
11.........................................     37.77014      -123.05169
12.........................................     37.76201      -123.05151
13.........................................     37.75758      -123.05248
14.........................................     37.76078      -123.04115
15.........................................     37.76151      -123.02803
16.........................................     37.75898      -123.01527
17.........................................     37.75267      -123.00303
18.........................................     37.74341      -122.99425
19.........................................     37.73634      -122.99017
20.........................................     37.73036      -122.97601
21.........................................     37.72042      -122.96548
22.........................................     37.70870      -122.95890
23.........................................     37.69737      -122.95720
24.........................................     37.68759      -122.95882
25.........................................     37.67768      -122.96469
26.........................................     37.66905      -122.97427
27.........................................     37.66352      -122.98478
28.........................................     37.66037      -122.99741
29.........................................     37.66029      -123.00991
30.........................................     37.66290      -123.02133
31.........................................     37.67102      -123.03830
32.........................................     37.67755      -123.04612
33.........................................     37.68844      -123.05334
34.........................................     37.69940      -123.05567
35.........................................     37.71127      -123.06858
36.........................................     37.72101      -123.07329
37.........................................     37.73167      -123.07399
38.........................................     37.73473      -123.07340
39.........................................     37.73074      -123.08620
40.........................................     37.73010      -123.09787
41.........................................     37.73265      -123.11296
42.........................................     37.73685      -123.12315
43.........................................     37.74273      -123.13124
44.........................................     37.74725      -123.13762
45.........................................     37.75467      -123.14466
46.........................................     37.76448      -123.14917
47.........................................     37.77670      -123.14954
------------------------------------------------------------------------



    Sec. Appendix C 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.
    Table C-1: Zone 1:
    Zone 1 is an area of approximately 39.9 hectares offshore south of 
Millerton Point. The eastern boundary is a straight line that connects 
points 1 and 2 listed in the coordinate table below. The southern 
boundary is a straight line that connects points 2 and 3, the western 
boundary is a straight line that connects points 3 and 4 and the 
northern boundary is a straight line that connects point 4 to point 5. 
All coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 1 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.10571.........  -122.84565
2...............................  38.09888.........  -122.83603
3...............................  38.09878.........  -122.84431
4...............................  38.10514.........  -122.84904
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 2: Zone 2 is an area of approximately 50.3 hectares that begins 
just south of Marconi and extends approximately 3 kilometers south along 
the eastern shore of Tomales Bay. The eastern boundary is the mean high 
water (MHW) line from point 1 to point 2 listed in the coordinate table 
below. The southern boundary is a straight line that connects point 2 to 
point 3. The western boundary is a series of straight lines that connect 
points 3 through 6 in sequence and then connects point 6 to point 1. All 
coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 2 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.14071.........  -122.87440
2...............................  38.11386.........  -122.85851
3...............................  38.11899.........  -122.86731
4...............................  38.12563.........  -122.86480
5...............................  38.12724.........  -122.86488
6...............................  38.13326.........  -122.87178
7...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 3: Zone 3 is an area of approximately 4.6 hectares that begins 
just south of Marshall and extends approximately 1 kilometer south along 
the eastern shore of Tomales Bay. The eastern boundary is the mean high 
water (MHW) line from point 1 to point 2

[[Page 146]]

listed in the coordinate table below. The southern boundary is a 
straight line that connects point 2 to point 3, the western boundary is 
a straight line that connects point 3 to point 4, and the northern 
boundary is a straight line that connects point 4 to point 5. All 
coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 3 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.16031.........  -122.89442
2...............................  38.15285.........  -122.88991
3...............................  38.15250.........  -122.89042
4...............................  38.15956.........  -122.89573
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 4: Zone 4 is an area of approximately 61.8 hectares that begins 
just north of Nicks Cove and extends approximately 5 kilometers south 
along the eastern shore of Tomales Bay to just south of Cypress Grove. 
The eastern boundary is the mean high water (MHW) line from point 1 to 
point 2 listed in the coordinate table below. The southern boundary is a 
straight line that connects point 2 to point 3. The western boundary is 
a series of straight lines that connect points 3 through 9 in sequence. 
The northern boundary is a straight line that connects point 9 to point 
10. All coordinates are in the Geographic Coordinate System relative to 
the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 4 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.20073.........  -122.92181
2...............................  38.16259.........  -122.89627
3...............................  38.16227.........  -122.89650
4...............................  38.16535.........  -122.90308
5...............................  38.16869.........  -122.90475
6...............................  38.17450.........  -122.90545
7...............................  38.17919.........  -122.91021
8...............................  38.18651.........  -122.91404
9...............................  38.18881.........  -122.91740
10..............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 5: Zone 5 is an area of approximately 461.4 hectares that 
begins east of Lawsons Landing and extends approximately 5 kilometers 
east and south along the eastern shore of Tomales Bay but excludes areas 
adjacent (approximately 600 meters) to the mouth of Walker Creek. The 
boundary follows the mean high water (MHW) mark from point 1 and trends 
in a southeast direction to point 2 listed in the coordinate table 
below. From point 2 the boundary trends westward in a straight line to 
point 3, then trends southward in a straight line to point 4 and then 
trends eastward in a straight line to point 5. The boundary follows the 
mean high water line from point 5 southward to point 6. The southern 
boundary is a straight line that connects point 6 to point 7. The 
eastern boundary is a series of straight lines that connect points 7 to 
9 in sequence and then connects point 9 to point 10. All coordinates are 
in the Geographic Coordinate System relative to the North American Datum 
of 1983.

------------------------------------------------------------------------
         Zone 5 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.23122.........  -122.96300
2...............................  38.21599.........  -122.93749
3...............................  38.20938.........  -122.94153
4...............................  38.20366.........  -122.93246
5...............................  38.20515.........  -122.92453
6...............................  38.20073.........  -122.92181
7...............................  38.19405.........  -122.93477
8...............................  38.20436.........  -122.94305
9...............................  38.21727.........  -122.96225
10..............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 6: Zone 6 is an area of approximately 3.94 hectares in the 
vicinity of Indian Beach along the western shore of Tomales Bay. The 
western boundary follows the mean high water (MHW) line from point 1 
northward to point 2 listed in the coordinate table below. The northern 
boundary is a straight line that connects point 2 to point 3. The 
eastern boundary is a straight line that connects point 3 to point 4. 
The southern boundary is a straight line that connects point 4 to point 
5. All coordinates are in the Geographic Coordinate System relative to 
the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 6 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.13811.........  -122.89603
2...............................  38.14040.........  -122.89676
3...............................  38.14103.........  -122.89537
4...............................  38.13919.........  -122.89391
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 7: Zone 7 is an area of approximately 32.16 hectares that 
begins just south of Pebble Beach and extends approximately 3 kilometers 
south along the western shore of Tomales Bay. The western boundary is 
the mean high water (MHW) line from point 1 to point 2 listed in the 
coordinate table below. The northern boundary is a straight line that 
connects point 2 to point 3. The eastern boundary is a series of 
straight lines that connect points 3 through 7 in sequence. The southern 
boundary is a straight line that connects point 7 to point 8. All 
coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 7 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.11034.........  -122.86544
2...............................  38.13008.........  -122.88742
3...............................  38.13067.........  -122.88620
4...............................  38.12362.........  -122.87984
5...............................  38.11916.........  -122.87491
6...............................  38.11486.........  -122.86896
7...............................  38.11096.........  -122.86468
8...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------


[[Page 147]]



             Subpart I_Gray's Reef National Marine Sanctuary

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



Sec. 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



Sec. 922.91  Definitions.

    In addition to those definitions found at Sec. 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.



Sec. 922.92  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense (subject to the 
terms and conditions of Article 5, Section 2 of the Designation 
Document) or to respond to an emergency threatening life, property, or 
the environment, or except as may be permitted by the Director in 
accordance with Sec. 922.48 and Sec. 922.93, the following activities 
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.
    (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, handline, or spearfishing gear without powerheads. (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) Except for possessing fishing gear stowed and not available for 
immediate use, possessing or using within the Sanctuary any fishing gear 
or means except rod and reel, handline, or spearfishing gear without 
powerheads.
    (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 any vessel in the Sanctuary, except as provided in

[[Page 148]]

Sec. 922.92 when responding to an emergency threatening life, property, 
or the environment.
    (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 having significant impacts shall be 
determined in consultation between the Director and the Department of 
Defense.



Sec. 922.93  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 
922.92(a)(1) through (10) if conducted in accordance within the scope, 
purpose, manner, terms and conditions of a permit issued under this 
section and Sec. 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 Sec. 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.

[[Page 149]]



            Subpart J_Fagatele Bay National Marine Sanctuary



Sec. 922.100  Scope of regulations.

    The provisions of this subpart J apply only to the area of the 
Territory of American Samoa within the boundary of the Fagatele Bay 
National Marine Sanctuary (Sanctuary). Neither the provisions of this 
subpart J nor any permit issued under their 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.



Sec. 922.101  Boundary.

    The Sanctuary 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 high high water (MHHW) line between 
Fagatele Point (14[deg]22[min]15[sec] S, 170[deg]46[min]5[sec] W) and 
Steps Point (14[deg]22[min]44[sec] S, 170[deg]45[min]27[sec] W). The 
seaward boundary of the Sanctuary is defined by a straight line between 
Fagatele Point and Steps Point.



Sec. 922.102  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense or to respond to 
an emergency threatening life, property, or the environment, or as may 
be permitted by the Director in accordance with Sec. 922.48 and Sec. 
922.104, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1)(i)(A) Gathering, taking, breaking, cutting, damaging, 
destroying, or possessing any invertebrate, coral, bottom formation, or 
marine plant.
    (B) Taking, gathering, cutting, damaging, destroying, or possessing 
any crown-of-thorns starfish (Acanthaster planci).
    (C) Possessing or using poisons, electrical charges, explosives, or 
similar environmentally destructive methods.
    (D) 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.
    (E) Possessing or using a seine, trammel net, or any type of fixed 
net.
    (ii) There shall be a rebuttable presumption that any items listed 
in this paragraph (a)(1) found in the possession of a person within the 
Sanctuary have been used, collected, or removed within or from the 
Sanctuary.
    (2)(i) Operating a vessel closer than 200 feet (60.96 meters) from 
another vessel displaying a dive flag at a speed exceeding three knots.
    (ii) Operating a vessel in a manner which causes the vessel to 
strike or otherwise cause damage to the natural features of the 
Sanctuary.
    (3) Diving or conducting diving operations from a vessel not flying 
in a conspicuous manner the international code flag alpha ``A.''
    (4) Littering, depositing, or discharging, into the waters of the 
Sanctuary, any material or other matter.
    (5) Disturbing the benthic community by dredging, filling, 
dynamiting, bottom trawling, or otherwise altering the seabed.
    (6) Removing, damaging, or tampering with any historical or cultural 
resource within the boundary of the Sanctuary.
    (7) Ensnaring, entrapping, or fishing for any sea turtle listed as a 
threatened or endangered species under the Endangered Species Act of 
1973, as amended, 16 U.S.C. 1531 et seq.
    (8) Except for law enforcement purposes, 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.
    (9) 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,

[[Page 150]]

posts, or other boundary markers related to the Sanctuary.
    (b) In addition to those activities prohibited or otherwise 
regulated under paragraph (a) of this section, the following activities 
are prohibited and thus are unlawful for any person to conduct or to 
cause to be conducted landward of the straight line connecting Fagatele 
Point (14[deg]22[min]15[sec] S, 170[deg]46[min]5[sec] W) and Matautuloa 
Benchmark (14[deg]22[min]18[sec] S, 170[deg]45[min]35[sec] W).
    (1) Possessing or using fishing poles, handlines, or trawls.
    (2) Fishing commercially.



Sec. 922.103  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 Economic and Development Planning Office 
(EDPO) will assist NOAA in the administration of the Sanctuary, and act 
as the lead agency, in conformance with the Designation Document, these 
regulations, and the terms and provisions of any grant or cooperative 
agreement. NOAA may act to deputize enforcement agents of the American 
Samoa Government (ASG) to enforce the regulations in this subpart in 
accordance with existing law. If NOAA chooses to exercise this 
provision, a memorandum of understanding shall be executed between NOAA 
and the ASG or the person(s) or entity authorized to act on their 
behalf.



Sec. 922.104  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director, in consultation with the EDPO, in accordance with this section 
and Sec. 922.48, may conduct an activity otherwise prohibited by Sec. 
922.102 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; or
    (3) For salvage or recovery operations.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management; ATTN: Sanctuary Coordinator, 
Fagatele Bay 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 Sec. 
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. A 
permit granted for research related to the Sanctuary may include, but is 
not limited to, the following conditions:
    (1) The Director may observe any activity permitted by this section;
    (2) any information obtained in the research site shall be made 
available to the public; and
    (3) The submission of one or more reports of the status of such 
research activity may be required.

[[Page 151]]



            Subpart K_Cordell Bank National Marine Sanctuary

    Effective Date Note: At 73 FR 70533, Nov. 20, 2008, subpart K of 
part 922 was revised, effective after the close of a review period of 45 
days of continuous session of Congress beginning on Nov. 20, 2008. 
Announcement of the effective date of the final regulations will be 
published in the Federal Register. For the convenience of the user, the 
revised text is set forth following the text currently in effect.



Sec. 922.110  Boundary

    The Cordell Bank National Marine Sanctuary (Sanctuary) consists of a 
397.05 square nautical mile (NM) area of marine waters approximately 50 
miles west-northwest of San Francisco, California extending at 180[deg] 
from the northernmost boundary of the Gulf of the Farallones National 
Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of the 
Bank, then south along this isobath to the GFNMS boundary and back to 
the northwest along this boundary to the beginning point. The boundary 
coordinates are listed in appendix A to this subpart.



Sec. 922.111  Prohibited or otherwise regulated activities.

    (a) Except as necessary for national defense or to respond to an 
emergency threatening life, property or the environment, or except as 
permitted in accordance with Sec. Sec. 922.48 and 922.112 or certified 
in accordance with Sec. 922.47, the following activities are prohibited 
and thus are unlawful for any person to conduct or to cause to be 
conducted:
    (1)(i) Depositing or discharging, from any location within the 
boundary of the Sanctuary, material or other matter of any kind except:
    (A) Fish, fish parts, chumming materials (bait) produced and 
discarded during routine fishing activities conducted in the Sanctuary; 
and
    (B) Water (including cooling water) and other biodegradable 
effluents incidental to use of a vessel in the Sanctuary and generated 
by: Marine sanitation devices approved by the United States Coast Guard; 
routine vessel maintenance, e.g., deck wash down; engine exhaust; or 
meals on board vessels.
    (ii) Depositing or discharging, from any location beyond the 
boundaries of the Sanctuary, material or other matter of any kind, 
except for the exclusions listed in paragraph (a)(1)(i) of this section, 
which enter the Sanctuary and injure a Sanctuary resource.
    (2) Removing, taking, or injuring or attempting to remove, take, or 
injure benthic invertebrates or algae located on Cordell Bank or within 
the 50 fathom isobath surrounding the Bank. 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. This 
prohibition does not apply to accidental removal, injury, or takings 
during normal fishing operations.
    (3) Exploring for, or developing or producing, oil, gas, or minerals 
in any area of the Sanctuary.
    (b) All activities being carried out by the Department of Defense 
(DOD) within the Sanctuary on the effective date of designation 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 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.
    (c) 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.



Sec. 922.112  Permit procedures and criteria.

    (a) If a person wishes to conduct an activity prohibited under Sec. 
922.111, that person must apply for, receive, and have in possession on 
board any vessel used a valid permit issued pursuant to this section and 
Sec. 922.48 authorizing that person to conduct that activity.
    (b) Permit applications shall be addressed to the Director, Office 
of Ocean and Coastal Resource Management;

[[Page 152]]

ATTN: Manager, Cordell Bank National Marine Sanctuary, Fort Mason, 
Building 201, San Francisco, CA 94123.
    (c) The Director, at his or her discretion, may issue a permit 
subject to such terms and conditions as deemed appropriate, to conduct 
an activity otherwise prohibited by Sec. 922.111, if the Director finds 
that the activity will further research related to Sanctuary resources; 
further the educational or historical 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 the management of 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 
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 the values for which the Sanctuary was 
designated; and the end value of the applicant's overall activity.



 Sec. Appendix A to Subpart K of Part 922--Cordell Bank National Marine 
                     Sanctuary Boundary Coordinates

------------------------------------------------------------------------
          Point No.                 Latitude              Longitude
------------------------------------------------------------------------
1...........................  38[deg]15[min]51.72[  123[deg]10[min]52.44
                               sec]                  [sec]
2...........................  38[deg]07[min]55.88[  123[deg]38[min]33.53
                               sec]                  [sec]
3...........................  38[deg]06[min]45.21[  123[deg]38[min]00.40
                               sec]                  [sec]
4...........................  38[deg]04[min]58.41[  123[deg]37[min]14.34
                               sec]                  [sec]
5...........................  38[deg]04[min]28.22[  123[deg]37[min]17.83
                               sec]                  [sec]
6...........................  38[deg]03[min]42.75[  123[deg]36[min]55.66
                               sec]                  [sec]
7...........................  38[deg]03[min]11.10[  123[deg]36[min]19.78
                               sec]                  [sec]
8...........................  38[deg]02[min]46.12[  123[deg]36[min]21.98
                               sec]                  [sec]
9...........................  38[deg]02[min]02.74[  123[deg]35[min]56.56
                               sec]                  [sec]
10..........................  38[deg]01[min]27.10[  123[deg]35[min]55.12
                               sec]                  [sec]
11..........................  38[deg]01[min]22.28[  123[deg]36[min]55.13
                               sec]                  [sec]
12..........................  38[deg]01[min]11.54[  123[deg]37[min]28.21
                               sec]                  [sec]
13..........................  38[deg]00[min]49.16[  123[deg]37[min]29.77
                               sec]                  [sec]
14..........................  37[deg]59[min]54.49[  123[deg]36[min]47.90
                               sec]                  [sec]
15..........................  37[deg]59[min]12.39[  123[deg]35[min]59.55
                               sec]                  [sec]
16..........................  37[deg]58[min]39.40[  123[deg]35[min]14.85
                               sec]                  [sec]
17..........................  37[deg]58[min]00.57[  123[deg]34[min]42.93
                               sec]                  [sec]
18..........................  37[deg]57[min]18.99[  123[deg]33[min]43.15
                               sec]                  [sec]
19..........................  37[deg]56[min]56.42[  123[deg]32[min]51.97
                               sec]                  [sec]
20..........................  37[deg]56[min]18.90[  123[deg]32[min]49.24
                               sec]                  [sec]
21..........................  37[deg]55[min]22.37[  123[deg]32[min]36.96
                               sec]                  [sec]
22..........................  37[deg]54[min]26.10[  123[deg]32[min]21.73
                               sec]                  [sec]
23..........................  37[deg]53[min]07.46[  123[deg]31[min]46.81
                               sec]                  [sec]
24..........................  37[deg]52[min]34.93[  123[deg]31[min]18.90
                               sec]                  [sec]
25..........................  37[deg]51[min]42.81[  123[deg]31[min]19.10
                               sec]                  [sec]
26..........................  37[deg]50[min]59.58[  123[deg]31[min]02.96
                               sec]                  [sec]
27..........................  37[deg]49[min]22.64[  123[deg]29[min]34.07
                               sec]                  [sec]
28..........................  37[deg]48[min]49.14[  123[deg]28[min]44.61
                               sec]                  [sec]
29..........................  37[deg]48[min]36.95[  123[deg]28[min]08.29
                               sec]                  [sec]
30..........................  37[deg]48[min]03.37[  123[deg]28[min]23.27
                               sec]                  [sec]
31..........................  37[deg]47[min]41.54[  123[deg]28[min]01.97
                               sec]                  [sec]
32..........................  37[deg]47[min]01.78[  123[deg]27[min]16.78
                               sec]                  [sec]
33..........................  37[deg]46[min]51.92[  123[deg]26[min]48.98
                               sec]                  [sec]
34..........................  37[deg]46[min]13.20[  123[deg]26[min]04.79
                               sec]                  [sec]
35..........................  37[deg]46[min]00.73[  123[deg]25[min]36.99
                               sec]                  [sec]
36..........................  37[deg]50[min]25.31[  123[deg]25[min]26.53
                               sec]                  [sec]
37..........................  37[deg]54[min]32.28[  123[deg]23[min]16.49
                               sec]                  [sec]
38..........................  37[deg]57[min]45.71[  123[deg]19[min]17.72
                               sec]                  [sec]
39..........................  37[deg]59[min]29.27[  123[deg]14[min]12.16
                               sec]                  [sec]
40..........................  37[deg]59[min]43.71[  123[deg]08[min]27.55
                               sec]                  [sec]
41..........................  38[deg]03[min]10.20[  123[deg]07[min]44.35
                               sec]                  [sec]
42..........................  38[deg]04[min]01.64[  123[deg]06[min]58.92
                               sec]                  [sec]
43..........................  38[deg]08[min]33.32[  123[deg]04[min]56.24
                               sec]                  [sec]
44..........................  38[deg]12[min]42.06[  123[deg]07[min]10.21
                               sec]                  [sec]
------------------------------------------------------------------------


[61 FR 51577, Oct. 3, 1996]

    Effective Date Note: At 73 FR 70533, Nov. 20, 2008, subpart K of 
part 922 was revised, effective after the close of a review period of 45 
days of continuous session of Congress beginning on Nov. 20, 2008. 
Announcement of the effective date of the final regulations will be 
published in the Federal Register. For the convenience of the user, the 
revised text is set forth as follows:



            Subpart K_Cordell Bank National Marine Sanctuary



Sec. 922.110  Boundary.

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



Sec. 922.111  Definitions.

    In addition to the definitions found in Sec. 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

[[Page 153]]

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.
    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.



Sec. 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)(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, 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 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; 
or
    (D) Vessel engine or generator exhaust.
    (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, 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)(1)(i) and (a)(1)(ii) of this section.
    (2) 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. 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.
    (3) Exploring for, or developing or producing, oil, gas, or minerals 
in any area of the Sanctuary.
    (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.
    (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.
    (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) 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.
    (b) The prohibitions in paragraph (a) of this section do not apply 
to activities necessary to respond to an emergency threatening life, 
property or the environment, or

[[Page 154]]

except as may be permitted by the Director in accordance with Sec. 
922.48 and Sec. 922.113.
    (c) All activities being carried out by the Department of Defense 
(DOD) within the Sanctuary on the effective date of designation 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 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) 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.



Sec. 922.113  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.112 if 
such activity is specifically authorized by, and conducted in accordance 
with the scope, purpose, terms and conditions of, a permit issued under 
Sec. 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 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) 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, Cordell Bank National Marine Sanctuary, P.O. Box 159, 
Olema, CA 94950.
    (2) In addition to the information listed in Sec. 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.



 Sec. 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
------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     38.26390      -123.18138
2..........................................     38.13219      -123.64265
3..........................................     38.11256      -123.63344
4..........................................     38.08289      -123.62065
5..........................................     38.07451      -123.62162
6..........................................     38.06188      -123.61546
7..........................................     38.05308      -123.60549
8..........................................     38.04614      -123.60611
9..........................................     38.03409      -123.59904
10.........................................     38.02419      -123.59864
11.........................................     38.02286      -123.61531
12.........................................     38.01987      -123.62450
13.........................................     38.01366      -123.62494
14.........................................     37.99847      -123.61331
15.........................................     37.98678      -123.59988
16.........................................     37.97761      -123.58746
17.........................................     37.96683      -123.57859
18.........................................     37.95528      -123.56199
19.........................................     37.94901      -123.54777
20.........................................     37.93858      -123.54701
21.........................................     37.92288      -123.54360
22.........................................     37.90725      -123.53937
23.........................................     37.88541      -123.52967
24.........................................     37.87637      -123.52192
25.........................................     37.86189      -123.52197

[[Page 155]]

 
26.........................................     37.84988      -123.51749
27.........................................     37.82296      -123.49280
28.........................................     37.81365      -123.47906
29.........................................     37.81026      -123.46897
30.........................................     37.80094      -123.47313
31.........................................     37.79487      -123.46721
32.........................................     37.78383      -123.45466
33.........................................     37.78109      -123.44694
34.........................................     37.77033      -123.43466
35.........................................     37.76687      -123.42694
36.........................................     37.83480      -123.42579
37.........................................     37.90464      -123.38958
38.........................................     37.95880      -123.32312
39.........................................     37.98947      -123.23615
40.........................................     37.99227      -123.14137
41.........................................     38.05202      -123.12827
42.........................................     38.06505      -123.11711
43.........................................     38.07898      -123.10924
44.........................................     38.09069      -123.10387
45.........................................     38.10215      -123.09804
46.........................................     38.12829      -123.08742
47.........................................     38.14072      -123.08237
48.........................................     38.16576      -123.09207
49.........................................     38.21001      -123.11913
50.........................................     38.26390      -123.18138
------------------------------------------------------------------------



   Sec. 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
------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     37.96034      -123.40371
2..........................................     37.96172      -123.42081
3..........................................     37.99110      -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
------------------------------------------------------------------------



         Subpart L_Flower Garden Banks National Marine Sanctuary



Sec. 922.120  Boundary.

    The Flower Garden Banks National Marine Sanctuary (the Sanctuary) 
consists of three separate areas of ocean waters over and surrounding 
the East and West Flower Garden Banks and Stetson Bank, and the 
submerged lands thereunder including the Banks, in the northwestern Gulf 
of Mexico. The area designated at the East Bank is located approximately 
120 nautical miles (nmi) south-southwest of Cameron, Louisiana, and 
encompasses 19.20 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]



Sec. 922.121  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definition applies to this subpart:
    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 ``\1/4\ \1/4\ \1/
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.

[65 FR 81178, Dec. 22, 2000]

[[Page 156]]



Sec. 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 on a 
Sanctuary mooring buoy.
    (3)(i) Discharging or depositing, from within the boundaries of 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;
    (B) Biodegradable effluents 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, 33 U.S.C. 1322;
    (C) Water generated by routine vessel operations (e.g., cooling 
water, deck wash down, and graywater as defined by section 312 of the 
Federal Water Pollution Control Act, as amended, 33 U.S.C. 1322) 
excluding oily wastes from bilge pumping;
    (D) Engine exhaust; or
    (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) 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 by anchoring); 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) 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.
    (8) 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).
    (9) 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.
    (10) 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.

[[Page 157]]

    (c) The prohibitions in paragraphs (a)(2) (i), (iii), and (iv), (4) 
and (10) 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 (10) 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 (10) 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 (10) 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 (10) 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 (10) 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 Sec. 922.48 and Sec. 922.123 or a Special 
Use permit issued pursuant to section 310 of the Act.
    (g) The prohibitions in paragraphs (a) (2) through (10) 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 Sec. 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 
Sec. 922.48 and Sec. 922.123 or a Special Use permit under section 10 
of the Act authorizing, or otherwise approve, the exploration for, 
development of, or production of oil, gas or minerals in a no-activity 
zone. Any leases, permits, approvals, or other authorizations 
authorizing the exploration for, development of, or production of oil, 
gas or minerals in a no-activity zone and issued after the January 18, 
1994 shall be invalid.

[60 FR 66877, Dec. 27, 1995, as amended at 66 FR 58371, Nov. 21, 2001]



Sec. 922.123  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.122(a) 
(2) through (10) if conducted in accordance with the scope, purpose, 
terms, and conditions of a permit issued under this section and Sec. 
922.48.
    (b) Applications for such permits should be addressed to the 
Director, Office of Ocean and Coastal Resource Management; ATTN: 
Manager, Flower Garden Banks National Marine Sanctuary, 216 West 26th 
Street, Suite 104, Bryan, TX 77803.
    (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 Sec. 922.122(a) (2)

[[Page 158]]

through (10), 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]



 Sec. 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 deg. 52[min] 53.82718[sec]         93 deg. 37[min] 41.30310[sec]
E-2.................................  27 deg. 53[min] 34.83434[sec]         93 deg. 38[min] 23.35445[sec]
E-3.................................  27 deg. 55[min] 13.64286[sec]         93 deg. 38[min] 40.34368[sec]
E-4.................................  27 deg. 57[min] 30.71927[sec]         93 deg. 38[min] 33.26982[sec]
E-5.................................  27 deg. 58[min] 27.66896[sec]         93 deg. 37[min] 46.12447[sec]
E-6.................................  27 deg. 59[min] 01.41554[sec]         93 deg. 35[min] 31.74954[sec]
E-7.................................  27 deg. 59[min] 00.50888[sec]         93 deg. 35[min] 09.69198[sec]
E-8.................................  27 deg. 55[min] 22.38258[sec]         93 deg. 34[min] 14.79162[sec]
E-9.................................  27 deg. 54[min] 04.05605[sec]         93 deg. 34[min] 18.88720[sec]
E-10................................  27 deg. 53[min] 26.70972[sec]         93 deg. 35[min] 05.00978[sec]
E-11................................  27 deg. 52[min] 52.06998[sec]         93 deg. 36[min] 57.23078[sec]
----------------------------------------------------------------------------------------------------------------
                                        West Flower Garden Bank: (NAD 27)
----------------------------------------------------------------------------------------------------------------
W-1.................................  27 deg. 49[min] 10.16324[sec]         93 deg. 50[min] 45.27154[sec]
W-2.................................  27 deg. 50[min] 12.35976[sec]         93 deg. 52[min] 10.47158[sec]
W-3.................................  27 deg. 51[min] 12.82777[sec]         93 deg. 52[min] 51.63488[sec]
W-4.................................  27 deg. 51[min] 32.41145[sec]         93 deg. 52[min] 50.66983[sec]
W-5.................................  27 deg. 52[min] 49.88791[sec]         93 deg. 52[min] 24.77053[sec]
W-6.................................  27 deg. 55[min] 00.93450[sec]         93 deg. 49[min] 43.68090[sec]
W-7.................................  27 deg. 54[min] 58.33040[sec]         93 deg. 48[min] 37.54501[sec]
W-8.................................  27 deg. 54[min] 35.26067[sec]         93 deg. 47[min] 10.34866[sec]
W-9.................................  27 deg. 54[min] 14.80334[sec]         93 deg. 46[min] 49.28963[sec]
W-10................................  27 deg. 53[min] 35.63704[sec]         93 deg. 46[min] 51.25825[sec]
W-11................................  27 deg. 52[min] 57.34474[sec]         93 deg. 47[min] 15.26428[sec]
W-12................................  27 deg. 50[min] 40.26361[sec]         93 deg. 47[min] 22.14179[sec]
W-13................................  27 deg. 49[min] 10.89894[sec]         93 deg. 48[min] 42.72307[sec]
----------------------------------------------------------------------------------------------------------------
                                             Stetson Bank: (NAD 27)
----------------------------------------------------------------------------------------------------------------
S-1.................................  28 deg. 09[min] 30.06738[sec]         94 deg. 18[min] 31.34461[sec]
S-2.................................  28 deg. 10[min] 09.24374[sec]         94 deg. 18[min] 29.57042[sec]
S-3.................................  28 deg. 10[min] 06.88036[sec]         94 deg. 17[min] 23.26201[sec]

[[Page 159]]

 
S-4.................................  28 deg. 09[min] 27.70425[sec]         94 deg. 17[min] 25.04315[sec]
----------------------------------------------------------------------------------------------------------------
                                        East Flower Garden Bank: (NAD 83)
----------------------------------------------------------------------------------------------------------------
E-1.................................  27 deg. 52[min] 54.84288[sec]         93 deg. 37[min] 41.84187[sec]
E-2.................................  27 deg. 53[min] 35.80428[sec]         93 deg. 38[min] 23.89520[sec]
E-3.................................  27 deg. 55[min] 14.61048[sec]         93 deg. 38[min] 40.88638[sec]
E-4.................................  27 deg. 57[min] 31.68349[sec]         93 deg. 38[min] 33.81421[sec]
E-5.................................  27 deg. 58[min] 28.63153[sec]         93 deg. 37[min] 46.66809[sec]
E-6.................................  27 deg. 59[min] 02.37658[sec]         93 deg. 35[min] 32.28918[sec]
E-7.................................  27 deg. 59[min] 01.46983[sec]         93 deg. 35[min] 10.23088[sec]
E-8.................................  27 deg. 55[min] 23.34849[sec]         93 deg. 34[min] 15.32560[sec]
E-9.................................  27 deg. 54[min] 05.02387[sec]         93 deg. 34[min] 19.42020[sec]
E-10................................  27 deg. 53[min] 27.67871[sec]         93 deg. 35[min] 05.54379[sec]
E-11................................  27 deg. 52[min] 53.04047[sec]         93 deg. 36[min] 57.76805[sec]
----------------------------------------------------------------------------------------------------------------
                                        West Flower Garden Bank: (NAD 83)
----------------------------------------------------------------------------------------------------------------
W-1.................................  27 deg. 49[min] 11.14452[sec]         93 deg. 50[min] 45.83401[sec]
W-2.................................  27 deg. 50[min] 13.34001[sec]         93 deg. 52[min] 11.03791[sec]
W-3.................................  27 deg. 51[min] 13.80672[sec]         93 deg. 52[min] 52.20349[sec]
W-4.................................  27 deg. 51[min] 33.38988[sec]         93 deg. 52[min] 51.23867[sec]
W-5.................................  27 deg. 52[min] 50.86415[sec]         93 deg. 52[min] 25.33954[sec]
W-6.................................  27 deg. 55[min] 01.90633[sec]         93 deg. 49[min] 44.24605[sec]
W-7.................................  27 deg. 54[min] 59.30189[sec]         93 deg. 48[min] 38.10780[sec]
W-8.................................  27 deg. 54[min] 36.23221[sec]         93 deg. 47[min] 10.90806[sec]
W-9.................................  27 deg. 54[min] 15.77527[sec]         93 deg. 46[min] 49.84801[sec]
W-10................................  27 deg. 53[min] 36.60997[sec]         93 deg. 46[min] 51.81616[sec]
W-11................................  27 deg. 52[min] 58.31880[sec]         93 deg. 47[min] 15.82251[sec]
W-12................................  27 deg. 50[min] 41.24120[sec]         93 deg. 47[min] 22.69837[sec]
W-13................................  27 deg. 49[min] 11.87936[sec]         93 deg. 48[min] 43.28125[sec]
----------------------------------------------------------------------------------------------------------------
                                             Stetson Bank: (NAD 83)
----------------------------------------------------------------------------------------------------------------
S-1.................................  28 deg. 09[min] 31.02671[sec]         94 deg. 18[min] 31.98164[sec]
S-2.................................  28 deg. 10[min] 10.20196[sec]         94 deg. 18[min] 30.20776[sec]
S-3.................................  28 deg. 10[min] 07.83821[sec]         94 deg. 17[min] 23.89688[sec]
S-4.................................  28 deg. 09[min] 28.66320[sec]         94 deg. 17[min] 25.67770[sec]
----------------------------------------------------------------------------------------------------------------


[65 FR 81178, Dec. 22, 2000]



Sec. 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)

SE\1/4\, SW\1/4\; S\1/2\, NE\1/4\, SE\1/4\; SE\1/4\, NW\1/4\, SE\1/4\; 
          S\1/2\, SE\1/4\.

                               Block A-376

W\1/2\, NW\1/4\, SW\1/4\; SW\1/4\, SW\1/4\, SW\1/4\.

                               Block A-374

W\1/2\, NW\1/4\, NW\1/4\; W\1/2\, SW\1/4\, NW\1/4\; SE\1/4\, SW\1/4\, 
          NW\1/4\; SW\1/4\,
NE\1/4\, SW\1/4\, W\1/2\, SW\1/4\; W\1/2\, SE\1/4\, SW\1/4\; SE\1/4\, 
          SE\1/4\, SW\1/4\.

                               Block A-375

E\1/2\; E\1/2\, NW\1/4\; E\1/2\, NW\1/4\, NW\1/4\; SW\1/4\, NW\1/4\, 
          NW\1/4\; E\1/2\,
SW\1/4\, NW\1/4\; NW\1/4\, SW\1/4\, NW\1/4\; SW\1/4\.

                               Block A-388

NE\1/4\; E\1/2\, NW\1/4\; E\1/2\, NW\1/4\, NW\1/4\; NE\1/4\, SW\1/4\, 
          NW\1/4\; E\1/2\,
NE\1/4\, SW\1/4\; NW\1/4\, NE\1/4\, SW\1/4\; NE\1/4\, NW\1/4\, SW\1/4\; 
          NE\1/4\,
SE\1/4\, SW\1/4\, NE\1/4\; NE\1/4\, NE\1/4\, SE\1/4\; W\1/2\, NE\1/4\, 
          SE\1/4\; NW\1/4\,

                               Block A-389

NE\1/4\, NW\1/4\; NW\1/4\, NW\1/4\; SW\1/4\, NW\1/4\; NE\1/4\, SE\1/4\, 
          NW\1/4\; W\1/2\,
SE\1/4\, NW\1/4\; N\1/2\, NW\1/4\, SW\1/4\.

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)

E\1/2\, SE\1/4\, SE\1/4\; SW\1/4\, SE\1/4\, SE\1/4\.

[[Page 160]]

                               Block A-384

W\1/2\, SW\1/4\, NE\1/4\; SE\1/4\, SW\1/4\, NE\1/4\; S\1/2\, SE\1/4\, 
          NE\1/4\;
SE\1/4\, NW\1/4\; E\1/2\, SW\1/4\; E\1/2\, NW\1/4\, SW\1/4\, SW\1/4\, 
          NW\1/4\,
SW\1/4\; SW\1/4\, SW\1/4\; SE\1/4\.

                               Block A-385

SW\1/4\, SW\1/4\, NW\1/4\; NW\1/4\, SW\1/4\; NW\1/4\, SW\1/4\, SW\1/4\.

                               Block A-397

W\1/2\, W\1/2\, NW\1/4\; W\1/2\, NW\1/4\, SW\1/4\; NW\1/4\; SW\1/4\, 
          SW\1/4\.

                               Block A-398

    Entire block.

                               Block A-399

E\1/2\, SE\1/4\, NE\1/4\, NW\1/4\; E\1/2\, SE\1/4\, NW\1/4\; E\1/2\, 
          NE\1/4\, SW\1/4\;
SW\1/4\, NE\1/4\, SW\1/4\; NE\1/4\, SE\1/4\, SW\1/4\.

                               Block A-401

NE\1/4\, NE\1/4\; N\1/2\, NW\1/4\, NE\1/4\; NE\1/4\, SE\1/4\, NE\1/4\.

      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[foot], Y=10,096,183.00[foot], 
with a point on the west boundary of Block 134, X=1,367,079,385[foot], 
Y=10,096,183.000[foot], 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[foot], Y=10,103,281.930[foot], with a point on the west 
boundary of Official Protraction Diagram NG15-02, Block 135, 
X=1,378,080.000[foot], Y=10,096,183.000[foot], defined under the 
Universal Transverse Mercator grid system.

[65 FR 81180, Dec. 22, 2000]



            Subpart M_Monterey Bay National Marine Sanctuary

    Effective Date Note: At 73 FR 70535, Nov. 20, 2008, subpart M of 
part 922 was revised, effective after the close of a review period of 45 
days of continuous session of Congress beginning on Nov. 20, 2008. 
Announcement of the effective date of the final regulations will be 
published in the Federal Register. For the convenience of the user, the 
revised text is set forth following the text currently in effect.



Sec. 922.130  Boundary.

    (a) The Monterey Bay National Marine Sanctuary (Sanctuary) consists 
of an area of approximately 4,024 square nautical miles of coastal and 
ocean waters, and the submerged lands thereunder, in and surrounding 
Monterey Bay, off the central coast of California.
    (b) The northern terminus of the boundary is located along the 
southern boundary of the Gulf of the Farallones National Marine 
Sanctuary (GFNMS) and runs westward to approximately 123[deg]07[min]W. 
The boundary then extends south in an arc which generally follows the 
500 fathom isobath. At approximately 37[deg]03[min]N, the boundary arcs 
south to 122[deg]25[min]W, 36[deg]10[min]N, due west of Partington 
Point. The boundary again follows the 500 fathom isobath south to 
121[deg]41[min]W, 35[deg]33[min]N, due west of Cambria. The boundary 
then extends shoreward towards the mean high-water line. The landward 
boundary is defined by the mean high-water line between the GFNMS and 
Cambria, exclusive of a small area off the north coast of San Mateo 
County and the City and County of San Francisco between Point Bonita and 
Point San Pedro. Pillar Point, Santa Cruz, Moss Landing and Monterey 
harbors are excluded from the Sanctuary boundary shoreward from their 
respective International Collision at Sea regulation (Colreg.) 
demarcation lines except for Moss Landing Harbor, where all of Elkhorn 
Slough east of the Highway One bridge is included within the Sanctuary 
boundary. The boundary coordinates are listed in appendix A to this 
subpart.



Sec. 922.131  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Attract or attracting means the conduct of any activity that lures 
or may lure white sharks by using food, bait, chum, dyes, acoustics or 
any other means, except the mere presence of human beings (e.g., 
swimmers, divers, boaters, kayakers, surfers).
    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.

[[Page 161]]

    Hand tool means a hand-held implement, utilized for the collection 
of jade pursuant to Sec. 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.
    Motorized personal water craft means any motorized vessel that is 
less than fifteen feet in length as manufactured, is capable of 
exceeding a speed of fifteen knots, and has the capacity to carry not 
more than the operator and one other person while in operation. The term 
includes, but is not limited to, jet skis, wet bikes, surf jets, 
miniature speed boats, air boats, and hovercraft.

[60 FR 66877, Dec. 27, 1995, as amended at 61 FR 66917, Dec. 19, 1996; 
63 FR 15087, Mar. 30, 1998]



Sec. 922.132  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) 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[deg]55[min]20[sec] N latitude parallel 
(coastal reference point: beach access stairway at south Sand Dollar 
Beach), the 35[deg]53[min]20[sec] 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 seabed may be collected;
    (ii) No tool may be used to collect jade except:
    (A) A hand tool (as defined in Sec. 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 Sec. 922.133.
    (2)(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;
    (D) Engine exhaust; or
    (E) 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.
    (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)(2)(i) (A) through (D) of this section and 
dredged material deposited at the authorized disposal sites described in 
appendix B 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) Moving, removing or injuring, or attempting to move, remove or 
injure, a Sanctuary historical resource. This prohibition does not apply 
to moving,

[[Page 162]]

removing or injury resulting incidentally from kelp harvesting, 
aquaculture or traditional fishing operations.
    (4) Drilling into, dredging or otherwise altering the seabed of the 
Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary except as an 
incidental result of:
    (i) Anchoring vessels;
    (ii) Aquaculture, kelp harvesting or traditional fishing operations;
    (iii) Installation of navigation aids;
    (iv) Harbor maintenance in the areas necessarily associated with 
Federal Projects in existence on January 1, 1993, including dredging of 
entrance channels and repair, replacement or rehabilitation of 
breakwaters and jetties;
    (v) Construction, repair, replacement or rehabilitation of docks or 
piers; or
    (vi) Collection of 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 the seabed of the Sanctuary.
    (5) Taking any marine mammal, sea turtle or seabird in or above the 
Sanctuary, except as permitted by regulations, as amended, promulgated 
under 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) Flying motorized aircraft, except as necessary for valid law 
enforcement purposes, at less than 1000 feet above any of the four zones 
within the Sanctuary described in appendix C to this subpart.
    (7) Operating motorized personal water craft within the Sanctuary 
except within the four designated zones and access routes within the 
Sanctuary described in appendix D to this subpart.
    (8) 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, sea turtle or 
seabird taken in violation of regulations, as amended, promulgated under 
the MMPA, ESA or MBTA.
    (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.
    (10) Attracting any white shark in that part of the Sanctuary out to 
the seaward limit of State waters. For the purposes of this prohibition, 
the seaward limit of State waters is a line three nautical miles distant 
from the coastline of the State, where the coastline is the line of 
ordinary low water along the portion of the coast in direct contact with 
the open sea. The coastline for Monterey Bay, which is inland waters, is 
the straight line marking the seaward limit of the Bay, determined by 
connecting the following two points: 36[deg]57[min]6[sec] N, 
122[deg]01[min]45[sec] W and 36[deg]38[min]16[sec] N, 
121[deg]56[min]3[sec] W.
    (b) The prohibitions in paragraphs (a)(2) through (9) of this 
section do not apply to activities necessary to respond to emergencies 
threatening life, property or the environment.
    (c)(1) All Department of Defense activities shall 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 (9) 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, Suite D, Monterey, CA 
93940). New activities may be exempted from the prohibitions in 
paragraphs (a) (2) through (9) of this section by the Director after 
consultation between the Director and the Department of Defense.
    (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

[[Page 163]]

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 paragraph (a)(1) of this section as it 
pertains to jade collection in the Sanctuary, paragraphs (a) (2) and (8) 
of this section, and paragraph (a)(10) 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 
Sec. Sec. 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 (8) of this 
section do not apply to any activity authorized by any lease, permit, 
license, approval or other authorization issued after January 1, 1993 
and issued by any Federal, State or local authority of competent 
jurisdiction, provided that the applicant complies with Sec. 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 National Marine Sanctuary permit under 
Sec. Sec. 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 Sec. 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.

[60 FR 66877, Dec. 27, 1995, as amended at 61 FR 66917, Dec. 19, 1996; 
62 FR 35338, July 1, 1997; 63 FR 15087, Mar. 30, 1998]



Sec. 922.133  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 
922.132(a)(1) as it pertains to jade collection in the Sanctuary, Sec. 
922.132(a) (2) through (8), and Sec. 922.132(a) (10), 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 Ocean and Coastal Resource Management; ATTN: 
Manager, Monterey Bay National Marine Sanctuary, 299 Foam Street, Suite 
D, Monterey, CA 93940.
    (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 Sec. 922.132(a)(1) as it pertains to 
jade collection in the Sanctuary, Sec. 922.132(a) (2) through (8), and 
Sec. 922.132(a)(10) if the Director finds 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; allow the 
removal, without the use of pneumatic, mechanical, electrical, hydraulic 
or explosive tools, of loose jade from the Jade Cove area under Sec. 
922.132(a)(1)(iv); assist in managing the Sanctuary; or further salvage 
or recovery operations in connection with an abandoned shipwreck in the 
Sanctuary title to which is held by the State of California. 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

[[Page 164]]

procedures proposed by the applicant for the conduct of the activity; 
the extend 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. For jade collection, 
preference will be given for applications proposing to collect loose 
pieces of jade for research or educational purposes. 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.

[60 FR 66877, Dec. 27, 1995, as amended at 63 FR 15088, Mar. 30, 1998]



Sec. 922.134  Notification and review.

    (a) [Reserved]
    (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 Sec. 13377 of the California 
Water Code; and
    (ii) Waste Discharge Requirements issued by the State of California 
under Sec. 13263 of the California Water Code.
    (2) The MOA specifies how the process of Sec. 922.49 will be 
administered within State waters within the Sanctuary in coordination 
with the State permit program.

[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 62694, Nov. 25, 1997]



 Sec. Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
                     Sanctuary Boundary Coordinates

            [Appendix based on North American datum of 1983.]
------------------------------------------------------------------------
               Point                     Latitude          Longitude
------------------------------------------------------------------------
1.................................  37[deg]52[min]56.  122[deg]37[min]39
                                           09055[sec]        .12564[sec]
2.................................  37[deg]39[min]59.    122[deg]45[min]
                                           06176[sec]       3.79307[sec]
3.................................  37[deg]36[min]58.    122[deg]46[min]
                                           39164[sec]       9.73871[sec]
4.................................  37[deg]34[min]17.  122[deg]48[min]14
                                           30224[sec]        .38141[sec]
5.................................  37[deg]31[min]47.  122[deg]51[min]35
                                           55649[sec]        .56769[sec]
6.................................  37[deg]30[min]34.  122[deg]54[min]22
                                           11030[sec]        .12170[sec]
7.................................  37[deg]29[min]39.  123[deg]00[min]27
                                           05866[sec]        .70792[sec]
8.................................  37[deg]30[min]29.  123[deg]05[min]46
                                           47603[sec]        .22767[sec]
9.................................  37[deg]31[min]17.  123[deg]07[min]47
                                           66945[sec]        .63363[sec]
10................................  37[deg]27[min]10.  123[deg]08[min]24
                                           93594[sec]        .32210[sec]
11................................  37[deg]20[min]35.  123[deg]07[min]54
                                           37491[sec]        .12763[sec]
12................................  37[deg]13[min]50.  123[deg]06[min]15
                                           21805[sec]        .50600[sec]
13................................  37[deg]07[min]48.  123[deg]01[min]43
                                           76810[sec]        .10994[sec]
14................................  37[deg]03[min]46.  122[deg]54[min]45
                                           60999[sec]        .39513[sec]
15................................  37[deg]02[min]06.  122[deg]46[min]35
                                           30955[sec]        .02125[sec]
16................................  36[deg]55[min]17.  122[deg]48[min]21
                                           56782[sec]        .41121[sec]
17................................  36[deg]48[min]22.  122[deg]48[min]56
                                           74244[sec]        .29007[sec]
18................................  36[deg]41[min]30.  122[deg]48[min]19
                                           91516[sec]        .40739[sec]
19................................  36[deg]34[min]45.  122[deg]46[min]26
                                           76070[sec]        .96772[sec]
20................................  36[deg]28[min]24.  122[deg]43[min]32
                                           18076[sec]        .43527[sec]
21................................  36[deg]22[min]20.  122[deg]39[min]28
                                           70312[sec]        .42026[sec]
22................................  36[deg]16[min]43.  122[deg]34[min]26
                                           93588[sec]        .77255[sec]
23................................  36[deg]11[min]44.  122[deg]28[min]37
                                           53838[sec]        .16141[sec]
24................................  36[deg]07[min]26.  122[deg]21[min]54
                                           88988[sec]        .97541[sec]
25................................  36[deg]04[min]07.  122[deg]14[min]39
                                           08898[sec]        .75924[sec]
26................................  36[deg]01[min]28.  122[deg]07[min]00
                                           22233[sec]        .19068[sec]
27................................  35[deg]59[min]45.  121[deg]58[min]56
                                           46381[sec]        .36189[sec]
28................................  35[deg]58[min]59.  121[deg]50[min]26
                                           12170[sec]        .47931[sec]
29................................  35[deg]58[min]53.  121[deg]45[min]22
                                           63866[sec]        .82363[sec]
30................................  35[deg]55[min]45.  121[deg]42[min]40
                                           60623[sec]        .28540[sec]
31................................  35[deg]50[min]15.  121[deg]43[min]09
                                           84256[sec]        .20193[sec]
32................................  35[deg]43[min]14.  121[deg]42[min]43
                                           26690[sec]        .79121[sec]
33................................  35[deg]35[min]41.  121[deg]41[min]25
                                           88635[sec]        .07414[sec]
34................................  35[deg]33[min]11.  121[deg]37[min]49
                                           75999[sec]        .74192[sec]
35................................  35[deg]33[min]17.  121[deg]05[min]52
                                           45869[sec]        .89891[sec]
36................................  37[deg]35[min]39.  122[deg]31[min]14
                                           73180[sec]        .96033[sec]
37................................  37[deg]36[min]49.  122[deg]37[min]00
                                           21739[sec]        .22577[sec]
38................................  37[deg]46[min]00.  122[deg]39[min]00
                                           98983[sec]        .40466[sec]
39................................  37[deg]49[min]05.  122[deg]31[min]46
                                           69080[sec]        .30542[sec]
------------------------------------------------------------------------



  Sec. Appendix B to Subpart M of Part 922--Dredged Material Disposal 
      Sites Adjacent to the Monterey Bay National Marine Sanctuary

(Appendix based on 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                     Latitude          Longitude
------------------------------------------------------------------------
1.................................  37[deg]45.875[min  122[deg]34.140[mi
                                                    ]                 n]
2.................................  37[deg]44.978[min  122[deg]37.369[mi
                                                    ]                 n]
3.................................  37[deg]44.491[min  122[deg]37.159[mi
                                                    ]                 n]
4.................................  37[deg]45.406[min  122[deg]33.889[mi
                                                    ]                 n]

[[Page 165]]

 
5.................................  37[deg]45.875[min  122[deg]34.140[mi
                                                    ]                 n]
------------------------------------------------------------------------

    In addition, the U.S. Environmental Protection Agency, as of January 
1, 1993, is (in consultation with the U.S. Army Corps of Engineers) in 
the process of establishing a dredged material disposal site outside the 
northern boundary of the Monterey Bay National Marine Sanctuary and 
within one of three study areas described in 57 FR 43310, Sept. 18, 
1992. When that disposal site is authorized, this appendix will be 
updated to incorporate its precise location.



  Sec. Appendix C 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 out to three nautical miles (NM) between a 
line extending from Point Santa Cruz on a southwesterly heading of 
220[deg] and a line extending from 2.0 NM north of Pescadero Point on a 
southwesterly heading of 240[deg];
    (2) From mean high water out to three NM between a line extending 
from the Carmel River mouth on a westerly heading of 270[deg] and a line 
extending due west along latitude 35[deg]33[min]17.5612[sec] off of 
Cambria;
    (3) From mean high water and within a five NM arc drawn from a 
center point at the end of Moss Landing Pier; and
    (4) Over the waters of Elkhorn Slough east of the Highway On bridge 
to Elkhorn Road.



Sec. Appendix D to Subpart M of Part 922--Zones and Access Routes Within 
 the Sancturary Where the Operation of Motorized Personal Watercraft Is 
                                 Allowed

    The four zones and access routes are:
    (1) The approximately one [1.0] NM\2\ area off Pillar Point Harbor 
from harbor launch ramps, through harbor entrance to the northern 
boundary of Zone One bounded by (a) 37[deg]29.6[min] N (flashing 5-
second breakwater entrance light and horn located at the seaward end of 
the outer west breakwater), 122[deg]29.1[min] W; (b) 37[deg]28.9[min] N 
(bell buoy), 122[deg]29.0[min] W; (c) 37[deg]28.8[min] N, 
122[deg]28[min] W; and (d) 37[deg]29.6[min] N, 122[deg]28[min] W;
    (2) The approximately five [5.0] NM\2\ area off of Santa Cruz Small 
Craft Harbor from harbor launch ramps, through harbor entrance, and then 
along a 100 yard wide access route southwest along a true bearing of 
approximately 196[deg] (180[deg] magnetic) to the whistle buoy at 
36[deg]56.3[min] N, 122[deg]00.6[min] W. Zone Two is bounded by (a) 
36[deg]55[min] N, 122[deg]02[min] W; (b) 36[deg]55[min] N, 
121[deg]58[min] W; (c) 36[deg]56.5[min] N, 121[deg]58[min] W; and (d) 
36[deg]56.5[min] N, 122[deg]02[min] W;
    (3) The approximately six [6.0] NM\2\ area off of Moss Landing 
Harbor from harbor launch ramps, through harbor entrance, and then along 
a 100 yard wide access route due west to the eastern boundary of Zone 
Three bounded by (a) 36[deg]50[min] N, 121[deg]49.3[min] W; (b) 
36[deg]50[min] N, 121[deg]50.8[min] W; (c) 36[deg]46.7[min] N, 
121[deg]50.8[min] W; (d) 36[deg]46.7[min] N, 121[deg]49[min] W; (e) 
36[deg]47.9[min] N (bell buoy), 121[deg]48.1[min] W; and (f) 
36[deg]48.9[min] N, 121[deg]48.2[min] W; and
    (4) The approximately five [5.0] NM\2\ 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 due north to the 
southern boundary of Zone Four bounded by (a) 36[deg]38.7[min] N, 
121[deg]55.4[min] W; (b) 36[deg]36.9[min] N, 121[deg]52.5[min] W; (c) 
36[deg]38.3[min] N, 121[deg]51.3[min] W; and (d) 36[deg]40[min] N, 
121[deg]54.4[min] W.

[60 FR 66877, Dec. 27, 1995, as amended at 61 FR 14964, Apr. 4, 1996]

    Effective Date Note: At 73 FR 70535, Nov. 20, 2008, subpart M of 
part 922 was revised, effective after the close of a review period of 45 
days of continuous session of Congress beginning on Nov. 20, 2008. 
Announcement of the effective date of the final regulations will be 
published in the Federal Register. For the convenience of the user, the 
revised text is set forth as follows:



            Subpart M_Monterey Bay National Marine Sanctuary



Sec. 922.130  Boundary.

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

[[Page 166]]

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.



Sec. 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.



Sec. 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

[[Page 167]]

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, 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

[[Page 168]]

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) 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.
    (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 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

[[Page 169]]

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.



Sec. 922.133  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 
922.132(a)(1) as it pertains to jade collection in the Sanctuary, Sec. 
922.132(a)(2) through (11), and Sec. 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 Sec. 922.132(a)(1) as it pertains to 
jade collection in the Sanctuary, Sec. 922.132(a)(2) through (11), and 
Sec. 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 Sec. 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.



Sec. 922.134  Notification and review.

    (a) [Reserved]

[[Page 170]]

    (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.



 Sec. Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
                     Sanctuary Boundary Coordinates

    [Coordinates in this appendix are unprojected (Geographic Coordinate 
System) and are calculated using the North American Datum of 1983]

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
                            Seaward Boundary
------------------------------------------------------------------------
1..........................................     37.88163      -122.62788
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.........................................     35.55485      -121.09803
36.........................................     37.59437      -122.52082
37.........................................     37.61367      -122.61673
38.........................................     37.76694      -122.65011
39.........................................     37.81760      -122.53048
------------------------------------------------------------------------
                            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
------------------------------------------------------------------------



  Sec. 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 out to three nautical miles (NM) between a 
line extending from Point Santa Cruz on a southwesterly heading bearing 
of 220[deg] true and a line extending from 2.0 nmi north of Pescadero 
Point on a southwesterly heading bearing of 240[deg] true;
    (2) From mean high water out to three nmi between a line extending 
from the Carmel River mouth on a westerly heading bearing of 270[deg] 
true and a line extending due west along latitude 35.55488[deg] off of 
Cambria;
    (3) From mean high water and within a five nmi arc drawn from a 
center point at the end of Moss Landing Pier as it appeared on the most 
current NOAA nautical charts as of January 1, 1993; and
    (4) Over the waters of Elkhorn Slough east of the Highway One bridge 
to Elkhorn Road.



  Sec. 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
------------------------------------------------------------------------

[[Page 171]]

 
              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
------------------------------------------------------------------------



  Sec. 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
------------------------------------------------------------------------



Sec. 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] NM2 area off Pillar Point Harbor 
from harbor launch ramps, through harbor entrance to the northern 
boundary of Zone One:

------------------------------------------------------------------------
                  Point ID No.                    Latitude    Longitude
------------------------------------------------------------------------
1 (flashing 5-second breakwater entrance light    37.49395    -122.48477
 and horn located at the seaward end of the
 outer west breakwater)........................
2 (bell buoy)..................................   37.48167    -122.48333
3..............................................   37.48000    -122.46667
4..............................................   37.49333    -122.46667
------------------------------------------------------------------------

    (2) The approximately five [5.0] NM2 area off of Santa Cruz Small 
Craft Harbor from harbor launch ramps, through harbor entrance, and then 
along a 100 yard wide access route southwest along a true bearing of 
approximately 196[deg] true (180[deg] magnetic) to the whistle buoy at 
36.93833N, 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] NM2 area off of Moss Landing Harbor 
from harbor launch ramps, through harbor entrance, and then along a 100 
yard wide access route west along a bearing of approximately 270[deg] 
true (255[deg] magnetic) due west to 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 (bell buoy)..............................     36.79833      -121.80167
6..........................................     36.81500      -121.80333
------------------------------------------------------------------------

    (4) The approximately five [5.0] NM2 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 due north 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] NM2 area near Pillar Point 
from Pillar Point Harbor entrance along a 100 yard wide access route 
southeast along a true bearing of approximately 174[deg] true (159[deg] 
magnetic) to the 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 true bearing of approximately 284[deg] true (269[deg] magnetic) to the 
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
------------------------------------------------------------------------



 Sec. 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]

[[Page 172]]



------------------------------------------------------------------------
                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



Sec. 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[deg]45[min]59.83[sec]Nx70[deg]13[min]01.77[sec]W (NE); 
42[deg]05[min]35.51[sec]Nx70[deg]02[min]08.14[sec]W (SE); 
42[deg]07[min]44.89[sec]Wx70[deg]28[min]15.44[sec]W (SW); 
42[deg]32[min]53.52[sec]Nx70[deg]35[min]52.38[sec]W (WNW); and 
42[deg]39[min]04.08[sec]Nx70[deg]30[min]11.29[sec]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[deg]06[min]54.57[sec]N x 
70[deg]16[min]42.7[sec] 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.



Sec. 922.141  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    Industrial material means mineral, as defined in Sec. 922.3.
    Traditional fishing means those commercial or recreational fishing 
methods which have been conducted in the past within the Sanctuary.



Sec. 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;

[[Page 173]]

    (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 Sec. 922.48 and Sec. 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 Sec. 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 Sec. 922.48 and Sec. 
922.143, or under section 310 of the act, authorizing, or otherwise 
approving, the exploration for, development or production of industrial 
materials within the Sanctuary, or the disposal of dredged materials 
within the Sanctuary (except by a certification, pursuant to Sec. 
922.47, of valid authorizations in existence on November 4, 1992)

[[Page 174]]

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.



Sec. 922.143  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 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 
Sec. 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 Sec. 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.



   Sec. Appendix A to Subpart N of Part 922--Stellwagen Bank National 
                  Marine Sanctuary Boundary Coordinates

            [Appendix Based on North American Datum of 1927]
------------------------------------------------------------------------
                                                            Loran
          Pt.             Latitude      Longitude  ---------------------
                                                      9960W      9960X
------------------------------------------------------------------------
E1                      42[deg]45[mi  70[deg]13[mi  13,607.19  25,728.57
                        n]59.83[sec]  n]01.77[sec]
E2                      42[deg]05[mi  70[deg]02[mi  13,753.39  25,401.78
                        n]35.51[sec]  n]08.14[sec]
E3                      42[deg]06[mi  70[deg]03[mi  13,756.72  25,412.46
                         n]8.25[sec]  n]17.55[sec]
E4                      42[deg]06[mi  70[deg]04[mi  13,760.30  25,417.53
                         n]2.53[sec]  n]03.36[sec]
E5                      42[deg]07[mi  70[deg]05[mi  13,764.52  25,427.27
                        n]02.70[sec]  n]13.61[sec]
E6                      42[deg]07[mi  70[deg]06[mi  13,770.54  25,434.45
                         n]13.0[sec]  n]23.75[sec]
E7                      42[deg]07[mi  70[deg]07[mi  13,775.08  25,442.51
                        n]35.95[sec]  n]27.89[sec]
E8                      42[deg]07[mi  70[deg]08[mi  13,780.35  25,448.27
                        n]42.33[sec]  n]26.07[sec]
E9                      42[deg]07[mi  70[deg]09[mi  13,784.24  25,455.02
                        n]59.94[sec]  n]19.78[sec]
E10                     42[deg]08[mi  70[deg]10[mi  13,790.27  25,461.28
                        n]04.95[sec]  n]24.40[sec]
E11                     42[deg]07[mi  70[deg]11[mi  13,799.38  25,467.56
                        n]55.19[sec]  n]47.67[sec]
E12                     42[deg]07[mi  70[deg]13[mi  13,806.58  25,474.95
                        n]59.84[sec]  n]03.35[sec]
E13                     42[deg]07[mi  70[deg]14[mi  13,815.52  25,480.62
                        n]46.55[sec]  n]21.91[sec]
E14                     42[deg]07[mi  70[deg]15[mi  13,823.21  25,484.05
                        n]27.29[sec]  n]22.95[sec]
E15                     42[deg]06[mi  70[deg]16[mi  13,833.88  25,487.79
                        n]54.57[sec]  n]42.71[sec]
E16                     42[deg]07[mi  70[deg]28[mi  13,900.14  25,563.22
                        n]44.89[sec]  n]15.44[sec]
E17                     42[deg]32[mi  70[deg]35[mi  13,821.60  25,773.51
                        n]53.52[sec]  n]52.38[sec]
E18                     42[deg]33[mi  70[deg]35[mi  13,814.43  25,773.54
                        n]30.24[sec]  n]14.96[sec]
E19                     42[deg]33[mi  70[deg]35[mi  13,811.68  25,774.28
                        n]48.14[sec]  n]03.81[sec]
E20                     42[deg]34[mi  70[deg]34[mi  13,803.64  25,774.59
                        n]30.45[sec]  n]22.98[sec]
E21                     42[deg]34[mi  70[deg]33[mi  13,795.43  25,770.55
                        n]50.37[sec]  n]21.93[sec]
E22                     42[deg]35[mi  70[deg]32[mi  13,787.92  25,768.31
                        n]16.08[sec]  n]32.29[sec]
E23                     42[deg]35[mi  70[deg]31[mi  13,780.57  25,766.25
                        n]41.80[sec]  n]44.20[sec]
E24                     42[deg]36[mi  70[deg]30[mi  13,772.14  25,766.14
                        n]23.08[sec]  n]58.98[sec]
E25                     42[deg]37[mi  70[deg]30[mi  13,763.69  25,768.12
                        n]15.51[sec]  n]23.01[sec]
E26                     42[deg]37[mi  70[deg]30[mi  13,758.09  25,771.07
                        n]58.88[sec]  n]06.60[sec]
E27                     42[deg]38[mi  70[deg]30[mi  13,755.07  25,774.58
                        n]32.46[sec]  n]06.54[sec]
E28                     42[deg]39[mi  70[deg]30[mi  13,752.75  25,778.35
                        n]04.08[sec]  n]11.29[sec]
------------------------------------------------------------------------



            Subpart O_Olympic Coast National Marine Sanctuary



Sec. 922.150  Boundary.

    (a) The Olympic Coast National Marine Sanctuary (Sanctuary) consists 
of an area of approximately 2500 square nautical miles (NM) 
(approximately 8577 sq. kilometers) of coastal and ocean waters, and the 
submerged lands

[[Page 175]]

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.



Sec. 922.151  Definitions.

    In addition to those definitions found at Sec. 922.3, the following 
definitions apply to this subpart:
    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.
    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.
    Traditional fishing means fishing using a commercial or recreational 
fishing method that has been used in the Sanctuary before the effective 
date of Sanctuary designation (July 22, 1994), including the retrieval 
of fishing gear.
    Treaty means a formal agreement between the United States Government 
and an Indian tribe.



Sec. 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 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;
    (D) Engine exhaust; or
    (E) Dredge spoil in connection with beach nourishment projects 
related to harbor maintenance activities.
    (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) 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.
    (4) Drilling into, dredging or otherwise altering the seabed of the 
Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary, except as an 
incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations;
    (iii) Installation of navigation aids;
    (iv) Harbor maintenance in the areas necessarily associated with 
Federal

[[Page 176]]

Projects in existence on July 22, 1994, including dredging of entrance 
channels and repair, replacement or rehabilitation of breakwaters and 
jetties;
    (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.
    (5) 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.
    (6) Flying motorized aircraft at less than 2,000 feet both above the 
Sanctuary within one NM of the Flattery Rocks, Quillayute Needles, or 
Copalis National Wildlife Refuge, or within one NM 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.
    (7) 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.
    (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 paragraph (a) (2) through (4), (6) and (7) 
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 (4), (6) and (7) 
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 (7) 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 (7) 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 (7) of this 
section do not

[[Page 177]]

apply to any activity executed in accordance with the scope, purpose, 
terms and conditions of a National Marine Sanctuary permit issued 
pursuant to Sec. 922.48 and Sec. 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 (7) 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 Sec. 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 
Sec. Sec. 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 (except by 
certification, pursuant to Sec. 922.47, of valid authorizations in 
existence on July 22, 1994 and issued by other authorities of competent 
jurisdiction); the disposal of dredged material within the Sanctuary 
other than in connection with beach nourishment projects related to 
harbor maintenance activities; 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.



Sec. 922.153  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by paragraphs (a) 
(2) through (7) of Sec. 922.152 if conducted in accordance with the 
scope, purpose, terms and conditions of a permit issued under this 
section and Sec. 922.48.
    (b) Applications for such permits should be addressed to the 
Director, Office of Ocean and Coastal Resource Management; ATTN: 
Manager, Olympic Coast National Marine Sanctuary, 138 West First Street, 
Port Angeles, WA 98362.
    (c) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or her deems appropriate, to 
conduct an activity prohibited by paragraphs (a) (2) through (7) of 
Sec. 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 connection with an 
abandoned shipwreck in the Sanctuary title to which is held by the State 
of Washington; or promote the welfare of any Indian tribe adjacent to 
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; the end value of the activity; and 
the impacts of the activity on adjacent Indian tribes. Where the 
issuance or denial of a permit is requested by the governing body of an 
Indian tribe, the Director shall consider

[[Page 178]]

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 the regulations in this subpart. 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.



Sec. 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.



Sec. 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[deg]07[min]45[se  124[deg]11[min]02[
                                  c]                   sec]
2..............................  47[deg]07[min]45[se  124[deg]58[min]12[
                                  c]                   sec]
3..............................  47[deg]35[min]05[se  125[deg]00[min]00[
                                  c]                   sec]
4..............................  47[deg]40[min]05[se  125[deg]04[min]44[
                                  c]                   sec]
5..............................  47[deg]50[min]01[se  125[deg]05[min]42[
                                  c]                   sec]
6..............................  47[deg]57[min]13[se  125[deg]29[min]13[
                                  c]                   sec]
7..............................  48[deg]07[min]33[se  125[deg]38[min]20[
                                  c]                   sec]
8..............................  48[deg]15[min]00[se  125[deg]40[min]54[
                                  c]                   sec]
9..............................  48[deg]18[min]21.2[  125[deg]30[min]02.
                                  sec]                 9[sec]
10.............................  48[deg]20[min]15.2[  125[deg]22[min]52.
                                  sec]                 9[sec]
11.............................  48[deg]26[min]46.2[  125[deg]09[min]16.
                                  sec]                 9[sec]
12.............................  48[deg]27[min]09.2[  125[deg]08[min]29.
                                  sec]                 9[sec]
13.............................  48[deg]28[min]08.2[  125[deg]05[min]51.
                                  sec]                 9[sec]
14.............................  48[deg]29[min]43.2[  125[deg]00[min]10.
                                  sec]                 9[sec]
15.............................  48[deg]29[min]56.2[  124[deg]59[min]19.
                                  sec]                 9[sec]
16.............................  48[deg]30[min]13.2[  124[deg]54[min]56.
                                  sec]                 9[sec]
17.............................  48[deg]30[min]21.2[  124[deg]50[min]25.
                                  sec]                 9[sec]
18.............................  48[deg]30[min]10.2[  124[deg]47[min]17.
                                  sec]                 9[sec]
19.............................  48[deg]29[min]36.4[  124[deg]43[min]38.
                                  sec]                 1[sec]
20.............................  48[deg]28[min]08[se  124[deg]38[min]13[
                                  c]                   sec]
21.............................  48[deg]23[min]17[se  124[deg]38[min]13[
                                  c]                   sec]
------------------------------------------------------------------------



            Subpart P_Florida Keys National Marine Sanctuary

    Source: 62 FR 32161, June 12, 1997, unless otherwise noted.



Sec. 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

[[Page 179]]

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.



Sec. 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]



Sec. 922.162  Definitions.

    (a) The following definitions apply to the Florida Keys National 
Marine Sanctuary regulations. To the extent that a definition appears in 
Sec. 922.3 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 Sec. 
922.164(a)). Appendix VII to this subpart sets forth the geographic 
coordinates of these areas, including any modifications thereto made in 
accordance with section 6(a)(3) of the FKNMSPA.
    Closed means all entry or use is prohibited.
    Coral means the corals of the Class Hydrozoa (stinging and 
hydrocorals); the Class Anthozoa, Subclass Hexacorallia, Order 
Scleractinia (stony corals) and Antipatharia (black corals).
    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

[[Page 180]]

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 Sec. 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

[[Page 181]]

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

[[Page 182]]

    (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]



Sec. 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, 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 638.
    (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 Sec. 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 Sec. Sec. 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

[[Page 183]]

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) Biodegradable effluent incidental to vessel use and generated by 
a marine sanitation device 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., deck wash 
down and graywater as defined in section 312 of the FWPCA), excluding 
oily wastes from bilge pumping; or
    (D) 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 those 
listed in paragraph (a)(4)(i) (A) through (D) of this section and those 
authorized under Monroe County land use permits or 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 feet 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.
    (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.

[[Page 184]]

    (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 46-42.001 through 46-
42.003, 46-42.0035, and 46-42.004 through 46-42.007, and 46.42.009 of 
the Florida Administrative Code, reproduced in Appendix VIII to this 
subpart, 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 Sec. 
922.164, and any access and use restrictions imposed pursuant thereto, a 
person may conduct an activity specifically authorized by, and conducted 
in accordance with the scope, purpose, terms, and conditions of, a 
National Marine Sanctuary permit issued pursuant to Sec. 922.166.
    (c) Notwithstanding the prohibitions in this section and in Sec. 
922.164, and any access and use restrictions imposed pursuant thereto, a 
person may conduct an activity specifically authorized by a 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 Sec. 922.167 and with any terms 
and conditions on 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.
    (d) Notwithstanding the prohibitions in this section and in Sec. 
922.164, and any access and use restrictions imposed pursuant thereto, a 
person may conduct an activity specifically authorized by any valid 
Federal, State, or local lease, permit, license, approval, or other 
authorization issued after the effective date of these regulations, 
provided that the applicant complies with Sec. 922.168, 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.
    (e)(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 Sec. 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 Sec. 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

[[Page 185]]

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.
    (f) The prohibitions contained in paragraph (a)(5) of this section 
do not apply to Federal, State and local officers while performing 
enforcement duties and/or responding to emergencies that threaten life, 
property, or the environment in their official capacity.
    (g) Notwithstanding paragraph (b) of this section and paragraph (a) 
of Sec. 922.168, in no event may the Director issue a permit under 
Sec. 922.166 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 Sec. 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.
    (h) 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.



Sec. 922.164  Additional activity regulations by Sanctuary area.

    In addition to the prohibitions set forth in Sec. 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

[[Page 186]]

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 and Sanctuary Preservation Areas. (1) The 
following activities are prohibited within the Ecological Reserves 
described in Appendix IV to this subpart, and within the Sanctuary 
Preservation Areas, described in Appendix V 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

[[Page 187]]

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 Sec. 922.167 or entering or leaving the Tortugas North area 
with a valid access permit issued pursuant to Sec. 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,

[[Page 188]]

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 Sec. 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.
    (f) Additional Wildlife Management Areas, Ecological Reserves, 
Sanctuary Preservation Areas, or Special-use Areas, and additional 
restrictions in

[[Page 189]]

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[min] N 83 deg. 00.05[min] W
(2) 24 deg. 37.00[min] N 83 deg. 06.00[min] W
(3) 24 deg. 39.00[min] N 83 deg. 06.00[min] W
(4) 24 deg. 39.00[min] N 83 deg. 00.05[min] W
(5) 24 deg. 32.00[min] N 83 deg. 00.05[min] W

[62 FR 32161, June 12, 1997, as amended at 63 FR 43873, Aug. 17, 1998; 
66 FR 4369, Jan. 17, 2001]



Sec. 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.



Sec. 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 Sec. Sec. 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;

[[Page 190]]

    (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 Sec. 922.164 (b)-(e), the Director shall not issue a 
permit unless he or she further finds that such activities will further 
and are consistent with the purposes for which such area was 
established, as described in Sec. Sec. 922.162 and 922.164 and in the 
management plan for the Sanctuary.
    (b) National Marine Sanctuary Survey/Inventory of Historical 
Resources Permit. (1) A person may conduct an activity prohibited by 
Sec. Sec. 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 Sec. Sec. 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 Sec. Sec. 922.163 or 922.164 involving the research/
recovery of Sanctuary historical resources if such activity is 
specifically authorized by, and is conducted in accordance with the 
scope, purpose, terms and conditions of, a Research/Recovery of 
Historical Resources permit issued under this paragraph (c).

[[Page 191]]

    (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 
Sec. Sec. 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:

[[Page 192]]

    (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 
Sec. 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

[[Page 193]]

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.



Sec. 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 Sec. 922.164 , if authorized by a valid 
access permit issued pursuant to Sec. 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

[[Page 194]]

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]



Sec. 922.168  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 Sec. Sec. 
922.163 or 922.164 if such activity is specifically authorized by a 
valid Federal, State, or local lease, permit, license, approval, or 
other authorization in existence on July 1, 1997, or by any valid right 
of subsistence use or access in existence on July 1, 1997, provided 
that:
    (1) The holder of such authorization or right notifies the Director, 
in writing, within 90 days of July 1, 1997, of the existence of such 
authorization or right and requests certification of such authorization 
or right; for the area added to the Sanctuary by the boundary expansion 
for the Tortugas Ecological Reserve, the holder of such authorization or 
right notifies the Director, in writing, within 90 days of the effective 
date of the boundary expansion, 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 Sec. 
922.168; 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.
    (b) The holder of an authorization or right described in paragraph 
(a) of this section authorizing an activity prohibited by Secs. 922.163 
or 922.164 may conduct the activity without being in violation of 
applicable provisions of Secs. 922.163 or 922.164, pending final agency 
action on his or her certification request, provided the holder is in 
compliance with this Sec. 922.168.
    (c) Any holder of an authorization or right described in paragraph 
(a) 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 Secs. 922.163 or 922.164, thus requiring 
certification under this section.
    (d) Requests for findings or certifications 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. A copy of the lease, permit, license, 
approval, or other authorization must accompany the request.
    (e) 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 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 certification request.
    (f) The Director may amend any certification made under this Sec. 
922.168 whenever additional information becomes available justifying 
such an amendment.
    (g) 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

[[Page 195]]

any certification made under this Sec. 922.168, 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.
    (h) Any time limit prescribed in or established under this Sec. 
922.168 may be extended by the Director for good cause.
    (i) The holder may appeal any action conditioning, amending, 
suspending, or revoking any certification in accordance with the 
procedures set forth in Sec. 922.50.
    (j) Any amendment, renewal, or extension made after July 1, 1997, to 
a lease, permit, license, approval, other authorization or right is 
subject to the provisions of Sec. 922.49.

[66 FR 4369, Jan. 17, 2001]



 Sec. 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.

[[Page 196]]

    (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]



  Sec. 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                    80
                                 deg.19[min]45[sec]    deg.12[min]00[sec
                                 N                     ] W.
2.............................  25                    80
                                 deg.16[min]02[sec]    deg.08[min]07[sec
                                 N                     ] W.
3.............................  25                    80
                                 deg.07[min]05[sec]    deg.12[min]05[sec
                                 N                     ] W.
4.............................  24                    80
                                 deg.58[min]03[sec]    deg.19[min]08[sec
                                 N                     ] W.
5.............................  25                    80
                                 deg.02[min]02[sec]    deg.25[min]25[sec
                                 N                     ] W.
6.............................  25                    80
                                 deg.19[min]45[sec]    deg.12[min]00[sec
                                 N                     ] W.
------------------------------------------------------------------------


                        Looe Key Management Area
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24                    81
                                 deg.31[min]62[sec]    deg.26[min]00[sec
                                 N                     ] W.
2.............................  24                    81
                                 deg.33[min]57[sec]    deg.26[min]00[sec
                                 N                     ] W.
3.............................  24                    81
                                 deg.34[min]15[sec]    deg.23[min]00[sec
                                 N                     ] W.
4.............................  24                    81
                                 deg.32[min]20[sec]    deg.23[min]00[sec
                                 N                     ] W.
5.............................  24                    81
                                 deg.31[min]62[sec]    deg.26[min]00[sec
                                 N                     ] 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[min] N    81 deg.48.6[min]
                                                       W.
2.............................  24 deg.43.8[min] N    81 deg.37.2[min]
                                                       W.
3.............................  24 deg.49.2[min] N    81 deg.37.2[min]
                                                       W.
4.............................  24 deg.49.2[min] N    81 deg.19.8[min]
                                                       W.
5.............................  24 deg.48.0[min] N    81 deg.19.8[min]
                                                       W.
6.............................  24 deg.48.0[min] N    81 deg.14.4[min]
                                                       W.
7.............................  24 deg.49.2[min] N    81 deg.14.4[min]
                                                       W.
8.............................  24 deg.49.2[min] N    81 deg.08.4[min]
                                                       W.
9.............................  24 deg.43.8[min] N    81 deg.08.4[min]
                                                       W.
10............................  24 deg.43.8[min] N    81 deg.14.4[min]
                                                       W.
11............................  24 deg.43.2[min] N    81 deg.14.4[min]
                                                       W.
12............................  24 deg.43.2[min] N    81 deg.16.2[min]
                                                       W.
13............................  24 deg.42.6[min] N    81 deg.16.2[min]
                                                       W.
14............................  24 deg.42.6[min] N    81 deg.21.0[min]
                                                       W.
15............................  24 deg.41.4[min] N    81 deg.21.0[min]
                                                       W.
16............................  24 deg.41.4[min] N    81 deg.22.2[min]
                                                       W.
17............................  24 deg.43.2[min] N    81 deg.22.2[min]
                                                       W.
18............................  24 deg.43.2[min] N    81 deg.22.8[min]
                                                       W.
19............................  24 deg.43.8[min] N    81 deg.22.8[min]
                                                       W.
20............................  24 deg.43.8[min] N    81 deg.24.0[min]
                                                       W.
21............................  24 deg.43.2[min] N    81 deg.24.0[min]
                                                       W.
22............................  24 deg.43.2[min] N    81 deg.26.4[min]
                                                       W.
23............................  24 deg.43.8[min] N    81 deg.26.4[min]
                                                       W.
24............................  24 deg.43.8[min] N    81 deg.27.0[min]
                                                       W.
25............................  24 deg.43.2[min] N    81 deg.27.0[min]
                                                       W.
26............................  24 deg.43.2[min] N    81 deg.29.4[min]
                                                       W.
27............................  24 deg.42.6[min] N    81 deg.29.4[min]
                                                       W.
28............................  24 deg.42.6[min] N    81 deg.30.6[min]
                                                       W.
29............................  24 deg.41.4[min] N    81 deg.30.6[min]
                                                       W.
30............................  24 deg.41.4[min] N    81 deg.31.2[min]
                                                       W.
31............................  24 deg.40.8[min] N    81 deg.31.2[min]
                                                       W.
32............................  24 deg.40.8[min] N    81 deg.32.4[min]
                                                       W.
33............................  24 deg.41.4[min] N    81 deg.32.4[min]
                                                       W.
34............................  24 deg.41.4[min] N    81 deg.34.2[min]
                                                       W.
35............................  24 deg.40.8[min] N    81 deg.34.2[min]
                                                       W.
36............................  24 deg.48.0[min] N    81 deg.35.4[min]
                                                       W.
37............................  24 deg.39.6[min] N    81 deg.35.4[min]
                                                       W.
38............................  24 deg.39.6[min] N    81 deg.36.0[min]
                                                       W.
39............................  24 deg.39.0[min] N    81 deg.36.0[min]
                                                       W.
40............................  24 deg.39.0[min] N    81 deg.37.2[min]
                                                       W.
41............................  24 deg.37.8[min] N    81 deg.37.2[min]
                                                       W.
42............................  24 deg.37.8[min] N    81 deg.37.8[min]
                                                       W.
43............................  24 deg.37.2[min] N    81 deg.37.8[min]
                                                       W.
44............................  24 deg.37.2[min] N    81 deg.40.2[min]
                                                       W.
45............................  24 deg.36.0[min] N    81 deg.40.2[min]
                                                       W.
46............................  24 deg.36.0[min] N    81 deg.40.8[min]
                                                       W.
47............................  24 deg.35.4[min] N    81 deg.40.8[min]
                                                       W.
48............................  24 deg.35.4[min] N    81 deg.42.0[min]
                                                       W.
49............................  24 deg.36.0[min] N    81 deg.42.0[min]
                                                       W.
50............................  24 deg.36.0[min] N    81 deg.48.6[min]
                                                       W.
51............................  24 deg.43.8[min] N    81 deg.48.6[min]
                                                       W.
------------------------------------------------------------------------


                    Key West National Wildlife Refuge
               [Based on the North American Datum of 1983]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.40.0[min] N    81 deg.49.0[min]
                                                       W.
2.............................  24 deg.40.0[min] N    82 deg.10.0[min]
                                                       W.
3.............................  24 deg.27.0[min] N    82 deg.10.0[min]
                                                       W.
4.............................  24 deg.27.0[min] N    81 deg.49.0[min]
                                                       W.
5.............................  24 deg.40.0[min] N    81 deg.49.0[min]
                                                       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]

[[Page 197]]



 Sec. 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.
------------------------------------------------------------------------



 Sec. 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[min] N.  81 deg.40.80[min]
                                                       W.
2.............................  24 deg.28.85[min] N.  81 deg.41.90[min]
                                                       W.
3.............................  24 deg.28.50[min] N.  81 deg.43.70[min]
                                                       W.
4.............................  24 deg.33.50[min] N.  81 deg.43.10[min]
                                                       W.
5.............................  24 deg.33.70[min] N.  81 deg.40.80[min]
                                                       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[min] N.  83 deg.06.00[min]
                                                       W.
2.............................  24 deg.46.00[min] N.  82 deg.54.00[min]
                                                       W.
3.............................  24 deg.45.80[min] N.  82 deg.48.00[min]
                                                       W.
4.............................  24 deg.43.53[min] N.  82 deg.48.00[min]
                                                       W.
5.............................  24 deg.43.53[min] N.  82 deg.52.00[min]
                                                       W.
6.............................  24 deg.43.00[min] N.  82 deg.54.00[min]
                                                       W.
7.............................  24 deg.39.00[min] N.  82 deg.58.00[min]
                                                       W.
8.............................  24 deg.39.00[min] N.  83 deg.06.00[min]
                                                       W.
9.............................  24 deg.46.00[min] N.  83 deg.06.00[min]
                                                       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[min] N.  83 deg.09.00[min]
                                                       W.
2.............................  24 deg.33.00[min] N.  83 deg.05.00[min]
                                                       W.
3.............................  24 deg.18.00[min] N.  83 deg.05.00[min]
                                                       W.
4.............................  24 deg.18.00[min] N.  83 deg.09.00[min]
                                                       W.
5.............................  24 deg.33.00[min] N.  83 deg.09.00[min]
                                                       W.
------------------------------------------------------------------------


[66 FR 4372, Jan. 17, 2001]

[[Page 198]]



 Sec. 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[min] N   80 deg.36.84[min]
                                                       W.
2.............................  24 deg.50.51[min] N   80 deg.37.35[min]
                                                       W.
3.............................  24 deg.50.81[min] N   80 deg.37.63[min]
                                                       W.
4.............................  24 deg.51.23[min] N   80 deg.37.17[min]
                                                       W.
5.............................  24 deg.50.98[min] N   80 deg.36.84[min]
                                                       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[min] N   80 deg.12.00[min]
                                                       W.
2.............................  25 deg.12.03[min] N   80 deg.12.98[min]
                                                       W.
3.............................  25 deg.12.24[min] N   80 deg.13.77[min]
                                                       W.
4.............................  25 deg.14.13[min] N   80 deg.12.78[min]
                                                       W.
5.............................  25 deg.13.78[min] N   80 deg.12.00[min]
                                                       W.
------------------------------------------------------------------------


                              Cheeca Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.54.42[min] N   80 deg.36.91[min]
                                                       W.
2.............................  24 deg.54.25[min] N   80 deg.36.77[min]
                                                       W.
3.............................  24 deg.54.10[min] N   80 deg.37.00[min]
                                                       W.
4.............................  24 deg.54.22[min] N   80 deg.37.15[min]
                                                       W.
5.............................  24 deg.54.42[min] N   80 deg.36.91[min]
                                                       W.
------------------------------------------------------------------------


                              Coffins Patch
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.41.47[min] N   80 deg.57.68[min]
                                                       W.
2.............................  24 deg.41.12[min] N   80 deg.57.53[min]
                                                       W.
3.............................  24 deg.40.75[min] N   80 deg.58.33[min]
                                                       W.
4.............................  24 deg.41.06[min] N   80 deg.58.48[min]
                                                       W.
5.............................  24 deg.41.47[min] N   80 deg.57.68[min]
                                                       W.
------------------------------------------------------------------------


                               Conch Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.57.48[min] N   80 deg.27.47[min]
                                                       W.
2.............................  24 deg.57.34[min] N   80 deg.27.26[min]
                                                       W.
3.............................  24 deg.56.78[min] N   80 deg.27.52[min]
                                                       W.
4.............................  24 deg.56.96[min] N   80 deg.27.73[min]
                                                       W.
5.............................  24 deg.57.48[min] N   80 deg.27.47[min]
                                                       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[min] N   80 deg.30.27[min]
                                                       W.
2.............................  24 deg.55.41[min] N   80 deg.30.05[min]
                                                       W.
3.............................  24 deg.55.11[min] N   80 deg.30.35[min]
                                                       W.
4.............................  24 deg.55.34[min] N   80 deg.30.52[min]
                                                       W.
5.............................  24 deg.55.61[min] N   80 deg.30.27[min]
                                                       W.
------------------------------------------------------------------------


                                Dry Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.07.59[min] N   80 deg.17.91[min]
                                                       W.
2.............................  25 deg.07.41[min] N   80 deg.17.70[min]
                                                       W.
3.............................  25 deg.07.25[min] N   80 deg.17.82[min]
                                                       W.
4.............................  25 deg.07.41[min] N   80 deg.18.09[min]
                                                       W.
5.............................  25 deg.07.59[min] N   80 deg.17.91[min]
                                                       W.
------------------------------------------------------------------------


                              Grecian Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.06.91[min] N   80 deg.18.20[min]
                                                       W.
2.............................  25 deg.06.67[min] N   80 deg.18.06[min]
                                                       W.
3.............................  25 deg.06.39[min] N   80 deg.18.32[min]
                                                       W.
4.............................  25 deg.06.42[min] N   80 deg.18.48[min]
                                                       W.
5.............................  25 deg.06.81[min] N   80 deg.18.44[min]
                                                       W.
6.............................  25 deg.06.91[min] N   80 deg.18.20[min]
                                                       W.
------------------------------------------------------------------------


                            Eastern Dry Rocks
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.27.92[min] N   81 deg.50.55[min]
                                                       W.
2.............................  24 deg.27.73[min] N   81 deg.50.33[min]
                                                       W.
3.............................  24 deg.27.47[min] N   81 deg.50.80[min]
                                                       W.
4.............................  24 deg.27.72[min] N   81 deg.50.86[min]
                                                       W.
5.............................  24 deg.27.92[min] N   81 deg.50.55[min]
                                                       W.
------------------------------------------------------------------------


                                The Elbow
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.08.97[min] N   80 deg.15.63[min]
                                                       W.
2.............................  25 deg.08.95[min] N   80 deg.15.22[min]
                                                       W.
3.............................  25 deg.08.18[min] N   80 deg.15.64[min]
                                                       W.
4.............................  25 deg.08.50[min] N   80 deg.16.07[min]
                                                       W.
5.............................  25 deg.08.97[min] N   80 deg.15.63[min]
                                                       W.
------------------------------------------------------------------------


                               French Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.02.20[min] N   80 deg.20.63[min]
                                                       W.
2.............................  25 deg.01.81[min] N   80 deg.21.02[min]
                                                       W.
3.............................  25 deg.02.36[min] N   80 deg.21.27[min]
                                                       W.
4.............................  25 deg.02.20[min] N   80 deg.20.63[min]
                                                       W.
------------------------------------------------------------------------


[[Page 199]]


                            Hen and Chickens
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.56.38[min] N   80 deg.32.86[min]
                                                       W.
2.............................  24 deg.56.21[min] N   80 deg.32.63[min]
                                                       W.
3.............................  24 deg.55.86[min] N   80 deg.32.95[min]
                                                       W.
4.............................  24 deg.56.04[min] N   80 deg.33.19[min]
                                                       W.
5.............................  24 deg.56.38[min] N   80 deg.32.86[min]
                                                       W.
------------------------------------------------------------------------


                                Looe Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.33.24[min] N   81 deg.24.03[min]
                                                       W.
2.............................  24 deg.32.70[min] N   81 deg.23.85[min]
                                                       W.
3.............................  24 deg.32.52[min] N   81 deg.24.70[min]
                                                       W.
4.............................  24 deg.33.12[min] N   81 deg.24.81[min]
                                                       W.
5.............................  24 deg.33.24[min] N   81 deg.24.03[min]
                                                       W.
------------------------------------------------------------------------


                              Molasses Reef
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  25 deg.01.00[min] N   80 deg.22.53[min]
                                                       W.
2.............................  25 deg.01.06[min] N   80 deg.21.84[min]
                                                       W.
3.............................  25 deg.00.29[min] N   80 deg.22.70[min]
                                                       W.
4.............................  25 deg.00.72[min] N   80 deg.22.83[min]
                                                       W.
5.............................  25 deg.01.00[min] N   80 deg.22.53[min]
                                                       W.
------------------------------------------------------------------------


                           Newfound Harbor Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.37.10[min] N   81 deg.23.34[min]
                                                       W.
2.............................  24 deg.36.85[min] N   81 deg.23.28[min]
                                                       W.
3.............................  24 deg.36.74[min] N   81 deg.23.80[min]
                                                       W.
4.............................  24 deg.37.00[min] N   81 deg.23.86[min]
                                                       W.
5.............................  24 deg.37.10[min] N   81 deg.23.34[min]
                                                       W.
------------------------------------------------------------------------


                                Rock Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.27.48[min] N   81 deg.51.35[min]
                                                       W.
2.............................  24 deg.27.30[min] N   81 deg.51.15[min]
                                                       W.
3.............................  24 deg.27.21[min] N   81 deg.51.60[min]
                                                       W.
4.............................  24 deg.27.45[min] N   81 deg.51.65[min]
                                                       W.
5.............................  24 deg.27.48[min] N   81 deg.51.35[min]
                                                       W.
------------------------------------------------------------------------


                                Sand Key
         [Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.27.58[min] N   81 deg.52.29[min]
                                                       W.
2.............................  24 deg.27.01[min] N   81 deg.52.32[min]
                                                       W.
3.............................  24 deg.27.02[min] N   81 deg.52.95[min]
                                                       W.
4.............................  24 deg.27.61[min] N   81 deg.52.94[min]
                                                       W.
5.............................  24 deg.27.58[min] N   81 deg.52.29[min]
                                                       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[min] N   81 deg.06.78[min]
                                                       W.
2.............................  24 deg.37.50[min] N   81 deg.06.19[min]
                                                       W.
3.............................  24 deg.37.25[min] N   81 deg.06.89[min]
                                                       W.
4.............................  24 deg.37.91[min] N   81 deg.06.78[min]
                                                       W.
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this SPA.

[66 FR 4373, Jan. 17, 2001]



 Sec. 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[min] N   80 deg.27.26[min]
                                                       W.
2.............................  24 deg.57.10[min] N   80 deg.26.93[min]
                                                       W.
3.............................  24 deg.56.99[min] N   80 deg.27.42[min]
                                                       W.
4.............................  24 deg.57.34[min] N   80 deg.27.26[min]
                                                       W.
5.............................  24 deg.56.83[min] N   80 deg.27.26[min]
                                                       W.
------------------------------------------------------------------------


                              Eastern Sambo
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.29.84[min] N   81 deg.39.59[min]
                                                       W.
2.............................  24 deg.29.55[min] N   81 deg.39.35[min]
                                                       W.
3.............................  24 deg.29.37[min] N   81 deg.39.96[min]
                                                       W.
4.............................  24 deg.29.77[min] N   81 deg.40.03[min]
                                                       W.
5.............................  24 deg.29.84[min] N   81 deg.39.59[min]
                                                       W.
------------------------------------------------------------------------


                                Looe Key
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.34.17[min] N   81 deg.23.01[min]
                                                       W.
2.............................  24 deg.33.98[min] N   81 deg.22.96[min]
                                                       W.
3.............................  24 deg.33.84[min] N   81 deg.23.60[min]
                                                       W.
4.............................  24 deg.34.23[min] N   81 deg.23.68[min]
                                                       W.
5.............................  24 deg.34.17[min] N   81 deg.23.01[min]
                                                       W.
------------------------------------------------------------------------


                             Tennessee Reef
(Research Only)--[Based on differential Global Positioning Systems data]
------------------------------------------------------------------------
             Point                    Latitude             Longitude
------------------------------------------------------------------------
1.............................  24 deg.44.77[min] N   80 deg.47.12[min]
                                                       W.
2.............................  24 deg.44.57[min] N   80 deg.46.98[min]
                                                       W.
3.............................  24 deg.44.68[min] N   80 deg.46.59[min]
                                                       W.
4.............................  24 deg.44.95[min] N   80 deg.46.74[min]
                                                       W.

[[Page 200]]

 
5.............................  24 deg.44.77[min] N   80 deg.47.12[min]
                                                       W.
------------------------------------------------------------------------


[66 FR 4376, Jan. 17, 2001]



Sec. 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[deg]45.00[min]N    80[deg]06.10[min]W
2.............................  25[deg]38.70[min]N    80[deg]02.70[min]W
3.............................  25[deg]22.00[min]N    80[deg]03.00[min]W
4.............................  25[deg]06.38[min]N    80[deg]10.48[min]W
5.............................  24[deg]56.37[min]N    80[deg]19.26[min]W
6.............................  24[deg]37.90[min]N    80[deg]47.30[min]W
7.............................  24[deg]29.20[min]N    81[deg]17.30[min]W
8.............................  24[deg]22.30[min]N    81[deg]43.17[min]W
9.............................  24[deg]28.00[min]N    81[deg]43.17[min]W
10............................  24[deg]28.70[min]N    81[deg]43.50[min]W
11............................  24[deg]29.80[min]N    81[deg]43.17[min]W
12............................  24[deg]33.10[min]N    81[deg]35.15[min]W
13............................  24[deg]33.60[min]N    81[deg]26.00[min]W
14............................  24[deg]38.20[min]N    81[deg]07.00[min]W
15............................  24[deg]43.20[min]N    80[deg]53.20[min]W
16............................  24[deg]46.10[min]N    80[deg]46.15[min]W
17............................  24[deg]51.10[min]N    80[deg]37.10[min]W
18............................  24[deg]57.50[min]N    80[deg]27.50[min]W
19............................  25[deg]09.90[min]N    80[deg]16.20[min]W
20............................  25[deg]24.00[min]N    80[deg]09.10[min]W
21............................  25[deg]31.50[min]N    80[deg]07.00[min]W
22............................  25[deg]39.70[min]N    80[deg]06.85[min]W
23............................  25[deg]45.00[min]N    80[deg]06.10[min]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]



   Sec. Appendix VIII to Subpart P of Part 922--Marine Life Rule [As 
    Excerpted From Chapter 46-42 of the Florida Administrative Code]

46-42.001 Purpose and Intent; Designation of Restricted Species; 
Definition of ``Marine Life Species.''
46-42.002 Definitions.
46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama Starfish.
46-42.0035 Live Landing and Live Well Requirements.
46-42.0036 Harvest in Biscayne National Park.*
46-42.004 Size Limits.
46-42.005 Bag Limits.
46-42.006 Commercial Season, Harvest Limits.
46-42.007 Gear Specifications and Prohibited Gear.
46-42.008 Live Rock.*
46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine 
Corals and Sea Fans.

    *--Part 42.0036 was not reproduced because it does not apply to the 
Sanctuary.
    *--Part 42.008 was not reproduced because it is regulated pursuant 
to this Part 922.163(2)(ii).

46-42.001 Purpose and Intent; Designation of Restricted Species; 
Definition of ``Marine Life Species''.--


[[Page 201]]


    (1)(a) The purpose and intent of this chapter are to protect and 
conserve Florida's tropical marine life resources and assure the 
continuing health and abundance of these species. The further intent of 
this chapter is to assure that harvesters in this fishery use nonlethal 
methods of harvest and that the fish, invertebrates, and plants so 
harvested be maintained alive for the maximum possible conservation and 
economic benefits.
    (b) It is the express intent of the Marine Fisheries Commission that 
landing of live rock propagated through aquaculture will be allowed 
pursuant to the provisions of this chapter.
    (2) The following fish species, as they occur in waters of the state 
and in federal Exclusive Economic Zone (EEZ) waters adjacent to state 
waters, are hereby designated as restricted species pursuant to Section 
370.01(20), Florida Statutes:
    (a) Moray eels--Any species of the Family Muraenidae.
    (b) Snake eels--Any species of the Genera Myrichthys and Myrophis of 
the Family Ophichthidae.
    (c) Toadfish--Any species of the Family Batrachoididae.
    (d) Frogfish--Any species of the Family Antennariidae.
    (e) Batfish--Any species of the Family Ogcocephalidae.
    (f) Clingfish--Any species of the Family Gobiesocidae.
    (g) Trumpetfish--Any species of the Family Aulostomidae.
    (h) Cornetfish--Any species of the Family Fistulariidae.
    (i) Pipefish/seahorses--Any species of the Family Syngnathidae.
    (j) Hamlet/seabass--Any species of the Family Serranidae, except 
groupers of the genera Epinephalus and Mycteroperca, and seabass of the 
genus Centropristis.
    (k) Basslets--Any species of the Family Grammistidae.
    (l) Cardinalfish--Any species of the Family Apogonidae.
    (m) High-hat, Jackknife-fish, Spotted drum, Cubbyu--Any species of 
the genus Equetus of the Family Sciaenidae.
    (n) Reef Croakers--Any of the species Odontocion dentex.
    (o) Sweepers--Any species of the Family Pempherididae.
    (p) Butterflyfish--Any species of the Family Chaetodontidae.
    (q) Angelfish--Any species of the Family Pomacanthidae.
    (r) Damselfish--Any species of the Family Pomacentridae.
    (s) Hawkfish--Any species of the Family Cirrhitidae.
    (t) Wrasse/hogfish/razorfish--Any species of the Family Labridae, 
except hogfish, Lachnolaimus maximus.
    (u) Parrotfish--Any species of the Family Scaridae.
    (v) Jawfish--Any species of the Family Opistognathidae.
    (w) Blennies--Any species of the Families Clinidae or Blenniidae.
    (x) Sleepers--Any species of the Family Eleotrididae.
    (y) Gobies--Any species of the Family Gobiidae.
    (z) Tangs and surgeonfish--Any species of the Family Acanthuridae.
    (aa) Filefish/triggerfish--Any species of the Family Balistes, 
except gray triggerfish, Balistidae capriscus.
    (bb) Trunkfish/cowfish--Any species of the Family Ostraciidae.
    (cc) Pufferfish/burrfish/balloonfish--Any of the following species:
    1. Balloonfish--Diodon holocanthus.
    2. Sharpnose puffer--Canthigaster rostrata.
    3. Striped burrfish--Chilomycterus schoepfi.
    (3) The following invertebrate species, as they occur in waters of 
the state and in federal Exclusive Economic Zone (EEZ) waters adjacent 
to state waters, are hereby designated as restricted species pursuant to 
Section 370.01(20), Florida Statutes:
    (a) Sponges--Any species of the Class Demospongia, except 
sheepswool, yellow, grass, glove, finger, wire, reef, and velvet 
sponges, Order Dictyoceratida.
    (b) Upside-down jellyfish--Any species of the Genus Cassiopeia.
    (c) Siphonophores/hydroids--Any species of the Class Hydrozoa, 
except fire corals, Order Milleporina.
    (d) Soft corals--Any species of the Subclass Octocorallia, except 
sea fans Gorgonia flabellum and Gorgonia ventalina.
    (e) Sea anemones--Any species of the Orders Actinaria, Zoanthidea, 
Corallimorpharia, and Ceriantharia.
    (f) Featherduster worms/calcareous tubeworms--Any species of the 
Families Sabellidae and Serpulidae.
    (g) Star-shells--Any of the species Astraea americana or Astraea 
phoebia.
    (h) Nudibranchs/sea slugs--Any species of the Subclass 
Opisthobranchia.
    (i) Fileclams--Any species of the Genus Lima.
    (j) Octopods--Any species of the Order Octopoda, except the common 
octopus, Octopodus vulgaris.
    (k) Shrimp--Any of the following species:
    1. Cleaner shrimp and peppermint shrimp--Any species of the Genera 
Periclimenes or Lysmata.
    2. Coral shrimp--Any species of the Genus Stenopus.
    3. Snapping shrimp--Any species of the Genus Alpheus.
    (l) Crabs--Any of the following species:
    1. Yellowline arrow crab--Stenorhynchus seticornis.

[[Page 202]]

    2. Furcate spider or decorator crab--Stenocionops furcata.
    3. Thinstripe hermit crab--Clibanarius vittatus.
    4. Polkadotted hermit crab--Phimochirus operculatus.
    5. Spotted porcelain crab--Porcellana sayana.
    6. Nimble spray or urchin crab--Percnon gibbesi.
    7. False arrow crab--Metoporhaphis calcarata.
    (m) Starfish--Any species of the Class Asteroidea, except the Bahama 
starfish, Oreaster reticulatus.
    (n) Brittlestars--Any species of the Class Ophiuroidea.
    (o) Sea urchins--Any species of the Class Echinoidea, except 
longspine urchin, Diadema antillarum, and sand dollars and sea biscuits, 
Order Clypeasteroida.
    (p) Sea cucumbers--Any species of the Class Holothuroidea.
    (q) Sea lillies--Any species of the Class Crinoidea.
    (4) The following species of plants, as they occur in waters of the 
state and in federal Exclusive Economic Zone (EEZ) waters adjacent to 
state waters, are hereby designated as restricted species pursuant to 
Section 370.01(20), Florida Statutes:
    (a) Caulerpa--Any species of the Family Caulerpaceae.
    (b) Halimeda/mermaid's fan/mermaid's shaving brush--Any species of 
the Family Halimedaceae.
    (c) Coralline red algae--Any species of the Family Corallinaceae.
    (5) For the purposes of Section 370.06(2)(d), Florida Statutes, the 
term ``marine life species'' is defined to mean those species designated 
as restricted species in subsections (2), (3), and (4) of this rule.
    Specific Authority 370.01(20), 370.027(2), 370.06(2)(d), F.S. Law 
Implemented 370.01(20), 370.025, 370.027, 370.06(2)(d), F.S. History--
New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.002 Definitions.--As used in this rule chapter:
    (1) ``Barrier net,'' also known as a ``fence net,'' means a seine 
used beneath the surface of the water by a diver to enclose and 
concentrate tropical fish and which may be made of either nylon or 
monofilament.
    (2) ``Drop net'' means a small, usually circular, net with weights 
attached along the outer edge and a single float in the center, used by 
a diver to enclose and concentrate tropical fish.
    (3) ``Hand held net'' means a landing or dip net as defined in Rule 
46-4.002(4), except that a portion of the bag may be constructed of 
clear plastic material, rather than mesh.
    (4) ``Harvest'' means the catching or taking of a marine organism by 
any means whatsoever, followed by a reduction of such organism to 
possession. Marine organisms that are caught but immediately returned to 
the water free, alive, and unharmed are not harvested. In addition, 
temporary possession of a marine animal for the purpose of measuring it 
to determine compliance with the minimum or maximum size requirements of 
this chapter shall not constitute harvesting such animal, provided that 
it is measured immediately after taking, and immediately returned to the 
water free, alive, and unharmed if undersize or oversize.
    (5) ``Harvest for commercial purposes'' means the taking or 
harvesting of any tropical ornamental marine life species or tropical 
ornamental marine plant for purposes of sale or with intent to sell. The 
harvest of tropical ornamental marine life species or tropical 
ornamental marine plants in excess of the bag limit shall constitute 
prima facie evidence of intent to sell.
    (6) ``Land,'' when used in connection with the harvest of marine 
organisms, means the physical act of bringing the harvested organism 
ashore.
    (7) ``Live rock'' means rock with living marine organisms attached 
to it.
    (8) ``Octocoral'' means any erect, nonencrusting species of the 
Subclass Octocorallia, except the species Gorgonia flabellum and 
Gorgonia ventalina.
    (9) ``Slurp gun'' means a self-contained, handheld device that 
captures tropical fish by rapidly drawing seawater containing such fish 
into a closed chamber.
    (10) ``Total length'' means the length of a fish as measured from 
the tip of the snout to the tip of the tail.
    (11) ``Trawl'' means a net in the form of an elongated bag with the 
mouth kept open by various means and fished by being towed or dragged on 
the bottom. ``Roller frame trawl'' means a trawl with all of the 
following features and specifications:
    (a) A rectangular rigid frame to keep the mouth of the trawl open 
while being towed.
    (b) The lower horizontal beam of the frame has rollers to allow the 
trawl to roll over the bottom and any obstructions while being towed.
    (c) The trawl opening is shielded by a grid of vertical bars spaced 
no more than 3 inches apart.
    (d) The trawl is towed by attaching a line or towing cable to a 
tongue located above yor at the center of the upper horizontal beam of 
the frame.
    (e) The trawl has no doors attached to keep the mouth of the trawl 
open.
    (12) ``Tropical fish'' means any species included in subsection (2) 
of Rule 46-42.001, or any part thereof.
    (13) ``Tropical ornamental marine life species'' means any species 
included in subsections (2) or (3) of Rule 46-42.001, or any part 
thereof.

[[Page 203]]

    (14) ``Tropical ornamental marine plant'' means any species included 
in subsection (4) of Rule 46-42.001.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama 
Starfish.--No person shall harvest, possess while in or on the waters of 
the state, or land any of the following species:
    (1) Longspine urchin, Diadema antillarum.
    (2) Bahama starfish, Oreaster reticulatus.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92.
    46-42.0035 Live Landing and Live Well Requirements.--
    (1) Each person harvesting any tropical ornamental marine life 
species or any tropical ornamental marine plant shall land such marine 
organism alive.
    (2) Each person harvesting any tropical ornamental marine life 
species or any tropical ornamental marine plant shall have aboard the 
vessel being used for such harvest a continuously circulating live well 
or aeration or oxygenation system of adequate size and capacity to 
maintain such harvested marine organisms in a healthy condition.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 7-1-92.
    46-42.004 Size Limits.--
    (1) Angelfishes.--
    (a) No person harvesting for commercial purposes shall harvest, 
possess while in or on the waters of the state, or land any of the 
following species of angelfish, of total length less than that set forth 
below:
    1. One-and-one-half (1 1/2) inches for:
    a. Gray angelfish (Pomacanthus arcuatus).
    b. French angelfish (Pomacanthus paru).
    2. One-and-three-quarters (1\3/4\) inches for:
    a. Blue angelfish (Holacanthus bermudensis).
    b. Queen angelfish (Holacanthus ciliaris).
    3. Two (2) inches for rock beauty (Holacanthus tricolor).
    (b) No person shall harvest, possess while in or on the waters of 
the state, or land any angelfish (Family Pomacanthidae), of total length 
greater than that specified below:
    1. Eight (8) inches for angelfish, except rock beauty (Holacanthus 
tricolor).
    2. Five (5) inches for rock beauty.
    (c) Except as provided herein, no person shall purchase, sell, or 
exchange any angelfish smaller than the limits specified in paragraph 
(a) or larger than the limits specified in paragraph (b). This 
prohibition shall not apply to angelfish legally harvested outside of 
state waters or federal Exclusive Economic Zone (EEZ) waters adjacent to 
state waters, which angelfish are entering Florida in interstate or 
international commerce. The burden shall be upon any person possessing 
such angelfish for sale or exchange to establish the chain of possession 
from the initial transaction after harvest, by appropriate receipt(s), 
bill(s) of sale, or bill(s) of lading, and any customs receipts, and to 
show that such angelfish originated from a point outside the waters of 
the State of Florida or federal Exclusive Economic Zone (EEZ) waters 
adjacent to Florida waters and entered the state in interstate or 
international commerce. Failure to maintain such documentation or to 
promptly produce same at the request of any duly authorized law 
enforcement officer shall constitute prima facie evidence that such 
angelfish were harvested from Florida waters or adjacent EEZ waters for 
purposes of this paragraph.
    (2) Butterflyfishes.--
    (a) No person harvesting for commercial purposes shall harvest, 
possess while in or on the waters of the state, or land any 
butterflyfish (Family Chaetodontidae) of total length less than one (1) 
inch.
    (b) No person shall harvest, possess while in or on the waters of 
the state, or land any butterflyfish of total length greater than 4 
inches.
    (3) Gobies--No person shall harvest, possess while in or on the 
waters of the state, or land any gobie (Family Gobiidae) of total length 
greater than 2 inches.
    (4) Jawfishes--No person shall harvest, possess while in or on the 
waters of the state, or land any jawfish (Family Opistognathidae) of 
total length greater than 4 inches.
    (5) Spotfin and Spanish hogfish--
    (a) No person shall harvest, possess while in or on the waters of 
this state, or land any Spanish hogfish (Bodianus rufus) of total length 
less than 2 inches.
    (b) No person shall harvest, possess while in or on the waters of 
this state, or land any Spanish hogfish (Bodianus rufus) or spotfin 
hogfish (Bodianus pulchellus) of total length greater than 8 inches.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.005 Bag limit.--
    (1) Except as provided in Rule 46-42.006 or subsections (3) or (4) 
of this rule, no person shall harvest, possess while in or on the waters 
of the state, or land more than 20 individuals per day of tropical 
ornamental marine life species, in any combination.
    (2) Except as provided in Rule 46-42.006, no person shall harvest, 
possess while in or on the waters of the state, or land more than one 
(1) gallon per day of tropical ornamental marine plants, in any 
combination of species.
    (3) Except as provided in Rule 46-42.006, no person shall harvest, 
possess while in or on the waters of the state, or land more than 5 
angelfishes (Family Pomacanthidae) per day. Each angelfish shall be 
counted for purposes

[[Page 204]]

of the 20 individual bag limit specified in subsection (1) of this rule.
    (4)(a) Unless the season is closed pursuant to paragraph (b), no 
person shall harvest, possess while in or on the waters of the state, or 
land more than 6 colonies per day of octocorals. Each colony of 
octocoral or part thereof shall be considered an individual of the 
species for purposes of subsection (1) of this rule and shall be counted 
for purposes of the 20 individual bag limit specified therein. Each 
person harvesting any octocoral as authorized by this rule may also 
harvest substrate within 1 inch of the perimeter of the holdfast at the 
base of the octocoral, provided that such substrate remains attached to 
the octocoral.
    (b) If the harvest of octocorals in federal Exclusive Economic Zone 
(EEZ) waters adjacent to state waters is closed to all harvesters prior 
to September 30 of any year, the season for harvest of octocorals in 
state waters shall also close until the following October 1, upon notice 
given by the Secretary of the Department of Environmental Protection, in 
the manner provided in s.120.52(16)(d), Florida Statutes.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 1-1-95.
    46-42.006 Commercial Season, Harvest Limits.--
    (1) Except as provided in Rule 46-42.008(7), no person shall 
harvest, possess while in or on the waters of the state, or land 
quantities of tropical ornamental marine life species or tropical 
ornamental marine plants in excess of the bag limits established in Rule 
46-42.005 unless such person possesses a valid saltwater products 
license with both a marine life fishery endorsement and a restricted 
species endorsement issued by the Department of Environmental 
Protection.
    (2) Persons harvesting tropical ornamental marine life species or 
tropical ornamental marine plants for commercial purposes shall have a 
season that begins on October 1 of each year and continues through 
September 30 of the following year. These persons shall not harvest, 
possess while in or on the waters of the state, or land tropical 
ornamental marine life species in excess of the following limits:
    (a) A limit of 75 angelfish (Family Pomacanthidae) per person per 
day or 150 angelfish per vessel per day, whichever is less.
    (b) A limit of 75 butterflyfishes (Family Chaetodontidae) per vessel 
per day.
    (c) There shall be no limits on the harvest for commercial purposes 
of octocorals unless and until the season for all harvest of octocorals 
in federal Exclusive Economic Zone (EEZ) waters adjacent to state waters 
is closed. At such time, the season for harvest of octocorals in state 
waters shall also close until the following October 1, upon notice given 
by the Secretary of the Department of Environmental Protection, in the 
manner provided in Section 120.52(16)(d), Florida Statutes. Each person 
harvesting any octocoral as authorized by this rule may also harvest 
substrate within 1 inch of the perimeter of the holdfast at the base of 
the octocoral, provided that such substrate remains attached to the 
octocoral.
    (d) A limit of 400 giant Caribbean or ``pink-tipped'' anemones 
(Genus Condylactus) per vessel per day.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.007 Gear Specifications and Prohibited Gear.--
    (1) The following types of gear shall be the only types allowed for 
the harvest of any tropical fish, whether from state waters or from 
federal Exclusive Economic Zone (EEZ) waters adjacent to state waters:
    (a) Hand held net.
    (b) Barrier net, with a mesh size not exceeding \3/4\ inch stretched 
mesh.
    (c) Drop net, with a mesh size not exceeding \3/4\ inch stretched 
mesh.
    (d) Slurp gun.
    (e) Quinaldine may be used for the harvest of tropical fish if the 
person using the chemical or possessing the chemical in or on the waters 
of the state meets each of the following conditions:
    1. The person also possesses and maintains aboard any vessel used in 
the harvest of tropical fish with quinaldine a special activity license 
authorizing the use of quinaldine, issued by the Division of Marine 
Resources of the Department of Environmental Protection pursuant to 
Section 370.08(8), Florida Statutes.
    2. The quinaldine possessed or applied while in or on the waters of 
the state is in a diluted form of no more than 2% concentration in 
solution with seawater. Prior to dilution in seawater, quinaldine shall 
only be mixed with isopropyl alcohol or ethanol.
    (f) A roller frame trawl operated by a person possessing a valid 
live bait shrimping license issued by the Department of Environmental 
Protection pursuant to Section 370.15, Florida Statutes, if such 
tropical fish are taken as an incidental bycatch of shrimp lawfully 
harvested with such trawl.
    (g) A trawl meeting the following specifications used to collect 
live specimens of the dwarf seahorse, Hippocampus zosterae, if towed by 
a vessel no greater than 15 feet in length at no greater than idle 
speed:
    1. The trawl opening shall be no larger than 12 inches by 48 inches.
    2. The trawl shall weigh no more than 5 pounds wet when weighed out 
of the water.
    (2) This rule shall not be construed to prohibit the use of any bag 
or container used solely for storing collected specimens or the use of a 
single blunt rod in conjunction with

[[Page 205]]

any allowable gear, which rod meets each of the following 
specifications:
    (a) The rod shall be made of nonferrous metal, fiberglass, or wood.
    (b) The rod shall be no longer than 36 inches and have a diameter no 
greater than \3/4\ inch at any point.
    (3) No person shall harvest in or from state waters any tropical 
fish by or with the use of any gear other than those types specified in 
subsection (1); provided, however, that tropical fish harvested as an 
incidental bycatch of other species lawfully harvested for commercial 
purposes with other types of gear shall not be deemed to be harvested in 
violation of this rule, if the quantity of tropical fish so harvested 
does not exceed the bag limits established in Rule 46-42.005.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
    46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine 
Corals and Sea Fans; Exception; Repeal of Section 370.114, Florida 
Statutes.--
    (1) Except as provided in subsection (2), no person shall take, 
attempt to take, or otherwise destroy, or sell, or attempt to sell, any 
sea fan of the species Gorgonia flabellum or of the species Gorgonia 
ventalina, or any hard or stony coral (Order Scleractinia) or any fire 
coral (Genus Millepora). No person shall possess any such fresh, 
uncleaned, or uncured sea fan, hard or stony coral, or fire coral.
    (2) Subsection (1) shall not apply to:
    (a) Any sea fan, hard or stony coral, or fire coral legally 
harvested outside of state waters or federal Exclusive Economic Zone 
(EEZ) waters adjacent to state waters and entering Florida in interstate 
or international commerce. The burden shall be upon any person 
possessing such species to establish the chain of possession from the 
initial transaction after harvest, by appropriate receipt(s), bill(s) of 
sale, or bill(s) of lading, and any customs receipts, and to show that 
such species originated from a point outside the waters of the State of 
Florida or federal Exclusive Economic Zone (EEZ) adjacent to state 
waters and entered the state in interstate or international commerce. 
Failure to maintain such documentation or to promptly produce same at 
the request of any duly authorized law enforcement officer shall 
constitute prima facie evidence that such species were harvested from 
Florida waters in violation of this rule.
    (b) Any sea fan, hard or stony coral, or fire coral harvested and 
possessed pursuant to permit issued by the Department of Environmental 
Protection for scientific or educational purposes as authorized in 
Section 370.10(2), Florida Statutes.
    (c) Any sea fan, hard or stony coral, or fire coral harvested and 
possessed pursuant to the aquacultured live rock provisions of Rule 46-
42.008(3)(a) or pursuant to a Live Rock Aquaculture Permit issued by the 
National Marine Fisheries Service under 50 CFR Part 638 and meeting the 
following requirements:
    (1) Persons possessing these species in or on the waters of the 
state shall also possess a state submerged lands lease for live rock 
aquaculture and a Department of Environmental Protection permit for live 
rock culture deposition and removal or a federal Live Rock Aquaculture 
Permit. If the person possessing these species is not the person named 
in the documents required herein, then the person in such possession 
shall also possess written permission from the person so named to 
transport aquacultured live rock pursuant to this exception.
    (2) The nearest office of the Florida Marine Patrol shall be 
notified at least 24 hours in advance of any transport in or on state 
waters of aquacultured live rock pursuant to this exception.
    (3) Persons possessing these species off the water shall maintain 
and produce upon the request of any duly authorized law enforcement 
officer sufficient documentation to establish the chain of possession 
from harvest on a state submerged land lease for live rock aquaculture 
or in adjacent Exclusive Economic Zone (EEZ) waters pursuant to a 
federal Live Rock Aquaculture Permit.
    (4) Any sea fan, hard or stony coral, or fire coral harvested 
pursuant to Rule 46-42.008(3)(a) shall remain attached to the cultured 
rock.
    Specific Authority 370.027(2), F.S.; Section 6, Chapter 83-134, Laws 
of Florida, as amended by Chapter 84-121, Laws of Florida. Law 
Implemented 370.025, 370.027, F.S.; Section 6, Chapter 83-134, Laws of 
Florida, as amended by Chapter 84-121, Laws of Florida. History--New 1-
1-95.2222



   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.



Sec. 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,

[[Page 206]]

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.



Sec. 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

[[Page 207]]

                                  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.



Sec. 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.



Sec. 922.183  Allowed activities.

    (a) All activities except those prohibited by Sec. 922.184 may be 
undertaken in the Sanctuary subject to any emergency regulations 
promulgated pursuant to Sec. 922.185, subject to the interagency 
cooperation provisions of section 304(d) of the NMSA [16 U.S.C. 1434(d)] 
and Sec. 922.187 of this subpart, and subject to the liability 
established by section 312 of the NMSA and Sec. 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 Sec. 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 Sec. 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

[[Page 208]]

under the first sentence of paragraph (a) of this Sec. 922.183. 
Paragraphs (a)(1) through (a)(5) of Sec. 922.184 apply to these classes 
of activities unless--
    (1) They are not subject to consultation under section 304(d) of the 
NMSA and Sec. 922.187 of this subpart, or
    (2) Upon consultation under section 304(d) of the NMSA and Sec. 
922.187 of this subpart, NOAA's findings and recommendations include a 
statement that paragraphs (a)(1) through (a)(5) of Sec. 922.184 do not 
apply to the military activity.
    (d) If a military activity described in paragraphs (b) or (c)(2) of 
this Sec. 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 Sec. 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 Sec. 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 Sec. 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.



Sec. 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 
Sec. 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 Sec. 922.184, this paragraph (b) does not exempt the

[[Page 209]]

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.



Sec. 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.



Sec. 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.



Sec. 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.



  Sec. 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[deg]42.8[min] 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

[[Page 210]]

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.

[[Page 211]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.000

    B. Lateral Closure Bounds for the Hawaiian Islands Humpback Whale 
National Marine Sanctuary Boundary (see Figure 2).

[[Page 212]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.001


----------------------------------------------------------------------------------------------------------------
                                                                        No. of
       Bound No.  (Fig. 2)                   Geographic name            points     Latitude         Longitude
----------------------------------------------------------------------------------------------------------------
 1...............................  Kailiu Pt., Kauai.................       2   22[deg]13[min]  -159[deg]34[min]
                                                                                     24.7[sec]         52.2[sec]
                                                                                22[deg]16[min]  -159[deg]35[min]
                                                                                     33.5[sec]         59.4[sec]
 2...............................  Mokolea Pt., Kauai................       2   22[deg]13[min]  -159[deg]22[min]
                                                                                     29.9[sec]         55.8[sec]
                                                                                22[deg]14[min]  -159[deg]22[min]
                                                                                     55.4[sec]         19.3[sec]
 3...............................  Puaena Pt., N. Oahu...............       2   21[deg]38[min]  -158[deg]8[min]2
                                                                                     24.6[sec]          6.0[sec]
                                                                                21[deg]36[min]  -158[deg]6[min]2
                                                                                      8.4[sec]          4.5[sec]
 4...............................  Mahie Pt., N. Oahu................       2   21[deg]33[min]  -157[deg]51[min]
                                                                                     37.3[sec]         51.9[sec]
                                                                                21[deg]35[min]  -157[deg]50[min]
                                                                                     32.2[sec]          5.5[sec]
 5...............................  Kapahulu Groin, S. Oahu...........       3   21[deg]15[min]  -157[deg]50[min]
                                                                                      5.7[sec]         27.5[sec]
                                                                                21[deg]16[min]  -157[deg]49[min]
                                                                                      6.1[sec]         25.7[sec]
                                                                                21[deg]16[min]  -157[deg]49[min]
                                                                                      6.2[sec]         23.8[sec]
 6...............................  Makapuu Pt., S. Oahu..............       2   21[deg]18[min]  -157[deg]38[min]
                                                                                     39.6[sec]         56.7[sec]
                                                                                21[deg]19[min]  -157[deg]35[min]
                                                                                     44.7[sec]         46.1[sec]
 7...............................  Ilio Pt, Molokai..................       2   21[deg]13[min]  -157[deg]18[min]
                                                                                     25.7[sec]         45.8[sec]
                                                                                21[deg]13[min]  -157[deg]15[min]
                                                                                     27.0[sec]         14.4[sec]
 8...............................  Pailolo Channel, C. Halawa to            2   21[deg]1[min]2  -156[deg]38[min]
                                    Lipoa Pt..                                        9.8[sec]         22.0[sec]
                                                                                21[deg]9[min]2  -156[deg]42[min]
                                                                                      9.5[sec]         37.2[sec]

[[Page 213]]

 
 9...............................  Hanamanoia Lighthouse, Maui.......       2   20[deg]34[min]  -156[deg]26[min]
                                                                                     21.8[sec]         51.1[sec]
                                                                                20[deg]34[min]  -156[deg]24[min]
                                                                                     58.4[sec]         45.2[sec]
 10..............................  3 Nmi. closure around Kahoolawe...      51   20[deg]35[min]  -156[deg]29[min]
                                                                                     58.1[sec]         32.0[sec]
                                                                                20[deg]35[min]  -156[deg]29[min]
                                                                                     59.9[sec]         33.0[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                      3.9[sec]         35.5[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                      6.6[sec]         36.9[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                     16.3[sec]         43.1[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                     25.7[sec]         49.9[sec]
                                                                       .......  20[deg]36[min]  -156[deg]29[min]
                                                                                     34.6[sec]         57.3[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     39.9[sec]          2.2[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     43.8[sec]          5.5[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     50.8[sec]         12.1[sec]
                                                                       .......  20[deg]36[min]  -156[deg]30[min]
                                                                                     59.0[sec]         16.5[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     58.7[sec]         22.7[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     18.1[sec]         29.5[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     27.0[sec]         36.8[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     35.5[sec]         44.8[sec]
                                                                       .......  20[deg]37[min]  -156[deg]30[min]
                                                                                     43.4[sec]         53.4[sec]
                                                                       .......  20[deg]37[min]  -156[deg]31[min]
                                                                                     50.9[sec]          2.4[sec]
                                                                       .......  20[deg]37[min]  -156[deg]31[min]
                                                                                     56.4[sec]         10.0[sec]
                                                                       .......  20[deg]37[min]  -156[deg]31[min]
                                                                                     59.0[sec]         13.2[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                      6.0[sec]         22.7[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                      8.6[sec]         26.8[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     10.8[sec]         29.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     17.2[sec]         39.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     18.9[sec]         43.0[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     23.4[sec]         48.4[sec]
                                                                       .......  20[deg]38[min]  -156[deg]31[min]
                                                                                     30.3[sec]         58.0[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     36.6[sec]          7.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     42.4[sec]         18.3[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     43.4[sec]         20.5[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     46.4[sec]         25.9[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     51.5[sec]         36.7[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     56.0[sec]         47.7[sec]
                                                                       .......  20[deg]38[min]  -156[deg]32[min]
                                                                                     59.8[sec]         59.1[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      3.0[sec]         10.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      4.0[sec]         15.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      4.4[sec]         17.0[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      5.3[sec]         21.1[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      6.8[sec]         28.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      8.6[sec]         40.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      8.9[sec]         44.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                      9.7[sec]         49.6[sec]
                                                                       .......  20[deg]39[min]  -156[deg]33[min]
                                                                                     10.1[sec]         53.8[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.0[sec]          0.3[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.1[sec]         12.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.5[sec]         24.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.4[sec]         25.4[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.6[sec]         30.5[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     12.2[sec]         42.6[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.8[sec]         47.7[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.7[sec]         48.9[sec]
                                                                       .......  20[deg]39[min]  -156[deg]34[min]
                                                                                     11.3[sec]         55.8[sec]
11...............................  Technical Cosure..................       2   20[deg]41[min]  -156[deg]37[min]
                                                                                     39.2[sec]          7.5[sec]
                                                                                20[deg]41[min]  -156[deg]38[min]
                                                                                     45.0[sec]          3.6[sec]
                                   North of Kahoolawe................
12...............................  Upolu Pt., Hawaii (Big Island)....       2   20[deg]16[min]  -155[deg]51[min]
                                                                                      5.3[sec]          0.5[sec]
                                                                                20[deg]17[min]  -155[deg]51[min]
                                                                                     59.9[sec]         17.2[sec]
13...............................  Keahole Pt., Hawaii (Big Island)..       2   19[deg]43[min]  -156[min]3[min]4
                                                                                     39.6[sec]          2.7[sec]
                                                                                19[deg]43[min]  -156[deg]4[min]1
                                                                                     41.5[sec]          4.5[sec]
----------------------------------------------------------------------------------------------------------------
C. Excluded Ports and Harbors Bounds (see Figure 3).


[[Page 214]]

[GRAPHIC] [TIFF OMITTED] TR29NO99.002


----------------------------------------------------------------------------------------------------------------
                                                                        No. of
        Bound No. (Fig.2)                    Geographic Name            Points     Latitude         Longitude
----------------------------------------------------------------------------------------------------------------
14...............................  Kawaihae Harbor, Big Island              2   20[deg]2[min]1  -155[deg]50[min]
                                    exclusion.                                        4.3[sec]          2.5[sec]
                                                                                20[deg]2[min]2  -155[deg]49[min]
                                                                                      5.3[sec]         57.7[sec]
15...............................  Haleolono Harbor, Molokai                2   21[deg]5[min]3  -157[deg]14[min]
                                    exclusion.                                         .5[sec]         58.6[sec]
                                                                                21[deg]5[min]4  -157[deg]14[min]
                                                                                       .8[sec]         55.2[sec]
16...............................  Kaunakakai Harbor, Molokai               4   21[deg]5[min]1  -157[deg]1[min]3
                                    exclusion.                                        3.9[sec]          5.7[sec]
                                                                                21[deg]4[min]4  -157[deg]1[min]5
                                                                                      9.2[sec]          8.3[sec]
                                                                                21[deg]4[min]3  -157[deg]1[min]4
                                                                                      8.5[sec]          1.2[sec]
                                                                                21[deg]5[min]7  -157[deg]1[min]1
                                                                                       .4[sec]          5.0[sec]
17...............................  Kaumalapau Harbor, Lanai exclusion       2   20[deg]47[min]  -156[deg]59[min]
                                                                                      9.2[sec]         32.2[sec]
                                                                                20[deg]47[min]  -156[deg]59[min]
                                                                                      1.1[sec]         31.3[sec]
18...............................  Manele Harbor, Lanai exclusion....       2   20[deg]44[min]  -156[deg]53[min]
                                                                                     33.2[sec]         12.9[sec]
                                                                                20[deg]44[min]  -156[deg]53[min]
                                                                                     35.2[sec]         14.1[sec]
19...............................  Lahaina Harbor, Maui exclusion....       2   20[deg]52[min]  -156[deg]40[min]
                                                                                     18.3[sec]         45.0[sec]
                                                                                20[deg]52[min]  -156[deg]40[min]
                                                                                     18.8[sec]         44.0[sec]
20...............................  Maalaea Harbor, Maui exclusion....       2   20[deg]47[min]  -156[deg]30[min]
                                                                                     32.1[sec]         35.0[sec]
                                                                                20[deg]47[min]  -156[deg]30[min]
                                                                                     24.8[sec]         39.6[sec]

[[Page 215]]

 
21...............................  Western closure Kuapa Pond (Hawaii       2   21[deg]17[min]  -157[deg]43[min]
                                    Kai), Oahu.                                       7.0[sec]          7.7[sec]
                                                                                21[deg]17[min]  -157[deg]43[min]
                                                                                      6.5[sec]          7.0[sec]
22...............................  Eastern closure Kuapa Pond (Hawaii       2   21[deg]16[min]  -157[deg]42[min]
                                    Kai), Oahu.                                      53.3[sec]         42.7[sec]
                                                                                21[deg]16[min]  -157[deg]42[min]
                                                                                     51.9[sec]         40.3[sec]
----------------------------------------------------------------------------------------------------------------



 Subpart R_Thunder Bay National Marine Sanctuary and Underwater Preserve

    Source: 65 FR 39056, June 22, 2000, unless otherwise noted.



Sec. 922.190  Boundary.

    The Thunder Bay National Marine Sanctuary and Underwater Preserve 
(Sanctuary) consists of an area of approximately 448 square miles (1169 
square kilometers) of waters of Lake Huron and the submerged lands 
thereunder, over, around, and under the underwater cultural resources in 
Thunder Bay. The boundary forms an approximately rectangular area by 
extending along the ordinary high water mark between the northern and 
southern boundaries of Alpena County, cutting across the mouths of 
rivers and streams, and lakeward from those points along latitude lines 
to longitude 83 degrees west. The coordinates of the boundary are set 
forth in Appendix A to this Subpart.



Sec. 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 Sec. 
922.193.
    Traditional fishing means those commercial, recreational, and 
subsistence fishing activities that were customarily conducted within 
the Sanctuary prior to its designation, as identified in the Final 
Environmental Impact Statement and Management Plan for this Sanctuary. 
Copies of the Final Environmental Impact Statement/Management Plan 
(FEIS/MP) are available upon request to the Marine Sanctuaries Division, 
Office of Ocean and Coastal Resource Management, National Ocean Service, 
National Oceanic and Atmospheric Administration, 1305 East-West Highway, 
11th Floor, Silver Spring, MD 20910, (301) 713-3125.
    Traditional fishing includes tribal fishing rights as provided for 
in the 1836 Treaty of Washington and subsequent court decisions related 
to the Treaty.
    Underwater cultural resource means:
    (1) Any sunken watercraft, including a ship, boat, canoe, skiff, 
raft, or barge; the rigging, gear, fittings, trappings, and equipment of 
any sunken watercraft; the personal property of the officers, crew, and 
passengers of any sunken watercraft; and the cargo of any sunken 
watercraft, that sank prior to the effective date of Sanctuary 
designation; and
    (2) Any of the above that sinks on or after the date of Sanctuary 
designation determined to be an underwater cultural resource by the 
Director pursuant to Sec. 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.

[[Page 216]]

    (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.



Sec. 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.



Sec. 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.

[[Page 217]]

    (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 
Sec. 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 Sec. 922.194 and Sec. 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.



Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 
922.193 may conduct the activity without being in violation of 
applicable provisions of Sec. 922.193, pending final agency action on 
his or her certification request, provided the holder is in compliance 
with this Sec. 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 Sec. 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

[[Page 218]]

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 Sec. 
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 Sec. 
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 Sec. 
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 Sec. 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 Sec. 
922.195 and Sec. 922.49.
    (l) For any activity authorized pursuant to Sec. 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.



Sec. 922.195  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 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 Sec. 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 Sec. 922.49 of this part.
    (b) If no State Permit is required to conduct an activity prohibited 
by Sec. 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 Sec. 922.49 of this part.
    (c) In instances where the conduct of an activity is prohibited by 
Sec. 922.193 (a)(1) through (3) of this subpart is not addressed under 
a State or other Federal lease, license, permit or other authorization, 
a person must obtain a Sanctuary permit from NOAA pursuant to Sec. 
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

[[Page 219]]

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 Sec. 922.195(e)(9) 
of this section). The plan must provide adequate description of methods 
to be used for excavation, recovery and the storage of artifacts and 
related materials on site, and describe the rationale for selecting the 
proposed methods over any alternative methods;
    (5) Archaeological recording, including site maps, feature maps, 
scaled photographs, and field notes;
    (6) An excavation plan describing the excavation, recovery and 
handling of artifacts;
    (7)(i) A conservation plan documenting:
    (A) The conservation facility's equipment;
    (B) Ventilation temperature and humidity control; and
    (C) storage space.
    (ii) Documentation of intended conservation methods and processes 
must also be included;
    (8) A curation and display plan for the curation of the conserved 
artifacts to ensure the maintenance and safety of the artifacts in 
keeping with the Sanctuary's federal stewardship responsibilities under 
the Federal Archaeology Program (36 CFR Part 79, Curation of Federally-
Owned and Administered Archaeological Collections); and
    (9) Documentation of the professional standards of an archaeologist 
supervising the archaeological recovery of historical artifacts. The 
minimum professional qualifications in archaeology are a graduate degree 
in archaeology, anthropology, or closely related field plus:
    (i) At least one year of full-time professional experience or 
equivalent specialized training in archeological research, 
administration or management;
    (ii) At least four months of supervised field and analytic 
experience in general North American archaeology;
    (iii) Demonstrated ability to carry research to completion; and
    (iv) At least one year of full-time professional experience at a 
supervisory level in the study of archeological resources in the 
underwater environment.



Sec. 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.



Sec. 922.197  Consultation with affected federally-recognized Indian tribes.

    The Director shall regularly consult with the governing bodies of 
affected federally-recognized Indian tribes regarding areas of mutual 
concern.

[[Page 220]]



Sec. 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.



 Sec. 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                      Latitude        Longitude
------------------------------------------------------------------------
1.......................................  45[deg]12[min]  83[deg]23[min]
                                               25.5[sec]       18.6[sec]
2.......................................  45[deg]12[min]  83[deg]00[min]
                                               25.5[sec]         00[sec]
3.......................................  44[deg]51[min]  83[deg]00[min]
                                               30.5[sec]         00[sec]
4.......................................  44[deg]51[min]  83[deg]19[min]
                                               30.5[sec]       17.3[sec]
------------------------------------------------------------------------



Sec. Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
                        Sec. 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

[[Page 221]]

    (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.



PART 923_COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS--Table of Contents




                            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.

[[Page 222]]

                  Subpart G_Review/Approval Procedures

923.60 Review/approval procedures.

 Subpart H_Amendments to and Termination of Approved Management Programs

923.80 General.
923.81 Requests for amendments.
923.82 Amendment review/approval procedures.
923.83 Mediation of amendments.
923.84 Routine program changes.

 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.



Sec. 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

[[Page 223]]

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.



Sec. 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.

[[Page 224]]

    (i) The term grant means a financial assistance instrument and 
refers to both grants and cooperative agreements.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 225]]

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.



Sec. 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]



Sec. 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.



Sec. 923.20  General.

    (a) This subpart sets forth the requirements for management program 
approvability with respect to areas of

[[Page 226]]

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.



Sec. 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

[[Page 227]]

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.



Sec. 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.



Sec. 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 Sec. 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 Sec. 
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.



Sec. 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 Sec. 923.21 or areas for preservation or restoration 
pursuant to Sec. 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.



Sec. 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

[[Page 228]]

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 Sec. 923.21 or as areas for preservation or 
restoration pursuant to Sec. 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.



Sec. 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.



Sec. 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 Sec. 
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

[[Page 229]]

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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 230]]

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 Sec. 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 Sec. Sec. 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.



Sec. 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

[[Page 231]]

    (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.



Sec. 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 
Sec. 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

[[Page 232]]

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.



Sec. 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 Sec. 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:

[[Page 233]]

    (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.



Sec. 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.



Sec. 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

[[Page 234]]

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.



Sec. 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.



Sec. 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;

[[Page 235]]

    (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.



Sec. 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.



Sec. 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

[[Page 236]]

Consultation; 306(d)(4)--Public Hearings; 306(d)(8)--Consideration of 
the National Interest in Facilities; 307(b)--Federal Consultation; and 
307(h)--Mediation.



Sec. 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 Sec. 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 Sec. 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 Sec. 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.



Sec. 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

[[Page 237]]

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.



Sec. 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).



Sec. 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

[[Page 238]]

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.



Sec. 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.



Sec. 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;

[[Page 239]]

    (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.



Sec. 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:

[[Page 240]]

    (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.



Sec. 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.



Sec. 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 Sec. 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

[[Page 241]]

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_Amendments to and Termination of Approved Management Programs

    Source: 61 FR 33815, June 28, 1996, unless otherwise noted.



Sec. 923.80  General.

    (a) This subpart establishes the criteria and procedures by which 
amendments, modifications or other changes to approved management 
programs may be made. This subpart also establishes the conditions and 
procedures by which administrative funding may be terminated for 
programmatic reasons.
    (b) Any coastal state may amend or modify a management program which 
it has submitted and which has been approved by the Assistant 
Administrator under this subsection, subject to the conditions provided 
for subsection 306(e) of the Act.
    (c) As required by subsection 312(d) of the Act, the Assistant 
Administrator 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, it the Assistant Administrator determines that the coastal 
state has failed to take the actions referred to in subsection 
312(c)(2)(A) of the Act.
    (d) For purposes of this subpart, amendments are defined as 
substantial changes in one or more of the following coastal management 
program areas:
    (1) Uses subject to management;
    (2) Special management areas;
    (3) Boundaries;
    (4) Authorities and organization; and
    (5) Coordination, public involvement and the national interest.
    (e) OCRM will provide guidance on program changes. The five program 
management areas identified in Sec. 923.80(d) are also discussed in 
subpart B through F of this part.



Sec. 923.81  Requests for amendments.

    (a) Requests for amendments shall be submitted to the Assistant 
Administrator by the Governor of a coastal state with an approved 
management program or by the head of the state agency (designated 
pursuant to subsection 306(d)(6) of the Act) if the Governor had 
delegated this responsibility and such delegation is part of the 
approved management program. Whenever possible, requests should be 
submitted prior to final State action to implement the amendment. At 
least one public hearing must be held on the proposed amendment, 
pursuant to subsection 306(d)(4) of the Act. Pursuant to section 311 of 
the Act, notice of such public hearing(s) must be announced at least 30 
days prior to the hearing date. At the time of the announcement, 
relevant agency materials pertinent to the hearing must be made 
available to the public.
    (b) Amendment requests must contain the following:
    (1) A description of the proposed change, including specific pages 
and text of the management program that will be changed if the amendment 
is approved by the Assistant Administrator. This description shall also 
identify any enforceable policies to be added to the management program;
    (2) An explanation of why the change is necessary and appropriate, 
including a discussion of the following factors, as relevant; changes in 
coastal zone needs, problems, issues, or priorities. This discussion 
also shall identify which findings, if any made by the Assistant 
Administrator in approving the management program may need to be 
modified if the amendment is approved;
    (3) A copy of public notice(s) announcing the public hearing(s) on 
the proposed amendments;
    (4) A summary of the hearing(s) comments:

[[Page 242]]

    (i) Where OCRM is providing Federal agency review concurrent with 
the notice period for the State's public hearing, this summary of 
hearing(s) comments may be submitted to the Assistant Administrator 
within 60 days after the hearing;
    (ii) Where hearing(s) summaries are submitted as a supplement to the 
amendment request (as in the case described in paragraph (b)(1) of this 
section), the Assistant Administrator will not take final action to 
approve or disapprove an amendment request until the hearing(s) 
summaries have been received and reviewed; and
    (5) Documentation of opportunities provided relevant Federal, State, 
regional and local agencies, port authorities and other interested 
public and private parties to participate in the development and 
approval at the State level of the proposed amendment.

[61 FR 33815, June 28, 1996; 61 FR 36965, July 15, 1996]



Sec. 923.82  Amendment review/approval procedures.

    (a) Upon submission by a State of its amendment request, OCRM will 
review the request to determine preliminarily if the management program, 
if changed according to the amendment request, still will constitute an 
approvable program. In making this determination, OCRM will determine 
whether the state has satisfied the applicable program approvability 
criteria of subsection 306(d) of the Act.
    (b) If the Assistant Administrator, as a preliminary matter, 
determines that the management program, if changed, would no longer 
constitute an approvable program, or if any of the procedural 
requirements of section 306(d) of the Act have not been met, the 
Assistant Administrator shall advise the state in writing of the reasons 
why the amendment request cannot be considered.
    (c) If the Assistant Administrator, as a preliminary matter, 
determines that the management program, if changed, would still 
constitute an approvable program and that the procedural requirements of 
section 306(d) of the Act have been met, the Assistant Administrator 
will then determine, pursuant to the National Environmental Policy Act 
of 1969, as amended, whether an environmental impact statement (EIS) is 
required.



Sec. 923.83  Mediation of amendments.

    (a) Section 307(h)(2) of the Act provides for mediation of ``serious 
disagreements'' between a Federal agency and a coastal State during 
administration of an approved management program. Accordingly mediation 
is available to states or federal agencies when a serious disagreement 
regarding a proposed amendment arises.
    (b) Mediation may be requested by a Governor or head of a state 
agency designated pursuant to subsection 306(d)(6) or by the head of a 
relevant federal agency. Mediation is a voluntary process in which the 
Secretary of Commerce attempts to mediate between disagreeing parties 
over major problems. (See Sec. 923.54).



Sec. 923.84  Routine program changes.

    (a) Further detailing of a State's program that is the result of 
implementing provisions approved as part of a State's approved 
management program, that does not result in the type of action described 
in Sec. 923.80(d), will be considered a routine program change. While a 
routine change is not subject to the amendment procedures contained in 
Sec. Sec. 923.81 through 923.82, it is subject to mediation provisions 
of Sec. 923.83.
    (b)(1) States must notify OCRM of routine program change actions in 
order that OCRM may review the action to ensure it does not constitute 
an amendment. The state notification shall identify any enforceable 
policies to be added to the management program, and explain why the 
program change will not result in the type of action described in Sec. 
923.80(d).
    (i) States have the option of notifying OCRM of routine changes on a 
case-by-case basis, periodically throughout the year, or annually.
    (ii) In determining when and how often to notify OCRM of such 
actions, States should be aware that Federal consistency will apply only 
after the notice required by paragraph (b)(4) of this section has been 
provided.

[[Page 243]]

    (2) Concurrent with notifying OCRM, States must provide notice to 
the general public and affected parties, including local governments, 
other State agencies and regional offices of relevant federal agencies 
of the notification given OCRM.
    (i) This notice must:
    (A) Describe the nature of the routine program change and identify 
any enforceable policies to be added to the management program if the 
State's request is approved;
    (B) Indicate that the State considers it to be a routine program 
change and has requested OCRM's concurrence in that determination; and
    (C) Indicate that any comments on whether or not the action does or 
does not constitute a routine program change may be submitted to OCRM 
within 3 weeks of the date of issuance of the notice.
    (ii) Where relevant Federal agencies do not maintain regional 
offices, notice must be provided to the headquarters office.
    (3) Within 4 weeks of receipt of notice from a State, OCRM will 
inform the State whether it concurs that the action constitutes a 
routine program change. Failure to notify a State in writing within 4 
weeks of receipt of notice shall be considered concurrence.
    (4) Where OCRM concurs, a State then must provide notice of this 
fact to the general public and affected parties, including local 
governments, other State agencies and relevant Federal agencies.
    (i) This notice must:
    (A) Indicate the date on which the State received concurrence from 
OCRM that the action constitutes a routine program change;
    (B) Reference the earlier notice (required in paragraph (b)(2) of 
this section) for a description of the content of the action; and
    (C) Indicate if Federal consistency applies as of the date of the 
notice called for in this paragraph.
    (ii) Federal consistency shall not be required until this notice has 
been provided.
    (5) Where OCRM does not concur, a State will be advised to:
    (i) submit the action as an amendment, subject to the provisions of 
Sec. Sec. 923.81 through 923.82; or
    (ii) resubmit the routine program change with additional information 
requested by OCRM concerning how the program will be changed as a result 
of the action.

[61 FR 33815, June 28, 1996; 61 FR 36965, July 15, 1996]



 Subpart I_Applications for Program Development or Implementation Grants

    Source: 61 FR 33816, June 28, 1996, unless otherwise noted.



Sec. 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

[[Page 244]]

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.



Sec. 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.



Sec. 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.

[[Page 245]]



Sec. 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.



Sec. 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 Sec. 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;

[[Page 246]]

    (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.



Sec. 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.



Sec. 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



Sec. 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.

[[Page 247]]

    (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.



Sec. 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

[[Page 248]]

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]



Sec. 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,

[[Page 249]]

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]



Sec. 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

[[Page 250]]

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 Sec. 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 Sec. 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]



Sec. 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 Sec. 923.121(b). The weighted formula funding target 
will be the State base allocation determined by the application of the 
formula at Sec. 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 Sec. 923.124(d).

[[Page 251]]

    (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 Sec. 923.128.
    (e) Funding for projects of special merit. The Assistant 
Administrator will award the remaining section 309 funds, which are not 
awarded under Sec. 923.124(d), to States based on an annual evaluation 
and ranking of projects of special merit, as defined in Sec. 
923.123(d). Funding of projects of special merit will be limited to the 
highest ranked projects based on the criteria at Sec. 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 Sec. 
923.124(b), the proportion to be awarded by weighted formula pursuant to 
Sec. 923.124(c), the State's weighted formula funding target pursuant 
to Sec. 923.124(d), and the total amount of funds available for funding 
for projects of special merit pursuant to Sec. 923.124(e).

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 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 Sec. 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;

[[Page 252]]

    (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 Sec. 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 Sec. 923.123(f).
    (c) Section 309 funds not awarded to States under Sec. 923.125(a) 
will be awarded to States under Sec. 923.125(b).

[57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 
33819, June 28, 1996]



Sec. 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 Sec. 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 Sec. 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 Sec. 
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 Sec. 923.125(a) and which projects should be 
funded as projects of special merit under Sec. 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

[[Page 253]]

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 Sec. 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 Sec. 923.125(a) exceeds the State's weighted 
formula funding target pursuant to Sec. 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 Sec. 923.125(a) and evaluate 
and rank projects of special merit based on the criteria at Sec. 
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 
Sec. 923.125(a), the Assistant Administrator may either reduce or deny 
the amount available to the State under Sec. 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]



Sec. 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 Sec. 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 Sec. 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]



Sec. 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

[[Page 254]]

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).



Sec. 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]



Sec. 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

[[Page 255]]

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]



Sec. 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 Sec. Sec. 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

[[Page 256]]

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 Sec. 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:

[[Page 257]]

    (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 Sec. 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]



Sec. 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]



Sec. 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

[[Page 258]]

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 Sec. 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 Sec. 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

[[Page 259]]

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

[[Page 260]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 261]]

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]



PART 930_FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS--Table 

of Contents




                      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.

[[Page 262]]

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



Sec. 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

[[Page 263]]

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]



Sec. 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.



Sec. 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.



Sec. 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 Sec. 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

[[Page 264]]

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.



Sec. 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.



Sec. 930.6  State agency responsibility.

    (a) This section describes the responsibilities of the ``State 
agency'' described in Sec. 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 Sec. 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



Sec. 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             930.32
 practicable.
Consistent with the objectives or purposes   930.121
 of the Act.
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  930.85(c)
 plan.
Federal agency.............................  930.11(j)
Federal agency activity....................  930.31
Federal assistance.........................  930.91

[[Page 265]]

 
Federal license or permit..................  930.51
Federal license or permit activity           930.71
 described in detail.
Interstate coastal effect..................  930.151
Major amendment............................  930.51(c)
Management program.........................  930.11(k)
Necessary in the interest of national        930.122
 security.
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]



Sec. 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 Sec. 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 USC 1453(6a), and which are incorporated in a 
management program as approved by OCRM either as

[[Page 266]]

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



Sec. 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.



Sec. 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

[[Page 267]]

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 Sec. 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]



Sec. 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 USC 1456(c)(1)(B)). In cases where 
the cost of being consistent with the enforceable policies of a 
management program was

[[Page 268]]

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.



Sec. 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 Sec. 930.35 is not required, then the Federal 
agency is not required to coordinate with State agencies under section 
307 of the Act.

[[Page 269]]

    (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 Sec. 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 Sec. 
930.34 and not a negative determination under Sec. 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.



Sec. 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

[[Page 270]]

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.



Sec. 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 Sec. 
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 Sec. 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

[[Page 271]]

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 Sec. 
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 Sec. 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 Sec. 
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]



Sec. 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

[[Page 272]]

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 Sec. 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 Sec. 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.



Sec. 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

[[Page 273]]

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 Sec. 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]



Sec. 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 Sec. 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).



Sec. 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 Sec. 
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 Sec. 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

[[Page 274]]

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.



Sec. 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 Sec. 930.39.



Sec. 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 Sec. 930.39(a). The 60-day review period begins 
when the State agency receives the consistency determination and 
supporting information required by Sec. 930.39(a). If the information 
required by Sec. 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 Sec. 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 
Sec. 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 
Sec. 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 Sec. 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 
Sec. 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.

[[Page 275]]

    (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 Sec. 930.46, or a phased review under Sec. 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]



Sec. 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.

[[Page 276]]



Sec. 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 Sec. 
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 Sec. Sec. 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.



Sec. 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.



Sec. 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

[[Page 277]]

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.



Sec. 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



Sec. 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.



Sec. 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

[[Page 278]]

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 Sec. 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]



Sec. 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 Sec. 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.



Sec. 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

[[Page 279]]

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 Sec. 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 
Sec. 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.



Sec. 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

[[Page 280]]

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 Sec. Sec. 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,

[[Page 281]]

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.



Sec. 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 Sec. 930.53) or individually approved by the Director 
(see Sec. 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.



Sec. 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.



Sec. 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.''



Sec. 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

[[Page 282]]

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]



Sec. 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.



Sec. 930.60  Commencement of State agency review.

    (a) The State agency's six-month review period (see Sec. 930.62(a)) 
of an applicant's consistency certification begins on the date the State 
agency receives the consistency certification required by Sec. 930.57 
and all the necessary data and information required by Sec. 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 Sec. 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 Sec. 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 
Sec. 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

[[Page 283]]

consistency certification. The State agency may waive the requirement in 
paragraph (a) of this section that all necessary data and information 
described in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 930.58 shall not 
extend the date of commencement of State agency review.

[71 FR 827, Jan. 5, 2006]



Sec. 930.61  Public participation.

    (a) Following receipt of the material described in Sec. 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.,

[[Page 284]]

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.



Sec. 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 Sec. 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 Sec. 930.4).



Sec. 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 Sec. 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)

[[Page 285]]

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 Sec. 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]



Sec. 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.



Sec. 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

[[Page 286]]

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.



Sec. 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



Sec. 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.



Sec. 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 
Sec. 930.51, which the Secretary of the Interior determines must be 
described in detail within an OCS plan.



Sec. 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.



Sec. 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

[[Page 287]]

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.



Sec. 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 Sec. 
930.53 shall include a reference to OCS plans which describe in detail 
federal license or permit activities affecting any coastal use or 
resource.



Sec. 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.



Sec. 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 Sec. 
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]



Sec. 930.77  Commencement of State agency review and public notice.

    (a)(1) Except as provided in Sec. 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 
Sec. 930.76(a) and (b). If a person has submitted the documents 
required by Sec. 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 Sec. 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 Sec. 930.76. If a State agency wants 
to augment the necessary data and information required by Sec. 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 Sec. 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 Sec. 930.76 is not adequate to 
complete its review, and the nature of

[[Page 288]]

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 Sec. 
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 Sec. 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 Sec. 930.61.

[65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006]



Sec. 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 
Sec. 930.63.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 289]]

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.



Sec. 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]



Sec. 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 Sec. Sec. 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.



Sec. 930.84  Continuing State agency objections.

    If the State agency objects to the consistency certification for an 
amended OCS plan, the prohibition in Sec. 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 
Sec. Sec. 930.82 through 930.83.



Sec. 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.

[[Page 290]]

    (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 Sec. 
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



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 930.95(a)) or within a described geographic 
area outside of the coastal zone (see Sec. 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

[[Page 291]]

relationship of the proposed activity and any reasonably foreseeable 
coastal effects to the enforceable policies of the management program.



Sec. 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 Sec. 930.98.)



Sec. 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 Sec. 930.63.



Sec. 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.



Sec. 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

[[Page 292]]

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 Sec. 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.



Sec. 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.



Sec. 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

[[Page 293]]

and to submit comments for the Director's consideration.



Sec. 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



Sec. 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.



Sec. 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.



Sec. 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.

[[Page 294]]



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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



Sec. 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.



Sec. 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 
Sec. 302 or Sec. 303 of

[[Page 295]]

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]



Sec. 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.



Sec. 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]



Sec. 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.



Sec. 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 Sec. Sec. 930.121 and/or 930.122 of this title, 
including any procedural arguments pursuant to Sec. 930.129(b). Bases 
for appeal

[[Page 296]]

(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]



Sec. 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 USC 1465(a)(2)) and Sec. 930.130 of 
this subpart.



Sec. 930.127  Briefs and supporting materials.

    (a) Within 30 days of submitting the notice of appeal, as specified 
in Sec. 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

[[Page 297]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 930.125(e), the Secretary may

[[Page 298]]

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 Sec. 930.130(a)(2).

[71 FR 830, Jan. 5, 2006, as amended at 71 FR 75865, Dec. 19, 2006]



Sec. 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 Sec. 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]



Sec. 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 Sec. 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 Sec. 930.130 for the development of the 
Secretary's decision record. If the State agency responds that it still 
objects to the activity,

[[Page 299]]

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]



Sec. 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 Sec. 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]



Sec. 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.

[[Page 300]]



 Subpart I_Consistency of Federal Activities Having Interstate Coastal 
                                 Effects



Sec. 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.



Sec. 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.''



Sec. 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.



Sec. 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

[[Page 301]]

    (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.



Sec. 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 Sec. 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 Sec. 930.54 of this part. 
After the transition period States must comply with this subpart in 
order to review interstate activities.



Sec. 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

[[Page 302]]

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.



Sec. 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.



Sec. 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]

[[Page 303]]



        SUBCHAPTER C_REGULATIONS OF THE NATIONAL WEATHER SERVICE



PART 946_MODERNIZATION OF THE NATIONAL WEATHER SERVICE--Table of Contents




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.



Sec. 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.



Sec. 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.

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    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 Sec. 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.

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    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]



Sec. 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.



Sec. 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



Sec. 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

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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.



Sec. 946.6  Change in operations--transferring responsibility and moving field 

offices.

    (a) After providing any notification required by Sec. 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 Sec. 946.7.



Sec. 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;

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    (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 
Sec. 946.5(a);
    (2) The Decommissioning Report containing the elements described in 
Sec. 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 
Sec. 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 
Sec. 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.



Sec. 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.

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Sec. 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.



Sec. 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.



  Sec. 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.

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    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.

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    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 decomissioning 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.

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    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

[[Page 312]]

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.

[[Page 313]]

[GRAPHIC] [TIFF OMITTED] TR21JY97.000

       (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 Sec. 946.2 of the 
basic modernization regulations, this action has been completed as 
evidenced by the approved

[[Page 314]]

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 Sec. 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]



               Sec. 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

[[Page 315]]

 
  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]

[[Page 316]]



   SUBCHAPTER D_GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE



PART 950_ENVIRONMENTAL DATA AND INFORMATION--Table of Contents




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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 317]]

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.



Sec. 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.



Sec. 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.



Sec. 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.

[[Page 318]]

    (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.



Sec. 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.



Sec. 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:

[[Page 319]]

    (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.



Sec. 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.



 Sec. Appendix A to Part 950--Schedule of User Fees for Access to NOAA 
                           Environmental Data

------------------------------------------------------------------------
    Name of product/data/publication/                       Commercial
           information/service              Current fee      user fee
------------------------------------------------------------------------
              NOAA National Data Centers Standard User Fees
------------------------------------------------------------------------
Off-Line Products and Services:
    Magnetic Tape Copy..................         $155.00         $210.00
    Diskette Copy.......................           40.00           50.00
    CD-ROM:
        Conventional....................           75.00          100.00
        Specialized.....................          130.00          175.00
        Recordable Copy.................          170.00          225.00
    Microfilm Reel copy:
        100 Feet........................           30.00           40.00
        1,000 Feet......................          140.00          190.00
    Paper Copies........................            0.30            0.40
    Microprints.........................            0.30            0.40
    Posters.............................           18.00           18.00
    Slide Sets..........................           25.00           25.00
    Publications:
        Non-Serial Pubs less than 20                8.00           12.00
         Pages..........................
        Non-Serial Pubs 20 or more Pages           15.00           20.00
    DOC Certifications of Records.......           45.00           60.00
    General Certifications..............           35.00           45.00
    Priority Surcharge..................           45.00           60.00
    Overnight Rush Surcharge............           75.00          100.00
    Domestic Fax Charge (Same Day                  65.00           85.00
     Turnaround)........................
    Foreign Fax Charge (Same Day                   85.00          115.00
     Turnaround)........................
On-Line Products and Services*
    Publications:
        Limited Access..................            2.00            2.00
        Unlimited Access................           20.00           20.00
    Observation Forms:
        Limited Access..................            5.00            5.00
        Unlimited Access................           50.00           50.00
    Satellite Datasets:
        Limited Access..................           30.00           30.00

[[Page 320]]

 
        Unlimited Access................          200.00          200.00
    In-situ Datasets:
        Limited Access..................           20.00           20.00
        Unlimited Access................          200.00          200.00
    CD-ROM Access (unlimited)...........           20.00           20.00
    Guide/Inventory/Browse Access.......           (\1\)           (\1\)
------------------------------------------------------------------------
           Additional National Climatic Data Center User Fees
------------------------------------------------------------------------
    Local Climatological Data                       4.00            5.00
     Publication........................
    Climatological Data Publication.....            5.00            7.00
    Storm Data Publication..............            5.00            7.00
    Monthly Climatic Data of the World              5.00            7.00
     Publication........................
    Hourly Precipitation Data                       5.00            7.00
     Publication........................
    Local Climatological Data                      24.00           32.00
     Subscription.......................
    Climatological Data Subscription....           32.00           45.00
    Storm Data Subscription.............           53.00           70.00
    Monthly Climatic Data of the World             43.00           55.00
     Subscriptions......................
    Hourly Precipitation Data                      47.00           65.00
     Subscription.......................
    Selected Data Elements (6250/Cart./           230.00          300.00
     8mm/4mm/FTP).......................
    Diskette (Data Selection)...........          195.00         260.00'
------------------------------------------------------------------------
         Additional National Oceanographic Data Center User Fees
------------------------------------------------------------------------
    Data Selection/Retrieval:
        Printout........................          103.00          140.00
        Magnetic Tape...................          199.00          265.00
        Magnetic Diskette...............           64.00           85.00
        CD-ROM, Recordable..............          205.00          270.00
        Computer Data Transfer (FTP)....          145.00          190.00
    CD-ROM Sets:
        World Ocean Atlas 1994:
            Individual Discs............           36.00           50.00
            Complete Set (10 Discs).....          360.00          480.00
    NOAA Buoy Database:
        Initial Set (thru July 1992):
            Individual Discs............           42.00           55.00
            Complete Set (14 Discs).....          588.00          780.00
        Update Discs (8/92-12/94)
            Individual Discs............           42.00           55.00
            Complete Set (7 Discs)......          294.00          390.00
    Update Disc 1995 (Full Year,                   75.00          100.00
     Compressed)........................
    Geosat Altimeter Crossover
     Difference (T2 GDRs):
        Individual Discs................           28.00           40.00
        Complete Set (6 Discs)..........          168.00          225.00
    Geosat Altimeter Crossover
     Difference:
        Individual Discs................           22.00           30.00
        Complete Set (8 Discs)..........          176.00          235.00
    Geosat Geodetic Mission Data:
        Individual Discs................           38.00           50.00
        Complete Set (4 Discs)..........          152.00          200.00
------------------------------------------------------------------------
* Under Development.
\1\ No charge.


[62 FR 24813, May 7, 1997]



PART 960_LICENSING OF PRIVATE REMOTE SENSING SYSTEMS--Table of Contents




                            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.

[[Page 321]]

                         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



Sec. 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.



Sec. 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

[[Page 322]]

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).



Sec. 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

[[Page 323]]

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

[[Page 324]]

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



Sec. 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

[[Page 325]]

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 Sec. 960.6(a) must be extended to allow adequate 
review of the revised application and, if so, for how long.



Sec. 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.



Sec. 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 Sec. Sec. 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.

[[Page 326]]

    (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 Sec. 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.



Sec. 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 Sec. 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 Sec. 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

[[Page 327]]

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 Sec. 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.



Sec. 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 Sec. 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

[[Page 328]]

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.



Sec. 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).

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Sec. 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 Sec. 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.



Sec. 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:

[[Page 330]]

    (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 Sec. 
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 Sec. 960.7.
    (6) In accordance with Section 201(e) of the Act and Sec. 960.12, a 
licensee shall make available on reasonable commercial terms and 
conditions, in accordance with the Act and Sec. 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.

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    (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 
Sec. 960.11(b) upon a showing of good cause and following consultations 
with the appropriate agencies.



Sec. 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

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reasonable commercial terms and conditions, subject to the requirement 
of providing data to the government of any sensed state, pursuant to 
Sec. 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



Sec. 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.

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                    Subpart D_Enforcement Procedures



Sec. 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.



Sec. 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.

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    (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 Sec. 
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 Sec. 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 Sec. 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.



 Sec. 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;

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    (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 Sec. 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.

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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.



  Sec. 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.

[[Page 337]]

    (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.

[[Page 338]]

 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.



PART 970_DEEP SEABED MINING REGULATIONS FOR EXPLORATION LICENSES--Table of 

Contents




                            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.

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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.



Sec. 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

[[Page 340]]

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]



Sec. 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;

[[Page 341]]

    (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 Sec. 970.301; or
    (2) Any amendment which has not been accorded a pre-enactment 
explorer priority of right under Sec. 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]



Sec. 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.



Sec. 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

[[Page 342]]

    (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

[[Page 343]]

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.



Sec. 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 Sec. 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 Sec. 970.209 or subpart C, as applicable;
    (B) An application has not been brought into substantial compliance 
in accordance with Sec. 970.210 or subpart C, as applicable;
    (C) A license has been relinquished or surrendered in accordance 
with Sec. 970.903; or
    (ii) A decision to:
    (A) Deny certification of a license pursuant to Sec. 970.407; or
    (B) Deny issuance of a license pursuant to Sec. 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]

[[Page 344]]

                                Contents



Sec. 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 Sec. 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.



Sec. 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 Sec. 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.



Sec. 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 Sec. 970.601;
    (3) The intended exploration schedule which must be responsive to 
the diligence requirements in Sec. 970.602. Taking into account that 
different applicants may have different concepts and chronologies with 
respect to the types of activities described, the schedule

[[Page 345]]

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 Sec. 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 Sec. Sec. 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.



Sec. 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

[[Page 346]]

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 
Sec. Sec. 970.503, 970.505, and 970.520, the application must include 
information known to the applicant with respect to such other 
activities.



Sec. 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 
Sec. Sec. 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.



Sec. 970.206  Statement of ownership.

    The application must include sufficient information to demonstrate 
that the applicant is a United States citizen, as required by Sec. 
970.103(b)(6), and as defined in Sec. 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;

[[Page 347]]

    (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.



Sec. 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.



Sec. 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 Sec. 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 Sec. 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



Sec. 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 Sec. 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 Sec. Sec. 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.

[[Page 348]]

    (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]



Sec. 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 Sec. 
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 Sec. Sec. 970.201 through 970.208.

[46 FR 45898, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982]



Sec. 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 Sec. 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 Sec. 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]



Sec. 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

[[Page 349]]

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]



Sec. 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 Sec. 
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 Sec. 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.



Sec. 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.

[[Page 350]]

    (7) International conflict means a conflict arising between or among 
applications or amendments filed with the Administrator and a 
reciprocating state.



Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 970.601(d), and the number of applications filed, or to be 
filed, in pursuit of the ``banking'' option.



Sec. 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 Sec. 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:

[[Page 351]]

    (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 Sec. 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 Sec. 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 Sec. 970.301 which is accorded pre-enactment explorer 
priority of right or an application identified pursuant to Sec. 
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 Sec. 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,

[[Page 352]]

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,

[[Page 353]]

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 Sec. 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]



Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 354]]

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.



Sec. 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 Sec. Sec. 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.



Sec. 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 Sec. 970.103(b). He also 
must make written determinations with respect to the requirements set 
forth in Sec. Sec. 970.401 through 970.406. This will be done after 
consultation with other departments and agencies pursuant to Sec. 
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.



Sec. 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.



Sec. 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

[[Page 355]]

program set forth in his exploration plan.



Sec. 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.



Sec. 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 Sec. 970.203.



Sec. 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 
Sec. 970.601.



Sec. 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 Sec. 
970.208.



Sec. 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 Sec. Sec. 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]



Sec. 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.

[[Page 356]]



     Subpart E_Issuance/Transfer/Terms, Conditions and Restrictions

    Source: 46 FR 45903, Sept. 15, 1981, unless otherwise noted.



Sec. 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 
Sec. Sec. 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 Sec. 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 Sec. Sec. 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



Sec. 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]



Sec. 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

[[Page 357]]

agencies which were initiated pursuant to Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 970.701.



Sec. 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 
Sec. Sec. 970.205 and 970.801.



Sec. 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.

[[Page 358]]

    (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]



Sec. 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.



Sec. 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 Sec. 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.

[[Page 359]]

    (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]



Sec. 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:

[[Page 360]]

    (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 Sec. 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]



Sec. 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 Sec. 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 Sec. 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 Sec. 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]



Sec. 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 Sec. Sec. 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 
Sec. Sec. 970.401 through 970.406;
    (2) The bases for issuing or transferring the license pursuant to 
Sec. Sec. 970.503 through 970.507; or
    (3) The terms, conditions and restrictions issued for the license 
pursuant to Sec. Sec. 970.517 through 970.524.

[[Page 361]]


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.



Sec. 970.514  Scale requiring application procedures.

    (a) A proposal by the Administrator to modify a term, condition or 
restriction in a license pursuant to Sec. 970.512, or an application by 
a licensee for revision of a license or exploration plan pursuant to 
Sec. 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.



Sec. 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.



Sec. 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



Sec. 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 Sec. 970.602.



Sec. 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 Sec. 970.702.

[[Page 362]]

    (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.



Sec. 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 Sec. 970.603.



Sec. 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 Sec. 
970.503 in establishing these restrictions.



Sec. 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.



Sec. 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.



Sec. 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 Sec. Sec. 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.

[[Page 363]]



Sec. 970.524  Other Federal requirements.

    Pursuant to Sec. 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.



Sec. 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.



Sec. 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 Sec. 
970.301 shall so notify the Administrator in accordance with Sec. 
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,

[[Page 364]]

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]



Sec. 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 Sec. 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 
Sec. 970.513.



Sec. 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

[[Page 365]]

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.



Sec. 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.



Sec. 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

[[Page 366]]

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 Sec. 970.518) and monitoring requirements 
(pursuant to Sec. 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 Sec. 970.512.



Sec. 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 Sec. 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



Sec. 970.800  General.

    The Act contains requirements, in the context of several decisions, 
that relate to assuring the safety of life and

[[Page 367]]

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]



Sec. 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 Sec. 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 Sec. 970.205, apply.

[46 FR 45909, Sept. 15, 1981]



                         Subpart I_Miscellaneous



Sec. 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



Sec. 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]



Sec. 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.

[[Page 368]]

    (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.



Sec. 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 Sec. 970.2402, the information specified 
in Sec. 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 
Sec. 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 
Sec. 970.2402(a) of this part.



Sec. 970.2502  Post voyage report.

    Within 30 days of the conclusion of each exploration voyage, the 
United States citizen engaging in the voyage

[[Page 369]]

shall submit to NOAA a report containing any environmental data or 
information obtained during that voyage.



Sec. 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



Sec. 970.2601  Additional information.

    Any United States citizen filing notice under Sec. 970.2402 or 
Sec. 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]



PART 971_DEEP SEABED MINING REGULATIONS FOR COMMERCIAL RECOVERY PERMITS--Table 

of Contents




                            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.

[[Page 370]]

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



Sec. 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.



Sec. 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--

[[Page 371]]

    (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 
Sec. 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

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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).



Sec. 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.



Sec. 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

[[Page 373]]

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.



Sec. 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



Sec. 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

[[Page 374]]

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 Sec. 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 Sec. 
971.207. The applicant is encouraged to consult with affected States as 
early as is practicable [see also Sec. Sec. 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



Sec. 971.201  Statement of financial resources.

    (a) General. The application must contain information sufficient to 
demonstrate to the Administrator pursuant to Sec. 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.



Sec. 971.202  Statement of technological experience and capabilities.

    (a) General. The application must contain information sufficient to 
demonstrate to the Administrator pursuant to Sec. 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

[[Page 375]]

possesses, or to which it can demonstrate access [see Sec. 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.



Sec. 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,'' Sec. 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) (Sec. 971.604) and monitoring (Sec. 
971.603);
    (4) Details of the area or areas proposed for commercial recovery, 
which meet requirements for diligence (Sec. 971.503) and conservation 
of resources pursuant to subpart E (especially Sec. 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 (Sec. 971.501);
    (6) A description of the methods and technology to be used for 
commercial recovery and processing (see Sec. 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.



Sec. 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

[[Page 376]]

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 Sec. 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 Sec. 971.606.



Sec. 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 Sec. 
971.407, Sec. 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.

[[Page 377]]



Sec. 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.



Sec. 971.207  Antitrust information.

    In order to support the antitrust review referenced in Sec. 
971.211, the application must contain information sufficient, in the 
applicant's view and based on preapplication consultations pursuant to 
Sec. 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.



Sec. 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.



Sec. 971.209  Processing outside the United States.

    (a) Except as provided in this section and Sec. 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 Sec. 
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 Sec. 
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 Sec. 971.408

[[Page 378]]

that the national interest necessitates such return. Assurances must 
include proposed arrangements with the host country.

                               Procedures



Sec. 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 Sec. 971.201 through Sec. 
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.



Sec. 971.211  Consultation and cooperation with Federal agencies.

    (a) Promptly after receipt of an application that the Administrator 
has determined pursuant to Sec. 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.



Sec. 971.212  Public notice, hearing and comment.

    (a) Notice and comments. The Administrator will publish in the 
Federal

[[Page 379]]

Register, for each complete application for issuance or transfer of a 
commercial recovery permit, notice that the application has been 
received. Subject to Sec. 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.



Sec. 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 Sec. 971.212. After the issuance or transfer of a permit, 
any revision of the permit will be made pursuant to Sec. 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.



Sec. 971.214  Consolidated license and permit procedures. [Reserved]



                 Subpart C_Certification of Applications



Sec. 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 Sec. 
971.103(b). The Administrator also must make written determinations with 
respect to the requirements with respect to the requirements set forth 
in Sec. 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.

[[Page 380]]



Sec. 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 Sec. 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 
Sec. 971.203; and
    (5) Has paid the permit fee specified in Sec. 971.208.



Sec. 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 Sec. 971.403 through Sec. 
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.



Sec. 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.

[[Page 381]]



     Subpart D_Issuance/Transfer: Terms, Conditions and Restrictions



Sec. 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 Sec. Sec. 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 
Sec. 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 Sec. 971.403 through Sec. 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



Sec. 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 Sec. 971.400(b)]. Subject to Sec. 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 Sec. 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.

[[Page 382]]



Sec. 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 Sec. Sec. 
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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 383]]

may be granted, subject to modification or suspension and, if necessary 
and appropriate, revocation pursuant to Sec. 971.417(a), or subject to 
emergency suspension pursuant to Sec. 971.417(h).



Sec. 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 Sec. 
971.205 and subpart G.



Sec. 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 Sec. 
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 Sec. 971.606(c).



Sec. 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

[[Page 384]]

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.



Sec. 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.



Sec. 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 Sec. 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.



Sec. 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 
Sec. 971.301;
    (2) The bases for issuing or transferring the permit pursuant to 
Sec. 971.403 through Sec. 971.408;
    (3) The TCRs issued as part of the permit pursuant to Sec. Sec. 
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.

[[Page 385]]

    (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.



Sec. 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 Sec. 971.201 through Sec. 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 Sec. 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 Sec. 971.412(c) (See also Sec. 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 Sec. 971.412(d), subsequently in the annual report (See 
Sec. 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 Sec. 
971.412(e) is required.



Sec. 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 Sec. 
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.

[[Page 386]]

    (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 Sec. 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 Sec. 971.411 of this part.



Sec. 971.415  Duration of a permit.

    (a) Unless suspended or revoked pursuant to Sec. Sec. 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).



Sec. 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.



Sec. 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

[[Page 387]]

    (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 Sec. 
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 
Sec. 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



Sec. 971.418  Diligence requirements.

    The TCRs in each commercial recovery permit must include provisions 
to assure diligent development consistent with Sec. 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.



Sec. 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

[[Page 388]]

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 Sec. Sec. 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.



Sec. 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 Sec. 971.502.



Sec. 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 Sec. 971.403 in establishing these restrictions.



Sec. 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.



Sec. 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 Sec. Sec. 
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.



Sec. 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.

[[Page 389]]



Sec. 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 Sec. 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.



Sec. 971.426  Annual report and records maintenance.

    Each permit will require the permittee to submit an annual report 
and maintain information in accordance with Sec. 971.801 including 
compliance with the commercial recovery plan and the quantities of hard 
mineral resources recovered and the disposition of such resources.



Sec. 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 Sec. 971.408.



Sec. 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.



Sec. 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 Sec. Sec. 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.



Sec. 971.430  Other Federal requirements.

    Pursuant to Sec. 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



Sec. 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.



Sec. 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

[[Page 390]]

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 Sec. 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.



Sec. 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.



Sec. 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

[[Page 391]]

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 Sec. 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 Sec. 
971.413.



                     Subpart F_Environmental Effects



Sec. 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).



Sec. 971.601  Environmental requirements.

    Before issuing a permit for the commercial recovery of deep seabed 
hard mineral resources, the Administrator must find that:

[[Page 392]]

    (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 (Sec. 971.603) 
and the resources and other capabilities to implement it.



Sec. 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 Sec. 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 Sec. 971.419), mitigation (pursuant to Sec. 
971.419), or best available technology requirements (pursuant to

[[Page 393]]

Sec. 971.423), as appropriate, and monitoring requirements (pursuant to 
Sec. 971.424) to acquire more information on the environmental effects 
of deep seabed mining.



Sec. 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 Sec. 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.

[[Page 394]]

    (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 Sec. 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 Sec. 971.414, or the 
regulations pursuant to Sec. 971.804.



Sec. 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.

[[Page 395]]



Sec. 971.605  Stable Reference Areas. [Reserved]



Sec. 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 Sec. Sec. 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



Sec. 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)).



Sec. 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 Sec. 
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 Sec. 971.205(b) apply.

[[Page 396]]



                         Subpart H_Miscellaneous



Sec. 971.800  General.

    The subpart contains miscellaneous provisions pursuant to the Act 
which are applicable to exploration licenses and commercial recovery 
permits.



Sec. 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 Sec. 971.503 and 15 CFR 970.602), implementation of 
any approved monitoring plan (see Sec. 971.602 and 15 CFR 970.522(c) 
and 970.702(a)), and applicable changes which do not constitute 
revisions (see Sec. 971.413(e) and 15 CFR 970.513(c)). Permittees must 
also report the tonnage of nodules recovered (Sec. 971.426) and discuss 
manganese conservation measures (see Sec. 971.502).



Sec. 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.

[[Page 397]]

    (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

[[Page 398]]

(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,

[[Page 399]]

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.



Sec. 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.



Sec. 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

[[Page 400]]

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.



Sec. 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



Sec. 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 Sec. 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.



Sec. 971.901  Formal hearing procedures.

    (a) General. (1) All hearings described in Sec. 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

[[Page 401]]

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.

[[Page 402]]

    (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.

[[Page 403]]

    (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



Sec. 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 (Sec. Sec. 971.1001-
971.1002), and license and permit sanctions (Sec. 971.1003); the 
remission or mitigation of forfeitures (Sec. 971.1004); observers 
(Sec. 971.1005); protection of certain information related to 
enforcement (Sec. 971.1006); and procedures requiring persons planning 
to bring a civil action under section 117 of the Act to give advance 
notice (Sec. 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 Sec. 971.901(i). The method for 
computing time periods set forth in Sec. 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

[[Page 404]]

law judge, no requests for an extension of time may be granted.



Sec. 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.



Sec. 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.



Sec. 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:

[[Page 405]]

    (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

[[Page 406]]

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 Sec. 
971.901(h)(2).
    (5) The Administrator will issue a final decision in accordance with 
Sec. 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.



Sec. 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 Sec. 971.200(b).



Sec. 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:

[[Page 407]]

    (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

[[Page 408]]

    (2) To request confidential treatment of such information under 
Sec. 971.802.



Sec. 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.



Sec. 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.

[[Page 409]]



               SUBCHAPTER E_OIL POLLUTION ACT REGULATIONS



PART 990_NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents




                         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



Sec. 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.



Sec. 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

[[Page 410]]

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.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 
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 Sec. 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

[[Page 411]]

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 Sec. 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 Sec. 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 Sec. 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.



Sec. 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

[[Page 412]]

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 Sec. 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



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 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

[[Page 413]]

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 
Sec. 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 Sec. 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 
Sec. 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

[[Page 414]]

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 Sec. Sec. 
1502.20 and 1508.28 of the CEQ regulations.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 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

[[Page 415]]

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]



Sec. 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



Sec. 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:

[[Page 416]]

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 performed for the primary purpose of furthering 
litigation in order to support a characterization of the action as an 
assessment action.
    (3) Examples of common or routine assessment actions that may be 
most appropriately performed by trustee attorneys, in accordance with 
this part, include, but are not limited to:
    (i) Providing written and oral advice on the requirements of OPA, 
this part, and other applicable laws;
    (ii) Preparing public notices, including the Notice of Intent to 
Conduct Restoration Planning issued to responsible parties and the 
Notice of Availability of Draft Restoration Plans;
    (iii) Developing and managing administrative records;
    (iv) Preparing binding agreements with potentially responsible 
parties in

[[Page 417]]

the context of the assessment, including study agreements, funding 
agreements, and restoration agreements;
    (v) Preparing co-trustee cooperative agreements;
    (vi) Preparing formal trustee determinations required under this 
part; and
    (vii) Procuring title searches, title insurance, and/or conservation 
easements when property agreements are part of restoration packages.
    NCP means the National Oil and Hazardous Substances Pollution 
Contingency Plan (National Contingency Plan) codified at 40 CFR part 
300, which addresses the identification, investigation, study, and 
response to incidents, as defined in section 1001(19) of OPA (33 U.S.C. 
2701(19)).
    Natural resource damage assessment (or assessment) means the process 
of collecting and analyzing information to evaluate the nature and 
extent of injuries resulting from an incident, and determine the 
restoration actions needed to bring injured natural resources and 
services back to baseline and make the environment and public whole for 
interim losses.
    Natural resources means land, fish, wildlife, biota, air, water, 
ground water, drinking water supplies, and other such resources 
belonging to, managed by, held in trust by, appertaining to, or 
otherwise controlled by the United States (including the resources of 
the Exclusive Economic Zone), any state or local government or Indian 
tribe, or any foreign government, as defined in section 1001(20) of OPA 
(33 U.S.C. 2701(20)).
    Navigable waters means the waters of the United States, including 
the territorial sea, as defined in section 1001(21) of OPA (33 U.S.C. 
2701(21)).
    NEPA means the National Environmental Policy Act, 42 U.S.C. 4321 et 
seq.
    Oil means oil of any kind or in any form, including, but not limited 
to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes 
other than dredged spoil. However, the term does not include petroleum, 
including crude oil or any fraction thereof, that is specifically listed 
or designated as a hazardous substance under 42 U.S.C. 9601(14)(A) 
through (F), as defined in section 1001(23) of OPA (33 U.S.C. 2701(23)).
    On-Scene Coordinator (or OSC) means the official designated by the 
U.S. Environmental Protection Agency or the U.S. Coast Guard to 
coordinate and direct response actions under the NCP, or the government 
official designated by the lead response agency to coordinate and direct 
response actions under the NCP.
    OPA means the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.
    Pathway means any link that connects the incident to a natural 
resource and/or service, and is associated with an actual discharge of 
oil.
    Person means an individual, corporation, partnership, association, 
state, municipality, commission, or political subdivision of a state, or 
any interstate body, as defined in section 1001(27) of OPA (33 U.S.C. 
2701(27)).
    Public vessel means a vessel owned or bareboat chartered and 
operated by the United States, or by a state or political subdivision 
thereof, or by a foreign nation, except when the vessel is engaged in 
commerce, as defined in section 1001(29) of OPA (33 U.S.C. 2701(29)).
    Reasonable assessment costs means, for assessments conducted under 
this part, assessment costs that are incurred by trustees in accordance 
with this part. In cases where assessment costs are incurred but 
trustees do not pursue restoration, trustees may recover their 
reasonable assessment costs provided they have determined that 
assessment actions undertaken were premised on the likelihood of injury 
and need for restoration. Reasonable assessment costs also include: 
administrative costs, legal costs, and other costs necessary to carry 
out this part; monitoring and oversight costs; costs associated with 
public participation; and indirect costs that are necessary to carry out 
this part.
    Recovery means the return of injured natural resources and services 
to baseline.
    Response (or remove or removal) means containment and removal of oil 
or a hazardous substance from water and shorelines or the taking of 
other actions as may be necessary to minimize or mitigate damage to the 
public health or welfare, including, but not limited to, fish, 
shellfish, wildlife, and public and private property, shorelines,

[[Page 418]]

and beaches, as defined in section 1001(30) of OPA (33 U.S.C. 2701(30)).
    Responsible party means:
    (a) Vessels. In the case of a vessel, any person owning, operating, 
or demise chartering the vessel.
    (b) Onshore facilities. In the case of an onshore facility (other 
than a pipeline), any person owning or operating the facility, except a 
federal agency, state, municipality, commission, or political 
subdivision of a state, or any interstate body, that as the owner 
transfers possession and right to use the property to another person by 
lease, assignment, or permit.
    (c) Offshore facilities. In the case of an offshore facility (other 
than a pipeline or a deepwater port licensed under the Deepwater Port 
Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the 
area in which the facility is located or the holder of a right of use 
and easement granted under applicable state law or the Outer Continental 
Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which the facility 
is located (if the holder is a different person than the lessee or 
permittee), except a federal agency, state, municipality, commission, or 
political subdivision of a state, or any interstate body, that as owner 
transfers possession and right to use the property to another person by 
lease, assignment, or permit.
    (d) Deepwater ports. In the case of a deepwater port licensed under 
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
    (e) Pipelines. In the case of a pipeline, any person owning or 
operating the pipeline.
    (f) Abandonment. In the case of an abandoned vessel, onshore 
facility, deepwater port, pipeline, or offshore facility, the persons 
who would have been responsible parties immediately prior to the 
abandonment of the vessel or facility, as defined in section 1001(32) of 
OPA (33 U.S.C. 2701(32)).
    Restoration means any action (or alternative), or combination of 
actions (or alternatives), to restore, rehabilitate, replace, or acquire 
the equivalent of injured natural resources and services. Restoration 
includes:
    (a) Primary restoration, which is any action, including natural 
recovery, that returns injured natural resources and services to 
baseline; and
    (b) Compensatory restoration, which is any action taken to 
compensate for interim losses of natural resources and services that 
occur from the date of the incident until recovery.
    Services (or natural resource services) means the functions 
performed by a natural resource for the benefit of another natural 
resource and/or the public.
    Trustees (or natural resource trustees) means those officials of the 
federal and state governments, of Indian tribes, and of foreign 
governments, designated under 33 U.S.C. 2706(b) of OPA.
    United States and State means the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, 
American Samoa, the United States Virgin Islands, the Commonwealth of 
the Northern Marianas, and any other territory or possession of the 
United States, as defined in section 1001(36) of OPA (33 U.S.C. 
2701(36)).
    Value means the maximum amount of goods, services, or money an 
individual is willing to give up to obtain a specific good or service, 
or the minimum amount of goods, services, or money an individual is 
willing to accept to forgo a specific good or service. The total value 
of a natural resource or service includes the value individuals derive 
from direct use of the natural resource, for example, swimming, boating, 
hunting, or birdwatching, as well as the value individuals derive from 
knowing a natural resource will be available for future generations.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of transportation 
on water, other than a public vessel, as defined in section 1001(37) of 
OPA (33 U.S.C. 2701(37)).

[61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002]

[[Page 419]]



                      Subpart D_Preassessment Phase



Sec. 990.40  Purpose.

    The purpose of this subpart is to provide a process by which 
trustees determine if they have jurisdiction to pursue restoration under 
OPA and, if so, whether it is appropriate to do so.



Sec. 990.41  Determination of jurisdiction.

    (a) Determination of jurisdiction. Upon learning of an incident, 
trustees must determine whether there is jurisdiction to pursue 
restoration under OPA. To make this determination, trustees must decide 
if:
    (1) An incident has occurred, as defined in Sec. 990.30 of this 
part;
    (2) The incident is not:
    (i) Permitted under a permit issued under federal, state, or local 
law; or
    (ii) From a public vessel; or
    (iii) From an onshore facility subject to the Trans-Alaska Pipeline 
Authority Act, 43 U.S.C. 1651, et seq.; and
    (3) Natural resources under the trusteeship of the trustee may have 
been, or may be, injured as a result of the incident.
    (b) Proceeding with preassessment. If the conditions listed in 
paragraph (a) of this section are met, trustees may proceed under this 
part. If one of the conditions is not met, trustees may not take 
additional action under this part, except action to finalize this 
determination. Trustees may recover all reasonable assessment costs 
incurred up to this point provided that conditions in paragraphs (a)(1) 
and (a)(2) of this section were met and actions were taken with the 
reasonable belief that natural resources or services under their 
trusteeship might have been injured as a result of the incident.



Sec. 990.42  Determination to conduct restoration planning.

    (a) Determination on restoration planning. If trustees determine 
that there is jurisdiction to pursue restoration under OPA, trustees 
must determine whether:
    (1) Injuries have resulted, or are likely to result, from the 
incident;
    (2) Response actions have not adequately addressed, or are not 
expected to address, the injuries resulting from the incident; and
    (3) Feasible primary and/or compensatory restoration actions exist 
to address the potential injuries.
    (b) Proceeding with preassessment. If the conditions listed in 
paragraph (a) of this section are met, trustees may proceed under Sec. 
990.44 of this part. If one of these conditions is not met, trustees may 
not take additional action under this part, except action to finalize 
this determination. However, trustees may recover all reasonable 
assessment costs incurred up to this point.



Sec. 990.43  Data collection.

    Trustees may conduct data collection and analyses that are 
reasonably related to Preassessment Phase activities. Data collection 
and analysis during the Preassessment Phase must be coordinated with 
response actions such that collection and analysis does not interfere 
with response actions. Trustees may collect and analyze the following 
types of data during the Preassessment Phase:
    (a) Data reasonably expected to be necessary to make a determination 
of jurisdiction under Sec. 990.41 of this part, or a determination to 
conduct restoration planning under Sec. 990.42 of this part;
    (b) Ephemeral data; and
    (c) Information needed to design or implement anticipated assessment 
procedures under subpart E of this part.



Sec. 990.44  Notice of Intent to Conduct Restoration Planning.

    (a) General. If trustees determine that all the conditions under 
Sec. 990.42(a) of this part are met and trustees decide to proceed with 
the natural resource damage assessment, they must prepare a Notice of 
Intent to Conduct Restoration Planning.
    (b) Contents of the notice. The Notice of Intent to Conduct 
Restoration Planning must include a discussion of the trustees' analyses 
under Sec. Sec. 990.41 and 990.42 of this part. Depending on 
information available at this point, the notice may include the 
trustees' proposed strategy to assess injury and determine the type and 
scale of restoration. The contents of a notice may vary, but will 
typically discuss:
    (1) The facts of the incident;

[[Page 420]]

    (2) Trustee authority to proceed with the assessment;
    (3) Natural resources and services that are, or are likely to be, 
injured as a result of the incident;
    (4) Potential restoration actions relevant to the expected injuries; 
and
    (5) If determined at the time, potential assessment procedures to 
evaluate the injuries and define the appropriate type and scale of 
restoration for the injured natural resources and services.
    (c) Public availability of the notice. Trustees must make a copy of 
the Notice of Intent to Conduct Restoration Planning publicly available. 
The means by which the notice is made publicly available and whether 
public comments are solicited on the notice will depend on the nature 
and extent of the incident and various information requirements, and is 
left to the discretion of the trustees.
    (d) Delivery of the notice to the responsible parties. Trustees must 
send a copy of the notice to the responsible parties, to the extent 
known, in such a way as will establish the date of receipt, and invite 
responsible parties' participation in the conduct of restoration 
planning. Consistent with Sec. 990.14(c) of this part, the 
determination of the timing, nature, and extent of responsible party 
participation will be determined by the trustees on an incident-specific 
basis.



Sec. 990.45  Administrative record.

    (a) If trustees decide to proceed with restoration planning, they 
must open a publicly available administrative record to document the 
basis for their decisions pertaining to restoration. The administrative 
record should be opened concurrently with the publication of the Notice 
of Intent to Conduct Restoration Planning. Depending on the nature and 
extent of the incident and assessment, the administrative record should 
include documents relied upon during the assessment, such as:
    (1) Any notice, draft and final restoration plans, and public 
comments;
    (2) Any relevant data, investigation reports, scientific studies, 
work plans, quality assurance plans, and literature; and
    (3) Any agreements, not otherwise privileged, among the 
participating trustees or with the responsible parties.
    (b) Federal trustees should maintain the administrative record in a 
manner consistent with the Administrative Procedure Act, 5 U.S.C. 551-
59, 701-06.



                  Subpart E_Restoration Planning Phase



Sec. 990.50  Purpose.

    The purpose of this subpart is to provide a process by which 
trustees evaluate and quantify potential injuries (injury assessment), 
and use that information to determine the need for and scale of 
restoration actions (restoration selection).



Sec. 990.51  Injury assessment--injury determination.

    (a) General. After issuing a Notice of Intent to Conduct Restoration 
Planning under Sec. 990.44 of this part, trustees must determine if 
injuries to natural resources and/or services have resulted from the 
incident.
    (b) Determining injury. To make the determination of injury, 
trustees must evaluate if:
    (1) The definition of injury has been met, as defined in Sec. 
990.30 of this part; and
    (2)(i) An injured natural resource has been exposed to the 
discharged oil, and a pathway can be established from the discharge to 
the exposed natural resource; or
    (ii) An injury to a natural resource or impairment of a natural 
resource service has occurred as a result of response actions or a 
substantial threat of a discharge of oil.
    (c) Identifying injury. Trustees must determine whether an injury 
has occurred and, if so, identify the nature of the injury. Potential 
categories of injury include, but are not limited to, adverse changes 
in: survival, growth, and reproduction; health, physiology and 
biological condition; behavior; community composition; ecological 
processes and functions; physical and chemical habitat quality or 
structure; and public services.
    (d) Establishing exposure and pathway. Except for injuries resulting 
from response actions or incidents involving a substantial threat of a 
discharge of oil,

[[Page 421]]

trustees must establish whether natural resources were exposed, either 
directly or indirectly, to the discharged oil from the incident, and 
estimate the amount or concentration and spatial and temporal extent of 
the exposure. Trustees must also determine whether there is a pathway 
linking the incident to the injuries. Pathways may include, but are not 
limited to, the sequence of events by which the discharged oil was 
transported from the incident and either came into direct physical 
contact with a natural resource, or caused an indirect injury.
    (e) Injuries resulting from response actions or incidents involving 
a substantial threat of a discharge. For injuries resulting from 
response actions or incidents involving a substantial threat of a 
discharge of oil, trustees must determine whether an injury or an 
impairment of a natural resource service has occurred as a result of the 
incident.
    (f) Selection of injuries to include in the assessment. When 
selecting potential injuries to assess, trustees should consider factors 
such as:
    (1) The natural resources and services of concern;
    (2) The procedures available to evaluate and quantify injury, and 
associated time and cost requirements;
    (3) The evidence indicating exposure;
    (4) The pathway from the incident to the natural resource and/or 
service of concern;
    (5) The adverse change or impairment that constitutes injury;
    (6) The evidence indicating injury;
    (7) The mechanism by which injury occurred;
    (8) The potential degree, and spatial and temporal extent of the 
injury;
    (9) The potential natural recovery period; and
    (10) The kinds of primary and/or compensatory restoration actions 
that are feasible.



Sec. 990.52  Injury assessment--quantification.

    (a) General. In addition to determining whether injuries have 
resulted from the incident, trustees must quantify the degree, and 
spatial and temporal extent of such injuries relative to baseline.
    (b) Quantification approaches. Trustees may quantify injuries in 
terms of:
    (1) The degree, and spatial and temporal extent of the injury to a 
natural resource;
    (2) The degree, and spatial and temporal extent of injury to a 
natural resource, with subsequent translation of that adverse change to 
a reduction in services provided by the natural resource; or
    (3) The amount of services lost as a result of the incident.
    (c) Natural recovery. To quantify injury, trustees must estimate, 
quantitatively or qualitatively, the time for natural recovery without 
restoration, but including any response actions. The analysis of natural 
recovery may consider such factors as:
    (1) The nature, degree, and spatial and temporal extent of injury;
    (2) The sensitivity and vulnerability of the injured natural 
resource and/or service;
    (3) The reproductive and recruitment potential;
    (4) The resistance and resilience (stability) of the affected 
environment;
    (5) The natural variability; and
    (6) The physical/chemical processes of the affected environment.



Sec. 990.53  Restoration selection--developing restoration alternatives.

    (a) General. (1) If the information on injury determination and 
quantification under Sec. Sec. 990.51 and 990.52 of this part and its 
relevance to restoration justify restoration, trustees may proceed with 
the Restoration Planning Phase. Otherwise, trustees may not take 
additional action under this part. However, trustees may recover all 
reasonable assessment costs incurred up to this point.
    (2) Trustees must consider a reasonable range of restoration 
alternatives before selecting their preferred alternative(s). Each 
restoration alternative is comprised of primary and/or compensatory 
restoration components that address one or more specific injury(ies) 
associated with the incident. Each alternative must be designed so that, 
as a package of one or more actions, the

[[Page 422]]

alternative would make the environment and public whole. Only those 
alternatives considered technically feasible and in accordance with 
applicable laws, regulations, or permits may be considered further under 
this part.
    (b) Primary restoration--(1) General. For each alternative, trustees 
must consider primary restoration actions, including a natural recovery 
alternative.
    (2) Natural recovery. Trustees must consider a natural recovery 
alternative in which no human intervention would be taken to directly 
restore injured natural resources and services to baseline.
    (3) Active primary restoration actions. Trustees must consider an 
alternative comprised of actions to directly restore the natural 
resources and services to baseline on an accelerated time frame. When 
identifying such active primary restoration actions, trustees may 
consider actions that:
    (i) Address conditions that would prevent or limit the effectiveness 
of any restoration action;
    (ii) May be necessary to return the physical, chemical, and/or 
biological conditions necessary to allow recovery or restoration of the 
injured natural resources (e.g., replacing substrate or vegetation, or 
modifying hydrologic conditions); or
    (iii) Return key natural resources and services, and would be an 
effective approach to achieving or accelerating a return to baseline 
(e.g., replacing essential species, habitats, or public services that 
would facilitate the replacement of other, dependent natural resource or 
service components).
    (c) Compensatory restoration--(1) General. For each alternative, 
trustees must also consider compensatory restoration actions to 
compensate for the interim loss of natural resources and services 
pending recovery.
    (2) Compensatory restoration actions. To the extent practicable, 
when evaluating compensatory restoration actions, trustees must consider 
compensatory restoration actions that provide services of the same type 
and quality, and of comparable value as those injured. If, in the 
judgment of the trustees, compensatory actions of the same type and 
quality and comparable value cannot provide a reasonable range of 
alternatives, trustees should identify actions that provide natural 
resources and services of comparable type and quality as those provided 
by the injured natural resources. Where the injured and replacement 
natural resources and services are not of comparable value, the scaling 
process will involve valuation of lost and replacement services.
    (d) Scaling restoration actions--(1) General. After trustees have 
identified the types of restoration actions that will be considered, 
they must determine the scale of those actions that will make the 
environment and public whole. For primary restoration actions, scaling 
generally applies to actions involving replacement and/or acquisition of 
equivalent of natural resources and/or services.
    (2) Resource-to-resource and service-to-service scaling approaches. 
When determining the scale of restoration actions that provide natural 
resources and/or services of the same type and quality, and of 
comparable value as those lost, trustees must consider the use of a 
resource-to-resource or service-to-service scaling approach. Under this 
approach, trustees determine the scale of restoration actions that will 
provide natural resources and/or services equal in quantity to those 
lost.
    (3) Valuation scaling approach. (i) Where trustees have determined 
that neither resource-to-resource nor service-to-service scaling is 
appropriate, trustees may use the valuation scaling approach. Under the 
valuation scaling approach, trustees determine the amount of natural 
resources and/or services that must be provided to produce the same 
value lost to the public. Trustees must explicitly measure the value of 
injured natural resources and/or services, and then determine the scale 
of the restoration action necessary to produce natural resources and/or 
services of equivalent value to the public.
    (ii) If, in the judgment of the trustees, valuation of the lost 
services is practicable, but valuation of the replacement natural 
resources and/or services cannot be performed within a reasonable time 
frame or at a reasonable cost, as determined by Sec. 990.27(a)(2)

[[Page 423]]

of this part, trustees may estimate the dollar value of the lost 
services and select the scale of the restoration action that has a cost 
equivalent to the lost value. The responsible parties may request that 
trustees value the natural resources and services provided by the 
restoration action following the process described in Sec. 990.14(c) of 
this part.
    (4) Discounting and uncertainty. When scaling a restoration action, 
trustees must evaluate the uncertainties associated with the projected 
consequences of the restoration action, and must discount all service 
quantities and/or values to the date the demand is presented to the 
responsible parties. Where feasible, trustees should use risk-adjusted 
measures of losses due to injury and of gains from the restoration 
action, in conjunction with a riskless discount rate representing the 
consumer rate of time preference. If the streams of losses and gains 
cannot be adequately adjusted for risks, then trustees may use a 
discount rate that incorporates a suitable risk adjustment to the 
riskless rate.

[61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002]



Sec. 990.54  Restoration selection--evaluation of alternatives.

    (a) Evaluation standards. Once trustees have developed a reasonable 
range of restoration alternatives under Sec. 990.53 of this part, they 
must evaluate the proposed alternatives based on, at a minimum:
    (1) The cost to carry out the alternative;
    (2) The extent to which each alternative is expected to meet the 
trustees' goals and objectives in returning the injured natural 
resources and services to baseline and/or compensating for interim 
losses;
    (3) The likelihood of success of each alternative;
    (4) The extent to which each alternative will prevent future injury 
as a result of the incident, and avoid collateral injury as a result of 
implementing the alternative;
    (5) The extent to which each alternative benefits more than one 
natural resource and/or service; and
    (6) The effect of each alternative on public health and safety.
    (b) Preferred restoration alternatives. Based on an evaluation of 
the factors under paragraph (a) of this section, trustees must select a 
preferred restoration alternative(s). If the trustees conclude that two 
or more alternatives are equally preferable based on these factors, the 
trustees must select the most cost-effective alternative.
    (c) Pilot projects. Where additional information is needed to 
identify and evaluate the feasibility and likelihood of success of 
restoration alternatives, trustees may implement restoration pilot 
projects. Pilot projects should only be undertaken when, in the judgment 
of the trustees, these projects are likely to provide the information, 
described in paragraph (a) of this section, at a reasonable cost and in 
a reasonable time frame.



Sec. 990.55  Restoration selection--developing restoration plans.

    (a) General. OPA requires that damages be based upon a plan 
developed with opportunity for public review and comment. To meet this 
requirement, trustees must, at a minimum, develop a Draft and Final 
Restoration Plan, with an opportunity for public review of and comment 
on the draft plan.
    (b) Draft Restoration Plan. (1) The Draft Restoration Plan should 
include:
    (i) A summary of injury assessment procedures used;
    (ii) A description of the nature, degree, and spatial and temporal 
extent of injuries resulting from the incident;
    (iii) The goals and objectives of restoration;
    (iv) The range of restoration alternatives considered, and a 
discussion of how such alternatives were developed under Sec. 990.53 of 
this part, and evaluated under Sec. 990.54 of this part;
    (v) Identification of the trustees' tentative preferred 
alternative(s);
    (vi) A description of past and proposed involvement of the 
responsible parties in the assessment; and
    (vii) A description of monitoring for documenting restoration 
effectiveness, including performance criteria that will be used to 
determine the success of restoration or need for interim corrective 
action.
    (2) When developing the Draft Restoration Plan, trustees must 
establish

[[Page 424]]

restoration objectives that are specific to the injuries. These 
objectives should clearly specify the desired outcome, and the 
performance criteria by which successful restoration will be judged. 
Performance criteria may include structural, functional, temporal, and/
or other demonstrable factors. Trustees must, at a minimum, determine 
what criteria will:
    (i) Constitute success, such that responsible parties are relieved 
of responsibility for further restoration actions; or
    (ii) Necessitate corrective actions in order to comply with the 
terms of a restoration plan or settlement agreement.
    (3) The monitoring component to the Draft Restoration Plan should 
address such factors as duration and frequency of monitoring needed to 
gauge progress and success, level of sampling needed to detect success 
or the need for corrective action, and whether monitoring of a reference 
or control site is needed to determine progress and success. Reasonable 
monitoring and oversight costs cover those activities necessary to gauge 
the progress, performance, and success of the restoration actions 
developed under the plan.
    (c) Public review and comment. The nature of public review and 
comment on the Draft and Final Restoration Plans will depend on the 
nature of the incident and any applicable federal trustee NEPA 
requirements, as described in Sec. Sec. 990.14(d) and 990.23 of this 
part.
    (d) Final Restoration Plan. Trustees must develop a Final 
Restoration Plan that includes the information specified in paragraph 
(a) of this section, responses to public comments, if applicable, and an 
indication of any changes made to the Draft Restoration Plan.



Sec. 990.56  Restoration selection--use of a Regional Restoration Plan or 

existing restoration project.

    (a) General. Trustees may consider using a Regional Restoration Plan 
or existing restoration project where such a plan or project is 
determined to be the preferred alternative among a range of feasible 
restoration alternatives for an incident, as determined under Sec. 
990.54 of this part. Such plans or projects must be capable of 
fulfilling OPA's intent for the trustees to restore, rehabilitate, 
replace, or acquire the equivalent of the injured natural resources and 
services and compensate for interim losses.
    (b) Existing plans or projects--(1) Considerations. Trustees may 
select a component of a Regional Restoration Plan or an existing 
restoration project as the preferred alternative, provided that the plan 
or project:
    (i) Was developed with public review and comment or is subject to 
public review and comment under this part;
    (ii) Will adequately compensate the environment and public for 
injuries resulting from the incident;
    (iii) Addresses, and is currently relevant to, the same or 
comparable natural resources and services as those identified as having 
been injured; and
    (iv) Allows for reasonable scaling relative to the incident.
    (2) Demand. (i) If the conditions of paragraph (b)(1) of this 
section are met, the trustees must invite the responsible parties to 
implement that component of the Regional Restoration Plan or existing 
restoration project, or advance to the trustees the trustees' reasonable 
estimate of the cost of implementing that component of the Regional 
Restoration Plan or existing restoration project.
    (ii) If the conditions of paragraph (b)(1) of this section are met, 
but the trustees determine that the scale of the existing plan or 
project is greater than the scale of compensation required by the 
incident, trustees may only request funding from the responsible parties 
equivalent to the scale of the restoration determined to be appropriate 
for the incident of concern. Trustees may pool such partial recoveries 
until adequate funding is available to successfully implement the 
existing plan or project.
    (3) Notice of Intent To Use a Regional Restoration Plan or Existing 
Restoration Project. If trustees intend to use an appropriate component 
of a Regional Restoration Plan or existing restoration project, they 
must prepare a Notice of Intent to Use a Regional Restoration Plan or 
Existing Restoration Project. Trustees must make a copy of the notice 
publicly available. The notice must include, at a minimum:

[[Page 425]]

    (i) A description of the nature, degree, and spatial and temporal 
extent of injuries; and
    (ii) A description of the relevant component of the Regional 
Restoration Plan or existing restoration project; and
    (iii) An explanation of how the conditions set forth in paragraph 
(b)(1) of this section are met.



               Subpart F_Restoration Implementation Phase



Sec. 990.60  Purpose.

    The purpose of this subpart is to provide a process for implementing 
restoration.



Sec. 990.61  Administrative record.

    (a) Closing the administrative record for restoration planning. 
Within a reasonable time after the trustees have completed restoration 
planning, as provided in Sec. Sec. 990.55 and 990.56 of this part, they 
must close the administrative record. Trustees may not add documents to 
the administrative record once it is closed, except where such 
documents:
    (1) Are offered by interested parties that did not receive actual or 
constructive notice of the Draft Restoration Plan and the opportunity to 
comment on the plan;
    (2) Do not duplicate information already contained in the 
administrative record; and
    (3) Raise significant issues regarding the Final Restoration Plan.
    (b) Opening an administrative record for restoration implementation. 
Trustees may open an administrative record for implementation of 
restoration, as provided in Sec. 990.45 of this part. The costs 
associated with the administrative record are part of the costs of 
restoration. Ordinarily, the administrative record for implementation of 
restoration should document, at a minimum, all Restoration 
Implementation Phase decisions, actions, and expenditures, including any 
modifications made to the Final Restoration Plan.



Sec. 990.62  Presenting a demand.

    (a) General. After closing the administrative record for restoration 
planning, trustees must present a written demand to the responsible 
parties. Delivery of the demand should be made in a manner that 
establishes the date of receipt by the responsible parties.
    (b) When a Final Restoration Plan has been developed. Except as 
provided in paragraph (c) of this section and in Sec. 990.14(c) of this 
part, the demand must invite the responsible parties to either:
    (1) Implement the Final Restoration Plan subject to trustee 
oversight and reimburse the trustees for their assessment and oversight 
costs; or
    (2) Advance to the trustees a specified sum representing all trustee 
direct and indirect costs of assessment and restoration, discounted as 
provided in Sec. 990.63(a) of this part.
    (c) Regional Restoration Plan or existing restoration project. When 
the trustees use a Regional Restoration Plan or an existing restoration 
project under Sec. 990.56 of this part, the demand will invite the 
responsible parties to implement a component of a Regional Restoration 
Plan or existing restoration project, or advance the trustees' estimate 
of damages based on the scale of the restoration determined to be 
appropriate for the incident of concern, which may be the entire project 
or a portion thereof.
    (d) Response to demand. The responsible parties must respond within 
ninety (90) calendar days in writing by paying or providing binding 
assurance they will reimburse trustees' assessment costs and implement 
the plan or pay assessment costs and the trustees' estimate of the costs 
of implementation.
    (e) Additional contents of demand. The demand must also include:
    (1) Identification of the incident from which the claim arises;
    (2) Identification of the trustee(s) asserting the claim and a 
statement of the statutory basis for trusteeship;
    (3) A brief description of the injuries for which the claim is being 
brought;
    (4) An index to the administrative record;
    (5) The Final Restoration Plan or Notice of Intent to Use a Regional 
Restoration Plan or Existing Restoration Project; and
    (6) A request for reimbursement of:

[[Page 426]]

    (i) Reasonable assessment costs, as defined in Sec. 990.30 of this 
part and discounted as provided in Sec. 990.63(b) of this part;
    (ii) The cost, if any, of conducting emergency restoration under 
Sec. 990.26 of this part, discounted as provided in Sec. 990.63(b) of 
this part; and
    (iii) Interest on the amounts recoverable, as provided in section 
1005 of OPA (33 U.S.C. 2705), which allows for prejudgment and post-
judgment interest to be paid at a commercial paper rate, starting from 
thirty (30) calendar days from the date a demand is presented until the 
date the claim is paid.
    (f) Cost accounting procedures. Trustees must use methods consistent 
with generally accepted accounting principles and the requirements of 
Sec. 990.27 of this part in determining past assessment and restoration 
costs incurred by trustees. When cost accounting for these costs, 
trustees must compound these costs using the guidance in Sec. 990.63(b) 
of this part.
    (g) Cost estimating procedures. Trustees must use methods consistent 
with generally accepted cost estimating principles and meet the 
standards of Sec. 990.27 of this part in estimating future costs that 
will be incurred to implement a restoration plan. Trustees also must 
apply discounting methodologies in estimating costs using the guidance 
in Sec. 990.63(a) of this part.

[61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002]



Sec. 990.63  Discounting and compounding.

    (a) Estimated future restoration costs. When determining estimated 
future costs of implementing a Final Restoration Plan, trustees must 
discount such future costs back to the date the demand is presented. 
Trustees may use a discount rate that represents the yield on recoveries 
available to trustees. The price indices used to project future 
inflation should reflect the major components of the restoration costs.
    (b) Past assessment and emergency restoration costs. When 
calculating the present value of assessment and emergency restoration 
costs already incurred, trustees must compound the costs forward to the 
date the demand is presented. To perform the compounding, trustees may 
use the actual U.S. Treasury borrowing rate on marketable securities of 
comparable maturity to the period of analysis. For costs incurred by 
state or tribal trustees, trustees may compound using parallel state or 
tribal borrowing rates.
    (c) Trustees are referred to Appendices B and C of OMB Circular A-94 
for information about U.S. Treasury rates of various maturities and 
guidance in calculation procedures. Copies of Appendix C, which is 
regularly updated, and of the Circular are available from the OMB 
Publications Office (202-395-7332).



Sec. 990.64  Unsatisfied demands.

    (a) If the responsible parties do not agree to the demand within 
ninety (90) calendar days after trustees present the demand, the 
trustees may either file a judicial action for damages or present the 
uncompensated claim for damages to the Oil Spill Liability Trust Fund, 
as provided in section 1012(a)(4) of OPA (33 U.S.C. 2712(a)(4)) or seek 
an appropriation from the Oil Spill Liability Trust Fund as provided in 
section 1012(a)(2) of OPA (33 U.S.C. 2712(a)(2)).
    (b) Judicial actions and claims must be filed within three (3) years 
after the Final Restoration Plan or Notice of Intent to Use a Regional 
Restoration Plan or Existing Restoration Project is made publicly 
available, in accordance with 33 U.S.C. 2717(f)(1)(B) and 2712(h)(2).

[61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002]



Sec. 990.65  Opening an account for recovered damages.

    (a) General. Sums recovered by trustees in satisfaction of a natural 
resource damage claim must be placed in a revolving trust account. Sums 
recovered for past assessment costs and emergency restoration costs may 
be used to reimburse the trustees. All other sums must be used to 
implement the Final Restoration Plan or all or an appropriate component 
of a Regional Restoration Plan or an existing restoration project.
    (b) Joint trustee recoveries--(1) General. Trustees may establish a 
joint account for damages recovered pursuant to

[[Page 427]]

joint assessment activities, such as an account under the registry of 
the applicable federal court.
    (2) Management. Trustees may develop enforceable agreements to 
govern management of joint accounts, including agreed-upon criteria and 
procedures, and personnel for authorizing expenditures out of such joint 
accounts.
    (c) Interest-bearing accounts. Trustees may place recoveries in 
interest-bearing revolving trust accounts, as provided by section 
1006(f) of OPA (33 U.S.C. 2706(f)). Interest earned on such accounts may 
only be used for restoration.
    (d) Escrow accounts. Trustees may establish escrow accounts or other 
investment accounts.
    (e) Records. Trustees must maintain appropriate accounting and 
reporting procedures to document expenditures from accounts established 
under this section.
    (f) Oil Spill Liability Trust Fund. Any sums remaining in an account 
established under this section that are not used either to reimburse 
trustees for past assessment and emergency restoration costs or to 
implement restoration must be deposited in the Oil Spill Liability Trust 
Fund, as provided by section 1006(f) of OPA (33 U.S.C. 2706(f)).



Sec. 990.66  Additional considerations.

    (a) Upon settlement of a claim, trustees should consider the 
following actions to facilitate implementation of restoration:
    (1) Establish a trustee committee and/or memorandum of understanding 
or other agreement to coordinate among affected trustees, as provided in 
Sec. 990.14(a)(3) of this part;
    (2) Develop more detailed workplans to implement restoration;
    (3) Monitor and oversee restoration; and
    (4) Evaluate restoration success and the need for corrective action.
    (b) The reasonable costs of such actions are included as restoration 
costs.

[[Page 428]]



 SUBCHAPTER F_QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA 
                   HYDROGRAPHIC PRODUCTS AND SERVICES



PART 995_CERTIFICATION REQUIREMENTS FOR DISTRIBUTORS OF NOAA HYDROGRAPHIC 

PRODUCTS--Table of Contents




                            Subpart A_General

Sec.
995.1 Purpose and scope.
995.2 Incorporation by reference.
995.3 Availability of other publications.
995.4 Definitions.
995.5 Abbreviations.
995.6 Fees.
995.7 Liability.

                 Subpart B_Certification and Procedures

995.10 Correspondence and applications.
995.11 Government review and approval.
995.12 Certification designation.
995.13 Transfer of certification.
995.14 Auditing.
995.15 Termination of certification.
995.16 Term of certification.

   Subpart C_Requirements for Certified Distributors and Value Added 
                    Distributors of NOAA ENC Products

995.20 General.
995.21 Registry of data users.
995.22 Training of data users.
995.23 Acquisition of data.
995.24 Distribution of data.
995.25 Quality management system.
995.26 Conversion of NOAA ENC [reg] files to other formats.
995.27 Format validation software testing.
995.28 Use of NOAA emblem.
995.29 Limitation on endorsements.

Appendix A to Subpart C of Part 995--Certification Application Templates

    Authority: 33 U.S.C. 892b(b)(1).

    Source: 70 FR 52909, Sept. 6, 2005, unless otherwise noted.



                            Subpart A_General



Sec. 995.1  Purpose and scope.

    (a) The National Oceanic and Atmospheric Administration (NOAA) 
produces electronic navigational charts (ENCs) as one of its products 
under its Nautical Charting Program. According to Federal regulations, 
official NOAA ENCs [reg] meet nautical chart carriage 
requirements when used in a type-approved display system, such as an 
Electronic Chart Display and Information System (ECDIS). NOAA 
distributes these official ENCs to the public for free over its Web site 
on the Internet. This Part establishes the requirements by which 
entities may be certified to download, redistribute, repackage, or in 
some cases reformat, official NOAA ENCs and retain the NOAA ENC's 
official status. When a NOAA ENC [reg] retains its official 
status, it will comply with Federal chart carriage requirements. These 
requirements for re-distributing NOAA ENC data or incorporating it into 
value-added navigational products are to ensure the quality and content 
of official NOAA ENCs remains intact throughout the redistribution 
process. No other processes result in redistributed NOAA ENC products 
that comply with Federal chart carriage requirements.
    (b) Two types of certification are offered. The first type, 
``Certified NOAA ENC Distributor'' (CED), covers NOAA ENC downloading, 
exact copying, and redistribution of those copies. The second type, 
``Certified NOAA ENC Value Added Distributor'' (CEVAD), permits 
reformatting official NOAA ENCs into a System Electronic Navigational 
Chart (SENC) using type-approved software, and distribution of that 
SENC. Both types of certification permit, but do not require, 
compression, encryption, and packaging with other data. Because NOAA ENC 
[reg] data is the primary concern of this rule, and it is 
mandatory for certification that the official NOAA ENCs remain unaltered 
for positional accuracy and informational content, NOAA is, in effect, 
certifying that a CED's or CEVAD's products contain official NOAA ENC 
data, and therefore meets chart carriage requirements.
    (c) Any entity may continue to download from an official NOAA ENC 
[reg] Web site and use NOAA ENCs for any

[[Page 429]]

purpose. As long as it is not redistributed, that ENC will still be 
considered as official Federal data. If the NOAA ENC is successfully 
imported unaltered into a type-approved system, it will comply with 
Federal nautical chart carriage requirements. While without 
certification anyone can download an official NOAA ENC for any use, if a 
NOAA ENC [reg] is redistributed by an uncertified entity to 
another entity, the NOAA ENC is no longer considered as official Federal 
data and thus does not comply with Federal chart carriage requirements. 
An example follows.
    (1) One example is if an uncertified individual downloads a NOAA ENC 
and uses it according to Federal requirements, that individual will be 
meeting Federal chart carriage requirements. If an uncertified tug boat 
company has 9 boats in its fleet and an individual on one of the boats 
downloads a NOAA ENC and uses it according to Federal requirements that 
individual will be meeting Federal chart carriage requirements. However, 
if that same uncertified tug boat company downloads a NOAA ENC and 
redistributes it to its 9 boats, the NOAA ENC will not be considered 
official Federal data and therefore the 9 boats will not be meeting 
Federal carriage requirements. The company should become a CED or CEVAD 
under this part in order to be able to redistribute NOAA ENC's and 
retain the official status of those ENC's.
    (2) To reiterate, NOAA ENCs must not be redistributed by an 
uncertified entity if the end output needs to have official NOAA ENCs in 
it that will comply with Federal carriage requirements. Any company, 
entity or individual must be certified if the goal is to redistribute 
NOAA ENCs and have those NOAA ENCs remain as official Federal data and 
as such continue to meet Federal carriage requirements administered by 
the Coast Guard.



Sec. 995.2  Incorporation by reference.

    Certain material listed in this section is incorporated by reference 
with the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. The materials listed in this section are 
incorporated by reference in the corresponding sections noted. The 
materials are available for purchase at the corresponding addresses 
noted below, and all are available for inspection at the National 
Archives and Records Administration (NARA) or at the U.S. Department of 
Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230. For 
information on the availability of this material at NARA, call (202) 
741-6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html.
    (a) The material listed below is available for purchase from the 
International Hydrographic Bureau, 4 quai Antoine 1er, B.P. 445, MC 
98011 MONACO CEDEX; telephone: (377) 93.10.81.00; fax: (377) 
93.10.81.40; e-mail: [email protected]. Orders may be submitted by letter, 
fax, or e-mail.
    (1) IHO Technical Resolution A3.11--``ENC/SENC Distribution 
Option'', as published in the ``Resolutions of the International 
Hydrographic Organization'' updated June 2005, incorporation by 
reference approved for Sec. 995.26.
    (2) [Reserved]
    (b) [Reserved]



Sec. 995.3  Availability of other publications.

    (a) For further guidance you may obtain the following:
    (1) IEC 61174--The International Electrotechnical Commission 
identified and described the necessary performance tests and checks for 
an International Maritime Organization (IMO) compliant ECDIS. The IMO 
Performance Standards permit National Maritime Safety Administrations to 
consider ECDIS as the functional equivalent to charts required by 
Regulation V, Chapter 20 of the 1974 SOLAS Convention. IEC Publication 
61174, dated August 1998, can be purchased from the IEC Web site: http:/
/www.iec.ch.
    (2) IHO Special Publication S57--The IHO Transfer Standard for 
Hydrographic Data, edition 3.1, dated November 2000, describes the data 
structure and format to be used for the exchange of ENC data, product 
specification for the production of ENC data, and an updating profile. 
IHO S-57 documentation is available for free download at http://
www.iho.shom.fr. Send written requests

[[Page 430]]

to the International Hydrographic Bureau, 4 quai Antoine 1er, B.P. 445, 
MC 98011 MONACO CEDEX; telephone: (377) 93.10.81.00; e-mail: 
[email protected].
    (3) IHO Special Publication S58--The IHO Validation Checks for 
Hydrographic Data, edition 2.0, dated October 2003, describes the 
validation checks to be used on ENC data. This document was formally 
published as S-57 Appendix B.1, Annex C, but has been renamed to S-58 
due to the S-57 publication having been frozen (i.e. will not change) 
for a fixed time period. IHO S-58 documentation is available for free 
download at http://www.iho.shom.fr. Send written requests to the 
International Hydrographic Bureau, 4 quai Antoine 1er, B.P. 445, MC 
98011 MONACO CEDEX; telephone: (377) 93.10.81.00; e-mail: [email protected].
    (b) [Reserved]



Sec. 995.4  Definitions.

    Certified NOAA ENC Distributor (CED) means an entity that is 
certified as a distributor of NOAA ENC files by NOAA. This certification 
indicates that the distributor meets certain requirements (in Subparts 
A, B, and D of this part) that ensure timely and accurate dissemination 
of NOAA ENC data.
    Certified NOAA ENC Value Added Distributor (CEVAD) means an entity 
that creates a derived product that has been produced from NOAA ENC 
files using a process certified by NOAA. This certification indicates 
that the CEVAD meets certain requirements (in Subparts A, C, and D of 
this part) that ensure timely and accurate dissemination of NOAA ENC 
data in a non-ENC format.
    Derived product means a navigational product produced by 
transforming the NOAA ENC files to another format while preserving the 
content and accuracy. It may contain information from other sources.
    Distributor means a person or company that redistributes a NOAA ENC 
to end users in its original format.
    Electronic Chart Display and Information System (ECDIS) means the 
internationally adopted computer-assisted navigation system which, when 
complying with all of the required specifications, can be accepted as 
the up-to-date chart required by V/20 of the 1974 SOLAS Convention.
    Electronic Navigational Chart (ENC) means a database, standardized 
as to content, structure, and format, issued for use with ECDIS on the 
authority of government authorized hydrographic offices. The ENC 
contains all the chart information necessary for safe navigation and may 
contain supplementary information in addition to that contained in the 
paper chart (e.g., sailing directions), which may be considered 
necessary for safe navigation.
    Entity means one person, one person within a company, or one 
company.
    NOAA ENC [reg] means Electronic Navigational Charts 
produced by the National Oceanic and Atmospheric Administration. NOAA 
ENC files comply with the IHO S-57 standard, Edition 3.1 and the ENC 
Product Specification. The phrase ``NOAA ENC'' is a registered trademark 
and may not be used without permission.
    Redistributed means to distribute again, either as a direct copy or 
in a different way. A redistributed NOAA ENC is one that has been 
downloaded from an official NOAA ENC Web site by one entity and provided 
to another entity.
    System Electronic Navigational Chart (SENC) means a database 
resulting from the transformation of the ENC by ECDIS for appropriate 
use, updates to the ENC by appropriate means and other data added by the 
mariner. It is this database that is actually accessed by ECDIS for the 
display generation and other navigational functions, and is equivalent 
to an up-to-date paper chart. The SENC may also contain information from 
other sources.
    Value Added Distributor means a person or company that redistributes 
a NOAA ENC with additional data included or in a different format to 
create newly derived products used by end users.



Sec. 995.5  Abbreviations.

CED Certified NOAA ENC Distributor
CEVAD Certified NOAA ENC Value Added Distributor
CRC Cyclical Redundancy Checksum
ECDIS Electronic Chart Display and Information System
ENC Electronic Navigational Chart
IEC International Electrotechnical Commission

[[Page 431]]

IHO International Hydrographic Organization
IMO International Maritime Organization
ISO International Organization for Standardization
NOAA National Oceanic and Atmospheric Administration
NOS National Ocean Service
OCS Office of Coast Survey
SENC System Electronic Navigational Chart
SOLAS Safety of Life at Sea
VAD Value Added Distributor



Sec. 995.6  Fees.

    (a) The Office of Coast Survey, NOAA, may charge a fee for costs 
incurred to process each request for certification pursuant to 33 U.S.C. 
892b(b)(1)(C) and 892b(b)(2). The amount of the fee, if one is charged, 
will be determined by the Director, Office of Coast Survey, and charged 
to all Applicants based on the time and effort involved.
    (b) If a fee is charged, it will be charged for each application for 
certification submitted by an Applicant. A fee may also be charged for 
resubmissions of revised requests that were initially unacceptable and 
are sent in within 90 days as described in Sec. 995.11(b)(2).



Sec. 995.7  Liability.

    Distributors and value added distributors certified under this part 
shall indemnify and hold harmless the U.S. Government for any loss, 
claim, damage, or liability of any kind, the extent caused by the 
negligence of certified distributors or value added distributors or 
their employees, arising out of the use by a distributor or value added 
distributor, or any party acting on its behalf or under its 
authorization, of NOAA data.



                 Subpart B_Certification and Procedures



Sec. 995.10  Correspondence and applications.

    (a) Distributors or value-added distributors desiring certification 
from NOAA shall provide a written request and application for 
certification to the Office of Coast Survey, Attention: Distribution 
Certification, N/CS, 1315 East West Highway, Silver Spring, Maryland 
20910. Such a distributor or value-added distributor is hereafter 
referred to as Applicant. The Office of Coast Survey (OCS) is the 
approving office for certification under these requirements.
    (b) Applicant shall provide an application for certification that 
describes how each element in the applicable sections of this part has 
been met. The application will also contain an acknowledgment, signed by 
a company principal, of all terms and conditions described in this part.
    (c) Applicant shall use the appropriate template provided in 
Appendix A to subpart C of this part to prepare their request for 
certification.
    (d) Applicant shall provide, with its application, a point of 
contact with mailing address, phone number, and e-mail address. 
Applicant shall immediately notify NOAA, through the Office of Coast 
Survey, of any changes to point of contact information. Failure to do so 
will be considered a violation of this part and may lead to termination 
of certification.



Sec. 995.11  Government review and approval.

    (a) An application will be reviewed by NOAA within 90 days of 
receipt. If all requirements, as defined by this part, are adequately 
addressed, certification will be granted. If for any reason NOAA will be 
unable to process the application for certification within the 90-day 
time frame, Applicant will be notified and a revised date will be 
provided for a decision on the request.
    (b)(1) NOAA will determine if the request for certification is 
complete and that it demonstrates that Applicant has met all of the 
applicable requirements described in this part.
    (2) In the event that a request is incomplete or does not 
demonstrate that Applicant has met all of the applicable requirements, 
NOAA will consider the application unacceptable. NOAA will notify the 
Applicant of the deficiencies in writing. Applicant may re-submit a 
revised application within 90 days of receipt of NOAA's denial notice. 
NOAA will review applications received within the 90-day resubmission 
period in the time frame described in paragraph

[[Page 432]]

(a) of this section. After the second review, if the application is 
still unacceptable, Applicant will be again notified of the deficiencies 
in writing and the process continues as stated is this section.



Sec. 995.12  Certification designation.

    An Applicant that has been certified by NOAA as a CED may use the 
phrase ``Certified NOAA ENC Distributor'' on products and marketing 
materials. An Applicant that has been certified by NOAA as a CEVAD may 
use the phrase ``Certified NOAA ENC Value Added Distributor'' on 
products and marketing materials. Use of these phrases must include 
labeling to identify the product's contents and suitable use. (See Sec. 
995.24(a)(4), (5) and (6) and (b)(3), (4) and (5)). Use of the NOAA 
emblem is described in Sec. 995.28 and is not automatically granted 
with certification.



Sec. 995.13  Transfer of certification.

    A CED or CEVAD may not transfer its certification to another entity. 
If it is transferred the existing certification will be terminated.
    (a) If prior to certification it is known that another entity will 
be assisting the entity applying for certification in the production or 
redistribution of the data, that other entity must be documented in the 
application process. Listed entities will be considered as falling under 
the umbrella of the parent company's certification. The name of the 
entity and its duties should be included as part of the application.
    (b) If, subsequent to certification, a CED or CEVAD wishes to add 
another entity to assist it, a request in writing with the name of the 
entity and its duties shall be provided to the Office of Coast Survey, 
NOAA for acceptance. The Office of Coast Survey, NOAA will provide 
written notification of acceptance to the CED or CEVAD within 30 days of 
receipt of the request.



Sec. 995.14  Auditing.

    NOAA reserves the right to audit CED or CEVAD to ensure that the 
certification requirements are being met. Such an audit may consist of: 
visits to the production facilities, product testing, confirmation of 
ISO 9001 certification, or confirmation of type approval for conversion 
software, and so forth.



Sec. 995.15  Termination of certification.

    (a) In the event that NOAA determines that a CED or CEVAD is not 
meeting the requirements described in this part, the Office of Coast 
Survey, NOAA (OCS) will provide initial written notification of 
potential termination to the CED or CEVAD. OCS/NOAA will state in its 
notification to CED or CEVAD that termination of certification is under 
consideration.
    (b) The initial notification of potential termination will be 
provided in writing by OCS to the CED or CEVAD, and shall state the 
reason for the potential termination. Reasons for termination may 
include, but are not limited to:
    (1) CED or CEVAD contracts or in any way seeks to transfer the 
production or redistribution of all or part of the NOAA official data in 
the product to another entity.
    (2) CED or CEVAD fails to, or is unable (in the opinion of NOAA) to 
carry out its responsibilities as described in this part.
    (c) CED or CEVAD may submit written comments to OCS within 30 days 
of receipt of the OCS's initial written notification of potential 
termination, explaining why CED or CEVAD's certification should not be 
terminated.
    (1) The written comments shall be submitted to: Director, Office of 
Coast Survey, National Ocean Service, NOAA (N/CS), 1315 East West 
Highway, Silver Spring, MD 20910.
    (2) The written comments shall contain at least:
    (i) Identification and contact information of the CED or CEVAD;
    (ii) A statement that CED or CEVAD is responding to an initial 
written notification of potential termination by OCS; and
    (iii) A thorough but concise argument as to why CED or CEVAD 
believes that its certification should not be terminated.
    (d) The Director of OCS will take all timely written comments into 
account before taking final action, and in no case will the Director 
take final action until at least 45 days after CED or

[[Page 433]]

CEVAD's receipt of the initial written notification. A decision to 
terminate by the Director of OCS will state the reasons for termination 
and respond to all timely written comments submitted. Any final action 
taken by OCS constitutes final agency action on the matter.
    (e) CED or CEVAD shall notify all recipients of its products that 
its certification has been revoked, and that the product may no longer 
be valid for use. In addition, the CED or CEVAD shall provide the dates 
of non-compliance.



Sec. 995.16  Term of certification.

    The term of certification is five years from the date of issuance. 
At the end of the certification term, the process must be re-certified 
by the distributor or value added distributor submitting a request for 
certification as described in Sec. 995.10. It may also be revoked prior 
to the end of the term under the conditions described in Sec. 995.15.



   Subpart C_Requirements for Certified Distributors and Value Added 
                    Distributors of NOAA ENC Products



Sec. 995.20  General.

    The requirements for certification as a ``Certified NOAA ENC 
Distributor'' (CED) and ``Certified NOAA ENC Value Added Distributor'' 
(CEVAD) are described in this subpart.



Sec. 995.21  Registry of data users.

    (a) CED or CEVAD shall maintain a registry of customers receiving 
NOAA ENC data. CED or CEVAD shall provide said registry to NOAA on a 
biannual basis for internal NOAA planning and product evaluation use. 
NOAA agrees to treat such information as proprietary (if requested to do 
so by the CED or CEVAD).
    (b)(1) The registry shall include, but not be limited to:
    (i) Which NOAA ENC [reg] cells were provided to each 
customer;
    (ii) Edition number of each cell provided;
    (iii) Updates provided for each cell;
    (iv) Method of distribution for each customer.
    (2) The registry may also include information about the type and 
size of vessel that the NOAA ENC data has been provided for as well as 
an anonymous unique identifier for the vessel.



Sec. 995.22  Training of data users.

    CED or CEVAD shall provide some form of product training and 
education materials to the customer to ensure that the end user has a 
sufficient level of information about the intended use of the derived 
product and what is needed to properly use it (e.g., requires certain 
equipment).



Sec. 995.23  Acquisition of data.

    (a) CED or CEVAD shall obtain official NOAA ENC [reg] 
files only by directly downloading them from an official NOAA ENC site 
on the Internet.
    (b)(1) After downloading NOAA ENC files, CED or CEVAD shall 
uncompress the files and compute a CRC checksum value for each NOAA ENC 
file and verify that it matches the CRC checksum value contained in the 
CATALOG.031 file provided with the NOAA ENC files by NOAA. This is to 
ensure that no NOAA ENC files have been corrupted during the download 
process.
    (2) In the event that said CRC checksum value does not match that in 
the CATALOG.031 file, CED or CEVAD agrees to:
    (i) Repeat the download process;
    (ii) In the event that said CRC checksum value for the repeat 
download does not match that in the CATALOG.031 file, immediately notify 
the NOAA ENC Production Manager at [email protected], and;
    (iii) Not redistribute any NOAA ENC that does not have a valid CRC 
checksum.



Sec. 995.24  Distribution of data.

    (a) Distribution of data by CEDs--(1) Format of redistributed data--
(i) General. Except as listed in paragraphs (a)(1)(ii) and (iii) of this 
section, CED agrees to redistribute NOAA ENC data only in the original 
form provided by NOAA after uncompressing and shall not change the file 
format (S-57 Edition 3.1 ENC or other formats specified by NOAA), or 
contents, or alter the NOAA ENC data in any way.

[[Page 434]]

    (ii) Compression. The NOAA ENC files may be compressed using a 
lossless compression technique provided that CED makes the decompression 
software available to the end user as part of the redistribution 
service. Decompressed files must have the same CRC checksum value as the 
original files. The CED agrees to make the compression/decompression 
software and documentation available to NOAA for testing.
    (iii) Encryption. The NOAA ENC files may be encrypted by CED, 
providing that the encryption/decryption process does not result in any 
information loss and that CED makes the decryption software available to 
the end user as part of the redistribution service. Decrypted files must 
have the same CRC checksum value as the original files. CED shall make 
the encryption/decryption software and documentation available to NOAA 
for testing.
    (2) Frequency of distribution. CED shall make all current editions 
of NOAA ENC files and all updates to or new editions of NOAA ENC files 
available to its customers within five working days of the files or 
updates being posted by NOAA. Documentation shall be provided to the 
customer concerning any time delays that may occur between official 
release of a NOAA ENC or update, and CED providing same to end users.
    (3) Distribution report. CED shall provide a bi-annual report on 
when NOAA ENC files were downloaded and when they were redistributed to 
end-users.
    (4) Additional data. (i) If CED provides other data to customers in 
addition to NOAA ENC data (e.g., ENC data from other nations, raster 
chart data, privately produced data, etc.), CED shall provide a clear 
indication to the customer which files are official NOAA ENC data and 
which files are not. This may be accomplished through means such as 
package labeling, notifications in software, or other means.
    (ii) Additionally, any data that is included with NOAA ENC data must 
not result in embarrassment to the Department of Commerce or NOAA. There 
must be no conflict with any trademark rights and the inclusion of non-
NOAA data will not constitute any endorsement of or favoritism toward 
the non-NOAA data or CED.
    (5) Identification of type and contents. CED shall ensure that NOAA 
ENC [reg] files provided to an end user are clearly 
identified as to the type (e.g., direct unaltered copies) and contents 
(cells, updates, and ancillary files) and authenticity of the exchange 
set. This may be accomplished through means such as package labeling, 
notifications in software, or other means.
    (6) Use of product. CED shall provide a clear indication to the 
customer the purpose of its products; for example, indicating whether or 
not the product, and the data contained within it, is suitable for 
navigation and if it meets Federal chart carriage requirements. If only 
some of the files meet Federal carriage requirements, CED shall provide 
clear indication which files do and which files do not. This may be 
accomplished through means such as package labeling, notifications in 
software, or other means.
    (b) Distribution of data by CEVADs--(1) Frequency of distribution. 
CEVAD shall make all current editions of NOAA ENC files and all updates 
to or new editions of NOAA ENC files available to its customers within 
five working days of the files or updates being posted by NOAA. 
Documentation shall be provided to the customer concerning any time 
delays that may occur between official release of a NOAA ENC or update, 
and CED providing same to end users.
    (2) Distribution report. CEVAD shall provide a bi-annual report to 
NOAA on when NOAA ENC files were downloaded and when they were 
redistributed or made available to end users.
    (3) Additional data. (i) If CEVAD provides products to customers 
that incorporate other data in addition to NOAA ENC data (e.g., ENC data 
from other nations, raster chart data, privately produced data, etc.), 
CEVAD shall provide a clear indication in the product which data are 
from official NOAA ENC data and which data are not. This shall be done 
in a way that allows the navigation system to give the end user an 
automatic notification or warning that particular data elements within 
the product are not from the official NOAA ENC. Any such data shall not

[[Page 435]]

degrade the official NOAA ENC data or information.
    (ii) Additionally, any data that is included with NOAA ENC data must 
not result in embarrassment to the Department of Commerce or NOAA. There 
must be no conflict with any trademark rights and the inclusion of non-
NOAA data will not constitute any endorsement of or favoritism toward 
the non-NOAA data or CEVAD.
    (4) Identification of type and contents. CEVAD shall ensure that 
data provided to an end user clearly identify which NOAA ENC 
[reg] files are included in the product as to the type (e.g., 
NOAA ENCs in another form than that provided by NOAA without degradation 
to positional accuracy or informational content) and the contents 
(cells, updates, and ancillary files) and authenticity of the NOAA ENC 
files used. This may be accomplished through means such as package 
labeling, notifications in software, or other means.
    (5) Use of product. CEVAD shall provide a clear indication to the 
customer of the purpose of its products; for example, indicating whether 
or not the product, and the data contained within it, is suitable for 
navigation and if it meets Federal chart carriage requirements. If only 
some of the files meet Federal carriage requirements, CEVAD shall 
provide clear indication which files do and which files do not. This may 
be accomplished through means such as package labeling, notifications in 
software, or other means.



Sec. 995.25  Quality management system.

    (a) Quality management system for CEVADs. (1) CEVAD shall operate a 
quality management system, based on ISO 9001-2000 or equivalent, which 
embraces all elements of the process used to process and redistribute 
NOAA ENC files. The minimum requirements for such a quality management 
system are those defined in this part. The quality management system 
must ensure that the production process complies with all relevant 
requirements of this part.
    (2) The quality management system must, at a minimum, include an 
adequate account of:
    (i) The quality objectives and the organizational structure, 
responsibilities, and powers of management with regard to production 
quality;
    (ii) The techniques, processes, and systematic actions that will be 
used for quality management throughout the production process, including 
NOAA ENC conversion and the quality of the product being redistributed;
    (iii) The examination and tests that will be carried out before, 
during, and after processes essential for the quality of the product, 
and the frequency with which they will be carried out;
    (iv) The quality records, such as inspection records and test data, 
qualification reports of personnel concerned resulting from the program 
specified herein; and
    (v) The means for monitoring the achievement of the required quality 
of the product and the effective operation of the quality management 
system.
    (3) Design and development changes shall be reviewed, verified, and 
validated as appropriate and approved by the ISO 9001 certification 
authority (or equivalent if another quality management system is used) 
before implementation.
    (4) If the type approved conversion software is maintained by a 
third party, CEVAD shall ensure that no changes made to the conversion 
software render the type approval of the conversion software invalid, 
and shall evaluate the effects of such changes on the end users of the 
product.
    (5) CEVAD shall analyze both internal information and that received 
from external parties in order to continually monitor and improve the 
production process and the product being redistributed.
    (6) CEVAD shall ensure that personnel performing work affecting the 
production process are competent with regard to appropriate education, 
training, skills, and expertise.
    (7) CEVAD shall conduct internal audits at planned intervals to 
determine whether the quality management system conforms to the 
requirements of this part and is effectively implemented and maintained. 
The audit program shall take into consideration the individual 
processes' importance in relation to the product quality, as well as 
results of previous audits. Selection of auditors and conducting of 
audits

[[Page 436]]

shall, as far as practicable, insure objectivity and impartiality in the 
audit process.
    (8) CEVAD shall ensure that actions are taken without undue delay to 
eliminate detected non-conformities and their causes. Follow-up 
activities shall include the verification of the actions taken and the 
reporting of verification results.
    (b) [Reserved]



Sec. 995.26  Conversion of NOAA ENC [reg] files to other formats.

    (a) Conversion of NOAA ENC files to other formats--(1) Content. 
CEVAD may provide NOAA ENC data in forms other than that provided by 
NOAA. However, CEVAD shall not change the information content provided 
by the NOAA ENC. This means that all features and their associated 
attribution must be preserved in the CEVADs data files without 
degradation to positional accuracy or informational content.
    (2) Software certification. Conversion of NOAA ENC data to other 
formats must be accomplished within the constraints of IHO Technical 
Resolution A3.11: ``ENC/SENC Distribution Option'' (incorporated by 
reference, see Sec. 995.2)--in particular, paragraph three:
    Distributors who are to supply the SENC service must operate under 
the regulations of the issuing authority. The onshore ENC to SENC 
conversion must be performed using type-approved software.
    (3) Error reporting. Any errors detected during the conversion 
process shall be logged and investigated prior to releasing the data in 
which the errors occurred. Any errors that apparently originate in the 
NOAA ENC files shall be immediately reported to NOAA.
    (4) Format check. CEVAD shall ensure that the converted data 
conforms to the CEVAD's own format specifications and shall test load 
the converted data to ensure that it will correctly load and display on 
the intended equipment.
    (b) [Reserved]



Sec. 995.27  Format validation software testing.

    Tests shall be performed verifying, as far as reasonable and 
practicable, that CEVAD's data testing software performs the checks, as 
specified by CEVAD, for verifying that the converted data conforms to 
its own proprietary product specification. These tests may be combined 
with testing of the conversion software.



Sec. 995.28  Use of NOAA emblem.

    (a) Permission for the use of the NOAA emblem must be obtained by 
formally requesting such permission from NOAA and the Department of 
Commerce through NOAA's Office of Coast Survey.
    (b) Use of the NOAA emblem must satisfy an interest of the 
Department; the use may not result in embarrassment to the Department; 
there must be no conflict with any trademark rights, as stated in Sec. 
995.24(a)(4)(ii) and (b)(3)(ii); and there can be no endorsement or 
favoritism toward the distributor or value added distributor using the 
emblem, or other appearance of impropriety.
    (c) Certification under this part does not automatically grant the 
distributor or value added distributor the right to use the NOAA logo. 
Use of the NOAA logo without express permission from NOAA and the 
Department of Commerce will be considered grounds for denial of an 
application for certification or termination of certification.
    (d) Emblem use by certified distributors or certified value added 
distributors of NOAA electronic products. (1) After receiving separate, 
written permission from NOAA and the Department of Commerce as described 
in paragraph (a) of this section, a CED or CEVAD may use the NOAA emblem 
in product labeling and advertising materials, but only in conjunction 
with the phrase ``Certified NOAA ENC Distributor'' or ``Certified NOAA 
ENC Value Added Distributor,'' as applicable, and only after receiving 
separate, written permission from NOAA and the Department of Commerce as 
described in paragraph (d)(2) of this section.
    (2) If the NOAA emblem is used with products that include other 
data, clear indication must be provided to the customer indicating that 
the emblem and the phrase ``Certified NOAA ENC Distributor'' or 
``Certified NOAA ENC Value Added Distributor'' does not apply to the 
entire product delivered.

[[Page 437]]

Information on the effects of such limitation must be provided to the 
customer (See Sec. 995.24(a)(4) and (5) and (b)(3) and (4).)



Sec. 995.29  Limitation on endorsements.

    By certifying compliance with this part, NOAA does not 
automatically, directly, or indirectly endorse any product or service 
provided, or to be provided, by distributor or value added distributor 
or its successors, assignees, or licensees. The distributor or value 
added distributor shall not in any way imply that this certification is 
an endorsement of any such product or service without separate, written 
permission from NOAA and the Department of Commerce.



  Sec. Appendix A to Subpart C of Part 995--Certification Application 
                                Templates

    Notice to respondents:
    This information is being collected by NOAA to ascertain 
qualifications for certification as an authorized distributor of 
official NOAA ENC [reg] data. NOAA developed these 
certification requirements under the authority of Section 104 of the 
Hydrographic Services Improvement Act Amendments of 2002, 33 U.S.C. 
892b(b)(1).
    The information on these forms is not associated with performance of 
agency functions.
    Public reporting burden for this collection of information is 
estimated to average 16 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the collection 
of information. Send comments regarding this burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing this burden, to [email protected].
    Responses to this collection are considered voluntary, though they 
are required for certification.
    The information requested on these forms will not be disseminated to 
the public or used to support information that will be disseminated to 
the public. Any disclosure of propriety information will be held in 
confidentiality as regulated under the Trade Secrets Act. NOAA will not 
violate that Act's prohibitions against unauthorized agency disclosures 
of trade secrets or other confidential business information.
    Notwithstanding any other provision of the law, no person is 
required to, nor shall any person be subject to a penalty for failure 
to, comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act, unless that collection of information 
displays a currently valid OMB Control Number. [OMB Control 
0648-0508 Expires 05/31/2008]

   Application for Certification as ``Certified NOAA ENC Distributor''

Company Name
Company Address
Company Phone Number
Company Fax Number
Company E-Mail Address
Point of Contact
Point of Contact Address
Point of Contact Phone Number
Point of Contact Fax Number
Point of Contact E-Mail Address

    This is a request for the above named company or individual 
(hereinafter referred to as Distributor) to be certified as a 
``Certified NOAA ENC Distributor'' (CED). This document describes how 
each of the requirements for certification is being met. Descriptive 
titles after each number in parenthesis on this application correspond 
to section titles in 15 CFR, chapter IX, Subchapter F, Part 995--
Certification requirements for Distributors of NOAA hydrographic 
products. The numbers after each descriptive title refer to the section 
number within 15 CFR part 995. The Distributor should use these section 
numbers to insure that the requirements are being fully understood and 
met by the Distributor prior to submitting the application.
    (1) Correspondence and applications/requests for certification 
(995.10 (a)). Distributor acknowledges and agrees to all procedures and 
requirements pertaining to the certification process described in 15 CFR 
part 995.
    (2) Correspondence and applications/point of contact (995.10 (d)). 
Distributor agrees to immediately notify the Government of any changes 
to point of contact information.
    (3) Transfer of certification (995.13). Document other entities that 
will be assisting in the production or redistribution of the derived 
product. Provide the names and duties of those entities to meet this 
requirement.
    (4) Auditing (995.14). Distributor acknowledges that NOAA reserves 
the right to audit Distributor to ensure that all requirements in 15 CFR 
part 995 are being met.
    (5) Termination of certification (995.15). Distributor acknowledges 
the conditions leading to and procedures for the termination of 
certification as described in this requirement.
    (6) Term of certification (995.16). Distributor acknowledges that 
the duration of certification is five years from the date of issuance.
    (7) Registry of data users (995.21). Include a description of the 
data user registry, including:

[[Page 438]]

    (a) What data elements it contains, specifically showing how the 
required elements are included;
    (b) A hardcopy sample of the report that will be periodically 
submitted to NOAA;
    (c) A short description of how the registry is maintained.
    (8) Training of data users (995.22). Include a copy of any 
documentation provided to users that is intended to meet this 
requirement.
    (9) Acquisition of data (995.23). Distributor asserts that all 
procedures described in this requirement for the acquisition of NOAA ENC 
[reg] data for redistribution are being followed.
    (10) Distribution of data/general (995.24(a)(1)(i)). Distributor 
asserts that all NOAA ENC [reg] data redistributed will be in 
the format described by this requirement.
    (11) Distribution of data/compression (995.24(a)(1)(ii)). 
Distributor shall indicate if data compression techniques are used. If 
Distributor uses data compression techniques, Distributor asserts that 
the process meets the necessary regulations described by this 
requirement.
    (12) Distribution of data/encryption (995.24(a)(1)(iii)). 
Distributor shall indicate if data encryption techniques are used. If 
Distributor uses data encryption techniques, Distributor asserts that 
the process meets the necessary regulations described by this 
requirement.
    (13) Distribution of data/frequency of distribution (995.24(a)(2)). 
Distributor asserts that any updates will be transmitted to their users 
within the time constraints described by this requirement.
    (14) Distribution of data/distribution report (995.24(a)(3)). 
Distributor shall provide an example of the distribution report 
described by this requirement.
    (15) Distribution of data/additional data (995.24(a)(4)). 
Distributor shall indicate if additional data is to be distributed with 
the NOAA ENC [reg] data. If so, Distributor shall provide 
examples of how the data users will be informed as to the official and 
unofficial contents of the data as described by this requirement.
    (16) Distribution of data/identification of contents (995.24(a)(5)). 
Distributor shall provide examples of how the contents of the NOAA ENC 
[reg] files will be identified to the users.
    (17) Distribution of data/use of product (995.24(a)(6)). Distributor 
shall provide examples of how the data users will be informed as to the 
purpose of its products as described in this requirement.
    (18) Use of NOAA emblem (995.28). Distributor acknowledges that a 
separate request for the use of the NOAA emblem must be submitted 
according to the procedure described in this requirement.
    (19) Limitation on endorsements (995.29). Distributor acknowledges 
that NOAA does not automatically, directly, or indirectly endorse any 
product or service provided, or to be provided, by Distributor, its 
successors, assignees, or licensees. Distributor shall not in any way 
imply that this certification is an endorsement of any such product or 
service without separate, written permission.
    (20) Liability (995.7). By signing this request for certification, 
Distributor pledges to indemnify and hold harmless the U.S. Government 
for any loss, claim, damage, or liability of any kind, the extent caused 
by the negligence of Distributor or its employees, arising out of the 
use by the Distributor, or any Party acting on its behalf or under its 
authorization, of NOAA ENC [reg] data.
    Signature of this request constitutes an acknowledgement by 
Distributor of ALL applicable terms and conditions described in the 
certification requirements in 15 CFR part 995.
 Signed:________________________________________________________________

 Title:_________________________________________________________________

 Date:__________________________________________________________________

    [OMB Control 0648-0508 Expires 05/31/2008]

   Application for Certification as ``Certified NOAA ENC Value Added 
                              Distributor''

Company Name
Company Address
Company Phone Number
Company Fax Number
Company E-Mail Address
Point of Contact
Point of Contact Address
Point of Contact Phone Number
Point of Contact Fax Number
Point of Contact E-Mail Address

    This is a request for the above named company (hereinafter referred 
to as Value Added Distributor) to be certified as a ``Certified NOAA ENC 
Value Added Distributor'' (CEVAD). This document describes how each of 
the requirements for certification is being met. Descriptive titles 
after each number in parenthesis on this application correspond to 
section titles in 15 CFR, chapter IX, Subchapter F, Part 995--
Certification requirements for Distributors of NOAA hydrographic 
products. The numbers after each descriptive title refer to the section 
number within 15 CFR, part 995. The Distributor should use these section 
numbers to insure that the requirements are being fully understood and 
met by the Distributor prior to submitting the application.
    (1) Correspondence and applications/requests for certification 
(995.10 (a)). Distributor acknowledges and agrees to all procedures and 
requirements pertaining to the certification process described in 15 CFR 
part 995.
    (2) Correspondence and applications/point of contact (995.10 (d)). 
Distributor agrees to immediately notify the Government of any changes 
to point of contact information.

[[Page 439]]

    (3) Transfer of certification (995.13). Document other entities that 
will be assisting in the production or redistribution of the derived 
product. Provide the names and duties of those entities to meet this 
requirement.
    (4) Auditing (995.14). Distributor acknowledges that NOAA reserves 
the right to audit Distributor to ensure that all requirements in 15 CFR 
part 995 are being met.
    (5) Termination of certification (995.15). Distributor acknowledges 
the conditions leading to and procedures for the termination of 
certification as described in this requirement.
    (6) Term of certification (995.16). Distributor acknowledges that 
the duration of certification is five years from the date of issuance.
    (7) Registry of data users (995.21). Include a description of the 
data user registry, including:
    (a) What data elements it contains, specifically showing how the 
required elements are included;
    (b) A hardcopy sample of the report that will be periodically 
submitted to NOAA;
    (c) A short description of how the registry is maintained.
    (8) Training of data users (995.22). Include a copy of any 
documentation provided to users that is intended to meet this 
requirement.
    (9) Acquisition of data (995.23). Distributor asserts that all 
procedures described in this requirement for the acquisition of NOAA ENC 
[reg] data for redistribution are being followed.
    (10) Distribution of data/frequency of distribution (995.24(b)(1)). 
Value Added Distributor asserts that any updates will be transmitted to 
their users within the time constraints described by this requirement.
    (11) Distribution of data/distribution report (995.24(b)(2)). Value 
Added Distributor shall provide an example of the distribution report 
described by this requirement.
    (12) Distribution of data/additional data (995.24(b)(3)). Value 
Added Distributor shall indicate if additional data is to be distributed 
with the NOAA ENC data. If so, Value Added Distributor shall provide 
examples of how the data users will be informed as to the official and 
unofficial contents of the data as described in this requirement.
    (13) Distribution of data/identification of contents (995.24(b)(4)). 
Value Added Distributor shall provide examples of how the contents of 
the NOAA ENC files will be identified to the users.
    (14) Distribution of data/use of product (995.24(b)(5)). Distributor 
shall provide examples of how the data users will be informed as to the 
purpose of its products as described in this requirement.
    (15) Quality management system (995.25). Value Added Distributor 
shall provide a copy of the ISO 9001-2000 certification or certification 
of compliance with an equivalent program of quality management that 
covers the processes described in this section of the requirements.
    (16) Conversion of NOAA ENC files to other formats (995.26(a)(1)). 
Value Added Distributor asserts that all NOAA ENC [reg] 
content and accuracy are preserved during the conversion process as 
described in this section of the requirements.
    (17) Conversion of NOAA ENC files to other formats/software 
certification (995.26(a)(2)). Value Added Distributor shall provide a 
copy of the type approval certificate for the software used to convert 
the NOAA ENC files to the Value Added Distributor's format.
    (18) Conversion of NOAA ENC files to other formats/error reporting 
(995.26(a)(3)). Value Added Distributor asserts that they shall log and 
report any errors in the NOAA ENC data detected during the conversion 
process. Value Added Distributor shall provide an example of the report 
format that they will use.
    (19) Conversion of NOAA ENC files to other formats/format check 
(995.26(a)(4)). Value Added Distributor asserts that all data shall be 
checked for conformance with Value Added Distributor's own format 
specifications and shall test load the converted data as described in 
this section of the requirements.
    (20) Format validation software testing (995.27). The validation 
software used by Value Added Distributor shall be tested according to 
this requirement and the results stated in this section of the request 
for certification.
    (21) Use of NOAA emblem (995.28). Value Added Distributor 
acknowledges that a separate request for the use of the NOAA emblem must 
be submitted according to the procedure described in this requirement.
    (22) Limitation on endorsements (995.29). Value Added Distributor 
acknowledges that NOAA does not automatically, directly, or indirectly 
endorse any product or service provided, or to be provided, by Value 
Added Distributor, its successors, assignees, or licensees. Value Added 
Distributor shall not in any way imply that this certification is an 
endorsement of any such product or service without separate, written 
permission.
    (23) Liability (995.7). By signing this request for certification, 
Value Added Distributor pledges to indemnify and hold harmless the U.S. 
Government for any loss, claim, damage, or liability of any kind, the 
extent caused by the negligence of Value Added Distributor or its 
employees, arising out of the use by the Value Added Distributor, or any 
party acting on its behalf or under its authorization, of NOAA ENC data.
    Signature of this request constitutes an acknowledgement by Value 
Added Distributor of ALL applicable terms and conditions described in 
the certification requirements.


[[Page 440]]


 Signed:________________________________________________________________

 Title:_________________________________________________________________

 Date:__________________________________________________________________



PART 996_QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA 

HYDROGRAPHIC PRODUCTS AND SERVICES--Table of Contents




                            Subpart A_General

Sec.
996.1 Purpose and scope.
996.2 Definitions.
996.3 Fees.
996.4 Liability.

    Subpart B_The Quality Assurance Program for Hydrographic Products

996.10 Submission and selection of hydrographic products for the 
          development of standards and compliance tests.
996.11 Development of standards for a hydrographic product or class.
996.12 Development of standards compliance tests for a hydrographic 
          product or class.
996.13 Determination of whether to offer certification for a 
          hydrographic product or class.

 Subpart C_Certification of a Hydrographic Product and Decertification.

996.20 Submission of a hydrographic product for certification.
996.21 Performance of compliance testing.
996.22 Certification.
996.23 Audit and decertification of hydrographic products.

            Subpart D_Other Quality Assurance Program Matters

996.30 Use of the NOAA emblem.
996.31 Termination of the Quality Assurance Program.
996.32 Appeals.
996.33 Acceptance of program by non-Federal entities.

    Authority: 33 U.S.C. 892b.

    Source: 70 FR 698, Jan. 5, 2005, unless otherwise noted.



                            Subpart A_General



Sec. 996.1  Purpose and scope.

    The National Oceanic and Atmospheric Administration (NOAA) was 
mandated to develop and implement a quality assurance program that is 
equally available to all applicants, under which the Administrator may 
certify hydrographic products that satisfy standards promulgated by the 
Administrator. ``Hydrographic products'' are any publicly or 
commercially available products produced by a non-Federal entity that 
include or display hydrographic data. The procedures established here by 
which hydrographic products are proposed for certification; by which 
standards and compliance tests are developed, adopted, and applied for 
those products; and by which certification may be awarded or denied are 
the mandated Quality Assurance Program. The execution of those 
procedures for specific hydrographic products is the implementation of 
the program.



Sec. 996.2  Definitions.

    Agency means the National Oceanic and Atmospheric Administration.
    Applicant means a non-Federal entity that is submitting a 
hydrographic product to the Quality Assurance Program for certification.
    Certification means a determination made by NOAA that a hydrographic 
product submitted by a non-Federal entity has met the requirements 
established by NOAA for a particular hydrographic product or class.
    Department means the Department of Commerce.
    Hydrographic data means information acquired through hydrographic or 
bathymetric surveying, photogrammetry, geodetic, geospatial, or 
geomagnetic measurements, tide and current observations, or other 
methods, that is used in providing hydrographic services.
    Hydrographic product means any publicly or commercially available 
product produced by a non-Federal entity that includes or displays 
hydrographic data.
    Hydrographic product class means a group of hydrographic products 
with similar traits, attributes, purposes, or users.
    Hydrographic services means
    (1) The management, maintenance, interpretation, certification, and 
dissemination of bathymetric, hydrographic, geodetic, geospatial, 
geomagnetic, and tide and current information, including the production 
of

[[Page 441]]

nautical charts, nautical information databases, and other products 
derived from hydrographic data;
    (2) The development of nautical information systems; and
    (3) Related activities.
    Quality Assurance Program means a set of procedures by which 
hydrographic products are proposed for certification; by which standards 
and compliance tests are developed, and, if suitable, are adopted by 
NOAA for those products; and by which certification of individual 
products may be awarded or denied.
    Quality Assurance Program implementation means the execution of the 
Quality Assurance Program procedures for specific hydrographic products.
    Sponsor means a non-Federal entity that is submitting a hydrographic 
product to the Quality Assurance Program for the development of 
standards and compliance tests.



Sec. 996.3  Fees.

    NOAA may charge for its Quality Assurance Program activities such 
sums as may be permitted or required under this Act, or under other 
statutory authorities. Such sums are non-refundable. NOAA will attempt 
to identify any such charges upon first submission of a hydrographic 
product. However, the intent to charge and the amounts may change. NOAA 
will promptly notify the sponsor of any such changes, and will permit 
the sponsor to withdraw hydrographic products from consideration under 
the Quality Assurance Program should they so choose.



Sec. 996.4  Liability.

    The Government of the United States shall not be liable for any 
negligence by producers of hydrographic products certified under this 
part.



    Subpart B_The Quality Assurance Program for Hydrographic Products



Sec. 996.10  Submission and selection of hydrographic products for the 

development of standards and compliance tests.

    (a) Any non-Federal entity may submit a hydrographic product to be 
considered for the development of standards and compliance tests under 
this Quality Assurance Program.
    (b) Submission shall be made to the Quality Assurance Program 
address below, or to such other address as may be indicated in the 
future: Director (N/CS), ATTN: Hydrographic Product Quality Assurance 
Program, Office of Coast Survey, NOAA, 1315 East West Highway, Silver 
Spring, MD 20910.
    (c) The submission shall include
    (1) Name and description of the proposed hydrographic product.
    (2) The non-Federal entity submitting the product for the 
development of standards and compliance tests, and contact information 
for that entity. This non-Federal entity shall be known as the sponsor.
    (3) The names and contact information of proposed representatives of 
the affected communities who have committed to participate substantively 
in the writing of standards and compliance tests. Affected communities 
might include: manufacturers, users, regulators, resellers, developers 
of products that use certified hydrographic products such as datasets, 
and manufacturers of competing or substitute products.
    (4) The names and contact information of the standards setting body, 
and the compliance testing body under whose authority it is proposed 
that the standards and compliance tests be written and adopted.
    (5) Information deemed relevant by the sponsor for NOAA to consider 
in deciding whether to proceed with the development of standards, 
compliance tests, and certification. Such information should address at 
a minimum:
    (i) The type and magnitude of the public benefits and enhancement of 
public safety that would be achieved;
    (ii) The breadth of support for standards and certification among 
all the affected communities;
    (iii) The practicality of writing and enforcing an effective and 
appropriate standard;
    (iv) The availability of suitable, similar products that may already 
meet the needs of the public; and
    (v) The required expertise needed to write an appropriate standard.
    (d) NOAA may, at its option, define a hydrographic product class of 
which

[[Page 442]]

the proposed hydrographic product is a specific instance. Standards and 
compliance tests may then be prepared for the class rather than for an 
individual non-Federal entity's specific product.
    (e) NOAA shall publicize, in the Federal Register or by other 
appropriate means, the hydrographic product or class in order to solicit 
comments on the proposal that standards and compliance tests be written 
and certification be offered for that hydrographic product or class. 
Comments might include, but are not limited to, general information; 
statements of interest in participating in the development of standards 
and compliance tests; or objections to acceptance of the hydrographic 
product or class into this Quality Assurance Program. Instructions for 
commenting and the duration of the comment period will be included in 
the announcement.
    (f) NOAA shall decide, if its other obligations permit, within 60 
calendar days of the close of the comment period whether to proceed with 
the development of standards, compliance tests, and certification for 
the proposed hydrographic product or class. NOAA may request further 
information, and shall have additional time as required to consider the 
information once received. NOAA's decision on whether to proceed shall 
be based on the following criteria:
    (1) The magnitude of the public benefit and enhancement of public 
safety that would be achieved compared to the commitment of federal 
resources that would be required;
    (2) The breadth of support for standards and certification among all 
the affected communities;
    (3) The practicality of writing and enforcing an effective and 
appropriate standard;
    (4) The availability of suitable, similar products that may already 
meet the needs of the public;
    (5) NOAA's expertise related to the expertise needed to write an 
appropriate standard;
    (6) Availability of resources; and
    (7) Other relevant criteria as they become apparent.
    (g) NOAA's decision as to whether the proposed hydrographic product 
or class is accepted into the Quality Assurance Program shall be 
publicly announced in the Federal Register or by other appropriate 
means, and a written notification shall be provided to the sponsor. The 
response shall include NOAA's reason for its decision based on the 
criteria enumerated above.
    (h) Any party, including the sponsor, shall have an opportunity to 
request reconsideration of NOAA's decision. Said request shall be 
submitted in writing, to the Quality Assurance Program address, 
postmarked within 30 days of NOAA's announcement of its decision, and 
shall contain written material supporting the requestor's position. NOAA 
shall have, if its other obligations permit, 60 calendar days from the 
receipt of a request for reconsideration to either deny the request, or 
to reconsider and announce its decision.
    (i) NOAA's decision, either the original decision if unappealed 
within 30 days, or the decision after the request for reconsideration, 
shall be considered final.
    (j) NOAA itself may choose to identify a hydrographic product or 
class, which may or may not yet exist, but for which it intends to adopt 
standards, compliance tests, and to offer certification. In such cases, 
NOAA will be considered the sponsor. The procedures to be followed for 
NOAA-sponsored hydrographic products or classes shall be the same as for 
those sponsored by non-Federal entities, including the procedures for 
announcement, comment, and reconsideration.



Sec. 996.11  Development of standards for a hydrographic product or class.

    (a) NOAA shall work, to the extent practicable, through existing, 
recognized, standards bodies in the writing and adopting of standards 
for a hydrographic product or class that NOAA has accepted into this 
program. It shall be the responsibility of the sponsor to propose an 
appropriate standards writing body. NOAA may accept this body at its 
discretion, or may select an alternate body. NOAA will then undertake, 
jointly with the sponsor and acknowledged representatives of the 
affected communities, to submit the proposal for writing standards to, 
and to

[[Page 443]]

secure the cooperation of, the selected standards writing body.
    (b) Once accepted as a work item by the standards writing body, NOAA 
shall undertake, jointly with representatives of the affected community, 
members of the standards body, other governmental representatives, and 
the sponsor as appropriate, to write standards for the hydrographic 
product or class according to the practices of the standards body and 
the technical needs of the product. Participation in the writing of 
standards shall be determined according to the procedures of the 
standards writing body.
    (c) NOAA shall then undertake, jointly with representatives of the 
affected community, members of the standards body and the body itself, 
other governmental representatives, and the sponsor as appropriate, to 
have the resulting standard officially adopted by the standards body 
according to the procedures of that body.
    (d) NOAA may, at its option, proceed without the participation of an 
existing, recognized, standards body should it so choose. Such action 
might be taken, for example, if there were no appropriate standards 
body. In this eventuality, NOAA shall adhere to the following general 
procedure.
    (1) Announce, in the Federal Register or by other appropriate means, 
NOAA's intention to organize and chair a working group to write and 
publish standards for the proposed hydrographic product or class;
    (2) Solicit, via the Federal Register or by other appropriate means, 
participation and select, reject, and/or revoke permission to 
participate as NOAA deems appropriate so as to proceed in an orderly and 
representative manner in writing a standard;
    (3) Initiate, schedule, host, and chair, or designate a chair for, 
the work of the working group;
    (4) Circulate, via the Federal Register or by other appropriate 
means, the drafts of the working group;
    (5) Announce, via the Federal Register or by other appropriate 
means, the NOAA proposed standard and provide an opportunity for public 
comment;
    (6) Announce, via the Federal Register or by other appropriate 
means, and make available as a standard, the final version of the 
standard; and
    (7) Provide the necessary administrative support.
    (e) NOAA may, at its option, adopt an existing standard as the NOAA 
standard for this program. In this eventuality, NOAA shall adhere to the 
following general procedure.
    (1) Announce, in the Federal Register or by other appropriate means, 
NOAA's intention to adopt an existing standard for the proposed 
hydrographic product or class; and
    (2) Solicit, via the Federal Register or by other appropriate means 
including public meetings, comment on the standard that NOAA proposes to 
adopt, and shall consider the comments received.
    (f) Alternatively, NOAA may at its option, proceed by writing a 
standard by itself. Such action might be used, for example, in cases 
where the standard is obvious. Producing exact copies of existing NOAA 
products might be one such case. Once written, this NOAA-authored 
standard shall be made publicly available for comment, and comments 
shall be considered before NOAA publishes the final standard.
    (g) At the conclusion of the standards writing, whether through an 
existing standards body, by a NOAA-convened working group, by adopting 
an existing standard, or by NOAA itself, NOAA shall consider the 
resulting standard and comments, and either adopt or reject the standard 
as the NOAA Quality Assurance Program Standard for the particular 
hydrographic product or class. NOAA's decision shall be publicly 
announced in the Federal Register or by other appropriate means.
    (h) Any party may request NOAA to reconsider its decision to adopt 
or reject the standard by submitting its request in writing to the 
Quality Assurance Program address within 30 days of NOAA's announcement 
of its decision. NOAA shall have, if its other obligations permit, 60 
calendar days from the receipt of a request for reconsideration to 
either deny the request, or to reconsider and announce its decision. 
NOAA's original decision if unappealed within 30 days, or its decision 
upon reconsideration shall be considered final.

[[Page 444]]



Sec. 996.12  Development of standards compliance tests for a hydrographic 

product or class.

    (a) NOAA shall work, to the extent practicable, through existing, 
recognized, compliance testing bodies in the writing and adopting of 
compliance tests for a hydrographic product or class. It shall be the 
responsibility of the sponsor to propose an appropriate compliance 
testing body. NOAA may accept this body at its discretion, or may select 
an alternate body. NOAA will then undertake, jointly with the sponsor 
and acknowledged representatives of the affected communities, to secure 
the cooperation of the selected compliance testing body.
    (b) NOAA shall undertake, jointly with representatives of the 
affected community, members of the compliance testing body, other 
governmental representatives, and the sponsor as appropriate, to write 
compliance tests for the hydrographic product or class according to the 
practices of the compliance testing body and the Quality Assurance 
Program standard adopted by NOAA. Participation in the writing of 
compliance tests may be determined according to the procedures of the 
compliance testing body.
    (c) NOAA shall then undertake, jointly with representatives of the 
affected community, members of the compliance testing body and the body 
itself, other governmental representatives, and the sponsor as 
appropriate, to have the resulting compliance tests adopted according to 
the procedures of that body.
    (d) NOAA may, at its option, proceed without the participation of an 
existing, recognized, compliance testing body should it so choose. Such 
action might be taken, for example, if there were no appropriate 
compliance testing body. In this eventuality, NOAA will adhere to the 
following general procedure:
    (1) Announce, in the Federal Register or by other appropriate means, 
NOAA's intention to organize and chair a working group to write and 
publish compliance tests for the hydrographic product or class;
    (2) Solicit, via the Federal Register or by other appropriate means, 
participation and select, reject, and/or revoke permission to 
participate as NOAA deems appropriate so as to proceed in an orderly and 
representative manner in writing compliance tests;
    (3) Initiate, schedule, host, and chair, or designate a chair for, 
the work of the working group;
    (4) Circulate, via the Federal Register, or by other appropriate 
means, the drafts of the working group;
    (5) Announce, via the Federal Register or by other appropriate 
means, a NOAA proposed final version of the compliance tests and provide 
an opportunity for public comment;
    (6) Announce, via the Federal Register or by other appropriate 
means, and make available the final version of the compliance tests, and
    (7) Provide the necessary administrative support.
    (e) NOAA may, at its option, adopt existing compliance tests as the 
NOAA compliance tests for this program. In this eventuality, NOAA shall 
adhere to the following general procedure:
    (1) Announce, in the Federal Register or by other appropriate means, 
NOAA's intention to adopt existing compliance tests for the proposed 
hydrographic product or class; and
    (2) Solicit, via the Federal Register or by other appropriate means 
including public meetings, comment on the proposed compliance tests that 
NOAA proposes to adopt, and shall consider the comments received.
    (f) Alternatively, NOAA may, at its option, proceed by writing 
compliance tests by itself. Such action might be used, for example, in 
cases where the tests are obvious. Producing exact copies of existing 
NOAA products might be one such case. Once written, these NOAA-authored 
tests shall be made publicly available for comment, and comments shall 
be considered before NOAA publishes the final compliance tests.
    (g) At the conclusion of the compliance test writing, whether 
through an existing body, by a NOAA-convened working group, by adopting 
existing compliance tests, or by NOAA itself, NOAA shall consider the 
resulting compliance tests and comments, and either adopt or reject them 
as the NOAA Quality Assurance Program

[[Page 445]]

compliance tests for the particular hydrographic product standard. 
NOAA's decision shall be publicly announced in the Federal Register or 
by other appropriate means.
    (h) Any party may request NOAA to reconsider its decision to adopt 
or reject the compliance tests by submitting its request in writing to 
the Quality Assurance Program address within 30 days of NOAA's 
announcement of its decision. NOAA shall have, if its other obligations 
permit, 60 calendar days after the receipt of a request for 
reconsideration to either deny the request, or to reconsider and 
announce its decision. NOAA's original decision if unappealed within 30 
days, or its decision upon reconsideration shall be considered final.



Sec. 996.13  Determination of whether to offer certification for a 

hydrographic product or class.

    (a) Certification of a hydrographic product or class shall be at the 
option of NOAA. NOAA may decide at any time whether or not to offer 
certification for a product or class. However, it is most likely that a 
determination will be made only after a non-Federal entity has submitted 
a specific product for certification. NOAA's decision shall be based on 
the following criteria:
    (1) The suitability of the adopted standards and tests for their 
intended purpose;
    (2) The availability of a qualified entity to perform the compliance 
tests;
    (3) Availability of resources; and
    (4) Other relevant criteria as they become apparent.
    (b) NOAA's decision as to whether certification for a hydrographic 
product or class is offered shall be publicly announced in the Federal 
Register or by other appropriate means.
    (c) Any entity may request NOAA to reconsider its decision to offer 
or not offer certification by submitting its request in writing to the 
Quality Assurance Program address within 30 days of NOAA's announcement 
of its decision. NOAA shall have, if its other obligations permit, 60 
calendar days after the receipt of a request for reconsideration to 
either deny the request, or to reconsider and announce its decision.
    (d) NOAA's original decision if unappealed within 30 days, or its 
decision upon reconsideration, shall be considered final.



 Subpart C_Certification of a Hydrographic Product and Decertification.



Sec. 996.20  Submission of a hydrographic product for certification.

    (a) Upon adoption by NOAA of standards and compliance tests, any 
non-Federal entity may submit a hydrographic product for certification 
under a particular standard. This non-Federal entity shall be known as 
the applicant. Submission shall be made in writing to the Quality 
Assurance Program address. The submission shall include:
    (1) Name and description of the hydrographic product and its product 
class if any;
    (2) Identification and contact information for the non-Federal 
entity submitting the product for certification.
    (3) The identification of the standard and compliance tests adopted 
by this Quality Assurance Program under which the hydrographic product 
is to be certified;
    (4) A proposed, qualified, competent, independent compliance testing 
body to perform the compliance tests, which NOAA may accept at its 
discretion, or for which NOAA may select an alternative testing body;
    (5) Other information deemed relevant by the sponsor or requested by 
NOAA.
    (b) [Reserved]



Sec. 996.21  Performance of compliance testing.

    (a) NOAA and the applicant shall submit the applicant's hydrographic 
product to the testing body for performance of the compliance tests. 
That body shall determine compliance or non-compliance of the 
hydrographic product with the NOAA-adopted standard, and shall provide 
to NOAA written documentation stating the results of the compliance 
tests according to its usual practices.
    (b) Alternatively, NOAA may choose, at its option, to perform, have 
performed by a NOAA-designated entity,

[[Page 446]]

or waive the compliance tests for a hydrographic product. This 
alternative may be used, for example, when there is no qualified entity 
to perform the compliance tests, where the compliance tests are simple, 
or when self-certification of compliance would be appropriate.
    (c) Items failing the compliance tests may be changed by the 
applicant and retested. Items passing the compliance test upon retest 
shall be deemed compliant as if they had passed said tests initially.



Sec. 996.22  Certification.

    (a) A hydrographic product that has passed the compliance tests 
shall automatically be considered for certification by NOAA. NOAA shall 
make its certification determination, if its other obligations permit, 
within 60 calendar days following receipt of the compliance test 
results. NOAA shall make a certification determination based upon the 
following criteria:
    (1) The results of the compliance tests;
    (2) The potential for the hydrographic product to impair public 
safety;
    (3) Successful completion of any administrative requirements, 
including the payment of required fees, as may be specified by NOAA;
    (4) The potential for certification to cause embarrassment to the 
Agency or the Department;
    (5) Other relevant criteria as they become apparent.
    (b) Hydrographic products receiving a certification determination in 
the affirmative shall be designated as ``certified'' by NOAA. NOAA shall 
provide a written document to the sponsor indicating such, and shall 
announce its determination in the Federal Register or by other 
appropriate means. Certification shall mean that the hydrographic 
product has been found to be in compliance with the NOAA-adopted 
standard for that hydrographic product or class. Certification conveys 
no express or implied warranty as to the merchantability or fitness for 
a particular purpose; conveys no express or implied liability on the 
part of the Government of the United States for the hydrographic 
products; and conveys no automatic, direct or indirect NOAA endorsement 
of any product or service.
    (c) Certification shall be for a term of 3 years unless otherwise 
specified by the Administrator.
    (d) A certification may be renewed, at the request of sponsor and 
the option of NOAA, for a period of 2 years. Sponsors may request the 
renewal of a certification by writing to the Quality Assurance Program 
address at least 120 calendar days before the expiration of an existing 
certification. The request shall include:
    (1) Identifying and contact information for the sponsor;
    (2) Identifying information for the relevant hydrographic product(s) 
and the standard(s) under which they were certified;
    (3) Evidence sufficient to assure NOAA that the hydrographic product 
still meets the standard under which it was certified; and
    (4) Other information as may be requested by NOAA.
    (e) NOAA shall decide within 60 calendar days, if its other 
obligations permit, whether to renew a certification. NOAA's decision 
shall be based on whether the hydrographic product continues to meet the 
applicable standard, and other relevant criteria as they become 
apparent.
    (f) The sponsor shall have an opportunity to request reconsideration 
of NOAA's decision. Said request shall be submitted in writing, to the 
Quality Assurance Program address, postmarked within 30 days of NOAA's 
announcement of its decision, and shall contain written material 
supporting the requestor's position. NOAA shall have, if its other 
obligations permit, 30 calendar days from the receipt of a request for 
reconsideration to either deny the request, or to reconsider and 
announce its decision.
    (g) NOAA's decision, either the original decision if unappealed 
within 30 days, or the decision after the request for reconsideration, 
shall be considered final.



Sec. 996.23  Audit and decertification of hydrographic products.

    (a) NOAA may audit hydrographic products it has certified. NOAA may

[[Page 447]]

conduct audits without advance notification. However, visits to 
companies' facilities will be scheduled. Audits may include, but are not 
limited to:
    (1) The producing companies as it may affect the certified product;
    (2) Certified products;
    (3) Processes used in making, distributing, and marketing certified 
products;
    (4) Use of the NOAA emblem;
    (5) Examination of manufacturers' public claims about certified 
hydrographic products;
    (6) Other relevant criteria as they become apparent.
    (b) NOAA may decertify a hydrographic product based on the findings 
of an audit. In general, a hydrographic product may be decertified if:
    (1) The results of an audit indicate that the product no longer 
meets the standards under which it was certified;
    (2) The product has been substantively changed from the product that 
was tested and certified;
    (3) Implied or actual claims about the product, and/or other data or 
products linked to the product, are judged by NOAA to be untrue or 
misleading;
    (4) The NOAA emblem was improperly or inappropriately displayed;
    (5) Other relevant reasons as they become apparent.
    (c) A producing company may decline to reveal information during an 
audit that it declares to be proprietary or for other reasons. In this 
eventuality, NOAA reserves the right to decertify based on lack of 
information should it deem that action appropriate.
    (d) The entity producing the certified hydrographic product shall be 
notified in writing of NOAA's intent to decertify that product. Said 
entity shall have 30 days to request reconsideration of that intended 
action in writing to the Quality Assurance Program address. Said request 
shall contain the identification of the hydrographic product, the 
requestor, and sufficient information for NOAA to make a determination 
on the request for reconsideration. Alternatively, the entity may 
correct the deficiencies cited by NOAA within 30 days, notify NOAA in 
writing at the Quality Assurance Program address of the corrective 
action taken, and provide sufficient evidence for NOAA to judge the 
correctness and effectiveness of the corrective action taken.
    (e) If a request for reconsideration is submitted, or if the 
producing entity asserts that the deficiencies have been corrected, NOAA 
shall have 60 calendar days, if its other obligations permit, to 
consider the request for reconsideration or the corrective action, at 
which time NOAA shall issue its decertification decision. The decision 
and NOAA's reason for its action shall be made public in the Federal 
Register or by other appropriate means, and the producing entity shall 
be notified in writing.
    (f) NOAA's decertification, if unappealed or uncorrected within 30 
days, shall be considered final. NOAA shall notify the producing entity 
of this action in writing, and announce the decertification in the 
Federal Register or by other appropriate means.
    (g) Upon decertification, manufacturers shall discontinue all claims 
of certification, and shall discontinue use of the NOAA emblem.



            Subpart D_Other Quality Assurance Program Matters



Sec. 996.30  Use of the NOAA emblem.

    (a) Use of the NOAA emblem on certified hydrographic products 
requires separate written permission. Use of the NOAA emblem must 
satisfy an interest of the Agency, and must not result in embarrassment 
to the Agency or the Department. If the NOAA emblem is used on products 
that include other data or products, clear indication shall be made as 
to what is NOAA certified, and what is not NOAA certified. The inclusion 
of other data or products will not constitute any endorsement of, or 
favoritism toward, the other data or products by NOAA. Requests for use 
of the NOAA emblem shall be submitted in writing to the Quality 
Assurance Program address, and shall include:
    (1) Name and description of the hydrographic product(s) on which the 
emblem will be displayed.
    (2) Name and contact information for the entity requesting use of 
the NOAA emblem.

[[Page 448]]

    (3) Exact samples of all uses intended for the NOAA emblem including 
text claims with, within, or associated with the hydrographic product, 
its packaging, and advertising that a reasonable person might associate 
with the NOAA emblem.
    (4) Proof of NOAA certification.
    (5) Other relevant information as may later be specified.
    (b) [Reserved]



Sec. 996.31  Termination of the Quality Assurance Program.

    (a) NOAA reserves the right to terminate the Quality Assurance 
Program for a particular hydrographic product or class at any time 
before certification is awarded if it is deemed to be in the public 
interest to do so. NOAA shall give written notification to the sponsor 
and other interested parties should it decide to exercise this option, 
and shall state the reasons for its action. Reasons for termination may 
include, but are not limited to:
    (1) The inability of the standards-drafting group to reach a 
consensus on the content of the standard;
    (2) Valid objections to the existence of NOAA-certification of a 
particular hydrographic product or class;
    (3) A negative impact on public safety should the hydrographic 
product receive certification;
    (4) Other relevant reasons as they become apparent.
    (b) The sponsor or other interested parties shall have 30 days to 
request a reconsideration of the termination action. Said request shall 
be in writing to the Quality Assurance Program address, and shall 
include written material supporting the appeal. NOAA shall have, if its 
other obligations permit, 60 calendar days from the receipt of a request 
for reconsideration to either deny the request, or to reconsider and 
announce its decision.
    (c) NOAA's decision, either the original decision if unappealed 
within 30 days, or the decision after the request for reconsideration, 
shall be considered final.



Sec. 996.32  Appeals.

    (a) Any entity may appeal a final decision made by the Agency under 
this Quality Assurance Program. Said appeal shall be submitted in 
writing to the Quality Assurance Program address, and shall contain at 
least:
    (1) Identification and contact information of the appealing entity;
    (2) A statement that this is an appeal to a final decision of the 
Quality Assurance Program;
    (3) A description of what decision is being appealed;
    (4) A thorough but concise argument as to why the requestor believes 
the Quality Assurance Program decision being appealed should be set 
aside.
    (5) Other information as may later be determined to be relevant.
    (b) Appeals shall be arbitrated by the Assistant Administrator for 
Ocean Services and Coastal Zone Management, NOAA, using procedures to be 
established at the time of the appeal, and which shall be appropriate to 
the nature and circumstances of the appeal. The determination from this 
arbitration shall be final for purposes of judicial review under the 
Administrative Procedure Act and other statutes.



Sec. 996.33  Acceptance of program by non-Federal entities.

    By their voluntary entrance or participation in this Quality 
Assurance Program or its activities, all parties acknowledge and accept 
the procedures established by this program, including the finality of 
decisions. All parties acknowledge and accept that information submitted 
to NOAA under this Program shall be deemed to be in the public domain, 
and no representation is made as to the protection of confidential, 
proprietary or otherwise restricted information.

[[Page 449]]



      CHAPTER XI--TECHNOLOGY ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
1150            Marking of toy, look-alike and imitation 
                    firearms................................         451
1160            Productivity, technology and innovation.....         452
1170            Metric conversion policy for Federal 
                    agencies................................         456
1180            Transfer by Federal agencies of scientific, 
                    technical and engineering information to 
                    the National Technical Information 
                    Service.................................         458

[[Page 451]]



PART 1150_MARKING OF TOY, LOOK-ALIKE AND IMITATION FIREARMS--Table of Contents




Sec.
1150.1 Applicability.
1150.2 Prohibitions.
1150.3 Approved markings.
1150.4 Waiver.
1150.5 Preemption.

    Authority: Section 4 of the Federal Energy Management Improvement 
Act of 1988, 15 U.S.C. 5001.

    Source: 54 FR 19358, May 5, 1989, unless otherwise noted.



Sec. 1150.1  Applicability.

    This part applies to toy, look-alike, and imitation firearms 
(``devices'') having the appearance, shape, and/or configuration of a 
firearm and produced or manufactured and entered into commerce on or 
after May 5, 1989, including devices modelled on real firearms 
manufactured, designed, and produced since 1898. This part does not 
apply to:
    (a) Non-firing collector replica antique firearms, which look 
authentic and may be a scale model but are not intended as toys modelled 
on real firearms designed, manufactured, and produced prior to 1898;
    (b) Traditional B-B, paint-ball, or pellet-firing air guns that 
expel a projectile through the force of compressed air, compressed gas 
or mechanical spring action, or any combination thereof, as described in 
American Society for Testing and Materials standard F 589-85, Standard 
Consumer Safety Specification for Non-Powder Guns, June 28, 1985. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the American Society for Testing and Materials, 
1916 Race Street, Philadelphia, PA 19103. Copies may be inspected at the 
office of the Associate Director for Industry and Standards, National 
Institute for Standards and Technology, Gaithersburg, Maryland, or at 
the National Archives and Records Administration (NARA). For information 
on the availability of this material at NARA, call 202-741-6030, or go 
to: http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html; and
    (c) Decorative, ornamental, and miniature objects having the 
appearance, shape and/or configuration of a firearm, including those 
intended to be displayed on a desk or worn on bracelets, necklaces, key 
chains, and so on, provided that the objects measure no more than 
thirty-eight (38) millimeters in height by seventy (70) millimeters in 
length, the length measurement excluding any gun stock length 
measurement.

[57 FR 48453, Oct. 26, 1992, as amended at 69 FR 18803, Apr. 9, 2004]



Sec. 1150.2  Prohibitions.

    No person shall manufacture, enter into commerce, ship, transport, 
or receive any toy, look-alike, or imitation firearm (``device'') 
covered by this part as set forth in Sec. 1150.1 of this part unless 
such device contains, or has affixed to it, one of the markings set 
forth in Sec. 1150.3 of this part, or unless this prohibition has been 
waived by Sec. 1150.4 of this part.

[54 FR 19358, May 5, 1989]



Sec. 1150.3  Approved markings.

    The following markings are approved by the Secretary of Commerce:
    (a) A blaze orange (Federal Standard 595a, February, 1987, color 
number 12199, issued by the General Services Administration) or orange 
color brighter than that specified by the federal standard color number, 
solid plug permanently affixed to the muzzle end of the barrel as an 
integral part of the entire device and recessed no more than 6 
millimeters from the muzzle end of the barrel. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with U.S.C. 552(a) and 1 CFR part 51. Copies of Federal 
Standard 595a may be obtained from the Office of Engineering and 
Technical Management, Chemical Technology Division, Paints Branch, 
General Services Administration, Washington, DC 20406. Copies may be 
inspected at the office of the Associate Director for Industry and 
Standards, National Institute for Standards and Technology, 
Gaithersburg, Maryland, or at the National Archives and

[[Page 452]]

Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    (b) A blaze orange (Federal Standard 595a, February, 1987, color 
number 12199, issued by the General Services Administration) or orange 
color brighter than that specified by the Federal Standard color number, 
marking permanently affixed to the exterior surface of the barrel, 
covering the circumference of the barrel from the muzzle end for a depth 
of at least 6 millimeters. This incorporation by reference was approved 
by the Director for the Federal Register in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. Copies of Federal Standard 595a may be 
obtained from the Office of Engineering and Technical Management, 
Chemical Technology Division, Paints Branch, General Services 
Administration, Washington, DC 20406. Copies may be inspected at the 
office of the Associate Director for Industry and Standards, National 
Institute for Standards and Technology, Gaithersburg, Maryland, or at 
the National Archives and Records Administration (NARA). For information 
on the availability of this material at NARA, call 202-741-6030, or go 
to: http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (c) Construction of the device entirely of transparent or 
translucent materials which permits unmistakable observation of the 
device's complete contents.
    (d) Coloration of the entire exterior surface of the device in 
white, bright red, bright orange, bright yellow, bright green, bright 
blue, bright pink, or bright purple, either singly or as the predominant 
color in combination with other colors in any pattern.

[54 FR 19358, May 5, 1989, as amended at 57 FR 48454, Oct. 26, 1992; 69 
FR 18803, Apr. 9, 2004]



Sec. 1150.4  Waiver.

    The prohibitions set forth in Sec. 1150.2 of this part may be 
waived for any toy, look-alike or imitation firearm that will be used 
only in the theatrical, movie or television industries. A request for 
such a waiver should be made, in writing, to the Chief Counsel for 
Technology, United States Department of Commerce, Washington, DC 20230. 
The request must include a sworn affidavit which states that the toy, 
look-alike, or imitation firearm will be used only in the theatrical, 
movie or television industry. A sample of the item must be included with 
the request.

[57 FR 48454, Oct. 26, 1992]



Sec. 1150.5  Preemption.

    In accordance with section 4(g) of the Federal Energy Management 
Improvement Act of 1988 (15 U.S.C. 5001(g)), the provisions of section 
4(a) of that Act and the provisions of this part supersede any provision 
of State or local laws or ordinances which provides for markings or 
identification inconsistent with the provisions of section 4 of that Act 
or the provisions of this part.

[54 FR 19358, May 5, 1989]



PART 1160_PRODUCTIVITY, TECHNOLOGY AND INNOVATION--Table of Contents




Subpart A_Promotion of Private Sector Industrial Technology Partnerships

Sec.
1160.1 Purpose.
1160.2 Definitions.
1160.3 Assistance to industrial technology partnerships.
1160.4 Antitrust considerations.
1160.5 Coordination/cooperation with other Federal agencies.
1160.6 Proprietary data.
1160.7 Amendment of procedures.

               Subpart B_Strategic Partnership Initiative

1160.20 Purpose.
1160.21 Definitions.
1160.22 Goal of the Strategic Partnership initiative.
1160.23 Assistance in establishing Strategic Partnerships.
1160.24 Antitrust considerations.
1160.25 Coordination/cooperation with other Federal agencies.
1160.26 Proprietary data.
1160.27 Amendment of procedures.

    Authority: 15 U.S.C. 1512 and 3710, 15 U.S.C. 205a, DOO 10-17 and 
DOO 10-18.

[[Page 453]]



Subpart A_Promotion of Private Sector Industrial Technology Partnerships

    Source: 48 FR 52289, Nov. 17, 1983, unless otherwise noted. 
Redesignated at 56 FR 41282, Aug. 20, 1991.



Sec. 1160.1  Purpose.

    The purpose of this part is to establish procedures under which the 
Department of Commerce will provide assistance for the establishment by 
the private sector of Industrial Technology Partnerships (as defined in 
Sec. 1160.2).



Sec. 1160.2  Definitions.

    (a) Industrial Technology Partnerships (ITPs). As used in this 
subpart, ITPs include research and development limited partnerships 
(RDLPs) and cooperative R&D arrangements of companies, non-profit 
organizations, and Federal agencies or some combination thereof.
    (b) Research and Development Limited Partnership (RDLP). In general, 
the RDLP is a type of business organization to raise venture capital 
from the private sector to fund specified research and development 
projects. Additional characteristics are as follows:
    (1) Establishment in general. An RDLP can be established by an 
existing firm, or by an independent entrepreneur, to finance specified 
research and development projects. It can effectively finance both small 
and large scale projects. It is established by a partnership agreement 
tailored to the particular projects to be funded.
    (2) Classes of partners. In general, a partnership agreement 
establishing an RDLP will provide for two classes of partners, as 
follows:
    (i) The General Partner or partners provide the management for the 
partnership, obtain funding, make arrangements for the conduct of 
research, and ultimately either manufacture any new products resulting 
from the research and development or license out the resulting 
technology; and
    (ii) The Limited Partners invest in the partnership, bear most or 
all of the financial risk, share in the financial success from proceeds 
of manufacture, royalties or other paybacks, and receive tax benefits, 
but exercise no active management role in the partnership.



Sec. 1160.3  Assistance to industrial technology partnerships.

    (a) General. The types of assistance available to Industrial 
Technology Partnerships (ITPs) are described in the following 
subsections. Additional assistance which is specific to Research and 
Development Limited Partnerships (RDLPs) is described in paragraph (f) 
of this section.
    (b) Workshops. Upon request, the Secretary may hold workshops with 
representatives from the private sector and government in order to 
further the objectives of this part. Such workshops are designed to 
explore interest in specific potential ITPs. They will be structured to 
avoid antitrust problems.
    (c) Clearinghouse. The Department's experience with Industrial 
Technology Partnerships, notably RDLPs, indicates that numerous 
potential participants in RDLPs, especially General Partners, need 
access to specialized information. Accordingly, the Department will 
develop and maintain a list of specific public and private sector 
specialists in such categories as venture capitalists, tax accountants, 
legal specialists, university and non-profit laboratories, brokers, 
technical and economic feasibility analysts, and proprietary information 
specialists (especially in patents). Persons wishing to be included in 
the list or wishing to received a copy of the list should write to the 
following address:

Industrial Technology Partnerships Program, Herbert C. Hoover Building, 
Room 4816, Box B, U.S. Department of Commerce, Washington, DC 20230.


Inclusion on the list is voluntary, and is free of charge to all 
parties, as is receipt of the list. The Department of Commerce, however, 
makes no representation about the qualifications, experience or ability 
of any individual identified in these lists.
    (d) Small business. The Department is aware of the significant 
contributions of technology-related small business to the economic 
health of the Nation. Accordingly, the Department shall identify sources 
of information for them on

[[Page 454]]

innovation services and resources including, for example: Technologies 
available for licensing; markets for new technology-based products and 
services; financing; techniques and incentives for innovation; 
organizations providing feasibility testing and demonstration services; 
and information on production and distribution methods. This assistance 
may be supplemented by the list of referrals described in paragraph (c) 
of this section.
    (e) Patent licensing. To assist industrial technology partnerships, 
the Patent Licensing Program of the National Technical Information 
Service (NTIS) will provide ITPs with current announcements of the 
availability of licenses to use government-owned technology (on an 
exclusive or non-exclusive basis). Write to:

David T. Mowry, Director, Center for the Utilization of Federal 
Technology, NTIS, 5285 Port Royal Road, Springfield, Virginia 22101.

    (f) Additional assistance for Research and Development Partnerships 
(RDLPs). The Department has no funds available for direct financial 
support for the establishment or operation of any ITP. Anyone wishing to 
apply for any of the services listed below should direct their inquiry 
to:

Industrial Technology Partnerships Program, Herbert C. Hoover Building, 
Room 4816, Box B, U.S. Department of Commerce, Washington, DC 20230.

    (1) Introductory training. The Department will accept a limited 
number of businesspersons, academicians and other persons for purposes 
of providing introductory training in the concept of RDLPs. Such 
training will be tailored to the needs of the trainee, wherever 
possible. Travel and other expenses of the trainees will be borne by the 
trainees.
    (2) Information on RDLPs. The Department will make available 
information on research and development limited partnerships. A fee may 
be charged for the printing costs of Departmental publications.
    (3) Data bases. The Department will provide after May, 1984 as 
available, technical and marketing data on specific technologies, which 
may be useful to potential general partners in drafting business plans.



Sec. 1160.4  Antitrust considerations.

    The Department of Commerce will offer no opinion on the antitrust 
merits of the formation of any industrial technology partnership. The 
Secretary, upon request, may seek the Attorney General's opinion as to 
whether proposed joint research activities would violate any of the 
antitrust laws.



Sec. 1160.5  Coordination/cooperation with other Federal agencies.

    Where relevant, the Department may seek the cooperation of other 
Federal agencies and laboratories that may be of assistance to 
industrial technology partnerships.



Sec. 1160.6  Proprietary data.

    All persons making a request under this part are cautioned that data 
submitted to the Department may be available for dissemination under the 
Freedom of Information Act. The Department would, however, withhold any 
information it deemed proprietary on the basis of the provision of 5 
U.S.C. 552(b)(4). The Department will consult with the submitter of any 
data requested under the Freedom of Information Act prior to the release 
of such information, if the data is clearly marked ``Proprietary'' or 
``Company-Confidential.''



Sec. 1160.7  Amendment of procedures.

    The right to amend or withdraw these procedures is expressly 
reserved.



               Subpart B_Strategic Partnership Initiative

    Source: 56 FR 41282, Aug. 20, 1991, unless otherwise noted.



Sec. 1160.20  Purpose.

    The purpose of this notice is to notify interested parties of 
procedures under which the Department of Commerce provides a forum for 
discussion by private sector interests on the feasibility of 
establishing strategic partnerships, especially for the development and 
exploitation of large scale enabling technologies.

[[Page 455]]



Sec. 1160.21  Definitions.

    (a) Strategic Partnerships. Strategic Partnerships are multi-
industry teams of firms and others formed to create and commercialize 
proprietary technologies, especially large scale enabling technologies, 
using a systems management approach. The design of and participants in a 
specific partnership will be solely at the discretion of the private 
sector. However, since these partnerships will be most effective when 
comprised of firms which can share proprietary information, it will 
probably be most useful if there are no competitors in the venture.
    (b) Large Scale Enabling Technologies. Large Scale Enabling 
Technologies are technologies that are too complex and costly for a 
single firm to create and that have more potential applications than a 
single firm or a single industry can readily exploit. In some cases 
investments in these technologies may only be recouped if the results 
are used in several applications, often in different industries. Since 
speed of recoupment is often critical to continued competitiveness, it 
is often essential that multiple major applications are introduced 
simultaneously.

[56 FR 41282, Aug. 20, 1991; 56 FR 51257, Oct. 10, 1991]



Sec. 1160.22  Goal of the Strategic Partnership initiative.

    (a) This new initiative is designed to provide the private sector 
with the opportunity to discuss the possible benefits of forming 
Strategic Partnerships among firms representing the entire food chain of 
specific technologies. By focusing on a specific technology, these 
partnerships will have the capability to integrate the innovation 
activities for a broad range of applications made possible by that 
technology. The integrative function differentiates this initiative from 
earlier Department of Commerce initiatives which deal with only one 
stage of the commercial process. Strategic Partnerships differ from 
traditional cooperative R&D consortia which are composed primarily of 
competitors who cooperate only in the early precompetitive stage of 
innovation. In contrast, Strategic Partnerships are made up generally of 
noncompeting companies (see Sec. 1160.21(a)) and are capable of 
accomplishing the entire process of innovation working on a proprietary 
basis.
    (b) The immediate goal of this initiative is to hold workshops upon 
a request from the private sector in key technologies at which the 
stakeholder industries in the food chain for each technology will have a 
chance to consider potential applications of the technology, current 
status of the technology, what R&D needs to be performed, the 
competitive position of U.S. industry in that technology, including the 
status of foreign competition, and the ways in which U.S. stakeholders 
might organize themselves to maximize commercial benefits. The ultimate 
outcome of such workshops will be entirely at the discretion of the 
private sector and may include the formation of one or more Strategic 
Partnerships, other types of multifirm ventures, or no action at all. 
The Department will not undertake to form specific partnerships. This 
will be solely at the discretion of the participants.

[56 FR 41282, Aug. 20, 1991; 56 FR 51257, Oct. 10, 1991]



Sec. 1160.23  Assistance in establishing Strategic Partnerships.

    (a) General. The Department has no funds available for direct 
financial support for the establishment or operation of a Strategic 
Partnership.
    (b) Information Briefings. The Department plans to hold an initial 
briefing to acquaint the private sector with the dynamics of the systems 
approach used in Strategic Partnerships, including how they may offer a 
means for firms to collaborate primarily in large scale enabling 
technologies. Additional information and technical assistance may be 
obtained from the Director, Office of Technology Policy Analyses and 
Studies, Technology Administration, room 4835, Herbert C. Hoover 
Building, U.S. Department of Commerce, Washington, DC 20230 (202) 377-
1518.
    (c) Workshops. Upon request the Department may hold workshops to 
explore interest in Strategic Partnerships for a specific technology. 
Working with the requester, Commerce will determine which industries 
have a stake in the technology, invite the

[[Page 456]]

firms from those industries, and design the meeting agenda and 
background materials. Anyone wishing to apply for such a workshop should 
direct their inquiry to the Assistant Secretary for Technology Policy, 
Technology Administration, room 4818, Herbert C. Hoover Building, U.S. 
Department of Commerce, Washington, DC 20230.
    (d) All workshops will be held on a fee basis at no cost to the 
Department.



Sec. 1160.24  Antitrust considerations.

    (a) The Department of Commerce will offer no opinion on the 
antitrust merits of the formation of any proposed Strategic Partnership. 
The Department may seek an opinion from the Antitrust Division of the 
Department of Justice as to whether a proposed Strategic Partnership 
would raise antitrust issues. Furthermore, the role played by the 
Department of Commerce confers no special immunity to any given 
Strategic Partnership.
    (b) Strategic Partnerships may be formed without any consultation 
with or involvement by the Department of Commerce; the purpose of the 
Strategic Partnership Initiative is to make the private sector aware of 
this vehicle and, where requested, conduct workshops to discuss the 
formation of such partnerships in general. Commerce will not select the 
technologies, the number of partnerships, or the specific firms in a 
given partnership.



Sec. 1160.25  Coordination/cooperation with other Federal agencies.

    Where relevant, the Department may seek the cooperation of other 
Federal agencies and laboratories that may be of assistance to Strategic 
Partnerships.



Sec. 1160.26  Proprietary data.

    All persons making a request under this part are cautioned that data 
submitted to the Department may be available for dissemination under the 
Freedom of Information Act. The Department, however, would withhold any 
information it deemed proprietary (confidential commercial or financial) 
on the basis of 5 U.S.C. 552(b)(4). The Department will consult with the 
submitter of any data requested under the Act, prior to release of such 
information, if the data is clearly marked ``Company Confidential.'' 
(See 15 CFR 4.7).



Sec. 1160.27  Amendment of procedures.

    The right to amend or withdraw these procedures is expressly 
reserved.



PART 1170_METRIC CONVERSION POLICY FOR FEDERAL AGENCIES--Table of Contents




Sec.
1170.1 Purpose.
1170.2 Definition.
1170.3 General policy.
1170.4 Guidelines.
1170.5 Recommendations for agency organization.
1170.6 Reporting requirement.
1170.7-1170.199 [Reserved]

    Authority: 15 U.S.C. 1512 and 3710, 15 U.S.C. 205a, DOO 10-17 and 
DOO 10-18.

    Source: 56 FR 160, Jan. 2, 1991, unless otherwise noted. 
Redesignated at 56 FR 41283, Aug. 20, 1991.



Sec. 1170.1  Purpose.

    To provide policy direction for Federal agencies in their transition 
to use of the metric system of measurement.



Sec. 1170.2  Definition.

    Metric system means the International System of Units (SI) 
established by the General Conference of Weights and Measures in 1960, 
as interpreted or modified from time to time for the United States by 
the Secretary of Commerce under the authority of the Metric Conversion 
Act of 1975 and the Metric Education Act of 1978.
    Other business-related activities means measurement sensitive 
commerical or business directed transactions or programs, i.e., standard 
or specification development, publications, or agency statements of 
general applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the procedure or 
practice requirements of an agency. ``Measurement sensitive'' means the 
choice of measurement unit is a critical component of the activity, 
i.e., an agency rule/regulation to collect samples or measure something 
at specific distances or to specific depths, specifications requiring 
intake or discharge of a product to certain volumes or flow

[[Page 457]]

rates, guidelines for clearances between objects for safety, security or 
environmental purposes, etc.



Sec. 1170.3  General policy.

    The Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, 
section 5164) amended the Metric Conversion Act of 1975 to, among other 
things, require that each Federal agency, by a date certain and to the 
extent economically feasible by the end of the fiscal year 1992, use the 
metric system of measurement in its procurements, grants, and other 
business-related activities, except to the extent that such use is 
impractical or is likely to cause significant inefficiencies or loss of 
markets to United States firms, such as when foreign competitors are 
producting competing products in non-metric units.
    (a) The Secretary of Commerce will appoint a Commerce Department 
Under Secretary to assist in coordinating the efforts of Federal 
agencies in meeting their obligations under the Metric Conversion Act, 
as amended.
    (b) Federal agencies shall coordinate and plan for the use of the 
metric system in their procurements, grants and other business-related 
activities consistent with the requirements of the Metric Conversion 
Act, as amended. Federal agencies shall encourage and support an 
environment which will facilitate the transition process. When taking 
initiatives, they shall give due consideration to known effects of their 
actions on State and local governments and the private sector, paying 
particular attention to effects on small business.
    (c) Each Federal agency shall be responsible for developing plans, 
establishing necessary organizational structure, and allocating 
appropriate resources to carry out this policy.



Sec. 1170.4  Guidelines.

    Each agency shall:
    (a) Establish plans and dates for use of the metric system in 
procurements, grants and other business-related activities;
    (b) Coordinate metric transition plans with other Federal agencies, 
State and local governments and the private sector;
    (c) Require maximum practical use of metric in areas where Federal 
procurement and activity represents a predominant influence on industry 
standards (e.g.: weapon systems or space exploration). Strongly 
encourage metrication in industry standards where Federal procurement 
and activity is not the predominant influence, consistent with the legal 
status of the metric system as the preferred system of weights and 
measures for United States trade and commerce;
    (d) Assist in resolving metric-related problems brought to the 
attention of the agency that are associated with agency actions, 
activities or programs undertaken in compliance with these guidelines or 
other laws or regulations;
    (e) Identify measurement-sensitive agency policies and procedures 
and ensure that regulations, standards, specifications, procurement 
policies and appropriate legislative proposals are updated to remove 
barriers to transition to the metric system;
    (f) Consider cost effects of metric use in setting agency policies, 
programs and actions and determine criteria for the assessment of their 
economic feasibility. Such criteria should appropriately weigh both 
agency costs and national economic benefits related to changing to the 
use of metric;
    (g) Provide for full public involvement and timely information about 
significant metrication policies, programs and actions;
    (h) Seek out ways to increase understanding of the metric system of 
measurement through educational information and guidance and in agency 
publications;
    (i) Consider, particularly, the effects of agency metric policies 
and practices on small business; and
    (j) Consistent with the Federal Acquisition Regulation System (48 
CFR), accept, without prejudice, products and services dimensioned in 
metric when they are offered at competitive prices and meet the needs of 
the Government, and ensure that acquisition planning considers metric 
requirements.



Sec. 1170.5  Recommendations for agency organization.

    Each agency shall:

[[Page 458]]

    (a) Participate, as appropriate, in the Interagency Council on 
Metric Policy (ICMP), and/or its working committee, the Metrication 
Operating Committee (MOC), in coordinating and providing policy guidance 
for the U.S. Government's transtion to use of the metric system.
    (b) Designate a senior policy official to be responsible for agency 
metric policy and to represent the agency on the ICMP.
    (c) Designate an appropriate official to represent the agency on the 
Metrication Operating Committee (MOC), an interagency committee 
reporting to the ICMP.
    (d) Maintain liaison with private sector groups (such as the 
American National Metric Council and the U.S Metric Association) that 
are involved in planning for or coordinating National transition to the 
metric system.
    (e) Provide for internal guidelines, training and documentation to 
assure employee awareness and understanding of agency metric policies 
and programs.



Sec. 1170.6  Reporting requirement.

    Each Federal agency shall, as part of its annual budget submission 
each fiscal year, report to the Congress on the metric implementation 
actions it has taken during the previous fiscal year. The report will 
include the agency's implementation plans, with a current timetable for 
the agency's transition to the metric system, as well as actions planned 
for the budget year involved to implement fully the metric system, in 
accordance with this policy. Reporting shall cease for an agency in the 
fiscal year after it has fully implemented metric usage, as prescribed 
by the Metric Conversion Act (15 U.S.C. 205b(2).)



Sec. Sec. 1170.7-1170.199  [Reserved]



PART 1180_TRANSFER BY FEDERAL AGENCIES OF SCIENTIFIC, TECHNICAL AND 

ENGINEERING INFORMATION TO THE NATIONAL TECHNICAL INFORMATION SERVICE--Table 

of Contents




Sec.
1180.1 Purpose and scope.
1180.2 Definitions.
1180.3 General rule.
1180.4 Preparing a product for transfer.
1180.5 Timeliness.
1180.6 Production of additional copies.
1180.7 Exceptions.
1180.8 Appointment of Agency Liaison Officers.
1180.9 Affiliates.
1180.10 NTIS permanent repository.
1180.11 Relation to other laws and procedures.

Appendix to Part 1180--Sample Funding Agreement Clause for Direct 
          Submission of Products

    Authority: Sec. 108 of Pub. L. 102-245, 106 Stat. 7 (15 U.S.C. 
3704b-2).

    Source: 59 FR 10, Jan. 3, 1994, unless otherwise noted.



Sec. 1180.1  Purpose and scope.

    (a) The purpose of this regulation is to facilitate public access to 
the vast amount of scientific, technical and engineering information 
(STEI) that is produced by and for federal agencies.
    (b) This regulation provides a variety of methods for federal 
agencies to adopt to ensure the timely transfer to the National 
Technical Information Service (NTIS) of all unclassified STEI that is 
available for public dissemination and that results from federal 
funding. It is issued pursuant to the authority contained in Section 108 
of the American Technology Preeminence Act (Pub. L. 102-245).



Sec. 1180.2  Definitions.

    Agency means a federal agency as that term is defined in Section 4 
of the Stevenson-Wydler Technology Innovation Act of 1980, as amended 
(15 U.S.C. 3703(8));
    Director means the Director of the National Technical Information 
Service.
    Federally funded refers to STEI which results from federal research 
and development activities funded in whole or in part with federal 
funds, whether performed by the agency itself or by contractors, 
grantees, cooperative research partners, joint venture partners, or 
under any similar arrangement involving federal funds.
    Final when used to describe an STEI product means a product that the 
originating agency or contractor/grantee

[[Page 459]]

thereof intends for public dissemination and may exclude interim status 
reports routinely furnished to agencies by contractors and grantees for 
monitoring and other internal purposes and which are not intended for 
public dissemination.
    Product includes, but is not limited to, any report, manual, 
standard, specification, book, paper, chart, map, graph, data 
collection, data file, data compilation, software, audio/video 
production, technology application assessment generated pursuant to 
Section 11(c) of the Stevenson-Wydler Technology Innovation Act of 1980 
(15 U.S.C. 3710(c)), as well as materials pertaining to training 
technology and other federally owned or originated technologies, and 
applies to items produced in-house or outside the agency through the 
Government Printing Office, its contractors, Federal Prison Industries 
or any other producer, provided that such material is intended by the 
agency for public dissemination.
    Scientific, technical and engineering information means--
    (1) Basic and applied research that results from the efforts of 
scientists and engineers in any medium (including new theory and 
information obtained from experimentation, observation, instrumentation 
or computation in the form of text, numeric data or images), and
    (2) Information that bears on business and industry generally, such 
as economic information, market information and related information, if 
the agency determines such information would be of value to consumers of 
the information described in paragraph (1) of this definition.
    Summary means information relating to an ongoing research project 
likely to result in a final product.



Sec. 1180.3  General rule.

    Unless an exception applies under section 1180.7, each federal 
agency shall, within the time period specified in this regulation, 
transfer to NTIS--
    (a) At least one copy of every final STEI product resulting from the 
agency's federally funded research and development activities, and
    (b) A summary of the agency's new and on-going research that is 
likely to result in a final STEI product

if such final product or summary is unclassified and is intended by the 
agency for public dissemination.



Sec. 1180.4  Preparing a product for transfer.

    (a) Every final STEI product or summary shall, to the extent 
practicable, be prepared in a format that is consistent with one of the 
various formats found in NTIS guidelines. In addition, every such 
product shall--
    (1) Be accompanied by a report documentation page (SF 298) or its 
electronic equivalent;
    (2) Be in a form capable of high quality reproduction appropriate to 
the medium;
    (3) In the case of software, be accompanied by relevant 
documentation, such as operating manuals, but not including printed 
source code; and
    (4) In the case of a product not printed by the Government Printing 
Office, be accompanied by a statement as to whether the product has been 
made available for depository distribution by the Government Printing 
Office.
    (b) Each federal agency shall transfer or have transferred to NTIS 
those STEI products funded by it that are protected by copyright only if 
there is a license reserved to the Government. In such cases, the agency 
shall inform NTIS of the terms of the license. Suggested language for 
inclusion in agency funding instruments is contained in the Appendix to 
this part.
    (c) If an agency has generated or funded an STEI product which 
should be available for public dissemination but has embedded within it 
any copyrighted material, the designated liaison appointed pursuant to 
Sec. 1180.8 should work with NTIS to determine if it would be 
appropriate to seek a license from the copyright holder in order to make 
the STEI product available.



Sec. 1180.5  Timeliness.

    A single copy of a final product or summary described in Sec. 
1180.3 must be transferred to NTIS within fifteen days of the date it is 
first made available for

[[Page 460]]

public dissemination through any distribution channel, and, whenever 
practical, as soon as it has been approved by the agency for final 
printing or other reproduction, unless the agency and the Director have 
otherwise agreed.



Sec. 1180.6  Production of additional copies.

    Unless the agency determines that such action would not be feasible, 
it shall make appropriate arrangements to enable NTIS, from time to time 
and at NTIS's own discretion and expense, to ride agency printing and 
other reproduction orders.



Sec. 1180.7  Exceptions.

    (a) An agency shall not be required to take any further action to 
submit a copy of a final STEI product to NTIS or one of its affiliates 
if--
    (1) It has designated NTIS to receive a single copy of each STEI 
product once it has been produced, has made the arrangements specified 
in Sec. 1180.6, if appropriate, and has made arrangements to receive 
appropriate certification from a contractor, grantee or other external 
performer of federally funded research that a copy has been sent to NTIS 
or one of its affiliates within the appropriate time period pursuant to 
obligations incurred in the applicable funding agreement (see Appendix 
to this part) or pursuant to such other system as the agency has 
established to ensure timely transfer;
    (2) The agency and the Director have executed an appropriate 
agreement or memorandum of understanding establishing an alternative 
system for compliance; or
    (3) The federally funded STEI is protected by copyright for which no 
license has been reserved to the Government that would allow 
distribution by NTIS;
    (4) The product is an agency generated article that is published in 
a privately produced journal; or
    (5) The agency and the Director, pursuant to paragraph (b) of this 
section, have agreed that the transfer of a product otherwise covered by 
these regulations would not be appropriate.
    (b) An agency and the Director shall be deemed to be in agreement 
within the meaning of paragraph (a)(3) of this section if the Director 
has not objected within 30 days to an agency's written notification of 
its determination that timely transfer of a product or category of 
products would not be appropriate under section 108 of the American 
Technology Preeminence Act. Examples of inappropriate transfers include:
    (1) Transfers that could cause significant harm to an agency's 
existing dissemination program that is operating on a cost recovery 
basis, is operating in compliance with the policies described by OMB 
Circular A-130, and for which special arrangements that would permit 
supplemental distribution by NTIS cannot be negotiated.
    (2) Federally funded STEI that has received, or is likely to 
receive, widespread distribution to most potential users at no charge.



Sec. 1180.8  Appointment of Agency Liaison Officers.

    The head of each agency shall appoint or designate an officer or 
employee to serve as the STEI Liaison. The Liaison shall, to the extent 
authorized by the head of the agency--
    (1) In cooperation with the Director, determine what products or 
summaries produced by the Government shall be transferred to NTIS on an 
ongoing basis;
    (2) Determine which funding agreements are to require contractors 
and grantees to submit products directly to NTIS (for which purpose the 
Appendix to this part contains suggested language that agencies may wish 
to include in applicable funding instruments);
    (3) Appoint additional liaison officers for major units or 
components of an agency if the Director and Liaison officer agree this 
would further the purposes of this regulation; and
    (4) Enter into appropriate agreements with the Director and perform 
any other agency responsibilities described in this regulation.



Sec. 1180.9  Affiliates.

    (a) The Director may recognize any federal agency or component of an 
agency as an affiliate for the purpose of receiving, on behalf of NTIS, 
any STEI

[[Page 461]]

product that is required to be transferred under these regulations if 
NTIS has entered into a memorandum of understanding with the Liaison 
Officer under which the recognized affiliate agrees to the ongoing 
transfer of all STEI products to NTIS in a timely manner and otherwise 
agrees to assume the role of an affiliate.
    (b) A transfer by an agency to an approved affiliate shall be deemed 
a transfer to NTIS within the meaning of these regulations.



Sec. 1180.10  NTIS permanent repository.

    A product, or category of product, will normally be accepted and 
maintained as part of NTIS' permanent repository as a service to 
agencies unless the Director advises the Liaison Officer that it has not 
been so accepted. In general, transferred products will not be accepted 
if they have not been properly prepared as required by Section 1180.4 or 
if NTIS believes that the cost of adding them to the repository will 
significantly exceed anticipated benefits to the public as measured by 
foreseeable demand. A product announced by NTIS as being available from 
NTIS shall be deemed to have been accepted by NTIS as part of its 
permanent repository.



Sec. 1180.11  Relation to other laws and procedures.

    (a) Nothing in these regulations shall be deemed to exempt an agency 
from any of the following requirements:
    (1) Compliance with the Freedom of Information Act (5 U.S.C. 552);
    (2) Compliance with any requirements to protect material that 
contains classified national security information;
    (3) Compliance with requirements to protect personal or other 
information that may not be disclosed without appropriate authority 
under applicable laws and procedures, such as the Privacy Act (5 U.S.C. 
552a);
    (4) Compliance with laws and regulations applicable to federal 
records under Title 44 of the United States Code or regulations issued 
by the National Archives and Records Administration (36 CFR, chapter 
XII);
    (5) Compliance with requirements to distribute publications through 
the Depository Library Program either directly or through NTIS as 
prescribed in subsection (d) of this section; and
    (6) In the case of an agency that is also a component of an agency 
as that term is defined in Sec. 1180.2, compliance with all applicable 
requirements and procedures of the parent agency regarding these 
regulations.
    (b) Nothing in these regulations shall be deemed to require an 
agency to take any of the following actions:
    (1) To use NTIS as an agency's exclusive distribution channel;
    (2) To transfer to NTIS information on matters that are specifically 
authorized under criteria established by an Executive Order to be kept 
secret in the interest of national defense or foreign policy and are in 
fact properly classified pursuant to such Executive Order; or
    (3) to transfer, produce, or disseminate any other information that 
is required by law to be withheld, which the agency is authorized to 
withhold, or which is not intended by the agency for public 
dissemination.
    (c) No contractor, grantee, or employee of a Federal agency shall 
submit a final STEI product directly to NTIS unless authorized to do so 
by the Liaison or the Liaison's designate, which authorization may be 
provided in an approved funding agreement (see Appendix to this part).
    (d) In order to facilitate cooperation between agencies and the 
Depository Libraries--
    (1) NTIS will, as soon as possible, but not later than six months 
from the effective date of these regulations, provide each Depository 
Library at no charge, online access to a current list of all final STEI 
products provided to NTIS under these regulations that have been entered 
into the NTIS system.
    (2) The online system described in subsection (d) of this section 
will include an option that will allow each Depository Library thirty 
days from the date a product is added to the online listing to identify 
a product that it wishes to receive and that has not otherwise been made 
available to it.
    (3) NTIS will accumulate these requests and, within a reasonable 
time,

[[Page 462]]

transfer them to the originating agency for fulfillment of each of the 
identified products.
    (4) In lieu of the procedures described in paragraph (d)(3) of this 
section, NTIS will offer to enter into simple cost recovery arrangements 
with the originating agency to duplicate and ship the identified 
products to the requesting Libraries in the format that the agency 
determines to be most cost effective, including microfiche, paper, 
diskette, or disc.
    (5) NTIS will also establish, as soon as practical, a system of full 
text online access to final STEI products for the Depository Libraries 
at no charge to them. Those final STEI products provided to NTIS in a 
format prescribed by NTIS as suitable for online dissemination under 
this system will be made available to the Libraries at no charge to the 
originating agency, will be maintained online indefinitely, and will be 
available to the Libraries without regard to the thirty day selection 
time limit described in paragraph (d)(2) of this section.
    (6) The services in this paragraph will be provided to Depository 
Libraries on the condition that they agree to ensure that online access 
to the NTIS listing described in paragraph (d)(1) of this section is 
restricted to the Library and its staff and that the full text products 
provided online pursuant to paragraph (d)(5) of this section are 
available only to the community served by that Library.



 Sec. Appendix to Part 1180--Sample Funding Agreement Clause for Direct 
                         Submission of Products

    Agencies electing to allow for their contractors, grantees, etc. to 
submit final products directly to NTIS are encouraged to employ a 
provision similar to the following in the applicable funding agreement:

    ``The (contractor)/(recipient) shall certify to the (contracting) 
(grants) officer--
    ``(1) a copy of all scientific, technical and engineering 
information products created or finalized in whole or in part with the 
funds requested has been or will be transferred to NTIS or a recognized 
affiliate (at the same time that it is provided to the sponsoring 
agency) (when the agency has determined that the product is approved for 
public dissemination) but no later than fifteen days after it is first 
made available for public dissemination through any other distribution 
channel, and
    ``(2) NTIS, or a recognized affiliate, has been advised as to 
whether the product is protected by copyright and, if so, a copy of the 
terms of any licenses reserved to the Government has been sent to NTIS, 
along with a copy of the SF 298.''

[[Page 463]]



               CHAPTER XIII--EAST-WEST FOREIGN TRADE BOARD




  --------------------------------------------------------------------
Part                                                                Page
1300            Reports on exports of technology............         465

[[Page 465]]



PART 1300_REPORTS ON EXPORTS OF TECHNOLOGY--Table of Contents






Sec. 1300.1  Reporting of exports of technology to nonmarket economy countries.

    (a) For purposes of complying with the reporting requirements of 
section 411 of the Trade Act of 1974 (19 U.S.C. 2441) relating to the 
export of technology to a nonmarket economy country, exporters of such 
technology shall be deemed to have complied with the requirements of 
such section by complying with the applicable provisions of the export 
control regulations of the Department of Commerce (15 CFR 368.1 through 
399.2) issued pursuant to the Export Administration Act of 1969, as 
amended, (50 U.S.C. App. 2401 through 2413).
    (b) Nonmarket Economy Country. For purposes of section 411(b) of the 
Trade Act of 1974 (19 U.S.C. 2441) the term ``nonmarket economy 
country'' includes those countries included in Country Groups Q, W, Y, 
and Z of the export control regulations of the Department of Commerce 
(15 CFR Part 370 (Supplement 1)).

(Sec. 411, Pub. L. 93-618, 88 Stat. 2065 (19 U.S.C. 2441); E.O. 11846 
(40 FR 14291))

[40 FR 29534, July 14, 1975]

[[Page 467]]



            CHAPTER XIV--MINORITY BUSINESS DEVELOPMENT AGENCY




  --------------------------------------------------------------------
Part                                                                Page
1400            Determination of group eligibility for MBDA 
                    assistance..............................         469

[[Page 469]]



PART 1400_DETERMINATION OF GROUP ELIGIBILITY FOR MBDA ASSISTANCE--Table of 

Contents




Sec.
1400.1 Purpose and scope.
1400.2 Definitions.
1400.3 Request for determination.
1400.4 Evidence of social or economic disadvantage.
1400.5 Decision.
1400.6 Construction.

    Authority: 15 U.S.C. 1512, E.O. 11625, 3 CFR 616 (1971-75), 36 FR 
19967 (1971); and E.O. 12432, 3 CFR 198 (1983), 48 FR 32551 (1983).

    Source: 49 FR 42698, Oct. 24, 1984, unless otherwise noted.



Sec. 1400.1  Purpose and scope.

    (a) The purpose of this part is to set forth regulations for 
determination of group eligibility for MBDA assistance.
    (b) In order to be eligible to receive assistance from MBDA funded 
organizations, a concern must be a minority business enterprise. A 
minority business enterprise is a business enterprise that is owned or 
controlled by one or more socially or economically disadvantaged 
persons. Executive Order 11625 designates Blacks, Puerto-Ricans, 
Spanish-speaking Americans, American Indians, Eskimos, and Aleuts as 
persons who are socially or economically disadvantaged and thus eligible 
for MBDA assistance. Other groups designated are listed below in 
paragraph (c). The purpose of this regulation is to provide guidance to 
groups not previously designated as eligible for assistance who believe 
they are entitled to formal designation as ``socially or economically 
disadvantage'' under the Executive Order. Upon adequate showing by 
representatives of the group that the group is, as a whole, socially or 
economically disadvantaged the group will be so designated and its 
members will be eligible for MBDA assistance. Designation under 
Executive Order 11625 establishes eligibility status only for MBDA 
funded programs. It will not establish eligibility for any other Federal 
or Federally funded program.
    (c) In addition to those listed in E.O. 11625, members of the 
following groups have been designated as eligible to receive assistance: 
Hasidic Jews, Asian Pacific Americans, and Asian Indians.



Sec. 1400.2  Definitions.

    For the purpose of this part:
    (a) Minority business enterprise means a business which is owned or 
controlled by one or more socially or economically disadvantaged 
persons.
    (b) Socially disadvantaged persons means those persons who have been 
subjected to cultural, racial or ethnic prejudice because of their 
identity as members of a group without regard to their individual 
qualities.
    (c) Economically disadvantaged persons means those persons whose 
ability to compete in the free enterprise system has been impaired due 
to diminished capital and credit opportunities because of their identity 
as members of a group without regard to their individual qualities, as 
compared to others in the same line of business and competitive market 
area.
    (d) Person means a citizen of the United States or an alien lawfully 
admitted for permanent residence.



Sec. 1400.3  Request for determination.

    A group wishing to apply for designation as socially or economically 
disadvantaged under Executive Order 11625 shall submit a written 
application to the Director of the Minority Business Development Agency, 
United States Department of Commerce, Washington, DC, 20230, containing 
the following information:
    (a) Statement of request: a brief statement clearly indicating that 
the applicant seeks formal recognition as socially or economically 
disadvantaged.
    (b) Description of applicants: a detailed sociological, ethnic and/
or racial description, as appropriate, of the group they represent which 
indicates that the group and the traits of its members are sufficiently 
distinctive to warrant a determination of social or economic 
disadvantage.
    (c) Summary of the applicant's submission: a brief summary of their 
Submission.

[[Page 470]]

    (d) Presentation of argument: a narrative description of the 
documentation in support of their claim of social or economic 
disadvantage.


(Applicants should support their claim of social or economic 
disadvantage with the criteria described under 1400.4 ``Evidence of 
Social or Economic Disadvantage'')

    (e) Conclusion: summary of applicant's arguments in support of the 
claims of social or economic disadvantage.

(Approved by the Office of Management and Budget under control number 
0640-0011)



Sec. 1400.4  Evidence of social or economic disadvantage.

    (a) The representatives of the group requesting formal designation 
should establish social or economic disadvantage by a preponderance of 
the evidence. Social or economic disadvantage must be chronic, long 
standing, and substantial, not fleeting or insignificant. In determining 
whether a group has made an adequate showing that it has suffered 
chronic racial or ethnic prejudice or cultural bias for the purposes of 
this regulation, a determination will be made as to whether this group 
has suffered the effects of discriminatory practices over which its 
members have no control. Applicants must demonstrate that such social or 
economic conditions have produced impediments in the business world for 
members of the group which are not common to all business people in the 
same or similar business and market place.
    (b) Evidence which will be considered in determining whether groups 
are socially or economically disadvantaged includes but is not limited 
to:
    (1) Statistical profile outlining the national income level and 
standard of living enjoyed by members of the group in comparison to the 
income level and standard of living enjoyed by individuals not 
considered to be members of socially or economically disadvantaged 
groups.
    (2) Evidence of employment discrimination suffered by members of the 
group in comparison to employment opportunities available to individuals 
not considered to be members of socially or economically disadvantaged 
groups.
    (3) Evidence of educational discrimination in comparison to 
educational opportunities available to individuals not considered to be 
members of socially or economically disadvantaged groups.
    (4) Evidence of denial of access to organizations, groups, or 
professional societies, whether in business or in school, based solely 
upon racial and/or ethnic considerations.
    (5) Kinds of businesses and business opportunities available to 
group members in comparison to the kinds of businesses and business 
opportunities available to individuals not considered to be members of 
socially or economically disadvantaged groups.
    (6) Availability of capital to group members in comparison to the 
availability of capital to individuals not considered to be members of 
socially or economically disadvantaged groups.
    (7) Availability of technical and managerial resources to group 
members in comparison to the technical and managerial resources 
available to individuals not considered to be members of socially or 
economically disadvantaged groups.
    (8) Any other evidence of denial of opportunity or access to those 
things which would enable the individual to participate more 
successfully in the American economic system, available to individuals 
not considered to be members of social or economically disadvantaged 
groups.



Sec. 1400.5  Decision.

    (a) Procedure. After receipt of an application requesting formal 
designation as a socially or economically disadvantaged group, the 
Department of Commerce will publish a notice in the Federal Register 
that formal designation of this group will be considered. This notice 
will request comment from the public on the propriety of such a 
designation. The Department may gather additional information which 
supports or refutes the group's request. Any member of the public, 
including Government representatives, may submit information in written

[[Page 471]]

form. It is the responsibility of the applicant, however, to submit all 
relevant information which it wishes considered in its request for a 
determination of group eligibility.
    (b) Decision. A decision will be made within 180 days of the receipt 
of the request. The decision will be published in the Federal Register. 
Applicants will also be informed in writing.
    (c) Appeal. All questions of eligibility and procedural requirements 
shall be resolved by the Director, MBDA whose decision shall be final. 
An applicant may appeal this decision to the Secretary of Commerce. 
Applicants requesting an appeal should provide any information 
discovered subsequent to the Director's initial decision which would 
further their claim. The right to appeal shall be granted at the 
absolute discretion of the Secretary.



Sec. 1400.6  Construction.

    Nothing in this regulation shall be construed as subjecting any 
functions vested in, or assigned pursuant to law to any Federal 
department or agency or head thereof to the authority of any other 
agency or office exclusively, or as abrogating or restricting such 
functions in any manner.

[[Page 473]]

      Subtitle C--Regulations Relating to Foreign Trade Agreements

[[Page 475]]



      CHAPTER XX--OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE




  --------------------------------------------------------------------
Part                                                                Page
2001            Creation, organization, and functions.......         477
2002            Operation of committees.....................         479
2003            Regulations of Trade Policy Staff Committee.         482
2004            Freedom of information policies and 
                    procedures..............................         484
2005            Safeguarding individual privacy.............         488
2006            Procedures for filing petitions for action 
                    under section 301 of the Trade Act of 
                    1974, as amended........................         493
2007            Regulations of the U.S. Trade Representative 
                    pertaining to eligibility of articles 
                    and countries for the Generalized System 
                    of Preference Program (GSP (15 CFR Part 
                    2007))..................................         500
2008            Regulations to implement E.O. 12065; Office 
                    of the United States Trade 
                    Representative..........................         505
2009            Procedures for representations under section 
                    422 of the Trade Agreements Act of 1979.         509
2011            Allocation of tariff-rate quota on imported 
                    sugars, syrups and molasses.............         510
2012            Implementation of tariff-rate quotas for 
                    beef....................................         516
2013            Developing and least--developing country 
                    designations under the Countervailing 
                    Duty Law................................         517
2014            Implementation of tariff-rate quota for 
                    imports of lamb meat....................         518
2015            Implementation of tariff-rate quotas for 
                    sugar-containing products...............         519
2016            Procedures to petition for withdrawal or 
                    suspension of country eligibility or 
                    duty-free treatment under the Andean 
                    Trade Preference Act (ATPA), as amended.         520
Appendix A to Chapter XX--Administration of the Trade 
  Agreements Program........................................         522

[[Page 477]]



PART 2001_CREATION, ORGANIZATION, AND FUNCTIONS--Table of Contents




Sec.
2001.0 Scope and purpose.
2001.1 Creation and location.
2001.2 Organization.
2001.3 Functions.

    Authority: Pub. L. 93-618, 88 Stat. 1978; 76 Stat. 902, 19 U.S.C. 
1872, as amended; E.O. 11846 of March 27, 1975, 40 FR 14291, March 31, 
1975.

    Source: 40 FR 18419, Apr. 28, 1975, unless otherwise noted.



Sec. 2001.0  Scope and purpose.

    (a) This chapter sets out terms of reference of the Office of the 
United States Trade Representative (hereinafter the ``Office''), and the 
procedures whereby it carries out its general responsibilities under the 
trade agreements program.
    (b) One of the primary purposes of these regulations is to inform 
the public of the unit known as the Trade Policy Staff Committee, which 
replaces and assumes the functions formerly performed by The Trade Staff 
Committee and the Trade Information Committee. One of the functions of 
the Trade Policy Staff Committee is to afford an opportunity for 
interested parties to present oral and written statements concerning the 
trade agreements program and related matters.



Sec. 2001.1  Creation and location.

    (a) The Office was established as an agency in the Executive Office 
of the President by Executive Order 11075 of January 15, 1963 (28 FR 
473), as amended by Executive Order 11106 of April 18, 1963 (28 FR 
3911), and Executive Order 11113 of June 13, 1963 (28 FR 6183). The 
Office subsequently was reestablished as an agency in the Executive 
Office of the President by section 141 of the Trade Act of 1974 (Pub. L. 
93-618, 88 Stat. 1978, hereinafter referred to as the ``Trade Act''), 
and was delegated certain functions under the Trade Act by Executive 
Order 11846 of March 27, 1975. \1\
---------------------------------------------------------------------------

    \1\ 40 FR 14291, March 31, 1975.
---------------------------------------------------------------------------

    (b) The Office is located at 1800 G Street NW., Washington, DC 
20506.



Sec. 2001.2  Organization.

    (a) The Office is headed by the United States Trade Representative 
(hereinafter, the ``Trade Representative'') as provided in section 
141(b)(1) of the Trade Act. The Trade Representative reports directly to 
the President and the Congress as described in Sec. 2001.3(a)(2) of 
this part, and has the rank of Ambassador Extraordinary and 
Plenipotentiary.
    (b) The Office also consists of two Deputy Trade Representatives 
(hereinafter ``Deputy Trade Representatives'') as provided in section 
141(b)(2) of the Trade Act, each of whom holds the rank of Ambassador, 
and of a professional and nonprofessional staff.
    (c) The Trade Policy Committee, an interagency committee composed of 
the heads of specified Executive departments and offices, was 
established by section 3 of Executive Order 11846 (see Appendix), as 
authorized by section 242(a) of the Trade Expansion Act of 1962, as 
amended, \2\ under the chairmanship of the United States Trade 
Representative, as provided by section 141(c)(1)(E) of the Trade Act. 
Two subordinate bodies of the Trade Policy Committee, the Trade Policy 
Committee Review Group, and the Trade Policy Staff Committee, provided 
for in Sec. Sec. 2002.1 and 2002.2 respectively, are established by, 
and under the direction and administrative control of the Trade 
Representative.
---------------------------------------------------------------------------

    \2\ 76 Stat. 902, 19 U.S.C. 1872; Pub. L. 93-618, 88 Stat. 1978, 
section 602(b).
---------------------------------------------------------------------------



Sec. 2001.3  Functions.

    (a) The Trade Representative:
    (1) Except where otherwise provided by statute, Executive order, or 
instructions of the President, is the chief representative of the United 
States for each negotiation under the trade agreements program as 
defined in section 1 of Executive Order 11846, and participates in other 
negotiations which may have a direct and significant impact on trade;
    (2) Reports directly to the President and the Congress, and is 
responsible to the President and the Congress, with respect to the 
administration of the trade agreements program as defined in section 1 
of Executive Order 11846;

[[Page 478]]

    (3) Advises the President and the Congress with respect to tariff 
and nontariff barriers to international trade, international commodity 
agreements, and other matters which are related to the trade agreements 
program;
    (4) Performs the functions of the President under section 102 of the 
Trade Act concerning notice to, and consultation with, Congress, in 
connection with agreements on nontariff barriers to, and other 
distortions of, trade, and prepares for the President's transmission to 
Congress all proposed legislation and other documents necessary or 
appropriate for the implementation of, or otherwise required in 
connection with, trade agreements (except that where implementation of 
an agreement on nontariff barriers to, and other distortions of trade 
requires a change in a domestic law, the department or agency having the 
primary interest in the administration of such domestic law prepares and 
transmits to the Trade Representative any proposed legislation necessary 
for such implementation);
    (5) Is responsible for making reports to Congress with respect to 
the matters set forth in paragraphs (a) (1) and (2) of this section and 
prepares, for the President's transmission to Congress, the annual 
report on the trade agreements program required by section 163(a) of the 
Trade Act ;
    (6) Is chairman of the Trade Policy Committee, and designates the 
chairman of the Trade Policy Committee Review Group and the Trade Policy 
Staff Committee, which are provided for in part 2002 of these 
regulations;
    (7) Is responsible for the preparation and submission of any 
Proclamation which relates wholly or primarily to the trade agreements 
program;
    (8) Performs the functions of the President under section 131(c) of 
the Trade Act concerning requests for, and receipt of, advice from the 
International Trade Commission with respect to modifications of barriers 
to (and other distortions of) international trade;
    (9) Performs the functions of the President under section 132 of the 
Trade Act with respect to advice of departments of the Federal 
government and other sources, and under section 133 of the Trade Act 
with respect to certain public hearings;
    (10) Performs the functions of the President under section 135 of 
the Trade Act with respect to advisory committees, (including functions 
under the Federal Advisory Committee Act, 86 Stat. 770, 5 U.S.C. App. 1, 
which are applicable to such committees, except that of reporting 
annually to Congress), and, acting through the Secretaries of Commerce, 
Labor, and Agriculture, as appropriate, performs the functions of the 
President in establishing and organizing general policy advisory 
committees and sector advisory committees under section 135(c) of the 
Trade Act;
    (11) Determines ad valorem amounts and equivalents pursuant to 
sections 601 (3) and (4) of the Trade Act, taking into account advice 
from the International Trade Commission and in consultation with the 
Trade Policy Committee;
    (12) Requests, where appropriate, information from the International 
Trade Commission in connection with import relief findings or actions 
under sections 202(d) and 203(i) (1) and (2) of the Trade Act;
    (13) Acting through the Section 301 Committee provided for in Sec. 
2002.3 of this chapter as appropriate, provides opportunities for the 
presentation of views under sections 301(d) and 301(e) of the Trade Act, 
with respect to certain foreign restrictions, acts, practices or 
policies and United States actions in response thereto;
    (14) At the request of a complainant, made in accordance with Sec. 
2003.3 of these regulations, under section 301(d)(2) of the Trade Act, 
or of an interested person under section 301(e)(2), provides for 
appropriate public hearings by the Trade Policy Staff Committee on 
alleged foreign restrictions, acts, policies, or practices under section 
301(d)(2), and on any action by the United States with respect to the 
import treatment of any foreign product or the treatment of any foreign 
service under section 301(e)(2);
    (15) Requests, where appropriate, the views of the International 
Trade Commission as to the probable impact on the economy of the United 
States of

[[Page 479]]

any action under section 301(a) of the Trade Act;
    (16) Is responsible, in consultation with the Secretary of State, 
for the administration of the generalized system of preferences under 
Title V of the Trade Act;
    (17) Is responsible for such other functions as the President may 
direct.
    (b)(1) Each Deputy Trade Representative shall have as his principal 
function the conduct of trade negotiations under this Act, and shall 
have such other functions as the Trade Representative may direct;
    (2) A Deputy Trade Representative, designated by the Trade 
Representative, is chairman of the Trade Policy Committee Review Group 
provided for in Sec. 2002.1;
    (3) A Deputy Trade Representative, designated by the Trade 
Representative, is chairman of the Adjustment Assistance Coordinating 
Committee established by section 281 of the Trade Act.

[40 FR 18419, Apr. 28, 1975, as amended at 40 FR 39497, Aug. 28, 1975]



PART 2002_OPERATION OF COMMITTEES--Table of Contents




Sec.
2002.0 Trade Policy Committee.
2002.1 Trade Policy Committee Review Group.
2002.2 Trade Policy Staff Committee.
2002.3 Section 301 Committee.
2002.4 Participation by other agencies.

    Authority: Pub. L. 93-618, 88 Stat. 1978; 76 Stat. 902, 19 U.S.C. 
1872, as amended; E.O. 11846 of March 27, 1975, 40 FR 14291, March 31, 
1975.



Sec. 2002.0  Trade Policy Committee.

    (a) The Trade Policy Committee was created by section 3 of Executive 
Order 11846 of March 27, 1975 (40 FR 14291, March 31, 1975), as 
authorized by section 242(a) of the Trade Expansion Act of 1962 (19 
U.S.C. 1872), as amended by section 602(b) of the Trade Act.
    (b) The Trade Policy Committee is composed of:
    (1) The Special Representative for Trade Negotiations, Chairman;
    (2) The Secretary of State;
    (3) The Secretary of the Treasury;
    (4) The Secretary of Defense;
    (5) The Attorney General;
    (6) The Secretary of the Interior;
    (7) The Secretary of Agriculture;
    (8) The Secretary of Commerce;
    (9) The Secretary of Labor;
    (10) The Assistant to the President for Economic Affairs;
    (11) The Executive Director of the Council on International Economic 
Policy.

In addition, the Committee may invite the participation in its 
activities of any agency or office not listed above when matters of 
interest to such agency or office are under consideration.
    (c) The Trade Policy Committee meets at such times and with respect 
to such functions as the President or the Chairman of the Committee 
directs. It has the functions conferred by the Trade Expansion Act of 
1962, as amended, upon the interagency organization referred to in 
section 242 thereof, as amended, the functions delegated to it by the 
provisions of Executive Order 11846 (see Appendix), and such other 
functions as the President or the chairman may from time to time direct. 
Recommendations and advice of the Committee are submitted to the 
President by the chairman.

[40 FR 18420, Apr. 28, 1975]



Sec. 2002.1  Trade Policy Committee Review Group.

    (a) The Trade Executive Committee, established by regulations 
appearing by 36 FR 23620, December 11, 1971 (15 CFR 2002.1), is 
abolished and there is hereby established as a subordinate body of the 
Trade Policy Committee the Trade Policy Committee Review Group 
(hereinafter referred to as the ``Review Group''). The Review Group 
consists of a Deputy Trade Representative, designated by the Trade 
Representative, as chairman, and of high level officials designated from 
their respective agencies or offices by the Secretaries of Agriculture, 
Commerce, Defense, Interior, Labor, State and Treasury, and the 
Executive Director of the Council on International Economic Policy. The 
Special Representative or the Deputy Special Representative, as 
appropriate, and each head of an agency or office, may designate from 
his respective agency or office high level officials to serve as 
alternate members of

[[Page 480]]

the Review Group in the event the regular member is unable to attend any 
meeting of the Review Group.
    (b) The Review Group performs the following functions unless such 
functions are assigned to a different body by the Special Representative 
or his designee:
    (1) Coordinates interagency activities concerning the trade 
agreements program and related matters;
    (2) Recommends policies and actions, and transmits appropriate 
materials, to the Special Representative concerning the trade agreements 
program and related matters, or, when appropriate, approves such 
policies and actions; and
    (3) As appropriate, reviews and approves recommendations of the 
Trade Policy Staff Committee on policies and actions concerning any 
proposed trade agreements, the trade agreements program, and related 
matters.
    (4) [Reserved]
    (5) Performs such other functions as the Special Representative or a 
Deputy Special Representative may from time to time direct.

[40 FR 18420, Apr. 28, 1975, as amended at 40 FR 39497, Aug. 28, 1975; 
40 FR 60042, Dec. 31, 1975; 42 FR 55611, Oct. 18, 1977]



Sec. 2002.2  Trade Policy Staff Committee.

    (a) The Trade Staff Committee and the Trade Information Committee, 
established by regulations appearing at 36 FR 23620, December 11, 1971 
(15 CFR 2002.2, and 2002.3, respectively) are abolished and there is 
hereby established as a subordinate body of the Trade Policy Committee 
and the Trade Policy Review Group the Trade Policy Staff Committee 
(hereinafter referred to as ``the Committee''). The Committee consists 
of a chairman designated by the Special Representative from his Office, 
and of senior trade policy staff officials designated from their 
respective agencies or offices by the Secretaries of Agriculture, 
Commerce, Defense, Interior, Labor, State, and Treasury, by the 
Executive Director of the Council on International Economic Policy,'' so 
that the sentence reads: The Committee consists of a chairman designated 
by the Special Representative from his Office, and of senior trade 
policy staff officials designated from their respective agencies or 
offices by the Secretaries of Agriculture, Commerce, Defense, Interior, 
Labor, State, and Treasury, by the Executive Director of the Council on 
International Economic Policy, and by the Chairman of the International 
Trade Commission. Each Secretary or head of an agency or office and the 
Chairman of the Commission may designate from his respective agency 
officials to serve as alternate members of the Committee in the event 
the regular member is unable to attend any meeting of the Committee. The 
Special Representative may from time to time designate officials from 
his agency other than the chairman, to serve as acting chairmen of the 
Committee. The representative of the International Trade Commission 
shall be a nonvoting member of the Committee.
    (b) The Committee performs the following functions unless such 
functions are assigned to a different body by the Special Representative 
or his designee:
    (1) Monitors the trade agreements programs, reviews the information 
received pursuant to paragraphs (b) (2) through (8) of this section, and 
transmits summaries of such information together with recommendations of 
action to the Special Representative, or through him to the Trade Policy 
Review Group or the Trade Policy Committee, concerning the trade 
agreements program and related matters, or when appropriate approves 
such policies and actions.
    (2) Obtains information and advice from the Departments of 
Agriculture, Commerce, Defense, Interior, Labor, State and the Treasury, 
from the Office of the Special Representative for Trade Negotiations, 
and from such other sources as the Special Representative, a Deputy 
Special Representative, or the Chairman of the Committee may deem 
appropriate concerning any proposed trade agreement and other aspects of 
the trade agreements program and related matters, and concerning the 
Generalized System of Preferences in accordance with Title V of the 
Trade Act;
    (3) Provides an opportunity, by the holding of public hearing and by 
such

[[Page 481]]

other means as the Special Representative, the Deputy Special 
Representative or the Chairman of the Committee deems appropriate, for 
interested persons to present their views concerning any article on a 
list published pursuant to section 131 of the Trade Act, any article 
which should be so listed, any concession which should be sought by the 
United States, or any other matter relevant to a proposed trade 
agreement;
    (4) Provides an opportunity, by the holding of public hearings and 
by such other means as the Special Representative, a Deputy Special 
Representative, or the Chairman of the Committee deems appropriate, for 
any interested party to present by oral or written statement his views 
concerning articles being considered for designation as eligible 
articles for purposes of the Generalized System of Preferences;
    (5) [Reserved]
    (6) Provides an opportunity where deemed appropriate by the Special 
Representative, the Deputy Special Representative, or the Chairman, by 
the holding of public hearings upon request by an interested party, and 
by such other means as the Special Representative, the Deputy Special 
Representative or the Chairman deems appropriate, for any interested 
party to present an oral or written statement concerning any other 
aspect of the trade agreements program and related matters;
    (7) Reviews all materials required to be furnished by the 
International Trade Commission to the President through the Special 
Representative, and transmits such materials, together, where 
appropriate with recommendations of action with respect thereto, to the 
Special Representative or a Deputy Special Representative.
    (8) Reviews reports of hearings and reviews conducted by the section 
301 Committee provided for in Sec. 2002.3 and recommendations resulting 
therefrom, and makes recommendations to the Special Representative with 
respect thereto.
    (9) When circumstances warrant, terminates section 301 reviews 
provided for in Sec. 2002.3
    (10) Receives and reviews requests pertaining to the duty-free 
treatment accorded to articles under the Generalized System of 
Preferences, and handles such requests and reviews in accordance with 
Part 2007 of these regulations;
    (11) Issues regulations governing the conduct of its public hearings 
and the performance of such of its other functions as it deems 
necessary;
    (12) Performs such other functions as the Special Representative or 
the Deputy Special Representative may from time to time direct.

[40 FR 18420, Apr. 28, 1975, as amended at 40 FR 39497, Aug. 28, 1975; 
40 FR 60042, Dec. 31, 1975; 42 FR 55611, Oct, 18, 1977]



Sec. 2002.3  Section 301 Committee.

    (a) There is hereby established, as a subordinate body of the Trade 
Policy Staff Committee, the Section 301 Committee. The Chairman of the 
Section 301 Committee shall be designated by the Deputy Special 
Representative from the Office of the Special Representative for Trade 
Negotiations. The Committee shall consist of the Chairman and, with 
respect to each complaint, such members as may be designated by agencies 
which have an interest in the issues raised by the particular complaint 
and whose participation is invited by the Chairman of the Committee.
    (b) The Section 301 Committee performs the following functions 
unless such functions are assigned to a different body by the Special 
Representative, or his designee:
    (1) Reviews complaints received pursuant to section 301 of the Trade 
Act of 1974.
    (2) Provides an opportunity by the holding of public hearings upon 
request by a complainant or an interested party, as appropriate, and by 
such other means as the Special Representative, a Deputy Special 
Representative or the Chairman of the section 301 Committee deems 
appropriate, for any interested party to present his views to the 
section 301 Committee concerning foreign restrictions, acts, policies, 
and practices affecting U.S. commerce, and United States actions in 
response thereto, as provided for in section 301 of the Trade Act (Pub. 
L. 93-618, 88 Stat. 1978).

[[Page 482]]

    (3) Reports to the Trade Policy Staff Committee the results of 
reviews and hearings conducted with respect to complaints received 
pursuant to section 301 of the Trade Act.
    (4) On the basis of its review of petitions filed under section 301 
and of the views received through hearings or otherwise on such 
petitions, makes recommendations to the TPSC for review by that 
committee.

[40 FR 39497, Aug. 28, 1975, as amended at 42 FR 55611, Oct 18, 1977]



Sec. 2002.4  Participation by other agencies.

    The chairman of the Trade Policy Committee, the Trade Policy 
Committee Review Group, the Section 301 Committee, and the Trade Policy 
Staff Committee may invite the participation in the activities of their 
committees of any other agencies when matters of interest to such 
agencies are under consideration.

[40 FR 18420, Apr. 28, 1975. Redesignated and amended at 40 FR 39497, 
Aug. 28, 1975]



PART 2003_REGULATIONS OF TRADE POLICY STAFF COMMITTEE--Table of Contents




Sec.
2003.0 Office, mailing address, telephone number, and hours.
2003.1 Notice of public hearings.
2003.2 Testimony and submission of written briefs.
2003.3 [Reserved]
2003.4 Presentation of oral testimony at public hearings.
2003.5 Information open to public inspection.
2003.6 Information exempt from public inspection.

    Authority: Pub. L. 93-618, 88 Stat. 1978; 76 Stat. 902, 19 U.S.C. 
1872, as amended; E.O. 11846 of March 27, 1975, 40 FR 14291, March 31, 
1975.

    Source: 40 FR 18421, Apr. 28, 1975, unless otherwise noted.



Sec. 2003.0  Office, mailing address, telephone number, and hours.

    (a) The office of the Committee is at room 729, 1800 G Street NW., 
Washington, DC 20506.
    (b) All communications to the Committee should be addressed to the 
``Secretary, Trade Policy Staff Committee, Office of the Special 
Representative for Trade Negotiations, room 729, 1800 G Street, NW., 
Washington, DC 20506.''
    (c) The telephone number of the office of the Committee is (202) 
395-3395.
    (d) The regular hours of the office of the Committee are from 9 a.m. 
to 5:30 p.m. on each business day, Monday through Friday.



Sec. 2003.1  Notice of public hearings.

    The Committee shall publish in the Federal Register a notice of a 
proposed public hearing, the subject matter of the proposed public 
hearing, the period during which written briefs may be submitted, the 
period during which requests may be submitted to present oral testimony, 
and the time and place of the proposed public hearing, in the following 
instances:
    (a) Upon publication of lists of articles by the President under 
section 131(a), or sections 503(a) and 131(a), of the Trade Act as a 
result of which public hearings are required to be held by section 133 
of the Trade Act with respect to any matter relevant to a proposed trade 
agreement, or with respect to any matter relevant to the granting of 
generalized tariff preferences for the listed articles;
    (b) Whenever the Special Representative or the Deputy Special 
Representative determines that public hearings in connection with the 
review of a request submitted pursuant to Part 2007 of these 
regulations, pertaining to the duty-free treatment accorded to articles 
under the GSP, are in the public interest.
    (c) Upon instructions of the Special Representative.

[40 FR 18421, Apr. 28, 1975, as amended at 40 FR 39498, Aug. 28, 1975; 
40 FR 60042, Dec. 31, 1975]



Sec. 2003.2  Testimony and submission of written briefs.

    (a) Participation by an interested party in a public hearing 
announced under Sec. 2003.1 shall require the submission of a written 
brief before the close of the period announced, in the public notice for 
its submission. Such brief may be, but need not be, supplemented by the 
presentation of oral testimony in accordance with Sec. 2003.4.

[[Page 483]]

    (b) A written brief by an interested party concerning any aspect of 
the trade agreements program or any related matter not subject to 
paragraph (a) of this section, and submitted pursuant to a public notice 
shall be submitted before the close of the period announced in the 
public notice for its submission.
    (c) A written brief shall state clearly the position taken and shall 
describe with particularity the evidence supporting such position. It 
shall be submitted in not less than twenty (20) copies which shall be 
legibly typed, printed, or duplicated.
    (d) In order to assure each party an opportunity to contest the 
information provided by other interested parties, the Committee will 
entertain rebuttal briefs filed by any party within a time limit 
specified by the Committee. Rebuttal briefs shall conform, in form and 
number, to the provisions of paragraph (c) of this section. Rebuttal 
briefs should be strictly limited to demonstrating errors of fact or 
analysis not pointed out in the briefs or hearings and should be as 
concise as possible.
    (e) A written brief by an interested party concerning any aspect of 
the Trade Agreements Program or any related matter not subject to 
paragraph (a) or (b) of this section may be submitted at any time.
    (f) The requirements in paragraphs (a) through (d) of this section 
may be waived by the Special Representative, the Deputy Special 
Representative, or the Chairman of the Committee for reasons of equity 
and the public interest.

[40 FR 18421, Apr. 28, 1975, as amended at 40 FR 39498, Aug. 28, 1975]



Sec. 2003.3  [Reserved]



Sec. 2003.4  Presentation of oral testimony at public hearings.

    (a) A request by an interested party to present oral testimony at a 
public hearing shall be submitted in writing before the close of the 
period announced in the public notice for its submission, and shall 
state briefly the interest of the applicant and the position to be taken 
by the applicant. Such request will be granted only if a written brief 
has been prepared and submitted in accordance with Sec. 2003.2. The 
requirements of this subpart may be waived by the Special 
Representative, the Deputy Special Representative or the Chairman of the 
Committee for reasons of equity and the public interest.
    (b) After receipt and consideration of a request to present oral 
testimony at a public hearing, the Secretary of the Committee shall 
notify the applicant whether the request conforms to the requirements of 
paragraph (a) of this section, and if so, the time and place for the 
hearing and for his appearance, and the amount of time allotted for his 
oral testimony, and if not, will give the reasons why the request does 
not conform to the requirements.
    (c) In presenting testimony, the interested party should supplement 
the information contained in the written brief, and should be prepared 
to answer questions relating to such information.
    (d) A stenographic record shall be made of every public hearing.

[40 FR 18421, Apr. 28, 1975, as amended at 40 FR 39498, Aug. 28, 1975]



Sec. 2003.5  Information open to public inspection.

    (a) With the exception of information subject to Sec. 2003.6, an 
interested party may, upon request, inspect at the office of the 
Committee:
    (1) Any written request, brief, or similar submission of 
information;
    (2) Any stenographic record of a public hearing;
    (3) Other public written information concerning the trade agreements 
program and related matters.
    (b) [Reserved]



Sec. 2003.6  Information exempt from public inspection.

    (a) The Committee shall exempt from public inspection business 
information submitted by an interested party if the Committee determines 
that such information concerns or relates to trade secrets and 
commercial and financial information the disclosure of which is not 
authorized by the interested party furnishing such information and is 
not required by law.
    (b) A party requesting that the Committee exempt from public 
inspection

[[Page 484]]

business information submitted in writing shall clearly mark each page 
``Business Confidential'' at the top.
    (c) The Committee may deny a request that it exempt from public 
inspection any particular business information if it determines that 
such information is not entitled to exemption under paragraph (a) of 
this section. In the event of such denial, the party submitting the 
particular business information will be notified of the reasons for the 
denial and will be permitted to withdraw his submission.



PART 2004_FREEDOM OF INFORMATION POLICIES AND PROCEDURES--Table of Contents




                              Organization

Sec.
2004.1 In general.
2004.2 Authority and functions.
2004.3 Organization.

                               Procedures

2004.4 Availability of records.
2004.5 Accessing records without request.
2004.6 Requesting records.

                                  Costs

2004.7 Definitions.
2004.8 Fees in general.
2004.9 Fees for categories of requesters.
2004.10 Other charges.
2004.11 Payment and waiver.

    Authority: 5 U.S.C. 552; Uniform Freedom of Information Act Fee 
Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987.

    Source: 73 FR 35063, June 20, 2008, unless otherwise noted.

                              Organization



Sec. 2004.1  In general.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of the Freedom of Information Act, 5 
U.S.C. 552, as amended (FOIA). This regulation should be read in 
conjunction with the FOIA.



Sec. 2004.2  Authority and functions.

    The Office of the United States Trade Representative (USTR) 
negotiates directly with foreign governments to conclude trade 
agreements, and resolve trade disputes, and participates in global trade 
policy organizations. USTR consults with governments, business groups, 
legislators, and public interest groups to obtain their views on trade 
issues and explain the President's trade policy positions. The general 
functions of USTR, as provided by statute, are to develop and coordinate 
international trade and direct investment policy, advise and assist the 
President, represent the United States in international trade 
negotiations, and provide policy guidance to federal agencies on 
international trade matters. The United States Trade Representative, a 
cabinet officer, serves as a vice chairman of the Overseas Private 
Investment Corporation, a Board member of the Millennium Challenge 
Corporation, a non-voting member of the Export-Import Bank, and a member 
of the National Advisory Council on International Monetary and Financial 
Policies.



Sec. 2004.3  Organization.

    USTR's main office is located in Washington, DC. It also maintains a 
mission in Geneva, Switzerland.

                               Procedures



Sec. 2004.4  Availability of records.

    USTR's publicly accessible records are available through USTR's 
public reading room or its Web site. USTR also provides records to 
individual requesters in response to FOIA requests. USTR generally 
withholds predecisional, deliberative documents and classified trade 
negotiating and policy documents under 5 U.S.C. 552(b).



Sec. 2004.5  Accessing records without request.

    (a) Public reading room. USTR maintains and makes available for 
public inspection and copying USTR records pertaining to matters within 
the scope of 5 U.S.C. 552(a)(2), as amended. Most records in USTR's 
public reading room comprise responses to Federal Register notices that 
USTR has issued. USTR's public reading room is located at 1724 F Street, 
NW., Washington, DC. Access to the reading room is by appointment only. 
Contact USTR's FOIA Officer at (202) 395-6186 to set up an appointment.

[[Page 485]]

    (b) Electronic resources. Certain USTR records, including press 
releases and other public issuances, are available electronically from 
USTR's homepage at http://www.ustr.gov. USTR encourages requesters to 
visit its Web site before making a request for records under Sec. 
2004.6.



Sec. 2004.6  Requesting records.

    (a) Written requests required. For records not available as 
described under Sec. 2004.5, requesters wishing to obtain information 
from USTR must submit a written request to USTR's FOIA Officer. Requests 
should be addressed to FOIA Officer, Office of the United States Trade 
Representative, 600 17th Street, NW., Washington, DC 20508. As there may 
be delays in mail delivery, it is advisable to send request via 
facsimile to (202) 395-9458.
    (b) Contents of requests. Requests shall be as specific as possible 
and shall reasonably describe the records sought so that the records can 
be located with a reasonable amount of effort. The request should 
identify the desired record or reasonably describe it and should include 
information such as the date, title or name, author, recipient, and 
subject matter of the record.
    (c) Response to requests--(1) Processing. The FOIA Officer shall 
ordinarily determine within 20 days (except Saturdays, Sundays, and 
federal holidays) after receiving a request for records, whether it is 
appropriate to grant or deny the request. The 20-day period may be 
tolled one time if the FOIA Officer requests information from the 
requestor or if additional time is necessary to clarify issues with the 
requestor regarding a fee assessment.
    (i) Request granted. If the FOIA Officer decides to grant the 
request, the FOIA Officer shall promptly provide the requester written 
notice of the decision. The FOIA Officer shall normally include with the 
notice both the requested records and a copy of the decision.
    (ii) Request denied. If the FOIA Officer denies the request, in full 
or part, the FOIA Officer shall provide the requester written notice of 
the denial together with the approximate number of pages of information 
withheld and the exemption under which the information was withheld. The 
notice shall also describe the procedure for filing an appeal.
    (2)(i) Expedited processing. At the time a requester submits an 
initial request for records the requester may ask the FOIA Officer in 
writing to expedite processing of the request. The request for expedited 
processing must be accompanied by a written statement, true and correct 
to the best of the requester's knowledge and belief, explaining why 
expedited processing is warranted. The FOIA Officer shall generally 
grant requests for expedited processing of requests for records, and 
appeals of denials under paragraph (d)(2) of this section, whenever the 
FOIA Officer determines that:
    (A) Failure to obtain the requested records on an expedited basis 
could reasonably pose an imminent threat to a person's life or physical 
safety; or
    (B) With respect to a request made by a person primarily engaged in 
disseminating information, there is an urgency to inform the public 
about government activity that is the specific subject of the FOIA 
request.
    (ii) The FOIA Officer shall ordinarily decide within ten days after 
receiving a request for expedited processing whether to grant it and 
shall notify the requester of the decision. If the FOIA Officer grants a 
request for expedited processing, the FOIA Officer shall process the 
request as soon as practicable. If the FOIA Officer denies a request for 
expedited processing, USTR shall act expeditiously on any appeal of the 
denial.
    (3) Extension for unusual circumstances--(i) In general. If the FOIA 
Officer determines that unusual circumstances exist, the FOIA Officer 
may extend for no more than ten days (except Saturdays, Sundays, and 
Federal holidays) the time limits described in paragraph (c)(1) of this 
section by providing written notice of the extension to the requester. 
The FOIA Officer shall include with the notice a brief statement of the 
reason for the extension and the date the FOIA Officer expects to make 
the determination.
    (ii) Additional procedures. The FOIA Officer shall provide written 
notice to the requester if the FOIA Officer decides that the 
determination cannot be

[[Page 486]]

made within the time limit described in paragraph (c)(3)(i) of this 
section. The notice shall afford the requester an opportunity to limit 
the scope of the request to the extent necessary for the FOIA Officer to 
process it within that time limit or an opportunity to arrange a longer 
period for processing the request.
    (d) Appeals--(1) Initiating appeals. Requesters not satisfied with 
the FOIA Officer's written decision may request USTR's FOIA Appeals 
Committee to review the decision. Appeals must be delivered in writing 
within 60 days of the date of the decision and shall be addressed to the 
FOIA Appeals Committee, Office of the United States Trade 
Representative, 600 17th Street, NW., Washington, DC 20508. As there may 
be delays in mail delivery, it is advisable to FAX appeals to (202) 395-
9458. An appeal shall include a statement specifying the records that 
are the subject of the appeal and explaining why the Committee should 
sustain the appeal.
    (2) Appeal decisions. The Committee shall ordinarily decide the 
appeal within 20 working days from the date it receives the appeal. If 
the Committee denies the appeal in full or part, the Committee shall 
promptly notify the requester in writing of the Committee's decision and 
the provisions for judicial review. If the Committee sustains the 
appeal, the FOIA Officer shall notify the requester in writing and shall 
make available to the requester copies of the releasable records once 
the requester pays any fees that USTR assesses under Sec. Sec. 2004.8 
through 2004.10.

                                  Costs



Sec. 2004.7  Definitions.

    For purposes of these regulations:
    (a) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers the 
requester's or other person's commercial, trade, or profit interests.
    (b) Direct costs means those costs incurred in searching for and 
duplicating (and, in the case of commercial use requests, reviewing) 
documents to respond to a FOIA request. Direct costs include, for 
example, salaries of employees who perform the work and costs of 
conducting large-scale computer searches.
    (c) Duplicate means to copy records to respond to a FOIA request. 
Copies can take the form of paper, audio-visual materials, or electronic 
records, among others.
    (d) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, that operates a program or programs of scholarly research.
    (e) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis and that operates solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (f) Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience.
    (g) Review means to examine a record to determine whether any 
portion of the record may be withheld and to process a record for 
disclosure, including by redacting it.
    (h) Search for means look for and retrieve records covered by a FOIA 
request, including by looking page-by-page or line-by-line to identify 
responsive material within individual records.



Sec. 2004.8  Fees in general.

    USTR shall charge fees that recoup the full allowable direct costs 
it incurs in responding to FOIA requests. USTR may assess charges for 
time spent searching for records even if USTR fails to locate the 
records or if the records are located and determined to be exempt from 
disclosure. In general, USTR shall apply the following fee schedule, 
subject to Sec. Sec. 2004.9 through 2004.11:
    (a) Manual searches. Time devoted to manual searches shall be 
charged on

[[Page 487]]

the basis of the salary of the employee(s) conducting the search (basic 
hourly rate(s) of pay for the employee(s), plus 16 percent).
    (b) Electronic searches. Fees shall reflect the direct cost of 
conducting the search. This will include the cost of operating the 
central processing unit for that portion of operating time that is 
directly attributable to searching for and printing records responsive 
to the FOIA request and operator/programmer salary attributable to the 
search.
    (c) Record reviews. Time devoted to reviewing records shall be 
charged on the same basis as under paragraph (a) of this section, but 
shall only be applicable to the initial review of records located in 
response to commercial use requests.
    (d) Duplication. Fees for copying paper records or for printing 
electronic records shall be assessed at a rate of $.15 per page. For 
other types of copies such as disks or audio visual tapes, USTR shall 
charge the direct cost of producing the document(s). If duplication 
charges are expected to exceed $25, the FOIA Officer shall notify the 
requester, unless the requester has indicated in advance a willingness 
to pay fees as high as those anticipated. If a requester wishes to limit 
costs, the FOIA Officer shall provide the requester an opportunity to 
reformulate the request in order to reduce costs. If the requester 
reformulates a request, it shall be considered a new request and the 20-
day period described in Sec. 2004.6(c)(1) shall be deemed to begin when 
the FOIA Officer receives the request.
    (e) Advance payments required. The FOIA Officer may require a 
requester to make an advance deposit of up to the amount of the entire 
anticipated fee before the FOIA Officer begins to process the request 
if:
    (1) The FOIA Officer estimates that the fee will exceed $250; or
    (2) The requester has previously failed to pay a fee in a timely 
fashion.

When the FOIA Officer requires a requester to make an advance payment, 
the 20-day period described in Sec. 2004.6(c)(1) shall begin when the 
FOIA Officer receives the payment.
    (f) No assessment of fee. USTR shall not charge a fee to any 
requester if:
    (1) The cost of collecting the fee would be equal to or greater than 
the fee itself; or
    (2) After December 31, 2008, USTR fails to comply with any time 
limit under the Freedom of Information Act for responding to a request 
for records where no unusual or exceptional circumstances apply.



Sec. 2004.9  Fees for categories of requesters.

    USTR shall assess fees for certain categories of requesters as 
follows:
    (a) Commercial use requesters. In responding to commercial use 
requests, USTR shall assess fees that recover the full direct costs of 
searching for, reviewing, and duplicating records.
    (b) Educational institutions. USTR shall provide records to 
requesters in this category for the cost of duplication alone, excluding 
charges for the first 100 pages. To qualify for inclusion in this fee 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are sought to further scholarly research, not an individual goal.
    (c) Representatives of the news media. USTR shall provide records to 
requesters in this category for the cost of duplication alone, excluding 
charges for the first 100 pages.
    (d) All other requesters. USTR shall charge requesters who do not 
fall within paragraphs (a) through (c) of this section fees that recover 
the full direct cost of searching for and duplicating records, excluding 
charges for the first 100 pages of reproduction and the first two hours 
of search time.



Sec. 2004.10  Other charges.

    USTR may apply other charges, including the following:
    (a) Special charges. USTR shall recover the full cost of providing 
special services, such as sending records by express mail, to the extent 
that USTR elects to provide them.
    (b) Interest charges. USTR may begin assessing interest charges on 
an unpaid bill starting on the 31st day following the day on which the 
FOIA Officer sent the billing. Interest shall be charged at the rate 
prescribed in 31 U.S.C. 3717 and will accrue from the date of billing.

[[Page 488]]

    (c) Aggregating requests. When the FOIA Officer reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a request into a series of requests for the purpose 
of avoiding fees, the FOIA Officer shall aggregate those requests and 
charge accordingly.



Sec. 2004.11  Payment and waiver.

    (a) Remittances. Payment shall be made in the form of check or money 
order made payable to the Treasury of the United States. At the time the 
FOIA Officer notifies a requestor of the applicable fees, the Officer 
shall inform the requestor of where to send the payment.
    (b) Waiver. USTR may waive all or part of any fee provided for in 
Sec. Sec. 2004.8 through 2004.9 when the FOIA Officer deems that 
disclosure of the information is in the general public's interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester. In determining whether a 
fee should be waived, the FOIA Officer may consider whether:
    (1) The subject matter specifically concerns identifiable operations 
or activities of the government;
    (2) The information is already in the public domain;
    (3) Disclosure of the information would contribute to the 
understanding of the public-at-large as opposed to a narrow segment of 
the population;
    (4) Disclosure of the information would significantly enhance the 
public's understanding of the subject matter;
    (5) Disclosure of the information would further a commercial 
interest of the requester; and
    (6) The public's interest is greater than any commercial interest of 
the requester.



PART 2005_SAFEGUARDING INDIVIDUAL PRIVACY--Table of Contents




Sec.
2005.0 Purpose and scope.
2005.1 Rules for determining if an individual is the subject of a 
          record.
2005.2 Requests for access.
2005.3 Access to the accounting of disclosures from records.
2005.4 Requests for copies of records.
2005.5 Requests to amend records.
2005.6 Request for review.
2005.7 Schedule of fees.

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a(f)).

    Source: 40 FR 48331, Oct. 14, 1975, unless otherwise noted.



Sec. 2005.0  Purpose and scope.

    The purpose of these regulations is to provide certain safeguards 
for an individual against the invasion of his or her personal privacy by 
the Office of the Special Representative for Trade Negotiations 
(hereinafter frequently referred to as ``STR''). These regulations are 
promulgated pursuant to the requirements for all Federal Agencies 
contained in 5 U.S.C. 552a(f).



Sec. 2005.1  Rules for determining if an individual is the subject of a 

record.

    (a) Individuals desiring to know if a specific system of records 
maintained by STR contains a record pertaining to them should address 
their inquiries to the Administrative Officer, Office of the Special 
Representative for Trade Negotiations, Washington, DC 20506. The written 
inquiry should contain a specific reference to the system of records 
maintained by the STR listed in the STR Notice of Systems of Records or 
it should describe the type of record in sufficient detail to reasonably 
identify the system of records. Notice of STR systems of records subject 
to the Privacy Act will be published in the Federal Register and copies 
of the notices will be available upon request to the Administrative 
Officer when so published. A compilation of such notices will also be 
made and published by the Office of Federal Register, in accordance with 
section 5 U.S.C. 552a(f).
    (b) At a minimum, the request should also contain sufficient 
identifying information to allow STR to determine if there is a record 
pertaining to the individual making the request in a particular system 
of records. In instances when the identification is insufficient to 
insure disclosure to the individual to whom the information pertains in

[[Page 489]]

view of the sensitivity of the information, STR reserves the right to 
solicit from the person requesting access to a record additional 
identifying information.
    (c) Ordinarily the person requesting will be informed whether the 
named system of records contains a record pertaining to such person 
within 10 days of such a request (excluding Saturdays, Sundays, and 
legal Federal holidays). Such a response will also contain or reference 
the procedures which must be followed by the individual making the 
request in order to gain access to the record.
    (d) Whenever a response cannot be made within the 10 days, the 
Administrative Officer will inform the person making the request the 
reasons for the delay and the date of which a response may be 
anticipated.



Sec. 2005.2  Requests for access.

    (a) Requirement for written requests. Individuals desiring to gain 
access to a record pertaining to them in a system of records maintained 
by STR must submit their request in writing in accordance with the 
procedures set forth in paragraph (b) of this section. Individuals who 
are employed by the STR may make their request on a regularly scheduled 
workday (Monday through Friday, excluding legal Federal holidays) 
between the hours of 9 am and 5:30 pm. Such requests for access by 
individuals employed by STR need not be made in writing.
    (b) Procedures--(1) Content of the request. The request for access 
to a record in a system of records shall be addressed to the 
Administrative Officer at the address cited above, and shall name the 
system of records or contain a description (as concise as possible) of 
such system of records. The request should state that the request is 
pursuant to the Privacy Act of 1974. In the absence of such a statement, 
if the request is for a record pertaining to the person requesting 
access which is maintained by STR in a system of records, the request 
will be presumed to be made under the Privacy Act of 1974. The request 
should contain necessary information to verify the identity of the 
person requesting access (see paragraph (b)(2)(vi) of this section). In 
addition, such person should include any other information which may 
assist in the rapid identification of the record for which access is 
being requested (e.g. maiden name, dates of employment, etc.) as well as 
any other identifying information contained in and required by the STR 
Notice of Systems of Records.
    (i) If the request for access follows a prior request under Sec. 
2005.1, the same identifying information need not be included in the 
request for access if a reference is made to that prior correspondence 
or a copy of the STR response to that request is attached. If the 
individual specifically desires a copy of the record, the request should 
so specify under Sec. 2005.4.
    (2) STR action on request. A request for access will ordinarily be 
answered within 10 days, except when the Administrative Officer 
determines otherwise, in which case the person making the request will 
be informed of the reasons for the delay and an estimated date by which 
the request will be answered. When the request can be answered within 10 
days, it shall include the following:
    (i) A statement that there is a record as request or a statement 
that there is not a record in the systems of records maintained by STR;
    (ii) A statement as to whether access will be granted only by 
providing a copy of the record through the mail; or the address of the 
location and the date and time at which the record may be examined. In 
the event the person requesting access is unable to meet the specified 
date and time, alternative arrangements may be made with the official 
specified in paragraph (b)(1) of this section.
    (iii) A statement, when appropriate, that examination in person will 
be the sole means of granting access only when the Administrative 
Officer has determined that it would not unduly impede the right of 
access of the person making the request.
    (iv) The amount of fees charged, if any (see Sec. Sec. 2005.6 and 
2005.7). (Fees are applicable only to requests for copies);
    (v) The name, title, and telephone number of the STR official having 
operational control over the record; and

[[Page 490]]

    (vi) The documentation required by STR to verify the identity of the 
person making the request. At a minimum, STR verification standards 
include the following:
    (A) Current or former STR Employees. Current or former STR employees 
requesting access to a record pertaining to them in a system of records 
maintained by STR may, in addition to the other requirements of this 
section, and at the sole discretion of the official having operational 
control over the record, have his or her identity verified by visual 
observation. If the current or former STR employee cannot be so 
identified by the official having operational control over the records, 
identification documentation will be required. Employee identification 
cards, annuitant identification, driver licenses, or the ``employee 
copy'' of any official personnel document in the record are examples of 
acceptable identification validation.
    (B) Other than current or former STR employees. Individuals other 
than current or former STR employees requesting access to a record 
pertaining to them in a system of records maintained by STR must produce 
identification documentation of the type described in paragraph 
(b)(2)(vi)(A) of this section, prior to being granted access. The extent 
of the identification documentation required will depend on the type of 
record for which access is requested. In most cases, identification 
verification will be accomplished by the presentation of two forms of 
identification. Any additional requirements will be specified in the 
system notices published pursuant to 5 U.S.C. 552a(e)(4).
    (C) Access granted by mail. For records to be made accessible by 
mail, the Administrative Officer shall, to the extent possible, 
establish identity by a comparison of signatures in situations where the 
data in the record is not so sensitive that unauthorized access could 
cause harm or embarrassment to the individual to whom they pertain. No 
identification documentation will be required for the disclosure to the 
person making the request of information required to be made available 
to the public by 5 U.S.C. 552. When, in the opinion of the 
Administrative Officer the granting of access through the mail could 
reasonably be expected to result in harm or embarrassment if disclosed 
to a person other than the individual to whom the record pertains, a 
notarized statement of identity or some similar assurance of identity 
will be required.
    (D) Unavailability of identification documentation. If an individual 
is unable to produce adequate identification documentation the 
individual will be required to sign a statement asserting identity and 
acknowledging that knowingly or willfully seeking or obtaining access to 
records about another person under false pretenses may result in a fine 
of up to $5,000. In addition, depending upon the sensitivity of the 
records to which access is sought, the official having operational 
control over the records may require such further reasonable assurances 
as may be considered appropriate; e.g., statements of other individuals 
who can attest to the identity of the person making the request.
    (E) Access by the parent of a minor, or by a legal guardian. A 
parent of a minor, upon presenting suitable personal identification, may 
act on behalf of the minor to gain access to any record pertaining to 
the minor maintained by STR in a system of records. A legal guardian may 
similarly act on behalf of an individual declared to be incompetent due 
to physical or mental incapacity or age by a court of competent 
jurisdiction, upon the presentation of the documents authorizing the 
legal guardian to so act, and upon suitable personal identification of 
the guardian.
    (F) Granting access when accompanied by another individual. When an 
individual requesting access to his or her record in a system of records 
maintained by STR wishes to be accompanied by another individual during 
the course of the examination of the record, the individual making the 
request shall submit to the official having operational control of the 
record, a signed statement authorizing that person access to the record.
    (G) Denial of access for inadequate identification documentation. If 
the official having operation control over the

[[Page 491]]

records in a system of records maintained by STR determines that an 
individual seeking access has not provided sufficient identification 
documentation to permit access, the official shall consult with the 
Administrative officer prior to finally denying the individual access.
    (vii) Medical records. The records in a system of records which are 
medical records shall be disclosed to the individual to whom they 
pertain in such manner and following such procedures as the 
Administrative Officer shall direct. When STR in consultation with a 
physician, determines that the disclosure of medical information could 
have an adverse effect upon the individual to whom it pertains, STR may 
transmit such information to a physician named by the individual.
    (viii) Exceptions. Nothing in this section shall be construed to 
entitle an individual the right to access to any information compiled in 
reasonable anticipation of a civil action or proceedings.



Sec. 2005.3  Access to the accounting of disclosures from records.

    Rules governing the granting of access to the accounting of 
disclosures are the same as those for granting access to the records 
(including verification of identity) outlined in Sec. 2005.2.



Sec. 2005.4  Requests for copies of records.

    Rules governing requests for copies of records are the same as those 
for the granting of access to the records (including verification of 
identity) outlined in Sec. 2005.2. (See also Sec. 2005.7 for rules 
regarding fees.)



Sec. 2005.5  Requests to amend records.

    (a) Requirement for written requests. Individuals desiring to amend 
a record that pertains to them in a system of records maintained by STR 
must submit their request in writing in accordance with the procedures 
set forth herein unless this requirement is waived by the official 
having responsibility for the system of records. Records not subject to 
the Privacy Act of 1974 will not be amended in accordance with these 
provisions. However, individuals who believe that such records are 
inaccurate may bring this to the attention of STR.
    (b) Procedures. (1)(i) The request to amend a record in a system of 
records shall be addressed to the Administrative Officer. Included in 
the request shall be the name of the system and a brief description of 
the record proposed for amendment. In the event the request to amend the 
record is the result of the individual's having gained access to the 
record in accordance with the provisions concerning access to records as 
set forth above, copies of previous correspondence between the 
individual and STR will serve in lieu of a separate description of the 
record.
    (ii) When the individual's identity has been previously verified 
pursuant to Sec. 2005.2(b)(2)(vi) herein, further verification of 
identity is not required as long as the communication does not suggest 
that a need for verification has reappeared. If the individual's 
identity has not been previously verified, STR may require 
identification validation as described in Sec. 2005.2(b)(2)(vi). 
Individuals desiring assistance in the preparation of a request to amend 
a record should contact the Administrative Officer at the address cited 
above.
    (iii) The exact portion of the record the individual seeks to have 
amended should be clearly indicated. If possible, the proposed 
alternative language should also be set forth, or at a minimum, the 
facts which the individual believes are not accurate, relevant, timely, 
or complete should be set forth with such particularity as to permit STR 
not only to understand the individual's basis for the request, but also 
to make an appropriate amendment to the record.
    (iv) The request must also set forth the reasons why the individual 
believes his record is not accurate, relevant, timely, or complete. In 
order to avoid the retention by STR of personal information merely to 
permit verification of records, the burden of persuading STR to amend a 
record will be upon the individual. The individual must furnish 
sufficient facts to persuade the official in charge of the system of the 
inaccuracy, irrelevancy, untimeliness, or incompleteness of the record.

[[Page 492]]

    (2) STR action on the request. To the extent possible, a decision 
upon a request to amend a record will be made within 10 days, excluding 
Saturdays, Sundays, and legal Federal holidays. In the event a decision 
cannot be made within this time frame, the individual making the request 
will be informed within 10 days of the expected date for a decision. The 
decision upon a request for amendment will include the following:
    (i) The decision of the STR whether to grant in whole, or deny any 
part of the request to amend the record.
    (ii) The reasons for the determination for any portion of the 
request which is denied.
    (iii) The name and address of the official with whom an appeal of 
the denial may be lodged.
    (iv) The name and address of the official designated to assist, as 
necessary, and upon request of, the individual making the request in the 
preparation of the appeal.
    (v) A description of the review of the appeal within STR (see Sec. 
2005.6).
    (vi) A description of any other procedures which may be required of 
the individual in order to process the appeal.



Sec. 2005.6  Request for review.

    (a) Individuals wishing to request a review of the decision by STR 
with regard to an initial request to amend a record in accordance with 
the provisions of Sec. 2005.5, should submit the request for review in 
writing and, to the extent possible, include the information specified 
in Sec. 2005.5(a). Individuals desiring assistance in the preparation 
of their request for review should contact the Administrative Officer at 
the address provided herein.
    (b) The request for review should contain a brief description of the 
record involved or in lieu thereof, copies of the correspondence from 
STR in which the request to amend was denied and also the reasons why 
the individual believes that the disputed information should be amended. 
The request for review should make reference to the information 
furnished by the individual in support of his claim and the reasons, as 
required by Sec. 2005.5, set forth by STR in its decision denying the 
amendment. Appeals filed without a complete statement by the person 
making the request setting forth the reasons for the review will, of 
course, be processed. However, in order to make the appellate process as 
meaningful as possible, such person's disagreement should be 
understandably set forth. In order to avoid the unnecessary retention of 
personal information, STR reserves the right to dispose of the material 
concerning the request to amend a record if no request for review in 
accordance with this section is received by STR within 180 days of the 
mailing by STR of its decision upon an initial request. A request for 
review received after the 180 day period may, at the discretion of the 
Administrative Officer, be treated as an initial request to amend a 
record.
    (c) The request for review should be addressed to the Freedom of 
Information Appeals Committee (established in 15 CFR 2004.7) Office of 
the Special Representative for Trade Negotiations, room 719, 1800 G St. 
NW., Washington, DC 20506.
    (d) Final determinations on requests for reviews within STR will be 
made by the Freedom of Information Appeals Committee, chaired by the 
Special Representative for Trade Negotiations. Additional information 
may be requested by the Committee from the person requesting a review if 
necessary to make a determination.
    (e) The FOI Appeals Committee will inform the person making the 
request in writing of the decision on the request for review within 30 
days (excluding Saturdays, Sundays, and legal Federal holidays) from the 
date of receipt by STR of the individual's request for review, unless 
the Committee extends the 30 day period for good cause. The extension 
and the reasons therefor will be sent by STR to the individual within 
the initial 30 day period. Included in the notice of a decision being 
reviewed, if the decision does not grant in full the request for review, 
will be a description of the steps the individual may take to obtain 
judicial review of such a decision, and a statement that the individual 
may file a concise statement with STR setting forth the individual's 
reasons for his disagreement with the decision upon the request for 
review. The STR Administrative Officer has the authority to determine 
the

[[Page 493]]

``conciseness'' of the statement, taking into account the scope of the 
disagreement and the complexity of the issues. Upon the filing of a 
proper concise statement by the individual, any subsequent disclosure of 
the information in dispute will have the information in dispute clearly 
noted and a copy of the concise statement furnished, setting forth its 
reasons for not making the requested changes, if STR chooses to file 
such a statement. A copy of the individual's statement, and if it 
chooses, STR's statement, will be sent to any prior transferee of the 
disputed information who is listed on the accounting required by 5 
U.S.C. 552a(c).



Sec. 2005.7  Schedule of fees.

    (a) Prohibitions against charging fees. Individuals will not be 
charged for:
    (1) The search and review of the record;
    (2) Any copies of the record produced as a necessary part of the 
process of making the record available for access; or
    (3) Any copies of the requested record when it has been determined 
that access can only be accomplished by providing a copy of the record 
through the mail.
    (b) Waiver. The Administrative Officer may, at no charge, provide 
copies of a record if it is determined the production of the copies is 
in the interest of the Government.
    (c) Fee schedule and method of payment. Fees will be charged as 
provided below except as provided in paragraphs (a) and (b) of this 
section.
    (1) Duplication of records. Records will be duplicated at a rate of 
$.10 per page for all copying of 4 pages or more. There is no charge for 
duplicating 3 or fewer pages.
    (2) Where it is anticipated that the fees chargeable under this 
section will amount to more than $25, the person making the request 
shall be promptly notified of the amount of the anticipated fee or such 
portion thereof as can readily be estimated. In instances where the 
estimated fees will greatly exceed $25, an advance deposit may be 
required. The notice or request for an advance deposit shall extend an 
offer to the person requesting to consult with the Administrative 
Officer in order to reformulate the request in a manner which will 
reduce the fees, yet still meet the needs of individuals making the 
request.
    (3) Fees must be paid in full prior to issuance of requested copies. 
In the event the person requesting is in arrears for previous requests 
copies will not be provided for any subsequent request until the arrears 
have been paid in full.
    (4) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the order of the Treasury of 
the United States and mailed or delivered to the Administrative Officer, 
Office of the Special Representative for Trade Negotiations, 1800 G St., 
NW., Washington, DC, 20506.
    (5) A receipt for fees paid will be given upon request.



PART 2006_PROCEDURES FOR FILING PETITIONS FOR ACTION UNDER SECTION 301 OF THE 

TRADE ACT OF 1974, AS AMENDED--Table of Contents




Sec.
2006.0 Submission of petitions requesting action under section 301.
2006.1 Information to be included in petition.
2006.2 Adequacy of the petition.
2006.3 Determinations regarding petitions.
2006.4 Requests for information made to Foreign Governments or 
          Instrumentalities.
2006.5 Consultations with the Foreign Government.
2006.6 Formal dispute settlement.
2006.7 Public hearings.
2006.8 Submission of written briefs.
2006.9 Presentation of oral testimony at public hearings.
2006.10 Waiver of requirements.
2006.11 Consultations before making determinations.
2006.12 Determinations; time limits.
2006.13 Information open to public inspection.
2006.14 Information not available.
2006.15 Information exempt from public inspection.

    Authority: Sec. 309(a)(1), Trade Act of 1974, as amended by sec. 
1301 of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. 100-
418, 102 Stat. 1176 (19 U.S.C. 2419).

[[Page 494]]


    Source: 55 FR 20595, May 18, 1990, unless otherwise noted.



Sec. 2006.0  Submission of petitions requesting action under section 301.

    (a) Section 301 of the Trade Act of 1974, as amended (the ``Trade 
Act'') requires the United States Trade Representative, subject to the 
specific direction, if any, of the President regarding such action, to 
take appropriate and feasible action in response to a foreign 
government's violation of a trade agreement, or any other international 
agreement the breach of which burdens or restricts United States 
commerce; and authorizes the Trade Representative, subject to the 
specific direction of the President, if any, to take action to obtain 
the elimination of acts, policies, and practices of foreign countries 
that are unjustifiable, unreasonable, or discriminatory and burden or 
restrict United States commerce. Section 302 of the Trade Act provides 
for petitions to be filed with the Trade Representative requesting that 
action be taken under section 301. Petitions filed under section 302 
will be treated as specified in these regulations.
    (b) Petitions may be submitted by an interested person. An 
interested person is deemed to be any party who has a significant 
interest affected by the act, policy, or practice complained of, for 
example: A producer, a commercial importer, or an exporter of an 
affected product or service; a United States person seeking to invest 
directly abroad, with implications for trade in goods or services; a 
person who relies on protection of intellectual property rights; a trade 
association, a certified union or recognized union or group of workers 
which is representative of an industry engaged in the manufacture, 
production or wholesale distribution in the United States of a product 
or service so affected; or any other private party representing a 
significant economic interest affected directly by the act, policy or 
practice complained of in the petition.
    (c) The petitioner shall submit 20 copies of the petition in 
English, clearly typed, photocopied, or printed to: Chairman, Section 
301 Committee, Office of the United States Trade Representative, 600 
17th Street, NW., Washington, DC 20506.
    To ensure proper docketing, petitions may be filed only during the 
following hours on days when the Federal Government is open for 
business: between 9 a.m. and 12 noon and 1 p.m. to 5 p.m.
    (d) Recorded information on section 302 petitions and investigations 
may be obtained by calling (202) 395-3871.



Sec. 2006.1  Information to be included in petition.

    (a) General information. Petitions submitted pursuant to section 302 
of the Trade Act shall clearly state on the first page that the petition 
requests that action be taken under section 301 of the Trade Act and 
shall contain allegations and information reasonably available to 
petitioner in support of the request, in the form specified below. 
Petitioners for whom such information is difficult or impossible to 
obtain shall provide as much information as possible, and assistance in 
filing their petition may be obtained through the Chairman of the 
Section 301 Committee. All petitions shall:
    (1) Identify the petitioner and the person, firm or association, if 
any, which petitioner represents and describe briefly the economic 
interest of the petitioner which is directly affected by the failure of 
a foreign government or instrumentality to grant rights of the United 
States under a trade agreement, or which is otherwise directly affected 
economically by an act, policy, or practice which is actionable under 
section 301.
    (2) Describe the rights of the United States being violated or 
denied under the trade agreement which petitioner seeks to enforce or 
the other act, policy or practice which is the subject of the petition, 
and provide a reference to the particular part of section 301 related to 
the assertion in the petition.
    (3) Include, wherever possible, copies of laws or regulations which 
are the subject of the petition. If this is not possible, the laws and 
regulations shall be identified with the greatest possible 
particularity, such as by citation.
    (4) Identify the foreign country or instrumentality with whom the 
United States has an agreement under which petitioner is asserting 
rights claimed

[[Page 495]]

to be denied or whose acts, policies or practices are the subject of the 
petition.
    (5) Identify the product, service, intellectual property right, or 
foreign direct investment matter for which the rights of the United 
States under the agreement claimed to be violated or denied are sought, 
or which is subject to the act, policy or practice of the foreign 
government or instrumentality named in paragraph (a)(4) of this section.
    (6) Demonstrate that rights of the United States under a trade 
agreement are not being provided; or show the manner in which the act, 
policy or practice violates or is inconsistent with the provisions of a 
trade agreement or otherwise denies benefits accruing to the United 
States under a trade agreement, or is unjustifiable, unreasonable, or 
discriminatory and burdens or restricts United States commerce.
    (7) Provide information concerning
    (i) The degree to which U.S. commerce is burdened or restricted by 
the denial of rights under a trade agreement or by any other act, 
policy, or practice which is actionable under section 301,
    (ii) The volume of trade in the goods or services involved, and
    (iii) A description of the methodology used to calculate the burden 
or restriction on U.S. commerce.
    (8) State whether petitioner has filed or is filing for other forms 
of relief under the Trade Act or any other provision of law. If the 
foreign government practice at issue is the subject of investigation 
under any other provision of law, the USTR may determine not to initiate 
an investigation; or if the same matter is subsequently subject to 
investigation under some other provision of law, USTR may terminate the 
section 302 investigation.
    (b) Additional specific information--(1) Subsidies. If the petition 
includes an assertion that subsidy payments are having an adverse effect 
upon products or services of the United States in United States' markets 
or in other foreign markets, it shall include an analysis supporting any 
claim that the subsidy complained of is inconsistent with any trade 
agreement and describe the manner in which it burdens or restricts 
United States commerce.
    (2) Certain unreasonable practices. If the petition asserts that an 
unreasonable practice defined in section 301(d) (3) denies fair and 
equitable opportunities for the establishment of an enterprise, or 
denies adequate and effective protection of intellectual property 
rights, or denies fair and equitable market opportunities, and burdens 
or restricts U.S. commerce, the petition should include, to the extent 
possible, identification of reciprocal opportunities in the United 
States that may exist for foreign nationals and firms; and
    (i) If the petition asserts that fair and equitable opportunities 
for the establishment of an enterprise in a foreign country are denied, 
the petition shall
    (A) Describe in detail the nature of any foreign direct investment 
proposed by the United States person, including estimates of trade in 
goods and services that could reasonably be expected to result from that 
investment,
    (B) Indicate the manner in which the foreign government is denying 
the United States person a fair and equitable opportunity for the 
establishment of an enterprise,
    (C) State whether action by the foreign government is in violation 
of or inconsistent with the international legal rights of the United 
States, citing the relevant provisions of any international agreements 
to which the United States and the foreign government are party, and
    (D) To the extent possible, provide copies of all relevant foreign 
government statutes, regulations, directives, public policy statements 
and correspondence with the United States person with respect to the 
proposed investment.
    (ii) If the petition asserts that fair and equitable provision of 
adequate and effective protection of intellectual property rights in a 
foreign country is denied, the petition shall
    (A) Identify the intellectual property right for which protection 
has been sought,
    (B) Indicate how persons who are not citizens or nationals of such 
foreign country are denied the opportunity to

[[Page 496]]

secure, exercise, and enforce rights relating to patents, process 
patents, registered trademarks, copyrights, or mask works, and
    (C) Provide information on the relevant laws of the foreign country 
and an analysis of how the foreign country's law or policies conform to 
provisions of international law or international agreements to which 
both the United States and the foreign country are parties;
    (iii) If the petition asserts that fair and equitable market 
opportunities are denied through the toleration by a foreign government 
of systematic private anticompetitive activities, the petition shall 
specifically
    (A) Identify the private firms in the foreign country whose 
systematic anticompetitive activities have the effect of restricting 
access of United States goods to purchasing by those firms, inconsistent 
with commercial considerations,
    (B) Describe in detail the private activities in question,
    (C) State whether evidence of such activities has been provided (by 
petitioner or others) to the appropriate foreign government authorities, 
and describe the evidence indicating that the foreign government is 
aware of and supports, encourages, or tolerates such activities,
    (D) Describe the duration and pervasiveness of such activities,
    (E) Indicate whether such activities are inconsistent with the laws 
of the foreign country involved, making specific reference to any laws 
in question, and
    (F) Indicate whether the foreign government's enforcement of (or 
failure to enforce) its relevant laws with respect to the private 
activities at issue is inconsistent with its enforcement practices in 
other situations;
    (iv) If the petition asserts that an act, policy or practice, or 
combination thereof constitutes export targeting, the petition shall
    (A) Identify the specific enterprise, industry, or group thereof 
which has been assisted in becoming more competitive in the export of 
the affected product or products,
    (B) Describe the elements of the foreign government's plan or scheme 
consisting of coordinated actions to assist that enterprise, industry, 
or group, and
    (C) Provide information on how and to what degree exports of the 
affected products by that enterprise, industry, or group have become 
more competitive as a result of the foreign government's plan or scheme; 
and
    (v) If the petition asserts that an act, policy or practice, or 
combination thereof constitutes a persistent pattern of conduct that 
denies workers the right of association or the right to organize and 
bargain collectively, or permits forced or compulsory labor, or fails to 
provide a minimum age for employment of children or standards for 
minimum wages, hours, and occupational safety and health of workers, the 
petition shall
    (A) Describe the rights or standards denied and provide information 
on the laws, policies and practices of the foreign country involved, if 
any, that relate to such rights or standards, and
    (B) Indicate, to the extent such information is available to 
petitioner, whether the foreign country has taken, or is taking, actions 
that demonstrate a significant and tangible overall advancement in 
providing these rights or standards.



Sec. 2006.2  Adequacy of the petition.

    If the petition filed pursuant to section 302 does not conform 
substantially to the requirements of Sec. Sec. 2006.0 and 2006.1, the 
Chairman of the Section 301 Committee may decline to docket the petition 
as filed and, if requested by petitioner, return it to petitioner with 
guidance on making the petition conform to the requirements, or may 
nevertheless determine that there is sufficient information on which to 
proceed to a determination whether to initiate an investigation.



Sec. 2006.3  Determinations regarding petitions.

    Within 45 days after the day on which the petition is received, the 
Trade Representative shall determine, after receiving the advice of the 
Section 301 Committee, whether to initiate an investigation.
    (a) If the Trade Representative determines not to initiate an 
investigation, the Section 301 Chairman shall notify

[[Page 497]]

the petitioner of the reasons and shall publish notice of the negative 
determination and a summary of the reasons therefor in the Federal 
Register.
    (b) If the Trade Representative determines to initiate an 
investigation regarding the petition, the Section 301 Chairman shall 
publish a summary of the petition in the Federal Register, and provide 
an opportunity for the presentation of views concerning the issues, 
including a public hearing if requested. A hearing may be requested by 
the petitioner or any interested person, including but not limited to a 
domestic firm or worker, a representative of consumer interests, a 
United States product exporter, or any industrial user of any goods or 
services that may be affected by actions taken under section 301 with 
respect to the act, policy or practice that is the subject of the 
petition.



Sec. 2006.4  Requests for information made to Foreign Governments or 

Instrumentalities.

    If the U.S. Trade Representative receives a petition alleging 
violations of any international agreement, he will notify the foreign 
government or instrumentality of the allegations and may request 
information, in English, necessary to a determination under section 
304(a)(1)(A) of the Trade Act. The Trade Representative may proceed on 
the basis of best information available if, within a reasonable time, no 
information is received in response to the request.



Sec. 2006.5  Consultations with the Foreign Government.

    (a) If the Trade Representative determines to initiate an 
investigation on the basis of a petition he shall, on behalf of the 
United States, request consultations with the foreign country concerned 
regarding the issues involved in such an investigation. In preparing 
United States presentations for consultations and dispute settlement 
proceedings, the Trade Representative shall seek information and advice 
from the petitioner and any appropriate private sector representatives, 
including committees established pursuant to section 135 of the Trade 
Act.
    (b) To ensure an adequate basis for consultation, the Trade 
Representative may, after consulting with the petitioner, delay requests 
for consultations for up to 90 days in order to verify or improve the 
petition. If consultations are delayed, the time limits referred to in 
Sec. 2006.12 below shall be extended for the period of such delay.



Sec. 2006.6  Formal dispute settlement.

    If the issues in a petition are covered by a trade agreement between 
the United States and the foreign government involved and a mutually 
acceptable resolution cannot be reached within the consultation period 
provided for in the agreement, or by 150 days after consultations begin, 
whichever is earlier, the Trade Representative shall institute the 
formal dispute settlement proceedings, if any, provided for in the trade 
agreement.



Sec. 2006.7  Public hearings.

    (a) A public hearing for the purpose of receiving views on the 
issues raised in a petition shall be held by the Section 301 Committee:
    (1) Within 30 days after the date that an investigation is initiated 
under section 302(a)(2) if a hearing is requested in the petition (or 
later, if agreed to by the petitioner); or
    (2) Within a reasonable period if, after the investigation is 
initiated, a timely request is made by the petitioner, or any other 
interested person as defined in Sec. 2006.3(b).
    (b) Prior to making a recommendation on what action, if any, should 
be taken in response to issues raised in the petition, the Section 301 
Committee shall hold a public hearing upon the written request of any 
interested person. An interested person should submit an application to 
the Section 301 Chairman stating briefly the interest of the person 
requesting the hearing, the firm, person, or association he represents, 
and the position to be taken. A hearing so requested shall be held:
    (1) Prior to determining what action should be taken under section 
301, and after at least 30 days' notice; or
    (2) Within 30 days after the determination of action is made, if the

[[Page 498]]

Trade Representative determines that expeditious action is required.
    (c) After receipt of a request for a public hearing under sections 
302(a)(4)(B) or 304(b)(1)(A) of the Trade Act, the Chairman of the 
Section 301 Committee will notify the applicant whether the request 
meets the requirements of this part, and if not, the reasons therefor. 
If the applicant has met the requirements of this part, he will receive 
at least 30 days' notice of the time and place of the hearing.
    (d) Notice of public hearings to be held under sections 302(a)(4)(B) 
and 304(b)(1)(A) shall be published in the Federal Register by the 
Chairman of the Section 301 Committee.



Sec. 2006.8  Submission of written briefs.

    (a) In order to participate in the presentation of views either at a 
public hearing or otherwise, an interested person must submit a written 
brief before the close of the period of submission announced in the 
public notice. The brief may be, but need not be, supplemented by the 
presentation of oral testimony in any public hearing scheduled in 
accordance with Sec. 2006.7.
    (b) The brief shall state clearly the position taken and shall 
describe with particularity the supporting rationale. It shall be 
submitted in 20 copies, which must be legibly typed, printed, or 
duplicated.
    (c) In order to assure each interested person an opportunity to 
contest the information provided by other parties, the Section 301 
Committee will entertain rebuttal briefs filed by any interested person 
within a time limit specified in the public notice. Rebuttal briefs 
should be strictly limited to demonstrating errors of fact or analysis 
not pointed out in the briefs or hearing and should be as concise as 
possible.



Sec. 2006.9  Presentation of oral testimony at public hearings.

    (a) A request by an interested person to present oral testimony at a 
public hearing shall be submitted in writing before the close of the 
period of submission announced in the public notice and shall state 
briefly the interest of the applicant. Such request will be granted if a 
brief has been submitted in accordance with Sec. 2006.8.
    (b) After consideration of a request to present oral testimony at a 
public hearing, the Chairman of the Section 301 Committee will notify 
the applicant whether the request conforms to the requirements of Sec. 
2006.8(a) and, if it does not, will give the reasons. If the applicant 
has submitted a conforming request he shall be notified of the time and 
place for the hearing and for his oral testimony.



Sec. 2006.10  Waiver of requirements.

    To the extent consistent with the requirements of the Trade Act, the 
requirements of Sec. Sec. 2006.0 through 2006.3 and 2006.8 may be 
waived by the Trade Representative or the Chairman of the Section 301 
Committee upon a showing of good cause and for reasons of equity and the 
public interest.



Sec. 2006.11  Consultations before making determinations.

    Prior to making a determination on what action, if any, should be 
taken in regard to issues raised in the petition, the Trade 
Representative shall obtain advice from any appropriate private sector 
advisory representatives, including committees established pursuant to 
section 135 of the Trade Act, unless expeditious action is required, in 
which case he shall seek such advice after making the determination. The 
Trade Representative may also request the views of the International 
Trade Commission regarding the probable economic impact of the proposed 
action.



Sec. 2006.12  Determinations; time limits.

    On the basis of the petition, investigation and consultations, and 
after receiving the advice of the Section 301 Committee, the Trade 
Representative shall determine whether U.S. rights under any trade 
agreement are being denied, or whether any other act, policy, or 
practice actionable under section 301 exists and, if so, what action (if 
any) should be taken under section 301. These determinations shall be 
made:
    (a) In the case of an investigation involving a trade agreement 
(other than

[[Page 499]]

the agreement on subsidies and countervailing measures described in 
section 2(c)(5) of the Trade Agreements Act of 1979), within 30 days 
after the dispute settlement procedure concludes, or 18 months after the 
initiation of the investigation, whichever is earlier.
    (b) In all other cases, within 12 months after initiating an 
investigation.



Sec. 2006.13  Information open to public inspection.

    (a) With the exception of information subject to Sec. 2006.15, an 
interested person may, upon advance request, inspect at a public reading 
room in the Office of the United States Trade Representative:
    (1) Any written petition, brief, or similar submission of 
information (other than that to which confidentiality applies) made in 
the course of a section 302 proceeding;
    (2) Any stenographic record of a public hearing held pursuant to 
section 302 or 304.
    (b) In addition, upon written request submitted in accordance with 
section 308 of the Trade Act, any person may obtain from the Section 301 
Chairman the following, to the extent that such information is available 
to the Office of the U.S. Trade Representative or other Federal 
agencies:
    (1) Information on the nature and extent of a specific trade policy 
or practice of a foreign government or instrumentality with respect to 
particular goods, services, investment, or intellectual property rights;
    (2) Information on United States rights under any trade agreement 
and the remedies which may be available under that agreement and under 
the laws of the United States; and
    (3) Information on past and present domestic and international 
proceedings or actions with respect to the policy or practice concerned.
    (c) An appropriate fee will be charged for duplication of documents 
requested under Sec. 2006.13.



Sec. 2006.14  Information not available.

    If the Office of the U.S. Trade Representative does not have, and 
cannot obtain from other Federal agencies, information requested in 
writing by any person, the Section 301 Chairman shall, within 30 days 
after the receipt of the request:
    (a) Request the information from the foreign government involved; or
    (b) Decline to request the information and inform the person in 
writing of the reasons for the refusal.



Sec. 2006.15  Information exempt from public inspection.

    (a) The Chairman of the Section 301 Committee shall exempt from 
public inspection business information submitted in confidence if he 
determines that such information involves trade secrets or commercial 
and financial information the disclosure of which is not authorized by 
the person furnishing such information nor required by law.
    (b) An interested person requesting that the Chairman exempt from 
public inspection confidential business information submitted in writing 
must certify in writing that such information is business confidential, 
the disclosure of such information would endanger trade secrets or 
profitability, and such information is not generally available. The 
information submitted must be clearly marked ``BUSINESS CONFIDENTIAL'' 
in a contrasting color ink at the top of each page on each copy, and 
shall be accompanied by a nonconfidential summary of the confidential 
information.
    (c) The Section 301 Chairman may use such information, or make such 
information available (in his own discretion) to any employee of the 
Federal Government for use in any investigation under section 302, or 
make such information available to any other person in a form which 
cannot be associated with, or otherwise identify, the person providing 
the information.
    (d) The Section 301 Chairman may deny a request that he exempt from 
public inspection any particular business information if he determines 
that such information is not entitled to exemption under law. In the 
event of a denial, the interested person submitting the particular 
business information will be notified of the reasons for the denial and 
will be permitted to withdraw the submission.

[[Page 500]]



PART 2007_REGULATIONS OF THE U.S. TRADE REPRESENTATIVE PERTAINING TO 

ELIGIBILITY OF ARTICLES AND COUNTRIES FOR THE GENERALIZED SYSTEM OF PREFERENCE 

PROGRAM (GSP (15 CFR PART 2007))--Table of Contents




Sec.
2007.0 Requests for reviews.
2007.1 Information required of interested parties in submitting requests 
          for modifications in the list of eligible articles.
2007.2 Action following receipt of requests for modifications in the 
          list of eligible articles and for reviews of the GSP status of 
          eligible beneficiary countries with respect to designation 
          criteria.
2007.3 Timetable for reviews.
2007.4 Publication regarding requests.
2007.5 Written briefs and oral testimony.
2007.6 Information open to public inspection.
2007.7 Information exempt from public inspection.
2007.8 Other reviews of article eligibilities.

    Authority: 19 U.S.C. 2461-65, 88 Stat. 2066-2071, as amended by 
Title V of the Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 
Stat. 3018-3024; E.O. 11846 of March 27, 1975 (40 FR 14291), E.O. 12188 
of January 2, 1980 (45 FR 989).

    Source: 51 FR 5037, Feb. 11, 1986, unless otherwise noted.



Sec. 2007.0  Requests for reviews.

    (a) An interested party may submit a request (1) that additional 
articles be designated as eligible for GSP duty-free treatment, provided 
that the article has not been accepted for review within the three 
preceding calendar years; or (2) that the duty-free treatment accorded 
to eligible articles under the GSP be withdrawn, suspended or limited; 
or (3) for a determination of whether a like or directly competitive 
product was produced in the United States on January 3, 1985 for the 
purposes of section 504(d)(1) (19 U.S. 2464(d)(1)); or (4) that the 
President exercise his waiver authority with respect to a specific 
article or articles pursuant to section 504(c)(3) (19 U.S.C. 
2464(c)(3)); or (5) that product coverage be otherwise modified.
    (b) During the annual reviews and general reviews conducted pursuant 
to the schedule set out in Sec. 2007.3 any person may file a request to 
have the GSP status of any eligible beneficiary developing country 
reviewed with respect to any of the designation criteria listed in 
section 502(b) or 502(c) (19 U.S.C. 2642 (b) and (c)). Such requests 
must (1) specify the name of the person or the group requesting the 
review; (2) identify the beneficiary country that would be subject to 
the review; (3) indicate the specific section 502(b) or 502(c) criteria 
which the requestor believes warrants review; (4) provide a statement of 
reasons why the beneficiary country's status should be reviewed along 
with all available supporting information; (5) supply any other relevant 
information as requested by the GSP Subcommittee. If the subject matter 
of the request has been reviewed pursuant to a previous request, the 
request must include substantial new information warranting further 
consideration of the issue.
    (c) An interested party or any other person may make submissions 
supporting, opposing or otherwise commenting on a request submitted 
pursuant to either paragraph (a) or (b) of this section.
    (d) For the purposes of the regulations set out under Sec. 2007.0 
et seq., an interested party is defined as a party who has significant 
economic interest in the subject matter of the request, or any other 
party representing a significant economic interest that would be 
materially affected by the action requested, such as a domestic producer 
of a like or directly competitive article, a commercial importer or 
retailer of an article which is eligible for the GSP or for which such 
eligibility is requested, or a foreign government.
    (e) All requests and other submissions should be submitted in 20 
copies, and should be addressed to the Chairman, GSP Subcommittee, Trade 
Policy Staff Committee, Office of the United States Trade 
Representative, 600 17th Street, NW., Washington, DC 20506. Requests by 
foreign governments may be made in the form of diplomatic correspondence 
provided that such requests comply with the requirements of Sec. 
2007.1.
    (f) The Trade Policy Staff Committee (TPSC) may at any time, on its 
own

[[Page 501]]

motion, initiate any of the actions described in paragraph (a) or (b) of 
this section.



Sec. 2007.1  Information required of interested parties in submitting requests 

for modifications in the last of eligible articles.

    (a) General Information Required. A request submitted pursuant to 
this part, hereinafter also referred to as a petition, except requests 
submitted pursuant to Sec. 2007.0(b), shall state clearly on the first 
page that it is a request for action with respect to the provision of 
duty-free treatment for an article or articles under the GSP, and must 
contain all information listed in this paragraph and in paragraphs (b) 
and (c). Petitions which do not contain the information required by this 
paragraph shall not be accepted for review except upon a showing that 
the petitioner made a good faith effort to obtain the information 
required. Petitions shall contain, in addition to any other information 
specifically requested, the following information:
    (1) The name of the petitioner, the person, firm or association 
represented by the petitioner, and a brief description of the interest 
of the petitioner claiming to be affected by the operation of the GSP;
    (2) An identification of the product or products of interest to the 
petitioner, including a detailed description of products and their uses 
and the identification of the pertinent item number of the Tariff 
Schedules of the United States (TSUS). Where the product or products of 
interest are included with other products in a basket category of the 
TSUS, provide a detailed description of the product or products of 
interest;
    (3) A description of the action requested, together with a statement 
of the reasons therefor and any supporting information;
    (4) A statement of whether to the best of the Petitioner's 
knowledge, the reasoning and information has been presented to the TPSC 
previously either by the petitioner or another party. If the Petitioner 
has knowledge the request has been made previously, it must include 
either new information which indicates changed circumstances or a 
rebuttal of the factors supporting the denial of the previous request. 
If it is a request for a product addition, the previous request must not 
have been formally accepted for review within the preceding three 
calendar year period; and
    (5) A statement of the benefits anticipated by the petitioner if the 
request is granted, along with supporting facts or arguments.
    (b) Requests to withdraw, limit or suspend eligibility with respect 
to designated articles. Petitions requesting withdrawal or limitation of 
duty-free treatment accorded under GSP to an eligible article or 
articles must include the following information with respect to the 
relevant United States industry for the most recent three year period:
    (1) The names, number and locations of the firms producing a like or 
directly competitive product;
    (2) Actual production figures;
    (3) Production capacity and capacity utilization;
    (4) Employment figures, including number, type, wage rate, location, 
and changes in any of these elements;
    (5) Sales figures in terms of quantity, value and price;
    (6) Quantity and value of exports, as well as principal export 
markets;
    (7) Profitability of firm on firms producing the like product, if 
possible show profit data by product line;
    (8) Analysis of cost including materials, labor and overhead;
    (9) A discussion of the competitive situation of the domestic 
industry;
    (10) Identification of competitors; analysis of the effect imports 
receiving duty-free treatment under the GSP have on competition and the 
business of the interest on whose behalf the request is made;
    (11) Any relevant information relating to the factors listed in 
section 501 and 502(c) of Title V of the Trade Act of 1974, as amended 
(19 U.S.C. 2501, 502(c)) such as identification of tariff and non-tariff 
barriers to sales in foreign markets;
    (12) Any other relevant information including any additional 
information that may be requested by the GSP Subcommittee.

[[Page 502]]

    This information should be submitted with the request for each 
article that is the subject of the request, both for the party making 
the request, and to the extent possible, for the industry to which the 
request pertains.
    (c) Requests to designate new articles. Information to be provided 
in petitions requesting the designation of new articles submitted by 
interested parties must include for the most recent three year period 
the following information for the beneficiary country on whose behalf 
the request is being made and, to the extent possible, other principal 
beneficiary country suppliers:
    (1) Identification of the principal beneficiary country suppliers 
expected to benefit from proposed modification;
    (2) Name and location of firms;
    (3) Actual production figures (and estimated increase in GSP status 
is granted);
    (4) Actual production and capacity utilization (and estimated 
increase if GSP status is granted);
    (5) Employment figures, including numbers, type, wage rate, location 
and changes in any of these elements if GSP treatment is granted;
    (6) Sales figures in terms of quantity, value and prices;
    (7) Information on total exports including principal markets, the 
distribution of products, existing tariff preferences in such markets, 
total quantity, value and trends in exports;
    (8) Information on exports to the United States in terms of 
quantity, value and price, as well as considerations which affect the 
competitiveness of these exports relative to exports to the United 
States by other beneficiary countries of a like or directly competitive 
product. Where possible, petitioners should provide information on the 
development of the industry in beneficiary countries and trends in their 
production and promotional activities;
    (9) Analysis of cost including materials, labor and overhead;
    (10) Profitability of firms producing the product;
    (11) Information on unit prices and a statement of other 
considerations such as variations in quality or use that affect price 
competition;
    (12) If the petition is submitted by a foreign government or a 
government controlled entity, it should include a statement of the 
manner in which the requested action would further the economic 
development of the country submitting the petition;
    (13) If appropriate, an assessment of how the article would qualify 
under the GSP's 35 percent value-added requirements; and
    (14) Any other relevant information, including any information that 
may be requested by the GSP Subcommittee.
    Submissions made by persons in support of or opposition to a request 
made under this part should conform to the requirements for requests 
contained in Sec. 2007.1(a) (3) and (4), and should supply such other 
relevant information as is available.



Sec. 2007.2  Action following receipt of requests for modifications in the 

list of eligible articles and for reviews of the GSP status of eligible 

beneficiary countries with respect to designation criteria.

    (a)(1) If a request submitted pursuant to Sec. 2007.0(a) does not 
conform to the requirements set forth above, or if it is clear from 
available information that the request does not warrant further 
consideration, the request shall not be accepted for review. Upon 
written request, requests which are not accepted for review will be 
returned together with a written statement of the reasons why the 
request was not accepted.
    (2) If a request submitted pursuant to Sec. 2007.0(b) does not 
conform to the requirements set forth above, or if the request does not 
provide sufficient information relevant to subsection 502(b) or 502(c) 
(19 U.S.C. 2642 (b) and (c)) to warrant review, or if it is clear from 
available information that the request does not fall within the criteria 
of subsection 502(b) or 502(c), the request shall not be accepted for 
review. Upon written request, requests which are not accepted for review 
will be returned together with a written statement of the reasons why 
the request was not accepted.
    (b) Requests which conform to the requirements set forth above or 
for which petitioners have demonstrated a good faith effort to obtain 
information in order to meet the requirements set

[[Page 503]]

forth above, and for which further consideration is deemed warranted, 
shall be accepted for review.
    (c) The TPSC shall announce in the Federal Register those requests 
which will be considered for full examination in the annual review and 
the deadlines for submissions made pursuant to the review, including the 
deadlines for submission of comments on the U.S. International Trade 
Commission (USITC) report in instances in which USITC advice is 
requested.
    (d) In conducting annual reviews, the TPSC shall hold public 
hearings in order to provide the opportunity for public testimony on 
petitions and requests filed pursuant to paragraphs (a) and (b) of Sec. 
2007.0.
    (e) As appropriate, the USTR on behalf of the President will request 
advice from the USITC.
    (f) The GSP Subcommittee of the TPSC shall conduct the first level 
of interagency consideration under this part, and shall submit the 
results of its review to the TPSC.
    (g) The TPSC shall review the work of the GSP Subcommittee and shall 
conduct, as necessary, further reviews of requests submitted and 
accepted under this part. Unless subject to additional review, the TPSC 
shall prepare recommendations for the President on any modifications to 
the GSP under this part. The Chairman of the TPSC shall report the 
results of the TPSC's review to the U.S. Trade Representative who may 
convene the Trade Policy Review Group (TPRG) or the Trade Policy 
Committee (TPC) for further review of recommendations and other 
decisions as necessary. The U.S. Trade Representative, after receiving 
the advice of the TPSC, TPRG or TPC, shall make recommendations to the 
President on any modifications to the GSP under this part, including 
recommendations that no modifications be made.
    (h) In considering whether to recommend: (1) That additional 
articles be designated as eligible for the GSP; (2) that the duty-free 
treatment accorded to eligible articles under the GSP be withdrawn, 
suspended or limited; (3) that product coverage be otherwise modified; 
or (4) that changes be made with respect to the GSP status of eligible 
beneficiary countries, the GSP Subcommittee on behalf of the TPSC, TPRG, 
or TPC shall review the relevant information submitted in connection 
with or concerning a request under this part together with any other 
information which may be available relevant to the statutory 
prerequisites for Presidential action contained in Title V of the Trade 
Act of 1974, as amended (19 U.S.C. 2461-2465).



Sec. 2007.3  Timetable for reviews.

    (a) Annual review. Beginning in calendar year 1986, reviews of 
pending requests shall be conducted at least once each year, according 
to the following schedule, unless otherwise specified by Federal 
Register notice:
    (1) June 1, deadline for acceptance of petitions for review;
    (2) July 15, Federal Register announcement of petitions accepted for 
review;
    (3) September/October--public hearings and submission of written 
briefs and rebuttal materials;
    (4) December/January--opportunity for public comment on USITC public 
reports;
    (5) Results announced on April 1 will be implemented on July 1, the 
statutory effective date of modifications to the program. If the date 
specified is on or immediately follows a weekend or holiday, the 
effective date will be on the second working day following such weekend 
or holiday.
    (b) Requests filed pursuant to paragraph (a) or (b) of Sec. 2007.0 
which indicate the existence of unusual circumstances warranting an 
immediate review may be considered separately. Requests for such urgent 
consideration should contain a statement of reasons indicating why an 
expedited review is warranted.
    (c) General Review. Section 504(c)(2) of Title V of the Trade Act of 
1974 (19 U.S.C. 2464(c)(2)) requires that, not later than January 4, 
1987 and periodically thereafter, the President conduct a general review 
of eligible articles based on the considerations in sections 501 and 
502(c) of Title V. The initiation and scheduling of such reviews as well 
as the timetable for submission of comments and statements will be 
announced in the Federal Register. The

[[Page 504]]

first general review was initiated on February 14, 1985 and will be 
completed by January 3, 1987.
    The initiation of the review and deadlines for submission of 
comments and statements were announced in the Federal Register on 
February 14, 1985 (50 FR 6294).



Sec. 2007.4  Publication regarding requests.

    (a) Whenever a request is received which conforms to these 
regulations or which is accepted pursuant to Sec. 2007.2 a statement of 
the fact that the request has been received, the subject matter of the 
request (including if appropriate, the TSUS item number or numbers and 
description of the article or articles covered by the request), and a 
request for public comment on the petitions received shall be published 
in the Federal Register.
    (b) Upon the completion of a review and publication of any 
Presidential action modifying the GSP, a summary of the decisions made 
will be published in the Federal Register including:
    (1) A list of actions taken in response to requests; and
    (2) A list of requests which are pending.
    (c) Whenever, following a review, there is to be no change in the 
status of an article with respect to the GSP in response to a request 
filed under Sec. 2007.0(a), the party submitting a request with respect 
to such articles may request an explanation of factors considered.
    (d) Whenever, following a review, there is to be no change in the 
status of a beneficiary country with respect to the GSP in response to a 
request filed under Sec. 2007.0(b), the GSP Subcommittee will notify 
the party submitting the request in writing of the reasons why the 
requested action was not taken.



Sec. 2007.5  Written briefs and oral testimony.

    Sections 2003.2 and 2003.4 of this chapter shall be applicable to 
the submission of any written briefs or requests to present oral 
testimony in connection with a review under this part. For the purposes 
of this section, the term ``interested party'' as used in Sec. Sec. 
2003.2 and 2003.4 shall be interpreted as including parties submitting 
petitions and requests pursuant to Sec. 2007.0(a) or (b) as well as any 
other person wishing to file written briefs or present oral testimony.



Sec. 2007.6  Information open to public inspection.

    With exception of information subject to Sec. 2007.7 any person 
may, upon request inspect at the Office of the United States Trade 
Representative:
    (a) Any written request, brief, or similar submission of information 
made pursuant to this part; and
    (b) Any stenographic record of any public hearings which may be held 
pursuant to this part.



Sec. 2007.7  Information exempt from public inspection.

    (a) Information submitted in confidence shall be exempt from public 
inspection if it is determined that the disclosure of such information 
is not required by law.
    (b) A party requesting an exemption from public inspection for 
information submitted in writing shall clearly mark each page 
``Submitted in Confidence'' at the top, and shall submit a 
nonconfidential summary of the confidential information. Such person 
shall also provide a written explanation of why the material should be 
so protected.
    (c) A request for exemption of any particular information may be 
denied if it is determined that such information is not entitled to 
exemption under law. In the event of such a denial, the information will 
be returned to the person who submitted it, with a statement of the 
reasons for the denial.



Sec. 2007.8  Other reviews of article eligibilities.

    (a) As soon after the beginning of each calendar year as relevant 
trade data for the preceding year are available, modifications of the 
GSP in accordance with section 504(c) of the Trade Act of 1974 as 
amended (19 U.S.C. 2464) will be considered.
    (b) General review. Section 504(c)(2) of Title V of the Trade Act of 
1974 as amended (19 U.S.C. 2464(c)(2)) requires that not later than 
January 4, 1987 and

[[Page 505]]

periodically thereafter, the President conduct a general review of 
eligible articles based on the considerations in sections 501 and 502 of 
Title V. The purpose of these reviews is to determine which articles 
from which beneficiary countries are ``sufficiently competitive'' to 
warrant a reduced competitive need limit. Those articles determined to 
be ``sufficiently competitive'' will be subject to a new lower 
competitive need limit set at 25 percent of the value of total U.S 
imports of the article, or $25 million (this figure will be adjusted 
annually in accordance with nominal changes in U.S. gross national 
product (GNP), using 1984 as the base year). All other articles will 
continue to be subject to the original competitive need limits of 50 
percent or $25 million (this figure is adjusted annually using 1974 as 
the base year).
    (1) Scope of general reviews. In addition to an examination the 
competitiveness of specific articles from particular beneficiary 
countries, the general review will also include consideration of 
requests for competitive need limit waivers pursuant to section 
504(c)(3)(A) of Title V of the Trade Act of 1974 as amended (19 U.S.C. 
2464(c)) and requests for a determination of no domestic production 
under section 504(d)(1) of Title V of the Trade Act of 1974 as amended 
(19 U.S.C. 2464(d)(1)).
    (2) Factors to be considered. In determining whether a beneficiary 
country should be subjected to the lower competitive need limits with 
respect to a particular article, the President shall consider the 
following factors contained in sections 501 and 502(c) of Title V:
    (i) The effect such action will have on furthering the economic 
development of developing countries through expansion of their exports;
    (ii) The extent to which other major developed countries are 
undertaking a comparable effort to assist developing countries by 
granting generalized preferences with respect to imports of products of 
such countries;
    (iii) The anticipated impact of such action on the United States 
producers of like or directly competitive products;
    (iv) The extent of the beneficiary developing country's 
competitiveness with respect to eligible articles;
    (v) The level of economic development of such country, including its 
per capita GNP, the living standard of its inhabitants and any other 
economic factors the President deems appropriate;
    (vi) Whether or not the other major developed countries are 
extending generalized preferential tariff treatment to such country;
    (vii) The extent to which such country has assured the United States 
it will provide equitable and reasonable access to the markets and basic 
commodity resources of such country and the extent to which such country 
has assured the United States that it will refrain from engaging in 
unreasonable export practices;
    (viii) The extent to which such country is providing adequate and 
effective means under its laws for foreign nationals to secure, to 
exercise and to enforce exclusive rights in intellectual property, 
including patents, trademarks and copyrights;
    (ix) The extent to which such country has taken action to--
    (A) Reduce trade distorting investment practices and policies 
(including export performance requirements); and
    (B) Reduce or eliminate barriers to trade in services; and
    (x) Whether or not such country has taken or is taking steps to 
afford workers in that country (including any designated zone in that 
country) internationally recognized worker rights.



PART 2008_REGULATIONS TO IMPLEMENT E.O. 12065; OFFICE OF THE UNITED STATES 

TRADE REPRESENTATIVE--Table of Contents




                      Subpart A_General Provisions

Sec.
2008.1 References.
2008.2 Purpose.
2008.3 Applicability.

                        Subpart B_Classification

2008.4 Basic policy.
2008.5 Level of original classification.
2008.6 Duration of original classification.
2008.7 Challenges to classification.

[[Page 506]]

                   Subpart C_Derivative Classification

2008.8 Definition and application.
2008.9 Classification guides.

               Subpart D_Declassification and Downgrading

2008.10 Declassification authority.
2008.11 Mandatory review for declassification.
2008.12 Foreign government information.
2008.13 Systematic review guidelines.

                          Subpart E_Safeguards

2008.14 Storage.
2008.15 General restrictions on access.
2008.16 Security education program.
2008.17 Historical researchers and former Presidential appointees.

                   Subpart F_Implementation and Review

2008.18 Information Security Oversight Committee.
2008.19 Classification Review Committee.

    Authority: E.O. 12065.

    Source: 44 FR 55329, Sept. 26, 1979, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 2008.1  References.

    (a) Executive Order 12065, ``National Security Information,'' dated 
June 28, 1978.
    (b) Information Security Oversight Office, Directive No. 1, 
``National Security Information,'' dated October 2, 1978.



Sec. 2008.2  Purpose.

    The purpose of this regulation is to ensure, consistent with the 
authorities listed in section 1-1 of Executive Order 12065, that 
national security information originated or held by the Office of the 
Special Representative for Trade Negotiations is protected but only to 
the extent, and for the period, necessary to safeguard the national 
security.



Sec. 2008.3  Applicability.

    This regulation governs the Office of the Special Representative for 
Trade Negotiations. In consonance with the authorities listed in section 
1-1, it establishes the general policy and certain procedures for the 
security classification, downgrading, declassification, and safeguarding 
of information that is owned by, is produced for or by, or is under the 
control of the Office of the Special Representative for Trade 
Negotiations.



                        Subpart B_Classification



Sec. 2008.4  Basic policy.

    It is the policy of the Office of the Special Representative for 
Trade Negotiations to make available to the public as much information 
concerning its activities as is possible, consistent with its 
responsibility to protect the national security.



Sec. 2008.5  Level of original classification.

    Unnecessary classification, and classification at a level higher 
than is necessary, shall be avoided. If there is reasonable doubt as to 
which designation in section 1-1 of Executive Order 12065 is 
appropriate, or whether information should be classified at all, the 
less restrictive designation should be used, or the information should 
not be classified.



Sec. 2008.6  Duration of original classification.

    (a) Except as permitted below, in paragraphs (b) and (c) of this 
section, information or material which is classified after December 1, 
1978, shall be marked at the declassification no more than six years 
following its original classification.
    (b) Original classification may be extended beyond six years only by 
officials with Top Secret classification authority and agency heads 
listed in section 1-2 of the order. This extension authority shall be 
used only when these officials determine that the basis for original 
classification will continue throughout the entire period that the 
classification will be in effect and only for the following reasons:
    (1) The information is ``foreign government information'' as defined 
by the authorities in section 1.1;
    (2) The information reveals intelligence sources and methods;
    (3) The information pertains to communications security;

[[Page 507]]

    (4) The information reveals vulnerability or capability data, the 
unauthorized disclosure of which can reasonably be expected to render 
ineffective a system, installation, or project important to the national 
security;
    (5) The information concerns plans important to the national 
security, the unauthorized disclosure of which reasonably can be 
expected to nullify the effectiveness of the plan;
    (6) The information concerns specific foreign relations matters, the 
continued protection of which is essential to the national security;
    (7) The continued protection of the information is specifically 
required by statute.
    (c) Even when the extension of authority is exercised, the period of 
original classification shall not be greater than twenty years from the 
date of original classification, except that the original classification 
of ``foreign government information'' pursuant to paragraph (b)(1) of 
this section may be for a period of thirty years.



Sec. 2008.7  Challenges to classification.

    If holders of classified information believe that the information is 
improperly or unnecessarily classified, or that original classification 
has been extended for too long a period, they should discuss the matter 
with their immediate superiors or the classifier of the information. If 
these discussions do not satisfy the concerns of the challenger, the 
matter should be brought to the attention of the chairperson of the 
Information Security Oversight Committee. Action on such challenges 
shall be taken 30 days from date of receipt and the challenger shall be 
notified of the results. When requested, anonymity of the challenger 
shall be preserved.



                   Subpart C_Derivative Classification



Sec. 2008.8  Definition and application.

    Derivative classification is the act of assigning a level of 
classification to information that is determined to be the same in 
substance as information that is currently classified. Thus, derivative 
classification may be accomplished by any person cleared for access to 
that level of information, regardless of whether the person has original 
classification authority at that level.



Sec. 2008.9  Classification guides.

    Classification guides shall be issued by the Management Office 
pursuant to section 2-2 of the order. These guides, which shall be used 
to direct derivative classification, shall identify the information to 
be protected in specific and uniform terms so that the information 
involved can be identified readily.



               Subpart D_Declassification and Downgrading



Sec. 2008.10  Declassification authority.

    The Special Representative for Trade Negotiations is authorized to 
declassify documents in accordance with section 3-3 of Executive Order 
12065 and shall designate additional officials at the lowest practicable 
level to exercise declassification and downgrading authority.



Sec. 2008.11  Mandatory review for declassification.

    (a) Requests for mandatory review. (1) Requests for mandatory review 
for declassification under section 3-501 of Executive Order 12065 must 
be in writing and should be addressed to:

Attn.: General Counsel (Mandatory Review Request), Office of the Special 
Representative for Trade Negotiations, 1800 G Street, NW., Washington, 
DC 20506.

    (2) The requestor shall be informed of the date of receipt of the 
request. This date will be the basis for the time limits specified in 
paragraph (b) of this section.
    (3) If the request does not reasonably describe the information 
sought, the requestor shall be notified that, unless additional 
information is provided or the request is made more specific, no further 
action will be taken.
    (b) Review. (1) The requestor shall be informed of the Special Trade 
Representative's determination within sixty days of receipt of the 
initial request.
    (2) If the determination is to withhold some or all of the material 
requested, the requestor may appeal the determination. The requestor 
shall be informed that such an appeal must be

[[Page 508]]

made in writing within sixty days of receipt of the denial and should be 
addressed to the chairperson of the Office of the Special Representative 
for Trade Negotiations Classification Review Committee.
    (3) The requestor shall be informed of the appellate determination 
within thirty days of receipt of the appeal.
    (c) Fees. (1) Fees for the location and reproduction of information 
that is the subject of a mandatory review request shall be assessed 
according to the following schedule:
    (i) Search for records: $5.00 per hour when the search is conducted 
by a clerical employee; $8.00 per hour when the search is conducted by a 
professional employee. No fee shall be assessed for searches of less 
than one hour.
    (ii) Reproduction of documents: Documents will be reproduced at a 
rate of $.25 per page for all copying of four pages or more. No fee 
shall be assessed for reproducing documents that are three pages or 
less, or for the first three pages of longer documents.
    (2) When fees chargeable under this section will amount to more than 
$25, and the requestor has not indicated in advance a willingness to pay 
fees higher than that amount, the requestor shall be promptly notified 
of the amount of the anticipated fee or such portion thereof as can 
readily be estimated. In instances where the estimated fees will greatly 
exceed $25, an advance deposit may be required. Dispatch of such a 
notice or request shall suspend the running of the period for response 
by the Office of the Special Representative for Trade Negotiations until 
a reply is received from the requestor.
    (3) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to U.S. Treasurer and mailed to 
the Office of the Special Representative for Trade Negotiations, 1800 G 
St., NW., Washington, DC.
    (4) A receipt for fees paid will be given only upon request. No 
refund of fees paid for services actually rendered will be made.
    (5) The Office of the Special Representative for Trade Negotiations 
may waive all or part of any fee provided for in this section when it is 
deemed to be in the interest of either the Agency or the general public.



Sec. 2008.12  Foreign government information.

    The Office of the Special Representative for Trade Negotiations 
shall, in consultation with the Archivist and in accordance with the 
provisions of section 3-404 of Executive Order 12065, develop systematic 
review guidelines for review of foreign government information for 
declassification thirty years from the date of original classification.



Sec. 2008.13  Systematic review guidelines.

    Within 180 days after the effective date of the order, the Office of 
the Special Representative for Trade Negotiations shall, after 
consultation with the Archivist of the United States and review by the 
Information Security Oversight Office, issue and maintain guidelines for 
systematic review of classified information originated by the Office of 
the Special Representative for Trade Negotiations twenty years from the 
date of original classification. These guidelines shall state specific 
limited categories of information which, because of their national 
security sensitivity, should not be declassified automatically but 
should be reviewed item-by-item to determine whether continued 
protection beyond twenty years is needed. Information not identified in 
these guidelines as requiring review and for which a prior automatic 
declassification date has not been established shall be declassified 
automatically twenty years from the date of original classification.



                          Subpart E_Safeguards



Sec. 2008.14  Storage.

    The Office of the Special Representative for Trade Negotiations 
shall store all classified material in accordance with ISOO Directive of 
October 5, 1978 (43 FR 46281).



Sec. 2008.15  General restrictions on access.

    Access to classified information shall be restricted as required by 
section 4-1 of Executive Order 12065.

[[Page 509]]



Sec. 2008.16  Security education program.

    (a) The Office of the Special Representative for Trade Negotiations 
will inform agency personnel having access to classified information of 
all requirements of Executive Order 12065 and ISOO Directive I.
    (b) The Director, Office of Management, shall be charged with the 
implementation of this security education program and shall issue 
detailed procedures for the use of the agency personnel in fulfilling 
their day-to-day security responsibilities.



Sec. 2008.17  Historical researchers and former Presidential appointees.

    The requirement in section 4-101 of Executive Order 12065 with 
respect to access to classified information may be waived for historical 
researchers and former Presidential appointees in accordance with 
section 4-301 of that order.



                   Subpart F_Implementation and Review



Sec. 2008.18  Information Security Oversight Committee.

    The Office of the Special Representative for Trade Negotiations 
Information Security Oversight Committee shall be co-chaired by the 
General Counsel of the Office of the Special Representative for Trade 
Negotiations and the Director, Office of Management. The chairs shall 
also be responsible with the Committee for conducting and active 
oversight program to ensure effective implementation of Executive Order 
12065, and ISOO implementing directives. The Committee shall:
    (a) Establish a security education program to inform personnel who 
have access to classified information with the requirements of Executive 
Order 12065, and ISOO implementing directives.
    (b) Establish controls to ensure that classified information is 
used, processed, stored, reproduced, and transmitted only under 
conditions that will provide adequate protection and prevent access by 
unauthorized persons.
    (c) Act on all suggestions and complaints concerning the 
administration of the information security program.
    (d) Establish and monitor policies and procedures within the Office 
of the Special Representative for Trade Negotiations to ensure the 
orderly and effective declassification of documents.
    (e) Recommend to the Special Trade Representative appropriate 
administrative action to correct abuses or violations of any provision 
of Executive Order 12065.
    (f) Consider and decide other questions concerning classification 
and declassification that may be brought before it.



Sec. 2008.19  Classification Review Committee.

    The Classification Review Committee shall be chaired by the Special 
Trade Representative. The Committee shall decide appeals from denials of 
declassification requests submitted pursuant to section 3-5 of Executive 
Order 12065. The Committee shall consist of Special Representative, two 
Deputies and the General Counsel.



PART 2009_PROCEDURES FOR REPRESENTATIONS UNDER SECTION 422 OF THE TRADE AGREEMENTS ACT OF 1979--Table of Contents




Sec.
2009.0 Submission of representation.
2009.1 Information required in representation.



Sec. 2009.0  Submission of representation.

    (a) Any--(1) Part to the Agreement; or
    (2) Foreign country that is not a Party to the Agreement but is 
found by the United States Trade Representative, (``Trade 
Representative'') to extend rights and privileges to the United States 
that are substantially the same as those that would be so extended if 
that foreign country were a Party to the Agreement, may make a 
representation to the Trade Representative alleging that a standards-
related activity engaged in within the United States violates the 
obligations of the United States under the Agreement on Technical 
Barriers to Trade.

[[Page 510]]

    (b) All representations under section 422 of the Trade Agreements 
Act of 1979 (``section 422'') shall be addressed to the United States 
Trade Representative, Office of the United States Trade Representative, 
600 17th Street, NW., Washington, DC 20506. Alternatively, such a 
representation may be made by diplomatic correspondence and may be 
accepted by the Trade Representative.
    (c) ``The Agreement'', a ``Party to the Agreement'' and ``standards-
related activity'' are defined as in section 451 of the Act (19 U.S.C. 
2561).

(5 U.S.C. 301; 19 U.S.C. 2504(b), 2551-2554; E.O. 11846, 40 FR 14291; 
Reorganization Plan No. 3 of 1979, 44 FR 69173; E.O. 12188, 45 FR 989)

[47 FR 50207, Nov. 5, 1982]



Sec. 2009.1  Information required in representation.

    (a) Each representation submitted under section 422 should state 
clearly on the first page that the representation is a request for 
action with respect to the obligations of the United States under the 
Agreement, and should contain the following information:
    (1) The foreign country making the representation, the division of 
the foreign country's government representing that country's interest, 
the person(s) within the division who is (are) coordinating the foreign 
country's representation.
    (2) A description of the standards-related activity at issues, 
including, whenever possible, copies of the standards-related activity's 
provisions.
    (3) Identification of the foreign goods or services affected by the 
standards-related activity at issue.
    (4) A statement of how the standards-related activity concerned is 
alleged to violate the obligations of the United States under the 
Agreement. This statement shoud indicate with particularity which such 
obligations are alleged to be violated.
    (5) Indication as to whether the foreign country has officially 
petitioned, filed or complained for relief concerning the same subject 
matter as this representation to any international forum.
    (b) Each representation submitted under section 422 of the Act must 
contain information sufficient to provide a reasonable indication that 
the standards-related activity concerned is having a significant trade 
effect, including (but not limited to) the volume of trade in the goods 
concerned.
    (c) Representations should be submitted in 10 copies.

(5 U.S.C. 301; 19 U.S.C. 2504(b), 2551-2554; E.O. 11846, 40 FR 14291; 
Reorganization Plan No. 3 of 1979, 44 FR 69173; E.O. 12188, 45 FR 989)

[47 FR 50207, Nov. 5, 1982]



PART 2011_ALLOCATION OF TARIFF-RATE QUOTA ON IMPORTED SUGARS, SYRUPS AND 

MOLASSES--Table of Contents




               Subpart A_Certificates of Quota Eligibility

Sec.
2011.101 General.
2011.102 Definitions.
2011.103 Entry into the United States.
2011.104 Waiver.
2011.105 Form and applicability of certificate.
2011.106 Agreements with foreign countries.
2011.107 Issuance of certificates to foreign countries.
2011.108 Execution and issuance of certificates by the certifying 
          authority.
2011.109 Suspension or revocation of individual certificates.
2011.110 Suspension of certificate system.

                        Subpart B_Specialty Sugar

2011.201 General.
2011.202 Definitions.
2011.203 Issuance of specialty sugar certificates.
2011.204 Entry of specialty sugars.
2011.205 Application for a specialty sugar certificate.
2011.206 Suspension or revocation of individual certificates.
2011.207 Suspension of the certificate system.
2011.208 Paperwork Reduction Act assigned number.

    Authority: 19 U.S.C. 3601, Presidential Proclamation No. 6763, 
Additional U.S. note 5 to chapter 17 of the Harmonized Tariff Schedule 
of the United States.

    Source: 55 FR 40648, Oct. 4, 1990, unless otherwise noted.



               Subpart A_Certificate of Quota Eligibility



Sec. 2011.101  General.

    This subpart sets forth the terms and conditions under which 
certificates of

[[Page 511]]

quota eligibility will be issued to foreign countries that have been 
allocated a share of the U.S. sugar tariff-rate quota. Except as 
otherwise provided in this subpart, sugar imported from a foreign 
country may not be entered unless such sugar is accompanied by a 
certificate of quota eligibility. This subpart applies only to the 
ability to enter sugar at the in-quota tariff rates of the quota 
(subheadings 1701.11.10, 1701.12.10, 1701.91.10, 1701.99.10, 1702.90.10, 
and 2106.90.44 of the HTS). Nothing in this subpart shall affect the 
ability to enter articles at the over-quota tariff rate (subheadings 
1701.11.50, 1701.12.50, 1701.91.30, 1701.99.50, 1702.90.20, 2106.90.46).

[61 FR 26784, May 29, 1996]



Sec. 2011.102  Definitions.

    Unless the context otherwise requires, for the purpose of this 
subpart, the following terms shall have the meanings assigned below.
    (a) Additional U.S. Note 5 means additional U.S. Note 5 to chapter 
17 of the HTS, including any amendments thereto.
    (b) Appropriate customs official means the district or area Director 
of the U.S. Customs Service, his or her designee, or any other customs 
officer of similar authority and responsibility for the customs district 
in which the port of entry is located.
    (c) Certificate of quota eligibility or certificate means a 
certificate issued by the Secretary to a foreign country that, when duly 
executed and issued by the certifying authority of such foreign country, 
authorizes the entry into the United States of sugar produced in such 
country.
    (d) Certifying authority means a person designated by the government 
of a foreign country who is authorized to execute and issue certificates 
of quota eligibility on behalf of such foreign country.
    (e) Enter or Entry means to enter or withdraw from warehouse, or the 
entry or withdrawal from warehouse, for consumption in the customs 
territory of the United States.
    (f) Foreign country means, for any quota period, any foreign country 
or area with which an agreement or arrangement described in section 
2011.106 is in effect for that quota period and to which the United 
States Trade Representative has allocated a particular quantity of the 
quota.
    (g) HTS means the Harmonized Tariff Schedule of the United States.
    (h) Licensing Authority means the Team Leader, Import Quota 
Programs, Import Policies and Trade Analysis Division, Foreign 
Agricultural Service, U.S. Department of Agriculture, or his or her 
designee.
    (i) Person means an individual, partnership, corporation, 
association, estate, trust, or other legal entity, and, wherever 
applicable, any unit, instrumentality, or agency of a government, 
domestic or foreign.
    (j) Quota means the tariff-rate quota on imports of sugar provided 
in additional U.S. Note 5.
    (k) Quota period means the period October 1 of a calendar year 
through September 30 of the following calendar year.
    (l) Raw value has the meaning provided in additional U.S. Note 5.
    (m) Secretary means the Secretary of Agriculture or any officer or 
employee of the Department of Agriculture to whom the Secretary has 
delegated the authority or to whom the authority hereafter may be 
delegated to act in the Secretary's place.
    (n) Sugar means sugars, syrups, and molasses described in 
subheadings 1701.11.10, 1701.12.10, 1701.91.10, 1701.99.10, 1702.90.10, 
and 2106.90.44 of the HTS, but does not include for any foreign country 
for any quota period specialty sugars as defined in subpart B of this 
part if a quantity of the quota for that quota period has been reserved 
for specialty sugars and an amount of that quota quantity has been 
allocated to that country.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26784, May 29, 1996]



Sec. 2011.103  Entry into the United States.

    (a) General. Except as otherwise provided in Sec. Sec. 2011.104, 
2011.109, and 2011.110, no sugar that is the product of a foreign 
country may be permitted entry unless at the time of entry the person 
entering such sugar presents to the appropriate customs official a valid 
and

[[Page 512]]

properly executed certificate of quota eligibility for such sugar.
    (b) Determinations of weight. (1) For purposes of determining the 
amount of sugar which may be entered into the United States under a 
certificate of quota eligibility, sugar shall be entered on the basis of 
the actual weight of the sugar, as determined by the appropriate customs 
official. No adjustments in weight shall be made for the differences in 
polarization.
    (2) The actual weight of the sugar entered into the United States 
may not exceed the weight specified on the certificate of quota 
eligibility by more than five percent. Such tolerance may be modified by 
the Secretary if the Secretary finds that such modification is 
appropriate to carry out the provisions of this subpart. Notice of any 
such modification shall be published by the Secretary in the Federal 
Register.
    (3) This paragraph (b) shall not affect the manner in which the 
amount of sugar (raw value) entered is determined fo purposes of 
administering the quota.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26784, May 29, 1996]



Sec. 2011.104  Waiver.

    (a) General. The Secretary may waive, with respect to individual 
shipments, any or all of the requirements of this subpart if he or she 
determines that a waiver will not impair the proper operation of the 
sugar quota system, that it will not have the effect of modifying the 
allocation of sugar made pursuant to the provisions of subdivision (b) 
of additional U.S. Note 5, and that such waiver is justified by unusual, 
unavoidable, or otherwise appropriate circumstances. Such circumstances 
include, but are not limited to, loss or destruction of the certificate, 
unavoidable delays in transmittal of the certificate to the port of 
entry, and clerical errors in the execution or issuance of the 
certificate.
    (b) Request for waiver. The request for a waiver must be made to the 
Secretary in writing. The request need not follow any specific format. 
However, the request should set forth in detail all pertinent 
information relating to the shipment in question and the basis upon 
which the waiver should be granted.
    (c) Issuance of waiver. The Secretary shall notify, in writing, the 
applicant for the waiver and the Secretary of the Treasury of any waiver 
granted under the authority of this section. The Secretary may attach 
any terms, conditions or limitations to the waiver which he or she 
determines are appropriate.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26784, May 29, 1996]



Sec. 2011.105  Form and applicability of certificate.

    (a) Contents. Each certificate shall be numbered and identified by 
the foreign country. The certificate shall state that the quantity 
specified on the certificate is eligible to be entered into the United 
States during the applicable quota period. The certificate shall provide 
spaces into which the following information must be inserted by the 
certifying authority of the foreign country: Quantity eligible to be 
entered; name of shipper; name of vessel; and port of loading. The 
following information, if known, may also be specified on the 
certificate by the certifying authority: name and address of consignee; 
expected date of departure; expected date of arrival in U.S.; and 
expected port(s) of arrival in the United States. The certificate shall 
also provide an area where the certifying authority of the foreign 
country shall affix a seal or other form of authentication and sign and 
date the certificate.
    (b) Other limitations. The Secretary may attach such other terms, 
limitations, or conditions to individual certificates of quota 
eligibility as he or she determines are appropriate to carry out the 
purposes of this subpart, provided that such other terms, limitations, 
or conditions will not have the effect of modifying the allocation of 
sugar made pursaunt to the provisions of subdivision (b) of additional 
U.S. Note 5. Such terms, limitations, or conditions may include, but are 
not limited to, maximum quantities per certificate and a specified 
period of time during which the certificate shall be valid. In no event 
shall the maximum quantity per certificate exceed 10,000 short tons.

[[Page 513]]

    (c) Applicability of the certificate. The certificate of quota 
eligibility shall only be applicable to the shipment of sugar for which 
it was executed and issued by the certifying authority.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26784, May 29, 1996]



Sec. 2011.106  Agreements with foreign countries.

    Agreements or arrangements providing for the certificate system may 
be entered into by the United States Government with the governments of 
foreign countries. Such agreements or arrangements may provide for the 
designation of certifying authorities, the designation of seals or other 
forms of authentication, the transmittal and exchange of pertinent 
information, and other appropriate means or forms of cooperation.



Sec. 2011.107  Issuance of certificates to foreign countries.

    (a) Amount and timing. The Secretary may issue certificates of quota 
eligibility to foreign countries for any quota period in such amounts 
and at such times as he or she determines are appropriate to enable the 
foreign country to fill its quota allocation for such quota period in a 
reasonable manner, taking into account traditional shipping patterns, 
harvesting period, U.S. import requirements, and other relevant factors.
    (b) Adjustments. The Secretary may adjust the amount of certificates 
issued to a certifying authority for any quota period, provided that 
such adjustment will not have the effect of modifying the allocation of 
sugar made pursaunt to the provisions of subdivision (b) of additional 
U.S. Note 5 to reflect:
    (1) The amount of sugar entered into warehouse during previous quota 
periods;
    (2) Anticipated differences in actual weight and weight determined 
on a raw value basis; and
    (3) Other relevant factors.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26784, May 29, 1996]



Sec. 2011.108  Execution and issuance of certificates by the certifying 

authority.

    (a) Execution. The certificate of quota eligibility shall be 
executed by the certifying authority by:
    (1) Entering on the certificate the information required under Sec. 
2011.105 of this subpart; and
    (2) Affixing a seal or other form of authentication to the 
certificate.
    (b) Issuance. The executed certificate shall be issued by the 
certifying authority to the shipper or consignee specified on the 
certificate.
    (c) Modifications by the certifying authority. The terms and 
conditions set forth in the certificate may not be modified, added to, 
or deleted by the certifying authority without the prior written 
approval of the Secretary.
    (d) A certificate shall not be considered valid unless it is 
executed and issued in accordance with this section.



Sec. 2011.109  Suspension or revocation of individual certificates.

    (a) Suspension or revocation. The Secretary may suspend, revoke, 
modify or add further limitations to any certificate if the Secretary 
determines that such action or actions is necessary to ensure the 
effective operation of the import quota system for sugar and that such 
suspension, revocation, modification or addition of further limitations 
will not have the effect of modifying the allocation of sugar made 
pursuant to the provisions of subdivision (b) of additional U.S. Note 5.
    (b) Reinstatement. The Secretary may reinstate or reissue any 
certificate which was previously suspended, revoked, modified, or 
otherwise limited under the authority of this section.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26784, May 29, 1996]



Sec. 2011.110  Suspension of certificate system.

    (a) Suspension. The U.S. Trade Representative may suspend the 
provisions of this subpart whenever he or she determines that such 
action gives due consideration to the interests in the U.S. sugar market 
of domestic producers and materially affected contracting parties to the 
General Agreement on Tariffs and Trade. Notice of

[[Page 514]]

such suspension and the effective date thereof shall be published in the 
Federal Register.
    (b) Reinstatement. The U.S. Trade Representative may at any time 
reinstate the operation of this subpart if he or she finds that the 
conditions set forth in paragraph (a) of this section no longer apply. 
Notice of such reinstatement and the effective date thereof shall be 
published in the Federal Register.
    (c) Transitional provisions. In the case of any suspension or 
reinstatement of the certificate system established by this subpart, the 
Secretary, in consultation with the United States Trade Representative, 
may prescribe such additional guidelines, instructions, and limitations 
which shall be applied or implemented by appropriate customs officials 
in order to ensure an orderly transition.



                        Subpart B_Specialty Sugar



Sec. 2011.201  General.

    This subpart sets forth the terms and conditions under which 
certificates will be issued to U.S. importers for importing specialty 
sugars from specialty sugar source countries. Specialty sugars imported 
from specialty sugar source countries may not be entered unless 
accompanied by a specialty sugar certificate. This subpart applies only 
to the ability to enter specialty sugar at the in-quota tariff rates of 
the quota (subheadings 1701.11.10, 1701.12.10, 1701.91.10, 1701.99.10, 
1702.90.10, and 2106.90.44 of the HTS). Nothing in this subpart shall 
affect the ability to enter articles at the over-quota tariff rate 
(subheadings 1701.11.50, 1701.12.50, 1701.91.30, 1701.99.50, 1702.90.20, 
2106.90.46).

[61 FR 26785, May 29, 1996]



Sec. 2011.202  Definitions.

    Unless the context otherwise requires, for the purpose of this 
subpart, the following terms shall have the meanings assigned below.
    (a) Appropriate Customs official means the District or Area Director 
of Customs, his or her designee, or any other Customs officer of similar 
authority and responsibility for the Customs district in which the port 
of entry is located.
    (b) Certificate means a specialty sugar certificate issued by the 
Certifying Authority permitting the entry of specialty sugar.
    (c) Certifying Authority means the Team Leader, Import Quota 
Programs, Foreign Agricultural Service, U.S. Department of Agriculture, 
or his or her designee.
    (d) Date of entry means the date on which the appropriate Customs 
entry form is properly executed and deposited, together with any 
estimated duties and special import fees and any related documents 
required by law or regulation to be filed with such form at the time of 
entry with the appropriate Customs Officer.
    (e) Importer means any person in the United States importing 
specialty sugar into the United States.
    (f) Person means any individual, partnership, corporation, 
association, estate, trust, or other legal entity, and, wherever 
applicable, any unit, instrumentality, or agency, of a government, 
domestic or foreign.
    (g) Quota means the tariff-rate quota on imports of sugar provided 
in additional U.S. Note 5 to chapter 17 of the Harmonized Tariff 
Schedule of the United States.
    (h) Secretary means the Secretary of Agriculture or any officer of 
employee of the Department of Agriculture to whom the Secretary has 
delegated the authority or to whom the authority hereafter may be 
delegated to act in his place.
    (i) Specialty sugar means brown slab sugar (also known as slab sugar 
candy), pearl sugar (also known as perl sugar, perle sugar, and nibs 
sugar), vanilla sugar, rock candy, demerara sugar, dragees for cooking 
and baking, fondant (a creamy blend of sugar and glucose), ti light 
sugar (99.2% sugar with the residual comprised of the artificial 
sweeteners aspartame and acesulfame K), caster sugar, golden syrup, 
ferdiana granella grossa, golden granulated sugar, muscovado, molasses 
sugar, sugar decorations, sugar cubes, and other sugars, as determined 
by the United States Trade Representative, that would be considered 
specialty

[[Page 515]]

sugar products within the normal commerce of the United States, all of 
which in addition:
    (1) Are sugars, syrups, or molasses described in subheading 
1701.11.10, 1701.12.10, 1701.91.10, 1701.99.10, 1702.90.10, or 
2106.90.44 of the Harmonized Tariff Schedule of the United States,
    (2) Are the product of a specialty sugar source country, and
    (j) Specialty sugar source country means any country or area to 
which the United States Trade Representative has allocated an amount of 
the quantity reserved for the importation of specialty sugars under 
additional U.S. Note 5 to chapter 17 of the Harmonized Tariff Schedule 
of the United States.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26785, May 29, 1996]



Sec. 2011.203  Issuance of specialty sugar certificates.

    (a) Specialty sugars imported into the United States from specialty 
sugar source countries may be entered only if such specialty sugars are 
accompanied by a certificate issued by the Certifying Authority.
    (b) A certificate may be issued to an importer who complies with the 
provisions of this part. The certificate may contain such conditions, 
limitations or restrictions as the Certifying Authority, in his 
discretion, deems necessary. The Certifying Authority will issue a 
certificate if sufficient evidence has been provided to permit the 
Certifying Authority to make a reasonable determination that the sugar 
proposed to be imported under the certificate fits the definition of 
specialty sugars in this subpart.
    (c) Subject to quota availability, an unlimited number of complying 
shipments may enter under a given certificate and a given certificate 
may cover more than one type of specialty sugar. Issuance of a 
certificate does not guarantee the entry of any specific shipment of 
specialty sugar, but only permits entry of such sugar if the amount 
allocated to the specialty sugar source country is not already filled.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26785, May 29, 1996]



Sec. 2011.204  Entry of specialty sugars.

    An importer or the importer's agent must present a certificate to 
the appropriate customs official at the date of entry of specialty 
sugars. Entry of specialty sugars shall be allowed only in conformity 
with the description of sugars and other conditions, if any, stated in 
the certificate.

[61 FR 26785, May 29, 1996]



Sec. 2011.205  Application for a specialty sugar certificate.

    Applicants for certificates for the import of specialty sugars must 
apply in writing to the Certifying Authority. Such letter of application 
shall contain the following information:
    (a) The name and address of the applicant;
    (b) A statement of the anticipated quantity of specialty sugars to 
be imported, if known;
    (c) The appropriate six digit HTS subheading number;
    (d) A description of the specialty sugar the importer expects to 
import during the period of the certificate, including the 
manufacturer's or exporter's usual trade name or designation and use of 
such specialty sugar, and the importer's use of such specialty sugar;
    (e) Sufficient evidence to permit the Certifying Authority to make a 
reasonable determination that such sugars are specialty sugars within 
the definition of specialty sugars in this subpart;
    (f) The name of the anticipated consumer of the specialty sugars, if 
known at time of application; and
    (g) The anticipated date of entry, if known at time of application.

The Certifying Authority may waive any provision of this section for 
good cause if her or she determines that such a waiver will not 
adversely affect the implementation of this subpart.



Sec. 2011.206  Suspension or revocation of individual certificates.

    (a) Suspension or revocation. The Certifying Authority may suspend, 
revoke, modify or add limitations to any certificate which has been 
issued if he or

[[Page 516]]

she determines that such action or actions is necessary to ensure the 
effective operation of the quota for specialty sugars or determines that 
the importer has failed to comply with the requirements of this subpart.
    (b) Reinstatement. The Certifying Authority may reinstate or restore 
any certificate which was previously suspended, revoked, modified or 
otherwise limited under the authority of this section.
    (c) The determination of the Certifying Authority under paragraph 
(a) that the importer has failed to comply with the requirements of this 
subpart may be appealed to the Director, Import Policy and Trade 
Analysis Division, Foreign Agricultural Service (FAS), U.S. Department 
of Agriculture, Washington, DC 20250, within 30 days from the date of 
suspension or revocation. The request for reconsideration shall be 
presented in writing and shall specifically state the reason or reasons 
why such determination should not stand. The Director shall provide such 
person with an opportunity for an informal hearing on such matter. A 
further appeal may be made to the Administrator, FAS, U.S. Department of 
Agriculture, Washington, DC 20250, within five working days of receipt 
of the notification of the Director's decision. The Certifying Authority 
may take action under paragraph (b) during the pendency of any appeal.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26785, May 29, 1996]



Sec. 2011.207  Suspension of the certificate system.

    (a) Suspension. The U.S. Trade Representative may suspend the 
provisions of this subpart whenever he or she determines that the quota 
is no longer in force or that this subpart is no longer necessary to 
implement the quota. Notice of such suspension and the effective date 
thereof shall be published in the Federal Register.
    (b) Reinstatement. The U.S. Trade Representative may at any time 
reinstate the operation of this subpart if he or she finds that the 
conditions set forth in paragraph (a) of this section no longer apply. 
Notice of such reinstatement and the effective date thereof shall be 
published in the Federal Register.
    (c) Transitional provisions. In the case of any suspension or 
reinstatement of the certificate system established by this subpart, the 
Certifying Authority may prescribe such additional guidelines, 
instructions, and limitations which shall be applied or implemented by 
appropriate Customs officials in order to ensure an orderly transition.

[55 FR 40648, Oct. 4, 1990, as amended at 61 FR 26785, May 29, 1996]



Sec. 2011.208  Paperwork Reduction Act assigned number.

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in the regulations in this 
subpart in accordance with 44 U.S.C. Chapter 25 and OMB control number 
0551-0014 has been assigned with corresponding clearance effective 
through April 30, 1997.

[61 FR 26785, May 29, 1996]



PART 2012_IMPLEMENTATION OF TARIFF-RATE QUOTAS FOR BEEF--Table of Contents




Sec.
2012.1 Purpose.
2012.2 Definitions.
2012.3 Export certificates.

    Authority: Proclamation No. 6763; sec. 404, Pub. L. 103-465, 108 
Stat. 4809.

    Source: 60 FR 15230, Mar. 23, 1995, unless otherwise noted.



Sec. 2012.1  Purpose.

    The purpose of this part is to provide for the implementation of the 
tariff-rate quota for beef established as a result of the Uruguay Round 
Agreements, approved by the Congress in section 101 of the Uruguay Round 
Agreements Act (Pub. L. 103-465). In particular, this part provides for 
the administration of export certificates where a country that has an 
allocation of the in-quota quantity under the tariff-rate quota has 
chosen to use export certificates.



Sec. 2012.2  Definitions.

    Unless the context otherwise requires, for the purpose of this 
subpart, the following terms shall have the meanings assigned below.

[[Page 517]]

    (a) Beef means any article classified under any of the subheadings 
of the HTS specified in additional U.S. note 3 to chapter 2 of the HTS.
    (b) Allocated country means a country to which an allocation of a 
particular quantity of beef has been assigned under additional U.S. note 
3 to chapter 2 of the HTS.
    (c) Enter means to enter, or withdraw from warehouse, for 
consumption.
    (d) HTS means the Harmonized Tariff Schedule of the United States.
    (e) Participating country means any allocated country that USTR has 
determined is, and notified the U.S. Customs Service as being eligible 
to use export certificates.
    (f) USTR means the United States Trade Representative or the 
designee of the United States Trade Representative.



Sec. 2012.3  Export certificates.

    (a) Beef may only be entered as a product of a participating country 
if the importer makes a declaration to the Customs Service, in the form 
and manner determined by the Customs Service, that a valid export 
certificate is in effect with respect to the beef.
    (b) To be valid, an export certificate shall:
    (1) Be issued by or under the supervision of the government of the 
participating country;
    (2) Specify the name of the exporter, the product description and 
quantity, and the calendar year for which the export certificate is in 
effect;
    (3) Be distinct and uniquely identifiable; and
    (4) Be used in the calendar year for which it is in effect.



PART 2013_DEVELOPING AND LEAST-DEVELOPING COUNTRY DESIGNATIONS UNDER THE 

COUNTERVAILING DUTY LAW--Table of Contents




    Authority: Section 267, Pub. L. 103-465; 108 Stat. 4915 (19 U.S.C. 
1677(36)).



Sec. 2013.1  Designations.

    In accordance with section 771(36) of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1677(36), imports from members of the World Trade 
organization are subject to de minimis standards and negligible import 
standards as set forth in the following list:

De Minimis=3%; Negligible Imports=4%; Section 771(36)(B):
    Angola
    Bangladesh
    Benin
    Bolivia
    Burkina Faso
    Burma
    Burundi
    Cameroon
    Cent. Afr. Rep.
    Chad
    Congo
    C[ocirc]te d'Ivoire
    Dem. Rep. of the Congo
    Djibouti
    Egypt
    Gambia
    Ghana
    Guinea
    Guinea-Bissau
    Guyana
    Haiti
    India
    Indonesia
    Kenya
    Lesotho
    Madagascar
    Malawi
    Maldives
    Mali
    Mauritania
    Mozambique
    Nicaragua
    Niger
    Nigeria
    Pakistan
    Rwanda
    Senegal
    Sierra Leone
    Solomon Isl.
    Sri Lanka
    Tanzania
    Togo
    Uganda
    Zambia
    Zimbabwe

De Minimus=2%; Negligible Imports=4%; Section 771(36)(A):
    Antigua & Barbuda
    Argentina
    Bahrain
    Barbados
    Belize
    Botswana
    Brazil
    Chile
    Colombia
    Costa Rica
    Dominica
    Dominican Republic
    Ecuador

[[Page 518]]

    El Salvador
    Fiji
    Gabon
    Grenada
    Guatemala
    Honduras
    Jamaica
    Malaysia
    Malta
    Mauritius
    Morocco
    Namibia
    Panama
    Papua New Guinea
    Paraguay
    Peru
    Philippines
    South Africa
    St. Kitts & Nevis
    St. Lucia
    St. Vincent & Grenadines
    Slovenia
    Suriname
    Swaziland
    Thailand
    Tunisia
    Trinidad & Tobago
    Uruguay
    Venezuela

De Minimis=1%; Negligible Imports=3%:
    Australia
    Austria
    Belgium
    Brunei
    Canada
    Cyprus
    Denmark
    European Communities
    Finland
    France
    Germany
    Greece
    Hong Kong
    Iceland
    Ireland
    Israel
    Italy
    Japan
    Korea
    Kuwait
    Liechtenstein
    Luxembourg
    Macao
    Mexico
    Netherlands
    New Zealand
    Norway
    Portugal
    Qatar
    Singapore
    Spain
    Sweden
    Switzerland
    Turkey
    United Arab Emirates
    United Kingdom

[63 FR 29948, June 2, 1998]



PART 2014_IMPLEMENTATION OF TARIFF-RATE QUOTA FOR IMPORTS OF LAMB MEAT--Table 

of Contents




Sec.
2014.1 Purpose.
2014.2 Definitions.
2014.3 Export certificates.

    Authority: 19 U.S.C. 2253(g); Proclamation 7208, 64 FR 37387, July 
9, 1999; Proclamation 7214, 64 FR 42265, Aug. 4, 1999.

    Source: 65 FR 40049, June 29, 2000, unless otherwise noted.



Sec. 2014.1  Purpose.

    The purpose of this part is to provide for the implementation of the 
tariff-rate quota for imports of lamb meat established in Proclamation 
7208 (64 FR 37387) (July 9, 1999) and modified in Proclamation 7214 (64 
FR 42265) (Aug. 4, 1999). In particular, this part provides for the 
administration of export certificates where a country that has an 
allocation of the in-quota quantity under the tariff-rate quota has 
chosen to use export certificates.



Sec. 2014.2  Definitions.

    Unless the context otherwise requires, for the purpose of this part, 
the following terms shall have the meanings assigned as follows:
    (a) Lamb meat means fresh, chilled, or frozen lamb meat, provided 
for in subheadings 0204.10.00, 0204.22.20, 0204.23.20, 0204.30.00, 
0204.42.20, and 0204.43.20 of the HTS.
    (b) In-quota lamb meat means lamb meat that is entered under the in-
quota rate of duty.
    (c) Participating country means any country to which an allocation 
of a particular quantity of lamb meat has been assigned under 
Proclamation 7208 that USTR has determined is, and has notified to the 
United States Customs Service as being, eligible to use export 
certificates.
    (d) Enter or Entered means to enter or withdraw from warehouse for 
consumption.
    (e) HTS means the Harmonized Tariff schedule of the United States.
    (f) USTR means the United States Trade Representative or the 
designee of the United States Trade Representative.

[[Page 519]]

    (g) Quota Year means the period between July 22, 1999 and July 21, 
2000, inclusive, and such subsequent periods as set forth in 
Presidential Proclamations 7208 and 7214 during which lamb meat is 
exported.



Sec. 2014.3  Export certificates.

    (a) In-quota lamb meat may only be entered as a product of a 
participating country if the United States importer makes a declaration 
to the United States Customs Service, in the form and manner determined 
by the United States Customs Service, that a valid export certificate is 
in effect with respect to that lamb meat product.
    (b) To be valid, an export certificate shall:
    (1) Be issued by or under the supervision of the government of the 
participating country;
    (2) Specify the name of the exporter, the product description and 
quantity, and the quota year for which the export certificate is in 
effect;
    (3) Be distinct and uniquely identifiable; and
    (4) Be used for the quota year for which it is in effect.



PART 2015_IMPLEMENTATION OF TARIFF-RATE QUOTAS FOR SUGAR-CONTAINING PRODUCTS--

Table of Contents




Sec.
2015.1 Purpose.
2015.2 Definitions.
2015.3 Export certificates.

    Authority: Sec. 404, Pub. L. 103-465, 108 Stat. 4809; Proclamation 
6763, 3 CFR, 1994 Comp., p. 147; Proclamation 7235, 64 FR 55611, October 
13, 1999.

    Source: 64 FR 67153, Dec. 1, 1999, unless otherwise noted.



Sec. 2015.1  Purpose.

    The purpose of this part is to provide for the implementation of the 
tariff-rate quota for sugar-containing products established as a result 
of the Uruguay Round Agreements, approved by the Congress in section 101 
of the Uruguay Round Agreements Act (Pub. L. 103-465). In particular, 
this party provides for the administration of export certificates where 
a country that has an allocation of the in-quota quantity under a 
tariff-rate quota has chosen to use export certificates.



Sec. 2015.2  Definitions.

    For the purpose of this subpart, the following terms shall have the 
following meanings:
    (a) In-quota sugar-containing products means any article classified 
under any of the subheadings of the HTS specified in additional U.S. 
note 8 to chapter 17 of the HTS that is entered under the in-quota rate 
of duty.
    (b) Allocated country means a country to which an allocation of a 
particular quantity of sugar-containing products has been assigned.
    (c) Enter or Entered means to enter, or withdraw from warehouse, for 
consumption.
    (d) HTS means the Harmonized Tariff Schedule of the United States.
    (e) Participating Country means any allocated country that USTR has 
determined is, and has notified the U.S. Customs Service as being, 
eligible to use export certificates.
    (f) USTR means the United States Trade Representative or the 
designee of the United States Trade Representative.



Sec. 2015.3  Export certificates.

    (a) To claim the in-quota rate of duty on sugar-containing products 
of a participating country, the United States importer must make a 
declaration to the United States Customs Service, in the form and manner 
determined by the United States Customs Service, that a valid export 
certificate is in effect with respect to those sugar-containing 
products.
    (b) To be valid, an export certificate shall:
    (1) Be issued by or under the supervision of the government of the 
participating country;
    (2) Specify the name of the party to whom the certificate is issued, 
the product description and quantity, shipment date, and the quota year 
for which the export certificate is in effect;
    (3) Have a distinct and uniquely identifiable number; and
    (4) Be used in the quota year for which it is in effect.

[[Page 520]]



  PART 2016_PROCEDURES TO PETITION FOR WITHDRAWAL OR SUSPENSION OF COUNTRY 

ELIGIBILITY OR DUTY-FREE TREATMENT UNDER THE ANDEAN TRADE PREFERENCE ACT 

(ATPA), AS AMENDED--Table of Contents




Sec.
2016.0 Requests for reviews.
2016.1 Action following receipt of petitions.
2016.2 Timetable for reviews.
2016.3 Publication regarding requests.
2016.4 Information open to public inspection.
2016.5 Information exempt from public inspection.

    Authority: 19 U.S.C. 3201, et seq.; sec. 3103(d), Pub. L. 107-210; 
116 Stat. 933; E.O. 13277, 67 FR 70303.

    Source: 68 FR 43924, July 25, 2003, unless otherwise noted.



Sec. 2016.0  Requests for reviews

    (a) Any person may submit a request (hereinafter ``petition'') that 
the designation of a country as an Andean Trade Preference Act (ATPA) 
beneficiary country be withdrawn or suspended, or the application of 
preferential treatment under the ATPA to any article of any ATPA 
beneficiary country be withdrawn, suspended, or limited. Such petitions 
should: include the name of the person or the group requesting the 
review; identify the ATPA beneficiary country that would be subject to 
the review; if the petition is requesting that the preferential 
treatment of an article or articles be withdrawn, suspended, or limited, 
identify such article or articles with particularity and explain why 
such article or articles were selected; indicate the specific section 
203(c) or (d) (19 U.S.C. 3202(c), (d)) eligibility criterion that the 
petitioner believes warrant(s) review; and include all available 
supporting information. The Andean Subcommittee of the Trade Policy 
Staff Committee (TPSC) may request other information. If the subject 
matter of the petition was reviewed pursuant to a previous petition, the 
petitioner should consider providing the Andean Subcommittee with any 
new information related to the issue.
    (b) Any person may submit a petition that the designation of a 
country as an Andean Trade Promotion and Drug Eradication At (ATPDEA) 
beneficiary country be withdrawn or suspended, or the application of 
preferential treatment to any article of any ATPDEA beneficiary country 
under section 204(b)(1), (3), or (4) (19 U.S.C. 3202(b)(1), (3), (4)) be 
withdrawn, suspended, or limited. Such petitions should: Include the 
name of the person or the group requesting the review; identify the 
ATPDEA beneficiary country that would be subject to the review; if the 
petition is requesting that the preferential treatment of an article or 
articles be withdrawn, suspended, or limited, identify such article or 
articles with particularity and explain why such article or articles 
were selected; indicate the specific section 204(b)(6)(B) (19 U.S.C. 
3203(b)(6)(B)) eligibility criterion or criteria that the petition 
believes warrant(s) review; and include all available supporting 
information. The Andean Subcommittee may request other information. If 
the subject matter of the petition was reviewed pursuant to a previous 
petition, the petitioner should consider providing the Andean 
Subcommittee with any new information related to the issue.
    (c) All petitions and other submissions should be submitted in 
accordance with the schedule (see Sec. 2016.2) and requirements for 
submission that The Office of the United States Trade Representative 
(USTR) will publish annually in the Federal Register in advance of each 
review. Foreign governments may make submission in the form of 
diplomatic correspondence and should observe the deadlines for each 
annual review published in the Federal Register.
    (d) The TPSC may at any time, on its own motion, initiate a review 
to determine whether: the designation of a country as an ATPA 
beneficiary country should be withdrawn or suspended; the application of 
preferential treatment under the ATPA to any article of any ATPA 
beneficiary country should be withdrawn, suspended, or limited; the 
designation of a country as an ATPDEA beneficiary country should be 
withdrawn or suspended; or the application of preferential treatment to 
any article of any ATPDEA beneficiary country under section 204(b)(1), 
(3), or

[[Page 521]]

(4) (19 U.S.C. 3202(b)(1), (3), or (4) should be withdrawn, suspended, 
or limited.
    (e) Petitions requesting the action described in paragraph (a) or 
(b) of this section that indicate the existence of exceptional 
circumstances warranting an immediate review may be considerd outside of 
the schedule for the annual review announced in the Federal Register. 
Requests for such urgent consideration should contain a statement of 
reasons indicating why an expedited review is warranted.



Sec. 2016.1  Action following receipt of petitions.

    (a) USTR shall publish in the Federal Register a list of petitions 
filed in response to the announcement of the annual review, including 
the subject matter of the request and, where appropriate, the 
description of the article or articles covered by the request.
    (b) Thereafter, the Andean Subcommittee shall conduct a preliminary 
review of the petitions, and shall submit the results of its preliminary 
review to the TPSC. The TPSC shall review the work of the Andean 
Subcommittee and shall conduct further review as necessary. The TPSC 
shall prepare recommendations for the President on any proposed action 
to modify the ATPA. The Chairman of the TPSC may, as appropriate, 
convene the Trade Policy Review Group (TPRG) to review the matter, and 
thereafter refer the matter to the USTR for Cabinet-level review as 
necessary.
    (c) The USTR, after receiving the advice of the TPSC, TPRG, or 
Cabinet-level officials, shall make recommendations to the President on 
any proposed action to modify the application of the ATPA's benefits to 
countries or articles. The President (or if that function is delegated 
to the USTR, the USTR) shall announce in the Federal Register any such 
action he proposes to take. The USTR shall announce in the Federal 
Register notice of the results of the preliminary review, together with 
a schedule for receiving public input regarding such proposed action 
consistent with section 203(e) of the ATPA, as amended (19 U.S.C. 
3202(e)).
    (1) The schedule shall include the deadline and guidelines for any 
person to submit written comments supporting, opposing or otherwise 
commenting on any proposed action.
    (2) The schedule shall also include the time and place of the public 
hearing, as well as the deadline and guidelines for submitting requests 
to present oral testimony.
    (d) After receiving and considering public input, the Andean 
Subcommittee shall submit the results of the final review to the TPSC. 
The TPSC shall review the work of the Andean Subcommittee and shall 
conduct further review as necessary. The TPSC shall prepare 
recommendations for the President on any proposed action to modify the 
application of benefits under the ATPA to countries or articles. The 
Chairman of the TPSC may, as appropriate, convene the TPRG to review the 
matter, and thereafter refer the matter to the USTR for Cabinet-level 
review as necessary. The USTR, after receiving the advice of the TPSC, 
TPRG, or Cabinet-level officials, shall make recommendations to the 
President on any proposed action to modify the application of the ATPA's 
benefits to countries or articles, including recommendations that no 
action be taken. The USTR shall also forward to the President any 
documentation necessary to implement the recommended proposed action or 
actions to modify the application of the ATPA's benefits to countries or 
articles.
    (e) In considering whether to recommend any proposed action to 
modify the ATPA, the Andean Subcommittee, on behalf of the TPSC, TPRG, 
or Cabinet-level officials, shall review all relevant information 
submitted in connection with a petition or otherwise available.



Sec. 2016.2  Timetable for reviews.

    Beginning in calendar year 2003, reviews of pending petitions shall 
be conducted at least once each year, according to the following 
schedule, unless otherwise specified by Federal Register notice:
    (a) September 15: Deadline for submission of petitions for review;
    (b) On or about December 1: Announcement published in the Federal 
Register of the results of preliminary review;

[[Page 522]]

    (c) Decemeber/January: Written comments submitted and a public 
hearing held on any proposed actions;
    (d) February/March: Preparation of recommendations to the President, 
Presidential decision, and implementation of Presidential decision.



Sec. 2016.3  Publication regarding requests.

    Following the Presidential decision and where required, the 
publication of a Presidential proclamation modifying the application of 
benefits under the ATPA to countries or articles in the Federal 
Register, USTR will publish a summary of the decisions made in the 
Federal Register, including:
    (a) For petitions on which decisions were made, a description of the 
outcome of the review; and
    (b) A list of petitions on which no decision was made, and thus 
which are pending further review.



Sec. 2016.4  Information open to public inspection.

    With the exception of information subject to Sec. 2016.5, any 
person may, on request, inspect in the USTR Reading Room:
    (a) Any written petition, comments, or other submission of 
information made pursuant to this part; and
    (b) Any stenographic record of any public hearings held pursuant to 
this part.



Sec. 2016.5  Information exempt from public inspection.

    (a) Information submitted in confidence shall be exempt from public 
inspection if USTR determines that the disclosure of such information is 
not required by law.
    (b) A person requesting an exemption from public inspection for 
information submitted in writing shall clearly mark each page ``BUSINESS 
CONFIDENTIAL'' at the top, and shall submit a non-confidential summary 
of the confidential information. Such person shall also provide a 
written explanation of why the material should be so protected.
    (c) A request for exemption of any particular information may be 
denied if USTR determines that such information is not entitled to 
exemption under law. In the event of such a denial, the information will 
be returned to the person who submitted it, with a statement of the 
reasons for the denial.



 Sec. Appendix A to Chapter XX--Administration of the Trade Agreements 
                                 Program

    Text of Executive Order No. 11846 of Mar. 27, 1975 (40 FR 14291).
    By virtue of the authority vested in me by the Trade Act of 1974, 
hereinafter referred to as the Act (Pub. L. 93-618, 88 Stat. 1978), the 
Trade Expansion Act of 1962, as amended (19 U.S.C. 1801), section 350 of 
the Tariff Act of 1930, as amended (19 U.S.C. 1351), and section 301 of 
Title 3 of the United States Code, and as President of the United 
States, it is hereby ordered as follows:
    Section 1. The Trade Agreements Program. The ``trade agreements 
program'' includes all activities consisting of, or related to, the 
negotiation or administration of international agreements which 
primarily concern trade and which are concluded pursuant to the 
authority vested in the President by the Constitution, section 350 of 
the Tariff Act of 1930, as amended, the Trade Expansion Act of 1962, as 
amended, or the Act.
    Sec. 2. The Special Representative for Trade Negotiations. (a) The 
Special Representative for Trade Negotiations, hereinafter referred to 
as the Special Representative, in addition to the functions conferred 
upon him by the Act, including section 141 thereof, and in addition to 
the functions and responsibilities set forth in this Order, shall be 
responsible for such other functions as the President may direct.
    (b) The Special Representative, except where otherwise expressly 
provided by statute, Executive order, or instructions of the President, 
shall be the chief representative of the United States for each 
negotiation under the trade agreements program and shall participate in 
other negotiations which may have a direct and significant impact on 
trade.
    (c) The Special Representative shall prepare, for the President's 
transmission to Congress, the annual report on the trade agreements 
program required by section 163(a) of the Act. At the request of the 
Special Representative, other agencies shall assist in the preparation 
of that report.
    (d) The Special Representative, except where expressly otherwise 
provided or prohibited by statute, Executive order, or instructions of 
the President, shall be responsible for the proper administration of the 
trade agreements program, and may, as he deems necessary, assign to the 
head of any Executive agency or body the performance of his duties which 
are incidental to the administration of the trade agreements program.

[[Page 523]]

    (e) The Special Representative shall consult with the Trade Policy 
Committee in connection with the performance of his functions, including 
those established or delegated by this Order, and shall, as appropriate, 
consult with other Federal agencies or bodies. With respect to the 
performance of his functions under Title IV of the Act, including those 
established or delegated by this Order, the Special Representative shall 
also consult with the East-West Foreign Trade Board.
    (f) The Special Representative shall be responsible for the 
preparation and submission of any Proclamation which relates wholly or 
primarily to the trade agreements program. Any such Proclamation shall 
be subject to all the provisions of Executive Order 11030, as amended, 
except that such Proclamation need not be submitted to the Director of 
the Office of Management and Budget.
    (g) The Secretary of State shall advise the Special Representative, 
and the Committee, on the foreign policy implications of any action 
under the trade agreements program. The Special Representative shall 
invite appropriate departments to participate in trade negotiations of 
particular interest to such departments, and the Department of State 
shall participate in trade negotiations which have a direct and 
significant impact on foreign policy.
    Sec. 3. The Trade Policy Committee. (a) As provided by section 242 
of the Trade Expansion Act of 1962 (19 U.S.C. 1872), as amended by 
section 602(b) of the Act, there is established the Trade Policy 
Committee hereinafter referred to as the Committee. The Committee shall 
be composed of:
    (1) The Special Representative, who shall be Chairman.
    (2) The Secretary of State.
    (3) The Secretary of the Treasury.
    (4) The Secretary of Defense.
    (5) The Attorney General.
    (6) The Secretary of the Interior.
    (7) The Secretary of Agriculture.
    (8) The Secretary of Commerce.
    (9) The Secretary of Labor.
    (10) The Assistant to the President for Economic Affairs.
    (11) The Executive Director of the Council on International Economic 
Policy. Each member of the Committee may designate an officer of his 
agency, whose status is not below that of an Assistant Secretary, to 
serve in his stead, when he is unable to attend any meetings of the 
Committee. The Chairman, as he deems appropriate, may invite 
representatives from other agencies to attend the meetings of the 
Committee.
    (b) The Committee shall have the functions conferred by the Trade 
Expansion Act of 1962, as amended, upon the inter-agency organization 
referred to in section 242 thereof, as amended, the functions delegated 
to it by the provisions of this Order, and such other functions as the 
President may from time to time direct. Recommendations and advice of 
the Committee shall be submitted to the President by the Chairman.
    (c) The recommendations made by the Committee under section 
242(b)(1) of the Trade Expansion Act of 1962, as amended, with respect 
to basic policy issues arising in the administration of the trade 
agreements program, as approved or modified by the President, shall 
guide the administration of the trade agreements program. The Special 
Representative or any other officer who is chief representative of the 
United States in a negotiation in connection with the trade agreements 
program shall keep the Committee informed with respect to the status and 
conduct of negotiations and shall consult with the Committee regarding 
the basic policy issues arising in the course of negotiations.
    (d) Before making recommendations to the President under section 
242(b)(2) of the Trade Expansion Act of 1962, as amended, the Committee 
shall, through the Special Representative, request the advice of the 
Adjustment Assistance Coordinating Committee, established by section 281 
of the Act.
    (e) The Committee shall advise the President as to what action, if 
any, he should take under section 337(g) of the Tariff Act of 1930, as 
amended by section 341 of the Act, relating to unfair practices in 
import trade.
    (f) The Trade Expansion Act Advisory Committee established by 
Section 4 of Executive Order 11075 of January 15, 1963, is abolished and 
all of its records are transferred to the Trade Policy Committee.
    Sec. 4. Trade Negotiations Under Title I of the Act. (a) The 
functions of the President under section 102 of the Act concerning 
notice to, and consultation with, Congress, in connection with 
agreements on nontariff barriers to, and other distortions of, trade, 
are hereby delegated to the Special Representative.
    (b) The Special Representative, after consultation with the 
Committee, shall prepare, for the President's transmission to Congress, 
all proposed legislation and other documents necessary or appropriate 
for the implementation of, or otherwise required in connection with, 
trade agreements; provided, however, that where implementation of an 
agreement on nontariff barriers to, and other distortions of, trade 
requires a change in a domestic law, the department or agency having the 
primary interest in the administration of such domestic law shall 
prepare and transmit to the Special Representative the proposed 
legislation necessary or appropriate for such implementation.
    (c) The functions of the President under section 131(c) of the Act 
with respect to advice of the International Trade Commission and under 
section 132 of the Act with respect to advice of the departments of the 
Federal

[[Page 524]]

Government and other sources, are delegated to the Special 
Representative. The functions of the President under section 133 of the 
Act with respect to public hearings in connection with certain trade 
negotiations are delegated to the Special Representative, who shall 
designate an interagency committee to hold and conduct any such 
hearings.
    (d) The functions of the President under section 135 of the Act with 
respect to advisory committees and, notwithstanding the provisions of 
any other Executive order, the functions of the President under the 
Federal Advisory Committee Act (86 Stat. 770, 5 U.S.C. App. I), except 
that of reporting annually to Congress, which are applicable to advisory 
committees under the Act are delegated to the Special Representative. In 
establishing and organizing general policy advisory committees or sector 
advisory committees under section 135(c) of the Act, the Special 
Representative shall act through the Secretaries of Commerce, Labor and 
Agriculture, as appropriate.
    (e) The functions of the President with respect to determining ad 
valorem amounts and equivalents pursuant to sections 601 (3) and (4) of 
the Act are hereby delegated to the Special Representative. The 
International Trade Commission is requested to advise the Special 
Representative with respect to determining such ad valorem amounts and 
equivalents. The Special Representative shall seek the advice of the 
Commission and consult with the Committee with respect to the 
determination of such ad valorem amounts and equivalents.
    (f) Advice of the International Trade Commission under section 131 
of the Act, and other advice or reports by the International Trade 
Commission to the President or the Special Representative, the release 
or disclosure of which is not specifically authorized or required by 
law, shall not be released or disclosed in any manner or to any extent 
not specifically authorized by the President or by the Special 
Representative.
    Sec. 5. Import Relief and Market Disruption. (a) The Special 
Representative is authorized to request from the International Trade 
Commission the information specified in sections 202(d) and 203(i) (1) 
and (2) of the Act.
    (b) The Secretary of the Treasury, in consultation with the 
Secretary of Commerce or the Secretary of Agriculture, as appropriate, 
is authorized to issue, under section 203(g) of the Act, regulations 
governing the administration of any quantitative restrictions proclaimed 
in order to provide import relief and is authorized to issue, under 
section 203(g) of the Act or 352(b) of the Trade Expansion Act of 1962, 
regulations governing the entry, or withdrawal from warehouses for 
consumption, of articles pursuant to any orderly marketing agreement.
    (c) The Secretary of Commerce shall exercise primary responsibility 
for monitoring imports under any orderly marketing agreement.
    Sec. 6. Unfair Trade Practices. (a) The Special Representative, 
acting through an interagency committee which he shall designate for 
such purpose, shall provide the opportunity for the presentation of 
views, under sections 301(d)(1) and 301(e)(1) of the Act, with respect 
to unfair or unreasonable foreign trade practices and with respect to 
the United States response thereto.
    (b) The Special Representative shall provide for appropriate public 
hearings under section 301(e)(2) of the Act; and, shall issue 
regulations concerning the filing of requests for, and the conduct of, 
such hearings.
    (c) The Special Representative is authorized to request, pursuant to 
section 301(e)(3) of the Act, from the International Trade Commission, 
its views as to the probable impact on the economy of the United States 
of any action under section 301(a) of the Act.
    Sec. 7. East-West Foreign Trade Board. (a) In accordance with 
section 411 of the Act, there is hereby established the East-West 
Foreign Trade Board, hereinafter referred to as the Board. The Board 
shall be composed of the following members and such additional members 
of the Executive branch as the President may designate:
    (1) The Secretary of State.
    (2) The Secretary of the Treasury.
    (3) The Secretary of Agriculture.
    (4) The Secretary of Commerce.
    (5) The Special Representative for Trade Negotiations.
    (6) The Director of the Office of Management and Budget.
    (7) The Executive Director of the Council on International Economic 
Policy.
    (8) The President of the Export-Import Bank of the United States.
    (9) The Assistant to the President for Economic Affairs.

The President shall designate the Chairman and the Deputy Chairman of 
the Board. The President may designate an Executive Secretary, who shall 
be Chairman of a working group which will include membership from the 
agencies represented on the Board.
    (b) The Board shall perform such functions as are required by 
section 411 of the Act and such other functions as the President may 
direct.
    (c) The Board is authorized to promulgate such rules and regulations 
as are necessary or appropriate to carry out its responsibilities under 
the Act and this Order.
    (d) The Secretary of State shall advise the President with respect 
to determinations required to be made in connection with sections 402 
and 409 of the Act (dealing with freedom of emigration) and section 403 
(dealing with United States personnel missing in action in Southeast 
Asia), and shall prepare, for the President's transmission to Congress,

[[Page 525]]

the reports and other documents required by sections 402 and 409 of the 
Act.
    (e) The President's Committee on East-West Trade Policy, established 
by Executive Order 11789 of June 25, 1974, as amended by section 6(d) of 
Executive Order 11808 of September 30, 1974, is abolished and all of its 
records are transferred to the Board.
    Sec. 8. Generalized System of Preferences. (a) The Special 
Representative, in consultation with the Secretary of State, shall be 
responsible for the administration of the generalized system of 
preferences under Title V of the Act.
    (b) The Committee, through the Special Representative, shall advise 
the President as to which countries should be designated as beneficiary 
developing countries, and as to which articles should be designated as 
eligible articles for the purposes of the system of generalized 
preferences.
    Sec. 9. Prior Executive Orders. (a) Executive Order 11789 of June 
25, 1974, and Section 6(d) of Executive Order 11808 of September 30, 
1974, relating to the President's Committee on East-West Trade Policy 
are hereby revoked.
    (b)(1) Sections 5(b), 7, and 8 of the Executive Order 11075 of 
January 15, 1963, are hereby revoked effective April 3, 1975; (2) the 
remainder of Executive Order 11075, and Executive Order 11106 of April 
18, 1963 and Executive Order 11113 of June 13, 1963, are hereby revoked.

[40 FR 18422, Apr. 28, 1975]

[[Page 527]]

 Subtitle D--Regulations Relating to Telecommunications and Information

[[Page 529]]



       CHAPTER XXIII--NATIONAL TELECOMMUNICATIONS AND INFORMATION 
                 ADMINISTRATION, DEPARTMENT OF COMMERCE




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Part                                                                Page
2301            Public Telecommunications Facilities Program         531

[[Page 531]]



PART 2301_PUBLIC TELECOMMUNICATIONS FACILITIES PROGRAM--Table of Contents




                            Subpart A_General

Sec.
2301.1 Program purposes.
2301.2 Definitions.

                   Subpart B_Application Requirements

2301.3 Applicant eligibility.
2301.4 Types of projects and broadcast priorities.
2301.5 Special consideration.
2301.6 Amount of Federal funding.
2301.7 Eligible and ineligible project costs.
2301.8 Submission of applications.
2301.9 Deferred applications.
2301.10 Applications resulting from catastrophic damage or emergency 
          situations.
2301.11 Service of applications.
2301.12 Federal Communications Commission authorizations.
2301.13 Public comments.
2301.14 Supplemental application information.
2301.15 Withdrawal of applications.

               Subpart C_Evaluation and Selection Process

2301.16 Technical evaluation process.
2301.17 Evaluation criteria for construction and planning applications.
2301.18 Selection process.

                    Subpart D_Post-Award Requirements

2301.19 General conditions attached to the Federal award.
2301.20 Schedules and reports.
2301.21 Payment of Federal funds.
2301.22 Protection, acquisition, and substitution of equipment.

                    Subpart E_Completion of Projects

2301.23 Completion of projects.
2301.24 Final Federal payment.
2301.25 Retention of records and annual status reports.

                            Subpart F_Waivers

2301.26 Waivers.

    Authority: 47 U.S.C. 390-393 and 397-399b.

    Source: 61 FR 57973, Nov. 8, 1996, unless otherwise noted.



                            Subpart A_General



Sec. 2301.1  Program purposes.

    Pursuant to section 390 of the Act, (The Communications Act of 1934, 
as amended), the purpose of the Public Telecommunications Facilities 
Program (PTFP) is to assist, through matching grants, in the planning 
and construction of public telecommunications facilities in order to 
achieve the following objectives:
    (a) Extend delivery of public telecommunications services to as many 
citizens in the United States as possible by the most efficient and 
economical means, including the use of broadcast and nonbroadcast 
technologies;
    (b) Increase public telecommunications services and facilities 
available to, operated by, and owned by minorities and women; and
    (c) Strengthen the capability of existing public television and 
radio stations to provide public telecommunications services to the 
public.



Sec. 2301.2  Definitions.

    Act means Part IV of Title III of the Communications Act of 1934, 47 
U.S.C. 390-393 and 397-399b, as amended.
    Administrator means the Assistant Secretary for Communications and 
Information of the United States Department of Commerce who is also 
Administrator of the National Telecommunications and Information 
Administration.
    Agency means the National Telecommunications and Information 
Administration of the United States Department of Commerce.
    Broadcast means the distribution of electronic signals to the public 
at large using television (VHF or UHF) or radio (AM or FM) technologies.
    Closing date means the date and time which the Administrator sets as 
the deadline for the receipt of applications during a grant cycle.
    Construction (as applied to public telecommunications facilities) 
means acquisition (including acquisition by lease), installation, and 
improvement of public telecommunications facilities and preparatory 
steps incidental to any such acquisition, installation or improvement.

[[Page 532]]

    Department means the United States Department of Commerce.
    FCC means the Federal Communications Commission.
    Federal interest period means the period of time during which the 
Federal government retains a reversionary interest in all facilities 
constructed with Federal grant funds. This period begins with the 
purchase of the facilities and continues for ten (10) years after the 
official completion date of the project. Although OMB Circular A-110, 
sections 33 and 34 (58 FR 62992, Nov. 29, 1993) and 15 CFR 24.31 and 
24.32, specify that the Federal government maintains a reversionary 
interest in the facilities for as long as the facilities are needed for 
the originally authorized purpose, PTFP's authorizing statute (47 U.S.C. 
392(g)) limits the reversionary period for ten years for purposes of 
this program. However, Federal Constitutional limitations on the use of 
the facilities survive for the useful life of the facilities whether or 
not this period extends beyond the ten-year Federal interest period.
    Minorities means American Indians, Alaska Natives, Asian or Pacific 
Islanders, Hispanics, and Blacks, not of Hispanic Origin.
    Nonbroadcast means the distribution of electronic signals by a means 
other than broadcast technologies. Examples of nonbroadcast technologies 
are Instructional Television Fixed Service (ITFS), satellite systems, 
and coaxial or fiber optic cable.
    Noncommercial educational broadcast station or public broadcast 
station means a television or radio broadcast station that is eligible 
to be licensed by the FCC as a noncommercial educational radio or 
television broadcast station and that is owned (controlled) and operated 
by a state, a political or special purpose subdivision of a state, 
public agency or nonprofit private foundation, corporation, institution, 
or association, or owned (controlled) and operated by a municipality and 
transmits only noncommercial educational, cultural or instructional 
programs.
    Noncommercial telecommunications entity means any enterprise that is 
owned (controlled) and operated by a state, a political or special 
purpose subdivision of a state, a public agency, or a nonprofit private 
foundation, corporation, institution, or association; and that has been 
organized primarily for the purpose of disseminating audio or video 
noncommercial educational, cultural or instructional programs to the 
public by means other than a primary television or radio broadcast 
station, including, but not limited to, coaxial cable, optical fiber, 
broadcast translators, cassettes, discs, satellite, microwave or laser 
transmission.
    Nonprofit (as applied to any foundation, corporation, institution, 
or association) means a foundation, corporation, institution, or 
association, no part of the net earnings of which inures, or may 
lawfully inure, to the benefit of any private shareholder or individual.
    Operational cost means those approved costs incurred in the 
operation of an entity or station such as overhead labor, material, 
contracted services (such as building or equipment maintenance), 
including capital outlay and debt service.
    Planning (as applied to public telecommunications facilities) means 
activities to form a project for which PTFP construction funds may be 
obtained.
    Pre-operational costs means all nonconstruction costs incurred by 
new public telecommunications entities before the date on which they 
began providing service to the public, and all nonconstruction costs 
associated with the expansion of existing stations before the date on 
which such expanded capacity is activated, except that such costs shall 
not include any portion of the salaries of any personnel employed by an 
operating public telecommunications entity.
    PTFP means the Public Telecommunications Facilities Program, which 
is administered by the Agency.
    PTFP Director means the Agency employee who recommends final action 
on public telecommunications facilities applications and grants to the 
Administrator.
    Public telecommunications entity means any enterprise which is a 
public broadcast station or noncommercial telecommunications entity and 
which disseminates public telecommunications services to the public.

[[Page 533]]

    Public telecommunications facilities means apparatus necessary for 
production, interconnection, captioning, broadcast, or other 
distribution of programming, including but not limited to studio 
equipment, cameras, microphones, audio and video storage or processors 
and switchers, terminal equipment, towers, antennas, transmitters, 
remote control equipment, transmission line, translators, microwave 
equipment, mobile equipment, satellite communications equipment, 
instructional television fixed service equipment, subsidiary 
communications authorization transmitting and receiving equipment, cable 
television equipment, optical fiber communications equipment, and other 
means of transmitting, emitting, storing, and receiving images and 
sounds or information, except that such term does not include the 
buildings to house such apparatus (other than small equipment shelters 
that are part of satellite earth stations, translators, microwave 
interconnection facilities, and similar facilities).
    Public telecommunications services means noncommercial educational 
and cultural radio and television programs, and related noncommercial 
instructional or informational material that may be transmitted by means 
of electronic communications.
    Sectarian means that which has the purpose or function of advancing 
or propagating a religious belief.
    State includes each of the fifty states, the District of Columbia, 
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
Samoa, and the Northern Mariana Islands.
    System of public telecommunications entities means any combination 
of public telecommunications entities acting cooperatively to produce, 
acquire or distribute programs, or to undertake related activities.
    Useful life means the normal operating life of equipment.



                   Subpart B_Application Requirements



Sec. 2301.3  Applicant eligibility.

    (a) To apply for and receive a PTFP Construction or Planning Grant, 
an applicant must be:
    (1) A public or noncommercial educational broadcast station;
    (2) A noncommercial telecommunications entity;
    (3) A system of public telecommunications entities;
    (4) A nonprofit foundation, corporation, institution, or association 
organized primarily for educational or cultural purposes (see also 60 FR 
66491 (Dec. 22, 1995)); or
    (5) A state, local, or Indian tribal government (or agency thereof), 
or a political or special purpose subdivision of a state.
    (b) An applicant whose proposal requires an authorization from the 
FCC must be eligible to receive such authorization.
    (c) If an applicant does not meet the above eligibility 
requirements, the application may be rejected and returned without 
further consideration.
    (d) An applicant may request a preliminary determination of 
eligibility any time prior to the closing date.



Sec. 2301.4  Types of projects and broadcast priorities.

    An applicant may file an application with the Agency for a planning 
or construction grant. To achieve the objectives set forth at 47 U.S.C. 
393(b), the Agency has developed the following categories. Each 
application shall be identified as a broadcast or nonbroadcast project 
and must fall within at least one of the following categories:
    (a) Special applications. NTIA possesses the discretionary authority 
to recommend awarding grants to eligible nonbroadcast applicants whose 
proposals are unique or innovative and which address demonstrated and 
substantial community needs (e.g., service to the blind or deaf and 
nonbroadcast projects offering educational or instructional services).
    (b) Broadcast applications. The Broadcast Priorities are set forth 
in order of priority for funding.
    (1) Priority 1--Provision of Public Telecommunications Facilities 
for First Radio and Television Signals to a Geographic Area. Within this 
category, NTIA establishes three subcategories:

[[Page 534]]

    (i) Priority 1A--Projects that include local origination capacity. 
This subcategory includes the planning or construction of new facilities 
that can provide a full range of radio and/or television programs, 
including material that is locally produced. Eligible projects include 
new radio or television broadcast stations, new cable systems, or first 
public telecommunications service to existing cable systems, provided 
that such projects include local origination capacity.
    (ii) Priority 1B--Projects that do not include local origination 
capacity. This subcategory includes projects such as increases in tower 
height and/or power of existing stations and construction of 
translators, cable networks, and repeater transmitters that will result 
in providing public telecommunications services to previously unserved 
areas.
    (iii) Priority 1C--Projects that provide first nationally 
distributed programming. This subcategory includes projects that provide 
satellite downlink facilities to noncommercial radio and television 
stations that would bring nationally distributed programming to a 
geographic area for the first time.
    (iv) Priority 1 and its subcategories apply only to grant applicants 
proposing to plan or construct new facilities to bring public 
telecommunications services to geographic areas that are presently 
unserved, i.e., areas that do not receive public telecommunications 
services. (It should be noted that television and radio are considered 
separately for the purposes of determining coverage. In reviewing 
applications from FM stations that propose to serve, or that already 
serve, areas covered by AM-daytime only stations, PTFP will evaluate the 
amount of service provided via the AM-daytime only station in 
determining whether the FM proposal qualifies for a Priority 1 or 
Priority 2, as appropriate.)
    (v) An applicant proposing to plan or construct a facility to serve 
a geographical area that is presently unserved should indicate the 
number of persons who would receive a first public telecommunications 
signal as a result of the proposed project.
    (2) Priority 2--Replacement of Basic Equipment of Existing Essential 
Broadcast Stations. (i) Projects eligible for consideration under this 
category include the urgent replacement of obsolete or worn out 
equipment at ``essential stations'' (i.e., existing broadcast stations 
that provide either the only public telecommunications signal or the 
only locally originated public telecommunications signal to a 
geographical area).
    (ii) To show that the urgent replacement of equipment is necessary, 
applicants must provide documentation indicating excessive downtime, or 
a high incidence of repair (i.e., copies of repair records, or letters 
documenting non-availability of parts). Additionally, applicants must 
show that the station is the only public telecommunications station 
providing a signal to a geographical area or the only station with local 
origination capacity in a geographical area.
    (iii) The distinction between Priority 2 and Priority 4 is that 
Priority 2 is for the urgent replacement of basic equipment for 
essential stations. Where an applicant seeks to ``improve'' basic 
equipment in its station (i.e., where the equipment is not ``worn 
out''), or where the applicant is not an essential station, NTIA would 
consider the applicant's project under Priority 4.
    (3) Priority 3--Establishment of a First Local Origination Capacity 
in a Geographical Area. (i) Projects in this category include the 
planning or construction of facilities to bring the first local 
origination capacity to an area already receiving public 
telecommunications services from distant sources through translators, 
repeaters, or cable systems.
    (ii) Applicants seeking funds to bring the first local origination 
capacity to an area already receiving some public telecommunications 
services may do so, either by establishing a new (and additional) public 
telecommunications facility, or by adding local origination capacity to 
an existing facility. A source of a public telecommunications signal is 
distant when the geographical area to which the source is brought is 
beyond the grade B contour of the origination facility.

[[Page 535]]

    (4) Priority 4 Improvement of Public Broadcasting Services. (i) 
Projects eligible for consideration under this category are intended to 
improve the delivery of public broadcasting services to a geographic 
area. These projects include the establishment of a public broadcast 
facility to serve a geographic area already receiving public 
telecommunications services, projects for the replacement of basic 
obsolete or worn-out equipment at existing public broadcasting 
facilities and the upgrading of existing origination or delivery 
capacity to current industry performance standards (e.g., improvements 
to signal quality, and significant improvements in equipment flexibility 
or reliability). As under Priority 2, applicants seeking to replace or 
improve basic equipment under Priority 4 should show that the 
replacement of the equipment is necessary by including in their 
applications data indicating excessive downtime, or a high incidence of 
repair (such as documented in repair records). Within this category, 
NTIA establishes two subcategories: Priority 4A and Priority 4B.
    (ii) Priority 4A. (A) Applications to replace urgently needed 
equipment from public broadcasting stations that do not meet the 
Priority 2 criteria because they do not provide either the only public 
telecommunications signal or the only locally originated public 
telecommunications signal to a geographic area. NTIA will also consider 
applications that improve as well as replace urgently needed production-
related equipment at public radio and television stations that do not 
qualify for Priority 2 consideration but that produce, on a continuing 
basis, significant amounts of programming distributed nationally to 
public radio or television stations.
    (B) The establishment of public broadcasting facilities to serve a 
geographic area already receiving public telecommunications services. 
The applicant must demonstrate that it will address underserved needs in 
an area which significantly differentiates its service from what is 
already available in its service area.
    (C) The acquisition of satellite downlinks for public radio stations 
in areas already served by one or more full-service public radio 
stations. The applicant must demonstrate that it will broadcast a 
program schedule that does not merely duplicate what is already 
available in its service area.
    (D) The acquisition of the necessary items of equipment to bring the 
inventory of an already-operating station to the basic level of 
equipment requirements established by PTFP. This is intended to assist 
stations that went on the air with a complement of equipment well short 
of what the Agency considers as the basic complement.
    (iii) Priority 4B. The improvement and non-urgent replacement of 
equipment at any public broadcasting station.
    (5) Priority 5 Augmentation of Existing Broadcast Stations. Projects 
in this category would equip an existing station beyond a basic capacity 
to broadcast programming from distant sources and to originate local 
programming.
    (i) Priority 5A Projects to equip auxiliary studios at remote 
locations, or to provide mobile origination facilities. An applicant 
must demonstrate that significant expansion in public participation in 
programming will result. This subcategory includes mobile units, 
neighborhood production studios, or facilities in other locations within 
a station's service area that would make participation in local 
programming accessible to additional segments of the population.
    (ii) Priority 5B--Projects to augment production capacity beyond 
basic level in order to provide programming or related materials for 
other than local distribution. This subcategory would provide equipment 
for the production of programming for regional or national use. Need 
beyond existing capacity must be justified.
    (6) Other cases. NTIA possesses the discretionary authority to 
recommend awarding grants to eligible broadcast applicants whose 
proposals are so unique or innovative that they do not clearly fall 
within the five Priorities listed in this section. Innovative projects 
submitted under this category must address demonstrated and sub stantial 
community needs or must address issues related to the conversion of 
public broadcasting facilities to advanced digital technologies.

[[Page 536]]

    (c) An applicant may request a preliminary determination of whether 
a proposed project fits within at least one of the above listed 
categories any time prior to the closing date.
    (d) All applications will be reviewed after the closing date. If an 
application does not fall within one of the listed categories, it may be 
rejected and returned without further consideration.

[61 FR 57974, Nov. 8, 1996; 61 FR 64948, Dec. 9, 1996]



Sec. 2301.5  Special consideration.

    In accordance with section 392(f) of the Act, the Agency will give 
special consideration to applications that foster ownership of, 
operation of, and participation in public telecommunications entities by 
minorities and women. Ownership and operation of includes the holding of 
management and other positions in the entity, especially those concerned 
with programming decisions and day-to-day operation and management. 
Participation may be shown by the entity's involvement of women and 
minorities in public telecommunications through its programming 
strategies as meeting the needs and interests of those groups. 
Minorities include American Indians or Alaska natives; Asian or Pacific 
Islanders, Hispanics, and Blacks, not of Hispanic Origin. The special 
consideration element is provided as one of several evaluation criteria 
contained in the regulations at 15 CFR 2301.17(b)(6).



Sec. 2301.6  Amount of Federal funding.

    (a) Planning grants. The Agency may provide up to one hundred (100) 
percent of the funds necessary for the planning of a public 
telecommunications construction project.
    (1) Seventy-five (75) percent Federal funding will be the general 
presumption for projects to plan for a public telecommunications 
construction project.
    (2) A showing of extraordinary need (e.g., small community group 
proposing to initiate new public telecommunication service) will be 
taken into consideration as justification for grants of up to 100% of 
the total project cost.
    (b) Construction grants. (1) A Federal grant for the construction of 
a public telecommunications facility may not exceed seventy-five (75) 
percent of the amount determined by the Agency to be the reasonable and 
necessary cost of such project.
    (i) Seventy-five (75) percent Federal funding will be the general 
presumption for projects to activate stations or to extend service.
    (ii) Fifty (50) percent Federal funding will be the general 
presumption for the replacement, improvement or augmentation of 
equipment. A showing of extraordinary need (i.e. small community-
licensee stations or a station that is licensed to a large institution 
[e.g., a college or university] documenting that it does not receive 
direct or in-kind support from the larger institution), or an emergency 
situation will be taken into consideration as justification for grants 
of up to 75% of the total project cost for such proposals.
    (2) Since the purpose of the PTFP is to provide financial assistance 
for the acquisition of public telecommunications facilities, total 
project costs do not normally include the value of eligible apparatus 
owned or acquired by the applicant prior to the closing date. Inclusion 
of equipment purchased prior to the closing date will be considered on a 
case-by-case basis only when clear and compelling justifications are 
provided to PTFP. Obligating funds--either in whole or in part--for 
equipment before the closing date is considered ownership or acquisition 
of equipment. In like manner, accepting title to donated equipment prior 
to the closing date is considered ownership or acquisition of equipment.
    (c) No part of the grantee's matching share of the eligible project 
costs may be met with funds:
    (1) Paid by the Federal government, except where the use of such 
funds to meet a Federal matching requirement is specifically and 
expressly authorized by the relevant Federal statute; or
    (2) Supplied to an applicant by the Corporation for Public 
Broadcasting, except upon a clear and compelling showing of need.
    (d) No funds from the Federal share of the total project cost may be 
obligated until the award period start date. If an applicant or 
recipient obligates anticipated Federal Award funds before

[[Page 537]]

the start date, the Department may refuse to offer the award or, if the 
award has already been granted, disallow those costs of the grant. After 
the closing date, the applicant may, at its own risk, obligate non-
Federal matching funds for the acquisition of proposed equipment.



Sec. 2301.7  Eligible and ineligible project costs.

    (a) Each year the Agency reviews its list of eligible and ineligible 
equipment, supplies, and costs. The list is published in the Federal 
Register as part of the solicitation for applications and a copy is 
provided with every application package for PTFP grants.
    (b) All broadcast equipment that a grantee acquires under this 
program shall be of professional broadcast quality. An applicant 
proposing to utilize nonbroadcast technology shall propose and purchase 
equipment that is compatible with broadcast equipment wherever the two 
types of apparatus interface.
    (c) Total project costs do not include the value of eligible 
apparatus owned or acquired by the applicant prior to the closing date 
unless approved by PTFP on a case-by-case basis in writing pursuant to 
Sec. 2301.6(b)(2).



Sec. 2301.8  Submission of applications.

    (a) Applications can be obtained from the following address: Public 
Telecommunications Facilities Program, NTIA/DOC, 14th Street and 
Constitution Avenue, NW., Room H-4625, Washington, DC 20230.
    (b) The Administrator shall select and publish in the Federal 
Register a closing date by which applications for funding in a current 
fiscal year are to be filed.
    (c) All applications, whether mailed or hand delivered, must be 
received by the Agency at the address listed in the annual Federal 
Register announcement requesting applications at or before 5:00 P.M. on 
the closing date. Applications received after the closing date shall be 
rejected and returned without further consideration (but see Sec. 
2301.26).
    (d) A complete application must include all of the information 
required by the Agency application materials and must be submitted in 
the number of copies specified by the Agency.
    (e) Each copy of the Agency application must contain an original 
signature of an officer of the applicant who is legally authorized to 
sign for the applicant.
    (f) Applicants must certify whether they are delinquent on any 
Federal debt.
    (g) Applicants may be required to submit Name Check forms (Form CD-
346) which may be used to ascertain background information on key 
individuals associated with potential grantees as part of the 
application, per Department Pre-Award Administrative Requirements and 
Policies.
    (h) Applicant organizations may also be subject to a responsibility 
determination by the Department which may include but not be limited to 
reviews of financial and other business activities. Responsibility 
determinations are intended to ascertain whether potential grantee 
organizations or their key personnel have been involved in or are facing 
any matters that might significantly and negatively impact on their 
business honesty, financial integrity and/or ability to successfully 
perform the proposed grant activities.
    (i) Unsatisfactory performance by the applicant under prior Federal 
awards may result in the application not being funded.



Sec. 2301.9  Deferred applications.

    (a) An applicant may reactivate an application deferred by the 
Agency in a prior year during the two consecutive years following the 
application's initial filing with the Agency; provided the applicant has 
not substantially changed the stated purpose of the application.
    (b) To reactivate a deferred application, the applicant must file an 
updated application, whether mailed or hand delivered, at or before 5:00 
P.M. on the closing date.
    (c) An updated application must include all of the information 
required by the Agency application materials and must be submitted in 
the number of copies specified by the Agency.

[[Page 538]]

    (d) Deferred applications that are resubmitted under this section 
and contain substantial changes will be considered as new applications.
    (e) All deferred applications may be subject to a determination of 
eligibility during subsequent grant cycles.



Sec. 2301.10  Applications resulting from catastrophic damage or emergency 

situations.

    (a) An application may be filed with a request for a waiver of the 
closing date, as provided in Sec. 2301.26, when an eligible broadcast 
applicant suffers catastrophic damage to the basic equipment essential 
to its continued operation as a result of a natural or manmade disaster, 
or as the result of complete equipment failure, and is in dire need of 
assistance in funding replacement of the damaged equipment. This section 
is limited to equipment essential to a station's continued operation 
such as transmitters, tower, antennas, STL's or similar equipment which, 
if the equipment failed, would result in a complete loss of service to 
the community.
    (b) The request for a waiver must set forth the circumstances that 
prompt the request and be accompanied by appropriate supporting 
documentation.
    (c) A waiver will be granted only if it is determined that the 
applicant either carried adequate insurance or had acceptable self-
insurance coverage.
    (d) Applicants claiming complete failure of equipment must document 
the circumstances of the equipment failure and demonstrate that the 
equipment has been maintained in accordance with standard broadcast 
engineering practices.
    (e) Applications filed and accepted pursuant to this section must 
contain all of the information required by the Agency application 
materials and must be submitted in the number of copies specified by the 
Agency.
    (f) The application will be subject to the same evaluation and 
selection process followed for applications received in the normal 
application cycle, although the Administrator may establish a special 
timetable for evaluation and selection to permit an appropriately timely 
decision.



Sec. 2301.11  Service of applications.

    On or before the closing date, all new or deferred applicants must 
serve a summary copy of the application on the following agencies:
    (a) In the case of an application for a construction grant for which 
FCC authorization is necessary, the Secretary, Federal Communications 
Commission, 1919 M Street, NW., Washington, DC 20554;
    (b) The state telecommunications agency(-ies), if any, having 
jurisdiction over the development of broadcast and/or nonbroadcast 
telecommunications in the state(s) and the community(-ies) to be served 
by the proposed project; and
    (c) The state office established to review applications under 
Executive Order 12372, 47 FR 30959, 3 CFR, 1982 Comp., p. 197, as 
amended by Executive Order 12416, 48 FR 15587, 3 CFR, 1983 Comp., p. 
186, in all states where equipment requested in the application will be 
located and where the state has established such an office and wishes to 
review these applications.



Sec. 2301.12  Federal Communications Commission authorizations.

    (a) Each applicant whose project requires FCC authorization must 
file an application for that authorization on or before the closing 
date. NTIA recommends that its applicants submit PTFP-related FCC 
applications to the FCC at least 60 days prior to the PTFP closing date. 
The applicant should clearly identify itself to the FCC as a PTFP 
applicant.
    (b) In the case of FCC authorizations where it is not possible or 
practical to submit the FCC license application with the PTFP 
application, such as C-band satellite uplinks, low-power television 
stations and translators, remote pickups, studio-to-transmitter links, 
and Very Small Aperture Terminals, a copy of the FCC application as it 
will be submitted to the FCC, or the equivalent engineering data, must 
be included in the PTFP application.
    (c) Applications requesting C-band downlinks are not required to 
submit the FCC application or equivalent engineering data as part of the 
PTFP application. When such a project is funded, however, grantees will 
be required to

[[Page 539]]

submit evidence of FCC registration of the C-band downlink prior to the 
release of Federal funds.
    (d) Any FCC authorization required for the project must be in the 
name of the applicant for the PTFP grant.
    (e) If the project is to be associated with an existing station, the 
FCC operating authority for that station must be current and valid.
    (f) For any project requiring new authorization(s) from the FCC, the 
applicant must file a copy of each FCC application and any amendments 
with the Agency.
    (g) If the applicant fails to file the required FCC application(s) 
by the closing date, or if the FCC returns, dismisses, or denies an 
application required for the project or any part thereof, or for the 
operation of the station with which the project is associ ated, the 
Agency may reject and return the application.
    (h) No grant will be awarded until confirmation has been received 
from the FCC that any necessary authorization will be issued.



Sec. 2301.13  Public comments.

    (a) After the closing date, the Agency will publish a list of all 
applications received.
    (b) The applicant shall make a copy of its application available at 
its offices for public inspection during normal business hours.
    (c) A copy of the application will be available in the PTFP offices 
for public inspection during normal business hours.
    (d) Any interested party may file comments with the Agency 
supporting or opposing an application and setting forth the grounds for 
support or opposition. Any opposing comments must contain a 
certification that a copy of the comments has been delivered to the 
applicant. Comments must be sent to the address listed in Sec. 
2301.8(a).
    (e) The Agency shall incorporate all comments from the public and 
any replies from the applicant in the applicant's official file for 
consideration during the evaluation of the application.



Sec. 2301.14  Supplemental application information.

    (a) The Agency may request from the applicant any additional 
information that the Agency deems necessary to clarify the application. 
Applicants must provide to the Agency additional information that the 
Agency requests within fifteen (15) days of the date of the Agency's 
notice. Applicants must submit a copy of the requested information for 
each copy of the application submitted by the closing date.
    (b) Applicants must immediately provide to the Agency information 
received after the closing date that materially affects the application, 
including:
    (1) State Single Point of Contact and State Telecommunications 
Agency comments on applications;
    (2) FCC file numbers and changes in the status of FCC applications 
necessary for the proposed project;
    (3) Changes in the status of proposed local matching funds, 
including notification of the passage (including reduction or rejection) 
of a proposed state appropriation or receipt (or denial) of a proposed 
substantial matching gift;
    (4) Changes that affect the applicant's eligibility under Sec. 
2301.3;
    (5) Changes in the status of proposed production, participation, or 
distribution agreements (if relevant to the proposed project);
    (6) Changes in lease or site rights agreements; and
    (7) Complete failure of major items of equipment for which 
replacement costs have been requested or changes in the status of the 
need for the equipment requested.
    (c) Applicants must place copies of any additional information 
submitted to the Agency in the copy of the application made available 
for public inspection pursuant to Sec. 2301.13.
    (d) Neither the Department nor the Agency will discuss the merits of 
an application when it is under review.



Sec. 2301.15  Withdrawal of applications.

    (a) Applicants may request withdrawal of an application from 
consideration for funding without affecting future consideration. 
Withdrawn applications will be returned by the Agency.

[[Page 540]]

    (b) A request that the Agency defer an application for consideration 
in a subsequent year will be treated as a request for withdrawal.



               Subpart C_Evaluation and Selection Process



Sec. 2301.16  Technical evaluation process.

    (a) In determining whether to approve or defer a construction or 
planning grant application, in whole or in part, and the amount of such 
grant, the Agency will evaluate all the information in the application 
file.
    (b) PTFP grants are awarded on the basis of a competitive review 
process. The evaluation of the applications is based upon the evaluation 
criteria provided under Sec. 2301.17.
    (c) The competitive review process may include the following: 
evaluation by PTFP staff; technical assessment by engineers; an 
evaluation by outside reviewers, all of whom have demonstrated expertise 
in either public broadcasting or distance learning; and rating by a 
national advisory panel, composed of representatives of major national 
public radio and television organizations.
    (d) In acting on applications and carrying out other 
responsibilities under the Act, the Agency shall consult (as 
appropriate) with the FCC, the Corporation for Public Broadcasting, 
state telecommunications agencies, public broadcasting agencies, 
organizations, and other agencies administering programs that may be 
coordinated effectively with Federal assistance provided under the Act; 
and, the state office established to review applications under Executive 
Order 12372, as amended by Executive Order 12416.
    (e) Based upon the evaluation criteria contained in Sec. 2301.17, 
the PTFP program staff will prepare summary evaluations. These will 
incorporate the outside reviewers' recommendations, engineering 
assessments, and program staff evaluations.



Sec. 2301.17  Evaluation criteria for construction and planning applications.

    (a) For each application that is filed in a timely manner by an 
applicant, is materially complete, and proposes an eligible project, the 
Agency will consider the evaluation criteria listed in Sec. 2301.17(b):
    (1) The criteria in paragraphs (b)(1), Applicant qualifications, 
(b)(2), Financial qualifications, of this section are qualifying 
criteria. Applications meeting the minimum qualifications on these 
criteria will be considered for further review.
    (2) The remaining four criteria listed in Sec. 2301.17(b) will be 
weighted in the evaluation as follows:
    (i) Criteria in paragraph (b)(3), Project objectives, and (b)(4), 
Urgency, of this section will be given the most weight in the 
evaluation.
    (ii) The remaining criteria in paragraph (b)(5), Technical/Planning 
qualifications, and (b)(4), Special consideration, of this section will 
be given less weight and are listed in descending order.
    (b) Evaluation criteria--(1) Applicant qualifications: Documentation 
that the applicant has or will have the ability to complete the project, 
including having sufficient qualified personnel to operate and maintain 
the facility, and to provide services of professional quality.
    (2) Financial qualifications: Documentation reflecting the 
applicant's ability to provide non-Federal funds required for the 
project, including funds for the local match and funds to cover any 
ineligible costs required for completion of the project; and to ensure 
long-term financial support for the continued operation of the facility 
during the Federal interest period.
    (3) Project objectives: The degree to which the application 
documents that the proposed project fulfills the objectives and specific 
requirements of one or more of the categories set forth in Sec. 2301.4, 
documents the applicant's ability to implement the proposed project and 
adequately justify the need for Federal funds in excess of fifty (50) 
percent of total project costs (see Sec. 2301.6(b)(2)), if requested 
for equipment replacement, improvement, or augmentation projects; and, 
in the case of planning, adequately justifies the need for Federal funds 
in excess of seventy five (75) percent of total project costs (see Sec. 
2301.6(a)(2)), if requested.

[[Page 541]]

    (4) Urgency: Documentation that justifies funding the proposed 
project during the current grant cycle or, when appropriate, that the 
condition of existing equipment justifies its prompt replacement.
    (5)(i) Technical qualifications (construction applicants only). 
Documentation that the eligible equipment requested is necessary to 
achieve the objectives of the project; that the proposed costs reflect 
the most efficient use of Federal funds in achieving project objectives; 
that the equipment requested meets current industry performance 
standards (and FCC standards, if appropriate) and that an evaluation of 
alternative technologies has been completed that justifies the selection 
of the requested technology (where alternative technologies are 
possible).
    (ii) Planning qualifications (planning applicants only). 
Documentation of the feasibility of the proposed planning process and 
timetable for achieving the expected results; that costs proposed 
reflect the most efficient use of Federal funds; that the applicant has 
sufficient qualified staff or consultants to complete the planning 
project with professional results; and that an evaluation of alternative 
technologies will be incorporated into the plan, if appropriate.
    (6) Special consideration: For this evaluation criterion, applicants 
should demonstrate that its broadcast or non-broadcast application will 
achieve significant diversity in the ownership of, operation of, and 
participation in public telecommunications facilities. Applicants may 
demonstrate how their project will better serve the characteristics, 
values and attitudes of diverse listeners by promoting the development 
of more effective programming strategies, conducting station outreach 
projects, through audience development efforts, and through the 
participation of minorities and women on the Board of Directors, and in 
other policy making positions.
    (c) The Agency will provide each applicant with guidance in the 
application materials on the type of documentation necessary to meet 
each of the above evaluation criteria.



Sec. 2301.18  Selection process.

    (a) The PTFP Director will consider the summary evaluations prepared 
by program staff, rank the applications, and present recommendations to 
the OTIA Associate Administrator for review and approval. The Director's 
recommendations and the OTIA Associate Administrator's review and 
approval will take into account the following selection factors:
    (1) The program staff evaluations, including the outside reviewers.
    (2) The type of projects and broadcast priorities set forth at Sec. 
2301.4.
    (3) Whether the application is for broadcast or a nonbroadcast 
project.
    (4) Whether the applicant has any current NTIA grants.
    (5) The geographic distribution of the proposed grant awards.
    (6) The availability of funds.
    (b) Upon approval by the OTIA Associate Administrator, the 
Director's recommendations will then be presented to the Selecting 
Official, the NTIA Administrator.
    (c) The Administrator makes final award selections taking into 
consideration the Director's recommendations and the degree to which the 
slate of applications, taken as a whole, satisfies the program's stated 
purposes set forth at Sec. 2301.1 (a) and (c).
    (d) No grant will be awarded until confirmation has been received 
from the FCC that any necessary authorization will be issued.
    (e) After final award selections have been made, the Agency will 
notify the applicant of one of the following actions:
    (1) Selection of the application for funding, in whole or in part;
    (2) Deferral of the application for subsequent consideration;
    (3) Rejection of the application with an explanation and the reason, 
if an applicant is not eligible or if the proposed project does not fall 
within at least one of the categories enumerated at Sec. 2301.4; or
    (4) Return of applications that were deferred by the Agency after 
consideration during three grant cycles.
    (f) The Agency will notify the following organizations of those 
applications selected for funding:

[[Page 542]]

    (1) The state educational telecommunications agency(ies), if any, in 
any state any part of which lies within the service area of the 
applicant's facility;
    (2) The FCC; and
    (3) The Corporation for Public Broadcasting and, as appropriate, 
other public telecommunications entities.



                    Subpart D_Post-Award Requirements



Sec. 2301.19  General conditions attached to the Federal award.

    (a) During the project award period and the remainder of the Federal 
interest period, the grantee must:
    (1) Continue to be an eligible organization as described in Sec. 
2301.3;
    (2) Obtain and continue to hold any necessary FCC authorization(s);
    (3) Use the Federal funds for which the grant was made for the 
equipment and other expenditure items specified in the application for 
inclusion in the project, except that the grantee may substitute other 
items where necessary or desirable to carry out the purpose of the 
project if approved in advance by the Department in writing. These 
changes include but are not limited to the following:
    (i) Costs (including planning costs);
    (ii) Essential specifications of the equipment;
    (iii) The engineering configuration of the project;
    (iv) Extensions of the approved grant award period; and
    (v) Transfers of a grant award to a successor in interest, pursuant 
to Sec. 2301.19(c);
    (4) Use the facilities and any monies generated through the use of 
the facilities primarily for the provision of public telecommunications 
services and ensure that the use of the facilities for other than public 
telecommunications purposes does not interfere with the provision of the 
public telecommunications services for which the grant was made;
    (5) Not make its facilities available to any person for the 
broadcast or other transmission intended to be received directly by the 
public, of any advertisement, unless such broadcast or transmission is 
expressly and specifically permitted by law or authorized by the FCC; 
and
    (6) State when advertising for bids for the purchase of equipment 
that the Federal government has an interest in facilities purchased with 
Federal funds under this program that begins with the purchase of the 
facilities and continues for ten (10) years after the completion of the 
project.
    (b) During the period in which the grantee possesses or uses the 
Federally funded facilities, the grantee may not use or allow the use of 
the Federally funded equipment for purposes the essential thrust of 
which are sectarian for the useful life of the equipment even when this 
extends beyond the ten-year Federal interest period. (See NTIA's policy 
on sectarian activities at 60 FR 66491, Dec. 22, 1995.)
    (c) If necessary to further the purpose of the Act, the Agency may 
reassign a grant to a successor in interest or subsidiary corporation of 
a grantee in cases where a similar operational entity remains in control 
of the grant and the original objectives of the grant remain in effect. 
Each party must provide, in writing, its assent to the substitution. Any 
substituted party must meet the eligibility requirements.



Sec. 2301.20  Schedules and reports.

    (a) Within thirty (30) calendar days of the award date the grantee 
shall submit to the Agency, in duplicate, a construction schedule or a 
revised planning timetable that will include the information requested 
in the grant terms and conditions in the award package.
    (b) During the project period of this grant, the grantee shall 
submit performance reports, in duplicate, on a calendar year quarterly 
basis for the period ending March 31, June 30, September 30, and 
December 31, or any portions thereof. The Quarterly Performance Reports 
should contain the following information:
    (1) A comparison of actual accomplishments during the reporting 
period with the goals and dates established in the Construction or 
Planning Schedule for that reporting period;
    (2) A description of any problems that have arisen or reasons why 
established goals have not been met;

[[Page 543]]

    (3) Actions taken to remedy any failures to meet goals; and
    (4) Construction projects must also include a list of equipment 
purchased during the reporting period compared with the equipment 
authorized. This information must include manufacturer, make and model 
number, brief description, number and date of the items purchased, and 
cost.



Sec. 2301.21  Payment of Federal funds.

    (a) The Department will not make any payment under an award, unless 
and until the recipient complies with all relevant requirements imposed 
by this Part. Additionally:
    (1) The Department will not make any payment until it receives 
confirmation that the FCC has granted any necessary authorization;
    (2) The Department may not make any payment under an award unless 
and until all special award conditions stated in the award documents 
that condition the release of Federal funds are met; and
    (3) An agreement to share ownership of the grant equipment (e.g., a 
joint venture for a tower) must be approved by the Agency before any 
funds for the project will be released.
    (b) As a general matter, the Agency expects grantees to expend local 
matching funds at a rate at least equal to the ratio of the local match 
to the Federal grant as stipulated in the grant award.



Sec. 2301.22  Protection, acquisition, and substitution of equipment.

    (a) To assure that the Federal investment in public 
telecommunications facilities funded under the Act will continue to be 
used to provide public telecommunications services to the public during 
the Federal interest period, the Agency may require a grantee to:
    (1) Execute and record a document establishing that the Federal 
government has a priority lien on any facilities purchased with funds 
under the Act during the period of continuing Federal interest. The 
document shall be recorded where liens are normally recorded in the 
community where the facility is located and in the community where the 
grantee's headquarters are located; and
    (2) File a certified copy of the recorded lien with the 
Administrator ninety (90) days after the grant award is received.
    (b) The grantee shall maintain protection against common hazards 
through adequate insurance coverage or other equivalent undertakings, 
except that, to the extent the applicant follows a different policy of 
protection with respect to its other property, the applicant may extend 
such policy to apparatus acquired and installed under the project. The 
grantee shall purchase flood insurance (in communities where such 
insurance is available) if the facilities will be constructed in any 
area that has been identified by the Federal Emergency Management Agency 
as having special flood hazards.
    (c) The grantee shall not dispose of or encumber its title or other 
interests in the equipment acquired under this grant during the Federal 
interest period.
    (d) The grantee shall demonstrate that the grantee has obtained 
appropriate title or lease satisfactory to protect the Federal interest 
to the site or sites on which apparatus proposed in the project will be 
operated. The grantee must have the right to occupy, construct, 
maintain, operate, inspect, and remove the project equipment without 
impediment to assure the sufficient continuity of operation of the 
facility; and nothing must prevent the Federal government from entering 
the property and reclaiming or securing PTFP-funded property.
    (e) The Agency will allow the acquisition of facilities by lease; 
however, the following requirements apply:
    (1) The lease must be of benefit to the Federal government;
    (2) The actual amount of the lease must not be more than the 
outright purchase price would be; and
    (3) The lease agreement must state that in the event of anticipated 
or actual termination of the lease, the Federal government has the right 
to transfer and assign the leasehold to a new grantee for the duration 
of the lease contract.
    (f) Transfer of equipment. Where the grant equipment is no longer 
needed for the original purposes of the project, the Department may 
transfer the

[[Page 544]]

equipment to the Federal government or an eligible third party, in 
accordance with Office of Management and Budget guidelines.
    (g) Transfer of Federal interest to different equipment. The 
Department may transfer the Federal interest in PTFP-funded equipment to 
other eligible equipment presently owned or to be purchased by the 
grantee with non-Federal monies, provided the following conditions are 
met:
    (1) If the Federal interest is to be transferred to other equipment 
presently owned or to be purchased by a grantee, the Federal interest in 
the new equipment must be at least equal to the Federal interest in the 
original equipment.
    (2) Equipment previously funded by PTFP that is within the Federal 
interest period may not be used in a transfer request as the designated 
equipment to which the Federal interest is to be transferred.
    (3) The same item can be used only once to substitute for the 
Federal interest. However, the Federal interest in several items of 
equipment from different grants may be transferred to a single item if 
the request for all such transfers is submitted at the same time.
    (4) A lien on equipment transferred to the Federal interest may be 
required by PTFP and must be recorded in accordance with Sec. 
2301.23(b)(8). A copy of the lien document must be filed with the PTFP 
within sixty (60) days of the date of approval of the transfer of 
Federal interest.
    (h) Termination by buy-out. A grantee may terminate the Federal 
revisionary interest in a PTFP grant by buying out the Federal interest 
with non-Federal monies. Buy-outs may be requested at any time.



                    Subpart E_Completion of Projects



Sec. 2301.23  Completion of projects.

    (a) Upon completion of a planning project, the grantee must promptly 
provide to the Agency two copies of any report or study conducted in 
whole or in part with funds provided under this program.
    (1) This report shall meet the goals and objectives for which the 
grant is awarded and shall follow the written instructions and guidance 
provided by the Agency. The grant award goals and objectives are stated 
in the planning narrative as amended and are incorporated by reference 
into the award agreement.
    (2) The Agency shall review this report for the extent to which 
those goals and objectives are addressed and met, for evidence that the 
work contracted for under the grant award was in fact performed, and to 
determine whether the written instructions and guidance provided by the 
Agency, if any, were followed.
    (3) If the Agency determines that the report fails to address or 
meet any grant award goals or objectives, or if there is no evidence 
that the work contracted for was in fact performed, or if this report 
clearly indicates that the written instructions and guidance provided by 
the Agency, if any, were disregarded, then the Agency may pursue 
remedial action.
    (4) An unacceptable final report may result in the disallowance of 
claimed costs and the establishment of an account receivable by the 
Department.
    (b) Upon completion of a construction project, the grantee must:
    (1) Certify that the grantee has acquired, installed, and begun 
operating the project equipment in accordance with the project as 
approved by the Agency, and has complied with all terms and conditions 
of the grant as specified in the Grant Award document;
    (2) Certify that the grantee has obtained any necessary FCC 
authorizations to operate the project apparatus following the 
acquisition and installation of the apparatus and document the same;
    (3) Certify and document that the facilities have been acquired, 
that they are in operating order, and that the grantee is using the 
facilities to provide public telecommunications services in accordance 
with the project as approved by the Agency;
    (4) Certify that the grantee has obtained adequate insurance to 
protect the Federal interest in the project in the event of loss through 
casualty;

[[Page 545]]

    (5) Certify, if not previously provided, that the grantee has 
acquired all necessary leases or other site rights required for the 
project;
    (6) Certify, if appropriate, that the grantee has qualified for 
receipt of funds from the Corporation for Public Broadcasting;
    (7) Provide a complete and accurate final inventory of equipment 
acquired under the project and a final accounting of all project 
expenditures, including non-equipment costs (e.g., installation costs); 
and
    (8) Execute and record a final priority lien, if required by PTFP, 
reflecting the completed project and assuring the Federal government's 
reversionary interest in all equipment purchased under the grant project 
for the duration of the Federal interest period.
    (c) When an applicant completes a construction project, the Agency 
will assign a completion date that the Agency will use to calculate the 
termination date of the Federal interest period. The completion date 
will usually be the date on which the project period expires unless the 
grantee certifies in writing prior to the project period expiration date 
that the project is complete and in accord with the terms and conditions 
of the grant, as required under Sec. 2301.23(b)(1). If the PTFP 
Director determines that the grantee improperly certified the project to 
be complete, the PTFP Director will amend the completion date 
accordingly.



Sec. 2301.24  Final Federal payment.

    If the total allowable, allocable, and reasonable costs incurred in 
completing the planning or construction project are less than the total 
project award amount, the Agency shall reduce the amount of the final 
Federal share on a pro rata basis. If, however, the actual costs 
incurred in completing the project are more than the estimated total 
project costs, in no case will the final Federal funds paid exceed the 
grant award.



Sec. 2301.25  Retention of records and annual status reports.

    (a) All grantees shall keep intact and accessible all records 
specified in Office of Management and Budget Circular A-110 (for 
educational institutions, hospitals, and nonprofit organizations), or 15 
CFR part 24 (for State and Local Governments).
    (b) Recipients of construction grants:
    (1) Are required to submit an Annual Status Report for each grant 
project that is in the Federal interest period. The Reports are due no 
later than April 1 in each year of the Federal interest period. 
Information about what is to be included in the Annual Status Report is 
supplied to grant recipients at the time grants are closed out.
    (2) Shall retain an inventory of the equipment for the duration of 
the ten-year Federal interest period and shall mark project apparatus in 
a permanent manner to assure easy and accurate identification and 
reference to inventory records. The marking shall include the PTFP grant 
number and an inventory number assigned by the grantee.
    (3) May also be required to take whatever steps may be necessary to 
ensure that the Federal government's reversionary interest continues to 
be protected for the 10-year period by recording, when and where 
required, a lien continuation statement and reporting that fact in the 
Annual Status Report.



                            Subpart F_Waivers



Sec. 2301.26  Waivers.

    It is the general intent of NTIA not to waive any of its 
regulations. However, under extraordinary circumstances and when it is 
in the best interests of the Federal government, NTIA, upon its own 
initiative or when requested, may waive the regulations adopted pursuant 
to section 392(e) of the Act. Waivers may only be granted for regulatory 
requirements that are discretionary.


[[Page 547]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 549]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2009)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 550]]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 551]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)

[[Page 552]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)

[[Page 553]]

      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts9400--9499)

[[Page 554]]

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)

[[Page 555]]

        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)

[[Page 556]]

        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)

[[Page 557]]

       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)

[[Page 558]]

         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

[[Page 559]]

      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)

[[Page 560]]

            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)

[[Page 561]]

            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)

[[Page 562]]

        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)

[[Page 563]]

            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 564]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 565]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)

[[Page 566]]

        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 567]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 569]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2009)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 570]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 571]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2

[[Page 572]]

  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61

[[Page 573]]

  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V

[[Page 574]]

Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50

[[Page 575]]

  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
   and Technology Policy
[[Page 576]]

National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII

[[Page 577]]

Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
   Office of the Assistant Secretary for
[[Page 578]]

Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 579]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000, published in 
11 separate volumes.

                                  2001

15 CFR
                                                                   66 FR
                                                                    Page
Chapter VIII
801.9 (b)(4)(ii) revised; eff. 1-10-02.............................63917
801.10 Revised; eff. 1-10-02.......................................63919
Chapter IX
902.1 (b) table amended (OMB numbers).................3451, 21643, 30652
    (b) table corrected............................................24056
922.81 Amended.....................................................46951
922.82 (a)(7) added................................................46951
922.122 (a)(2) revised.............................................58371
922.161 Revised (effective date pending)............................4369
    Regulation at 66 FR 4369 eff. 3-8-01...........................16120
922.162 Amended (effective date pending)............................4369
    Regulation at 66 FR 4369 eff. 3-8-01...........................16120
922.164 (d)(1)(v), (vi) and (g) revised; (d)(1)(vii) and (ix) 
        added (effective date pending)..............................4369
    Regulation at 66 FR 4369 eff. 3-8-01...........................16120
922.166 Heading revised (effective date pending)....................4369
    Regulation at 66 FR 4369 eff. 3-8-01...........................16120
922.167 Redesignated as 922.168 (effective date pending)............4369
    Added (effective date pending)..................................4370
    Regulations at 66 FR 4369, 4370 eff. 3-8-01....................16120
922.168 Redesignated from 922.167; new 922.168 revised (effective 
        date pending)...............................................4369
    Regulation at 66 FR 4369 eff. 3-8-01...........................16120
922.160--922.168 (Subpart P) Appendices I, II, IV, V, VI and VII 
        revised (effective date pending)............................4370
    Regulation at 66 FR 4370 eff. 3-8-01...........................16120
    Appendix VII amended...........................................34534

                                  2002

15 CFR
                                                                   67 FR
                                                                    Page
Chapter VIII
801.9 (b)(6)(ii) revised...........................................71104
Chapter IX
902.1 (b) table amended (OMB numbers).........50304, 51078, 63229, 64312
909 Removed.........................................................7611
990.26 (a) and (b) revised.........................................61492
990.30 Amended.....................................................61493
990.53 (b)(3)(i) revised...........................................61493
990.62 (b)(2) revised; (f) and (g) added...........................61493
990.64 (a) revised.................................................61493

                                  2003

15 CFR
                                                                   68 FR
                                                                    Page
Chapter VIII
801.9 (c)(4) added; eff. 1-15-04...................................69956
    (c)(5) added; eff. 1-30-04.....................................75409

[[Page 580]]

    (c)(6) added; eff. 1-30-04.....................................75411
806.15 (h)(1) and (2) revised.......................................3813
    (i) revised; eff. 1-5-04.......................................67940
806.17 Revised......................................................1532
Chapter IX
902.1 (b) table amended (OMB numbers)....209, 2192, 12815, 24617, 49698, 
                                                            61340, 64987
    (b) table corrected............................................62501
911.3 (p) through (s) revised; (t) added...........................45161
911.4 (c)(3) and (4) revised.......................................45161
911.5 (c) and (e)(1) revised; (e)(3) and (4) added.................45161
911.6 Revised......................................................45161
911 Appendix A revised.............................................45161
    Appendix B revised.............................................45162
922 Temporary regulations...................................39005, 43922
Chapter XX
2016 Added; interim.................................................5543
    Revised........................................................43924

                                  2004

15 CFR
                                                                   69 FR
                                                                    Page
Chapter VIII
801 Authority citation revised.......................50064, 54752, 69509
801.9 (c)(3) added.................................................50064
    (b)(6)(ii) revised.............................................54752
801.11 (b) and (c) revised.........................................69510
806 Authority citation revised; eff. 1-6-05........................70545
806.16 Revised; eff. 1-6-05........................................70545
Chapter IX
902.1 (b) table amended............................................35214
Chapter XI
1150.1 Nomenclature change.........................................18803
1150.3 Nomenclature change.........................................18803

                                  2005

15 CFR
                                                                   70 FR
                                                                    Page
Chapter VIII
801.9 (b) revised..................................................48271
806.14 (f)(3) revised..............................................71239
Chapter IX
902.1 (b) table amended (OMB numbers)...7024, 9861, 10232, 13098, 21940, 
                                                            31339, 48866
    (b) table amended (OMB numbers); eff. 6-13-05 thru 12-10-05....34059
    Regulation at 70 FR 48866 eff. date delayed to 12-1-05.........61223
    (b) table amended (OMB numbers); eff. 1-6-06...................67350
922 Policy statement...............................................57127
995 Added..........................................................52909
996 (Subchapter F) Added.............................................698

                                  2006

15 CFR
                                                                   71 FR
                                                                    Page
Chapter VIII
801.10 Revised; eff. 1-16-07.......................................75419
806.14 (e) amended.................................................35389
Chapter IX
902.1 (b) table amended (OMB numbers)........17988, 33224, 55106, 67245, 
                                                                   67457
904 Revised........................................................12448
922.90--922.93 (Subpart I) Revised (eff. date pending).............60063
930.1 (b) and (c) revised............................................826
930.10 Table amended.................................................826
930.11 (g) amended...................................................826
930.31 (a) and (d) revised...........................................826
930.35 (d) redesignated as (e); new (d) added........................827
930.37 Amended.......................................................827
930.41 (a) revised...................................................827
930.46 (a)(3) added..................................................828
930.51 (a) and (e) revised...........................................827
930.58 (a)(1) revised; (a)(2) amended................................827
930.60 Revised.......................................................827
930.63 (d) amended...................................................828
930.66 (a)(3) added..................................................828
930.76 (c) removed; (d) redesignated as (c); (a) and (b) revised 
                                                                     828
930.77 (a) revised...................................................828
930.82 Revised.......................................................829
930.85 Heading, (b) and (c) revised; (d) removed.....................829
930.101 (a)(3) added.................................................829
930.121 (c) revised..................................................829
930.123 Heading revised; (c), (d) and (e) added......................829
930.125 (b) through (e) redesignated as (c) through (f); new (b) 
        added; new (f) amended.......................................830
    (b) corrected..................................................75865
930.127 Revised......................................................830

[[Page 581]]

    (d)(1) and (i)(2) corrected....................................75865
930.128 Revised......................................................831
930.129 (c) and (d) revised..........................................831
930.130 (a) through (d) revised......................................831
960 Revised........................................................24481

                                  2007

15 CFR
                                                                   72 FR
                                                                    Page
Chapter VIII
801.9 (c)(4) revised................................................5168
    (b)(2) removed; (c)(6) revised..................................5170
806.14 (f)(3) revised; eff. 1-16-08................................71221
806.17 Revised; eff. 1-25-08.......................................72919
806.18 Revised (OMB numbers); eff. 1-25-08.........................72919
Chapter IX
902.1 (b) table amended (OMB numbers).........6148, 11270, 18111, 20038, 
                                                            51702, 52715
    (b) table amended (OMB numbers); interim.......................53949
922.70 Revised (effective date pending)............................29232
    Regulation at 72 FR 29232 eff. 7-29-07.........................45320
922.71 Redesignated as 922.72; new 922.71 added (effective date 
        pending)...................................................29232
    Regulation at 72 FR 29232 eff. 7-29-07.........................45320
922.72 Redesignated as 922.74 (effective date pending).............29232
    Regulation at 72 FR 29232 eff. 7-29-07.........................45320
922.73 Added (effective date pending)..............................29232
    Regulation at 72 FR 29232 eff. 7-29-07.........................45320
922.74 Redesignated from 922.72 (effective date pending)...........29232
    (a) introductory text revised (effective date pending).........29233
    Regulation at 72 FR 29232 and 29233 eff. 7-29-07...............45320
922.70--922.74 (Subpart G) Appendix A revised; Appendix B added 
        (effective date pending)...................................29233
    Appendix C correctly added; Appendix C heading corrected 
(effective date pending)...........................................42317
    Regulation at 72 FR 29233 eff. 7-29-07.........................45320
922.90--922.93 (Subpart I) Regulation at 71 FR 60063 eff. 2-16-07 
                                                                   12730

                                  2008

15 CFR
                                                                   73 FR
                                                                    Page
Chapter IX
902.1 (b) table amended (OMB numbers)........29981, 30523, 39588, 54939, 
                                                                   74003
    (b) table amended (OMB numbers); eff. 1-14-09..................76141
922.80--922.84 (Subpart H) Revised (eff. date pending).............70529
922.110--922.113 (Subpart K) Revised (eff. date pending)...........70533
922.130--922.134 (Subpart M) Revised (eff. date pending)...........70535
Chapter XX
2004 Revised.......................................................35063


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