National marine sanctuaries managers' legal handbook

[From the U.S. Government Printing Office, www.gpo.gov]

NATIONAL MARINE SANCTUARIES- -.
4.. 1
MANAGERS

too
n
LEGAL HANDBOOK ,
U\
VA
-@5
0
IA
r--

c5l-
-m
0

NATIONAL MARINE SANCTUARIES MANAGERS
LEGAL HANDBOOK

TABLE OF CONTENTS

1. Part 921, National Estuarine Reserve Research System (NERRS)

2. Part 921, National Estuarine Research Reserve System Program
Regulations (Proposed Rules dated July 17,1992)

3. Part 922, National Marine Sanctuary Program

4. Part 924, Monitor Marine Sanctuary Regulations

6. Part 929, Key Largo National Marine Sanctuary Final Regulations

7. Part 930, Federal Consistency with Approved Coastal Zone
Management Programs

8. Part 933, Coastal Zone Management Research and Technical
Assistance

9. Part 935, Channel Island National Marine Sanctuary Regulations

10. Part 936, Point Reyes/ Farallones Islands National Marine
Sanctuaries Regulations

11. Part 937, Looe Key National Marine Sanctuary Regulations

12. Part 938, Gray's Reef National Marine Sanctuary Regulations

13. Part 941,Fagatele Bay National Marine Sanctuary Regulations

14. Part 942, Cordell Bank National Marine Sanctuary Regulations

15. Part 943, Flower Garden Banks National Marine Sanctuary
Regulations

16. Part 944, Monterey Bay National Marine Sanctuary Regulations (final
rule dated September 18, 1992)

17. Coastal Zone Management Act of 1972 as amended.

18. 1990 Amendments to the Coastal Zone Management Act, a summary
by the Coastal Zone Information Center

19. Marine Protection, Research, and Sanctuaries Act PRS
of 1972, as amended (without 1992 amendments)

20. National Marine Sanctuaries: Challenge and Opportunity--A report
to the National Oceanic and Atmospheric Administration (THE
POTTER REPORT)

5. Parts 928 and 932 Implementing the CZMA Reauthorization
Amendments of 1990, phase I
(dated July 14, 1992)

21. National Marine Sanctuaries Program, Title 111, 1992 Amendments

22. Magnuson Fishing Conservation and Management Act

23. Endangered Species Act

24. Marine Mammal Protection Act

25. Memorandum prepared by GCOS summarizing the 1992 amendments
to MPRSA Title III

26. Summary of relevant Federal authorities (from appendix C Of
Monterey Bay NMS FEIS/MP)

27. CEQ NEPA regulations, 40 C.F.R. Parts 1500 - 1508

28. Environmental Review Procedures NOAA, Administrative Order 216-
6
29. Forty Most Asked Questions Concerning CEQ's NEPA Procedures, 46
F.R. 48026

30. Federal Court Cases Involving NMS Regulations:

1. Gentile v. NOAA, et al.

2. Deaton, et al., v. U.S. DOC

3. Craft, et al., v. NPS, et al.

31. Selected GCOS Legal Opinions /Memoranda

1. Sale/Disposal of Historic Sanctuary Resources and the
Federal Archaeological Program

2. Acceptance of Donations for National Marine Sanctuaries

3. Inward Extent of Jurisdiction under Title III of Marine Protection,
Research, and Sanctuaries Act

4. Regulation of Fishing in National Marine Sanctuaries

32. Selected Legal Opinion re: NERRS

I. Eligibility of the Heritage Task Force for the Hudson River Valley,
Inc. to Receive NERR Financial Assistance

Part 921
National Estuarine Reserve
Research System
(NERRS)

LIN @.@

15 CFR Ch. IX (1-1-92 Edition)

Sec.

Subpart D- Resorve Designation and
Subsequent Operation
921.30 Designation of National Estuarine
Research Reserves.
921.31 Supplemental acquisition and devel-
opment awards.
921.32 Operation and management: Imple-
mentation of the management plan.
921.33 Boundary changes, amendments to
the management plan. and addition of
multiple-site components.

Subpart E-Performance Evaluation and
Withdarwal of Designation
921.40 Evaluation of system performance.
921.41 Suspension of eligibility for finan-
cial assistance.
921.42 Withdrawal of designation.

Subpart F-Research

921.50 General.
921.51 Estuarine research guidelines
921.52 Promotion and coordination of estu-
arine research.

Subpart G-Monitering
921.60 GeneraL
PART "I-NATIONAL ESTUARINE Subpart H-Interpretation and Education
RESERVE RESEARCH SYSTEM REG-
ULATIONS 921.70 General
921.71 Categories of potential interpretive
and educational projects; evaluation cri-
Sep- teria.
Subpart A-General Subpart I-General Financial Assistance
921.1 Mission. goals and general Provisions. previsions
921.2 Definition. 921.80 Application Information
921.3 National Estuarine Reserve Research 921.81 Allowable costs.
system 921.82 Amendments to financial assistance
scheme and estuarine typologies. awards.
921.4 Relationship to Other provisions Of APPENDIX I To PART 921-Biogeographic
the Coastal zone Management Act. Classification schime
Appendix II to Part 921-Typology OF NA-
Subpart $--We Selection, post site selection tional Estuarine Research Reserve
and Management Man Development Authority Sec. 315, Public Law 92-583.
921.10 General. as amended; 86 Stat. 1280 (16 U.S.C. 1461).
921.11 Site selection Source 55 PR 29949 July 23 1990, unless
921.12 Post site selection. otherwise noted.
921.13 Management Plan and environmen-
tal Impact statement development. Subpart A General
Subpart c-Acquisition, Development, and 921.1 Mission Goals and general provi-
Preperation of the Final Management Plan sions.

921.20 General. (a) The mission of the National Es-
921.21 Initial acquisition and development tuarine Reserve Research System is
awards. the establishment and management.

piational Oceanic and Atmosph*ric Adm., Commerce � 921.1
through Federal-State cooperation, of consistent with the mission and goals
&national system of estuarine re- of the program (see paragraphs (a)
search reserves representative of the and (b) of this section) and the go&b
various regions and estuarine types in and objectives of the affected research
the United States. Estuarine research reserve, and be limited In nature and
reserves are established to provide op- extent to the minimum manipulative
portunities for long-term research, activity necessary to accomplish the
education, and interpretation. stated research objective. Manipula-
(b) The goals of the program for car- tive research activities with a sigWi-
rying out this mission are to: cant or long-term impact on reserve
(1) Ensure a stable environment for resources require the prior approval of
research through long-term protection the state and the National Oceanic
of estuarine reserve resources; and Atmospheric Administration
(2) Address coastal management (NOAA). Manipulative research activi-
issues identified as significant through ties which can reasonably be expected
coordinated estuarine research within to have a significant adverse impact on
the System; the estuarine resources and habitat of
(3) Enhance public awareness and a reserve, such that the activities
understanding of the estuarine envi- themselves or their resulting short-
ronment and provide suitable opportu- and long-term consequences compro-
nities for public education and inter- mise the representative character and
pretation; integrity of a reserve, are not allowed.
(4) Fromote Federal. state, public Habitat manipulation for resource
and private use of one or more re- management purposes is not permit-
serves within the System when such ted within national estuarine research
entities conduct estuarine research. reserves. except as allowed for restora-
and tion activities consistent with para-
(5) Conduct and coordinate estua- graph (e) of this section. NOAA may
rine research within the System, gath- allow an exception to this prohibition
ering and makin available Informa- if manipulative activity is necessary
tion necessary for improved under- for the protection of public health or
standing and management of estua- the preservation of other semaltive re-
rine areas. sources which have been Bated or an
W National estuarine research re- eligible for protection under relevant
serves shall be open to the public to Federal or state authority (ag., threit-
the extent permitted under State and ened/endancered species or significant
Federal law. Multiple uses are allowed historical or cultural resources). If
to the degree compatible with the re- habitat manipulation is determined to
search reserve's overall purpose as pro- be necessary for the protection of
vided in the manage ent plan (we public health or the preservation of
1921.13) and consistent with pars- sensitive resources. then these activi-
graphs (a) and (b) of this section. Use ties shall be specified in the Reserve
levels are set by the individual state Management Plan and limited. to the
and analyzed In the man ement plan. reasonable alternative which has the
The research reserve management least adverse and shortest term Impact
plan shall describe the uses and estab- on the representative and ecological
lish priorities among these um. The Integrity of the reserve.
plan shall identify uses requiring a (e) Under the Act an am may be
state permit, an well as areas where designated as an estuarine reserve
uses are encouraged or prohibited. only if the area Is a representative se-
Consistent with resource protection tuarine ecosystem that Is suitable for
and research objectives.. public access long-term research. Man estuarine
may be restricted to certain areas areas have undergone some ecological
within a research reserve. change an a result of human activities
W Habitat manipulation for re- (eg., hydrological changes, intention.
search purposes in allowed consistent al/ species
with the following limitations. Ma changes-introduced and exotic spe.
nipulative research activities must be cies). In those areas proposed or desig-
specified in the ge ent plan, be nated as national estuarine research

921.2 15 CFR Ch. IX (1-1-92 IdMen)
reserves, such changes MaY have di- and interpretive award provides funds
minished the representative chamter to conduct estuarine educational and
and integrity of the site. Although res- interpretive activities within the
tomtion of degraded areas is not a Pri- System.
mary purpose of the System, such ac- (g) liands already in protected status
tivities may be permitted to improve man by other Federal agencies,
the representative character and in- state or local governments, or private
tegrity of a reserve. Restoration activi- organizations can be included within
ties must be carefully planned and aP- national estuarine research reserves
proved by NOAA through the Reserve only if the managing entity commits
Management Plan. Historical research to long-term non-mvinipulative man.
may be necessary to determine the agement consistent with paragraphs
"natural" representative state of an (d) and (e) of this section in the re-
estuarine area (ie., an estuarine ecO- serve management plan. Federal lands
system minimally affected by human already in protected status cannot
activity or influence). Frequently. res. comprise the key land and water areas
toration of a degraded estuarine area of a research reserve (see
will provide an excellent opportunity 1921.11(c)(3)).
for management oriented research. (h) To assist the states in carrying
(f) NOAA may provide financial as- out the Program's goals in an effective
sistance to coastal states, not to manner, the National Oceanic and At-
exceed 5o percent of all actual costs or mospheric Administration (NOAA)
$4 million whichever amount Is less, to will coordinate a research and educa-
assist in the acquisition of land and tion information exchange throughout
waters, or interests therein. NOAA the national estuarine research re-
may provide financial assistance to serve system. As part of this role,
coastal states not to exceed 50 Percent NOAA will ensure that information
of all actual costs for the management and ideas from one reserve are made
and opemtion of. and the conduct of available to others In the sysWnL The
educational or interpretive activities network will enable reserves to ex-
concerning, national estuarine re- change information and research data
search reserves (see subpart I of this with each other. with universities en-
part). NOAA may provide financial as- gaged in estuarine research. and with
sistanee to any coastal state or public Federal and state agencies. NOAA's
or private person. not to exceed 50 objective is a system-wide program of
percent of all actual costs, to support research and monitoring capable of
research and monitoring within a na- addressing the anwment issues
tional estuarine research reserve. Five that affect long-term productivity of
types of swiLrds am available under our Nation's estuaries.
the National Estuarine Reserve Re-
search System Program. The predesig- g 921.2 DdWtlogm
nation awards are for site selection.
draft management plan preparation (a) Act means the CoasW Zone Aftm-
and conduct of basic chamterization. ftement Act of 1972, an amended, 16
studies. Acquisition and development U.S.C. 1451 et seq. Section 315 of the
awards are Intended prinwily for ac- Act, IS U.B.C. 1461. establishes the Na-
quisition of interests in land and con- tional Estuarine Reserve Research
struction. The opemtion and nuinage- System.
ment award provides funds to assist in (b) Under Secretary means the
implementing the research, education- Under secretary for Oceans and At-
&L and administrative program. de- mosPhere, UA Department Of COM,
tailed in the research reserve manage. mom. or designee.
ment plan and is reflective of the Joint (c) QXUtdi State Me=fi a state of the
State-Federal partnership In the pres- United States. In or bordering on. the
ervation and protection of estuarine Atlantic. Pacific. or Arctic Ocem the
resources. The research and monitor- Gulf of Mexico. TAng Wand Sound. or
ing awards provide funds to conduct one or mom of the Great lAke& For
estuarine research and monitoring the purposes of them regulations tho
within the System The educational term also includes Puerto Rico. the

0,00nal oceanic and Atmosph*r1c Adm., Comm*rce � 921.4
Virgin Islands, Guam, the Common- (b) The biogeographic classification
wealth of the Northern Marianas Is- scheme, presented in Appendix I to
l&nds the Trust Territories of the Pa- this Part, contains 27 regions. FIgure 2
Cific jsjj@nds, and American Samoa (see graphically depicts the biogeographic
16 U.S.C. 1453(4)). regions of the United States.
(d) Estuary means that part of a (c) The typology system is presented
river or stream or other body of water in Appendix II to, this part.
having unimpaired connection with
the open sea, where the sea water is 9 921.4 Relationship to other provisions of
Inessurably diluted with fresh water the Coastal Zone Management Act.
derived from land drainage. The term (a) The National Estuarine Reserve
also includes estuary-type areas with Research System is intended to pro-
Ineasurable freshwater influence and vide information to state agencies and
having unimpaired connections with other entities involved in addressing
the open sea, and estuary-type areas coastal management issues. Any coast.
of the Great Lakes and their connect- al state, including those that do not
ing waters. See 16 U.S.C. 1453(7)). have approved coastal zone manage.
(e) National Estuarine Research Re- ment programs under section 306 of
serve means an area that is a repre- the Act, Is eligible for an award under
sentative estuarine ecosystem suitable the National Estuarine Reserve Re-
for long-term research, which may in- search System (see I 921.2(c)).
clude all or the key land and water
portion of an estuary, and adjacent (b) For purposes of consistency
transitional areas and uplands consti- review by states with a federally ap-
tuting to the extent feasible a natural proved coastal zone management pro-
unit. and which is set aside as a natu- gram, the designation of a national es-
ral field laboratory to provide long- tuarine research reserve is deemed to
term opportunities for research, edu- be a Federal activity, which. if directly
cation, and Interpretation on the eco- affecting the state's coastal zone, must
logical relationships within the area be undertaken in a manner consistent
(see 16 U.S.C. 1453(g)) and meets the to the maximum extent practicable
requirements of 10 U.S.C. 1461(b). with the approved state coastal zone
This includes those areas designated Program as provided by section
as national estuarine sanctuaries 1456(c)(1) of the Act, and implement-
under -section 315 of the Act prior to Ing regulations at 15 CPR part 930,
the date of the enactment of the subpart C. In accordance with section
Coastal Zone Management Reauthor- 1456(cXD of the Act and the applica-
izAtion Act of 1985 and each area sub- ble regulations NOAA will be responai-
seQuently designated as a national es- ble for certifying that designation of
tuarine research reserve. the reserve is consistent with the
State approved coastal zone nuumge-
6921.3 National Estuarine Reserve Re- ment program. The State must concur
search System biogeographic classiflea- with or object to the certification. It is
tion scheme and estuarine typologies. recommended that the lead State
(a) National estuarine research re- agency for reserve designation consult
serves are chosen to reflect regional at the earliest practicable time, with
differences and to Include a variety of the appropriate State officials con-
ecosystem types. A biogeographic clas- cerning the consistency of the pro.
sification scheme based on regional posed national estuarine research re-
variations in the nation's coastal zone serve.
has been developed. The biogeograph- (c) The National Estuarine Research
ic classification scheme is used to Reserve Program will be administered
ensure that the National Estuarine in close coordination with the Nation-
Reserve Research System Includes at al Marine Sanctuary Program (Title
least one site from each region. The III of the Marine Protection Pesearch
estuarine typology system in utilized and Sanctuaries Ack an amended, 16
to ensure that sites In the System re- U.S.C. 1431-1445). also admainistered
flect the wide range of estuarine types by NOAA. Title M authorlm the Sec-
within the United States. retary of Commerce to designate din-

921.10 15 OR Ch. IX (1-1-92 Edition)
crete areas of the marine environment I 921.11(c) and collectively as part of
as marine sanctuaries to protect or re- the site selection process. A state may
store such areas for their conserva- propose to establish a multiple-site re-
tion, recreational, ecological. histori- search reserve at the time of the ini-
cal, research. educational or esthetic tial site selection, or at any point in
values. National marine sanctuaries the development or operation of the
and estuarine research reserves may estuarine research reserve, even after
not overlap, though they may be adJa- Federal funding for the single site re-
cent. search reserve has expired. If the state
decides to develop a multiple-site na-
Subpart B.-Sito SWection, Post Site tional estuarine research reserve after
Selection and Management Plan the initial acquisition and develop-
Development ment award is made for a single site,
the proposal is subject to the require-
� 921.10 General. ments set forth in I 921.33(b). Howev-
(a) A state may apply for Federal fi. er, a State may not propose to add one
nancial assistance for the purpose of or more sites to an already designated
site selection. preparation of docu- research reserve if the operation and
ments specified in 1921.13 (draft man. management of such research reserve
agement plan and environmental has been found deficient and uncor-
impact statement (EIS)) and the con. rected or the research conducted is
duct of research necessary to complete not consistent with the Estuarine Re.
basic characterization studies. The search Guidelines in accordance with
total Federal share of this group of the provisions of subparts E and F of
predesignation awards may not exceed this part. In addition, Federal funds
$100,000, of which up to $25,000 may acquisition of a multiple-site research
be used for site selection as described reserve remains limited to $4,000,000
in 1921.11. Federal financial assist- (see J 921.20). The funding for oper-
ance for preacquisition activities under ation of a multiple-site research re-
1921.11 and .1921.12 is subject to the serve Is limited to $70,000 per year (see
total $4 million for which each reserve I 921.32(c)) and preacquisition funds
is eligible for land acquisition. In the are limited to $100,000 per reserve.
case of a biogeographic region (see Ap-
pendix I to this part) shared by two or 1921.11 Site selection.
more states, each state is eligible for (a) A state may use up to $25.000 in
Federal financial assistance to estab- Federal funds to establish and imple-
lish a national estuarine research re- ment a site selection process which is
serve within their respective portion approved by NOAA.
of the shared biogeographic region. Fl- (b) In addition to the requirements
nancial assistance application proce- set forth in subpart I of this part, a re-
dures are specified in subpart I of this quest for Federal funds for site selec-
part. tion must contain the following pro-
(b) In developing a research reserve Jr-mynatic information:
program, a state may choose to devel- (1) A description of the proposed site
op a multiple-site research reserve re-
flecting a diversity of habitats in a selection process and how It will be im-
single biogeographic region. A multi- plemented in conformance with the
ple-site research reserve also allows biogeographic classification scheme
the state to develop complementary and typology (1921.3);
research and educational Program (2) An Identification of the site selec-
within the individual components Of tion agency and the potentlal manaffe-
its multi-site research reserve. Multi- ment agency, and
ple-site research reserves are treated (3) A description of how public par-
as one reserve in terms of financial A& ticipation will be Incorporated into the
sistance and development of an overall PrOcew (see I 921.11(d)).
management framework and plan. W As part of the site selection proo-
Each individual site of a Proposed mul- 08. the state and NOAA shall evaluate
tiple-site research reserve shall be and select the final site(s). NOAA has
evaluated both separately under final authority In approving such sites.

National Oceanic and Atmospheric Adm., Commerce � 921.11
Site selection shall be "ded by the mination of which land and water
following principles: areas are "key" to a Particular reserve
(1) The site's contribution to the bio- must be based on Specific scientific
geographical and typological balance knowledge of the area. A basic princi-
of the National Estuarine Reserve Re- ple to follow when deciding upon key
search System. NOAA will give priori- land and water areas is that they
ty consideration to proposals to estab- should encompass resources represent-
lish reserves in biogeographic regions ative of the total ecosystem, and
or subregions that are not represented which if compromised could endanger
in the system (see the biogeographic the research objectives of the reserve.
classification scheme and typology set The term "buffer zone" refers to an
forth in � 921.3 and appendices I and area adjacent to or surrounding key
II to this part); land and water areas and essential to
(2) The site's ecological characteris- their integrity. Buffer zones protect
tics, including its biological productivi- the core area and provide additional
ty, diversity of nomand fauna, and protection for estuarine-dependent
capacity to attract a broad range of re- species, including those that are rare
search and educational interests. The or endangered. When determined ap-
proposed site must be a representative propriate by the state and approved
estuarine ecosystem and should, to the by NOAA, the buffer zone may also in-
maximum extent possible, be an estua- clude an area necessary for facilities
rine ecosystem minimally affected by required for research and interpreta-
human activity or influence (see tion. Additionally, buffer zones should
921.1(e)); be established sufficient to accommo-
(3) Assurance that the site's bound- date a shift of the core area as a result
aries encompass an adequate portion of biological, ecological or geomorpho-
of the key land and water areas of the logical change which reasonably could
natural system to approximate an eco- be expected to occur. National estua-
logical unit and to ensure effective rine research reserves may include ex-
conservation. Boundary size will vary isting Federal or state lands already in
greatly depending on the nature of a protected status where mutual bene-
the ecosystem. Research reserve fit can be enhanced. However, NOAA
boundaries must encompass the area will not approve a site for potential
within which adequate control has or national estuarine research reserve
will be established by the managing status that is dependent primarily
entity over human activities occurring upon the inclusion of currently pro-
within the reserve. Generally, reserve tected Federal lands in order to meet
boundaries will encompass two areas: the requirements for research reserve
key land and water areas (or "core status (such as key land and water
area") and a buffer zone. Key land areas). Such lands generally will be in-
and water areas and a buffer zone will cluded within a research reserve to
likely require significantly different serve as a buffer or for other ancillary
levels of control (see 1 921.13(a)(7)). purposes;
The term "key land and water areas" (4) The site's suitability for long-
refers to that core area within the re- term estuarine research, including eco-
serve that is so vital to the functioning logical factors and proximity to exist-
of the estuarine ecosystem that it ing research facWties and educational
must be under a level of control suffi. institutions;
cient to ensure the long-term viability (5) The site's compatibility with ex-
of the reserve for research on natural isting and potential land and water
processes. Key land and water areas. uses in contiguous areas as well as ap-
which comprise the care area, are proved coastal and estuarine manage-
those ecological units of a natural es. ment plans; and
tuarinesystem which preserve, for re- (6) The site's importance to educa-
search purposes. a full range of signifi- tion and interpretive efforts, consist-
cant physical, chemical and biological ent with the need for continued pro-
factors contributing to the diversity of tection of the natural system.
fauna. nomand natural Processes Oc- W Early in the site selection process
curring within the estuary. The deter- the state must seek the views of af-

� 921.12 15 CFR Ch. IX 0-1-" EdMon)
fected landowners, local governments, velop the draft management plan and
other state and Federal agencies and for the collection of the information
other parties who are interested in the necessary for preparation of the envi-
area(s) being considered for selection ronmental impact statement. At this
as a potential. national estuarine re- time, the state may also submit a re-
search reserve. After the local quest for the remainder of the prede-
govermment(s) and affected signation funds for research necessary
landowner(s) have been contacted, at to complete a basic chit terization of
least one public meeting shall be held the physical. chemical and biological
in the area of the proposed site. Notice characteristics of the site approved by
of such a meeting, including the time, NOAA. The state's request for these
place, and relevant subject matter, post site selection funds must be ac-
shall be announced by the state companied by the information spect-
through the area's principal news fied in subpart I of this part and. for
media at least 15 days prior to the draft management plan development
date of the meeting and by NOAA in and environmental impact statement
the F'='=AL Rzoismm- information collection. the following
(e) A state request for NOAA W programmatic information:
proval of a proposed site (or sites in (1) A draft nuumgement plan outline
the caw of a multi-site reserve) must (see 1 921.13(s) below); and
contain a description of the proposed (2) An outline of a draft memoran-
site in relationship to each of the site dum of understanding (MOU) between
selection principles Q 921.11(c)) and the state and NOAA detailing the Ped-
the following information: eral-state role in research reserve man-
(1) An analysis of the proposed site agement during the initial period of
based on the biogeographical scheme/
typology discussed in 1921.3 and set Federal funding and expressing the
forth ir. appendices I andnto this state's long-term commitment to oper-
part; ate and man ge the national estuarine
(2) A description of the proposed site research reserve.
and its major resources. including lo- (b) The state is eligible to use the
cation, proposed boundaries, and &dJa- funds referenced in 1921.12(s) after
cent land uses. Maps, including aerial the proposed site is approved by
photographs, are required; NOAA under the terms of 1921.11.
(3) A description of the public par-
ticipation process used by the state to 1921.13 Management Plan and tnviron-
solicit the views of interested parties, a mental Impact statement development.
summary of comments, and. If inter- (a) After NOAA approves the stAte'S
state issues are involved. documenta- proposed site, the allte may request to
tion that the Governor(s) of the other use additional predesignation funds
affected state(s) has been contacted. for draft management plan develop-
Copies of all correspondence. includ- ment and the collection of
ing contact letters to all affected land- necessary for the Preparation by
owners must be appended; NOAA of the environmental impact
(4) A list of all sites considered and a statement. The state shall develop a
brief statement of the basis for not se- draft management Plan. Including an
lecting the non-preferredsites; and MOU. The plan will set out in detail:
(5) A nomination of the proposed (1) Research reserve goals and objec-
aite(s) for designation as a National tIvM management Issues, and strate-
Estuarine Research Reserve by the
Governor of the coastal allte In which gies or actions for meeting the goals
the are& is located. and objectives:
(2) An administrative WCUOn includ-
1921.12 Post site selection. Ing staff roles in SAMinifitrStion. M
(a) At the time of the state's request search, educlLtion/interPret"'On' and
for NOAA approval Of A Proposed site- surveillance and enforcement;
the state may submit a request for up (3) A research Plan, Including S mOn-
to $40.000 of the total $100,000 Sl- Itoring design;
lowed for predesignation funds to de- (4) An education/interpretive plan:

National Oceanic and Atmospheric Adm., Commerce � 921.13
(5) A plan for public access to the re- (1) Determine, with appropriate jus.
search reserve; tification, the minimum level of
(6) A construction plan, including a control(s) required (eg., management
proposed construction schedule, gener- agreement, regulation, less-than-fee
al descriptions of proposed develop- simple property interest (eg., conser-
ments and preliminary drawings, if ap- vation easement), fee simple property
propriate. Information should be pro- acquisition, or a combination of these
vided for proposed minor construction approaches;
projects in sufficient detail to allow (ii) Identify the level of existing
these projects to begin in the initial state control(s);
phase of acquisition and development. (III) Identify the level of additional
if a visitor center, research center or state control(s), if any, necessary to
any other facilities are proposed for meet the minimum requirements iden-
construction or renovation at the site, tified in (a)(7)(i); of this section,
or restorative activities which require Ov) Examine all reasonable alterna-
significant construction are planned, a tives for attaining the level of control
detailed construction plan including identified in (a)(7)(iii) of this section,
preliminary cost estimates and archi- and perform a cost analysis of each;
tectural drawings must be prepared as and
a part of the final management plan; M Rank, in order of cost. the meth-
and ods (including acquisition) identified
(7) An acquisition plan identifying in paragraph (a)(7)(M of this section.
the ecologically key land and water
areas of the research reserve, ranking An assessment of the relative cost-ef-
these areas according to their relative fectiveness of control alternatives
importance, and including a strategy shall include a reasonable estimate of
for establishing adequate long-term both short-term costs (&g., acquisition
state control over these areas suffi- of property Interests, regulatory pro-
cient to provide protection for reserve gram development including associat-
resources to ensure a stable environ- ed enforcement costs, negotiation, ad-
ment for research. This plan must in- Judication. etc.) and long-term costs
elude an identification of ownership (eg., monitoring, enforcement, adJudi-
within the proposed research reserve cation, management and coordina-
boundaries, including land already in tion). In selecting a preferred
the public domain; the method(s) of method(s) for establishing adequate
acquisition which the state proposes to state control over each parcel exam-
use-acquisition (including less-than- ined under the process described
fee simple options) to establish ade- above, the state shall give priority con-
quate long-term state control; an esti- sideration to the least costly
mate of the fair market value of any method(s) of attaining the minimum
property interest-which is proposed level of long-term control required.
for acquisition. a schedule estimating Generally, with the possible exception
the time required to complete the of buffer areas required for support
process of establishing adequate state facilities, the level of control(s) re-
control of the proposed research re- quired for buffer areas will be consid.
serve; and a discussion of any antici- erablY less than that required for key
pated problems. In selecting a pre- land and water areas. This acquisition
ferred method(s) for establishing ade. plan. after receiving the approval of
quate state control over areas within NOAA. shall serve as a guide for nego-
the proposed boundaries of the re- tiations with landowners. A final
serve, the state shall perform the fol- boundary for the reserve shall be de-
lowing steps for each parcel deter- lineated as a part of the final manage-
mined to be part of the key land and Ment Plan;
water areas (control over which is nec- (8) A resource protection plan detail-
essary to protect the integrity of the ing applicable authorities. Including
reserve for research purposes), and for allowable uses, uses requiring a perm1t
those parcels required for research and permit requirements, any restric.
and interpretive support facilities or tions on use of the research reserve.
buffer purposes: 99 and a strategy for research reserve

921.20 15 CFK Ch. IX (1-1-92 Edition)
surveillance and enforcement of such lishing a similar notice in the local
use restrictions, including appropriate media.
government enforcement agencies; (d) NOAA will publish a F=nAL
(9) If applicable, a restoration Plan RzoisTmt notice of intent to prepare a
describing those portions of the site draft EIS. After the draft EIS is pre-
that may require habitat modification pared and filed with the Environmen-
to restore natural conditions; tal Protection Agency (EPA). a Notice
(10) A proposed memorandum of un- of Availability of the DEIS will appear
derstanding (MOU) between the state in the FEURAL RzGzsT=. Not less than
and'NOAA regarding the Federal-state 30 days after publication of the notice,
relationship during the establishment NOAA will hold at least one public
and development of the national estu- hearing in the area or areas most af-
arine research reserve, and expressing fected by the proposed national estua-
a long-term commitment by the state rine research reserve. The hearing will
to maintain and manage the research be held no sooner than 15 days after
reserve in accordance with section 315 appropriate notice of the meeting has
of the Act 16 U.S.C. 1461, and applica- been given in the principal news media
ble regulations. In conjunction with and in the P)mzaAL RzG1sT= by NOAA
the MOU and where possible under and the state. respectively. After a 45-
state law, the state will consider day comment period. a final EIS will
taking appropriate administrative or be prepared by NOAA.
legislative action to ensure the long.
term protection and operation of the Subpart C-Acquisition, Develop-
national estuarine research reserve. ment, and Preparation of the
The MOU shall be signed prior to re- Final Management Plan
search reserve designation. If other
MOUs are necessary (such as with a 1921.20 General.
Federal agency or another state
agency). drafts of such MOUA also The acquisition and development
must be included In the plan; and period is separated into two major
(11) If the state has a federally ap- phases. After NOAA approval of the
proved coastal zone management pro- site. draft management plan and draft
gram, documentation that the pro- MOU, and completion of the final ELS;
posed national estuarine research re. a state is eligible for an Initial acquisi-
serve is consistent to the maximum tion and development award(s). In this
extent practicable with that Program initW phase, the state should work to
See J 921.4(b) and I 921.30(b). meet the criteria required for formal
(b) Regarding the preparation of an research reserve eg., es-
environmental impact statement (EIS) tablishing adeQ tate control over
under the National Environmental the key land and Water WVW as SPeci-
policy Act on a national estuarine re- fled in the draft nuumement Plan and
search reserve Proposal, the state ShaU preparing the final managentent Plam
provide all necessary Information to These requirements are specified in
NOAA concerning the socioeconomic 1921.30. Minor construction in accord-
and environmental impacts associated SUce with the draft management Plan
with implementing the draft manage- may also be conducted during this ini-
ment plan and feasible alternatives to tial phase. The initial acquisition and
the plan. Based on this information, development phase in expected to last
NoAA will prepare the draft EIS. no longer than three yeam U neces-
(c) Early in the development of the BUY. & longer time Period MAY be no.
draft anagement plan and the draft gotiated between the state and NOAA.
EIS. the state shall hold a meeting in After research reserve
the area or areas most affected to so- state in eligible for a sul
licit public and government comments quisition and development Ward(s) In
on the significant issues related to the accordance with 1921.31. In this Post-
proposed action. NOAA will publish a -- acquisition and develop-
notice of the meeting in the Mw=AL ment Phase, funds may be used in ao.
RzoisT= 15 days prior to the meeting. cordance with the final
The state shall be responsible for Pub- plan to construct research and educa-

100

National Oceanic and Atmospheric Adm., Commorc* � 921.21
tional facilities, complete any remain- of the management Plan (such as boat
ing land acquisition, and for restora- ramps and nature trails) are permitted
tive activities identified in the final during the initial acquisition and de-
management plan. In any case, the velopment phase. No more than five
amount of Federal financial assistance (5) percent of the initial acquisition
provided to a coastal state with re- and development award may be ex-
spect to the acquisition of lands and pended on such facilities. NOAA must
waters, or interests therein, for any make a specific determination, based
one national estuarine research re- on the final EIS, that the construction
serve may not exceed an amount equal activity will not be detrimental to the
to 50 percent of the costs of the lands, environment.
waters, and interests therein or (d) Except as specifically provided in
$4,000,000, whichever amount is less. paragraphs (a) through (C) of this sec-
The amount of Federal assistance for tion, construction projects, to be
development and construction activi- funded in whole or in part under an
ties is $1,500,000. acquisition and development award(s),
may not be initiated until the research
9921.21 Initial acquisition and develOP- reserve receives formal designation
ment awards. (see � 921.30). This requirement has
(a) Assistance is provided to aid the been adopted to ensure that substan.
recipient in: tial progress in establishing adequate
(1) Acquiring a fee simple or less- state control over key land and waters
than-fee simple real property interest areas has been made and that a final
in land and water areas to be included management plan is completed before
in the research reserve boundaries (see major sum are spent on construction.
I 921.13(a)(7); I 921.30(d)); Once substantial progress in establish-
(2) Minor construction, as provided Ing adequate state control/acquisition
in paragraphs (b) and (c) of this sec. has been made, as defined by the state
tion: in the management plan, other activi-
(3) Preparing the final management ties guided by the final management
plan; and plan may begin with NOAA's approv-
(4) Up to the point of research re- al.
serve designation, initial management (e) For any real property acquired in
costs. eg., for implementing the whole or part with Federal funds for
NOAA approved draft management the research reserve the state shall
plan, preparing the final management execute suitable title documents to in-
plan, hiring a reserve manager and clude substantially the following pro-
other staff as necessary and for other visions, or otherwise append the fol-
management-related activities. Appli- lowing provisions in a manner accepta-
cation procedures are specified in sub- ble under applicable state law to the
part I of this part. official land record(s):
(b) The expenditure of Federal and (1) Tltle to the property conveyed by
state funds on major construction ac. this deed shall vest in the [recipient of
tivities is not allowed during the initial the award granted pursuant to section
acquisition and development phase. 315 of the Act, 16 U.S.C. 1461 or other
The preparation of architectural and NOAA approved state agency] subject
engineering plans, including specifica- to the condition that the designation
tions, for any proposed construction. of the [name of National Estuarine
or for proposed restorative activities. Reserve] is not withdrawn and the
is permitted. In addition, minor con- property remains part of the federally
struction activities, consistent with designated [name of National Estua-
paragraph W of this amtion 9350 are rine Research Reserve].
allowed. The NOAA-approved draft (2) In the event that the property is
management plan must, however, in- no longer Included as part of the re-
clude a construction plan and a public search reserve. or if the designation of
access plan before any award funds the research reserve of which it in Part
can be spent on construction activities. is withdrawn. then NOAA Or its SuC.
(c) Only minor construction activi. cessor agency. after fun and reasona-
ties that aid In implementing portions ble consultation with the State. may

101

921.30 15 CFR Ch. IX (1-1-92 Edition)
exercise the following rights regarding the plan in the area affected by the es.
the disposition of the property: tuarine research reserve. NOAA wil]
W The recipient may retain title publish a notice of the meeting in the
after paying the Federal Government FEDzRAL RrGlsmm. The state Shall be
an amount computed bY applying the responsible for having a similar notice
Federal percentage of Participation in published in the local media.
the cost of the original ProJect to the
current fair market value of the prop- Subpart D-Roserve Designation and
erty; Subsequent Operation
(ii) If the recipient does not elect to
retain
title, the Federal Government 0 921-30 Designation of Nationad Estu;s-
may either direct the recipient to sell rine Research ReserveL
the property and pay the Federal Gov-
ernment an amount computed by ap- (a) The Under Secretary may desig-
plying the Federal percentage of par. nate an area as a national estuarine
ticipation in the cost of the original research reserve Pursuant to section
proJect to the proceeds from the sale 315 of the Act, if based on written
(after deducting actual and reasonable findings the state has met the follow-
selling and repair or renovation ex. ing requirements:
Pens". if any. from the sale proceeds), (1) The Governor of the coastal
or direct the recipient to transfer title state in which the area is located has
to the Federal Government. If direct, nominated the area for designation as
ed to transfer title to the Federal Gov. a national estuarine research reserve;
ernment, the recipient shall be enti. (2) The area is a representative eStU-
tled to compensation computed by ap. arine ecosystem that is suitable for
Plying the reciplents percentage of long-term research and contributes to
Participation in the cost of the origi- the biogeographical and typological
nal ProJect to the current fair market balance of the System;
value of the property; (3) Key land and water areas of the
(iii) F%ir market value of the proper- Proposed research reserve, as identi.
tY must be determined by an inde. fied in the management plam an
pendent appraiser and certified by a under adequate state control sufficient
responsible official of the state, as pro- to provide long-term PrOteCtion for re-
vided by Department of Commerce serve resources and to ensure a stable
Regulations in 15 CPR Part 24, and environment for research;
Uniform Relocation Assistance and (4) Designation of the area as a re-
Real Property Acquisition for Federal serve will serve to enhance public
and Federally assisted programs in 15 awareness and understanding of estua.
CPR part 11. rine areas, and provide suitable oppor.
M Upon instruction by NOAA. pro. tunities for public education and inter.
visions analogous to those of Pretation;
II 921.21(e) shall be included in the (5) A final -agement Plan has
documentation underlying leag-than. been approved by NOAA and contains
fee-simple interests acquired in whole the signed copy of the designation
or part with Federal funds. findings.
. (g) Federal funds or non-Federal (6) An MOU has been signed be.
matching share funds shall not be tween the state and NOAA ensuring a
spent to acquire a real property inter. long-term commitment by the state to
est in which the State will own the the effective operation and implemen.
land concurrently with another entity tation of the nationg estuarine M
unless the Property interest has been search reserve; and
identified as &.part of an acquisition (7) The coestai, state in which the,
strategy Pursuant to 1 921.13M which am is located ban commued with the,
has been approved by NOAA prior to requirements of these
the effective date of these regulation& (b) NOAA will deternmdine whether
(h) Prior to submitting the final the designation of IL nationsa estuarine
ma"ageMent Plan to NOAA for review research reserve in a state with & fed.
and approval. the state shall hold a erally approved c0asW zone mAnagw
Public meeting to receive comment on Mont program directly affect& the

102

National Oceanic and Atmospheric Adm., Commerce � 921.32
coastal zone. If the designation is not exceed $1,500,000 and must be
found to directly affect the coastal matched by the state on a 50/50 basis.
zone, NOAA will make a consistency Supplemental acquisition awards for
determination pursuant to section the acquisition of lands or waters, or
307(c)(1) of the Act, 16 U.S.C. 1456, interests therein, for any one National
and 15 CFR part 930, subpart C. See Estuarine Reserve may not exceed an
� 921.4(b). The results of this consist- amount equal, to 50 per centum of the
ency determination will be published cost of the lands, waters, and interests
in the FEDERAL REGISTER when a notice therein or $4,000,000 whichever
of designation is published. See amount is less. In the case of a biogeo.
921.30(c). graphic region (see Appendix I to this
(c) NOAA will cause a notice of des- part) shared by two or more states,
ignation of a national estuarine re- each state is eligible for Federal finan.
search reserve to be placed in the Mm- cial assistance to establish a national
EmL REGISTER. The state shall be re- estuarine research reserve within their
sponsible for having a similar notice respective portion of the shared bio,
published in the local media. geographic region. Application proce-
(d) The term "state control" in dures are specified in subpart I of this
921.30(a)(3) does not necessarily re- part. Land acquisition must follow the
quire that key land and water areas be procedures specified in I 921.13(a)(7).
owned by the state in fee simple. Ac- 1921.21 (e) and M and 1921.81.
quisition of less-than-fee-simple inter-
ests (eg., conservation easements) and 1921.32 Operation and management: Im-
utilization of existing State regulatory plementation of the management plan.
measures are encouraged where the (a) After the national estuarine re-
state can demonstrate that these in- search reserve is formally designated,
terests and measures assure adequate the state is eligible to receive Federal
long-term State control consistent funds to assist the state in the oper-
with the purposes of the research re- ation and management of the research
serve (see also I 921.13(a)(7); reserve. The purpose of this Federally
� 921.21(g)). Should the state later funded operation and management
elect to purchase an interest in such phase is to Implement the approved
lands using NOAA funds, adequate final management plan and to take
Justification as to the need for such
acquisition must be provided to the necessary steps to ensure the con-
NOAA. tinued effective operation of the re-
search reserve.
6921.31 Supplemental acquisition and de- (b) State operation and management
velopment awards. of national estuarine research reserves
After national estuarine research re- shall be consistent with the miss'
serve designation. and as specified in and shall further the goals, of the Na-
the approved management p1m the tional Estuarine Research Reserve
state may request a supplemental ac. System (see 1921.1).
quisition and/or development award(s) (c) Federal funds of up to $70,000
for acquiring additional property in. per year, to be matched by the state
terests Identified in the management on a 50/50 basis, are available for the
plan as necessary to enhance long- operation and management of the na-
term protection of the area for re- tional estuarine research reserve, in-
search and education, for facility con. cluding the establishment and oper-
struction. for restorative activities AtiOn Of a b&dC environmental MOW-
identified in the approved manage. toring program. In the can of a blo-
ment plan, and for administrative pur. geographic region (see appendix I to
poses. The amount of Federal finan- this part) shared by two or more
cial assistance provided for supplemen- states. each state is eligible for Federal
tal development costs directly associat- financial assistance to establish a n2v
ed with facility construction other tional estuarine research reserve
than land acquisition Ue-, major con- within their respective portion of the
struction activities) for any one na- shared biogeographic region (see
tional estuarine research reserve may 1921.10).

103

� 921.33 15 CFR Ch. IX (1-1-92 Edition)
(d) operation and management either an environmental assessment or
funds are subject to the following limi- environmental impact statement on
tations: the proposal, will also be required. An
(1) No more than $70,000 in Federal environmental impact statement, if re-
funds may be- expended in a twelve quired, shall be prepared in accord-
month award period (ie., Federal ance with section 1921.13 and shall in-
funds for operation and management clude an administrative framework for
may not be expended at a rate greater the multiple-site research reserve and
than $70,000 per year); a description of the complementary re-
(2) No more than ten percent of the search and educational programs
total amount (state and Federal within the research reserve. If NOAA
shares) of each operation and manage- determines, based on the scope of the
ment award may be used for construc- project and the issues associated with
tion-type activities (1.&,- $14,000 maxi- the additional site, that an environ.
mum per year). mental assessment is sufficient to es-
1921.33 Boundary changes, amendments tablish a multiple-site research re-
to the management plan. and addition serve, then the state shall develop a
of multiple-site components. revised management plan which, con-
cerning the additional component, in-
Changes In research reserve corporates each of the elements de-
boundaries and major changes to the scribed in J 921.13(a). The revised
final management PIM including management plan shall address goals
state laws or regulations promulgated and objectives for all components of
specifically for the research reserve, the multi-aite research reserve and the
may be made only after written aP- additional component's relationship to
proval by NOAA. If determined to be the original site(s).
necessary, NOAA may require public
notice, including notice in the Fim=AL Subpart E-Performance Evaluation
Rwismm and an opportunity for and Vfflhdrawal of Designation
public comment. Changes in the
boundaries of the research reserve in- 9921.40 Evaluation of system, perform-
volving the acquisition of properties ance.
not listed in the management Plan or
final EIS require public notice and the (a) Following of a nIL-
search reserve our-
opportunity for comment; in certain tiOnal estuarine research
cam, an environmental assessment suant to 1921.30. periodic perform-
and possibly, an environmental impact ance evaluations shall be conducted
statement, may be required. Where concerning the operation and manage-
public notice Is required. NOAA will ment of each national estuarine re-
place a notice in the P)MzR" RMISTM search reserve, including the research
of any proposed changes in research and monitoring being conducted
reserve boundaries or proposed major within the reserve and education and
changes to the final management interpretive activitieg. Evaluations
plan. The state shall be responsible for MY As"88 Performance in 211 aspects
publishing an equivalent notice in the of research reserve operation and
local media. See also requirements of management Or may be limited in
I 921.4(b) and I 921.13(&X I D. scope. focusing on selected Issues of
M As discussed in 1921.10(b), a importance. POerformance evaluations
state may choose to develop a multi- in &NeWng research reserve Operation
pie.site national estuarine research re- and may also examine
serve after the initial acquisition and whether a research reserve In In com-
development award for a single site pliance with the requirements of these
has been made. Public notice of the regulations, PUticulArlywhether-
proposed addition will be placed by (1) The operation and
NOAA in the FzD=AL pzG"M.=L The of the research reserve is consistent
state shall be responsible for publish- with and furthers the MisdOn and
ing an equivalent notice in the local goals of the National Estuarine P-0-
medi,L An opportunity for comment, serve Research System (see 1921.1%
in addition to the preparation of and

104

National Oceanic and Atmospheric Adm., Commerce � 921.42
(2) A basis continues to exist to sup- serve is not consistent with the Estua-
port any one or more of the findings rine Research Guidelines referenced
made under I 921.30(a). in subpart F of this part, the eligibility
(b) Generally, performance will be of the research reserve for Federal fi.
evaluated at least every three years. nancial assistance as described in
More frequent evaluations may be these regulations may be suspended
scheduled as determined to be neces- until the deficiency or inconsistency is
sary by NOAA. remedied.
(c) Performance evaluations will be (b) NOAA will provide the state with
conducted by Federal officials. When a written notice of the deficiency or
determined to be necessary, Federal inconsistency. This notice will explain
and non-Federal experts in natural re- the finding, assess the Federal role in
source management, estuarine re- contributing to the problem, propose a
search, interpretation or other aspects solution or solutions, provide a sched.
of national estuarine research reserve ule by which the state should remedy
operation and management may be re- the deficiency or inconsistency, and
quested by NOAA to participate in state whether the state's eligibility for
performance evaluations. If other ex- Federal financial assistance has been
perts are to be included in the evalua. suspen
tion, NOAA will first ask the state to ded In whole or part. in this
recommend appropriate individuals to notice the state shall also be advised
serve in that capacity. that It may comynen on this finding
(d) Performance evaluations will be and meet with NOAA officials to dis-
conducted In accordance with the pro- cuss the results of the performance
cedural and public participation provi- evaluation and seek to remedy the de-
sions of the CZMA regulations on ficiency or inconsistency.
review of performance at 15 CFR part (c) EUgibWty of a research reserve
928 Ue, I 928.3(b) and 1928.4). for financial assistance. under these
(e) To ensure effective Federal over- regulations shall be restored upon
sight of each research reserve within written notice by NOAA to the state
the National Estuarine Reserve Re- that the deficiency or inconsistency
search System the state is required to ha6s been remedied.
submit an annual report on operation (d) If, after a reasonable time, a
and management of the research re- state does not remedy a deficiency in
serve during the immediately preced. the operation and management of a
ing state fiscal year. This annual national estuarine research reserve
report must be submitted within a which has been identified pursuant to
ninety day period following the end of a performance evaluation under
the state fiscal year. The report shaU 1921.40(a), such outstanding deficien-
detail program successes and accom- cy shall be considered a basis for with-
plishments. referencing the research drawal of designation (3ft J 921.42).
reserve management plan and, as ap-
propriate, the work plan for the previ- 9 921.42 Withdrawal of designation.
ous year. A work plan, detaffing the (a) Designation of an estuarine area
projects and activities to be undertak- national estuarine research re.
en over the coming year to meet the as a
goals and objectives of the research re- serve may be withdrawn If a perform-
serve as described in the management 'Lnce evaluation conducted pursuant to
plan and the state's role In ongoing re- J 921.40 reveals that:
search reserve programs, shall also be (1) The basis for my one or more of
included. the findings made under 1 921.30(a) in
designating the reseamh reserve no
1921.41 Suspension of eligibility for fl. longer exists:
nancial ik"istance. (2) A substantial portion of the re-
(a) if a performance evaluation search conducted within the research
under 1921.40 reveaJa that the oper. reserve. over a period of years, hasnot
ation and management of the research been consistent with the Estuarine Re-
reserve is deficient. or that the re- search GuideUnea referenced In sub.
search being conducted within the re- part F of this out or

105

� 92 1.50 15 OR Ch. IX (1-1-92 Edition)
(3) A state, after a reasonable time, provide financial support for research
has not remedied a deficiency in the which is consistent with the Estuarine
operation and management of a re- Research Guidelines referenced in
search reserve identified pursuant to 1921.51. Research awards may be
an earlier performance evaluation con- awarded under this subpart to only
ducted under 1921.40. those designated research reserves
(b) If a basis Is found under with approved final management
I 921.42(a) for withdrawal of designa- plans with the following exception:
tion, NOAA will provide the state with NOAA may award research awards
a written notice of this finding. This under this subpart to reserves without
notice will explain the basis for the final management plans that have
finding, propose a solution or solutions been designated prior to the effective
and provide a schedule by which the date of these regulations; in the ab-
state should correct the deficiency. In sence of an approved final manage-
this notice, the state, shall also be ad- ment plan, however these reserves will
vised that it may comment on the ,- eligible for research awards during
finding and meet with NOAA officiab k"r
to discuss the finding and seek to cor- only the first two years after the ef-
rect the deficiency. fective date of these regulations. Al-
(c) If. within a reasonable period of though this research may be conduct-
time, the deficiency Is not corrected in ed within the immediate watershed of
a manner acceptable to NOAA, a the research reserve, the majority of
notice of intent to withdraw designa- research activities of any single re-
tion, with an opportunity for com- search project funded under this sub-
ment. will be placed in the F=zmL part must be conducted within reserve
RzcisTm. boundaries. Research funds are pri-
(d) The state shall be provided the marily used to support management-
opportunity for an Informal hearing related research that will enhance sci-
before the Under Secretary to consid. entific understanding of the research
er NOAA's finding of deficiency and reserve ecosystem provide informa-
intent to withdraw designation, as well tion needed by reserve managers and
as the state's comments on and re- coastal management decision-makers,
sponse to NOAA'a written notice pur. and improve public awareness and UU-
suant to 1921.42(b) and F==AL RzG. derstanding of estuarine ecosystems
zsT= notice pursuant to I 921.42(c). and estuarine management issues. Re-
(e) Within 30 days after the infor. search projects may be - oriented to
mal hearing. the Under Secretary specific research reserves; however, re-
shall issue a written decision regarding search projects that would benefit
the designation status of the national more than one research reserve in the
estuarine research reserve. If a deci- National Estuarine Reserve Research
sion is made to withdraw research re- System are encouraged.
serve designation, the procedures spec- M Federal research funds under
ified in I 921.21(e) regarding the dispo- this subpart are not intended as a
sition of real property acquired in source of continuous funding for a
whole or part with Federal funds shall particular project over time. Research
be followed. funds may be used to support start-up
(f) NOAA may not withdraw desig- costs for long-term projects if an appli-
nation of a national estuarine research cant can identify an alternative source
reserve if the performance evaluation of long-term research support.
reveals that the deficiencies in man- (c) Research funds are available on a
agement of the site are a result of in- competitive bob to any coastal state
adequate Federal financial support. or qualified public or private person. A
notice of available funds will be pub-
Subpart F-Rosearch lished in the FzDz&4L RzaxsTzL Re-
search funds are provided In addition
1921.50 Gen*mL to any other funds available to a coast-
(a) To stimulate high quality re- al state under the Act. Federal re-
search within designated national es. search funds provided under this sub-
tuarine research reserves. NOAA may part must be matched equally by the

106

National Oceanic and Atmospheric Adm., Commerce � 921.70
recipient, consistent with agement or qualified public or private
921.81 (e)(4). ("allowable costs"). person or entity designated by the Re-
921.51 Estuarine research guidelines. serve. However, if the applicant is
other than the managing entity of a
(a) Research within the National Es- reserve research (coastal state), that
tuarine Reserve Research System applicant must submit as a part of the
shall be conducted in a manner con- application a letter from the reserve
sistent with Estuarine Research manager indicating formal support of
Guidelines developed by NOAA. the application by the managing
(b) A summary of the Estuarine Re- entity of the reserve. Monitoring
search Guidelines is published in the awards will be made on the basis of a
FtDERAL RzcisT= as a part of the five-year performance period; and
notice of available funds discussed in with initial funding for a twelve (12)
J 921.50(c). month period; and with annual supple-
(c) The Estuarine Research Guide- mental funding contingent on per-
lines are reviewed annually by NOAA. formance and appropriations under
This review will include an opportuni. the Act. Monitoring funds are provid.
ty for comment by the estuarine re- ed in addition to any other funds
search community. available to a coastal state under the
9 921.52 Promotion and coordination of Act. Federal monitoring funds must be
estuarine research. matched equally by the recipient, con-
sistent with I 921.81(e)(4) ("allowable
(a) NOAA will promote and coordi, costs,,).
nate the use of the National Estuarine W Monitoring projects funded
Reserve Research System for research under this Subpart must focus on the
purposes. resources within the boundaries of the
(b) NOAA will, in conducting or sup- research reserve and must be consist-
porting estuarine research other than ent with the applicable sections of the
that authorized under section 315 of Estuarine Research Guidelines refer-
the Act, give priority consideration to enced in 1921.51. Portions of the
research that uses the National Estua- project may occur within the immedi-
rine Reserve Research System. ate watershed of the. Reserve beyond
(c) NOAA will consult with other the site boundaries. However, the
Federal and state agencies to promote monitoring proposal must demon-
use of one or more research reserves strate why this is necessary for the
within the National Estuarine Reserve success of the project.
Research System when such agencies
conduct estuarine research. Subpart H-Intorpretation and
Subpart G-Monitoring Education
0 921.60 General. 6 921.70 General.
(a) To provide a systematic basis for (a) To stimulate the development of
developing a high quality estuarine re- Innovative or creative interpretive and
source and ecosystem information educational projects and materials to
base for national estuarine research enhance public awareness and under-
reserves and, as a result, for the standing of estuarine areas. NOAA
System, NOAA may provide financial may fund Interpretive and educational
support for monitoring programs. activities. Interpretive and educational
Monitoring funds are used to support awards may be awarded under this
three major phases of a monitoring subpart to only those designated re-
program; studies necessary for com- search reserves with approved final
prehensive site description/character- management plans with the following
ization, development of a site profile, exception: NOAA may award research
and implementation of a monitoring awards under this subpart to reserves
program without final management plans that
(b) Monitoring funds are available have been designated prior to the ef-
on a competitive basis to the state fective date of these regulations; in
agency responsible for reserve rny-n- the absence of an approved final man-

107

� 921.71 15 CFR Ch. IX (1-1-92 Edition)
agement plan, however these reserves (c) Proposals for interpretive and
will be eligible for research awards educational projects in national estua-
during only the first two years after rine research reserves win be evaluat-
the effective date of these regulations. ed in accordance with criteria listed
(b) Educational and interpretive below:
funds are available on a competitive (1) Educational or interpretive
basis to any coastal state entity. How- merits;
ever, if the applicant is other than the (2) Relevance or importance to re-
managing entity of a research reserve, serve management or coastal decision-
that applicant must submit as a part making'.
of the application a letter from the re- (3) Educational quality (eg., sound-
serve manager indicating formal sup- ness of approach, experience related
port of the application by the manag- to methodologies);
ing entity of the reserve. These funds (4) Importance to the National Estu-
are provided in addition to any other arine Reserve Research System:
funds available to a coastal state (5) Budget and Institutional Capa-
under the Act. Federal interpretation bilittes (eg., reasonableness of budget.
and educational funds must be sufficiency of logistical support): and
matched equally by the recipient, con- (6) In addition, in the case of long-
sistent with J 921.81(e)(4) ("allowable term projects, the ability of the state
costapp). or the grant recipient to support the
1921.71 Categories of potential interpre- project beyond this initial funding.
tive and educational projects; evalua- Subpart 1-4oneral Financial
tion criteria. Assistance Provisions
(a) Proposals for interpretive or edu-
cational projects will be considered 9921.80 Application Information.
under the following categories: (a) Only a coastal state may apply
(1) Design. development and distri- for Federal financial assistance awards
bution/placement of interpretive or for preacQuisition. acquisition and de.
educational media Me., the develop' velopment, operation and manage-
ment of tangible'items, such as exhib- ment, and education and interpretso-
its/displays, publications, Posters, tion. Any coastal state or public or pri.
signs. audio/visdals, computer soft- vate person may apply for Federal fi-
ware and maps which have an educa- nancial assistance awards for estuarine
tional or interpretive purpose; and research or monitoring. The an-
techniques for making available or lo" nouncement of opportunities to con-
c9ting information concerning re- duct research in the reserve system
search reserve resources, activities, or appears on an annual basis in the Fm)@-
issues); zRAT_ RzaisTm If a state is participat-
(2) Development and presentation of ing in the national coastal zone man.
curricula, workshops, lectures, semi- agement program the applicant for
nars, and other structured program an award under section 315 of the Act
or presentations for facility or field shan notify the state coastal manage.
use; ment agency regarding the applica-
(3) Extension/outreach programs; or tion.
(4) Creative and innovative methods M An original and two copies of the
and technologies for implementing in- formal application must be submitted
terpretive or educational proJectL at least 120 working days prior to the
M Interpretive and educational Proposed beginning Of the Project to
projects may be oriented to one or the foUowlM addrew Office of Ocean
more research reserves or to the entire and Coastal, Resource Anagement
systenL Those projects which would National Ocean Service. National Oce-
directly benefit more than one re- anic and Atmospheric Administration.
search reserve, and, if practicable. the Universal Building South. 1825 Con-
entire National Estuarine Reserve Re- necticut Avenue, NW.. Suite 714.
search System abodl receive priority Washington, DC 20235. The ApPlica-
consideration for funding. tion for Federal Assistance Standard

108

National Oceanic and Atmospheric Adm., Commerce � 921.81
Form 424 (Non-construction Program) (d) General guidelines for the non.
constitutes the formal application for Federal share are contained in Depart-
site selection, post-site selection, oper- ment of Commerce Regulations at 15
ation and management, research, and CFR part 24 and OMB Circular A-110.
education and interpretive awards. Copies of Circular A-110 can be ob.
The Application for Federal Financial tained from the Marine and Estuarine
Assistance Standard Form 424 (Con- Management Division, 1825 Connecti-
struction Program) constitutes the cut Avenue, XW., Suite 714: Washing-
formal application for land acquisition ton. DC 20235. The following may be
and development awards. The applica- used in satisfying the matching re-
tion must be accompanied by the In- quirement:
formation required in subpart B (pre- (1) Site Selection and Post Site Se-
designation) of this part, subpart C of lection Awards. Cash and in-kind con-
this part and 1921.31 (acquisition and tributions (value of goods and services
development), and � 921.32 (operation directly benefiting and specifically
and management) as applicable. Appli- identifiable to this part of the project)
cations for development awards for are allowable. Land may not be used
construction projects, or restorative as match.
activities involving construction, must (2) Acquisition and Development
include a preliminary engineering Awards. Cash and In-kind contribu-
report. All applications must contain tions are allowable. In general. the fair
back up data for budget estimates market value of lands to be included
(Federal and non-Federal shares), and within the research reserve boundaries
evidence that the application complies and acquired pursuant to the Act, with
with the Executive Order 12372. other than Federal funds, may be used
"Intergovernmental Review of Federal as match. However, the fair market
Programs." In addition, applications value of real property allowable as
for acquisition and development match is limited to the fair market
awards must contain: value of a real property interest equiv-
(1) State Historic Preservation alent to, or required to attain, the
Office comments; level of control over such land(s) iden-
(2) Written approval from NOAA of tified by the state and approved by
the draft management plan for initial the Federal Government as that nec-
acquisition and development award(s); essary for the protection and manage-
and ment of the national estuarine re-
(3) A preliminary engineering report search reserve. Appraisals must be per-
for construction projects, or restora- formed according to Federal appraisal
tive activities involving construction. standards as detailed in Department
of Commerce regulations at 15 CPR
� 921.81 Allowable costs. part 24 and the Uniform Relocation
(a) Allowable costs wiU be deter- Assistance and Real Property Acquisi-
mined in accordance with applicable tion for Federal and Federally AsW t-
OMB Circulars and guidance for Fed- ed Prop-am in 15 CPR part 11. The
eral financial assistance, the financial fair market value of privately donated
assistance agreement, these regula- land, at the time of donation, as estab-
tions, and other Department of Com- lished by an independent apipralser
merce and NOAA directives. The term and certified by a responsible official
"costs" applies to both the Federal of the state (pursuant to 15 CPR part
and non-Federal shares. 24), may also be used as match. Tand
(b) Costs claimed as charges to the including submerged lands already in
award must be reasonable, beneficial the state's possession. may be used as
and necessary for the proper and effi- match to establish a national estua-
cient administration of the financial rine research reserve. The value of
assistance award and must be incurred match for these state lands will be Cal-
during the award period. culated by determining the value of
(c) Costs must not be allocable to or the benefits foregone by the state. in
included as a cost of any other Feder- the use of the land, as a result of new
ally-financed program in either the restrictions that may be imposed by
current or a prior award period. Reserve designation. The appraisal of

109

921.82 15 OR Ch. IX (1-1-92 Edition)
the benefits foregone must be made by 7. South Atlantic (Santee River to St.
an Independent apPraiser in accord- John's River).
ance with Federal appraisal standards 8. East Florida (St. John's River to Cape
pursuant to 15 CPR part 24 and 15 Canaveral).
CPR part 11. A state may initially use West Indian
as match land valued at greater than 9. Caribbean (Cape Canaveral to Ft. Jef-
the Federal share of the acquisition ferson and south).
and development award. The value in 10. West Florida (Ft. Jefferson to Cedar
excess of the amount required as Key).
match for the initial award may be
used to match subsequent supplemen- Louisianian
tal acquisition and development 11. Panhandle Coast (Cedar Key to
awards for the national estuarine re- Mobile Bay).
search reserve (see also 921.20). Costs 12. Mississippi Delta (Mobile Bay to Gal-
related to land acquisition, such as ap- veston).
praisals. legal fees and surveys, may 13. Western Gulf (Galveston to Mexican
also be used as match. border).
(3) Operation and Management Californian
Awards. Generally, cash and in-kind 14. Southern California (Mexican Border
contributions (directly benefiting and to Point Concepcion).
specifically identifiable to operations 15. Central California (Point Concepcion
and management), except land. are al- to Cape Mendocino).
lowable. 16. San Francisco Bay.
(4) Research, Monitoring, Education Columbian
and Interpretive Awards. Cash and in-
kind contributions (directly benefiting 17. Middle Pacific (Cape Mendocino to the
and specifically identifiable to the Columbia River).
scope of work), except land. are allow. 18. Washington Coast (Columbia River to
Vancouver Island).
able. 19. Puget Sound.
1921.82 Amendments to financial assist- Great Lakes
ance awards. 20. Western Lakes (Superior, Michigan.
Actions requiring an amendment to Huron).
the financial assistance award, such as 21. Eastern Lakes (Ontario, Erie).
a request for additional Federal funds, Fjord
revisions of the approved project 22. Southern Alaska (Prince of Wales
budget or original scope of work, or Island to Cook Inlet).
extension of the performance period 23. Aleutian Islands (Cook Wet to Bristol
must be submitted to NOAA on Stand- Bay).
ard Form 424 and approved in writing.
Sub-Arctic
Appendix I To PART 921-Biogeographic
CLASSIFICATION SCHEME 24. Northern Alaska (Bristol Bay to De-
marcation Point).
Acadian Insular
1. Northern Gulf of Maine (Eastport to 25. Hawaiian Islands.
the Sheepscot River). 26. Western Pacific Island.
2. Southern Gulf of Maine (Sheepacot 27. Eastern Pacific Island
River to Cam Cod).
Virginian APPendix II to part 921-TYPOLOGY
3. Southern New England (Cape Cod to or NATIONAL ESTuARINE Research
Sandy Book). Reserves
4. Middle Atlantic (Sandy Book to Cape This typology system reflects significant
Hatteras). differences in estuarine characteristics that
5. Chesapeake Bay. are not necessarily related to regional loca-
tion. The purpose of this type of classific-
Carolinian tion in to maximize ecosystem variety in the
6. Northern Carolinas (Cam Hatteras to selection of national estuarine research re-
Santee River). serves. Priority will be given to important

110

National Oc*anic and Atmosph*ric Adm., Comm*rce � 921.82
ecosystem types as yet unrepresented In the 1. Northern Areas: Chit terized by Hud-
reserve system. It should be noted that any sonia, various erinaceous species, and
one site may represent several ecosystem thickets of MyTica, Prunus, and Rosa.
types or physical characteristics. 2. Southeast Areas., Floral dominanis include
CZass I-Ecosystem Types Myrica. Baccharis, and nex.
3. Western Areas: Adenostorna, Arcotyphy.
Group I-Shorelands Los. and Eucalyptus are the dominant
floral species.
A. Maritime Forest- Woodland: This type
of ecosystem consists of single-stemmed spe- C. Coastal Grasslands: This area, which
cies that have developed under the influ- possesses sand dunes and coastal flats. has
ence of salt spray. It can be found on coast- low rainfall (10 to 30 inches per year) and
al uplands or recent features, such as bar- large amounts of humus in the soil. Ecologi-
rier islands and beaches, and may be divided cal succession is slow, resulting in the pres-
into the following biomes: ence of a number of serial stages of commu-
1. Northern Coniferous Forest Biome. This nity development. Dominant vegetation in.
is an area of predominantly evergreens such cludes mid-grasses (2 to 4 feet tall), such as
as the sitica spruce (Picea), grand fir (Abies), Arnmophila, Affropyron, and Calsmovilfa,
and white cedar (ThuJa), with poor develop- tall grasses (5 to 8 feet tal.1). such as Spar-
ment of the shrub and herb layers, but high tina, and trees such as the willow (Sa1iX 3P.),
annual productivity and pronounced season- cherry (Prunus sp.). and cottonwood (Popu-
al periodicity. lus deltoides). This area is divided into four
2. Moist Temperate (Mesothermal) Conif. regions with the following typical strand
erous Forest Biome: Found along the west vegetation:
coast of North America from California to 1. Arctic/Boreal: Elymus;
Alaska, this area is dominated by conifers, 2. Northeast/West: Ammophila;
has a relatively small seasonal range, high 3. Southeast/Gulf. Uniols; and
humidity with rainfall ranging from 30 to 4. Alid-Atlantic/Oulf: Spartina patens.
150 inches, and a well-developed understory
of vegetation with an abundance of mosses D. Coastal Tundra: This ecosystem which
and other moisture-tolerant plants. is found along the Arctic and Boreal coasts
3. Temperate Deciduous Forest Btome: of North America, is characterized by low
This biome is characterized by abundant, temperatures, a short growing season. and
evenly distributed rainfall, moderate tem. some Permafrost, Producing a low, treeless
peratures which exhibit a distinct seasonal mat community made up of moons, lichens.
pattern, well-developed soil biota and herb heath. shrubs, grasses, sedges, rushes, and
and shrub layers, and numerous plants herbaceous and dwarf woody Plants.
which Produce Pulpy fruit& and nuts. A dis- Common species include arctic/alpine
tant subdivision of this biome is the pine plants such as Empetrum niffrum and
edaphic forest of the southeastern coastal Betuls nana, the lichens Cetraria and Cla-
plain, in which only a small portion of the donia, and herbaceous plants such as Poten-
area is occupied by climax vegetation. al- tilla tridentats and Rubus chamaemorua.
though it has large areas covered by eda- Common species on the coastal beach ridges
Phic climax Pines. of the high arctic desert include Drys& In-
4. Broad-leaved Evergreen Subtropical tergrifolis and SaxifrILge opposlUfOU& This
Forest Biomes: The main characteristic of area can be divided into two main subdivi.
this biome Is high moisture with less pro- sions:
nounced differences between winter and 1. Low Tundra: characterized by a thick.
slimmer. Examples are the hammocks of -spongy mat of living and undecayed vegets-
Florida and the live oak forests of the Gulf tion. often with water and dotted with
and South Atlantic Coasts. Floral dominants ponds when not frozen; and
include pines, magnolias, bays, hollies, wild 2. High Tundrw a bare area except for a
tamarind, strangler fig. gumbo limbo. and scanty crowth of lichens and grasses. with
Palma. underlying Ice wedges forming raised poln-
B. Coast Shrublands: This is a transitional onal areas.
area between the coastal grasslands and E. Coastal C1M This ecosystem in an im-
woodlands and is characterized by woody
species with multiple stems a few centime- portant nesting site for man on and shore
ters to several meters above the ground de- birds. It consists of communities of herb&-
veloping under the influence of salt spray cesous. graminoid. or low woody plants
and occasional sand burial. This includes (shrubs, heath, etc.) an the top or along
thickets, scrub. sicrub savanna, heathlands, rocky faces exposed to salt spray. Them Is a
and coastal chaparral. There Is a great vairi- diversity of plant species including moons.
ety of shrubland vegetation exhibiting re- lichens. liverworta. and ldhigher" plant rep-
gional specificity. resentatives.

� 921.82 15 CFR Ch. IX (1-1-92 Edition)
Group 11-Transition Areas low oxygen levels include the terebellid Am-
A. Coastal Marshes:These are wetland phitrite, the boring clam Playdon. the deep
areas dominated by grasses Poaces). sedges sea scallop Placopecten. the quahog Mer-
(Cyperacese), rushes (Juncacese), cattails cenaria, the echiurid worm Urechis, the
(Typhacese). and. other graminoid species mud snail Nassarius. and the sea cucumber
and is subJect to periodic flooding by either Thyone.
mat or freshwater. This ecosystem may be F. Intertidal Algal Beds. These are hard
subdivided Into: (a) Tidal. which is periodi- substrates along the marine edge that are
cally flooded by either salt or brackish dominated by macroscopic algae. usually
water; (b) non-tidal (freshwater); or (c) tidal thalloid, but also filamentous or unicellular
freshwater. These are essential habitats for in growth form. This also includes the rocky
many important estuarine species of fish coast tidepools that fail within the interti-
and invertebrates as well as shorebirds and dal zone. Dominant fauna of these areas are
waterfowl and serves important roles in barnacles. mussels, periwinkles. anemones,
shore stabillization. flood control, water pu- and chitons. Three regions are apparent:
rification, and nutrient transport and stor- 1. Northern Latitude Rocky Shores It is in
age. this region that the community structure In
B. Coastal Swamps: These are wet low- beat developed. The dominant algal species
land areas that support mosses and shrubs include Chondrus at the low tide level,
together with lam trees such an cypress or Fucus and Ascophyllum at the mid-tidal
gum. level, and Laminaria, and other kelplike
C. Coastal Mangroves: This ecosystem ex- algae just beyond the intertidal, although
periences regular flooding on either a daily, they can be exposed at extremely low tides
monthly. or seasonal basis. has low wave or found In very deep tidepools.
action. and in dominated by a variety Of slat- 2. Southern Latitudes The communities in
tolerant trees such as the red mangrove
this region an reduced in comparison to
(Rhisophom mangle), black mangrove (Avi- those of the northern latitudes and possess-
cennia nitida), and the white mangrove (I&- es algae consisting mostly of single-celled or
guncularia racemosa). It in also an impor- filamentous green. blue-green. and red
tant habitat for large populations of fish,
algae, and small thalloid brown algae.
invertebrates. and birds. This type of eco- 3. Tropical and Subtropical Latitudes
system can be found from central Florida to The intertidal In this region is very reduced
extreme south Texas to the islands of the and contains numerous calcareous algae
Western Pacific. such as Porolithon and Lithothamnion, as
D. Intertidal Beaches: This ecosystem has well as green algae with calcareous particles
a distinct biota of microscopic animals. bac- such as Halimeda. and numerous other
teria, and unicellular algea along with mi. green. red. and brown &Ism.
croscopic crustaceans mollusks, and worms Group III Submerged Bottoms
with a detritus-based nutrient cycle. Thin
area also includes the driftline communities A. Subtidal Hardbottom This system is
found at high tide levels on the beach The characterized by a consolidated layer Of
dominant organisms in this ecosystem in- solid rock or large pieces of rock (neither of
clude crustaceians such as the mole crab biotic origin) and In found in association
(Emerita), amphipods (Gammaridge). ghost. with geomorphological features such as sub-
crabs(Ocypode). and bivalve mollusce such marine Canyon$ and flOrds and Is usually
as the coquina (Donax) and surf clam (Spi- covered with assemblages of sponges. sea
suls and Mactm). fans. bivalves, hard corals, tunicates, and
E. Interttdal Mud and Sand Flats: These other attached organisms. A significant fea-
grew are composed of unconsolidated. high ture of estuaries in man parts Of the World
organic content sediments that function as in the oyster reef. a type of subtidal hard-
a short-term storage area for nutrients and bottom- Composed of assemblages of orga-
organic carbons. Macrophytes are nearly nisms (usually bivalves), it Is usually found
absent in this ecosystem although it may be near an estuary's mouth In a zone of moder-
heavily colonized by benthic diatoms, dino- ate WaVe action. salt Content. and turbidity.
flagellates. filamentous blue-green and If light levels are sufficient. a covering of
green aim. and chemosynthetic purple microscopic and attached macroscopic Algae.
sulfur bacteria. This system may support a such an kelp. my also be found.
considerable population of gastropods, bi- B. Subtidal Softbottoms: Major character-
valves, and polychaetes, and may serve as a tatics Of this ecosystem are an Unconsolidate-
feeding am for a variety of fish and wading ed layer of fine particles of silt, sand clay.
birds. In sand. the dominant fauna include and gravel. high hydrogen sulfide levels.
the wedge shell Dominant, the scallop Pecten, and anaerobic conditions often existing
tellin shells Tell" the heart urchin Echin- below the Surface Macrophytes are either
ocardium. the lug worm Arenicola. sand sparse or absent. although a layer of
dollar Dendraster. and the sea pansy Ren- benthic microalgae may be present if light
illa. In mud. faunal dominants adapted to levels are sufficient. The faunal community

112

National Oceanic and Atmospheric Adm., Commerce � 921.82
is dominated by a diverse population of de- 6. Lagoon: Lagoons are confined Coastal
posit feeders including polychaetes, bi- bodies of water with restricted inlets to the
valves, and burrowing crustaceans. sea and without significant freshwater
C. Subtidal Plants., This system is found in inflow. Water circulation is limited, result-
relatively shallow water (less than 8 to 10 Ing In a poorly flushed, relatively stagnant
meters) below mean low tide. It is an area of body of water. Sedimentation is rapid With a
extremely high primary production that great potential for basin shoaling. Shores
provides food and refuge for a diversity of are often gently sloping and marshy.
faunal groups, especially Juvenile and adult 7. Perched coastal Wetlands.- Unique to
fish, and in some regions, manatees and sea Pacific islands, this wetland type. found
turtles. Along the North Atlantic and Pacif- above sea level in volcanic crater remnants,
ic coasts, the seagrass Zosters, marina pre- forms as a result of poor drainage character.
dominates. In the South Atlantic and Gulf istics of the crater rather than from sedi.
coast areas, Thalassia and Diplanthers, pre- mentation. floral assemblages exhibit dis.
dominate. The grasses in both areas support tinct zonation while the faunal Constituents
a number of epiphytic organism. may include freshwater, brackish, and/or
Class H-Physical Characteristics marine species. Example: Aunu'u Island,
American Samoa.
Group I-Geologic 8. Anchialine Systems., These small coastal
A. Basin Type., Coastal water basins occur exposures of brackish water form in lava de-
in a vaxiety of shapes, sizes, depths, and ap- pressions or elevated fossil reefs. have only
pearances. The eight basic types discussed a subsurface connection to the ocean. but
below will cover most of the cases: show tidal fluctuations. Differing from true
1. Exposed Coast Solid rock formations or estuaries in having no surface Continuity
heavy sand deposits characterize exposed with streama or ocean. this system is ch
ocean shore fronts, which are subJect to the terized by a distinct biotic community domi-
full force of ocean storms. The sand beaches nated by benthic algae such as Rhizocion-
are very resilient. although the dunes lying tum, the mineral encrusting Schizothrix.
just behind the beaches are fragile and and the vascular plant Ruppla maritimIL
easily damaged. The dunes serve as a sand Characteristic fauna, which exhibit a high
storage area, making them chief stabilizers degree of endemicity. include the mollusks
of the ocean shorefront. Theodoxua neglectus and T. cariosus, the
2. Sheltered Coast Sand or coral barriers, small red shrimp Metabetaeus lohena and
built up by natural forces, Provide sheltered Halocaridina, rubra, and the fish Eleotris
areas inside a bar or reef where the ecosys- sandwicensis and Kuhlla, sandvicensus. Al-
tem, takes on many characteristics of con- though found throughout the world, the
fined waters-abundant marine grass". high islands of the Pacific am the only
shellfish, and Juvenile fish. Water move- areas within the 'U.S. where this system can
ment to reduced. with the consequent ef- be found.
fects of Pollution being more severe in this B. Batin Structurv Estuary Basins may
area than in exposed coastal areas. result from the drowning of a river valley
3. Bay., Bays are larger confined bodies of (coastal plains estuary). The drowning of a
water that are open to the sea and receive glacial valley (fjord), the occurrence of an
strong tidal flow. When stratification is pro- offshore barrier (bar-bounded estuary),
nounced. the flushing action in augmented some tectonic process (tectonic estuary). or
by river discharge. Bays vary In size and in volcanic activity (Volcanic estuary).
type of shorefront. 1. Oxtetal plains estuary.* Where a
4. Embayment A confined coastal water drowned valley consists main' of a single
body with narrow, restricted Inlets and with channel, the form of the basin Is fairly regu-
asignificant freshwater inflow can be clant- lar. forming a simple coastal plains estuary.
fied as an embayment. These areas have When a channel Is flooded with numerous
more restricted inlets than bays, are usually tributaries. an irregular estuary results.
smaller and shallower. have low tidal action. Many estuaries of the eastern United States
and are subject to sedimentation. are of this type.
5. TUal River.* The lower reach of a coast- 2. lJord: Estuaries that form In elongated.
al river is referred to an a tidal river. The steep headlands that alternate with deep U-
coastal water segment extends from the aft shaped valleys resulting from glacial. Wour-
or estuary into which the river discharges to Ing are called fjords. They generally possen
a point as far upstream as there Is aignifl- rocky floors or very thin venom of sedi-
cant salt content in the water. forming a ment. with deposition generally being re-
salt front. A combination of tidal action and stricted to the head where the m-In river
freshwater outflow makes tidal rivers well. enter& Compared to total fjord volume.
flushed. The tidal river basin may be a river discharge Is small. But many fjorde
simple channel or a complex of tributaries, have restricted tidal ranges at their mouths.
small gAgMiated eMb&ymenta marghfront&. due to sills. or Upre&ehjng sections of the
tidal flats, and a variety of othera. bottom which limit free movement of water,

113

� 921.82 15 CFR Ch. IX (1-1-92 Edition)
often making river flow large with respect shift position, depending on tidal flow. the
to the tidal prism. The deepest portions are depth of the sea and sound waters, the fre.
in the upstream reaches, where maximum Quency of storms, and the amount of Uttoral
depths can range from 800 m to 1200 m. transport.
while sill depths usually range from 40 m to D. Bottom Composition: The bottom coin.
150 M. position of estuaries attests to the vigorous,
3. Bar-bounded Estuary: These result rapid, and complex sedimentation processes
from the development of an offshore bar- characteristic of most coastal regions with
rier. such as a beach strand, a line of barrier low relief. Sediments are derived through
islands. reef formations, a line of moraine the hydrologic processes of erosion, trans.
debris. or the subsiding remnants of a del- port, and deposition carried on by the sea
taic lobe. The basin is often partially ex- and the stream.
posed at low tide and is enclosed by a chain 1. Sand: Near estuary mouths. where the
of offshore ban or barrier islands, broken at predominating forces of the sea build spits
intervab by inlets. These bars may be either or other depositional features, the shores
deposited offshore or may be coastal dunes and substrates of the estuary are sandy.
that have become isolated by recent sea The bottom sediments in this area are usu.
level rim. ally coarse, with a graduation toward finer
4. Tectonic Estuary., These are coastal in- particles in the head of the estuary. In the
dentures that have formed through tectonic head region and other zones of reduced
processes such as slippage along a fault line flow, fine silty sands are deposited. Sand
(San Plnmcisco Bay), folding, or movement deposition occurs only in wider or deeper re-
of the earth's bedrock, often with a lame gions where velocity is reduced.
inflow of freshwater. 2. Mud: At the base level of a stream near
5- VOICantc Estuary-- These coastal bodies Its mouth, the bottom is typically composed
of open water, a result of volcanic processes. of loose muds, silt, and organic detritus as a
are depressions or craters that have direct result of erosion and transport from the
and/or subsurface connections with the upper stream reaches and organic decompo-
ocean and may or may not have surface con- aition. just inside the estuary entrance. the
tinuitY with stream& These formations are bottom contains considerable quantities of
unique to Island areas of volcanic origin. sand and mud. which support a rich fauna.
C. Inlet TWe: Inlets in various forms are Mud flats, commonly built up in estuarine
an integral part of the estuarine environ- banins. are composed of loose. coarse, and
ment, an they regulate, to a certain extent. fine mud and sand, often dividing the origi-
the velocity and magnitude of tidal ex- nalchannel.
change, the degree of mixing, and volume of 3. Rock Rocks usually occur in are"
discharge to the sea. There are four maJor where the stream runs rapidly over a steep
types of inlets:
1. Unrestrtctect An estuary with a wide gradient with its coarse materials being de-
unrestricted inlet typically has slow cur- rived from the higher elevations where the
rents, no significant turbulence, and receive stream slope is greater. The larger frag-
the full effect of ocean waves and local dis- ments are usually found In shallow areas
turbances which serve to modify the shore- near the stream mouth.
line. These estuaries are partially mixed. as 4. Oyster sheW Throughout a maJor Por-
the open mouth permits the Incursion of tion of the world. the oyster reef In one of
marine waters to considerable distances Up- the most significant features of estuaries
stream depending on the tidal amplitude usu&Uy being found near the mouth of tht
and stream gradient. estuary in a zone of moderate wave action
2. Restricted: Restrictions of estuaries can salt content. and turbidity. It in often f
exist in many forms: bars, barrier Man I major factor in modifying estuarine Curren
spits, stus. and more. Restricted inlets result systems and sedimentation. and may occu;
in decreased circulation. more Pronounced W an elongated Island or peninsula orientec
longitudinal and vertical salinity gradients, Cross the main current@ or may develot
and more rapid sedimentation. However, if parallel to the direction of the current.
the estuary mouth is restricted by deposi- Group II-Hydrographic
tional features or land closures, the incom-
ing tide may be held back until It suddenly A. Circulatim Circulation patterns W
breaks forth into the basin as & tidal wave. the result of the combined InfluenCft 0
or bore. Such currents exert Profound ef- freshwater flow- tidal action. wind and oce
fects on the natur* of the substrate. turbidl- anic forces, and serve man functions: nutrl
ty. and biots of the estuary. ent transport. plankton dispersal. ecosy"
3. Permanent. Permanent wets are usual- flushing. salinity control. water mixin . an
iy opposite the mouths of major rivers and More.
permit river water to now into the ses. Sedi- 1. Strat This In typical of O"Ark
mentation and deposition are minimal . with & strong heshwaw influx and Is am
4. Temporary (Intermittent): Temporary monly found In bays formed hot
wets am formed by storms and frequently "drowned" river valley& fjorda, and otht

114

National Oceanic and Atmospheric Adm., Commerce � 921.82

deep basins. There Is a net movement of 2. Subsurface water.* This refers to the
freshwater outward at the top layer and precipitation that has been absorbed by the
saltwater at the bottom layer, resulting in a soil and stored below the surface. The distri,
net outward transport of surface organisms bution of Subsurface water depends on local
and net Inward transport of bottom orga- climate, topography, and the porosity and
nisms. permeability of the underlying soils and
2. Non-stratVied: Estuaries of this type rocks. There are two main subtypes of sur-
are found where water movement is sluff- face water,
gUh and flushing rate is low, although there a. Vadose water., This is water In the soil
may be sufficient circulation to provide the above the water table. Its volume with re-
basis for a high carrying capacity. This is spect to the soil, is subject to considerable
common to shallow embayments and bays fluctuation.
lacking a good supply of freshwater from b. Groundwater* This is water contained
land drainage. in the rocks below the water table, Is usual.
3. Lagoonal: An estuary of this type Is ly of more uniform volume than vadose
characterized by low rates of water move- water, and generally follows the topograph.
ment resulting from a lack of significant ic relief of the land. being high below hills
freshwater Influx and a lack of strong tidal and sloping into valleys.
exchange because of the typically narrow
inlet connecting the lagoon to the sea. Cir- Group III-Chemical
culation, whose major driving force is wind,
is the major lb3ilting factor in biological pro- A. Salinity., This reflects a complex mix-
ductivity within lagoons. ture of salts, the most abundant being
B. Tides. This is the most Important eco- sodium chloride, and Is a very critical factor
logical factor in an estuary, as it affects in the distribution and maintenance of
water exchange and Its vertical range deter- many estuarine organisms. Based on salini-
mines the extent of tidal flats which may be ty, there are two basic estuarine types and
exposed and submerged with each tidal eight different salinity zones (expressed in
cycle. Tldal action against the volume of parts per thousand-ppt).
river water discharged into an estuary re- 1. Positive estuary., This is an estuary in
sults in a complex system whose properties which the freshwater influx is sufficient to
vary according to estuary structure as well maintain mixing. resulting in a pattern of
as the magnitude of river now and tidal increasing salinity toward the estuary
range. Tides are usually described in terms mouth. It is characterized by low oxygen
of their cycle and their relative heights. In concentration in the deeper waters and con-
the United States, tide height is reckoned siderable organic content in bottom sedi-
on the basis of average low tide. which is re- ments.
ferred to as datum. The tides. although 2. Negative estuary.- This is found In par-
complex. falls into three main categories: ticularly arid regions, where estuary evapo-
1. Diurnal: This refers to a daily change in ration may exceed freshwater Inflow. result-
water level that can be observed along the ing in increased salfn ty in the upper part of
shoreline. There Is one high tide and one the basin. especially if the estuary mouth is
low tide per day. restricted so that tidal flow Is inhibited.
2. Semidiurnal: This refers to a twice daily These are typically very salty (hYperha-
rise and fall in water that can be observed line), moderately oxygenated at depth. and
along the shoreline. possess bottom sediments that are poor in
3. Wind/Storm Tidew This refers to fluc- organic content.
tuations In water elevation to wind and 3. Salinity zones (exprmsed in ppt).'
storm events, where influence of lunar tides IL Hyperhaline-greater than 40 ppt.
is less. b. Euhallne-40 pvt to 30 ppt.
C. Freshwater., According to nearly all the c. Mixohallne: 30 ppt to 0.5 ppt.
definitions advanced, It is inherent that all (1) Mixoeuhaline-greater than 30 ppt but
estuaries need freshwater, which !s drained Jew than the adjacent eubalfi2e sea.
from the land and measurably dilutes sea- (2) Polyhalfne-30 ppt to 18 PPt.
water to create a brackish condition. Fresh- (3) Mesohaline--18 ppt to 5 ppL
water enters an estuary as runoff from the (4) Ollgohadine-5 ppt to 0.5 pot.
land either from a surface and/or subsur-
face source. d.'F-Imnetic: Len than 0.5 ppt.
1. Surface vate7- This is water flowing B. pH Regime: This Is indicative of the
over the ground In the form of streams. mineral richness of estuarine waters and
Local variation In runoff is dependent upon fail into three main cateffories:
the nature of the soil (porosity and solubill- 1. Acid: Waters with a pH. of lea than 5.5.
ty), degree of surface slope. vegetational 2. Circumneutral: A condition where the
type and development, local climatic condi- pH ranges from 5.5 to 7.4.
tions, and volume and intensity of precipita- 3. Alkaline: Waters with a pH greater than
tion. 7.4.

115

20
Part 921
National Estuarine Research
Reserve System Program
Regulations
(Proposed Rules dated
July 17, 1992)

31926 Federal Register Vol. 57, No. 138 / Friday, July 17, 1992 Proposed Rules

DEPARTMENT OF COMMERCE comments received on the interim final (E) Simplification of Operational
rules are here proposed. A summary of Support
National Oceanic and Atmospheric the significant proposed changes to the
Administration interim-final regulations is presented The proposed regulations would
bejow. reduce state and Federal paperwork
15 CFR Part 921 burdens by combining support for
When implemented, these regulations routine monitoring and education
f Docket No. 9 10927-12271 will establish the Program's mission and activities with the annual non-
goals and revise procedures for competitive operations and management
National Estuarine Research Reserve selecting. designating and operating award. Competitive awards for special
System Program Regulations national estuarine research reserves. monitoring. research and education
AGENCY- Office of Ocean and Coastal M. Changing the Name of the Program projects would continue as a separate
Resource Management (OCRM). The name of the Program was activity.
National Ocean Service (NOS). National changed from the National Estuarine (F) Clarification of Site Sel 'ection
Oceanic and Atmospheric Reserve Research System to the The proposed regulations would
Administration (NOAA), Department of National Estuarine Research Reserve
Commerce. System by section 6M4 of Public Law clarify the process to be followed by a
coastal state which proposes to
ACTIOW Proposed rule. 101-508. The proposed revisions to the reactivate an inactive site previously
regulations would revise the Program pproved by NOAA for development as
SUMMAW: The proposed rule would name accordingly when it appears in the
reVi3e the existing interim-final rules for regulations. :n estuarine sanctuary or research
selecting. designating. operating. and reserve.
funding national estuarine research IV. Revision of the Procedures for (G) Resource Manipulation
reserves to bring them into accord with Selecting. Designating. and Operating
requirements of the Coastal Zone Act National Estuarine Research Reserves The regulations recognize the
f 1990 possibility that in reserve buffer areas
Reauthorization Amendments o (A) Revision of Match Requirements long-term uses may have existed (eg.
(title V1, subtitle C. Pub. L loi-508) and
to adopt some of the revisions suggested The Coastal Zone Act Reauthorization hunting and fishing) prior to designation
by comments received on the interim- Amendments of IM (Amendments) which should be allowed to continue.
final rule. Comments am invited. effectively reduced from 50% to 30% (H) Performance Evaluation
OAT= Comments will be considered if state, and. where applicable, private
submitted on or before August 31. 199L party match requirements for the 'Me Amendments emphasize the
following financial assistance award importance of public participation in the
AVORESSM Send comments to: Mr. types: operations, research. monito =*& performance evaluation process. 17hey
William J. Harrigan. Acting Chief; facility construction and education/ also establish interim sanctions.
Sanctuaries and Reserves Division: interpretation. The Amendments also including partial or full withdrawal of
Office of Ocean and Coastal Resource provide for IW percent Federal support financial assistance. and establish a
0 Management. NOS/NOAA. Ian for educational-interpretive activities process for instituting such sanctions.
Connecticut Avenue NW.: suite 714; that benefit the entire System Match The proposed revisions would make the
Washington.DC20 .(202)5054122. requirements for site selection and land regulations conform.
RM FUIrTHM 101FORMATION COWACM acquisition remain at 50%. 7be proposed V. Othar Actions Associated Wltb the
June Cradick at (202) 806-401& revisions would make the regulations Rulemaking
SUPPLEMENrTAW DIFOMMTHM conform. - JAI Classification Under Executive
1. Authority . (B) Diftnitions Order I=. NOAA has concluded that
This notice of proposed rulemaking is The proposed revisions would add a then regulations are not major bemuse
issued under the authority of section definition for the term -state agency-. - dwY will not result ht
315(a) of the Coastal Zone Management (I) An annual effect on the economy
Act of 197Z as amended. IS Uar 48, (C) Increase in Acquisition Support of SIW million or more;
(the Act). The National Estuarine 7he Amendments increase the (2) A major increase In costs or prices
Reserve Research System has been maximum amount of Federal financial for consumers: individual industries:
operating under interim-final regulations assistance that can be awarded for the Federal. state. or local goverment
published July 23. 29W (55 FR 29940@ acquisition of land and waters. or agencies; or SeW phic regions; or
IL Background interests therem. for any one National (3) Significant adverse effects on
Estuarine Research Reserve from competitim employment. investment.
On July 23.1990 (55 Fit 20940) NOAA S4=0W to $5 OW ow productivity. innovation or the ability of
published interim final regulations for United States based enteMrises to
continued implementation of the (D) Change in Development Suppol compete with foreign based enterprises
National Estuarine Reserve Research 7be proposed regulations would in domestic or export markets.
System Program pursuant to sectioik 325 -mvise the regulations to allow costs- These rules amend existing
of the Act. is US-C. 14M. Written associated with the development of procedures for klentifying, desigmating.
comments were accepted until research. monitoring and education and --gin national estuarine
September 21. 1990. On November L programs to be -included as research reserves in accordance with
1990 Public Law Un-M was passed supplemental development costs and to - the Coastal Zone Act Reauthorization
reauthorizing the Program. Several elirn*nmte the ceiling of 31.5W,wo on Amendments of 19ft They will not
changes to the regulations were required financial assistance which can be result in any direct economic or
sea result of the IM reauthorization. In provided for development assistance environmental effects nor win they lead
addition. for the masons stated below. directly associated with facility to any major indirect economic or
some of the revisions suggested in the construction. environmental impacts.

Fe~de~qM R~~g~qWer t Vol. 57~ No. 13~0 / Friday. ~J~qWY 17~ ~qL~q~9~2 t Pr~~P~~e~qd Rules ~31927

~B~ ~e~g~~1~~q"~y ~Fle~m~l~~f~l~ity Act p~~f~i~qdes, the NOAA worked with 921~1~ Post site selection.
Analysis. A Regulatory Flexibility affected states to develop their own ~921.1~63 management plan and environmental
Analysis is n~ot required for this policies with respect to the use of ...pact statement devel~o~rpment.
rulem~ki~ng. The regulations set forth National Estuarine Research Reserves. Subpart C~q-A~c~qqu~qi~s~qit~qk~i~i~i~, ~qD~e~v~e~qf~o~qp~qm~e~n a~f~t~qd
procedures for identifying and To the max~qimun~t extent possible Preparation~ of on Final ~4qM~on~a~qG~a~ir~qmt Plan
designating national estuarine research consistent with the NOAA~'s ~92~l~ao Ge~ser~t~il.
reserves, and managing sites once responsibility to ensure that the ~9~2~1~qM ~qI~n~i~t~i~0qW acquisition and dev~e~qlop~u~se~n~A
designated. These rules do not directly objectives of the National Estuarine awards.
affect "small government jurisdictions" Research Reserve System provisions of Subpart D-~qR~e~o~qw~qn ~qD~e~@~4qW~qw~4q*~qm mid
as defined by Public Law 96~-354, the the Coastal Zone Ma~nagement Act are Subsequent Operation
Regulatory Flexibility Act, and the rules achieved. the rules refrain from
will have no effect on small businesses. establishing uniform national standards. 9~q=~20 Designation of National Estuarine
Accordingly, the General Counsel of the Extensive consultations with state Research Reserves.
~9~2~1.31 Supp~qk~-f~qm~qm~t~4qM acquisition and
Department of Commerce has certified officials and organizations have been development awards.
to the Chief Counsel of the Small held regarding the financial assistance ~9~q2~2~qM Operation and Management~:
Business Administration that these qualifications imposed. Details Implementation of the m~a~na~qge~n~tent plan.
revisions, if adopted as proposed, wi~qH regarding awards of financial assistance ~9~X~L~qM Boundary changes. amendments to
not have a significant economic impact have been discussed above under the the management plan. and a~qddi~4i~o~c of
on a substantial number of small heading "Revision of the Procedures for mu~qltip~ql~e-~s~i~l~e ~c~or~i~qv~an ~ts.
entities. Selecting, Designating and Operating ~qS1111~1~qP11111~1 ~qF~-~qA~qkl~qg~e~ql~0qn ~8qO~v~e~s~s~qi~qg~ql~i~t~. P~e~r~qf~er~i~n~a~nc~e
~J~C~J Paperwork Reduction Act of ~qI~4qm. National Estuarine Research Reserves" Eva~ql~o~Wi~qm ~qmd W~4qM~8qA~ww~a~ql~a~qt ~qD~e~g~qag~n~a~qd~n~o
This rule contains collection of and are not repeated here. ~qg~qn~-40 O~n~qg~o~qi~n~qgo~v~e~i~si~g~q! tend evaluations of
information requirements subject to ~qJ~qL~q9 Na~8qf~8qtna~ql E~nv~qi~r~or~tme~nt~e~ql Policy de~s~qi~qg~i~qm~le~qd National E~st~u~a~t~ine Re~seerc~qh
Public Low ~qo~qs-s~4qn. the Paperwork Act. NOAA has concluded that Reserves.
Reduction Act ~q[PRA)~, which have publication of ~qd~ie~se ~qk~qne~r~qi~qm-final ru~qle~s ~qM42 Withdrawal of des~qi~4qp~qw~t~qi~on.
already been approved by the Office of does not constitute a major F~ede~r~e4 Subpart F~q-Sp~ec~qial R~e~n~e~qw~ch Projects
Management and Budget (approval action ~s~qi~qg~ni~qf~qkan~tly affecting the quality
number 0~q648~-~4qM2~qi~q). Public reporting of the human environment. T~qNer~e~qf~ore, 221J~qW G~e~oe~r~al.
burden for the collection& of information an ~e~nv~qi~ror~qmental impact statement ~q1~9 ~9~21~qM Estuarine research ~qgu~id~eri~nes.
cont~tned~qIn this rule is estimated to not required. 9~XLM Promotion and coordination of
average Z~qo~4qn hours per response for List of Subjects in is CFR Part on estuarine research.
management plans and related ~qS~4q~ ~8q0~-~-~qs~qp~e~4q" ~0qU~01~1~1~0~0~1~,~11~8q% ~qPr~o~l~ql~a~qm
documentation. 1~4q25 hours for Admi~a~qhr~q1rat~qiv~e practice and ~Z~qM~qW General
performance reports, and ~q15 hours for p~roce~qd~qw~i~t~- ~4qC~oas~qh~qd zone. En~vi 2
annual reports and work plans. These ~qi s~qUt~e~n~t~e~nt~s. ~6qG~r~q=~0qf~0qt programs- Subpart ~4q"-S~qp c~qh Interpretation and
estimates include the time for reviewing N~irt~ura~qk resources. Reporting and E~qd~u~qm~4qf~4qt~n A ~o~qj~ec
instructions, searching existing data rec~ard~qkee~qp~qi~ng ~req~uir~e~qme~a~8qM Research. ~q9~0q=70 G~e~a~r~z~aL
sources. gathering and maintaining the ~q(~q1~6q%~qd~e a D~o~i~n~e~st~qic Assistance Catalog ~- Su~qbp~qw~qt FI~i~i~en~cl~a~qt ~qA~s~sis~a~qm~o~s,
data needed. and completing and Number ~11A~2~qM National r~is~t~a~s~tri~ne Re~ser~i ~qP ~o~qw~ni~s~s~i~s
reviewing the collection of ~qinform~at~qiom Reserve ~qR~e~s~s~erc~qh ~qS~qy~s~e~e~qm ~qF~e~qd~qw~a~qi ~8qD~qw~i~e~s~t~qic ~q92~2~qM App~qr~i~e~s~t~qi~qm~qW~i~qf~qa~in~e~!
Send comments regarding this burden A~ssi~st~s~i~e~c~a ~qC~qA~N~s~qi~n~g Number ~q=4~q= ~qC~q@~&~@~qh ~9~qM~A~I Al~l~ow~m~0q4~0qWc~os~i~s.
estimate or any other aspect of these Zone M~a~n~e~qg~e~s~t~e~r~A E~s~t~u~e~s~in~e ~qS~a~m~e~s~s~e~n~e~a~ql ~9~q=~8~q2 ~q0 ~a~s~i~si~s~u~L~a~o~s,
collections of information. including Da~qu~q* My ~1. ~I~qM~qL a~u~qn~rd~a.
suggestions for reducing this burden, to ~4qW. ~qStan~8qk~qy ~qV~qA~qI~M~qM ~qR~qp~qp ~u ~l~f~p fib ~qP~qut~q1~q1~q1~1~-~4q4~q9~qfo~8qpo~8qp~o~qp~qh~qi~c
Richard Roberts. room ~q7~8qN~. ~4qD~ep~g~r~8qf~8qt~qmt A~s~s~4q*~0~qm~rA~qd~qh~q0~W~0q&~&~u~d~qw~qf~v~P~-~q0~t~v~qw~qS~&~# view ~qC~qb~w~@~qg~qk~x~4qd~qm ~q5~qd~qw~q@
of Commerce. ~8qW~ql~i~qo Executive B~q?vd, and ~8qO~qws~t~a~ql Zone ~qA~qd~qm~a~qg~i~t~qm~e~n~t App~q=~2q&~K It to Pad ~q0~3-~qT~yp~o~2qk~0qa of
Rockville. Maryland ~q2~q0~2qM and to the For the reasons ~s~e~qt ~0qk~rth ~qm the National~. ~q51~1~6~h~i~al~qi~a~l Research ~qR~o~qo~r~v~e~s
Office of Information and Regulatory p~r~o~a~qmb~qb~e~. ~q0 is proposed that ~q1~q5 ~4q0~q1~q1~q1
Affairs. Office of M~an~a~qg~e~s~i~ve~s t and pan ~q1~8q0~q2 be ~qm~w~qi~qw~qd as ~qfo~ql~ql~o~qw~qw ~qA~u~qd~i~e~qd~b~q3~z ~qS~s~c~qd~qm 3~3~4q4 Public ~qL~qm~v 224~M~0qM
Budget. Washington. DC 2~q0~2qM. ATT~0qM. as ~am~e~n~qde~f~qL~qu ~4qW~L~I~0qM ~qC~I~S~qU.~8qS~8qr. ~qu~qwl~@
Desk Officer for NOAA. PART ~q92~q*--~6qMT~qM)l~q%~4qU ESTUA~qR~6qWE
~ID~] Executive Order 12~q0~q1~8qL These RESEARCH RESERVE SYSTEM
proposed rules do not contain policies 1~q621.~1
which have sufficient Federalism S~t~ill~ip~er~qt A~q-4~q1~s~n~8q" p ~o~o~ql~8qd~qm~q-
implications to warrant preparation of a ~qt.~, (a) The mission of the Na~qti~o~na~qt
Federalism Assessment pursuant to ~qe~0qn.~i Maslow soak a~ad - ~6q0 ~v ~1~@ ~a~qm Estuarine Research Reserve Program is
Executive Order IMZ However. the ~0q9~0q2~q1~q.2 D~qe~2qf~2qi~qn~0qg~0qi~qa~qn~6q& the establishment and mana~16qpme~qAL
provisions of the r~qu~0qle~qi~qr se~4qo~40qf~40qt forth what ~00qUL.~q, Na~qb~0qm~12qg E~qi~qi~qj~qa~qn~qs~qi~qa R~qp~0qm~q&~qr~12q& ~8qR~qg~q&~0qW~0qf~0qt through ~0qF~qedera~4ql-~04qM~qat~qe cooperation. of a
a state must do or agree to do in a. d~qe~q. to Sys~qt~qa~6qn biogeographic ~qc~8ql~qa~qs~qa~0qi~8qdi~qc~qst~qi~0qm national system ~4qJNatlo~qnal Estuarine
qualify for the ~qv~qa. ~qio types~qu~8qfF~qe~4qd~qer~qs~4qt whom and ~qa~qst~qu~qar~qin~qe. ~qty~36q*o~4qg~0qi~qe~q& - Res~qea~4q=h ~20qR~qe~qa~8qw~qv~qe S~6qy~00qm~4qm or System) of
financial assistance av~qa~2qi~0ql~qi~qrb~4ql~qe u~qnd~qe, the Va.# It~qe~2ql~qat~0qi~qon~qs~8qh~4qip to other provision of the estuarine ~qresaa~2q=~4q1~qi reserves ~4q(Na~2qg~qa~qn~qal
rules have been reviewed to e~qn~qs~2qm that ~8qC~8q@~qa~qe~qe~qt~qa~8qf Z~6qwe me - ~-~q.~qe~qi e~8qm Act ~qandl the Estuarine R~qe~qs~qs~qa~qt~qic~8ql~0qi R~qi~qt~qs~qerv~qe~qs or
the ~n~2~ql~e~s grant the states the maximum marine ~4qr~qn~2qf~2qtcr~qa~0qm R~qe~qse~qerc~2qk ~6qm~12qW Reserve~qa~4ql representative of the various
administrative di~qsc~qreti~qc~qin possible in the Sanctuaries Act. regions and estuarine types in the
admi~n~6qWr~qat~6qio~qn of ~4qt~4qhe National Estuarine Subpa~qi~qs ~08q9~2q-~2q3~8q1~00qb ~2qS~qel~2qac~qt~8qio~qn~q. Post She ~6qS~qsl~qac~2qd~qo~qs United State& Estuarine research
Research Reserve Sy~qste~qn~4qi p~qo~4qlide~qr ~0qM~08qd~04qM~qM~qD~08q"~6qW~qA~2qM~12qM~6qM~08qD~6qW~qG~2qU~28q@ reserves am ~qe~00qd~qab~4ql~6qls~4qhe~8qd to provide
embodied ~2qi~qn the q~qual~2qf~24q5~qc~qati~qo~qn ~0qO~00qn~q-~q20 G~qe~qn~qe~qs~qel. opportunities for long-term research.
re~qqu~qi~t~em~qe~qn~4qi~qa. In f~4qb~qirmulat~52qf~52qt than ~04qm~0qa~0qi Site selection and ~6qI~0qn~qs~2qib~4qi~2ql~4qf~4qty. education. and interpretation. 4

31928 Federal Reg:ister / Vol. 57, No. 138 / Friday. July 17, 1992 1 Proposed Rules

(b) The goals of the Program are to: representative character and integrity of acquisition of land and waters, or
(1) Ensure a stable environment for a reserve, are prohibited. Habitat interests therein. NOAA may provide
research through lon,,Ierm protection of manipulation for resource management financial assistance to coastal states not
National Estuarine Research Reserve purposes is prohibited except as to exceed 70 percent of all actual costs
resources: specifically approved by NOAA as: for the management and operation of.
(2) Address coastal management (1) A restoration activity consistent the development and construction of
issues identified as significant through with paragraph (e) of this section. or facilities, and the conduct of educational
coordinated estuarine research within (2) as an activity necessary for the . or interpretive activities concerning
the System; protection of public health or the reserves (see Subpart I). NOAA may
(3) Enhance public awareness and preservation of other sensitive resources provide financial assistance to any
understanding of estuarine areas and which have been listed or are eligible coastal state or public or private person.
provide suitable opportunities for public for protection under relevant Federal or not to exceed 70 percent of all actual
education and interpretation; state authority (e.g.. threatened/ costs. to support research and
(4) Promote Federal. state. public and endangered species or significant monitoring within a reserve.
private use of one or more reserves historical or cultural resources) or if the Predesignation. acquisition and
within the System when ouch entities manipulative activity is a long-term (ie., development. operation and
conduct estuarine research, and has occurred prior to designation) pre- management. special research and
(5) Conduct and coordinate estuarine existing use (e.g., use of a buffer area for monitoring. and special education and
research within the System. gathering hunting and/or fishing club activities). interpretation awards are available
and making available information If habitat manipulation is determined to under the National Estuarine Research
necessary for improved understanding be necessary for the protection of public Reserve Program. Predesignation
and management of estuarine areas. health, the preservation of sensitive awards are for site selection/feasibility,
W National Estuarine Research resourc
Reserves shall be open to the public to as. or if the manipulation is a draft management plan preparation and
the extent permitted under state and long-term preexisting use in a buffer conduct of basic characterization
Federal law. Multiple uses are allowed area, then these activities shall be studies. Acquisition and development
to the degree compatible with each specified in the Reserve Management awards are intended primarily for
reserve's overall purpose as provided in Plan in accordance with I 921.13(a)(10) acquisition of interests in land. facility
the management plan (see 1921.13) and and shall be limited to the reasonable construction and to develop and/or
consistent with paragraphs (a) and (b). alternative which has the least adverse upgrade research. monitoring and
of this'section. Use levels are set by the and shoftest term impact on the education programs. Operation and
state where the reserve is located and representative and ecological integrity management awards provide funds to
analyzed in the management plan. The of the reserve. assist in implementing. operating and
research reserve management plan shall (e) Under the Act an area may be managing the administrative. and basic
describe the uses and establish designated as an estuarine reserve only research. monitoring and education
priorities among these uses. The plan if the area is a representative estuarine programs. outlined in the research
shall identify uses requiring a state ecosystem that is suitable for Ion*-term reserve management plan. Special
permit. as well as areas where uses are research. Many estuarine areas have research and monitoring awards provide
encouraged or prohibited. Consistent undergone some ecological change as a funds to conduct estuarine research and
with resource protection and research result of human activities (eg., trionitoring projects within the System.
objectives. public access and use may hydrological changes, intentional/ Special educational and interpretive
'be restricted to certain areas or unintentional species composition awards provide funds to conduct
components within a research reserve. changes-mintroduced and exotic estuarine educational-and interpretive
(d) Habitat manipulation for research species). In those areas proposed or projects within the System.
purposes is allowed consistent with the designated as national estuarine (g) Und already in protected status
following limitations. Manipulative research reserves. such changes may managed by other Federal agencie&
research activities must be specified in have diminished the representative state or local governments, or private
the management plan. be consistent character and integrity of the site. organizations may be included within
with the mission and goals of the Although restoration of degraded areas National Estuarine Research Reserves
program (see paragraphs (a) and (b) of is not a-primary purpose of the System only if the managing entity commits to
this section) and the goals and such activities may be permitted to long-term management consistent with
objectives set forth in the reserve's improve the representative character paragraphs (d) and (e) of this-section in
management plan. and be limited in and integOty of a ressive. Restoration the reserve management plan. Federal
nature and extent to the min*rnurn activities must be carefully planned and land& already in protected statut may
manipulative activity necessary to approved by NOAA through the Reserve not comprise the key land and water
:
ccomplish the stated research Management Plan. Historical research areas of a research reserve (see.
bjective. Manipulative research may be necessary to determine the I =.21(Q(3)@
activities with a significant or long-term -natural" representative state of an (hJTo assist'"atates intarrying out
impact on reserve resources require the estuarine area (i.&. an estuarine the program's goals in an effective
prior approval of the state and the ecosystem minimally affected by human manner, NOAA will coordinate a
National Oceanic and Atmospheric activity or influence). Frequently. . ' research and education information
Administration (NOAA). Manipulative restoration of a degraded estuarine area exchange throughout the National
research activities which can will provide an excellent opportunity for Estuarine Research Reserve System. As
reasonably be expected to have a management oriented research. part of this role. NOAA will ensure that
significant adverse impact on the (f) NOAA may provide financial information and ideas from one reserve
estuarine resources and habitat of a assistance to coastal states, not to am made available to others in the
reserve, such hat the activities exceed. per Reserve. So percent of all system. T1w network will enable
themselves or their resulting short and actual costs or $5 nidlon whichever reserves to exch-nae information and
long-term consequences compromise the amount is lose. to assist in the research data with each other. with

Federal Register / Vol. 57. No. 138 / Friday, July 17. 1992 / Proposed Rules 31929

universities engaged in estuarine ecological relationships within the area that designation of the reserve is
research. and with Federal. state. and (see 16 U.S.C. 1453(8)) and meets the consistent with the state's approved
local agencies. NOAA's objective is a requirements of 16 U.S.C. 1461(b). This coastal management program. The state
system-wide program of research and includes those areas designated as must concur with, or object to. the
monitoring capable of addressing the national estuarine sanctuaries or certification. It is recommended that the
management issues that affect long-term reserves under section 315 of the Act lead state agency for reserve
productivity of our Nation's estuaries. prior to enactment of the Coastal Zone designation consult. at the earliest
� 921.2 Definitions. Act Reauthorization Amendments of practicable time. with the appropriate
19M and each area subsequently state officials concerning the
(a) Act means the Coastal Zone designated as a national estuarine donsistericy of a proposed national
Management Act of 1972. as amended, research reserve. estuarine research reserve.
16 U.S.C. 1451 el se4.
(b) Under Secretary means the Under � 921.3 National Estuarine Research (c) The National Estuarine Research
Secretary of Commerce for Oceans and Reserve System Biogeographic Reserve Program will be administered in
Atmosphere, or designee. Classification Scheme and Esbmdne close coordination with the National
(c) Coastal state means a state of the Typologies. Marine Sanctuary Program (Title III of
United States, in or bordering on, the (a) National Estuarine Research the Marine Protection. Research and
Atlantic. Pacific. or Arctic Ocean. the Reserves are chosen to reflect regional Sanctuaries Act, as amended, 16 U.S.C.
Gulf of Mexico, Long Island Sound, or differences and to include a variety of 1431-1445). also administered by NOAA.
one or more of the Great Lakes. For the ecosystem types. A biogeographic -Title Ul authorizes the Secretary of
purposes of these regulations the term classification scheme based on regional Commerce to designate discrete areas of
also includes Puerto Rico, the Virgin variations in the nation's coastal zone the marine environment as National
Islands, Guam. the Commonwealth of has been developed. The biogeographic Marine Sanctuaries to protect or restore
the Northern Marianas Islands, the classification scheme is used to ensure such areas for their conservation.
Trust Territories of the Pacific Islands, that the National Estuarine Research recreational. ecological. historical.
and American Samoa (see 16 U.S.C. Reserve System includes at least one research. educational or esthetic values.
1453(4)). site from each region. The estuarine National marine sanctuaries and
(d) State agency means an typology system is utilized to ensure estuarine research reserves may not
instrumentality of a coastal state to that sites in the System reflect the wide overlap, but may be adjacent.
whom the coastal state has delegated range of estuarine types within the
the authority and responsibility for the United States. Subpart B-Site Selection, Post Site
creation and/or management/operation (b) The biogeographic classification Solection and Management Plan
of a national estuarine research reserve. scheme, presented in Appendix I of this Dev*k)pm*nt
Factorsindicative of this authority may part. contains 29 regions. Figure 1 1921.10 GeneraL
include the power to receive and expend graphically depicts the biogeographic
funds on behalf of the reserve, acquire regions of the United States. (a) A coastal state may apply for
and sell or convey real and personal (c) The typology system is presented Federal financial assistance for the
property interests. adopt rules for the in appendix 11 of this part. purpose of site selection. preparation of
protection of the reserve, enforce rules I 921A Rollabiwisto to ot1w prov documents specified in 1922.13 (draft
applicable to the reserve. or develop and Vie Cos" Zone M0mM19w,*ffl Act, WW to management plan (DMP) and
implement research and education the No A is P otseft Ressairch and environmental impact statement (EIS)).
programs for the reserve. For the Sanchorin Act. and the conduct of limited basic
purposes of these regulations. the terms (a) 'Me National Estuarine Research characterization studies. The total
..coastal state" and "State agency" shall Reserve System is intended to provide Federal share of this assistance may not
be synonymous. information to state agencies and other exceed $200.000. Federal financial -
(e) Estuary means that part of a river entities involved in addressing coastal saistance for preacquisition activities
or stream or other body of water having management issues. Any coastal state. :nder if 921.11 and 9n.12 is subject to
unimpaired connection with the open including those that do not have the total $5 million for which each
sea. where the sea water is measurably approved coastal management programs reserve is eligible for land acquisition. In
diluted with fresh water derived from under. section 305 of the Act. is eligible the case of a biogeographic region (see
land drainage. The term also includes for an award under the National appendix-I of this part) shared by two or
estuary-type areas with measurable Estuarine Research Reserve Program more coastal states, each state Is
freshwater influence and having (am I =1.2(c)@ eligible for Federal financial assistance
unimpaired connections with the open (b) For purposes of consistency to establish a separate national
sea. and estuary-type areas of the Great review by states with a federally estuarine research reserve within their
Lakes and their connecting waters. (See approved coastal management program respective portion of the shared
16 U.S.C 1453(7)). the designation of a national estuarine biogeographic regim Financial
M National Estuarine Research research reserve is deemed to be a saistancer application procedures are
Reserve means an area that is a Federal activity. which. if directly specified in Subpart L
representative estuarine ecosystem affecting the state's coastal zone. must (b) In developing a research reserve
suitable for long-term research. which be undertaken in a manner consistent to program. a state may choose to develop
may include all of the key land and the maximum extent practicable with a multiple-site research reserve
water portion of an estuary. and the approved state coastal management reflecting a diversity of habitats in a
adjacent transitional areas and uplands program as provided by section single biogeographic region. A multiple-
constituting to the extent feasible a 1456(c)(1) of the Act. and Implementing site research reserve allows the state to
natural unit. and which is set aside as a regulations at 15 CFR part 93M subpart develop complementary research and
natural field laboratory to provide long- C. in accordance with section 1456(c)(1) educational programs within the
term opportunities for research. of the Act and the applicable regulations individual components of its multi-site
education. and interpretation on the NOAA will be responsible for certifying - research reserve. Multiple-site research

~~~qM ~F~d~~~qd ~qR~~g~is~t~~r / Vol~ ~57~ No. 1~38 / Friday, ~J~q* 1~7~ 29~q0 / Proposed Rules~

reserves are treated as one reserve in priority co~si~d~~~ti~~ to proposals to species. i~~qdudi~g those that are rare or
terms of ~f~i~an ial assistance and establish reserves in biogeographic endangered~ When determined
development of an overall management region* or subregions or incorporating appropriate by the state and approved
framework and plan. Each individual types that are not represented in the by NOAA. the buffer z~o~n~e~t m~a~qy also
site of a proposed multiple-site research system. (See the biogeographic include an area necessary for facilities
reserve shall be evaluated both classification scheme and typology ~s~e~qt required for research and interpretation.
separately under I 921.11(c) and forth in ~q1921.3 and appendices I and ~qU Additionally. buffer zones should be
collectively as part of the site selection of this part). established sufficient to accommodate a
process. A coastal state may propose to (2) The site's ecological shift of the core area as a result of
establish a multiple-site research characteristics. including its biological 'biological. ecological or
reserve at the time of the initial site productivity, diversity of flora and ~qgeo~qmorphological change which
selection. or at any point in the fauna. and capacity to attract a broad reasonably could be expected to occur.
development or operation of the range of research and educational National Estuarine Research Reserves
estuarine research reserve. If the state interests. The proposed site must be a may include existing Federal or state
decides to develop a multiple-site representative estuarine ecosystem and land# already in a protected status
national estuarine research reserve after should~. to the maximum extent possible. where m~t~rtual benefit can be enhanced.
the initial acquisition and development be an estuarine ecosystem minimally However. NOAA will not approve a site
award is made for a single site. the affected by human activity or influence for potential national estuarine research
proposal is subject to the requirements (see I 9~q2~q2~.1~q(e)). reserve status that is dependent
set forth in I 92~q2.~q33~q(~qb)~. However, a state (3) Assurance that the site's primarily upon the inclusion of currently
may not propose to add one or more boundaries encompass an adequate protec~qled Federal lands in order to meet
sites to an already designated research portion of the key land and water areal the requirements for research reserve
reserve if the operation and of the natural system to approximate an status (such as key land and water
management of such research reserve ecological unit and to ensure effective areas). Such lands generally will be
has been found deficient and conservation. Boundary size will very included within a research reserve to
uncorrected or the research conducted is greatly depending on the nature of the serve as a buffer or for other ancillary
not consistent with the Estuarine eco~s~qy~s~qt- Research reserve boundaries purposes; and may be included. subject
Research C~aidelines referenced in must er~i~cc~anpa~s~s the area within which to NOAA approval. as a limited portion
~� ~9~q2~q1~-51. In addition. Federal funds for adequate control has or will be of the core area:
the acquisition of a multiple-site established by the managing entity over (4) ~qT~qh~e site's suitability for ~qlo~6qW~qterm
re"arch reserve remain limited to human activities occurring within the estuarine research. including ecological
SUM= f~see I ~q9~2qM~.~4qM. ~4qM~ie funding for reser~qn~. Generally, reserve boundaries factors a~nd prox~qi~in~qit~qy to ~qixisti~n~qg
operation of a mul~qtiple~-~eite research w~qI~qN encompass two areas: Key land and
reserve is limited to the ~. ~u~qm water arms (or "core area") and a research facilities and educational
a~l~lowed for any one reserve per year buffer ~ro~va~L Key land and water are~ss~. institutions;
(see � 9~q21.32~q(c)) and preacquis~qit~qi~o~n and a buffer zone will likely ~' ~. ~q(~q5~q) The site's compatibility with
~qm~r~s existing and potential land and water
funds are limited to ~qS~6qM~qO~4qW per reserve. significantly different levels of cacti uses in contiguous areas an well as
~1~921.11 S~qtI~e~qW~qw~U~n~i~s~ac~qi~qf~e~a~s~8qU~2qf~2qt~. (am I ~4q0~q1.~13(a)(~q7~q)~q). The terra "key land approved coastal and estuarine
(a) A coastal state may use Federal and water areas" refers to that am am management plane. and
within the reserve that is so vital to the
funds to establish and implement a site f~unction~qi of ~2q" estuarine (~q6) The site's importance to education
TONG ~q-~qZ~q@ With
selection process which is approved b~qy that It must be under a level of and ~q"~ate~r~qP~t~8q"~qI~q" ~e~8qf~8qf~qw~qt`~1~6 ~c~a~qm~q'~s~qt~e~n~qt
NOAA~. ~su~4qf~4qf~qn~qi~s~o~qit to ensure the ~ql~o~o~6qt~qte~qm the used for continued protection o~qf~qth~e
(b) In addition to the requirements so viability of t~qh~e ~r~o~s~e~r~v~e for research on, ~n~a~qb~n~a~ql system
forth in Subpart I of this part a request natural processes~, ~0qK~ey land ~a~n~qd water~, (d) Early in the site s~e~ql~e~c~qt~qi~o~qa~6qf~qmc~e~qn
for Federal ~qf~qi~n~ici~s, for site selection ~un~i~s~qt -arm& which ~c~o~0qmp~r~qi~g~e ~qt~qh~s am ask ~q0~9 th~s. state ~s~o~m~et seek do views of a~8qf~8qf~8qW~8qM
contain the following programmatic - ~qt~hos~e ~e~c~o~ql~o~qg~qi-~I units of a.~s~a~qtu~qn~qt landowners~. ~ql~qwal ~qg~qo~v~er~a~n~i~o~n~qt~a~. other
information: estuarine ~ap~qs~e~n~i~i w~0qU~ch preserve, ~qS~or state and Federal agencies ~a~nd~'~o~qt~qh~er
(1) A description of the proposed ~6qd~4qw research pu~rp~o~e~s~s, a full range of partial wh~O ~a~qm interested ~qI~n t~qh~e AM(&)
selection process and bow ~qi~qt will be Significant physical~. chemical and being ~c~o~us~qid~s~o~a~qd far s~e~ql~sc~qA~qi~o~n as a
implemented in conformance with the biological fac~qto~t~e ~c~o~a~8qMbu~qt~qin~qg to ~qt~qh~e potential ~a~st~qi~o~g~ia~ql estuarine research
biogeographic classification ~sch~qme and diversity of ~qf~a~u~g~0qm. am a~nd =tuna reserve~, Mar the local ~qS~qpv~ern~qmen~qt(~s~q)
typology (I 921.3~qy. processes occurring within the estuary~. and affected la~nd~ow~n~s~t~q(~s) have been~,
(2) An identification of the site 11w ~qd~et~e~r~a~qdnat~qi~o~n of which land a~n~qd contacted, at least am public ~s~i~s~s~6qf~6qi~n~qg
selection agency and the potential water area& are ~4q1~qmy~" to a ~qpa~r~qf~qi~c~u~ql~qw ~- shall b~e ~qh~O~8qM is t~qh~e ~v~qi~c~6qW~qtV Of the
management agency-, and mown must be band on specific proposed sits. ~4qN~o~qd~o~e ~o~qf~s~t~qw~qh a insisting~.
(3) A description of how public ~ad~e~qad~qf~qic ~qk~oo~or~ql~oc~qi~6qp of ~0q* arm A basic including t~qh~e tints. place. ~a~n~qd relevant.
participation will be Incorporated into principle to ~ql~o~qlk~y~qw when d~oc~qi~qd~qi~n~qg~6q"~qm subject mum shall be announced by
the process (see I ~8q9~08q=.~8q1~4q2~0q(cl~0q)~0q@ key land and water areas is that they ~8qth~qe state ~28q&~8qMV~60q& the a~qf~qe~16qw~qs principal
(c) As part of the &its selection should ~qe~qn~qco~qu~qsp~qe~00qw newspaper at least is days prior to the
process. the state and NOAA shall' ~q0 ~0q9 ~ql~qa~4qtati~qv~qe of ~8qt~8qh~qe tow ecosystem date of the ~8qw~qa~qs~8qt~6qi~20qf~20qt ~6qa~6qnd by N~24qQAA in the
evaluate and "loci the final ~qsit~qs~4qf~qe~8q@ and which if compromised could F~qed~qe~qnd
NOAA ~8qh~qa~qs final authority in app~qr~8qw~qi~52qf~52qt ~88q=~4q:~8q!~48q%~8qdw~60q=~48qTh
(~qa) A stela request for ~20qN~24qOA~24qA
such sites. Site selection shall be guided app~qr~qo~qv~28qW ~qo~4qf a proposed s~6qi~0qo~qs (or sites in
by the following principles: an am adjacent to or surrounding key the case of a ~qn~qi~qalti~24q4~8ql~qe reserve~8q) ~2qnu~qs~8qt
(~4q1) The site's contribution to the land and wow areas and essential to contain a description of the proposed
biogeographical and typological balance ~4qt~0qh~qi~qs~20qk~q.~6q1~04qm~qo~0qg~qr~6qi~8qv~6qj~q. ~20qB~qu~24qf~24qf~8qm ~qa~qor~8qm protect ~8qd~2qw ~qsi~8qt~qe~4q(~qa~4ql in ~qi~4qnl~qa~8qt~6qi~qon~qsh~6qi~6qp to ~qa~qs~24q& of the &its
of the National Estuarine Research c~qo~qs~qs was ~2qM~28qW Provide ~qa~24q"~4qho~qu~qa~4ql selection ~16qw~6qi~qnc~0qip~8ql~qe~qs (I ~2qO~16qU~08q4~2q1~8q(~qc~8qD and the
Reserve System NOAA will Siva ~6qp~4qn~04q*~4qw~2qd~8qm for ~qa~qst~quari~qn~qo~q-d~qo~6qp~qend~qent following ~2qi~qn~0qh~4qw~qi~qnat~6qic~qo~qu ~q-

Federal Register / Vol. 57, No. 138 / Friday. July 17, 1992 / Proposed Rules 31931

(1) An analysis of the proposed site(s) (b) The state is eligible to use the areas within the proposed boundaries of
based on the biogeographical scheme/ funds referenced in J 921.12(a) after the the reserve. the state shall perform the
typology discussed in J 921.3 and set proposed site is approved by NOAA following steps for each parcel
forth in appendices I and 11 of this part: under the terms of 1921.11. determined to be part of the key land
(2) A description of the proposed J 921.13 Management pion ancl and water areas (control over which is
site(s) and its (their) major resources. embonlim- Impactstateamt necessary to protect the integrity of the
including location. proposed boundaries. devewpmenL reserve for research purposes). and for
and adjacent land uses. Maps, including (a) After NOAA approves the state's those parcels required for research and
aerial photographs. are required: proposed site and application for funds interpretive support facihties or buffer
f3) A description of the public submitted pursuant to J 921.12. the state purposes:-
participation process used by the state may begin draft management plan (i) Determine, with appropriate
to solicit the views of interested parties. development and the collection of justification. the minimum level of
a summary of comments. and. if information necessary for the control(s) required [e.g.. management
interstate issues are involved. preparation by NOAA of an EIS. The agreement, regulation. less-than-fee
documentation that the Govemor(s) of state shall develop a draft management simple property interest (e.g.
the other affected state(s) has been plan. including an MOU. The plan shall conservation easement). fee ;imple
contacted. Copies of all correspondence, set out in detail: property acquisition. or a combination
including contact letters to all affected (1) Research reserve goals and of these approaches] This does not
landowners must be appended; objectives, management issues. and preclude the future necessity of
(4) A list of all sites considered and a strategies or actions for meeting the increasing the level of state control:
brief statement of the reasons why a site goals and objectives; (ii) Identify the level of existing state
was not preferred; and (2) An administrative plan including control(s);
(5) A nomination of the proposed staff roles in administration, research. (iii) Identify the level of additional
site(s) for designation as a National education/interpretation, and state control(s). if any. necessary to
Estuarine Research Reserve by the surveillance and enforcernent;' meet the minimum requirements
Governor of the coastal state in which (3) A research plan. including a identified in paragraph (a)(7)(i) of this
the site is located. monitoring design; section.
(nA state proposing to reactivate an (4) An education/interpretive plan--- (iv) Examine all reasonable
inactive site. previously approved by (5) A Plan for public access to the alternatives for attaining the level of
NOAA for development as an estuarine serve: control identified in paragraph (a)(7)(Hi)
sanctuary or reserve. may apply for (6) A construction plan. including a of this section. and perform a cost
diose funds remaining. if any, provided proposed construction schedule. general analysis of-each; and
for site selection and feasibility descriptions of proposed developments (v) Rank. in order of cost. the methods
(I 921.11(a)) to determine the feasibility and general cost estimates. Information (including acquisition) identified in
of reactivation. This feasibility study should be provided for proposed.minor paragraph (a)(7)(iv) of this section.
must comply with the requirements set construction Projects in sufficient detail Am assessment of the relative cost.
forth in � 921.11(c)-(e). to allow these projects to begin in the effectiveness of control alternatives
1921.12 Poatafte initial phase of acquisition and shall include a reasonable estimate of
developmenL A categorical exclusion. both short-term costs (eg., acquisition of
(a) At the time of the coastal state's . environmental assessment. or ELS may property interests. regulatory program
request for NOAA approval of a be required prior to construction: development including associated
proposed site. the state may submit a (7) An acquisition plan identifying the enforcement costs. negotiation.
request for funds to develop the. draft ecologically key land and water areas of adjudication. etc.) and long-term costs
management plan and for preparation of the research reserve. ranking these (eg.. monitoring. enforcement.
the EIS. At this time, the state may also areas according to their relative adjudication. management and
submit a request for the remainder of importance. and including a strategy for -coordination). In selecting a preferred
the predesignation funds to perform a estabbihing adequate long-term state mathod(s) for establishing adequate
limited basic characterization of the control over these areas sufficient to state control over each parcel examined
physical. chemical and biological provide protection for reserve resources under the process described above. the
characteristics of the site approved by to ensure a stable environment for state iliall give priority consideration to
NOAA necessary for providing EIS research. This plan must include an the least costly method(s) of attaining
information to NOAA. The state's identification of ownership within the the minimum.level of long-term control
request for these post site selection proposed research reserve boundarim required. Generally, with the possible
funds must be accompanied by the including land already in the public exception of buffer areas required for.
information specified in subpart I and. domain; the method(s) of acquisition support Mcilities, the leval.of conb0s)
for draft management plan development whkh the state proposes to use- required for buffer areas will be
and EIS information collection. the acquisition (including lewthiin-fee considerably lose than that required for
following programmatic information: simple options) to establish adequate key land and water arsaii. This
(1) A draft management plan outline long-term state controk an estimate of acquisition phm after receiving the -
(am 1 W1.13(s) below@ and the fair market value of any property approval of NOAA. shall serve as a
(2) An outline of a draft memorandum interest-which is proposed for guide for negotiations with landowners.
of understanding (MOLT) between the acquisition: a schedule estimating the A final boundary for the reserve shall be
state and NOAA detailing the Federal- time required to complete the process of delineated as a part of the final
state role in research reserve establishing adequate state control of management plan;
management during the initial period of the proposed research reserve. and a (8) A resource protection plan
Federal funding and expressing the discussion of any anticipated problanis. detailing applicable authorities.
state's long-term commitment to operate In selecting a preferred method(s) for including allowable use& uses requiring
and manage the reserve. establishing adequate state control over a permit and permit requiremefits. any

31932 Federal Register / Vol. ~57~ No. 1~38 / Friday, July 17, 1~9~9~2 / Proposed Rules

restrictions on use of the research ~(c~) Early in the development of the and educational facilities, complete any
reserve. and a strategy for research draft management plan and the draft remaining land acquisition, for program
reserve surveillance and enforcement of E~qIS, the state and NOAA shall hold a development and for restorative
such use restrictions. including scoping m~peting (pursuant to NEPA) in activities identified in the final
appropriate government enforcement the area or areas most affected to solicit management plan. In any case, the
agencies: public and government comments on the amount of Federal financial assistance
~(~9) If applicable. a restoration plan significant issues related to the provided to a coastal state with respect
describing those portions of the site that proposed action. NOAA will publish a to the acquisition of lands and waters.
may require habitat modification to notice of the meeting in the Federal or interests therein. f~qor any one national
restore natural conditions: Register at least 15 days prior to the estuarine research reserve may not
(10) If applicable, a resource meeting. The state shall be responsible exceed an amount equal to 50 percent of
manipulation plan. describing those for publishing a similar notice in the the costs of the lands, waters. and
portions of the reserve buffer in which local media. interests therein or ~q$~qS.~2qW~qO~.~qO~2qM
long-term preexisting (prior to (d) NOAA will publish a Federal whichever amount is less.
designation) manipulation (eg., use of a Register notice of intent to prepare a
buffer area for hunting and/or fishing draft EIS. After the draft EIS is prepared ~q1~q921.2~q1 In~qit~qi~al~a~cqui~s~qitlo~n~ond
club activities), for reasons not related and riled with the Environmental ~qd~@~V~4qW~8qW~qM OWN
to research or restoration is occurring. Protection Agency (EPA). a Notice of (a) Assistance is provided to aid the
The plan shall explain in detail the Availability of the draft EIS will appear recipient prior to designation in:
nature of such activities. shall justify in the Federal Register. Not less than 30 ~q(~q1) Acquiring a fee simple or less-than-
why such manipulation should be days after publication of the notice, fee simple real p~so rty interest in land
permitted to continue within the reserve NOAA will hold at least one public and water areas to be included in the
buffer, and shall describe possible hearing in the area or areas most research reserve boundaries (see
effects of this manipulation on key land affected by the proposed national I ~qg~8qn_13~q(a)(~q7~q@ I ~2qM.30~q(~2qf~2qt~-
and water areas and their resources; estuarine research reserve. The hearing (2) Minor ~coc~i~st~r~uct~qion. as provided in
(11) A proposed memorandum of will be held no sooner than 1~q5 days after paragraphs (~qb~q) and (~c) of this section;
understanding (MOU) between the state appropriate notice of the meeting ha ~q(3) Preparing the final management
and NOAA regarding the Federa~ql-~s~qt~u~ate been given in the principal news ~qm~e~8ql~a plan: and
relationship during the establishment by the state and in the Federal Register ~q(4) Up to the point of resea~r~c~qi~i reserve
and development,of the national by NOAA. After a 45~-day comment designation. initial management costs,
estuarine research reserve. and period. a final EIS will be prepared by eg.' for tmp~ql~eme~n~qU~ng the NOAA
expressing a long-term commitment by the state and NOAA~. a~qp~4q@~2q@ draft management p~qla~s~i.
the state~'to maintain and manage SUbp~qW~qt C final management plan.
the _~qA~w~c~qq~U~q1~q0~q1~q1~q1~2qM E~qN~1~v~G~ql~o~qp~n~qW~6qW preparing the
research reserve in accordance with ~qW~6qW~qp~,~8q"~qW~a~0q" ~O~qf~qt~0qm~qF~qin~qa~ql hiring a reserve manager and other staff
section 31~q1 o~qf the A~c~t~q, 1~q6 U.S.C. 14~q61. ~0qM~an~a~qg~qi~a~qwnt Plan as necessary and for other management-
and applicable regulations. In related activities~. Application
conjunction with the MOU. and where ~q1~9~q2~1~0qM ~8qG~G~D~qW~S~qL procedures are specified in subpart I of
possible under state law, the state will The acquisition and development this part.
consider taking appropriate period Is separated ~qi~t~i~qt~o two major (b) The expenditure of Federal and
administrative or legislative action to phases. After NOAA ~ap~qpr~e~v~a~ql of the state funds an major con
ensure the long-term protection and site, draft m~qm~a~qy~qm~ent plan and draft activities to mot allowed during ~qd~v~e~@
operation of the national estuarine M~4qO~0qU~, and completion of the final M~4q& it initial acquisition a~8qW development
research reserve. If other MOU~@ are c~e~a~4qwal state Is ~e~qf~qi~qg~qf~8qW~qf~qbr~an initial p~qh~a~se.~'M~e preparation of ~a~r~4qA~ql~qt~ect~or~el
necessary (such as with a Federal acquisition and d~i~eve~ql~opm~ent ~aw~ard~4qW. and ~C~a~qm~qin~. ~.~. ~q- plans, i~qm~qd~ud~qi~n~6qg
agency. another state agency or private in this initial phase~, ~qd~qw ~o~0qut~g should specifications. for any p~e~op~o~s~e
organization), drafts of such M~0qOU~s must work to meet the criteria required for construction~. or ~qf~qb~r proposed r~e~stora~6qM~qm
be included in the plan. All necessary formal research rose" designation~; activities~. Is per~tn~qi~qt~8q" In a~qd~qd~qU~qk~qm
M~qO~Lr~s shall be signed prior to research eg.. establishing adequate state control minor construction ~a~ct~2qW~qit~qi~qo~0qm consistent
reserve designation; and over the key ~qI~qw~4qA and wate~qt areas as with pa~i~m~0qp (c~q) of this section also
(~12) If the state has a federally specified In the draft management plan are all~ow~e~q@~qL ~q7~4qb~e ~0qH~0qOA~6qA~-~app~r~ov~ed draft
approved coastal management pro~qgr~a~u~L and preparing the final management management plan must. ~qhowev~ez,
a certification that the national pla~qm Then requirements are specified include a ~qm~istr~o~cti~e~n plan and a public
estuarine research reserve is consistent in 1~q02~q2.30. ~qW~6qf~6qi~n~or construction in access plan betas any award funds can
to the maximum extent practicable with accordance with the draft mana~qg~am~e~4qm be spent on ~c~o~ns~qe~9~qw~qB~o~u ~act~qi~v Us&
that program. See I I ~2qW~q2.~q4~q(b) and plan. may aim be conducted during ~qd~6q& ~q(~C~q) Only ~s~i~6qb~ur construction ~act~qi~r
~921~30(b). initial phase. 7~qhe ~qL~ait~qial acquisition and that aid in Implementing p~er~qf~qlon~qt of the
(b) Regarding the preparation of ~qa~qn development phase is expected to last~q. management plan (~o~qnch as beef ramps
EIS under the National Environmental no longer than thrr~qe years. if necessary~q, and nature trails) we permitted during
Policy Act on a national estuarine - a longer time period may be negotiated the initial acquisition and ~4qd~qev~qe~4ql~qop~qn~0qm~08qa
research reserve p~qt a~8qL the ~q. ~8qw~28qd between the sum and NOA~20q& After phase. No man *a* five ~4q(~2q5~4q) ~6qp~qe~qr~8qm~qa~4qt of
NOAA shall collect ~qa~8ql~8ql necessary research reserve designation~q. a state is the ~6qb~qi~qt~2qit~6qi~qa~8ql ~qs~2qu~6qf~qa~6qis~6qit~2qi~8qb~qe and d~qev~qe~4qi~qep~8qm~qe~4qw~2ql
information concerning t~2qh~qe ~qe~8ql~0qig~qi~8qlble ~2qSw a ~qY~qo~56qW~qem~qent~qal acquisition award my be ~0q; ~qP ~qi I ~qi ~8qm ~8q=~24q&
socioeconomic and environmental and development ~qawar~4qd(~qs) in activities~q. N~24qGAA ~8qm~08q" make a specific
impacts associated with implementing accordance with I ~2q92~8q1~12qJ~2qI. In this post- determination. based an the final E~0qI~32q&
the draft management pl~qam and feasible designation acquisition and that the construction activity wi~8qD ~qn~qo~8qt be
alternatives to the plan. Dosed on this development pb~8qu~qs, funds may be nod ~8qd~qe~4qtrim~qe~08qa~32qd is ~24q&~q* ~qe~qa~qv~6qi~qv~qe~qn~4qn~qe~qa~8qL
information. the state will draft and in accordance with the final (d) ~20qE~qn~qc~qep~4qt as sp~qe~qc~6qif~2qic~qa~4qRy p~qr~qe~qo~qv~2qid~qe~0qd to
provide NOAA with a preliminary ~0qE~20qK management plan to construct research - paragraphs (a~6q)~q-~6q(~qc~0qr~qe~0qf Us ~qs~qe~qc~6qO~qn~qn.

Fedwal Regh"r / Vol. 57, No. 138 / Friday, July 17. 1992 / Proposed Rules 319M

construction projects, to be funded in Government. the recipient shall be opportunities for public education and
whole or in part under an acquisition entitled to compensation computed by interpretation;
and development award(s). may not be applying the recipient's percentage of (4) A final management plan has been
initiated until the research reserve participation In the cost of the original approved by NOAA.
receives formal designation (see project to the current fair market value (5) An MOU has been signed between
1 W1.30). This requirement has been of the property: and the state and NOAA ensuring a long.
adopted to ensure that substantial (iii) Fair market value of the property term commitment by the state to the
progress in establishing adequate state must be determined by an independent effective operation and implementation
control over key land and water areas appraiser and certified by a responsible of the area as a National Estuarine
has been made and that a final official of the state, as provided by Research Reserve:
management plan is completed before Department of Commerce Regulations at (6) All MOU's necessary for reserve
major sums are spent on construction. 15 CFR part 24, and Uniform Relocation management (Le_ with relevant Federal.
Once substantial progress in Assistance and Real Property state, and local agencies and/or private
establishing adequate state control/ Acquisition for Federal and Federally organizations) have been signed. and
acquisition has been made. as defined assisted programs at 15 CFR part 11. (7) The coastal state in which the area
by the state in the management pl= (1) Upon instruction by NOAA. is located has complied with the
other activities guided by the final provisions analogous to those of
requirements of subpart B of this part.
management plan may begin with 92IM(e) shall be included in the (b) NOAA will determine whether the
NOAA's approval. documentation underlying less-than-fee- designation of a national estuarine
(e) For any real property acquired in simple interests acquired in whole or research reserve in a state with a
whole or part with Federal funds for the part with Federal funds. federally approved coastal zone
research resmerve. the state shall execute (g) Federal funds or non-Federal management ptog. m directly affects
suitable tide documents to include matching share funds shall not be spent the coastal zone. U the designation is
substantially the following provisions. to acquire a real property interest in found to directly affect the coastal zone.
or otherwise append the following which the state will own the land NOAA will make a consistency
provisions in a manner acceptable under concurrently with another entity unless determination pursuant to section
applicable state law to the allicial land the prop" interest has been identified 307(c)12) of the Act. 16 UaC. 1456. and
recard(s): as a part of an acquisition strategy 15 CFR part 930. subpart C. See
(1) Title to the property conveyed by pursuant to 1921.13(7) which has been I 9=Aft The results of this
this deed shall vest in the [recipient of approved by NOAA prior to the consistency determination will be
the award granted pursuant to Section effective date of these regulations. published in the Federal Register when
315 of the Act 18.U.S.C. 1481 or other (h) Prior to submitting the final
NOAA approved state agency] subject management plan to NOAA for revM'M the notice of designation is published.
to the condition that the designation of and appraval. the state shall hold a See I gn_"r_@
the [name of National Estuarine public ineeting to receive comment an (c) NOAA will publish the notice of
Reserve] is not withdrawn and the the plan in " area affected by the designation of a National Eatuarftw
property remains part of the federally estuarine research reserve. NOAA will Research Reserve in the Federal
designated Iname of National Estuarine publish a notice of the meeWig in the Register. Thie state shall be responsible
Research Reservet and Federid Ragisaw. The state shall be for having a similar notice published in
(2) In the event that the property is no responsible for having a similar notice the local mWk.
longer included as part of the research (d) The term "state control" in
reserve. or if the designation of the published in the local newwpaper(s). I onjAii)(3) does not necessarily
research reserve of which it is pan is Subpart D-Remerve DesWislion &.4 require that key lud and water areas be
withdrawn. then NOAA or its successw subseqmt Oparauon owned by the state in fee simple.
agency. after full and reasonable Acquisition of Was-than-fee simple
consultation with the StaW my M n Of W-00 FAINNInG interests (&& conservation casements)
exercise the following rights regardft Research R@ v and utilization of existing state
the disposition of the property- (a) The Under Secretary may regulatory measures am encouraged
(I) The recipient may retain tide after designate an area proposed for where the state can demonstrate that
paying the Federal Government an designation by the Governor of the state these interests and measures assure
amount computed by applying the in which it is located. as a National adequate long-term state control
Federal percentage of participation in Estuarine Research Reserve if the Under conebtent with the purposes of the
the cost of the original projed to the Secretary finds: research reserve (see also I WL23(aVL
current fair market value of &a (1) Ile area is a representative I WIM4S Should the state later elect
property; estuarine ecosystem that is suitable for to purchase an interest in such land&
(ii) If the recipient does not elect to long-term research and contributes to using NOAA funds. adequate
retain title. the Federal Government my the biogeographical and typological justification as to the need for such
either direct the recipient to sell the balance of the System: acquisition awit be provided to NOAA.
property and pay the Federal (2) Key land and water areas of the
Government an amount computed by proposed research reserve. as identified I IM 9WP1VMAMd OMM&M and
applying the Federal percentage of in the management plan. am under dsvok*NWM - - do
participation in the cost of the original adequate state control sufficient to After national estuarine research
project to the proceeds from the sale provide long-term protection for reserve reserve designation. and as specified In
(after deducting actual and reasonable resources to ensure a stable the approved management plan. a
selling and repair or renovation environment for research. COdStal state may request a
expenses, if any. from the sale (3) Designation of the area as a supplemental acquisition and/or
proceeds). or direct the recipient to reserve will serve to enhance public development award(s) for acquiring
transfer tide to the Federal Government awareness and understanding of additional property interests identified
If directed to tide to the Federal estuarine areas. and provide suitable in the management plan as necessary to

31934 Federal Register / Vol. 57. No. 138 / Friday. July 17, 1992 / Proposed Rules

strengthen protection of key land and (see appendix I of this part) shared by multiple-site research reserve and a
water areas and to enhance long-term two or more states, each state is eligible description of the complementary
protection of the area for research and for Federal financial assistance to research and educational programs
education. for facility and exhibit establish a separate reserve within their within the research reserve. If NOAA
construction. for restorative activities respective portion of the shared determines. based an the scope of the
identified in the approved management biogeographic region (see J 921.10). project and the issues associated with
plan, for administrative purposes related (d) Operation and management funds the additional site(s). that an
to acquisition and/or facility are subject to the following limitations: environmental assessment is sufficient
construction and to develop and/or (1) Eligible coastal state agencies may to establish a multiple-site research
upgrade research. monitoring and apply for up to the maximum share reserve, then the state shall develop a
education/interpretive programs. available per reserve for that fiscal year. revised management plan which.
Federal financial assistance provided to Share amounts will be announced concerning the additional component.
a national estuarine research reserve for annually by letter from the Sanctuary incorporates each of the elements
supplemental development costs and Reserves Division to all described in I 921.13(a). Ile revised
directly associated with facility participating states. This letter will be management plan shall address goals
construction (ie.. major construction provided as soon as practicable and objectives for all components of the
activities) may not exceed 70 percent of following approval of the Federal budget multi-site research reserve and the
the total project cost. NOAA must make for that fiscal year. additional component's relationship to
a specific determination that the (2) No more than ten percent of the the original site(s).
construction activity will not be total amount (state and Federal shares) (c) The state shall revise the
detrimental to the environment. of each operation and management management plan for a reserve at least
Supplemental acquisition awards for the award may be used for construction. every five years, or more often if
acquisition of lands or waters. or type activities. necessary. Management plan revisions
interests therein. for any one reserve 1921.33 Boutwiery dong4w arnendments are subject to paragraph (a) of this
may not exceed an amount equal to 50 to the mattagement Park, arw a"tion of section.
per centuin of the cost of the lands, MumpW-09 Conwonents. (d) NOAA will approve boundary
waters. and interests therein or . (a) Changes in the boundary of changes, amendments to management
$5.000.000, whichever amount is less. In reserve and major changes to the final plans, or the addition of multiple-site
the case of a biogeographic region (see management plan. including state laws components, by notice in the Federal
appendix I of this part) shared by two or or regulations promulgated specifically Register. If necessary NOAA will revise
more staieL each state is eligible for the reserve. may be made only after the designation document (findings) for
independently for Federal financial
assistance to establish a separate written approval by NOAA. NOAA may the site.
national estuarine research reserve require public notice, including notice in
within their respective portion of the the Federal Register and an oppor!"Elty Subpart E-Ongoing OvwWoK
shared biogeographic region. for public comment before approving a P" Evaltntlon and
Application procedures are specified in boundary or management plan change. Witimirawal of DeWgmtlon
subpart I of this part. Land acquisition Changes in the boundary of a reserve 1921.40 O'gol oversightwul
must follow the procedures specified in involving the acquisition of properties evviuagorm of d@Opmftd National
I 922.23(a)(7), 19421 (a) and (f) and not listed in the management plan or Eshaerine Research Reserves. -
final EIS require public notice and the (a) Ile Assistant Administrator shall
opportunity for comment: in certain -
921.32 Operatkm aW Martagemeft cases. a categorical exclusion. an conduct. in accordance with sections
Imphmnecitation of the Managenwa PWL environmental assessment and possibly = and 323 of the Act arAprocedures
(a) After the reserve is formally an environmental impact statement may set forth in IL5 CFR part 92L ongoing
designated. a coastal state is eligible to - be required. NOAA will place a notice oversight and evaluations of reserves.
receive Federal funds to assist the state in the Federal Register of any proposed Interim sanctions may be imposed in
in the operation and management of the changes in research reserve boundaries accordance with regulations
res:rve including the management of or proposed major changes to the final promulgated under 15 CFR part 92L
res arch . monitoring. education. and management plan. The state shall be (b) 7be Assistant Administrator way
interpretive programs. The purpose of responsible for publishing an equivalent consider the following indicators of non-
this Federally funded operation and notice in the local media. See also adherence in determining whether to
management phase is to implement the requirements of I WLA(b) and invoke interim sanctions:
approved final management plan and to I M.12(a)(11@ (2) Inadequate implementation of
take the necessary steps to ensure the (b) An discussed in I W1.10(b). a state required staff roles in administration.
continued effective operation of the may choose to develop a multip"te reseamh. education/interpretation. and
reserve. national estuarine research reserve after surveillance and enforcement.
(b) State operation and management the initial acquisition and development Indicators of inadequate implementation
of the reserves shall be consistent with award for a single site has been made. could include: No reserve Manager. or
the mission. and shall further the goals NOAA will publish notice of the no staff or insufficient staff to carry out
of the National Estuarine Research proposed new site including an the required functions.
Reserve Program (an 1922.1). invitation for comments from the public (2) Inadequate implementation of the
(c) Federal funds are available for the in the Federal Register. The state shall required research p1m including the
operation and management of the be responsible for publishing an monitoring design. Indicators of
reserve. Federal funds provided equivalent notice in the local inadequate implementation could
pursuant to this section may not exceed newspaper(Q. An EIS. if required. shall include: Not carrying out research or
70% of the total cost of operating and be prepared in accordance with section monitoring that is required by the plan.
managing the reserve for any one year. I W1.23 and shall include an or carrying out arch or monitoring
In the case of a biogeographic region administrative framework for the that is inconsistent with the plan.

Federal R~~g~i~qdu / Vol., ~S7~ No. 1~3~8 / Friday. July 1 7, 1992 / P~ Rules 31935

(3) Inadequate implementation of the ~3~15 of the A~~t and regulations ~qM.~52 ~P~~~~W~q"~ Or~q* ~~~~~qW~o~Non of
required educat~ion/interpre~ta~t~ion plan. promulgated thereunder. ~s~lu~~~~~ ~~s rch
Indicators of inadequate implementation (a) NOAA will promote and
could include: Not carrying out Subpart ~qF~q-Sp~e~c~qial Research Projects coordinate the use of the National
education or interpretation that is ~qJ 921.~q50 G~*~ne~ra~qL Estuarine Research Reserve System for
required by the plan. or carrying out research purposes.
ed uca tion /interpretation that is (a) To stimulate high quality research (b) NOAA will. in conducting or
inconsistent with the plan. within designated national estuarine supporting estuarine resea~qmh other than
(4) Inadequate implementation of research reserves~, NOAA may provide that authorized under section 315 of the
public access to the reserve. Indicators financial support for ~qmsearch projects Act. give priority consideration to
of inadequate implementation of public which are consistent with the Estuarine research that make use of the National
access could include: Not providing Research Guidelines referenced in Estuarine Research Reserve System~.
necessary access. giving full ~q1921.51. Research awards may be (c) NOAA will consult with other
consideration to the need to keep some awarded under this subpart to only Federal and state agencies to promote
areas off limits to the public in order to those designated research reserves with use of one or more research reserves
protect fragile resources~. approved final management plans. within the National Estuarine Research
~(5) Inadequate implementation of Although research may be conducted Reserve System when such agencies
facility development plan. Indicators of within the immediate watershed of the conduct estuarine research.
inadequate implementation could research reserve. the majority of
include: Not taking action to propose research ~acti~qw~qi~qf~qie~s of any single research Subpart G~q-~qS~qp~ec~qi~al U~on~qito~r~2qW~6qe
and budget for necessary facilities. or project funded under this subpart must ~qP~r~o~qjec~qt~a
not undertaking necessary construction be conducted within reserve boundaries~.
in a timely manner when funds are Funds provided under this subpart are ~q9~q2~q1.~q0~q0 Gem
available. primarily used to support management- (a) To provide a systematic basis for
(6) Inadequate implementation of related research projects that will developing a high quality estuarine
acquisition plan. Indicators of enhance scientific understanding of the resource and ecosystem information
inadequate implementation could research reserve ecosystem~. provide base for National Estuarine Research
include: Not pursuing an aggressive information needed by reserve Reserves and. as a result~. for the
acq~~i~~qf~qf~qlon program with all available managers and coastal management System NOAA may provide financial
funds for that purpose. not requesting decision-makers, and improve public support for basic monitoring programs
promptly additional funds when awareness and understanding of as part of operations and management
necessary, and evidence that adequate ~e~0qa~nari~ne e~c~o~s~2qWe~n~q" and estuarine under ~qJ ~qg~8qn.32- Monitoring funds are
long-term state control has not been management ~qis~aue~s. Special research used to support three major phases of a
established ever some core or buffer projects may be oriented to specific monitoring program~: studies necessary
areas. thus jeopardizing the ability to research reserves. however, research for comprehensive site description/
protect the reserve site and resources projects the would benefit ~qm~qm then characterization, development of a site
from ~ff~~ite ~qimpac~4qm one research reserve in the National
(7) Inadequate implementation of profile, and implementation of a
Estuarine Reserve Research System are monitoring prog~ra~u~L
reserve protection plan. Indicators ~of encouraged. (b)~"Add~qition~al monitoring f~u~nd~s~i ~qm~qay
inadequate implementation could (~qb) Funds provided under this subpart be available on a competitive basis to
include: Evidence of non-compliance are available on a competitive bask to the state agency responsible for reserve
with reserve ~qm~qm~qtr~qict~qion~s. ~qIn~qmr~qifi~8qde~n~t any ~c~a on ~P I state or ~qqu~a~qf~qt~qf~qfe~qd public or m~a~qo~s~qa~ame~n~qt at a ~qq~qw~6qd~0qT~qw~qd public or
surveillance and enforce~qme~nt~,to as$= private person. A notice of available private person or entity d~e~s~qi~qg~u~a~t~ed by
that rest. ct~qion~s on use of the reserve funds will be published in the F~ed~ura~qt the reserve for special monitoring
am adhered to, or evidence that reserve ~6qR~s~qg~qh~qn~qw~. Special research project func~4qh projects. However~. If the ~app~qi~qk~qa~0qo is
msou~~ are being damaged or am provided in addition to any other other than the managing entity of a
destroyed as a ~re~su~qf~qt of the ~abo~v~r~- -funds available to a coastal state under research reserve (coastal state). that
(8) Failure to carry out the terms of the the Act. Federal funds provided under applicant m~ur~qt submit as a part of the
signed Memorandum of Understanding this subpart may not exceed ~q7~2qM of the ~sp~qpl~q@cst~i~o~n a ~ql~e~qt~qi~er ~qf~r~qw~n the reserve
(MOU) between the state and NOAA. total cost of the project. consistent with ~n~w~L~qm~0q*~e~r ~qi~n~qd~6qk~s~0q" f~qbr~qm~a~ql ~r~qt of the
which establishes a long~-term state I ~q92~qI~2qM(e)~q(4) ("allowable ~c~o~s~qt~0qC). application by ~qT~qhe ~s~n~a~a~a~qg~qing entity of
commitment to maintain and m~a~v~ia~qge
the reserve in accordance with section 1921.~q51 1~9 r~e~e~ss~i~c~qt ~qq~uk~qt~a~ql~n~es. the reserve. P~8qW~0qW~s p~r~o. OWN this
315 of the Act Indicators of failure could subpart for special ~qm~o~n~qt~qiori~n~qg projects
include: State action to allow (a) Research within the National an pr~e~i~v~qid~ed in addition to any other
incompatible uses of ~st~at~e~-~con~qtr~o~ql~qle~qd ~qF~qAtuari~ne R~as~a~a~r~4q& Reserve System funds ~ev~a~qd~ab~qle to a coastal Note under
lands or waters in the ~r~e~ser~v~e~@ f~qai~ql~u~qm of sh~q&ll be ca~m~qd~u~r~qA~ed in a manner the A~c~qL Federal ~qf~qi~s~td~o provided under
consistent with E~s~qtwu~r~i~n~o R~es~s~ar~2q& this subpart ~awy ~so~q4 exceed 70~8q% of ~qd~qw
the state to beer its fair share of is Gu~qid~qe~0ql~8qm~qas developed by NOAA. total cost ofth~q& project~q. co~qn~qsir~4ql~qe~qn~4qt with
associated with lon~6q#4~qerm operation and.
management of the reserve. or f~0qa~2qi~0ql~0qar~qs, to (~8qb~4q) A ~qs~qu~qs~qam~qa~qry of the ~24qU~04qw~qari~qm~qe ~2q9~2q2~8qI~08qM~4q(~qO~0q)~0qF~4qO~0q) ~40qr~qal~4qlo~0qw~qs~24qw~qe ~qC~qO~qO~16qW~4qI~q.
initiate ~qf~qir~ne~0qly updates of the MO~24qU Research Guidelines in published in the ~6q1c) Monitoring projects fi~4qmded wide
when necessary. Federal 1~0q1~6q1~q01~8q0~q01~4q1~qar as a ~36qW of the notice this~qo~qm~4qb~6qp~qa~qi must focus an ther~qe~qso~qur~qce
of ~qav~qa~4qg~qab~0ql~qe, ~2qh~qu~qm~4qls discussed in w~qi~0qt~4qi~12qf~12qt the bo~qur~qm~0qi~qa~qr~2qle~qs of the research
~qi ~q9~q2~q1A~qI W~04qW~08qW~qn~4qW~04qW at ~8qd~qesl~2qi~08qp~qs~4qt~0qi~qo~qr~qL 1 ~2q9~2q2~8q1~q-~q1~44q4~qc~4q)~q. reserve and ~08q~ be cons~6qi~08qd~qent with the
~qJ~4qU Assistant Administrator may ~0q(c~0q) The Estuarine Research Guidelines applicable sections of the Estuarine
withdraw designation of an e~04qau~qs~qiri~qn~qe an r~qa~qir~6qi~qew~qed annually by ~20qN~24qOAA. T~4qhis Research Go~0qid~qer~qnm~qe referenced in
area as a ~4qNa~0qt~2qk~8qna~4ql Estuarine R~qe~qsear~qc~8qb review will include an opportunity for I ~2q92~8q1M. P~qar~4qt~6qion~qs of the p~qr~qojec may
Reserve pursuant to ~qa~qnd in accordance co~4qm~8qn~8qa~0qm by the ~qc~qo~04qf~04qta~qri~qn~qe research occur, w~6qh~0qb~2qi~qn ~0qt~4qhe ~6qh~qeme~4qd~2qi~qa~0qt~qe watershed
with the Procedures of section 31~2q2 ~qsr~28qA community. of the reserve beyond the rite

31936 Federal Register / Vol. 57, No. 138 / Friday, July 17, 1992 / Proposed Rules

boundaries. However. the monitoring (b) An original and two copies of the Federally-financed program in either the
proposal must demonstrate why this is formal application must be submitted at current or a prior award period.
necessary for he success of the project. least 120 working days prior to the (d) General guidelines for the non-
proposed beginning of the project to the Federal share are contained in
Subpart H-Special Interpretation and following address: Office of Ocean and Department of Commerce Regulations at
Education Projects Coastal Resource Management. 15 CFR part 24 and OMB Circular A-110.
� 921.70 General. National Ocean Service, National Copies of Circular A-110 can be
Oceanic and Atmospheric obtained from the Sanctuaries and
(a) To stimulate the development of Administration. Universal Building Reserves Division: 1825 Connecticut
innovative or creative interpretive and South. 1825 Connecticut Avenue, NW.. Avenue. NW.. suite 714: Washington,
educational projects and materials to suite 714. Washington. DC 20235. The DC 20235. The following may be used in
enhance public awareness and Application for Federal Assistance satisfying the matching requirement:
understanding of estuarine areas. Standard Form 424 (Non-construction (1) Site Selection and Post Site
NOAA may fund special interpretive Program) constitutes the formal Selection Awards. Cash and in-kind
and educational projects in addition to application for site selection. post-site contributions (value of goods and
those activities provided for in selection, operation and management. services directly benefiting and
operations and management under research. and education and interpretive specifically identifiable to this part of
� 921.32. Special interpretive and awards. The Application for Federal the project) are allowable. Land may not
educational awards may be awarded Financial Assistance Standard Form 424 be used as match.
under this subpart to only those (Construction Program) constitutes the
designated research reserves with formal application for land acquisition (2) Acquisition and Development
approved final management plans. and development awards. 71e Awards. Cash and in-kind contributions
(b) Funds provided under this subpart application must be accompanied by the are allowable. In general. the fair market
may be available on a competitive basis information required in subpart B of this value of lands to be included within the
to any state agency. However, if the part (predesignation). subpart C of this research reserve boundaries and
applicant is other than the managing parL and 1921.31 (acquisition and acquired pursuan t to the Act. with other
entity of a research reserve. that development). and 1921.32 (operation than Federal funds, may be used as
applicant must submit as a part of the and management) as applicable. - match. However, the fair market value
application a letter from the reserve Applications for development awards of real property allowable as match is
manager indicating formal support of the for construction projects, or restorative limited to the fair market value of a real
application by the managing entity of activities involving construction. must property interest equivalent to, or
the reserve. These funds are provided in include a preliminary engineering report. required toattain. the level of control
addition to any other funds available to a detailed construction plan. a site plan. over such land(s) identified by the state
a coastal state under the Act. Federal a budget and categorical exclusion and approved by the Federal
funds provided under this subpart may check list or environmental assessment. Government as that necessary for the
not exceed 70% of the total cost of the All applications must contain back up protection and management of the
project. consistent with I 921.81(e)(4) data for budget estimates (Federal and national estuarine research reserve.
("allowable costs"). non-Federal shares). arid evidence that Appraisals must be performed according
(c) Applicants for education/ the application complies with the to Federal appraisal standards as
interpretive projects that NOAA Executive Order 12372. detailed in Department of Commerce
determines benefit the entire national "Intergovernmental Review or Federal regulations at 15 CFR part 24 and the
estuarine research reserve system may Programs." In addition. applications for Uniform Relocation Assistance and Real
receive Federal assistance of up to 1011% acquisition and development awards Property Acquisition for Federal and
of project costs.. must contain: Federally assisted programs in 15 CFR
(1) State Historic Preservation Office part 11. The fair market value of
Subpart t-4eneral Filnoncial comments. privately donated land. at the time of
Assistance Provisions (21 Written approval from NOAA of donation. as established, by an
the draft management plan for initial . independent appraiser and certified by a
192130 Appl*catlon infonmatkwL acquisition and development award(s). responsible official of the state.
(a) Only a coastal state may apply for and pursuant.to 25 CFR part 11. may also be
Federal financial assistance awards for used as match. Land. including
preacquisition. acquisition and I 921AI Aftwable costs, submerged lands already in the state's
development. operation and (a) Allowable costs will be possession. may be used as match to
management. and special education and determined in accordance with establish a national estuartne research
interpretation projects under subpart K applicable ON3 Circulars and guidance reserve. The value of matcls for then
Any coastal state or public or private forFederal financi4l assistance. the state lands will be calculated by
person may apply for Federal financial financial assistance agreement. these deter-6-ine the value of the benefits
assistance awards for special estuarine regulations. and,other Department of forgone. by the Mats. in the we of the
research or monitoring projects under Commerce and NOAA directiveL 71`116 land. as a result of now muktions that
subpart G. The announcement of term -costs" applies to both the Federal may be imposed by reserve designation.
opportunities to conduct research in the and non-Federal shares. The appraisal of the benefits forgone
reserve system appears on an annuat (b) Costs claimed an charges to the must be made by an independent
basis in the Federal Register. If a state is award must be reasonable. beneficial appraiser in accordance with Federal
participating in the national Coastal and necessary for the proper and appraisal standards pursuant to 15 CFR
Zone Management Program. the efficient administration of the financial' part 24 and 15 CFR part 21. A state may
applicant for an award under section assistance award and must be incurred initially use as match land valued at
315 of the Act @hall notily the stale during the award period. greater than the Federal share or the
coastal management agency regarding (c) Costs must not be allocable to or acquisition and development award.
the application included as a cost of any other Ito value in excess of the amount

Federal Register / Vol. 57, No. 138 / Friday, July 17, 1992 / Proposed Rules 31937

required as match for the initial award Appendix I to Part =I-Biogeographic Californian
may be used to match subsequent Classification Scheme 14. Southern California (Mexican border to
supplemental acquisition and Acadian Point Conception).
development awards for the national 15. Central California (Point Conception to
estuarine research reserve (see also 1. Northern Gulf of Maine (Eastport to the Cape Mendocino).
Sheepscot River). 16. San Francisco Bay.
921.20). Costs related to land 7- Southern Gulf of Maine (Sheepscot River Columbian
acquisition, such as appraisals, legal to Cape Cod).
fees and surveys, may also be used as 17. Middle Pacific (Cape Mendocino to the
match. V*rzinian Columbia River).
3. Southern New England (Cape Cod to 18. Washington Coast (Columbia River to
(3) Operation ' and Management Sandy Hook). Vancouver Island).
Awards. Generally. cash and in-kind 4. Middle Atlantic (Sandy Hook to Cape 19. Puget Sound.
contributions (directly benefiting and Hatteras). Great Lakes
specifically identifiable to operations 5. Chesapeake Bay. 20. Lake Superior (including St. Mary's
and management). except land. are Carolinim River).
allowable. 21. Lakes Michigan and Huron (including
North Carolinas (Cape Hatteras to Straits of Mackinac. St. Clair River, and Lake
(4) Research. Monitoring. Education Santee River). St. Clair).
and Interpretive Awards. Cash and in- 7. South Atlantic (Santee River to St. John's ZL Lake Erie (including Detroit River and
kind contributions (directly benefiting River). Niagara Fail&).
and specifically identifiable to the scope & East Florida (SL John's River to Cape 23. Lake Ontario (including St. Lawrence
of work), except land. are allowable. Canaveral). River@
Woo Indian Fiord
921.112 Amendments to financial 9. Caribbean (Cape Canaveral to Ft. Z4. Southern Alaska (Prince of Wales
Island to Cook Inlet).
assistance awards. Jefferson and south). 25. Aleutian Islands (Cook Wet to Bristol
Ia. West Florida (FL Jefferson to Cedar Bay).
Actions requiring an amendment to Key). Sub-Amdc
the financial assistance award. such as Loubitinign 26. Northern Alaska,(Bristol Bay to
a request for additional Federal funds. 12. Panhandle Coast (Cedar Key to Mobile Demarcation Point).
revisions of theapproved project budget 'Bay).
ixtension 22. Mississippi Delta (Mobile Bay to
or original scope of work. or c Insular
of the performance period must be Galveston). 27 Hawaiian Islands.
submitted to NOAA on Standard Form 28. Western Pacific bland.
23. Western Gulf (Galveston to Mexican 20. Eastern Pacific Island.
424 and approved in writing. border@ 111141102

0
NATIONAL ESTUARINE RESERVE RESEAR
Biogeographic Regions of the United S

Existing Reserve ON-
Reserve Needed >
SUB-AnCTIC Proposed P
> 26. 'FJORD
19 20 v

COLUMBIAN GR- KE
21
j 22

CALIFORNIAN

<428 13 AN
Ok

WIL0141 Cm 81110404

Federal Register / Vol. 57, No. 138 / Friday, July 17. 1992 / Proposed Rules 31939

Appendix 11 to Part ~~n-Typol~~gy of 2. Southeast Areas: Floral dominants well as shorebirds and waterfowl and serves
National Estuarine ~Re~"~~~l~ Reserves include My~ic~~ B~~~~h~~is~ and ~l~1ex. important roles~~n shore stabilization. flood
This typology system reflects significant 3. Western Areas: Adenoston~i~a. control. water purification. and nutrient
differences in estuarine characteristics that A~rcotyp~qhylos. and Eucalyptus are the ~transpor~t~*and storage.
are not necessarily related to regional dominant floral species. B. Coastal Swamps
location. The purpose of this type of C. Coastal Grasslands These are wet lowland areas that support
classification is to maximize ecosystem This area. which possesses sand dunes and mosses and shrubs together with large trees
variety in the selection of national estuarine coastal flats. has low rainfall ~q(~10 to 30 inches such as cypress or gum.
reserves. Priority will be given to important per year) and large amounts of humus in the
ecosystem types as yet unrepresented in the soil. Ecological succession is slow. resulting ~qC. C~o~astal.Man~qgroves
reserve system. It should be noted that any in the presence of a number of sera] stages of This ecosystem experiences regular
one site may represent several ecosystem community development. Dominant flooding on either a daily. monthly. or
types or physical characteristics. vegetation includes mid-grasses (2 to 4 feet seasonal basis. has low wave action. and is
Class I.-Ecosystem Types tall). such as A~qmmophi~ql~a. Ag~ropy~r~on. and dominated by variety of salt-tolerant trees.
Co~qlamovi~ql~qf~a~. tall grasses (5 to 8 feet tall). such as the red mangrove (Rhizopho~r~o
Group I-Shore~ql~ands such as S~qpor~ti~na. and trees such as willow m~ong~qie). black mangrove ~qfAv~icenni~a ni~t~ida~ql.
A. Maritime Forest-Woodland (So~qlix sp.)~. cherry ~q(P~ru~nus sp.). and and the white mangrove (L~o~guncu~ql~a~ri~a
This type of ecosystem consists of single- cottonwood ~q(Pu~pu~qlus de~qltoides~q). This area is r~acemos~o). It is also an important habitat for
stemmed species that have developed under divided into four regions with the following large populations of fish. invertebrates. and
the influence of salt spray. it can be found on typical strand vegetation: birds. This type of ecosystem can be found
coastal uplands or recent features such as 1, Arctic/Boreal: E~qlymus; from central Florida to extreme south Texas
barrier islands and beaches. and may be 2. Northeast/West: Ammophi~ql~d. to the islands of the Western Pacific.
divided into the following b~iomes: 3. Southe~a~st/Cu~qlf~- U~niolo~. and
1. Northern Coniferous Forest Blame: This 4. Mid-A~llan~tic/Cu~qlf~.~- S~qp~a~r~tin~a patens. D. Intertidal Beaches
is an area of predominantly evergreens such D. Coastal Tundra This ecosystem has a distinct bio~la of
as the s~~ka spruce (~qpice~o). grand fir (Ab~qies). This ecosystem. which is found along the microscopic animals. bacteria. and
and white cedar ~q(~qT~qhuja~q). with poor Arctic and Boreal coasts of North America. is unicellular algae along with macroscopic
development of the shrub and herb leyer~s. characterized by low temperatures. a short crustaceans. mollusks. and worms with a
but high annual productivity and pronounced growing season. and some permafrost. detritu~s-~qbased nutrient cycle. This area also
seasonal periodicity. producing a ~qlow. treeless mat community includes the driftline-communit~ie~s found at
2. Moist Temperate (Mesothermal) made up of mosses. lichens. heath. shrubs. high tide levels on the beach. The dominant
Coniferous Forest Biome: Found along the grasses. sedges. rushes. and herbaceous and organisms in this ecosystem include
west coast of North America from California dwarf woody plants. Common species crustaceans such as the mole crab (Eme~ri~t~o~q)~.
to Alaska. this area is dominated by conifers. include arctic/a~qlpine plants such as amphipods ~qlG~a~qm~qmer~qid~de~q). ghost crabs
has relatively small seasonal range. high E~qmpe~trum ~n~qi~qgru~qm and ~qBetul~d ~n~on~a~. the (Ocyp~ode~q). and bivalve mollusks such as the
humidity with rainfall ranging from 30 t~o 1~50 lichens C~a~tr~uri~o and C~ql~adoni~a~, and c~oquih~e ~q(D~o~n~ax) and surf clams (S~qp~i~su~ql~d ~and
inches. and a well-developed unders~tory of herbaceous plants such as P~o~ten~ti~ql~ql~d m~qa~ctr~o~q)~.
vegetation with an abundance of mosses and ~tr~qiden~t~a~to and ~qRu~qbus ch~o~qm~oe~qm~o~rus. E. Inter~t~qidal Mud and Sand Flats
other moisture-tolerant plants. Common species on the coastal beach ridges
3. Temperate Deciduous Forest Bi~ome~; This of the high smile desert include Drya~s These areas are composed of
biome is characterized by abundant. evenly ~qi~n~te~t~qy~ri~qfol~qi~d and Saxi~qf~r~a~ge oppo~si~ti~qfo~qlia. unconsolidated. high organic content
distributed rainfall. moderate temperatures This area can be divided into two main sediments that function as a short-term
which exhibit a distinct seasonal pattern. subdivisions: storage area for nutrients and organic
well-developed soil blots and herb and shrub ~1. Low Tundra: Characterized by a thick. carbons. M~acr~ophytes are nearly -absent in
layers. and numerous plants which produce spongy mat of living and undec~oyed this ecosystem. although it may be heavily
pulpy fruits and nuts. A distinct subdivision ve~q"~ta~tion. often with water and dotted with colonized by ben~thic diatoms.
of this blame is the pine edible forest of the ponds when not frozen; and di~no~qf~qla~qg~qgella~tes. filamentous blue~-green ~a~n~qd
southeastern coastal plain. in which only a ~Z H~i~2qo Tund~nr A bare area except for a green algae. and ch~aemo~synthet~ic purple
small portion of the area is occupied by sc~anty~-~qg~rowth of lichens and grasses~. with sulfur bacteria. This system may support a
climax vegetation. although it has large areas underlaying ice wedges forming raised considerable population of gastropods.
covered by edaphic climax pines. polygonal areas. bivalve& and po~qlych~aete~s. and may serve as
4. Broad-leaved Evergreen Subtropical a feeding area for a variety of fish and
Forest Blame: The main characteristic of this ~8qL Coastal Cliffs wading birds. In sand. the dominant fauna
biome is high moisture with less pronounced This ecosystem is an impo~r~qU~nt nesting site include the wedge sb~a~ql~qlD~o~na~x. the wallop
differences between winter and summer. for many ~s~ea and shore birds. It consists of P~ecten. tell~qin shells ~qTe~ql~qf~qi~n~a. the heart urchin
Examples are the hammocks of Florida and communities of herbaceous. ~qSr~amino~id~. or ~qEc~qh~qi~n~oca~rdiu~qm. the lug worm A~r~e~n~qico~ql~d.
the live oak forests of the Gulf and South low woody plants (shrubs. heath. etc.) on the sand dollar D~end~r~as~t~e~r. and t~qhe'~se~a pansy
Atlantic coasts. Floral dominants include top or along rocky fac~e~qi exposed to salt ~qf~qie~nil~ql~a~. In mud. faunal dominants adapted to
pines. magnolias. bays. hollie~s~. wild spray. There is a diversity of plant species low oxygen levels include the ~t~e~r~eb~e~qll~id
tamarind. strangler rig. gumbo limbo. and including MO~qML lichens. live~rW~O~r~IL and Amphitrite. the boring clam Ploydo~n. the
Palms. ~"h~i~qS~qh~er~" plant representatives. deep sea wallop P~ql~a~c~ap~ect~e~n. the quahog
B. Coast Shrubland~s Cr~aup ~4qH~.-Transi~t~qion Areas ~4qMe~rc~e~na~t~i~o, the ~e~c~qhiur~id worm ~8qU~r~echis. the
This is a transitional area between the A. Coastal Marshes mud snail Na~ssa~t~qiu~& and the ~s~a~ta cucumber
coastal grasslands and woodlands. and is ~8qT~8qh~0qy~qan~qe~q-
characterized by woody species with multiple Thew art w~qedand areas dominated by ~2qF~q. In~qt~qer~qt~qidal Algal Bads
stems a few centimeters to several meters, grasses ~0q(P~qo~qsce~qa~4q@ sedges ~0q(Cyper~qs~qceae~4q@
above the ground developing under the rushes (~8qJun~qc~qac~qe~qe~qe~0q@ cattails (Typh~qace~qse). and These are hard substrates along the marine
influence of salt spray and occasional sand other ~4qgr~qa~6qminaid sp~qe~00qd~qe~qs and is subject to edge that are dominated by ~qn~qu~qKros~qcopic
~ouri~al. This includes thickets. scrub. scrub periodic flooding by either salt or freshwater. algae. usually thallo~0qid~8ql~q. but also filamentous
savanna. he~sth~8ql~qan~8qds. and coastal chaparral. This ecosystem may be subdivided into: (a) or unicellular in growth form. This also
There is a great variety of shrubland Tidal. which is periodically flooded by either includes the rocky coast ~qtidepo~qols that fall
vegetation exhibiting regional ~qspecifici~qt~04qr~q. salt or brackish water (b) nontidal within the inter~qtidal zone. Dominant fauna of
~i. Northern Areas-. Characterized by ~0q(~8qf~8qt~qeshw~qa~qt~qt~qr); or ~6q1~qc) tidal freshwater. T~4qhe~6qn these areas am barr~qu~qi~qc~8ql~qe~qc mussels.
H~ud~so~nia~. various ~qerin~qac~qeou~qs~, species. and an essential habitats for many important periwinkles. anemones~q. and chi~qlon~qs. Three
thickets of ~4qMy~qr~0qic~qu~q. P~qru~qn~qu~qe~q. and Rosa. estuarine species of fish and invertebrates as regions are apparent;

319~40 Federal Reenter / Vol. 57. No. 1~38 / Friday. July 17. 1992 / Proposed Rules

Northern Latitude Rocky Sham: It is in eight basic types d~scussed~~be~iow will cover mollusks T~heodoxus neg~lectus and T~
this region that the community structure is most of the cases: cariosus. Although found throughout the
best developed. roe dominant ai~qg~al species 1. Exposed Coast: Solid rock formations or world. the high islands of the Pacific are the
include Chond~rus at the low tide level. Fucus heavy sand deposits characterize exposed only areas within the U.S. whore this system
and.~4~s~cop~qhy~ql~ql~ur~n at the mid-tidal level. and ocean shore fronts, which are subject to the can be found.
~a~n~i~n~ar~i~c and other keiplike algae just full force of ocean storms. The sand beaches B. Basin Structure
beyond the inte~"~ida~ql. although they can be are very resilient. although the dunes lying
exposed at extremely low tides or found in just behind the beaches are fragile and easily Estuary basins may resul! from the
~er~y deep ~l~idep~ools. damaged. ~qI~q%e dunes serve as a sand storage drowning of a river valley (coastal plains
Southern Latitudes: The communities in area. making them chief stabilizers of the ~- es~tua ~q@ the drowning of a glacial valley
this re~g~i~ondr~e reduced in comparison to ocean ~sho~refront. ~qf~qf~qjorc~ql~qL the occurrence of an offshore barrier
those of the northern latitudes and possesses 2. Sheltered Coast: Sand or coral barriers. (bar-bounded e~s~luary~q@ some tectonic process
algae consisting mostly of ~s~ingle-celled or built up by natural forces. provide sheltered (tectonic estuary). or volcanic activity
fi~l~mentour green. blue-green. and red algae. areas inside a bar or reef where the (volcanic estuary).
~~~~d small thal~ql~oid brown algae. ecosystem takes on many characteristics Of 1. Coastal plains estuary-. Where a
I Tropical and Subtropical Latitudes: ~qT~qhe confined waters-abundant marine grasses. drowned valley consists mainly of a single
~nter~lidal in this region is very reduced and ~qi~qih~ellfish. and juvenile fish. Water movement channel. the form of the basin is fairly
contains numerous c~qlacareou~s algae such as is reduced. with the consequent effects of regular. forming a simple coastal plains
~oro~qlitho~n and ~qLith~o~t~qh~a~qm~nion. as well and pollution being more severe in this area than estuary. When a ch~a~rt~ne~ql is flooded with
green algae with calcareous particles such as in exposed coastal areas. numerous tributaries. an irregular estuary
H~~hmedo. and numerous other greet red. 3. Bay: Bays are larger confined bodies of results. Many estuaries of the eastern United
and brown algae. water that are open to the sea and receive States are of ~8qW~e type.
Group ~qI~I~qI-Subme~r~qyed Bottoms strong tidal flow. When stratification is 2. Fjord: Estuaries that form in elongated.
pronounced. the flushing action is ~su~qgmented steep headlands that alternate with deep U-
A. Subt~ida~ql Ha~r~qdbo~ttoms by river discharge. Bays vary in size and in shaped valleys resulting from glacial scouring
This system is characterized by a type of shorefront. ~ are called ~qnor~qds. They generally possess
consolidated layer of solid rock or large 4. Emb~oyment; A confined coastal water rocky floors or very thin veneers of sediment.
pieces of rock (neither of biotic origin) and is body with narrow. r~i~e~s~tr~qic~ied inlets and with with deposition generally being restricted to
found in association with ~qpeom~o~rph~ol~o~qg~ical a significant ~qf~qi~v~i~s~qhw~a~te~r inflow can be the head where the main river enters.
features such as submarine canyons and classified as an emba~qym~e~nt. These areas, Compared to total ~qf~qiotd volume. river
fjords and is usually covered with have more re~st~ir~qic~ted inlets than boys~. are discharge is small. But many fiords have
assemblages of sponges. sea fans. bivalve& usually smaller and shallower, hove low ti~c~qi~al restricted tidal ranges at their mouths. due to
hard corals. tuni~c~a~t~es~. and other attached act~i~qm and an sub~qj~ec~It to ~s~e~ci~t~im~en~t~at~i~o~r~t~. ~Si~ql~qlL or up~r~e~schin~qg sections of the bottom
organisms~. A ~s~qig~i~ti~qf~qi~can~t -feature of estuaries 5. Tidal R~i~v~qw. The lower reach of a coastal which I t ~qf~qi~e~s~, movement of water. often
in many parts of the world is die oyster reef, ~qim~qi
river is referred to as a tidal river. The making river flow ~qUu~qge with respect to the
a type of ~subtid~al ~qh~ard~qbo~t~tom. Composed of coastal water segment extends from the ~se~a tidal prism. The deepest portions are in the
a s~emb~qla~qg~e~s of organism (usually b~iva~qlv~e~e~qL or estuary into which t~qhe river discharges to,
it is usually found near an estuary's mouth in upstream reaches~. where maximum depths
a point as far upstream as there is ~s~i~qg~n~i~2qf~2qf~2qic~qA~nt can range from ~OW m to ~22~0qM m. while a
a zone of moderate wave action. salt content. salt content to the water. forming a salt ~qI~qr~o~m~i~L depths usually range from 40 m to 150 m.
and turbidity. If light levels are sufficient. a A ~a~qm~ob~qt~qm~t~k~qm of ~qb~d~al action and freshwater ~& Barbou~n~qd~e~qd E~ntua~r~q3~r Theme result ~q&~q=
covering of microscopic and attached outflow makes ~qf~qid~el. ~0 ~qm w~ell-flush~ad. T~qhe of ~q. ~. ~qb r. ~9
macroscopic algae. such as kelp. ~i~s~s~ay also be ffshor~e arrie .~0q6
found. tidal river b~a~m~i~n~-~qmy be a s~i~n~spl~e c~qhan~i~n~8qd or a as a ~qb~o~qm~2qA ~s~qa~m~i~nd~. a line of barrier islands.
complex of ~tr~ibu~t~er~i~e~s~. snub associated reef f~o~u~n~a~d~o~am. a ~qU~n~e of ~m~ecra~tin~i~e c~qi~s~brim~. or.
~1~~ Subtidal ~qSoft~qbot~to~rn~e ~emb~oyments. mar~shf~r~on~t~s. tidal flame~. ~m~i~n~cl a the ~su~qb~sid~qi~qi~ag ~w~*~qm~s~qw~o of a deltaic ~qi~t~8q*~*~- T~qh~e
Major characteristics of ~qt~h~qis ecosystem are var~qie~6qV of others~. b~e~a~u~e ~qi~m, ~G~qE~&~qM ~qP~qW~U~G~qU~qW ~qM~qp~o~o~n~qd 4~9 low ~qU~8q&
an unconsolidated layer of fine par~ti~c~q4es of ~6. ~qL~a~qgoo~qm L~A~q@~q@ am confined coastal and is ~m~ado~m~e~qd by a ~cb~qm~n of ~e~qf~qf~m~qho~s~e b~er~s, ~4~w
silt. sand. clay. and gravel. high hydrogen bodies ~o~qf won with restricted inlets ~to ~qd~qw bam~qw islands~. I I &I i~n~t~erv~a~ql~m~-~qb~qy m~i~qd~e~t~i~m,
sulfide levels, and anaerobic c~andi~ttons often sea and without significant ~qf~ir~a~i~s~qhw~i~s~e~e~ir These, Ism my be ~a~qf~qt~qb~er ~qd~ep~o~o~qd~2q"~o~qf~qf~s~qh~o~s~t~i~m
existing below the surface. Ma~cr~ophy~t~e~s am inflow. Walter circulation i~s l~qi~n~s~i~t~s~i~2qt revisiting or may be ~ic~t~a~s~t~8q" dunes ~t~qh~a~il~l how bottom
either sparse or absent~. although a layer of in a poorly ~qS~m~ob~ad. r~allati~v~a~~qly Neonatal body ~qi~so~ql~qa~s~s~q! by cannot ~a~qm ~qI~2q" ~r~qi~s~qm ~-
ben~h~ic micr~oal~qgae may be present if ~qH~0q* of water. S~e~qd~qim~en~t~a~qbo~i~s is rapi~c~q! with a ~4qV~s~m~q* ~4. Tectonic ~qE~s~t~a~qm~0qp Theme an ~c~o~m~i~s~t~al
levels a~re sufficient. ~qI~q%e fa~v~in~a~ql community is potential for basin shoaling~. Sham am ohm indentures ~2q" how - I ~qd~u~su~qall~s ~i~sc~u~s~qi~c
dominated by a divers population or depo~e~qf~qt Sandy sloping and marshy. ~qp~r~q@ such as ~s~qu~qp~qp~a~qg~e alum a ~qA~V~2qA limits
feeders including po~t~qlych~i~m~e~t~e~s. bivalves. and 7. Perched Coastal Wetlands: Unique to (~qS~e~a ~qF~r~i~mm~ici~s~c~i~a B~a~qp)~, folding, or ~q@~qwt of
burrowing crustaceans~. Pacific Islands~. this w~etl~a~nd type. found ~' the ~ear~qi~qk~s ~k A ~i ~o~6qf~6qf~6qi~qn with a Won ~i~nfi~ew,
C. Subtidal Plants above se~a level in volcanic crater re~n~t~r~i~an~t~s~. of ~qh~a~s~qhw~a~s~s~i
This system is found in relatively shallow forms as a result of poor drainage ~, ~qL V~el~v~a~8qd~c~qE~qi~at~u~s~tr~8qy ~q1~q11~m~e~me coastal bodies
water (less than 8 to 10 ~qme~t~er~s~i) below mom ch~ar~act~er~qist~qi~qm ~of the crater rather than from of op~e~e water. a Moak of Volcanic Processes~.
low tide. It is an area of ~extr~an~i~t~e~qly h~qi~8qo ~s~ed~qli~qm~e~nt~at~qI~a~L Floral assemblages exhibit are depressions~, or c~i~c~a~m~er~s, dot base direct
primary production that provides food and di~s~t~qin~e~t zonation while the faunal and/or ~' I ~, ~q=~m~m~e~c~qb~q@~v~qd~2q*~qd~qw
refuge for a diversity of faunal groups~. con~e~qd~t~o~m~i~n~t~s may include freshwater. ocean and m~ay or may not have surface
especially juv~e~r~ti~qle and ~adu~qtt fish. and in brack~.i~sh~. and/or marine ~qF~o~H~n ~qEx~am~qp~qhr continuity with ~str~oa~m~m~a, ~qT~qb~qw ~qfic~ir~r~i~qn~qd~o~n~s~;
some regions. manatees and sea turtles. Aum~s ~a Island American S~e~qmo~s~t. are unique to island areas of v~o~qlc~i~s~c~i~ql~e origin.
Along the North Atlantic and Pacific coasts~q. & ~4qA~qn~qc~2qh~qi~qm~2ql~0qi~qne System Ile" emu coastal
the ~se~qagra~qs~qs Z~qo~qs~qte~qr~qa marina predominates~q. In "P~qO~6q"~qr~qe~qs of brackish water form in lava ~2qC~q. ~8qk~20q" Type
the South Atlantic and Gulf co~qm~qi~qs~qt areas~q. d~qop~6qm~q@~0qM~qo~6qm or elevated f~qa~qi~qs~qe~0qll reek have blob in ~qw~qa~qd~qe~6qm am on ~0qi~qn~qe~qm~4qor~qa~2ql part
~qT~qh~o~qla~qs~qs~qi~qa and D~0qi~0qpl~qan~12qd~qi~qsr~qa ~qpr~qod~qom~qi-~qt~qe. The o~qnlya A top on, OR ~0qi~qnt~2qh~qe~qoc~qi~qs~qo~qn. ~q- of the I I as they
grasses in both am&* support a ~qn~qu of but ~qob~qs~qe~qr Odell ~6qt~qact~0qm~0qOo~qO~qL D~0qi~12qf~12qf~0qa~24qf~24qt boom r~qe~4qgu~qila~qt~qt~qL~qe~qs~q, a ~qs~qa~qir~qe~qmi~qn ~qt~2qb~qe ~8qd~qi~qm~ir~qm~qi~qt~0qy mid
epiphytic o~qr~4qga~qni~qsm~qa. true ~qe~qs~qt~qu~qs~qtri~qe~qs in having so ~qo~qur~8qf~qec~qt~qo ~qco~qn~0qd~qi~qoul~qt~4qy ~0qma~4qg~qol~qi~ql~qe~8qd~i~qm ~qa~2qd ~0qdd~qed ~qe~qm~qc~8qb~qa~qv~4q@~qL ~q1~8q1~8qh~qe I ~0qg 1 of
with ~qs~qe~ql~0q@ Or ~qO~0qM~qI~qL thin systems is m~0qix~0qi~qm~qi~4qg~q. mind ~qv~qa~2qb~0q@ ad - I I ~qID ~8qd~0qw men~q.
CLASS 1~4q5~6q-~4qP~8qh~0qy~qs~4qic~qal ~12qC~6qm~qa~2qd~6qw~4qk~08q" cha~qv~qoc~qi~qa~qr~0qk~qn~qe~8qd by a distinct biotic community These an ~8qf~qew ~6qm~q@~24qW types of ~qil~qi~qa~8ql~qa~qt~qi~qm:
Croup ~0qI~4q-~08qG~qe~qa~8ql~32q*~qc d~qa~qm~qa~qinat~qed. by ban" a~6ql~qg~qs~qr~q@ ~q&~qucb as ~qL U~qnr~qn~qe~qf~qt~qi~qc~qk~qo~08q& As ~qa~qs~qi~qm~8qmy with a. wide.
I~8qthis~qt~qoc~2qloniu~qm~qs. the~q, ~6qni~qm~qm~qural ~qa~qr~qe~qcru~qsti~00qm ~qU~qn~6qM~qg~qW~0qi~2q&~qA~2qd ~08qW~2qO ~qt~0qg~4qp~4qbCa~8qb, best slow convenes~q.
A. Basin Type ~8qS~qc~8ql~qu~qm~qo~qo~08q*~qs~qix. ~qa~qnd ~4qa~qs~qe vascular ~qp~04qk~qa~qt R~qopp~qi~qa no ~qsi~0qgn~qific~qi~qam~qm~qi~qt ~qo~2qw~8qb~04qW~qw~qm~6qw~2qw~04qA *a
Coastal water boom occur In a variety of m~qari~qt~qi~qo~qm~qe. Characteristic~q: ~8qf~qo~qu~qn~qs. SO ~, l~qe~8qd~0qh fall slim ad ~qo~6q@ waves ~qsm~qa~8qd~q.l~qe~qs~qe~08qd
shapes. sizes~q, depths~q. and ~qa~0qpp~qo~0qw~0q=~6q=~qL ~4q7~4q1b~qe a blob doom of ~qa~qnd~qe~qm~qa~00qw~qit~0qy~q. ~0ql~qi~qn~qcl~qud~qi~qs the di~qaturba~qn~qo~qm~qm~qe I I I serve to ~qx~qm~04qW~32qf~32qt So

Federal Register / Vol. ~57, No. 138 / Friday. July 17~~ 1992 / Proposed Rules 31941

shoreline. These estuaries are partially Group ~1~1-Hyd~~~gr~phic variation in runoff is dependent upon the
mixed. as the open mouth Permits the A. Circulation nature of the soil (porosity and solubility~q).
incursion of marine waters to considerable degree of surface slope. vegetational type ~dnd
distance$ upstream. depending on the tidal Circulation patterns are the result of development. local climatic conditions. and
amplitude and stream gradient. combined influences of freshwater inflow. volume and intensity of precipitation.
Z. Restricted: Restrictions of estuaries can tidal action. wind and oceanic forces. and 2. Subsurface water. This refers to the
exist in many forms: Bars. barrier islands. serve many functions: nutrient transport. precipitation that has been absorbed by the
spits. sills. and more. Restricted inlets result plankton dispersal. ecosystem flushing. soil and stored below the surface. The
in decreased circulation. more pronounced salinity control, water mixing. and more.
longitudinal dnd vertical salinity gradients. 1. Stratified: This is typical of estuaries distribution of subsurface water depends on
and ~~or~ rapid sedimentation. However, if with a strong freshwater influx and is local climate. topography. and the porosity
the estuary mou~f~l~q@ is restricted by commonly found in bays formed from and permeability of the underlying soils and
depositional features or land closures, the -~qd~rowne~t~qi- river valleys. fjords. and other rocks. There are two main subtypes of
incoming tide may be held back until it deep basins. There is a net movement of surface water.
suddenly breaks forth into the basin as a freshwater outward at the top layer and a. Vado~se water: This is water in the soil
tidal wave, or bore. Such currents exert saltwater at the bottom layer. resulting in a above the water table. Its volume with
profound effects on the nature of the ne~t outward transport of surface organisms r~qbspe~c~t to the soil is subject to considerable
substrate. turbidity. and biot~e of the estuary. and net inward transport of bottom fluctuation.
~. Per~na~nen~t~: permanent inlets are usually Organisms. b~. Groundwater: This is water Contained in
opposite the mouths of major rivers and - ~Z Non~-stratified: Estuaries of this type are the rocks below the water table. is usually of
permit river water to flow into the sea. found where water movement is sluggish and more uniform volume than v~ado~se water. and
4. Temporary (Intermittent): Temporary flushing rate is low. although there may be generally follows the topographic relief of the
inlets are formed by storms and frequently sufficient circulation to provide the basis for land. being high Wow hills and sloping into
shift Position, depending on tidal flow. the a high carrying capacity. This is common to valleys.
depth of the sea. and sound waters. the shallow embaymen~ts and bays lacking a
frequency Of storms. and the amount of good supply of freshwater from land Group III-Chemical
li~~oral transport. drainage. A. Salinity
D. Bottom Composition 3. La~qg~oona~qh An estuary of this type is
characterized by low rates of water This reflects a complex mixture of salts. the
The bottom composition of estuaries movement resulting from a lack of significant most abundant being sodium chloride. and is
attests to the vigorous. rapid. and complex freshwater influx and a lack of strong tidal a very critical factor in the distribution and
sedimentation processes characteristic of exchange because of the typically narrow maintenance of many estuarine organisms.
Most coastal regions with low relief~. inlet connecting the lagoon to the sea. Based on salinity. there are two basic
Sediments are derived through the hydrologic Circulation. whose major driving force is estuarine types and eight different salinity
Processes of ~aros~i~o~m tr~anspor~L and wind. is the major limiting factor in biological zones (expressed in parts per thousand-pp~t~q).
deposition carried on by the sea and the productivity within lagoons. 1. Posit~qi~q@e estuary: ~qT~qhis is an estuary in
stream.
L Sand;- Near estuary mouths. where the R rides which the freshwater influx is sufficient to
maintain mixing. resulting in a pattern of
Predominating forces ~of the sea build spits or This is the most important ecological factor increasing s~a~qil~qi~n~ity, toward the estuary mouth.
other depositional features. the shore and in an estuary. as it affects water exchange It is characterized by low oxygen
substrates of the estuary are sandy. The and its vertical range determines the extent
bottom sediments in this area are usually concentration in the deeper waters and
of tidal flats, which may be exposed and considerable organic content in bottom
coarse. with a graduation toward finer submerged with each tidal cycle. Tidal action, sediments
particles in the head of the estuary. In the against the volume of river water discharged
head region and other zones of reduced flow. into an estuary results in ~a complex system ~qL Negative estuary- This is found in
fine silty sands are deposits& Send whose properties vary according to estuary particularly a~nd regions. where estuary
deposition occurs only in wider ~or deeper ~s~aucture as well as the magnitude of river evaporation may exceed freshwater inflow.
regions where velocity is reduced flow and tidal range. rides are usually resulting in increased s~i~alin~qity in the upper
~ Mud: At the best level of a stream near described in terms of their cycle ~ar~8qw their part of the ba~si~qm especially if the~es~tuary
its mouth. ~t~he bottom is typically composed relative heights. In t~qh~e United S~tat~illL tide mouth is restricted so that ~qf~qidal flow is
of loose muds. silts. and organic detr~qitu~a ~q" a height is reckoned an the basis of average inhibited. ~q1~q1h~qi~qne are typically very salty
result of erosion and transport from the upper low t~qi~qd~L which i~s referred ~1~0 as datum. ~qT~qh~e (hyperh~sl~ql~ne~q@ moderately oxygenated at
stream reaches and organic decomposition. tides. although complex. fall into three main depth. and possess bottom sediments that are
Just inside the estuary entrance. the bottom ~c~e~t~e~ql~o~r~qi~e~s~: poor in organic content.
con~~m~ considerable quantities of sand and ~i~L. D~qiw~na~qk This refers to a daily change in 3. ~qS~a~qf~qt~r~iity zones (expressed in pp~i~ql:
mud. which support a rich fauna. Mud flats. water level that can be observed along the a. Hyp~erha~qh~n~e-~qg~rea~te~r than 40 ppL
commonly built up in estuarine ba~si~n~L are ~s~qho~r~el~qli~v~i~e. Them is one high tide and one low b. Eu~qba~qli~n~e ~4 pp~t to 30 ppt.
composed of loose. coarse. and fine mud and tide per ~qd~ay~. c. Mixhaline~q-~0qW ppt to ~q0~.~q5 ppL
sand. often dividing the original channel. ~q2~. S~amidi~ur~na~qk This refers to a twice daily (1) M~qixoeuhalin~e~-~-~qg~i~reater than 30 ppt but
3. Rock- Rocks usually occur in areas rise and fall in water that can be observed ~qI~qm than the adjacent ~e~2q"ine sea.
where the stream nos rapidly over a steep along the shoreline~. (2) P~ol~qly~qh~a~ql~qi~n~e-~8qW ppt to 1~q8 ppt.
gradient with its co~s~irs~e materials being & Wind/Storm Tides: This refers to (3) M~e~sol~iali~n~e-~1~8 ppt to 3 ppt.~'
derived from the how elevations whom die fluctuations in water elevation to wind a" (4) ~8q011~1gohali~n~e~q-~3 ppt to 0.5 pp~i.
stream ~~I~P~O is ~qg~qm~&~t~O~f~- This ~qIa~8q*~q" fragments storm events. where influence of lunar tides d. Lim~i~n~efic: Less than ~q0~q.~q5 ppL
are usually found i~qn~qshal~2qli~qew are" near the is Islas~q. ~08qR ~4qP~2qf~4qf Regime.
stream ~qM~O~u~8qd~qL ~q. ~16qQ ~2qF~qr~4qu~6qh~6qw~qm~qt~qo~qr
4. Oyster sh~qe~2ql~2qk Throughout a major p~0qatic~4qa This is Indicative of ~qI~qtb~qe mineral richness of
Of the WO~1~6qK ~qt~6qh~qe oyster ~4qf~4qt~16qd ~0qi~qs ~qO~qrA Of the A~4qm~0qmi~24qf~24qt to nearly all the ~2qd~qe~2qf~4qli~qt~qi~4ql~4qdo~qn~qs estuarine w~qa~qtm and ~2qf~qatl~qe into Own main
most s~8qo~qdf~8qica~qnt ~2qf~qe~qstur~qs~qi~qs of estuaries. usually ~qadv~qa~qnc~qe~qiL it Is i~qn~2ql~qi~qe~qr~qa~qnt that all estuaries categories:
being found new the mouth of the estuary in ~qn~qe~qsdl ~0qh~0qu~6qbw~qa~qt~qe~qr. which is drained from the 2. Acid: Waters with a PH of ~2qI~qs~0q" than ~0q5.~0q3.
a zone of ~n~qi~qc~qk~2ql~qe~0qm~qi~qt~qe wave action. salt c~qo~qnt~qe~qn~0qL land and measurably dilutes seawater to ~qL C~0qircum~qne~qut~qra~2qk A condition whom the PH
and turbidity. It is often a maim factor in cr~qe~qst~qe a brackish condition. Freshwater ranges from 5~q.~q5 to ~q7.4.
modifying estuarine current system and mum an estuary as ~qn~qu~6qm~6qf~6qf from the land ~6q& A~2qU~qL~qal~8qline: Waters with a PH greater than
~s~ed~im~e~nt~a~bo~qn, and may occur on an either from a surface and/or subsurface ~q7~q.4.
~e~ql~o~n~qSat~ed island or p~qe~qn~qu~qtsula oriented across source.
the main ~cu~qr~6qm~qa~qL or may develop parallel to ~qL Surface wa~qt~qe~qe. This ~04qU water flowing Over ~6ql~8qF~8qR Doc. ~0q92-1~6q0~0q6~0q8 Filed ~q7~q-~q1~q6~q-~00qM 8~q-45 ~qam~8ql
the direction of t~2qh~qe ~qC~0q=~q'~qD~qt~q. On round in the form of streams. ~8qL~qAc~qa~2ql 1111L~qU~qN~qG, ~qQ~6q= ~q3~q9~q1~q6~q-~8q04~q0

Friday
JOV 17,1992

Pan VI

Department of
Commerce.

NaflwW Ocaunic and Abumpheft
Adll*

15 CFR Part 921
Usgonal EsWarirw Rome. ch Resme
Systm Prowam Regid-bons; Proposed
Rt"

I .

-v
,Ak
@'W' 3.
Part 922
National Marine Sanctuary
Program

Pt. 922 15 CFR Ch. IX (1-1-92 Edition)

(1) Provide enhanced resource pro-
PART 922-NATIONAL MARINE tection through comprehensive and
SANCTUARY PROGRAM coordinated conservation and manage-
ment of National Marine Sanctuaries
Subpart A-General that complements existing regulatory
authorities;
see. (2) Support. promote, and coordi-
922.1 Mission, goals, and special policies. nate scientific research on, and moni-
922.2 Definition&. toring of, the site'-specific marine re-
922-10 Effect of national marine sanctuary sources of the National Marine Sanc-
designation.
922.11 Access and valid rights. tuaries;
(3) Enhance public awareness, un-
Subpart B-Site Evaluation List(SEL) derstanding, appreciation and wise use
922.20 General. of the marine environment; and
922.21 Periodic reevaluation, delegations. (4) Facilitate, to the extent compati-
and additions. ble with the primary obJective of re-
922.22 Addition of sites with historical source protection, multiple uses of the
qualities of special national significance. National Marine Sanctuaries;
(c) To the extent consistent with the
Subpart C Designation of National Marine policies set forth in Title III of the
Sanctuaries Act. in carrying out the Program's
922.30 Selection of active candidates. mission and goals:
922.31 Development of designation materi- (1) Particular attention will be given
als. to the establishment and management
922.32 Congressional prospectus. of marine areas as National Marine
922.33 Designation determination and find- Sanctuaries for the protection of the
ing. area's natural resource and ecosystem
922.34 Designation. values; particularly for ecologically or
922.35 Coordinations with states. economically important or threatened
Subpart D-Implementation After Designation species or species assemblages, and for
offshore areas where there are no ex-
922.40 General. isting special area protection mecha-
922.41 Enforcement procedures. nism ;
Appendix 1 To PART 922-NATIONAL Marine (2) The size of National Marine
Sanctuary Program Site Indentifica- Sanctuaries, while highly dependent
TioN and selection Criteria for on the nature of the sites' resources,
Marine Areas With qualities of spe-
cial NATIONAL Significance will be no longer than necessary to
Authority Pub. L. 98-498 (16 U.S.C. ensure effective management;
1431-1439). (3) Management efforts will be co-
ordinated to the extent practicable
SouRe: 53 FR 43806. Oct. 28. 1988, unless with other countries managing pro-
otherwise noted. tected marine areas;
(4) Program regulations, policies.
Subpart A-General standards, guidelines. and procedures
under the Act concerning the identifi-
� 922.1 Mission, goals, and special policies, cation, evaluation, registration, and
(a) In accordance with the standards treatment of historical resources shall
set forth in Title III of the Marine be consistent, to the extent practica-
Protection. Research, and Sanctuaries ble. with the declared national policy
Act of 1972 (Act), the mission of the for the protection and preservation of
National Marine Sanctuary Program these resources as stated in the Na.
(Program) is to identify, designate and tional Historic Preservation Act of
manage areas of the marine environ- 1966 (NHPA), 16 U.S.C. 470 et sm., the
ment of special national significance Archeological and Historical preserva-
due to their conservation. recreational, tion Act of 1974. 16 U.S.C. 469 et sea
ecological, historical, research, educa- and the Archeological Resources Pro
tional, or esthetic Qualities. tection Act of 1979 (ARPA), 16 U.S.C.
(b) The goals of the Program am to 470as et sea. The same degree of regul
cam out the mission to: latory protection and preservation

116

National Oceanic and Atmospheric Adm., Commerce � 922.10
planning policy extended to historical mentality of the Federal government,
resources on land shall be extended, to of any state or local unit of govem.
the extent practicable, to historical re- ment, or of any foreign government.
sources in the marine environment (h) "Regional Fishery Management
within the boundaries of designated Council" means any fishery council es.
National Marine Sanctuaries. The tablished under section 302 of the
management of historical resources Magnuson Fishery Conservation and
under the authority of the Act shall Management Act (16 U.S.C. 1801 et
be consistent, to the extent practica- seq.).
ble, with the Federal archeological (I) "Secretary" means the Secretary
program by consulting the Uniform of the United States Department of
Regulations, ARPA (43 CPR Part 7). Commerce or his or her designee.
the Secretary of the Interior's Stand- @ (J) "Site Evaluation List" (SEL)
ards and Guidelines for Archeology means a list of selected natural and
and Historic Preservation (48 FR historical resource sites selected by
44716, Sept. 29, 1983) and other rele. the Secretary as qualifying for further
vant Federal regulations. evaluation for possible designation as
9 922.2 Definitions. National Marine Sanctuaries.
(a) "Act" means Title III of the W "State" means each of the sever-
Marine Protection, Research, and al states, the District of Columbia, the
Sanctuaries Act of 1972, as amended, Commonweath of Puerto Rico, the
16 U.S.C. 1431 et seq. Commonweath of the Northern Mari-
(b) "Active Candidate" means a site ana Islands, American Samoa.' the
selected by the Secretary from the United States Virgin Islands, Guam
Site Evaluation List for further con- and any other commonwealth, terri-
sideration for possible designation as a tory, or possession - of the United
National Marine Sanctuary. States.
(c) "Historical" means possessing (1) "Subsistence use" means the cus-
historical, cultural, archeological, or tomary and traditional use by rural
paleontological significance, including residents of areas near or in the
sites, structures, districts, and objects marine environment for direct person-
significantly associated with or repre- al or family consumption as food, ahel-
sentative of earlier people, cultures, ter, fuel, clothing, tools or transporta-
and human activities and events. tion; for the making and selling of
(d) "Marine environment" means handicraft articles; and for barter, if
those areas of coastal and ocean for food or nonedible Items other than
waters, the Great Lakes and their con- money, if the exchange Is of a limited
necting waters, and submerged lands and noncommercial nature.
over which the United States exercises 1922.10 Effect of national nuuine sanctu-
jurisdiction. consistent with interna- ary designation.
tional law.
(e) "National historic landmark" The designation of a National
means a district, site. building, struc- Marine Sanctuary, and the regulations
ture or object designated by the Secre- Implementing it, are binding on any
tary of the Interior under the Nation- person subject to the jurisdiction of
al Historic Landmarks (NHL) Program the United States. Designation does
(36 CFR Part 65). not constitute any claim. to territorial
(f) -National Marine Sanctus"" jurisdiction on the part of the United
means an area of the marine environ- States for designated sites beyond the
ment, as defined above In subsection U.S. territorial sea, and the regula-
(d), of special national significance due tions Implementing the designation
to its resource or human-use values, shall be appUed in accordance with
which is designated to ensure its con- generally recognized Principles of
servation and management. international law, and in accordance
(g) ,person,, means any private indi- with treaties. conventions, and other
vidual, partnership. corporation. or agreementa to which the United
other entity; or any officer. employee. States Is a party. No regulation ab-11
agent, agency, department, or Instru- apply to a person who is not a citizen.

117

� 922.11 IS CFR Ch. IX (1-1-92 Edition)
national. or resident alien of the trOls May only be imposed after desig-
United States, unless In, accordance nation, as provided for in 1922.34.
with-
(a) Generally. recognized principles 1922-21 Periodic reevaluation, deletions.
of international law; and additiom
(b) An agreement between the (a) The Secretary shall reevaluate
United States and the foreign state of any site remaining on the SEL for five
which the person is a citizen; or years (December 31, 1988, 'for the
(c) An agreement between the original sites on the SEL and a sepa-
United States and the flag state of the rate five-year review period, beginning
foreign vessel, if the person is a crew- with the date of their addition, for
member of the vessel. any sites added to the SEL).
6 922.11 Access and valid rights. (b) If. after a five-year reevaluation,
the Secretary determines that a
Leases, permits, licenses, or rights of marine site on the SEL Is no longer
subsistence use or access either in ex- highly Qualified in accordance with
istence on October 19. 1984 (the date the Program's mission and goals and
of enactment of the Marine Sanctuar. the site identification and selection
ies Amendments of 1984 (Pub. L No. criteria, the Secretary shall publish a
98-498)), with respect to any National notice in the F%zDzRAL RzGxsTzR of an
Marine Sanctuary designated before intent to delete the site from the SEL
that date, or In existence -In the date and provide a 45-day period for public
of designation of any National Marine comment.
Sanctuary designated after October W As sites are designated as Nation-
19, 1984, shall not be terminated by al Marine Sanctuaries, or rejected
the Secretary. The Secretary, may, from further consideration, they will
however, regulate such leases, permits, be removed from the SEL Rejected
licenses, or rights consistent with the sites will not be replaced on the SEL
purposes for which the Sanctuary was (d) If. after a five-year reevaluation,
designated. the Secretary determines that the new
sites should be considered for addition
Subpart B-She Evaluation List (SEL) to the SKL. the Secretary shall pub-
lish a notice in the MmnL4i RzGxsT=
1922.20 General. at least 12 months prior to initiating a
(a) The Site Evaluation List (SEL) new site identification process. After a
was established in 1983 as a compre- 90-day period Is provided for public
hensive list of marine sites with high comment on the Secretary's determi-
natural resource values that are nation. the Secretary shall reevaluate
highly qualified for further evaluation the prior BEL development process
for possible designation as National and publish a notice in the MmzRAL
Marine Sanctuaries. Appendix 1 de- RzarsTm requesting public comment
scribes that list, how it was established on that process and any proposed
and its purposes. In addition. Subpart modifications. if necessary.
F of Appendix I has been revised to (e) Except as provided in 1922.21(d)
establish identification and selection and 1922.22, the Secretary will consid-
criteria for revising the list to include er recommendations of potential addi-
marine sites with historical qualities tional sites to the SEL only if such
of special national significance. sites are Important new discoveries or
(b) Only sites on the SEL may be if substantial new Information previ-
considered for subsequent review as ously unavailable establishes the na-.'
active candidates for designation.' tional significance of a known site.
(c) Placement of a site on the SEE4 The Secretary may determine, aftiff
or selection of a site from the BEL as an Opportunity for public review and
an active candidate for designation as comment. whether such sites meet the
provided for in 1922.30, shall not sub- selection criteria and are highly quali-
Ject the site to any regulatory control fied in accordance with the Program's
under the Marine Protection. Re- minion and gosb- Qualified sites will
search and Sanctuaries Act. Such con- be added to the SEL for further eval.

118

National Oceanic and Atmospheric Adm., Commerce � 92L31
ustion as National Marine Sanctuar- be published in the MwmuL RzGlsT=
ies, consistent with the procedures set and in newspapers in the areacs) of
forth in these regulations. local concern. A brief written analysis
922.22 Addition of sites with histori describing the site shall be provided.
W The Secretary, at any time. may drop
qualities of special national signifi. a site from consideration if the Secre-
cance. tary determines that the site does not
(a) The Identification and selection meet the. designated standards and cri-
criteria set forth in Appendix 1 shall teria set forth In the Act.
be used to Identify areas of the marine
environment possessing historical 9 922.31 Development of designation matk-
(jualities of special national signifi- rialL
cance. The Secretary shaU establish a (a) After selecting a site as an Active
group of experts to be called the Candidate, the Secretary shall prepare
Marine Historical Resource Evaluation a draft designation document, includ-
Team to recommend a list of marine ing terms of the proposed designation,
sites with historical values of special a draft management plan to imple-
national significance for inclusion in ment the proposed designation and
the SEL The Marine and Estuarine any proposed regulations needed to
Management Division of the National implement the terms of the proposed
Oceanic and Atmospheric Administra- designation. The draft designation
tionshall direct and coordinate the ac- document shall be prepared in consul-
tivities of the Team. tation with the House Merchant
(b) After analysis of the historical Marine and Fisheries Committee and
sites recommended by the Marine His-
torical Resource Evaluation Team. the the Senate Commerce, Science, and
Secretary shall publich a notice In the Transportation Committee; the Secre-
PwzFAL Rzrxsmm of the historical taxies of State, Defense, Transporta-
sites proposed for placement on the tion, and the Interior, the Admini
SEL and shall afford the public at tor of the Environmental Protection
least 90 days in which to comment. On Agency, and the heads of other inter-
the basis of the identification and Be- ested Federal agencies; the responsible
lection criteria in Appendix 1. and officials or relevant agency heads of
after full consideration of public com- the appropriate state or local govern-
ment, the Secretary shall select those ment entities, including coastal zone
sites which are qualified for placement management agencies, that will or are
on the SEL because of their historical likely to be affected by the establish.
qualities of special national signifi- ment of the area as a National Marine
c&nce, and shall publish a notice in the Sanctuary; the appropriate officials of
F'=zaAL Rzc;xsTza of the selected sites. any Regional Fishery Management
written documentation shall be pre- Council established by section 302 of
pared describing the values Qualifying the Magnuson Act which may be af-
each site for placement on the SEL fected by the proposed designation;
and other interested persons.
Subpart C-Designation of National (b) The terms of the proposed desig-
Marine Sanctuaries nation shall include the geographic
area to be Included within the sanctu-
1922.30 Selection of active candidates. ary; the characteristics of the area
(a) The Secretary shall, from time to that give it conservation. recreational.
time, select a limited number of sites ecological, historicaL research, educa-
from the SEL for Active Candidate tionsa, or esthetic values; and the
consideration based on & Preliminary types of activities that would be sub-
assessment of the designation stand. ject to regulation in order to protect
ards set forth in 1922.33. those cha teristics. Following deals-
(b) Selection of a site an an Active nation, the terms of designation may
Candidate shall begin the formal sanc- be modified only by the same proce.
tu&ry d"dgn&tIon_ev&Iu&tIon process. dures through which the original des.
A notice of intent to Prepare a draft ign&ti0n was made- If Proposed reffulz'
environmental impact statement shall tions am needed to implement the

119

311-M 0-92-5

� 922.31 15 CFR Ch. IX (1-1-92 Edition)
terms of the Proposed designation, jectives of the proposed sanctuary des-
they shall be consistent with the ignation.
terms of designation. Following desig- (2) Draft regulations recommended
nation, all amendments to these regu- by the Council, or its determination
lations shall be consistent with the that regulations are not necessary,
terms of designation. may be accepted by the Secretary.
W The draft management plan gen- When making a determination wheth-
erally shall include sections on: goals er to accept the Council's recornmen-
and objectives; management responsi- dation, the Secretary shall consider
bilities; resource studies and research; whether the Council's action fulfills
enforcement, including surveillance the purposes and policies of the
activities; interpretive and educational Marine Protection. Research, , and
programs; and proposed regulations Sanctuaries Act and the goals and ob-
(where applicable). Proposed regula- jectives of the proposed designatioW
tions relating to activities under the (3) The Secretary shall prepare pro-
Jurisdiction of one or more other Fed- posed fishery regulations necessary to
eral agencies shall be developed in implement the proposed sanctuary
consultation with those agencies. designation if the Council:
(d) A draft environmental impact W Declines to make a determination
statement (DEIS) shall be prepared on with respect to the need for regula.
the designation document/manage- tions.
ment plan, including any proposed W Makes a determin tion which is
regulations. The DEIS shall also in- rejected by the Secretary, or
clude the resource assessment report, (W) Fails to recommend draft pro-
discussed in paragraph (h) of this sec- posed regulations within the period
tion; maps depicting the boundaxies of specified In paragraph (f)(1) of the
the proposed area, and the existing section.
and potential uses and resources of (4) All amendments to fishery regu-
the area. lations shall be drafted, approved, and
(e) The draft management plan and issued in the same manner an the
the DEIS shall be prepared as Quickly original regulations.
as possible to allow for maximum (g) P`ishery activities not proposed
public input. The time period between for regulation under paragraph (f) of
Active Candidate selection and propos- this section may be listed in the draft
ing to designate the area as a National sanctuary designation document as po-
Marine Sanctuary normsilly will not tentially subject to regulation. without
exceed three (3) years unless the Sec- following the procedures specified In
retary determines that additional time paragraph (f) of this section. If the
is needed for public input Secretary subseQuently determines
(f) The Secretary -shall provide the that regulation of any such fishery ac-
appropriate Regional P`iahery Manage- tivity is necessary, then the Proce-
ment Council with the opportunity to dures specified in paragraph (f) shall
prepare and recommend for consider- be followed.
ation by the Secretary draft regular W As part of the DEM. the Secre-
tions for fishing within the proposed tary shall develop a resource assess-
sanctuary if the proposed sanctuary ment report documenting present and
includes waters within the U.S. Exclu- potential uses of the area, Including
sive Economic Zone. commercial and recreational fishing,
(1) The Council shall have one hun- research and edUcat4on, minerals and
dred and twenty (120) days from the energy development subsistence uses
date of the Secretary's reQuest to pre- and other conunercial or reciftUonal
pare draft fishery regulations and use& In with the Secre-
submit them to the.Secretary. In pre- tary of the Interior. the Secretary
paring these recommendations, the shall draft a resource assessment sec-
Council shall use as guidance the na,- tion for the report concerning any
tional standards of section 301(a) of or recreational resource
the Magnuson Act (IS u.S.c. 1851) to uses in the area that are subject to the
the extent that they are consistent prkmLry jurisdiction of the Depart-
and compatible with the goals and ob- ment of the Interior.

120

National Oc*anic and Atmosphtric Adm., Commorco � 922.33
(1) After the DEIS is prepared. the costs of Personnel, equipment and fa-
Secretary shall publish a notice of pro- cilities, enforcement, research, and
posed designation In the FEDERAL REG- public education;
iSTER. That notice shall Include the (7) An evaluation of the advantages
text of the draft designation docu- of cooperative state and Federal man.
ment, any proposed regulations deter- agement if all or part of a proposed
mined necessary to implement the marine sanctuary is within the territo.
proposed designation, and a summary rial limits of any state or i's superja.
of the management plan. The PMERAL cent to the subsoil and seabed within
REGISTER notice shall be published the seaward boundary of a state, as
concurrently with the Environmental that boundaxy is established under the
Protection Agency (EPA) Notice of Submerged Lands Act (43 U.S.C '_301
Availability of the DEIS. ef seq.); and
(1) Notice of the proposed designa (8) Any proposed regulations that
tion shall be published in newspapers may be necessary and reasonable to
of general circulation or communicat. implement the proposed designation.
ed to electronic media In the commu- (b) In accordance with the provi.
nities that may be affected by the Pro- sions of section 304 of the Act, the
posal.
(2) No sooner than thirty (30) days Secretary shall not publish a notice to
after publication of the notice of pro. designate an area proposed as a Na-
posed designation in the FEDERAL REG- tional Marine Sanctuary until after
ismm, the Secretary shall hold at least forty-five (45) days of a continuous
one public hearing In the coastal area session of Congress starting with the
or areas most affected by the proposed day the prospectus required by para-
designation for the purpose of receiv- graph (a) of this section is submitted
ing the views of any interested parties. to Congress. If either the Committee
on Merchant Marine and Fisheries of
6 922.32 Congressional prospectus. the House of Representatives or the
(a) As required by section Committee on Commerce, Science and
304(a)(1)(C) of the Act, on the same Transportation of the Senate, within
day that the FEDERAL RzGxsT= notice the forty-five day period, issue a
in 1922.310) is issued, the Secretary report concerning the prospectus, this
shall submit to the House Committee reportshall be considered by the 8ec-
on Merchant Marine and Fisheries retary before publishing a notice to
and the Senate Commerce, Science, designate a national marine Sanctuary.
and Transl;*rtation Committee a Pro-
spectus containing. 1922.33 Designation determination and
(1) The terms of the proposed desig- findings.
nation; (a) In addition to preparation of the
(2) The basis of the designation find- final environmental impact statement
ings made under section 303(a) of the (FELS), final regulations, and final
Act with respect to the area; management Plan. the Secretary shall
(3) An assessment of the factors re- prepare a written Designation Deter-
quired to be considered by section mination and Findings to include:
303(b)(1) of the Act; (1) A determination that the desig-
(4) Proposed mechanisms to coordi- nation will fulfill the purposes and
nate existing regulatory and manage- policies of the Act; and
ment authorities within the area; (2) Finding that:
(5) The DEIS and the draft manage- W The area is of special national Me-
ment plan. including the proposed reg-
ulations, detallin the proposed goals nificance due to its resource or
and objectives, management responsi. human-use values;
bilities, resource studies, interpretive (11) Existing state and Federal au.
and educational programs, and en- thorities are inadequate to ensure co-
forcement, including surveillance ac. ordinated and comprehensive conser-
tivities for the area; vation and management of the uva.
(6) An estimate of the annual cost of including resource protection. scientif.
the proposed designation, including ic research, and public education;
121

� 922.34 15 CFR Ch. IX (1-1-92 Edition)
(W) Designation of the area as a na- (9) The socioeconomic effects of
tional marine sanctuary will ensure co- sanctuary designation; and
ordinated and comprehensive conser- (10) The fiscal capability to manage
vation and management of the area, the area as a National Marine SMctu-
including resource protection, scientif- ary.
ic research, and public education; and (c) In preparing the Designation De-
Ov) The area is of a size and nature termination and Findings, the Secre-
that will permit comprehensive and tary shall consider the views of inter-
coordinated conservation and manage- ested persons, heads of interested Fed-
ment. eral agencies, responsible officials of
(b) In preparing the Designation De- appropriate state and local govern-
termination and Findings the Secre- ment entities, and appropriate offi-
tary must consider: cials of any Regional Fishery Manage-
(1) The area's natural resource and ment Council(s) that may be affected
ecological qualities. including its con- by the designation submitted in re-
tribution to biological productivitly, sponse to the notice proposing the des-
ce of ecosystem structure, ignation or submitted as part of a
maintenance of ecologically or com- public hearing on the proposal; and
mercially important or threatened spe- any reports submitted by the House
cies or species assemblages, and the Committee on Merchant Marine and
biogeographic representation of the Fisheries or the Senate Committee on
site; Commerce. Science, and Transporta-
(2) The area's historical, cultural, ar- tion in response to the sanctuary pro-
cheological, or paleontological signifi- posal prospectus.
cance;
(3) The present and potential uses of 1922.34 Designation.
the area that depend on mitintenance
of the area's resources, including com- (a) In designating an area as a Na-
mercial and recreational fishing. sub- tional Marine Sanctuary, the Secre-
sistence uses, other commercial and tary shall publish a notice of the des-
recreational activities, and research ignation in the Pnz&u RMGIsTZR; this
and education; notice shall include the text of the
(4) The present and potential activi- final implementing regulations and
ties that may adversely affect the fac- shall also advise the public of the
tors identified in paragraph (b) consid- availability of the final management
emtions (1). (2) and (3) of this section; plan and the final EIS.
(5) The existing State and Federal (b) The designation and regulations
regulatory and management authori- shall become final and take effect
ties applicable to the area and the ade- after the close of a review period of
quacy of those authorities to fulfill forty-five (45) days of continuous ses-
the purposes and policies of the Act; sion of Congress, computed in accord-
(6) The manageability of the area, ance with section 304(bX4) of the Act,
including such factors as its size. its beginning on the date of publication
ability to be identified as a discrete ec- of the Federal Register notice in para-
ological unit with definable bound. graph (a) of this section unless:
aries, its accessibility, and its suitabil- (1) The designation or any of Its
ity for monitoring and enforcement terms is disapproved by enactment of
activities; a Joint resolution of disapproval con-
(7) The public benefits to be derived sistent with section 304(bX3) of the
from sanctuary status. with emphasis Act. Or
on the benefits of long-term Protec- (2) In the case of a national marine
tion of nationally significant re- sanctuary that In located p&rU&Uy or
sources, vital habitats, and resources entirely within the aftward boundary
which generate totirisnu of any "te, the Governor(s) of the
(8) The negative Impacts Produced affected st&te(s) certifies to the Secm
by management restrictions on WY that the designation Or any Of Its
income-genemung activities such as terms in unacceptable. in which can
living and nonliving resources develop- the designation or the ft -
ment; term shall not take effect in the am

122

National Oceanic and Atmospheric Adm., Commerce Pt. 922, ^pp. 1
of the sanctuary lying within the sea- Subpart D-Implomontation After
ward boundary of the state(s). Designation
(c) If the Secretary determines that
the actions in paragraph (b) of this 0 922.40 General.
section affect the sanctuary designa- (a) The Secretary shall implement
tion in a manner that sanctuary goals the management plan, and applicable
and obJectives cannot be fulfilled. the regulations, including carrying out
Secretary may withdraw the entire surveillance' and enforcement activi-
designation. If the Secretary does not ties, and conducting such research and
withdraw the designation, only those education as are necessary and reason.
terms of the designation not disap- able to carry out the purposes and
proved under paragraph (b)(1) of this policies of the Act.
section or not certified under Para- (b) Consistent with the sanctuary
graph (b)(2) of this section shall take management plan, the Secretary shall
effect. develop and implement a site-specific
contingency and emergency-response
6 922.35 Coordination with states. plan designed to protect the sanctuary
(a) The Secretary shall consult and resources. The plan shall contain alert
cooperate with affected states procedures and actions to be taken in
throughout the national marine sanc- the event of an emergency such as a
tuary designation process. In particu- shipwreck or an oil spill.
lar the Secretary shall: (c) Where essential to prevent imme-
diate, serious and Irreversible damage
(1) Consult with the relevant state to sanctuary resources, activities in.
officials prior to selecting any site on cluding those not listed in the designa-
the SEL as an Active Candidate pursu. tion may be regulated within the
ant to 1922.30, especially concerning limits of the Act on an emergency
the relationship of any site to state basis for an interim period not to
waters and the consistency of the pro- exceed one hundred and twenty (120)
posed designation with a federally ap- days, during which time an appropri-
proved state coastal zone management ate amendment of the terms of the
program. For the purposes of a con. designation shall be sought by the
sistency review by states with a feder- Sftret&rY.
ally approved coastal zone manage- (d) Every five years, or sooner, the
ment programs. designation of a na. Secretary shall evaluate the substan-
tional marine sanctuary is deemed to tive progress toward implementing the
be a Federal activity, which, if directly management plan and the goals of a
affecting the state's coastal zone, must designated sanctuary, especially the
be undertaken in a manner consistent effectiveness of site-specific nuumge-
to the maximum extent practicable ment techniques.
with the approved state coastal zone 9 922.41 Enforcement procedures.
program as provided by section The consolidated civil procedure reg-
307(cXD of the Coastal Zone Manage- ulations, set forth at 15 CPR Part 904.
ment Act of 1972, as amended, and Im- shall apply to all enforcement matters
plementing regulations at 15 C`FR under the Act.
Part 930, Subpart C.
(2) Ensure that relevant state agen-
cies are consulted prior to holding any AppzxDtx 1 TO PART 922-NATioNAL
public hearings pursuant to MARINE SANcTuARY PRooRAm SITE
1922.31(1)(2). IDENTIFICATION AND SELECTION CRI-
(3) Provide the Governor an oppor- TERIA FOR MARINE ARzAs wrm
tunity to certify the designation or QUAUTIZS Of SPECIAL NATIONAL
any of its terms as unacceptable as SIGNIFICANCE
specified in I 922.34(b)(2). BACKGROU"
The Site Evaluation List (BEL) was estab-
lished In 1983 (48 1PR 355N, August 4. IM).
0 Only sites on the SEL may be considered by
123

Pt. 922, App. 1 15 CFR Ch. IX (1-1-92 Edition)
the Secretary for subseQuent review as At the SEL stage, NOAA's prime focus is
"Active Candidates" for designation. on the site's natural resource and human
The original SEL was based on the then use/historical resource values. The presence
existing Marine Research. Protection, and of such high values is a reQuisite or "mini-
Sanctuaries Act. which provided that na- mum" reQuirement for NOAA'3 further con.
tional marine sanctuaries could be designat- sidemtion since the Marine Protection. Re-
ed for their conservation. recreational, eco- search, and Sanctuaries Act emphasizes the
logical. or esthetic values. It consisted of protection and management of nutrine areas
twenty-nine (29) marine sites with high nat- which are of special national significance
ural resource values, identified and recOm' based on the site's conservation. recreation-
mended for inclusion on the SEL by region- al. ecological, historical, research, educa-
al resource evaluation teamn in accordance tional or esthetic Qualities. Other, more spe-
with the National Marine Sanctuary Pro- cific issues are factored into NOAA's deci-
gram's mission and goals and then existent sion whether to select a site as in Active
site identification and selection criteria (48 Candidate (see Subpart C of the regula-
PR 24296. May 31, 1983). The Marine Sanc- tions).
tuaries Amendments of 1984 (Pub. L No. To determine if an area possesses histori-
98-498) amended the Act to add additional
Qualitte3-historical, research. or educa. Cal values of special national significance
tion-which must also be considered when and otherwise meets the Sanctuary designa-
selecting sanctuary sites. tion standards specified in Section 303 of
Areas of nationally significant research the Act. certain definitions and criteria are
and educational Qualities were considered in included in this appendix (see II.F) for use
establishing the original SEL These qUaH_ in evaluating these potential sites for listing
ties are inherent in sites possessing signifi- on the SEL in accordance with 1922.22 of
cant conservation. recreational. ecological. the regulations.
or esthetic value. Therefore, additional
areas of significant research and education- L Natural Resource Values
al values will not be reconsidered at this
time, except as provided in 1922.21 of the A. Subregional Representation
regulations. The am under consideration In represent-
Sites possessing nationally significant his- &Uve of the biogeographic subregion in
torical resources were not specifically con- which it is located.
sidered when establishing the original SEL Examplm This criterion would apply to
There are no historical sites on the SEL an area containing species assemblages
The existing SEL now needs to be amended which are especially characteristic of the
to add areas of the marine environment Pos-
sessing historical Qualities of special nation- Oregonian subregion of the British Colum-
&I significance. Thus, the existing site iden- bian region. Another example would be an
tification and selection Criteria have been area Containing species assemblages which
amended to incorporate more specific Crite- are especially Ch& oteristic of the Floridian
ria to identify and select areas of the or American Atlantic Antillean subregion of
marine environment possessing historical the West Indian region.
qualities of special national significance. B. Community Representation
SrrZ IDZUTMCATION AND SZUWnON CRrf=U The am under in signifi-
The following criteria are grouped Into cant in relation to the ecological communi-
four categories: (1) Natural resource values; ties which are found within the specified
(2) humain uae/historical resource values; habitat type or within the biogeographic
(3) potential activity impacts; and (4) man- region or subregion (La. on a macroscale.
agement concerns. The criteria under each communities aa assemblages of species pop-
.category reflect concerns significant to the ulgtiona within & prescribed area or habi.
National Marine Sanctuary Program and t").
are designed to ensure that sites recom- Zzainplw (1) The wide spectrum of
mended to NOAA for SEL consideration marine habitats In the Channel Islands Na-
have high natural resource and human,re- tional Marine Sanctuary in California cre-
source values. ated by accentuated bottom relief. Varied
in selecting sites for the SEL% NOAA also bottom substrate& and graduation In water
considers the extent information on the site depth from Wand shorelines to deep Coastal
is available. existing and potential activity basins support a VarietY Of ecological C01n-
impacts and anatement concerns (as Pre-
sented In sections M and rV. below). munities.
NOAA'a selection of sites for the SIM In (2) Coral reef, grass bed. soft b0ttOM 020
only the first of several deternlinStiOnS open-bay habitat mew In the Key IAW
before sanctuary designation or subsequent National Mulne 8&DCtU&rY Support Z V&r19-
rejection of the site &S not qualified for ty of ecological communities associated with
sanctuary status. the east Florida red tract.

124

National Ocoanic and Atmosph*ric Adm., Commorce Pt. 922, App. I
C. Biological Productivity position, such as certain areas off central
The area under consideration is signifi- Texas.
cant in relation to Its level of primary and/ E. Species Maintenance
or secondary production.
Examples: (1) East Breaks at the edge of The area under consideration is important
the continental shelf off Corpus Christi. to life history activities. including special
Texas, is characterized by intense local up- feeding. courtship, breeding, birthing/nurs-
welling, high primary productivity. and ex. ery, resting/wintering, and migration areas.
ceptional fish production. Examples.- (1) The waters off Point Reyes
(2) In the Gray's Reef National Marine and the Farallon Islands provide deep and
Sanctuary. much production may be import. shallow water feeding areas for a wide varie-
ed; outcroppings of limestone rocks may ty of marine organisms, including seabirds,
serve to entrap, conserve, and circulate de- marine mammals, and marine fisheries. The
tritus and plankton which provides energy Farallon Islands support the largest seabird
sources for reef invertebrates, which in turn rookeries in the contiguous United States
support marine fisheriesand sea turtles. and are used. along with the mainland. by
(3) In the Channel Islands National California sea lions, harbor seals. and ele-
Marine Sanctuary. the cold waters of the phant seals for hauling out and pupping
California current flowing south meet the Purposes. Whales, including several endan.
warm waters of the California Counter Cur. gered species, and porpoise pow through
rent flowing north to create upwellings of the sanctuary on annual migretions.
cold nutrient-rich waters that enhance the (2) The waters around certain Hawaiian
biological productivity of the ares. Islands are important wintering, birthing/
No= This example &]SO meets Criterion nursery. and perhaps courtship/breeding
I.F. areas for endangered whales.
(4) In many cam. coral reefs are not only (3) Spiny lobster migration routes off
energetically self-sustaining Ue., they Florida are important for the "off shelf"
produce locally enough food to support the movement of this species.
community), but they are also specifically (4) The mouth of the Mississippi River Is
organized to entrap, hoard, and recycle ma. an important brown shrimp over-wintering
terials received from the surrounding waters ground.
(te., products that are imported and con- F. Ecosystem Structure/Habitat Features
served).
The am under consideration Is character-
D. Biotic Character/Species Representation ized by special chemical, physical, and/or
The am under consideration Is of special geological habitat features-
Interest because It supports: Examp1m (1) The Florida Middle
(1) Ecologically limited species; Grounds on the Gulf of Mexico continental
(2) Ecologically Important swies; or shelf represent an unusual geological forma-
(3) Unique species associations or bioloci- tion--& drowned Pleistocene reef-which
cal assemblages. supports rich and diverse reef communities.
Examplm (1) This criterion would apply (2) Transition zones occur where two dif-
to marine habitat areas upon which ecologi- ferent marine systems converge--such as at
cally limited species threatened. en- coastal/marine system interfaces. shelf/
dangered. ram, depleted. endemic, or pe- slope Interfaces, soft bottom/hard bottom
ripheral species) are dependent during all or ecotones, or cold water/warm water current
part of their lives. convergence zone. These areas of mixing
(2) This criterion would apply to marine often have unique physical and ecological
areas containing species which contribute in characteristics, high production. and species
a significant way to the maintenance of a diveralty/population densities which are
specified ecosystem found in the region or often greater than in areas flanking them.
subregion. such as the Channel Islands For example. a tramition zone Is formed
Marine Sanctuary. which supports one of near Cam Hatteras where cold northerr
the most varied assemblages of marine waters of the Labrador Current mix with
mammaln and seabirds In the world. warm water eddies of the Gulf Stream/Plor-
(3) The waters of Point Lobos, California, Ids Current and an a result. northern and
support a unique assemblage of kelp. sea southern species mix and c"xist with spe
urchin abalone. and sea otters. cies endemic to the ares.
(4) Submarine canyons support unusual NoTz: This example also meets Criterion
biological communities of soft corals. crust&- I.C.
ceans. and fish, and are known as "Pueblo (3) Easternmost coastal areas of Maine---
Villages---- with unique bay-heads and rocky coasti.
(5) This criterion would also apply to wide varied substrates derived from glacial mate-
sandy bottom areas which are characterized rials. extensive sub-flord character. and nu-
by low productivity, but unique aWles com- merous offshore Islands-we matched b.@,

125

Pt. 922, App. I 15 Ch. IX (I - 1 -92 Edition)
few areas in the world in habitat types and scientific research and education In the
species diversity. area, the compatibility with similar research
11 Human Use/Historical Resource Values efforts in adjacent John Pennekamp State
Park and BiScayne National Park. and the
A. Fishery Resources of Recreational proximity of the site to user groups. in addi-
Importance tion, the Carysfort Reef Lighthouse pro-
vides a unique research base from which to
The area under consideration contains launch studies concerning the sanctuary en-
fish and shellfish species, species groups vironment.
(e.g., snapper-grouper complex), or fishery (3) The Channel Islands National Marine
habitats which are important to the recre- Sanctuary offers a special opportunity to
ational fishing industry/community and for coordinate research with the Channel Is-
which conservation and management are in lands National Park. Such coordination will
the public interest. contribute to a better scientific understand-
B. Fishery Resources of Commercial Ing of the marine environment and to more
Importance effective management by answering ques-
tions such as those related to development
The area under consideration contains and use of marine resources.
fish and shellfish species. species groups
(e.g., snapper-grouper complex). or fishery E. Interpretive Opportunity
habitats which are Important to the co-
mercial fishing Industry and for which con. The am under consideration provides an
servation and management are in the Public excellent opportunity to interpret the
interest. meanings and relationships of special
marine resources in order to enhance gener-
C. Ecological/Ethetic Resources of Impor- al understanding. appreciation, and wise use
tance for Recreational Activities Other of the marine environment.
Than Fishing Examples(1) Through a variety of Inter-
The area under consideration contains ex- Pretive media, including aquaria display&
ceptional natural resources and features narrated alide shows and glassbottom, boat
which, because of their Importance to tours. a visitor to the Key Largo National
nature watching and other nonconsumptive Marine Sanctuary is exposed to a variety of
recreational activities, enhance human ap- marine and coastal ecosystems, Including
preciation. understanding. and enjoyment open ocean, fringing coral reefs. patch reefs.
of nature. mangroves, open bay, and barrier Islands.
Example(1) Rocky shorelines, shallow (2) The Channel Islands National Marine
nearshore waters, Lad intertidal pools In the Sanctuary provides an exceptional opportu-
Channel Island& and Gulf of the Farallones nity to interpret marine and insular ecosys-
National Marine Sanctuaries have rich and tem features through the use of various In-
varied plant and animal life which attract terPretive "hands On" techniques that so
many persons Interested in photography beyond traditional educational tools such an
and nature study. brochures and Pamphlets.
(2) The Prominent topography around the
Channel Islands and Gulf of the Farallones F. Historical, Cultural. or
National Marine Sanctuaries provides out- Paleontological
standing ocean vistas. The am under consideration contains (or
(3) The spectacular spur-and-groove is likely to contain) historical resources of
reef formation in the Looe Key National Special national significance.
Marine Sanctuary attracts SCUBA
snorkeling enthusiasts from all over the Definitions
world.
(4) The waters off Maui. Hawaii. are PoPu- The term "historical" as defined In
lar for humpback whale watching. 922.2(c) means possessing historical, cul-
tural. archeological or paleontological a*
D. Research Opportunity nificance, including sites structures, dis-
The area under consideration provides ex- tricts and objects significantly associated
ceptional opportunities for research in with Or representative Of earlier People. cul-
marine science and resource tures and human activities and events. The
Example (1) The Orgy's Reef Nationial term Is used In the broad Seim to refer so
Marine Sanctuary Nerves as a natural labo. both pre-historic and historic Periods. to the
ratory or control area for research in live anthorpological concept of culture, and to
bottom ecology. the processes, events places, and objects re-,
(2) The Key Largo National Marine Sanc- lated to the human past. The Phrase "Spa"
tuary Is amenable to onsite research activi- cial national significance In the context of
tin for many reasons, Including the diversi- historical areas denotes those areas With
ty of resources available, the past history of historical values of unique national signifi-

126

National Oceanic and Atmospheric Adm., Commerce Pt. 922, App. I
canoe and which are illustrative of the na- resources of the National Marine Sanctuary
tion's maritime heritage. Program. Consistent with the Program,s
CRrzmm PoR InzxTmcATroN am S=xmoN mission and goals set forth in 1922.1 of the
regulations, sites recommended or selected
The site identification criteria to be used for historical qualities must be illustrative
by the Marine Historical Resource Evalua. of the nation's maritime heritage and repre.
tion Team to make its recommendation to sentative of the nation's most significant
the Secretary and the criteria to be used by historical marine resources.
the Secretary for selection of recommended (3) Additional Programmatic Require-
sites for inclusion on the SEL are the same. ments-In addition to having spmial nation.
To qualify for recommendation to the al significance to qualify for recommenda.
Secretary and for selection for listing on the tion and selection for addition to the SEI,.,
SEL because of a site's historical values. a coordinated and comprehensive conserva.
site must have special national significance tion and management of the site including.
within the meaning set forth below In pars- (a) resource protection; (b) scientific re-
graphs (1) and (2) and meet the program- seach and monitoring; and (c) public educs.
matic requirements set forth in paragraph tion must be necessary in order to derive
(3). In determining whether a site has spe- maximum present and future public benefit
cial national significance, the site's contri- from the site's resources. Designation of a
bution to the historical resources already site as a National Marine Sanctuary must
represented in the National Marine Sanctu- also complement existing regulatory au.
ArY PrOVWn. it MY, shall 9180 be consid- thorities and improve the protection and
ered. preservation of the site's resources.
(1) Determination Qf StgnVtcance-The
National Historic Landmark (NHL) Pro- ADDmoNAL PAcTojw uc Srrz IDzffTmcATzoN
gram (36 CPR Part 65). administered by the am SzLzVnON
Department of the Interior. focuses atten-
tion on properties of exceptional value to 111. Potential Activity Impacts
the nation an a whole. It is the Federal Many marine areas are subJect to human
means of weighing the national significance use. some of which bring adverse pressures
of historical resources. Properties designat- to bear on the natural resources. Where ap-
ed an NKLs that are not already listed on plicable. initial Identification of potential
the National RegUter of Historic Places are marine sanctuary areas includes a summary
automatically Hated there. In addition to of existing and potential hilman activities In
adding historical units to the National Park these areas as well as a Preliminary assess-
System, NHL designation is a prerequisite ment of environmental impacts. To the
for determining the eligibility of historical extent such information In available.
resources for nomination to the World Her- NOA.Als selection of sites for the BEL will
itage Ust. consider Impacts of human activities on the
Consistent with the Marine Research. am's natural resource and human use
Protection. and Sanctuaries Act directive values, an well an the impacts of site selec-
that the management of special marine tion on hil-an activities already tairin
A complement existing regulatory au- place within the site.
thorities to the extent Practicable, the crite-
ria for nomination an a NEL shall be used as IV Management Qmcerns
the first step In evaluating the historical,
cultural. archeological or paleontological A. Relationship to Other Programs
significance of a mazine resource (See Table
1). Sites of national significance demon- While some sanctuaries may be designed
strated by their designation as NHIA. or to protect resources not currently managed
considered In consultation with the Depart- by other existing program (eg.. the U.S.&
ment of the Interior and other appropriate MONITOR on the continental shelf off
uthorities as meeting the NEEL criteria, North Carolina). most recommendations In-
be further evaluated for recommends.- vOlved cooperation with some other Federal,
Th
tion for selection and evaluation for addi- State, local agency Or Organization. e
tion on the SZL, in accordance with para- ability Of existing regulatory mechanisms to
graphs (2) and (3). below. Sites within the protect the values of the am and the con-
Jurisdiction of the United States which have tribution of the National Marine Sanctuary
internstionW significance as determined by Program to that existing management
the criteria for nomination to the World effort may be an important factor In select-
Heritage Ust shall. also be evaluated (See ing sanctuary candidates. Depending on the
Table 2). location, the resource, and the existing
(2) Determination of Repmuntative Di8- system national marine sanctuary designa-
tribution-In addition to having nationAl tion could either complement the status quo
significance, a site, in order to be recom- by filling specific gaps or form a manage-
mended or Selected, must complement or ment umbrella over a fragmented system to
contribute to the desired range of historical help coordinate and strengthen diverse. but

127

Pt. 922, App. 1 15 CFR Ch. IX (1-1-92 Edition)
related efforts. At different sites, NOAA versely, a designated marine Sanctuary nay
may work to complement other programs' have negative economic impacts if manage.
efforts such as national estuarine research ment regulations unduly restrict commer-
reserves, national parks, wildlife refuges. or cial activities.
state preserves. among others. There may To the extent feasible, a decision to in-
be instances where NOAA's primary contri- clude a proposed site on the SEL will take
bution to protection of special marine areas into consideration the economic effects of
will be in the form of enhanced public sanctuary designation. As consideration of a
awareness through Interpretive and re- particular site progresses through. the desig-
search programs. nation process, more information Will be de-
B. Management of a Conservation Unit veloped and analyzed concerning the eco-
nomic effects of sancturay designation.
Optimum size of a marine sanctuary Is an TABLz 1: NATIONAL HISTORIC LANDMARKS
issue to be considered in potential sanctuary PRoGRAM SELECTION CRITERIA (36 CFR 65.4)
sites. The size or extent of a marine sanctu-
ary should be a cohesive conservation unit Specific Criteria of National Significance:
amenable to effective management given The quality of national Significance is as-
fiscal and staff Constraints of the managing cribed to districts. Sites buildings. struc.
entities. tures and objects that possess exceptional
value or quality in illustrating or Interpret-
C. Accessibility ing the heritage of the United States in his-
Since national marine sanctuaries an to tory. architecture, archeology, engineering
be readily available for public use, when use and culture and that Possess a high degree
is compatible with the sanctuary's goals and of integrity of location, design setting. ma-
objectives, consideration should be given to terials, workmanship, feeling and associa-
factors which limit or enhance public access tion. and:
to a particular site. (1) That are associated with events that
have made a significant contribution to. and
D. Surveillance and Enforcement are identified with. or that ou
Another issue to be considered when eval- represent,. the broad national Patterns Of
uating & potential sanctuary site is the United States history and from which an
degree to which the am lends itself to ade- and appreciation of those
quate enforcement and surveillance and the patterns may be gained; Or
capabilities of responsible agents (eg. U.S. (2) That an associated Importantly with
Coast Guard. state law enforcement divi- the lives of persons nationally significant in
sions, or the like). This depends on the loca- the history of the United Mates; or
tion. its size, and the types of resources in- (3) That represent some great Idea or
volved Consideration is also given to. (1) ideal of the American people; or
Degree of surveillance/enforcement pres- (4) That embody the distinguishing char-.
ence needed in the area-light, medium or acteristics of an architectural type specimen:
heavy; (2) schedule -routine, Prescribed. or exceptionally valuable for a study of a
case-by-case ban* and (3) logistics vessels, period. style or method of construction or
aircraft, personnel. equipment. and budget- that represent a significant, distinctive and
ary requirements. exceptional entity whose components may
lack Individual distinction or
E. Economic Considerations (5) That are conmposed of Integral parts Of
The designation of a national mArine the environment not Sufficiently significant
sanctuary May have economic effects at by reason of historical association or artistic
both local and national levels. Prior to the merit to warrant individual recognition but
development of IL management plan for a collectively COMPOse an entity Of exception-
particular site which describes the uses and &I historical Or artistic significance, Or Out-.
activities which may take Place within a standingly commemorate or Illustrate a way.'
sanctuary. it in difficult to calculate fully of life or culture; or
the economic impact of sanctuary designa- (6) That have yielded or may be like] t0
tion. It is also difficult to determine. at the yield information of major scientific Impor-
sEL stage the economic benefits of the tance by revealing now culutures, or by shed-
sanctuary to society as a whole based on ding light upon periods of occupation over
such consideratonsas public use. and re- large areas of the United States. Such sites
search and Interpretive values which will are those which have yielded. or which May
also be fully described in a management reasonably be expected to yield data affect-
plan Sanctuary designation may. in some ing theories, concepts and ideas to a major
cases. enhance economic value by ensuring degree.
long-term protection for commercially Sig. Ordinarily. cemeteries, birthplaces, graves
nificant resources such as commercial Or of historical figures. properties owned by re-
recreational fish stocks vital habitats and ligious institutions or used for religious Pur-
resources WhIch generate tourism con. Poses, structures that have been moved
128

National Oceanic and Atmospheric Adm., Commerce Pt. 923
from their original locations. reconstructed monumental arts or townpianning and land-
historic buildings and properties that have scaping; or
achieved significance within the past 50 (111) Bear a unique or at least exceptional
years are not eligible for designation. Such testimony to a civilization which has disap.
properties, however. will qualify if they fall peared; or
within the following categories: Its pri- iv) Be an outstanding example of a type
(1) A religious property deriving of structure which illustrates a significant
mary national significance from architectur- stage in history; or
&I or artistic distinction or historical impor- (v) Be an outstanding example of a tradi-
tance;or tional human settlement which Is represent-
(2) A building or structure removed from ative of a culture and which has become vul.
its original location but which Is nationally nerable under the Impact of irreversible
significant primarily for its architectural change;or
merit, or for association with persons or (vi) Be directly or tangibly associated with
events of transcendent importance in the events or with ideas or beliefs of outstand.
nation's history and the association conse- ing universal significance. (The Committee
quential; or considered that this criterion should justify
(3) A site of a building or structure no inclusion in the List only in exceptional cir.
longer standing but the person or even asso- cum tances or in conjunction with other cri-
ciated with it is of transcendent Importance teria); and
in the nation's history and the association
con3equential:or In addition. the property must meet the
(4) A birthplace, grave or burial if it is of a test of authenticity in design, materials,
historical figure of transcendent national workmanship, or setting.
significance and no other appropriate site, (2) The following additional factors will be
building or structure directly associated kept in mind by the Committee in deciding
with the productive life of that person on the eligibility of a cultural property.for
exists; or inclusion on the List:
(5) A cemetery that derives its primary na- (1) The state of preservation of the prop.
tional significance from graves if persons of erty should be evaluated relatively, that is,
transcendent importance, or from an excep- It should be compared with that of other
tionally distinctive design or from an excep- property of the same type dating from the
tionally significant event; or same period, both inside and outside the
(6) A reconstructed building or ensemble country's borders; and
of buildings of extraordinary national sig- (ii) Nominations of immovable property
nificance when accurately executed in a which is likely to become movable will not
suitable environment and presented in a dig- be considered.
nified manner as part of a restoration
master plan, and when no other buildings or
structures with the same association have
survived. or PA 923-COASTAL ZONE MAN-
(7) A property primarily commemorative AG ENT PROGRAM DEVELOp-
In intent if design, age, tradition. or symbol- MEN AND APPROVAL"' REGULA-
ic value has invested it with its own national TIONS
historical significance; or
(8) A property achieving national signifi-
cance within the past 50 years if It is of ex- Subpart A-General
traordinary national importance. Sec.
TABLE 2: CRiteria for INcLusion or CuLTur- 923.1 Purpose.
AL PRoPERTIES ON THE WORLD HERITAGE 923.2 Definitions
LIST 923.3 General requirements.
(1) A monument. group of buildings or site
which have been nominated for Inclusion on Subpart B-Uses Subject to Management
the World Heritage List will be considered 923.10 General.
to be of outstanding universal value for the 923.11 Uses of subject to management.
purposes of the World Heritage Convention
when the World Heritage Committee finds 923.12 Uses of regiongal benefit.
that it meets one or more of the following 923.13 Energy facility planning process.
criteria and the test of authenticity. Each
property nominated should therefore: Subpart-Special Management Areas
(1) Represent a unique artistic achieve-
ment, a masterpiece of the creative genius; 923.20 General.
or 923.21 Areas of Particular concern.
(ii) Have exerted great Influence. over a 923.22 Areas for preservation or restora-
span of time or within a cultural area of the tion.

world, on developments In architecture, 923-23 Other areas of particular concern.
129

4.
Part 924
Monitor Marine Sanctuary
Regulations

National Oceanic and Atmospheric Adm., Commerce pt.924
Result in significant improvement in
achieving the coastal management ob-
jectives of section 303(2)(A) through
(I)
(c) The States and the Assistant Ad-
ministrator will negotiate an agree-
ment at the beginning of each finan-
cial assistance award period establish-
ing: (1)The specific significant im-
provement objectives to be achieved
during the financial assistance award
period. (2) the Federal funds to be de-
voted to each task, and (3) the basis
forassessing the State's progress in ac-
complishing each significant improve-
ment task. The agreement will be in-
cluded as part of the financial assist-
ance award. There is no requirement
that the State address each of the
nine significant improvement obvjec-
tives within an individual financial as-
sistance award period.
(d) If unforseen circumstances arise
that affect the accomplishment of any
significant improvement task, the
State must provide the Assistant Ad-
ministrator with prompt notice and
negotiate with te Assistant Adminis-
trator any necessary changes to the
schedule and products before the
scheduled completion dates. The As-
sistant Administrator shall provide the
State agency with a schedule for nego-
tiation and a time certain when a deci-
sion will be available to the State
agency. Any such changes will be
made part of the agreement included
in the financial assistance award.
(E) Significant improvements need
not be achieved within the period of
one financial assistance award if there
is specific reason to identity a longer
period.

923.104 Establishing the "increasing pro-
ortion".
(a) During the first year a State is
required to make significant improve-
ments (its second 306 award), it must
agree to expend 20 percent of the Fed-
eral share of its upcoming section 306
financial assistance award on activities
designed to lead to significant im-
provements. Thereafter, the State
must agree to constant incremental in-
creases of at least one percent in each
succeeding year. The amount to be
speng on significant improvements will
be determined by multiplying the ap-
plicable percentage by the amount of
Federal funds actually received.
(b) In no case may a State be re-
quired to expend more on significant
improvement activities than the incre-
mental increases established by this
section. However, Sates may voluntar-
ily exceed the minimum requirement
on significant improvement expendi-
tures established by this section. The
faulire to make significant improve-
ments as a result of those expendi-
tures in excess of the minimum re-
quirement will not result in any reduc-
tion in financial assistance under the
provisons of 928.5(b).

923.105 Failure to agree to pursue sifnif-
icant improvements.
(a) If a State chooses not to pursue
significant improvements in accord-
ance with this subpart, the Secretary
must whithold all financial assistance
under seciton 306. However, a decision
not to award section 306 funds does
not necessarily require withdrawal of
program approval. A state may con-
tinue to implement and enforce its ap-
proved program with State funds.
Under these circumstances, a state
will still be able to exercise its Federal
consistency review rights under sec-
tion 307 and will remain eligible for
CEIP funds if it meets all other eligi-
bility requirements.
(b) A discussion of the procedures by
which the Assistant Administrator will
evaluate whether a State has failed to
make significant improvements is con-
tained in 15 CFR Part 928, Review of
Performance of State coastal Manage-
ment and Coastal Energy Impact Pro-
grams.

Part 924-MOnitor Marine
Sanctuary

sec.
924.1 Authority.
924.2 Description of the Sanctuary.
924.3 Activities prohibited within the Sanc-
tuary.
924.4 Penalties for commission of prohibit-
ed acts.
924.5 Permitted activities.
924.6 Permit Procedures and criteria

175

Sec.
924.7 Certification procedures.
924.8 Appeals of administrative action.

Authority Secs. 302 and 303 pub L. 92-
532 as amended: 35 Stat. 1061 (16 U.S.C.
1432 and 1433).

Source 40 FR 21706, May 19, 1975 unless
otherwise noted.

924.1 Authority.

The Sanctuary has been designated
by the Secretary of Commerce pursu-
ant to the authority of section 302(a)
of the Act. The following regulations
are issued pursuant to the authorities
of sectins 302(f), 302(g)and 303 of
the Act.

924.2 Description of the Sanctuary.
The Sanctuary constist 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 a 350023" north latitude
and 75'24'32" west longitude.

924.3 Activities prohibited within the
Sanctuary.

Except as may be permitted by the
Administrator, no person subject to
the jurisdiction of the United States
shall conduct, nor cause to be conduct-
ed, any of the following activities in
the Sanctuary:
(a) Anchoring in any manner, stop-
ping, remaining, or drifting without
power at any time;
(b) Any type of subsurface salvage
or recovery operation:
(c)Any type of diving, whether by
an individual or by a submersible;
(d) Lowering below the surface of
the water any grappling, suctin, con-
veyor, dredging or wrecking device;
(e) Detonation below the surface of
the water of any explosive or explosive
mechanism;
(f) Seabed drilling or coring;
(g) Lowering, laying, positioning or
raising any type of seabed cable or
cable-laying device;
(h) Trawling; or
(i)Discharging waste material into
the water in violation of any Federal
Statute or regulation.

15 CFR ch. IX (1.1.92 Edition)

924.4 Penalties for commission of pro-
hibited acts.

Section 303 of the Act authorizes the
assessment of a civil penalty of not
more than $50,000 for each violation
of any regulation issued pursuant to
Title III of the Act, and further au-
thorizes a proceeding in rem against
any vessel used in violation of any
such regulation. Details are set out in
Subpart D of Part 922 of this chapter
(39 FR 23254, 23257, June 27, 1974).
Subpart D is applicable to any in-
stance of a violation of these regula-
tions.

924.5 Permitted activities.
Any person or entity may conduct in
the sanctuary any activity listed in
924.3 of this part if:
(a)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
(b) Such person or entity is in pos-
session of a valid permit issued by the
Administrator 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.

924.6 Permit procedurs and criteria.
(a) Any person or entity who wishes
to conduct in the Sanctuary an activi-
ty for which a permit is authorized by
924.5(hereafter a permitted activity)
may apply in writing to the Adminis-
trator for a permit to conduct such ac-
tivity citing this section as the basis
for the application. Such application
should be made to the Administrator,
National Oceanic and Atmospheric
Administation, U.S. Department of
commerce, Washington, DC 20230,
Upon receipt of such application, this
Adminisrator shall request, and such
person or entity shall supply to the
Administrator, such information and
in such form as the Administrator
may require to enable him to act upon
the application.
(b) In considering whether to grant
a permit for the conduct of a permit-
ted activity for the purpose of re-
search related to the MONITOR, the

176

National Oceanic and Atmospheric Adm., Commerce � 924.8
Secretary shall evaluate such matters (g) The Administrator may suspend.
as: (1) The general professional and fi- revoke, modify, or deny a permit
nancial responsibility of the applicant; granted or sought pursuant to this sec.
(2) the appropriateness of the re- tion, in whole or in part, if it is deter.
search method(s) envisioned to the mined that the applicant or permit
purpose(s) of the research; (3) the holder has acted in violation of the
extent to which the conduct of any terms of the permit or of these regula-
permitted activity may diminish the tions, or for other good cause shown.
value of the MONITOR as a source of Any such action shall be communicat-
historic, cultural, aesthetic and/or ed in writing to the applicant or
maritime information; (4) the end permit holder, and shall set forth the
value of the research envisioned; and reason(s) for the action taken. Proce-
(5) such other matters as the Adminis- dures governing permit sanctions and
trator deems appropriate. denials for enforcement reasons are
(c) In considering whether to grant a found at Subpart D of 15 CPR Part
permit for the conduct of a permitted 904.
activity in the Sanctuary in relation to (Information coUection requirements con-
an air or marine casualty, the Admin- tained in paragraph (a) have been approved
istrator shall consider such matters as: by the Office of Management and Budget
(1) The fitness of the applicant to do @nder controi number 0,648-0141)
the work envisioned: (2) the necessity (40 PR 21706, May 19, 1975, an amended at
of conducting such activity: (3) the W 49 PR 1040, Jam 6. 1984. 49 PR 13335, Apr.
propriateness of any activity enVi- 4.19841
stoned to the purpose of the entry into
the Sanctuary; (4) the extent to which 6 924.7 Cerdfication procedures.
the conduct of any such activity may Any Federal agency which, as of the
diminish the value of the MONITOR effective date of these regulations, al-
as a source of historic, cultural, aw- ready has permitted, licensed or other-
thetic and/or maritime information; wise authorized any prohibited activi-
and (5) such other matters as the Ad- ty in the Sanctuary shall notify the
ministrator deems appropriate. trator of this fact In writing.
(d) In considering any application The writing shall Include a reasonably
submitted pursuant to this Section, detailed description of such activity.
the Administrator may seek and con- the person(s) involved. the beginning
sider the views of any person or entity, and ending dates of such permission.
within or outside of the Federal Gov. the reason(s) and purpose(s) for same.
ernment, as he deems appropriate; and a description of the total area af.
except that. he shall seek and consider fected. The M r shall then
the views of the Advisory Council on decide whet er the continuation of
Historic Preservation. the permitted activity, In whole or In
(e) The Administrator may, In his part. or subject to such condition(s) an
discretion, grant a permit which has he may deem appropriate, is consist-
been applied for pursuant to this sec- ent with the purposes of 71tle III of
tion, in whole or in part, and subject the Act and can be carried out within
to such oondition(s) as he deems ap. these regulations. He shall inform the
propriate. except that the Administm. Federal agency of his decision In these
tor shall attach to any permit granted regards. and the reason(s) therefore,
for research related to the MONITOR in writing. The decision of the Secre-
the condition that any information tary made pursuant to this section
and/or artifact(s) obtained In the re- 911111 be final WUOU for the Purpose of
search shall be made avanable to the the AdministraUve Procedure Act.
public. The Administrator may ob-
serve any activity permitted by this I NU Appeals of action.
section; and/or may reQuIre the sub- (a) Except as provided In Subpart D
mission of one or more reports of the of 15 CPR part 9K any interested
status or Progress of such activity. person (the AppeUant) may appeal the
W A permit g=ted pursuant to granting. dentaL or Bus-
this section Is nontransferable. pension of any permit under 924.6 to

177

Pt. 926 15 CFR Ch. IX (1-1-92 Edition)

the Administrator of NOAA. in order action, whether without or after a
to be considered by the Administrator, hearing, as the case may be, shall con-
such appeal must be In writing, must stitute final action for the purposes of
state the action(s) appealed, and the the Administrative Procedure Act.
reasons therefore. and must be sub- (e) Any time limit prescribed in this
mitted within 30 days of the action(s) Section may be extended by the Secre-
by the Assistant Administrator. The tary for good cause, either upon the
appellant may request an informal Secretary's own motion and upon writ-
hearing on the appeal. ten notification to an Appellant stat-
(b) Upon receipt of an appeal au- ing the reason(s) therefore, or upon
thorized by this section. the Secretary the written request of an Appellant to
may request, and if he does, the Ap- the Secretary stating the reason(s)
pellant shall provide. such additional therefore, except that no time limit
information and in such form as the may be extended more than 30 days.
Secretary may request In order to E40 FR 21706, May 19, 1975, as amended at
enable him to act upon the appeal. If 49 FR 1040. Jan. 6. 1984
the Appellant has not requested a
hewing, the Secretary shall decide the
appeal upon: (1) The basis of the crite- Part 926-COASTAL ZONE MAN-
ria set out in I 924.6(b) or (c) of this AGEMENT PROGRAM DEVELOP-
part, as appropriate, (2) information MENT GRANTS, ALLOCATION OF
relative to the application on file in
NOAA (3) information provided by DS TO STATES
the Appellant, and (4) such other con-
siderations as he deems appropriate.
He shall notify the Appellant of ilia 926.1 of rules Lod regulations.
decision, and the reason(s) therefore. 926.2 Definitions.
In writing within 30 days of the date 926.3 Basus of allocation.
of his receipt of the appeal. 926.4 Allocation of non-distributed funds.
926.5 State allocation computation exam-
(c) If the Appellant has requested a Ples.
hearing, the Secretary shall grant an 926.6 State allocations.
Informal hearing before a Hearing Of- 926.7 Duration of allocation.,
ficer designated for that purpose by Authority: sec 305(e), Pub. I& 92-583as
the Secretary after first giving notice amended; 36 Stat. 1280 (16 U.S.C. 1454.).
of the time, place, and subject matter Source: 40 FR 11863 Mar 14, 1975. unless
of the hearing In the Federal Regis- otherwise noted.
Ter Such hearing shall be held no
later than 30 days following the Secre- 926.1 purpose of rules and regulations.
tary's receipt of the appeal. The Ap- Twelve million dollars has been ap-
pellant and any interested person may
appear personally or by counsel at the propriated by the Congress for Fiacal
hearing. present evidence. cross-exam- Year 1975 to implement the Coastal
ine witnesses, offer argument. and file Zone Management Act of 1972 (Pub. L
a brief. Within 30 clays of the last day 92-583) as amended. Of this amount $9

of the hearing, the Hearing Officer million has been made available for
shall recommend In writing a decision coastal zone management program de-
to the Secretary based upon the con- velopment grants-in-aid to the 34
siderations; outlined in paragraph (b) coastal States and territories under
of this section and based upon the section 305 of that Act. It is the pur-
record made at the hearing. pose of this part to establish the rules
(d) The Secretary maY adopt the and regulations for allocation of grant-
Hearing Officers recommended deci- in-aid funds under section 305 ofthe
sion, in whole or in part, or may reject coastal zone Managment Act of
or modify It. In any event, the Secre- 1972. as amended(Pub. L. 92-583; 36
tary shall notify the Appellant of his Stat. 1280; and Pub. L 93-612: 88 stat
decision, and the reason(s) therefore. 1974) pursuant to the requirements of
in writing within 15 days of his section 305(e) which states:
of the reccommended decison of the Grants under this section shall be allocat-
Hearing officer. The Secretary's ed to the States based on rules and regula-
178

e
f
th
r
e
2

m
r

t
le

178

7-@,
il,1111111@I I
W,
5.
Parts 928 and 932 Implementing
the CZMA Reauthorization
Amendments of 1990, phase I
(dated July 14, 1992)

Federal Register/Vol 57. No 135/Tuesday, July 14, 1992/Rules and Regulations 31105

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric
Administration

15 CFR Parts 928 and 932

(DOcket NO. 910815-2061)
Implementing the Coastal Zone Act
Reauthorization Amendments of 1990;
Phase one

Agency: Office of Ocean and Coastal
Resource Management (OCRM)
National Ocean Service (NOS) National
Oceanic and Atmospheric
Administration (NOAA), COmmerce.
Acton Final rule

Sumamry: This final rule implements
sections 6210 adn 5212 of Public Law
101-508 the onibus Budget
Reconciliation Act fo 1990. These
Sections amended the Coastal Zone
Management Act of 1972 (CZMA) to
authorize the making of coastal zone
enhancement grants to the states, to
revise the procedures applicable to
review by the Secretary of Commerce,
under section 312 of the CZMA, of a
State's performance with respect to
coastal management and to authorize
the Secretary to impose interim
sanctions against a state. The
regulations issued today set forth the
criteria and procedures for applying for
and awarding coastal zone
enhancement grants revise the
procedures applicable to review by the
Secretary of a state's performance with
respect to coastal management, and set
forth procedures for invoking and lifting
interim sanctions.

EFFECTIVE DATE: August 13, 1992.
FOR FURTHUR INFORMATION CONTACT:
Vickie Allin policy coordination
Division (202/606-4100).

SUPPLEMENTARY INFORMATION:
I Authority
This final rule is issued pursuant to
the authority of the Coastal Zone
Management Act of 1972, as amended
(16 U.S.C. 1451-1464).

II Availability of comments

All comments received in response to
the noticeof proposed rulemaking for
this rule (36 FR 52220, Oct. 19, 1991) are
available for inspection at the office of
Ocean and Coastal Resource
Management during normal business
hours (8 a.m.-4:30 p.m.) in suite 701,
Universal South Building, 1825
Connecticut Avenue, NW, Washington
DC 20235

III Regulatory Issues

A. General Background
The CZMA was enacted to encourage
and assist coastal states and territories
(states) in developing and implementing
management programs to preserve,
protect. develop and, where possible,
restore or enhance the resources of our
Nation's coast. On November 5, 1990,
the President signed Public Law 101-508,
the Ominbus Budget Reconciliation Act
of 1990. Subtitle C, known as the Coastal
Zone Act Resauthorization Amendments
of 1990 (1990 REauthorization), of title VI
of the Act, reuthorized and
comprehensively amended the CZMA
The amendments include:
A new coastal nonpoint pollution
control program, which reuires each
coastal state with a federally approved
costal zone management(CZM)
program to develop a program, to be
implemented through section 306 of the
CZMA and section 319 of the clean
water act. to protect coastal waters
from nonpoint source pollution. Program
approval and oversight are shared
between NOAA and the Environmental
Protection Agency (EPA);
A new enhancement grants program
which encourages each coastal state to
improve its CZM program in one or
more of eight identified national priority
aras: coastal wetlands management
and protection, in rural hazards
management (including potential sea
and great Lakes level rise), public
access improvements, reduction of

31106 Federal RegWer / Vol. 57, No. 135 / Tuesday, July 14. 199-2 / Rules and-Regulations

marine debris, assessment of cumulative Three new program approval requirements of sections 306(d) (14) and
and secondary impacts of coastal requirements regarding public (15) into its program approval
development special area management participation in permitting processes, regulations and issue guidance to the
planning, ocean resource planning. and consistency determinations and other States on meeting these requirements.
siting of coastal energy and government similar decisions, providing a The new requirement of section
facilities; mechanism to ensure that all state 306(d)(16) that state CZM programs
A new "Coastal Zone Management agencies will adhere to the program. and contain enforceable policies to
Fund" (CZM Fund) consisting of Coastal requiring enforceable policies and implement the new Coastal Nonpoint
Energy Impact Progi am loan repayments mechanisms to implement the applicable Pollution Control Programs will be
from which the Secretary of Commerce requirements of the new Coastal incorporated into program approval
is directed to pay (subject to amounts Nonpoint Pollution Control Programs, regulations for these programs. when
provided in appropriation Acts) for the respectively. those regulations are developed.
Federal administrative costs of the B. Approach to Ruleiraking NOAA will not issue regulations on
program and to fund special projects, Because of the substantial scope of the CZM Fund. the technical assistance
emergency state assistance, and other program. or the CZM achievement
discretionary CZM activities; the amendments and the statutory
requirement to promulgate regulations awards at this time. Also, NOAA does
New requirements for expanded not intend to revise its Federal
public participation opportunities in the for the Coastal Zone Enhancement consistency rules at this time. The
program evaluation process and Grants Program by November 5.1991.
NOAA decided to undertake a phased changes to the Federal consistency
expedited production of final evaluation provision
findings, and new authority to impo!e rulemaking. The final rule issued today 9, except for overturning the
is the first phase. It implements sections Supreme Court's decision on outer
interim sanctions involving suspension L- W10 and 6212 of the Omnibus Budget continental shelf (OCS) oil and gas lease
of financial assistance for 6 to 36 month. Reconciliation Act of 1990. These sales. merely codify NOAA's existing
if a state or national estuarine research Sections amended the CZMA to regulations. NOAA wishes to gain more
reserve (reserve) designated under authorize the making of coastal zone experience with the new provisions, the
section 315 of the CZMA is failing to enhancement grants to the states. to issues likely to arise in their
adhere to its federally-approved revise the procedures applicable to implementation, and the public and
program or management plan or the review by the Secretary of Commerce. interagency concerns, before deciding
terms of financial assistance awards; under section 312 of the CZMA. of a how to address rulemaking on this
9 A new requirement for the state's performance with respect to subject.
Secretary to provide technical coastal management, and to authorize The changes to the National Estuarine
assistance and management-oriented the Secretary to impose interim Research Reserve System (section 315 of
research to support development and sanctions against a state. the CZMA) are non-controversial
implementation of state CZM programs; NOAA believes it is premature to conforming changes which will be
e Authorization for NOAA to make undertake rulemaking on most of the included as a part of a separate
annual achievement awards to other amendments at this time. For rulemaking that will make other
individuals and local governments for example, NOAA needs more necessary clarifying changes to NOAA's
outstanding accomplishments in the information before proceeding to existing section 315 regulations.
field of coastal zone management: rulemaking on program approvability
a Clarification of the scope of the requirements for the new nonpoint C. FYnal Rule
CZMA's Federal consistency provisions. pollution control programs. This is 1. Coastal Zone Enhancement Grants
which state that Federal actions in or because EPA must issue guidance on Program
affecting the coastal zone must be management measures for sources of
consistent with federally-approved state nonpoint pollution on the basis of which The 1990 Reauthorization amended
coastal management programs. and States are to develop their program& section 309 of the CZMA to authorize a
overturning the Supreme Court's 1984 EPA has 18 months in which to develop new Coastal Zone Enhancement Grants
decision in Secretary of the Interior v. this guidance. In addition. NOAA and Program to encourage each coastal state
California, in which the Court held that EPA have joint approval authority for to improve its CZM program in one or
OCS oil and gas lease sales were not these programs. NOAA's regulations more of eight identified areas. Beginning
subject to Federal consistency, - need to reflect agreement between in FY 1901. the Secretary is authorized
o Modifications to the National NOAA and EPA on who will have to make grants (not less than 20 percent
Estuarine Research Reserve System authority to approve which parts of the and not more than 2D percent of the
under section 315 of the CZMA. prograin. Thus. rulemaking to implement amounts appropriated under sections
including increasing the maximum the Coastal Nonpoint Pollution Control 305 and 306A of the CZMA. up to a
amount of Federal financial assistance Program will be a later phase of the maximum of $10 million annually) to
for land or water acquisition at an nil L-8 procem coastal states to provide funding for
individual reserve from $4 to $5 million. Similarly. NOAA will not proceed development and submission for Federal
and increasing the maximum Federal with rulemakina at this time to approvalof changes that
share of costs for managing reserves implement the new program approval Support attainment of one or more
and supporting educational activities requirements of section 306(d) (141 (15) coastal zone enhancement objectives.
from 50 to 70 percent; and (:ie@ This is because no state is As part of this effort the Secretary in
e Reorganization and consolidation of required to meet these requirements required to evaluate and rank state
CZM program approval requirements untiL at the earliest. 3 years from the proposals for funding. and make fundins
and other technical changes. including date of enactment (or November IM@ awards based on those proposals. The
new statements of findings and purpose, and because the requirements of Secretary has the authority to suspend a
new and revised policies and objectivm sections 3W(d) (14) and (IL5) have been state's eligibility for enhancement grant
and new and revised statutory partially met already by axistins state funding for at least One Year. if the
definitiorm and Programs- NOAA wiU incorporate dw Seciretary finds that the auto Is not

Federal Register / Vol. 57, No. 135 / Tuesday, July 14, 1992 / Rules and Regulations 31107

undertaking the actions committed to development of the state's FY 1992 and a base allocation for section 306 and
under the terms of the enhancement subsequent year section 309 grant weighted formula funding. If funding
grant. proposals. allocations for sections 306 and 309 in
Section 309(d) requires NOAA to issue The final regulations implementing the any year are reduced, the reduction
regulations relating to the new new Co 'astal Zone Enhancement Grants would first be taken from project of
enhancement grants program that Program under section 309 of the CZMA, special merit funding, secondly from
establish: as amended, assume that a state has . -weighted formula funding and lastly
(1) Specific and detailed criteria that must completed an Assessment and Strategy from section 306 funding. This funding
be addressed by a coastal state (including the in accordance with NOAA guidance. allocation sch;me will be a part of the
State's priority needs for improvement as The final regulations are set forth at 15 guidance document for the enhancement
identified by the Secretary after careful CFR part 932, replacing the regulations grant process.
consultation with the State) as part of the currently at 15 CFR part 932. Under the weighted formula approach.
State's development and implementation of The regulations at 15 CFR 932.1 set NOAA will establish state weighted
coastal zone enhancement objectives; forth the basic eligibility requirements formula funding targets. The weighted
(2) Administrative or procedural rules or for receiving financial assistance under formula funding targets will be the state
requirements as necessary to facilitate the s
development and implementation of such ection 309. The objectives of assistance base allocation determined by operation
objectives by coastal states; and under section 309 (b), (c) and (d) are of the formula at existing 15 CFR
(3) Other funding award criteria as are provided at 15 CFR 932.2. 927.1(c), multiplied by a weighting factor
necessary or appropriate to ensure that Section 309(b) authorizes the derived from NOAA's evaluation and
evaluations of proposals, and decisions to Secretary to make grants to coastal ranking of the quality of the state's
award funding, under this section are based States to provide funding for Strategy, as supported by the state's
on objective standards applied fai .rly and developnWnt and submission for Federal Assessment. The application of the
equitably to those proposals. approval of program changerthat weighting factor could result in a
Since the statute required NOAA to support attainment of one or more weighted formula funding target that is
implement the new enhancement grants coastal zone enhancement objectives. higher or lower than the state's base
program immediately, NOAA adopted The term "program change" is defined at allocation.
an interim approach for FY 1991. This 15 CFR 932.3 to include state actions Section 309 requires that the Secretary
allowed time for development of the that change current management ..evaluate and rank State proposals for
statutorily-mandated regulations and programs, such as the development of funding." NOAA interprets the word
identification of each state's priority new or revised enforceable policies, ..rank" to mean that a state's Strategy or
needs for improvement with regard to authorities and state coastal land project would be assigned a position or
the coastal zone enhancement acquisition and management programs. rank, relative to other state submissions,
objectives. In FY 1991, NOAA set aside NOAA believes the. definition is according to its satisfaction of the
10 percent of the funds allocated under generally flexible enough to fund many applicable criteria. NOAA anticipates
section 318(a)(2) for section 309 types of activities that will ultimately that the ranking under the weighted
purposes. These funds were allocated to lead to a program change. However, formula approach could result in several
states based on the formula and NOAA will provide additional guidance ranking categories (so that some states
weighting factors at 15 CFR 927.1(c). to the states on eligible activities. Other would be assigned the same rank.)
The process developed by NOAA for key terms, such as "project of special NOAA will award the remaining
determining a state's priority needs has merit." "fiscal needs" and "technical section 309 funds, which are not
been set forth in NOAA guidance on needs," are also defined at 15 CFR 932-3. awarded by the weighted formula
"Section 309 Assessments and The regulations for allocating funds proach. based on an annual review of
Strategies," issued on May 10. 2991. under section 309 are set forth at 15 CFR aP
NOAA guidance is available from the* 932.4. NOAA will annually determine projects of special merit. NOAA will
Office of Ocean and Coastal Resource the amount of funds to be devoted to limit the funding of projects of special
Management, Coastal Programs section 309. taking into account the merit to the highest ranked proposals
Division, Universal South Building. room amountappropriated under section based on criteria set forth at proposed
724.1825 Connecticut Avenue, NW.. 318(a)(2) of the CZMA, as amended. 15 CFR 932.5(b). Competitive funding for
Washington. DC 20235. NOAA recognizes the need to maintain projects of special merit is a new
The process for determining a state's care funciffig for StatWCORMI zone concept in distributing coastal zone
priority needs has two stages. First. each management programs and has modified management funding. However, NOAA
state develops a public assessment its guidance accordingly. believes that this is the CZMA's intent
document ("Assessment") that reviews NOAA will award section 309 funds and will yield better projects.
each enhancement objective as it by: (1),W6ghted formula and (2) 1 71o allocation process will "ow each
applies to the Oete and identifies the individual review of projects of special- coastal state that has a NOAA approved
relative importance of each objective. merit. Projects proposed for funding Assessment and Strategy to pursue an
Based on the Assessment. NOAA. after under both categories are not state enhancements program. while at.the
careful consultation with the state, entitlements and. therefore, would-be same timeprovide incentive for states to
identifies the priority needs for required to meet the Identified criteria develop and submit more aggressive
improvement in the state. discussed below. NOAA will annually proposals which commit to making the
Once NOAA has identified the determine the proportion ot available greatest improvements toward the
priority needs, the second stage to funds to be awarded to all eligible 'coastal zone enhancement objectives.
development of a multi-year ettategy coastal states by weighted'formula and Its regulattone set forth the criteria
("Strategy"). 71e state. In consultation the proportion to be awarded to eligible for 9"tion 309 project selection at 15
with NOAA. proposes, to NOAA for coastal states based on NOAA's review CFR 932-5. States will be required to
approval. a Strategy that Identifies of individual profect proposals of special meet minimum criteria for projeqts that
specific program changes that the state merit. will be funded by weighted formula. For
will seek to achieve in the identified in response to comments received on projects of speclal merit statles will be
priority areas. I'he Strategy guides the the proposid regulations, NOAA will'set required'to meet both minimum criteria

31~M ~qF~~d~qo~qul ~qR~~s~i~~t~~ ~/~ V~L 5~q7~ No. ~235 ~1 ~qT~~s~q&~3~4 July 14. ~I~qM /;Pales and Re~g~qWa~t~i~~n~

and additional criteria that include the provided ~qf~o~r oral and written ~c~q4~qm~qm~e~8qw section 312~q4b)--~qm~i~nely~. the requirement
merit of the project. N~4qOAA will evaluate by the public. Evaluation reports must to respo~n~q4 in writing to all written
and rank projects of special merit using be issued following each review of state comments received and the requirement
a point system. Following the first year performance~. I to complete the evaluation within 120
of funding under this part N~4qOAA will 'Me 1~q9~2qW Reauthorization ma~r~-~qi~Ated days of the last public ~qmeeti~n~qg~q-w~qin
consider a state's past performance in changes to the procedures for carrying increase the workload associated with
assessing the merit of the state's out evaluations of state coastal the evaluation process. To deal with this
individual project proposals. management programs and national incre~a~'~s'ed workload. the final
The regulations al ~'so set forth pre- estuarine research reserves. (Any regulations revise the definition of
application procedures for financial changes to procedures for evaluation of "continuing review" at existing 15 ~qC~6qF~0qR
assistance under section 309 at 1~q5 CFR estuarine reserves will be included as a 928.2(a) to state that evaluations of State
932.8. As suggested in many of the part of a separate rulemaki~n~qg to revise coastal management prog~r~arm~s will be
comments received on the proposed NOAA's section 315 regulations-) These conducted and written fi~f~tdings prepared
regulations, the procedures have been changes require: A 45~-~qday notice for at least once every three years, rather
simplified. S~qi~a t~es are encouraged but public meetings, written response to all- than at least once every two years a~s
not required to annually consult with the written comments an the evaluation. previously provided. (NOAA'~s estuarine
Assistant Administrator ~qor his/her and completion of the final evaluation reserve regulations at existing 1~q5 C~qF~0qR
designee. Further, only one submission report within 120 days of the last public ~8qW~8q2.40~q(b~qi already provide for evaluation
prior to the final application is required. meeting held in the state- The IWO of estuarine reserves at ~4qk~4~qw~qi once every
This "d~m~qft proposal- would include all Reauthorization amended section 312 of three years.) The phrase -but not mare
of the inf~or~n~id ~ti~on necessary to make the CZMA to authorize new i~n~qte~ir~qim~ than once e~v~0qM year" has been deleted.
grants for the section 30~q9 projects the sanctions which provide for suspension so as not to restrict unnecessarily
state proposes for funding during the and red~qk~qw~qA~qi~o~n ~of any portion of NOAA'~s flexibility to conduct issue or
next fiscal year and would be ~subt~nitted financial assistance awards to state problem specific evaluations, as
on a schedule set by the Assistant coastal ~qm~a~n~a~qgernen~qt~qp~0qWams~or . described below.
Administrator. ~e~s~qh~mu~qine reserves if the state is ~qh~qd~qk~0q% In adds because ~4qN~4qOAA
The procedures for submission of to adhere to its approved p~ro~0qr~qm or recognizes that significant changes can
formal applications and for reviewing reserve management plan. or a ~qp~o~8qf~8qt~qio~n occur in Own years. the final
and approving projects under section of the program or plan. Final sanction regulations at e~3ci~stin~qg ~q1~q5 C~qF~0qR ~q9~qZ~8qL~q3~q(~qb~q)~8qM
309 am set forth at 15 CF~0qR ~2qW~8qL7. provisions at section 3~q2~q2~q(d) require the provide for issue or problem specific
Applications for financial assistance Secretary to withdraw program evaluation to be conducted between
under section 309 will be included with approval and financial assistance it the regula~qf~qly scheduled evaluations. In
applications for financial assistance state refu~s~qu to take corrective actions response to public comment. the
under subpart I of existing 1~q5 C~qFR part specified u section 3~q1~q2~q(~c~q)~q(~q2~q@ regulation has been revised to clarify
923. States will be notified of their The basic r~e~qqu~qb~*~qm~e~n~qts for review of the conditions under which an issue or
section 30~q9 awards at the same time that performance are set ~qf~art~qh~a~qt existing 1~q5 problem specific eva~qlu~a~0qb~on will be held:
they am notified of their section 3~8qW~q/ CF~0qR part ~q92~2q& They define key terma. (1) To follow~-up an potentially serious
3C~q6A award~i~L awl as "c~on~tin~i~, ~8qW review." and problems or issues identified in the nm~qwt
The re~qg~4qWa~qt~qi~qm~s set fix~qt~qh the provide t~qha~qt eva~qk~i~ati~o~n~s will be
ec~e~n scheduled evaluation. or ~q(~q2~q) to
procedures for revising a state's conducted in the ~co~o~sr~se of evaluate evidence of po~qlen~qda~qRy serious
Assessment and Strategy at 1~q5 C~qFR reviews and that wr~qi~4qf~4qt~e~n findings ~q"~4q91 he problems or issues that may arise during
932.8. States will be required to su~qb~r~uit prep~qi~qi~6qnd the day-to-day mon~qitor~qing.o~qf state
proposed revisions to the Assistant Specifically. these final regulations performance of ~qg~qm~qt ta~8qd~qm and o~qfh~er
Administrator prior to the initiation ~o~qf revise existing 15 C~qFR a~qZ~2qL~q4~q(~qbX~qZ~q) to
the contemplated change~. Based an the requi~ve that notice of public m~ee~f~; P~r~o~4qo~8qm~qm ~qi~rnp~qi~qg~qmen~qta~qt~qion ac~qt~qiv~qi~qd~e~s~ in &a
extent to which the proposed r~e~. ~o~n(~s) be provided at least 4~q5 days in int between scheduled evaluations~.
change the original scope of t~qh~e st~a~8qf~8qt~'~s, They revise existing 15 C~qFR These issue or problem specific
Strategy, the Assistant A~qd~qminix~qt~2qM~or~- to require that final ~8qf~8qi~ndi~m~4qp be evaluations w~2qf~2qf~2ql s~qt~8qM be subject to Me
may require the State to provide public com~qple~qt~ed~8qw~qi~qthi~n 120 days of ~qt~qh~e lad public participation and other ~n~d~u~ql-21-
review and c~om~o~qwnt on the proposed ~' public m~e~et~in in the state. 7~q2~qw requir~ement~s~of section ~6q= Sta~qt~qa~x w~2qS
revision(s) in accordance with N~2qOAA negation sp~q@~qc~qi~qf~qi~a~s that copies ~o~qj the be notified of an issue or problem
guidance. final findings document will be sent to specific evaluation In the
all persons and ~o~r~qg~a~z~qiza~qt~qi~o~n~s who as they are n~e~qd~ql~qied. ~of a ~v~a~qg~o~ql~e~2qdy
2. Review of Performance (Program participa~4qA~qe in the ~qevi~8qg~qua~qt~qi~qa~qm~qL Persons schedule evaluation~q.
Evaluation) w~8qh~qo attend a public meeting or are The ~qr~20qV~qal~qa~6qb~qo~8qo~qr~qm~qe~2qt ~8qf~2qW~28q& the ~0qpr~qo~qic~qes~qs~q,
Section 312 of the CZMA requires a interviewed dud" an ev~qal~qu~qe~20qd~6qm~qa~qmay for i~qnv~qok~6qi~qm~20qg ~0qin~2qi~qecim ~qsa~qn~qc~8qt~6ql~qe~qa~qs at
continuing review of t~8qhe performance of beask~qed~8qt~qoc~qom~0qp tea card ~qo~qr~qs~4qi~0qg~qu~16q4n existing IS CPR ~2q9~12q=~12q4~8q(~52q4 They ~8qm~0qplac~qe
coastal states with respect to coastal she~qe~2qt~qc~qo~qn~qt~qa~qi~qn~qi~qn th~qei~qr~qsa~qi~qne~qa~qndaddr~qe~qs~qs the old ~qs~qe~24qg~qu~8ql~qa~8qt~0qi~qo~qn~qs an ~qaW~2q6~8qw~0qd~8q=~q,~qQf
management. and detailed written and indicating a desire to ~qt~2qwei~qve the financial a~qssis~04qa~qnc~qe for ~8qI~qs~24qA~8qm~qe to make
findings on the extent to which ~0qt~8qh~qa state final ~4qAn~qd~qi~qD~04qa~qs. A new ~qr~20qq~6qp~32qAati~qon has significant imp~qr~qo~qm~qe~8qm~qe~qc~12qM~q6 which were
has implemented and enforced the been added at existing ~8q2~6q5 C~4qER deleted because ~8qt~8qh~qs~q-~qs~4qi~0qg~qs~0qi~28qf~28qi~qc~8qo~12qg ~q.
program approved by the Secretary. ~12qV~16qW~2q(~8qb)~8q(8~4q1 r~qe~20qw~qa~qi~qr~qi~qng ~8qt~8qh~12qd ~q&~8qH final ~6qi~4qm~6qp~qr~qo~qv~qe~qn~8qw~8qat ~0qp~qr~qo~4qw~qs~8qm~qs won ~28qd~qe~8qh~08q"~4qd ~6qh~qa
addressed the coastal management ~q. ~20qW documents contain a ~qs~qe~qc~8qt~6qi~qa~qs the =a R~qeau~28q&~qo~16qds~qs~6qd~8qm ~28qne Process
needs identified in section ~2q3~16qW~8q(2~6q)~2q(A)-~56qM w~qthich specifically identifies. for Invoking interim ~qs~qe~0qa~qc~4qt~qi~qon~qs includes
of the CZMA. and adhered to the term summ~qi~qld and responds to the w~qZ~0qi~2q1~16qW~08qA notice ~8q1~q0 ~2qt~2qh~qe ~08q*~4q1~q0~4q1~q0 and ~2q9~0q1~20qm~qo~qr~4qt~ql~qini~8qt~4qy ~8q1~q0
of any grant or cooperative a~28qg~6qw~6qm~qe~qnt comments received during the comment o~qm ~8qa~20qW ~4qnbu~8qt the finding of
Section 312 further requires that a public evaluation process. ~qno~8qD~qa~8qd~8qh~qer~qe~qS~8qM ~8qM W~8qh~6qi~qg~28qh this ~qS~qS~8qW~4qJ~12qk~2qM
meeting be conducted as part of each In addition. NOAA has.~q,~8qde~8qt~qermi~qn~qed are baud ~8qb~qe~8qf~8qi~2qn~qs a~20qw action is ~12qm~2qk~2q&L
evaluation and ~0qT~6qhat opportunity be t~0qha~4qs two of the ~qsta~0qtut~0qm~8qv changes to Indicators of ~qa~q0W

Federal - Register / Vol. 57, No. 135 / Tuesday. July 14, 1992 / Rules and Regulations 3111

provided to inform states of what state comments on the draft findings. evaluations under the proposed
NOAA expects and on what basis The 1990 Amendments instituted a fiew revisions to I 928-3(b)(9).
interim sanctions might be invoked. requirement to complete the final Response: NOAA agrees and has
To implement the changes to section findings within 120 days, measured from revised the regulation to indicate when
312(d) of the CZMA made by the 1990 the date of the last public meeting in the it would consider undertaking an issue
Reauthorization, existing 15 CFR state. The revisions simply implement or problem-specific evaluation. NOAA
928.5(b) entitled "Withdrawal of the new requirement. They do not . . does not believe any change is needed
Program Approval and Financial change the state's right to comment on regarding notification mechanism since
Assistance" replaces the references to the draft findings or NOAA's obligation the regulation states that the procedure
,,unjustifiable deviation" with the to consider the state's comments. of � 1928.3 and 928.4 will be followed.
requirement that the Assistant (b) Another comment asked why the This includes the notification procedur(
Administrator withdraw program final evaluation findings should only be at � 928.3(b)(3).
approval and financial assistance if he/ sent to those completing a card or sign-
she finds that a state has failed to take in sheet when the amendments call for Section 928.5 Enforcement
the actions required under the interim the final findings to be sent to all Comment. Several comments
sanction provisions of section 312(c). participants in the evaluation. concerned the procedures for imposing
Response: NOAA intends to send interim sanctions.
D. Summary of Public Comments and final findings to all who participate in (a) One comment stated that the
Responses evaluations. The purpose of the card or enforcement section was onerous and
On February Z2,1991. OCRM sign-in sheet is to verify the addresses dealt only with mandatory
distributed issue papers on the and affiliations of persons who speak or recommendations;
rulemaking for the Coastal Zone are interviewed during the evaluation Response. The comment appears to
Enhancement Grants Program and and to offer multiple individuals from confuse the regulations implementing
Review of Performance to the same organization the option of the interim sanctions provisions with
approximately 225 interested parties on receiving individual copies or a single changes made by NOAA to the foirnat
a mailing list established for this copy for the organization. as they wish. of its evaluation findings. Recently, in
rulemaking and maintained by OCRM. NOAA has modified the language of this conjunction with notifying states of its
Thirty-eight comments were received. regulation slightly to clarify its intent FY 1992 evaluation schedule, NOAA/
After considering these comments, (c) One comment recommended that OCRM informed them that it was
NOAA published a Notice of Proposed NOAA send a noti announc N the making two changes to the format of the
Rulemaking (56 FR 52220, Oct. 19, 1991) availability of the 9aft evalu@tion evaluation findings. one of these
which invited public comments for 45 findings to all participants in the changes is to distinguish between
days. ending December 2.1991. A public evaluation at the time the draft findings suggested or necessary actions. Since
meeting was held on November 20, 1991. are sent to the state for review. the format of evaluations is not
Comments were received from 41 Response: NOAA disagrees. The draft specified in regulation. the regulations
sources. including I Federal agency, 3 findings contain preliminary conclusions are not affected by this change. The
NOAA offices. 20 coastal states and and tentative recommendations and regulations at I 92ILS specify the
territories (30 letters), 3 interest groups, include material subject to revision. edures for invoking interim
They are made available for review and Proc
I business. 2 members of the Coastal . sanctions. Thes procedures will be
Ocean Policy Roundtable, and I comment to the organization responsible e
Congressional committee. The for the matters addressed. invoked only if a state-is found to be not
majority Comment. One comment ooncerned adhering to all or a portion of its
of commenters submitted comments on proposed I 928.3(b)(8). That comment approved management program
the regulations proposed to govern the recommended that NOAA summarize (b) One comment expressed concern
Coastal Zone Enhancement Grant and respond to oral comments made at that suspension and redirection of funds
Program. A summary of the significant the public meetings and attach the full alreadyallocated by the lead state
comments received together with. text of the written comments it agency through signed contracts could
NOAA's response organized by . cause undue hardship.
summarizes and responds to as an
applicable subheading appear below. Response. NOAA's procedures for
appendix to the final
A. Part 928--Roview of Performance Response: NOAA disagrees. The invoking interim sanctions call for the
Section 928.3 Procedwes for statute requires NOAA to respond only state to develop a proposed workplan
to written comments. recognizing the which may propose alternative actions
Continuing Roview of App"ved State difficulty of summarizing and and/or an alternative schedule to
Coastal Zone Management Arogravo responding to the vast amount of oral correct a '2 'on-adherence problem.
Comment- Three comments expressed. comment on evaluations. Even NOAA expects thatits consultations
concern with the proposed revisions to restricting a summary to oral comments. with the stalson this workplan would
I 928.3(b)(7). at public meetings would require serve to ideutify and provide a means to
(a) One comment objected to the those informal meetings into. &Orm avoid the undue hardship identified by
deletion of the phrase "state coinments" hearings with written transcripts. This the 00MCMter. ."
which the commenter felt may indicate would add greatly to the cost and (c) One-comment recommended that
unwillingness on the part of the workload of evaluation without a the state-be required to provide for
Assistant Administrator to respond to a corresponding benefit. Oral comments public review and comment on the
state's position or reasoning. are considered in developing the - workplan It submits pursuant to
Response.- No such intention should findings and recommendations and are I 92&5(a)[vi).
be read into this revision. Subsection cited as appropriate in the findings Response.- NOAA believes that public
92L3(b)(7) established the timeframe for document. review and comment Is inappropriate.
completing final evaluation findings. Comment.- One comment sought - Of course a state is five to solicit
Previously, that timeframe was criteria and a mechaxdsz@ for notifying- comments regarding its proposed
measured from the date of receipt of states of issue or-problem-specific workplan.

3~~M ~qF~da~al R~o~g~is~t~s~r / V~qoL 57, No. 1~35 / Tuesday, July 14~ I~qM / Rules and Re~qp~la~qd~~m

(d) One comment~er recommended that [including] ~qIoc~8qW permitting or z~o~n~qj NOAA be~ql~2qL~oves the a~ql~qlo~ca~qd~qw ~c~qd an-
the "schedule of actions that~t~should be decisions that are inconsistent with funds by we~0q*~qhted formula and some b~qy
undertaken by the State" In state standards or criteria ~* ~* ~*" may individual project evaluation and
~1 928.~5~(a~qXl)~q(~qh)(A) be one that Is be outside a state coastal zone rankin~qo provides a reasonable
developed with due regard for the -~4~7~1~1~12ement program's control, accommodation to state needs for
state's administrative abdity to satisfy ~4q&~s~6qpons~e. This indicator refers only to longer-term predictable funding while
it. state coastal programs that have chosen assuring that the funds w~qi~qU go to the
Response. NOAA's procedures at the local coastal program form of best~-p~qiro~qjects. Therefore, a~qf~qthoug~qh some
928.5(a)(2)(vi) provide for the state to organization. All of these programs must changes have been made to address
suggest an alternative schedule. be found to have a legally enforceable specific suggestions and to ~simp~2q* the
Comment.- Several comments mechanism to assure local coastal requirements where possible, the basic
concerned the indicators of non- programs they approve will adhere to provisions contained in the proposed
adherence that NOAA may consider in state standards or criteria. Therefore, if re~qg~u~4qktion~s remain unchanged.
.deciding whether to invoke interim this indicator were truly outside the Section 9~q32.~q1 General
sanctions. state coastal management program's
(a) One comment called far the control. that program would no longer Comment.- Seven comments expressed
development of national standards f~qor be appr~ovable. opinions about the general nature of the
judging the performance of state coastal (~qf) One comment requested NOAA regulations.
zone management programs. define what it meant by "in a timely (a) Several comments supported the
Response. Given the statutory fashion" at ~q� 9~q2~2q&~q3~q[a~q)~q(3~q)~q(i~q)~q(G). enhancement grants program. One of
flexibility given to states in de~s~qi~6qp~2qf~2qt ~0qR~e~0qVo~z~t~e~e.~- NOAA has modified this them stated. however, that a state
the content and organization of ~qd~ie~qir indicator to clarify that program ~c~8qA~s~n~qga~s should not be punished if it did not
programs, NOAA has concluded that must be submitted within the and participate t~n the program.
national standards applicable to a~8qg time~qfr~ame~s specified at I i ~6q=8~q1 Response: The enhancement grants
programs are infeasible at this ti~r~se. 923~.~2qf~2qt under ~q� 309 is a voluntary
NOAA h~a~s included several indicators ~qf~qg) One commen~qter recommended program
on non-adherence which encompass the adding to the indicator at ~qJ 9~2q=~4q9a)~q(3~q)~q(~qf~qi~ql program. Fa~qi~qb~ire to participate will in no
way affect funding of base programs
various approvab~qle organizational consideration of ~8q&~a magnitude of the
structures of approved programs and injury or threat to coastal resources under ~qJ 30~2q&
which provide guidance to the ~s~qt~s~qt~2q& an caused by the ~n~on-ad~qhere~nce~. (~qb) One comment expressed concerns
what NOAA expects and on ~v~r~2qW b~o~qm ~4qRe~spa~qw~q& N~8qOA~0qA~q:s indicators abo~ul the use of a wei~0q&ed formula for
NOAA w~o~u~qj~8qd ~c~o~n~s~qk~ql~e~r imposing interim encompass both procedural and any portion of the~qgra~nt~s. Ile comment
sancti su~qb~2qoant~qive aspects of program stated that the proposed weighting
(b) One ~c~ou~tment cautioned NOAA performance. Although NOAA don not formula was too cumbersome.
not to rely on the new requirements of believe It is appropriate to modify the unnecessarily complex. and not in (he
Sections ~q30~q6(d~q) (14~q@ (15~q@ and (~q1~q8) in section ~qmd~qic~a~qted. NOAA does ~a~0qv~ee spirit of the original CZMA~.
assessing state performance u~n~qt~qf~ql that Us consideration of the substantive ~4qRa~0qq~qw~n~qw NC~qkAA believes ~2q"~qt a
guidance has been issued to the ~s~qt~a~ql~e~s aspects of program performance should weighted ~qf~a~r~qm~a~l~ql~e is an appropriate
and they have had a r~e~a~s~i~o~n~ab~qi~a consider the ~o~n-t~qbe-~6qsr~o~u~nd ~imp~e~e~qt~s of a me~qdwd ~o~qf carrying ~o~u~qt ~6qC~6q@~a ~i~n~h~an~t
opportunity to comply. ~qP~o~ss~ih~qi~s ~qn~an~-adh~er~e~nc~e ~q1 for N~4qOAA to "rack and evaluate"
R~~pd~n~s~e. NOAA agrees and has Therefore, N~4qOAA ~qb~a~s ~n~uxli~qf~qi~e~qd proposals.
revised its ~i~-dic~s at I ~qV~q2~8q&~q5~q(~@~8qX3~8qXQ I 9~qZ~2qL5~q(a~q)~q1~q3)~q(~q1)~q(A~ql to ~a~n~c~a~impa~s~s so& ~q(4~c~q) Several comments stated ~qwa~qJor
(B) and ~q(E) accordingly. consideration~. concerns about the competitive ~n~o~qb~ar~e~
(c) One c~o~qm~qmen~qt~er stated ~8qd~ia~qt the ~4qCa~qm~qm~a~n~8qk One ~c~o~s~am~e~nt concerned of ~4qvant awards.
regulatory requirements at I ~2qM~2qM (" the p~r~6qq~qp~o~s~e~qd revisions to the: ~- I ~- ~, ~M~qi ~0qA~G~MF~q@ NOAA babe ~P that
referenced in I ~q9~q2~8qL~qS~q(a)~q(3~q)~q(~qi)~q(B~qI) did ~qs~6qW on withdrawal of program approval am Congress i~s~qd~o~o~8qd~e~qd ~qtka~qt Ii ~2qM
become legally b~qUx~qi~qL~ng until April ~4qL financial assistance~. ~q7~q1~8qW c~4qm~q-~m~a~t ~0qv~ant~s be - - ~qM ~qd~qW~0~&~6qW~qh ~AL ~-
1978, and therefore should not be N~qCIAA increase do ~c~o~qm~qp~~d~w~r~o~qp
applied to state programs approved period for states to ~r~e~s~qp~qw~8qW to a (d) One comme~at recommended that
before that date. ropo~qwd notice of withdrawal ~2qk~c~s~s a an a~2qhernative process for allocating
R~s~qp~ws~e~: Alt~qho~u~8q& not applied ~r~m~q-~i~n-~- ~a~qf~qa~qD days to a ~qm~a~xi~s~s~u~qm of ~q0~q0 hinds under ~a~qm~0q*~q= 3~2qW be ~qi~n~s~6qf~6qi~qb~ut~ed for
retroactively, states whom pr~qo~qg~r~a~r~es days. in light of N0A~4qW~a ~qp~qm~qp~os~8qW to ~4qFY ~6q9L and that ~2q*~* majority of ~2qdw
were approved prior to ~4qA~4qpil 1. 2~6qW~4q& increase the "nod between MAN~0q* money be ~qd~8qk~2qk~qd~qn~2qb~qd ~n~oi~n~qg the ~s~e~s~s~e
were given a rea~s~o~n~a~qh~l- t~qi~z~qw to bring scheduled evaluations hum ~q2 ~qt~o 3 ~qy~qe~s~qm formula as for ~qs~qe~qc~8qti~qo~qn~q*30~2q5 leading
their programs into c~qo~qn~36qk~qr~qz~qaa~qnce with ~24qA~2qM~28qP~6qM~6qW There in so ~qf~36qW~qati~qon~qe~32qw~28qt An~qe~32qf~32qf~32qi~2qa commented that ~2qd~2qw ~qi~32qW~qas
the new requirements~q. At this ~6qf~6qi~8qm~qo~qi a~8qH b~qo~08qb~qv~qe~2qm the period of time between
approved programs ~8qka~qve ~2qb~qe~qs~qs~qi found to ~qr~qo~24qs~qu~2ql~qar~8ql~4qy Scheduled ~qe~qva~2qll~qu~qN~6qdOM~qS ~6qi~8qnd ~36q" should be adopted as Interim fi~qn~qo~36qr ~2qmd
comply with ~4qi 923A~6qC~8qL period of ~4qU~6qm allowed~, far @~2qt~qo~16qo ~2qf~2qinal~4qix~qe~2qd after ~qe~4qxp~qed~4q- ~q&~qa ~0qSa~4qi~qn~qed.
(d) One commenter requested that ~2qd~2qo r~qe~qsp~qo~qs~qt~qe~qs ~2q49 ~q6 ~qm~qo~6qdo~qe of ~8qw~6qi~8qt~8qh~8qd~qR~qI~qD~qW~qI~qM~qM~8qI Of ~28qA~qo~20qV~qo~qs~8q@ NOAA ~8qb~qe~8qll~qe~qv~qe~qs~; ~28q&~qat
statutory and regulatory basis ~2q1~04qw program approval~q. NOAA believes ~2q40 ~0qF~qI~q-~qM w~20qMh go ~qa~8qd~16qq~2qW~0qi~2qm ~q*f ~8qd~qi~qs~qe~qs
requiring not= that a ~qn~qu~qinag~qem~qe~qn~2qt days for s~8ql~qat~qo response ~2q10 the ~20qF regulations ~qv~24qA~2qU met ~0ql~qm~32q@ With ~40qf~40qt
program decision would conflict wi~2qt~2qk a withdrawal ~qn~qo~8qt~2qm~qe is ~qs~qu~8ql~28qf~28qi~qci~6qw~6qL fair ~qAk~qa~2qd~q'~4qd~qo~2qw~8ql~20qy ~0qh~2q@~qo ~qd~8q(~20qS~qPIn~8qt~qs Under
local zon~4ql~4qAg ~qord *nonce be ~qa~12qd ~32qk~qir~2qth In then regulations for ~24qFY ~2qQ~12qL ~20qM~28qQA~24qA don
I ~q92~6qL~q5(a)~2q(3~4q)~48qM~2q(~52qM~q. ~4qI~24qL Part ~24qZ0~q011~q0 ~28qM~2qO~2qM~2qM~2qM~qU~2qt not ~8qb~qe~4ql~0qi~2qm~8qm that &a Went of &a C2~0q3~4q4A
Response-, NOAA has ~2qd~6qMe am ~28qG~qI~qM~qE~2qA~qS is for NoAA in distribute ~8qt~8qb~qe~qse ~32qf~32qim~qcls
~q(e) One comment expressed c~qo~6qo~0qp~0qer~qi~qn' NOAA ~qr~qe~6qw~8qived many comments ~36q&~16qM t~2qb~6qm~qv~64q* ~32q&~q* use of *a s~qecti~2qm 3~16qW
that the review standard of ~q"n~qo~qn~q- were ad" of Us ~qr~24qq~6qp~2qi~8qi~qa~0qd~qo~qn~qs. ~8qf~qo~qrm~qV~8qU~q6 ~24qm~28qmA b~qa~4qb~qo~qv~qe~qe ~8qW~qi~qs~8qt the is~qs~qe~qs,
compliance of local coa~qs~28qW program How~8qi~qv~qo~00qm NQAA ~28q&~qe~4qb~q&~20qW~qc Of Potential ~2qa~qm~4qo~qm~4qd~8qm~qm~qa~8qi~qw IQ the
with the approved ~qs~4qt~qi~04qf~04qt proven ~qs~0qtr~qu~qc~4qtm~qe ~qo~0qf~12qu~qs ~4qM~12qo~0qd~qa~2qd~qo~qu~qs, is ~qS~qO~4q=d. ~qr~qe~6qg~qu~6qb~12qf~12qt~qa~qs is p~qo~qs~qs~qo~00qm~4qm and dug As

Federal Register Val. 57, No. 135 Tuesday, July 14, 1992 Rules and Regulations 31111

majority of issues can be addressed in Comment- Two respondents offered Section 932.4 Allocation of Section 309
periodic guidance documents. comments on the definition of Funds
Section 932.2 Objectives "Assessment". Comment Twenty-one respondents
(a) One commenter stated that the commented that the base level of
Comment. Three comments concerned guidance for preparing an assessment funding under section 306 should be
the objectives. should have to be submitted to public maintained.
(a) Two comments stated that the review just as the state must have public Response. NOAA agrees that a base
regulations too narrowly defined the review as an integral part of the dollar level of funding (based on FY 91
objectives in regards to demonstrable assessment process. funding) should be maintained and will
improvements in the way resources are Response: NOAA routinely circulates modify its guidance document
managed. They cited section 309(a) and draft guidance to the states and other
d) to show that other methods of interested parties for comment prior to accordingly. The guidance document is
initiating its use. The guidance is not of also being amended to reflect a three
management may be warranted under such a nature that it requires comment tier approach to funding: Base section
the enhancement grant program. through a formal public notice process. 300 funding, a base weighted formula
Response: NOAA disagrees. The (4) One commenter stated that the funding. and project of special merit
overriding factor in determining both the proposed definition was too negative in (PSM) funding available annually on a
objectives and the definition of that it only mentioned "problems" competitive basis. Each of the three
..program change" at I 932.3(a) is the related to the enhancement objectives. levels would be set annually after
use of the phrase "may make grants to Response: NOAA agrees and has used appropriation levels have been enacted.
coastal states to provide funding for the phrase "problems and opportunities" If less funds are appropriated than the
development and submission for Federal in the final regulations. previous year, the PSM funding would
approval of program changes." Comment.- Two respondents offered be reduced. If additional cuts are
Therefore. no changes have been made conunents on the definition of needed. weighted formula funding
to this section. "Strategy". They felt that the strategy would be reduced. followed. as a last
(b) One comment sought the addition document was being too narrowly resort. by reductions in base section 306
of two objectives. defined and that it should focus on a funding.
Response: The objectives in this wider variety of issues and not Comment Sixteen respondents
section reflect the objectives in section necessarily identify all implementation commented on (b) the allocation of
309(a) of the CZMA. NOAA does not methods that may be used. They pointed funds between sections 306 and 309.
believe that additional objectives can be out that a part of the strategy may be to One party commented that the
added unless the CZMA is further identify the tools. regulations should reflect Congressional
amended. Response. NOAA does not intend to intent by providing that the full 20
exclude meaningful visionary elements percent of C2M funding go to section
Section 932.3 Definitions from the strategy process, but must 309 unless, due to lower than
Comment. Twenty-five respondents insist that the documents submitted anticipated appropriations. base state
commented on the definition of have defined goals and objectives with programs would be impaired. Fifteen
"Program change". One comment stated paths and benchmarks to determine if respondents recomm nded that the
that the definition should be tied the objectives are being met. While Assistant AdmIn4strator set the
directly to accomplishments such as some "solutions" may not be evident at allocation to section 309 at the minimum
routine program implementation (M) or the beginning of the process, NOAA (10 percent) level unless the base
program amendments and should not be would like a clear. focused description section 300 funding increased.
used simply to implement existing of the process to be used to develop the Response.- NOAA believes that the
programs. Twenty-three respondents fail enforceable policies.required of the funding levels should be set annually as
coastal states and territories) felt the enhancement grant program. a parrof the guidance document after
definition was much too narrow. The Comment. Two respondents appropriation levels have been set by
most frequent clarification was that the commented on the definition of -riscal Congress- The rule merely repeats the
definition should include limited needs". They stated that the definition language of section 3W and no change
implementation of program combined with the requirements at has been made. .
improvements developed under section I 932.6(b)(5)(i) am far greater than are Commnt:- Twenty-two respondents
309. Another frequently recommended required to adequately show fiscal need. commented on (c) the allocation of
expansion of the definition was to allow Response. NOAA is required to show funds between weighted formula and
program improvements that were that the Federal funds are needed by the projects of special merit. Of these, one
somehow under the threshold-of RPI. state prior to making grant awards. no commenter recommended that at least
Response: NOAA believes that the requirements at I 932.6(b) may seem 9D percent be allocated to weighted
objective of the enhancement grant extensive, yet are not meant to require form-d- four commented that at least W
program is "program changeii". Primarily lengthy analysis. Therefore, the parent go to weighted formula: two
enforceable policies. Historically. states langtHigehas been retained in the final stated 75 p a c t to we*ted formula'
have tended not to submit routine regtdadon& one recommended at least 00 percent to
changes due to the amount of processing Comnlenb0ne respondent weighted formula. Ite remainder stated
necessary to initiate these changm commented that the definition of that -as much as possible go to
NOAA will consider revising its "Assistant Administrator" needed to weighted formula" or "the allocation of
guidance for. routine program changes specifically defirie who would be the funds be made as predictable as
(called routine program implementation "desir"". * possible@-
or RPI) to effectively reduce the amount Response. Delegation of Authority ReWotow NOAA is establishing. as a
of paperwork required of the states so. within NOAA will follow normal matterof policy, as previously suted in
that this enhancement grant program defined WAA procedures. AccwdhWy. die respoese to commerits an section
can run efficiently. no change is needed to this definition. 9"1) abom a base weighted formal&

31112 Federal Register / Vol. 57, No. 135 / Tuesday, July 14, 1992 / Rules and Reguladons
----------
dollar amount rather than a ratio Response. In an effort to make the comment: one conunenter suggested
between weighted formula and projects application procedures lea complicated, that a public review step be added to
of special merit. This will give the states in addition to the a ss and the
changes made at both the pre-propo9al Proce
more predictability in funding multi-year 1932.5, other changes have been made. strategy revision process.
strategies and projects. This funding In 1932-8. pre-submission consultation . Response: Public Participation in the
criterion will also appear in the is made optional. The regulations also strategy amendment process may be
guidance document. clarify that the initial or draft proposal required by the Assistant Administrator
Comment: Several respondents is in the same format and will contain at 1.932.8 if the changes significantly
commented on section (d) weighted the same information as the final revise the scope of the approved
formula funding. - application at 11932.7. strategy. Public participation at the draft
(a) Several commented on the range of (b) One commented that NOAA proposal stage is not necessary due to
weights as applied in the guidance. should avoid the urge to "over-quantify" the direct linkages to the assessment
Response., Section 932.4(d)(4) merely the process.
states that the Assistant Administrator and strategy development processes.
Response: NOAA believes that the Comment: One respondent
may set a range of weights. NOAA process outlined in 1932.5 is an
believes that the actual range of weights objective and fair process without recommended amending J 932.6(b)(3) to
allow expenses for capital projects.
should be set forth in the guidance unnecessary reliance on quantification. Response. NOAA disagrees.
document. as opposed to the regulations, Comment7 Several parties commented Congressional intent clearly indicates
so that it can be readily amended to on (b) the criteria for projects of special that enhancements be developed for
reflect changes in funding levels and merit. coastal zone management programs.
experience with managing the program. (a) One commenter stated that inter- Comment. One respondent
(b) Several commented that the state projects should be given higher commented that I 932.6(b)(8) be
weighted formula process was much too priority. amended to allow states to submit
complicated and subjective. Response. The former section 309 of proposals for more money than the
Response: NOAA has revised this the CZMA dealing with interstate grants weighted formula funding target, so as
section to clarify the actual process to was repealed as a part of the 2990 to put a state at an advantage to use
be followed in the review of weighted Reauthorization. Therefore, projects of funds not used by other states.
formula projects which will make it less this type are ineligible for funding under Response: NOAA has clarified its
complex. In regard to the. subjectivity the new section 3W, however, they are regulations accordingly. However.
comment. NOAA believes that the eligible for funding under the new NOAA retains the right to choose which
detailed process outlined in these section 306, the Coastal Zone projects are funded with weighted
regulations and the guidance document Management Fund. formula or project of special merit funds
will ensure the objective application of (b) One respondent commented that if additional funds are available.
the standards. the terms "overall benefit of the project Comment! One respondent
Comment: Eighteen respondents to the public" and "transferability" recommended that an additional
commented on (e) funding for projects of should either not be used or should be requirement be added to I 932.6(c)(2) to.
special merit. Of these, seventeen defined prior to their use as evaluation ensure that technical adviso* rs have a
expressed their concern about interstate criteria. Another respondent commented knowledge of the specific geographic
competition, and one expressed support that "technical needs" should not be area upon whibb they are commenting.
for the process and recommended that used an evaluation criteria. Response. NOAA agrees as a matter
there not be any caps placed on the Response. NOAA believes that all of policy to ensure regional
amount that any one state should be three of these criteria are appropriate representation of any external
able to receive. and necessary evaluation measures. reviewers.
Response: NOAA continues to believe Section gaZe preopplication
that the projects of special merit are a Procedures Section=7 FormolAppikationfor
vital part of the enhancement grants Knancial Assistance and Application
program. We are refining the FY 92 Comment. As stated at I NZ& many Review andApprova!Procedunw
guidance document to address the issue commenters stated their opinion that the Comment Eight respondents
of caps on individual state- grants under evaluation and application processes commented that interim regulations
this program. We believe that increasing were too complex. should be followed for FY 92 funding. as
the amount of funds available under Response. NOAA -has simplified the the time periods outlined in the guidance
weighted formula funding has made the process in the final regulations. The - cannot be meL
projects of special merit (with lower "pre-submission consultation" has been [email protected] These comments generally
funding levels) even more competitive made an optional process due to the refer to issues considered in the FY 92
and thus caps for individual states may high level of consultation that will be guidance document. NOAA believes
not seem appropriate at this time. The required during the assessment and that proceeding with adoption of these
guidance document is the appropriate strategy preparation. Further. the."Pre- regulations will not interfere with the.
place for discussion of these caps. proposar' process has been clarified by fair and timely issuance of section 309
renameng it the "draft proposal" to
Section932.5 Cr1tertaforSecbon3W indicate that no additional information grants for FY OL
P@-oiect Selection is required for the final application. IV. Odwr Acdoes Associated With the
Comment- Twenty respondents Commentr Two respondents Notice of PIraposec! Rulemaking
commented on the general project commented that travel should be an A. Executive Order 12W.- ReSulatory
selection criteria. eligible expense under the enhancement Impact Analysis
(a) Nineteen of these respondents grants.
commented that the procedures outlined Response: NOAA agrees and has Execiative Order I= requires each
in the proposed regulations were much revised I 932.0(b) to include travel as an Federal agency to determine if a
t cumbersome. allowable e*pen". regulation is a -m@W rele an defined

Fildwal RSSWw / Vol. 57, No. 135 / Tuesday, July 14, 1992 / Rtfles and Regulations $1113

by the Order and. "to the extent requirement for Assessments of State E Executive Order .12612
ermitted by law," to prepare and priority needs for improvement in the
consider a Regulatory Impact Analysis eight national priority areas and This rule does not contain policies
(RIA) in connection with every major with Federalism implications sufficient
Strategies for making those to warrant preparation of a Federalism
rule. NOAA has concluded that this is improvements and is necessary to assessment under Executive Order
not a "major" regulatory action. as implement section 309(d) of the CZMA. 12617-
defined by the Executive Order. because as amended. which requires the
it will not result in: Secretary of Commerce to identify each -List of Subjects
(1) An annual effect on the economy State's priority needs for improvement. 25 CFR Part 928
of $100 million or more: after careful consultation with the
(2) A major increase in costs or prices States. These Assessments and Administrative practice and
for consumers. individual industries, Strategies will replace an existing procedure. Coastal zone, Grant
Federal. state or local government reporting requirement (part C of the programs-natural resources, and
agencies, or geographic regions; or annual performance report) for FY IM. Natural resources.
(3) Significant adverse effects on Therefore. the paperwork burden has 15 CFJ? Part 932
competition. employment, investment, been minimized.
productivity, innovation or on the ability In addition. all States will be required Coastal zone, Grant programs-
of United States-based enterprises to to provide pre-proposals containing their natural resources, Natural resources,
compete with foreign-based enterprises proposed enhancement grant projects and Reporting and recordkeeping
in domestic or export markets. annually at the same time, in order that requirements.
These rules will provide for NOAA may carry out the individual Dated: July Z INZ
enhancement of Statd C2M programs in evaluation and ranking of proposals W. Stanley Willson,
eight national objective areas and will required by statute and provide States Assistant Administratorfor Ocean Services
improve the evaluation of their with timely information on approved and Coastal Zone Management.
performance. 71he rules only serve to projects to include in their joint sectioxi ccordingly, NOAA amends 15 CFR
strengthen the framework for making A
rational coastal management decisions 306/30BA/309 financial assistance chapter IX as set forth below.
and will not result in any major direct or award applications. This procedure for
indirect economic or environmental pm-proposals will replace a similar PART 923-REVIEW OF
impacts. Therefore, preparation of an procedure for interstate grants. PERFORMANCE
RIA it not required. authorization for which was-repealed by
the 19M Reauthorization. 1. The authority citation for part 928 is
A Reoulatory Flexibility Act Analysis The request to collect this information revised to read as follows:
The Regulatory Flexibility Act (RFA) has been approved by the Office of Autbority: Section 312 of the Coastal Zone
requires Federal agencies to consider Management and Budget under section Management Mt. as amended (16 UAC.
explicitly the effect of regulations on 3504(h) of that Act (OMB Control No. 1454
.amall entities." A Regulatory Flexibility 0048-M19). Public reporting burden for 2. Section 92LI is revised to read as
Analysis was not prepared for this this collection is estimated to average follows:
regulatory action. This rule sets forth 480 hours per responm including the I 92LI GenwaL
procedures for the Coastal Zone time for reviewing instructions.
Enhancement Grants Program and searching existing data sources, This part sets forth the requirements
review of performance. 71re rule affects gathering and maintainin the data for review of approved State coastal
only State governments. which are not needed. completing and rVnewing the zone management (C2M program
..small government entities." as defined collection of information. and pursuant to section 322 of the Act (28
by the RFA. Since the rule win not have developing the Assessments and U.S.C. 1458). This part defines
a significant economic impact on a Strategies. Comments on this estimate "continuing review" and other important
substantial number of small entitim a may be sent to: lerms, and sets forth the procedures for
regulatory flexibility analysis. as The Office of Ocean and Coastal (a) Conducting continuing reviews of
defined under the Regulatory Flexibility Resource Management, Policy approved State CEW programs; . -
Act of 1980 is not required. (b) Providing for public participation;
Coordination Division. ILUS (c) Invoking interim "actions for non-
C Paperwork Reduction Act Connecticut Avqnue, NW. adherence to an approved coastal zone
The Paperwork Reduction Act is Washington. DC 20235. Attention: management program or a portion of
intended to miniml theireporting Vickie A. Allin. such program; and
burden on the regulated community as or (d) Withdrawing program approval
well as minimize the cost of Federal Office of Management and Budget, and fin-n6al assistance.
information collection and 3. Section 9= is amended by
dissemination. Information requirements Paperwork Reduction Projed (0618- revising paragraphs (a@ ld@ (d@ and W
of section 312--Review of M19), Washington. DC 20630. to mad as Wows.
Performance-embody exisfM D Nadonal Anvironmental Pv&7 Act i au oewwwAl.
procedures and do not constitute any (NAPA) (a) ContinuiV review means
increase in reporting on the part of any
affected party. NOAA has determined that this monitoring State performance on an
Ile rule to implement section 309-- regulatory action will not significantly 0080ing basis. As part of the continuing
Coastal Zone F-hancement Grant&-- affect the quality of the his-an review, evaluation* of approved CZM
contains a collection of information environment. Therefore, an programs will be conducted and written
requirement subject to the Paperwork environmental assessment or findings will be produced at least on=
Reduction AcL This collection of environmental lw-ct statement will not OvOrY three years.
information requirement is a on*-tims be prepared.

31114 Federal Register / Vol. 57, No. 135 / Tuesday, July 14, 1992 / Rules and .Regulations
(c) Interim sanction means suspension (8) The final findings will contain a public. The Secretary shall provide the
and redirection of any portion of section entitled "Response to Written public with at least 45 days notice of
financial assistance extended to any Comments." This section will include a such public meetin s b no
coastal State under this title, if the summary of all written comments 8 y placing a tice
in the Federal Register, by publication of
Secretary determines that the coastal received during the evaluation and timely notices in newspapers of general
State is failing to adhere to the NOAA's response to the comments. if circulation within the State being
management program or a State plan appropriate. NOAA's response will evaluated. and by communications with
developed to manage a national indicate whether NOAA agrees or persons and organizations known to be
estuarine reserve, or a portion of the disagrees with the comment and how interested in the evaluation. Each
program or plan approved by the the comment has been addressed in the evaluation shall be prepared in report
Secretary, or the terms of any grant or final findings. form and shall include written responses
cooperative agreement funded under (9) The Assistant Administrator may to the written comments received during
this title. conduct issue or problem-specific the evaluation process.
(d) Approved CZMprogram means evaluations between scheduled (b) Requirements. (1)
those elements of the program approved evaluations of approved State CZM (2) Each State will issue a notice of
by the Secretary, under 15 CFR part 923 programs. Such issue or problem- the public meeting(s) in its evaluation by
(Development and Approval Provisions), specific evaluations will be conducted to placing a notice in the newspaper(s) of
including any changes to those elements follow-up on potentially serious largest circulation in the coastal area
made by approved amendments and problems or issues identified in the most where the meeting(s) is being held and
routine program implementation. recent scheduled evaluation or to by taking other reasonable action to
evaluate evidence of potentially serious communicate with persons and
(g) @ssist*ant Administrator means the problems or issues that may arise during organizations known to be interested in
Assistant Administrator for Ocean day-to-day monitoring of State the evaluation, such as sending a notice
Services and Coastal Zone performance of grants tasks or other of the meeting(s) to persons on its
Management, or the NO.A.A Official program implementation activities in the mailing list and publishing a notice in its
responsible for directing the Federal interim between scheduled evaluations. newsletter, at least 45 days before the
Coastal Zone Management Program. If the Assistant Administrator conducts date of the public meeting(s). The State
4. Section 928.3 is amended by an issue or problem specific evaluation. will provide a copy of such notice to the
revising the section heading. paragraphs he/she will comply with the procedures Assistant Administrator. States are
(a), (b)(7), (c)(1)(ii), (c)(3) introductory and public participation requirements Of. encouraged to republish the newspaper
text. and (c)(3)(iii); and by adding 15 CFR 928.3 and 92U. notice at least 15 days before the date of
paragraphs (b) (8) and (9) to read as (c) * the public meeftg(s). The State Will
follows: M * inform the public that oral or written
1928.3 Procedure for conducting (ii)'Addressed the coastal comments will be accepted and that
continuing WAewa of approved State CZM management needs identified in section attendance at the public meeting(s) is
progmimL 303(2) (AHK) (16 US-Q 1452): and not necessary for submission of written
(a) As required by section 312(a), the - . . . comments.
Secretary shall conduct a continui (3) Procedure for assessing how the (3) Notice of the availability of final
Ing
review of the performance of coastal State has addressed the coastal findings will be published in the Fadwd
States with respect to coastal management needs identified in section Register. 'Me notice will state that
management Each review shall include 303(2) (A)4K). The assessment of the copies of the final findings will be
a written evaluation with an assessment extent to which the State has addressed available to the public upon written
and detailed findings concerning the the coastal management needs request. Copies of the final &MffiW will
extent to which the State has Wentified in section 303(2) (AHX) will be sent to persons and organizations
implemented and enforced the program Occur as followr- who participated in the evaluation. in
approved by the Secretary, addressed accordance with 15 CFR =3(b)(71
the coastal management needs pil) The findings concerning how the & section =3 is amended by
identified in section 303(2)(A) through State haa addressed the coastal reviWng paragraphs (a@ (bX'I). and (bX21
(K). and adhered to the terms of any management needs of section 303 Will (i) and (iii) to mad as follows:
grant. loan, or cooperative agreement be used by the Assistant Administrator j 92U EnforesmsaL
funded under this title (18 U.S.C. 1451- in negotiating the next financial - (a) Procedures and adf&Ya for
1464). assistance award.
(b) * * * in volung and hftLV mtedn sanctiona
(7) The Assistant Administrator Will 5. section 9m4 is amended by (1) As required by section 319c) of the
issue final findings to the State CZM revising paragraphs (a@ (bX2@ and (bX3) Act:
program manager and the head of the to mad as follows: (i) 1U Secretary may suspend
State CZW agency within =days of payment Of any portion of finan al
the last public meeting in the State. J92L4 PUMP UP4 assistance extended to my coastal
Copies of the final findings will be sent (a) As required by section 312(b) of StatiL and my withdraw any
to all persons and organizations who the Act. in evaluating a coastal State's unexpeWW portion of rsch assistance.
participated in the evaluation. performance, the Secretary shall if the Secretary determina that the
Participants may be asked to complete a conduct the evaluation in an open and coastal State is failing to adhere to-
card or sign-in sheet provided by the public manner. and provide fiffl (A) 1U management Program or a
evaluation team indicating that they opportunity for public participation. State plan developed to manage a
wish to receive the final finding& Notice including holding Public meetings in the national estuarine reserve establkhed
of the availability of the final findings State being evaluated and providing under section 315 J the Act (16 U.&C.
will also be published in the Fedwal Opportunities for the submission of uei@ or a portion of the program or
7.00stse. written and oral co-ents by the plan approved by the Secretarjr. or

Federal Registee / Vol 57. No. M / Tuesday, July 14, 1992 / Rules and Regulations 31125

(B) The terms of any grant or will decide whether or not to issue a NOAA program staff, evaluation staff
cooperative agreement funded under final finding of non-adherence. If the and/or other experts to work with the
this title (18 U.S.C. 1451-1464). Assistant Administrator decides to issue State on a specific problem or issue. The
(ii) Financial assistance may not be a final finding of non-adherence, he/she Assistant Administrator will consider
suspended under paragraph (a)(1)(i) of will do so in the final evaluation proposals to revise the work program on
this section unless the Secretary findings issued pursuant to section a case-by-case basis, providing that the
provides the Governor of the coastal 312(b) or in a final notification letter as State will still be able to accomplish the
State with- provided by paragraph @a)(2)(ii) of this - necessary actions within a maximum of
(A) Written specifications and a section. The Assistant Administrator 36 months.
schedule for the actions that should be may invoke interim sanctions provided (viii) The State must document that it
taken by the State in order that such by section 312(c) immediately or at any has taken the required actions on the
suspension of financial assistance may time after issuing the final evaluation schedule established under this section.
be withdrawn, and findings or final notification letter The State must provide its
(B) Written specifications stating how containing the finding of non-adherence. documentation in writing to the
those funds from the suspended but not later than the next regularly Assistant Administrator. The Assistant
financial assistance shall be expended scheduled evaluation. Administrator may conduct a follow-up
by the coastal State to take the actions (v) If the Assistant Administrator evaluation or otherwise revisit the State
referred to in paragraph (a)(1)(ii)(A) of decides to invoke interim sanctions, he/ at his/her discretion.
this section. she will do so by sending the final (ix) If the Assistant Administrator
(iii) The suspension of financial evaluation findings or final notification determines that the required actions
assistance may not last for less than a letter to the Governor of the State and have been taken, the Assistant
months or more than 36 months after the the State CZM program manager. The Administrator will promptly notify the
date of suspension. final evaluation findings or final Governor and the State program
(2) Requirements. (j) The Assistant notification letter will contain the manager, in writing, that NOAA has
Administrator will identify the need for information required in section 312(c)(2) withdrawn the suspension of financial
interim sanctions through the continuing (A) and (B). This information will assistance. If. however. the State does
review process. The Assistant include the amount of financial not take the required actions, then the
Administrator will use the criteria at 15 assistance to be suspended and Assistant Administrator will invoke the
CFR 928.5(a)(3) in determining when to redirected, the actions the State should final sanction provisions of section
invoke interim sanctions. take in order to have the suspension 312(d) on program termination and
(ii) The Assistant'Administrator win withdrawn. how the suspended funds withdrawal of all financial assistance.
issue the State a preliminary finding of shall be expended to take the required (3) Criteria for invoking interim
non-adherence with the approved CZM actions. and a schedule for taking the sanctions. (i) The Assistant
program. or a portion thereof, and/or required actions. The final evaluation Administrator may consider the
with a term or terms of a grant or findings or final notification letter will following indicators of non-adherence to
cooperative agreement. This preliminary also contain the length of the an approved State CZM program in
finding of non-adherence may be suspension. which may not last for less determining whether to invoke interim
contained in the draft evaluation than a months or mom than 38 months. sanctions.
findings, or in a preliminary notification The Assistant Administrator win (A) Ineffective or inconsistent
letter to the State CZM program establish the length of the suspension
manager. If the preliminary finding is based on the amount of time that is implementation of legally enforceable
contained in a preliminary notification reasonably necessary for the State to policies included in the CZM program.
letter, the Assistant Administrator will take the required actions. If the State indicators of ineffective or inconsistent
comply with the applicable public can take the required actions faster than implementation could include. evidence
participation requirements of section expected, the suspension can be of noDcompliance with core authorities
312(b) and NOAA's regulations at 15 withdrawn early (but not in less than six by the regulated community; insufficient
CFR 928.4. The draft evaluation findings months). monitoring and inspecting of coastal *
or preliminary notification letter (vi) The State must respond to the development to ensure that it conforms
containing a preliminary finding of non- final evaluation findings or final to program requirements and applicable
adherence will explain that if the finding notification letter by developing a conditions; or inadequate enforcement
of non-adherence is issued, the State is pro sed work program to accomplish action when development is found not
PO in compliance with the program or
subject to suspension of financial the required actions on the scheilule sat to be
assistance and, if the State fails to take forth in the final evaluation findings or permit under which it is authorized or is
the actions specified pursuant to section final notification letter. The State may found to be an unpermitted activity. In
312(c) and this part. to withdrawal of propose an alternative approach to applying this indicator. NOAA will
program approval and financial accomplishing the required actions andt consider any available evidence of the
assistance. or an alternative schedule. The impacts of ineffective or inconsistent
(iii) The State will be given 30 days Assistant Administrator's approval of implementation on coastal resoumL4L
from receipt of the draft evaluation the State's work program will signify (B) Inadequate monitoring of the
findings or preliminary notification his/her agreement with the approach actions of S6te and local agencies for
letter to comment on and rebut the and schedule for accomplishing the compliance with the program. Indicators
preliminary finding of non-adherence. actions necessary to withdraw the of inadequate monitoring of these
During this 30-day period. the State may suspension. agencies could include: evidence of non-
request up to 15 additional days to - (vii) The Assistant Administrator will compliance of networketl agencies with
respond. for a maximum of 45 days from monitor State performance under the the CZM program. unresolved conflicts
receipt of the draft evaluation findings work program. This may involve between agencies m ardin what
or preliminary notification letter. additional direction to the State through constitutes compliance with the
(iv) After considering the State's the grant administration process and/or program. or lack of a mechanism to
comment& the A"istant Admin strator a visit to the State by appropriate enmm that all State agencies will

31116 Federal Register / Vol. 57, No. 135 / Tuesday July 14. 1992 / Rules and Regulations
adhere to the Program or to approved activities necessary to implement and (iii) if the State does not request a
local coastal programs pursuant to enforce core program authorities public hearing or submit satisfactory
NOAA's regulations at 15 CFR 923.40 effectively evidence that it has taken the actions
(and pursuant to new section 306(d)(15), (G) Not submitting changes to the specified pursuant to 15 CFR M.5(a)(2
after November 5. 1993 and after states approved program for Federal approval within 30 days of publication of this
have been given reasonable Opportunity on a schedule developed pursuant to 15 notice, and the Assistant Administrator
to comply with NOAA's implementing CFR 923.81(c) and 923.84(b)(1)(i) or determines that the State has failed to
guidance). developing and implementing changes to take the actions specified pursuant to 15
(C) Non-compliance of local coastal the approved Program without Federal CFR 928.5(a)(2). the Assistant
programs with the approved State approval which are inconsistent with Administrator will withdraw program
program. Indicators of non-compliance the Act or the approved program or approval and financial assistance and
could include: Local permitting or zoning which result in a reduced level of will notify the State in wTiting of the
decisions that are inconsistent with protection of coastal resources. decision and the reasons for it. The
State standards or criteria, widespread (ii) The Assistant Administrator may notification will set forth actions that
granting of variances such as to render a consider whether an indication of non- must be taken by the State which would
zoning program ineffective in meeting adherence is of recent origin (in which cause the Assistant Administrator to
State standards or criteria. changes to case the State may be given a cancel the withdrawal.
local comprehensive plans or zoning reasonable opportunity to correct it) or
maps that are inconsistent with State has been repeatedly brought to the
standards or criteria. or inadequate State's attention without corrective 7. Part 932 is revised to read as
monitoring and enforcement. as action in determining whether to invoke follows:
described in paragraph (a)(3)(i)(A) of interim sanctions.
this section. (b) Withdrawol of progTom approvol PART 932--COASTAL ZONE
(D) Ineffective implementation of and financial assistance. (1) As required ENHANCEMENT GRANTS PROGRAM
Federal consistency authority. by sections 312(d) and 312(e) of the Act: Sec.
Indicators of ineffective implementation (i) The Secretary shall withdraw 932a General.
could include: Not reviewing Federal approval of the management program of 932.2 Objectives.
activities, Federal licenses and permits. any coastal State and shall withdraw 9=3 Definitions.
including offshore oil and gas financial assistance available to that WZ4 Allocation of section 309 funds.
exploration and development. and State under this title as well as any 932.5 Criteria for sWion 3W project
Federal financial assistance to State and unexpended portion of such assistance. selection.
local governments for consistency with if the Secretary determines that the WZ8 Pre-application procedures.
the approved CZM program or coastal State has failed to take the 932.7 Formal application for financial
employing review procedures that are actions referred to in paragraph saistance and application review and
not in accordance with State and NOAA (a)(1)(ii)(A) of this section.. :pproval procedures.
regulations. (ii) Management program approval 932.8 Revisions to assessments and
(E) Inadequate opportunity for and financial assistance may not be strategies.
intergovernmental cooperation and withdrawn under Para ph (b)(1)(i) of Authority- Section 309 of the Coastal Zone
. gra Management Act as amended (16 W&C.
public participation in management this section. unless the Secretary gives 1456).
program implementation. Indicators of the coastal State notice of the proposed
inadequate opportunity could include: - withdrawal and an opportunity for-a f 932.1 OwwraL
not carrying out procedures necessary to public hearing on the proposed action. (a) The purpose of this part in to set
insure adequate consideration of the Upon the withdrawal of management forth the criteria and procedures for
national interest in facilities which are program approval under paragraph awarding coastal zone enhancement
necessary to meet requirements which (b)(1)(i) of this section. the Secretary grants under section 3W of the Coastal
are other than local in nature, not shall provide the coastal State with Zone Management Act. an amended (26
implementing effectively mechanisms written specifications of the actions that U.S.C. 1456). This-part describes the
for continuing consultation and should be taken. or not engaged in, by criteria States must address in
coordination, not providing required the State in order that such withdrawal developing and implemenfing coastal
notice that a management program may be canceled by the Secretary. - zone enhancement objectives. the
decision would conflict with a local (2) Requirements. (i) If the Assistant procedures for allocating section 309
zoning ordinance, decision or other Administiotor determines that the State funds between weighted formula and
action pursuant to section 300(d)(3)(B)(i) has not taken the actions required in 15 individual review of proposals of special
and 15 CFR 923-57. or not providing CFR 9=fa)(2@ the Assistant merit. how the amount of section 309
opportunities for public participation in Administrator will provide the Governor weighted formula grants will be
permitting processes. consistency and the State CZM program manager determined. the criteria NOAA will use
determinations and other similar with written notice of this fintlina and to evaluate and rank individual
decisions pursuant to new section NOAXs obligation to withdrew proposals of special merit. and the
306(d)(14) after November 5,1993 and program approval and financial procedum for applying for financial
after states have been given reasonable assistance under this title. The State will assists, under section 309.
opportunity to comply with N0AXs be given 30 days frorn!receipt of this
implemen guidance. notice to respond with evidence that it (b) A cowtal State with an approved
(F) Non-adherence to the terms of a has taken the actions specified pursuant prograIll under section 300 of the
grant or cooperative agreement to 15 CFR 92LS(a)(2). During this 30-day Coastal Zone Management Act (CZMA@
including the schedule for funded period, the State may request up to 30 as amended (16 U.SC. 11455). in eligible
activities. The Assistant Administrator addifional days to respond. for a for grants under this part if the State
will also consider the extent to which maximum of 00 days from receipt Of meets the follow -ing requirements:
priorities fox expenditure of Federal. notice. (2) The state must have a NOAA
funds reflect an appropriate priority for 01) appnwed Assessment and Stratily.

Federal Register Vol. S7, No. 135 Tuesday, July 14. 1992 Rules and Regulations 31117

submitted in accordance with NOAA (b) As required by section 309(a) of (3) New or revised local coastal
guidance and 15 CFR 932.8; the Act. for purposes of this part. the programs and implementing ordinances
(2) Tlie State must be found to be term "coastal zone enhancement that will improve a State's ability to
adhering to its approved program and objective" means any of the following achieve one or more of the coastal zone
must be making satisfactory progress in objectives: enhancement objectives.
performing grant tasks under section (1) Protection, restoration. or (4) New or revised coastal land
306, as indicated by not being under enhancement of the existing coa$tal acquisition, management and
interim or final sanqtions; and wetlands base. or creation of new restoration programs that improve a
(3) The State must be making coastal wetlands. State's ability to attain one or more of
satisfactory progress in carrying out its (2) Preventing or significantly reducing the coastal zone enhancement
previous year's award under section 309. threats to life and destruction of objectives.
(c) If the Assistant Administrator property by eliminating development (5) New or revised Special Area
finds that a State is not undertaking the and redevelopment in high-hazard Management Plans or plans for Areas of
actions committed to under the terms of areas, managing development in other Particular Concern (APC), including
a section 309 grant. the Assistant hazard areas, and anticipating and enforceable policies and other
Administrator shall suspend the State's managing the effects of potential sea necessary implementing mechanisms or
eligibility for future funding under this level rise and Great Lakes level rise. criteria and procedures for designating
section for at least one year. (3) Attaining increased opportunities and managing APCs that will improve a
(d) A State's eligibility for future for public access, taking into account State's ability to achieve one or more of
funding under this section will be current and future public access needs, the coastal zone enhancement
restored after the State demonstrates. to to coastal areas of recreational, objectives.
the satisfaction of the Assistant historical, aesthetic, ecological, or (6) New or revised guidelines,
Administrator. that It will conform with cultural value. procedures and policy documents which
the requirements under this part. (4) Reducing marine debris entering are formally adopted by a State and
(e) Funds awarded to States under the Nation's coastal and ocean provide specific interpretations of
section 309 are for the enhancement of environment by managing uses and enforceable CZM policies to applicants,
existing coastal zone management activities that contribute to the entry of local governments and other agencies
programs. A State which reduces overall such debris. that will result in meaningful
State financial support for its CZM (5) Development and adoption of improvements in coastal resource
program as a result of having been procedures to assess, consider, and management and that will improve a
awarded section 309 funding may lose control cumulative and secondary State's ability to attain one or more of,
eligibility for funding under section 309 impacts of coastal growth and the coastal zone enhancement
in subsequent years, -development. including the collective objectives.
(f) All applications for funding under effect on various 4ndividual uses or (b) Assessment means a public
section 309 of the CZMA, as amended, activities on coastal resources. such as document. prepared by a State and
including proposed work programs, coastal wetlands and fishery resources. approved by NOAA in accordance with
funding priorities and funding awards, (6) Preparing and implementing guidance on Assessments and Strategies
are subject to the administrative special area management plans for issued by NOAA (hereafter referred to
discretion of the Assistant important coastal areas. as the guidance 1), that idintifies, the
Administrator and any additional (7) Planning for the use of ocean State's priority needs for improvement
NOAA guidance. resources. * with regard to the coastal zone
(g) Grants awarded under section 309 (8) Adoption of procedures and enhancement objectives. The*
may be used to support up to 100 enforceable policies to help facilitate the Assessment determines the extent to
percent of the allowable costs of siting of energy facilities and' which problems and opportunities exist
approved projects under section 309 of Government facilities and energy- with regard to each of the coastal zone
the CZMA. as amended. related activities and Government enhancement objectives and the
(h) All application forms are to be activities which may be of greater than effectiveness of efforts to address those
requested from and submitted to: local significance. problems The Assessment includes the
National Oceanic and Atmospheric 932.3 Defintoons. factual b;sis for NOAA and the States
Administration, Office of Ocean and to determine the priority needs for
Coastal Resource Management Coastal (a) Program change means "routine - provement of management programs
Programs Division. 1825 Connecticut program implementation" as defined in 'in
Avenue, NW.. suite 724. Washington, 15 CFR 923.84 and "amendmene' as in accordance with this Pam
DC Z0235. defined in 15 CFR 923.ft and includes (c) Strategy means a comprehensive.
the following: - multi-year statement of goals and the
932.2 ObjecOves. (1) A change to coastal zone methods for their attainment. prepared
(a) The objective of assistance' boundaries that will improve a State's by@ a State in accordance with NOAA
provided under this part is to encourage ability to achieve one or more of the guidance and tMee regulations and
each State with a federally-approved coastal zone enhancement objectives. approved by NOAA. that sets forth the
coastal management program to (2) New or revised authorities. specific program changes the State will
seek to achieve in one or more of the
continually improve its program in including statutes. regulations, coastal zone enhancement objectives.
specified areas of national importance. enforceable policies. administrative ' The Strategy will address only the
The Secretary is authorized to make decisions. executive ordem and
grants to a coastal State for the memoranda of agreement/
development and submission for Federal understandirg tha(will improve a NOAA gukhim in swadaMe from the Office of
approval of progrm changes that State's ability to achieve one or more of Ocem &W Coastal Rnoom Mawasmatit. Coastal
Pnwem Divisiow thuvwund South Buildles. rom
support attainment of one at man. the coastal zone enhancement 7X IS= Cosimchast Avenue NW. Weshutgum
coastal zone enhancement objectives. objectives. DC 2023&

~~~~2~qA ~qF~e~d~or~qd R~qA~I~l~qd~qw~ I Vol. ~6~7.; No. 1~3~6 / Tuesday, ~Ju~qb~t 14. I=. I Rules and Re~g~~l~~t~o~w

priority needs for improvement account the total amount appropriated improve its weighting factor, in
identified by the Assistant under ~se~c~qb~qm 3~q18~q(a)(2). The total accordance with the procedures at is
Administrator, after careful consultation amount of funds to be devoted to section CFR 9~q32-8.
with the State. The strategy will include 3o~qa shall not exceed ~q3~q1~q0~,oo~qD~qj~6q= (a) Fw~idi~6qm f~o~rp~r~o~qf~qi~ect~s of special
specific -task descriptions, cost estimates annually. ~i~ne~z~qi~qt. The Assistant Administrator will
and milestones, as appropriate. (c) Of the total amount determined in award the rema~qir~qf~qi~ng section 3o~qg funds.
(d) Weighted Formula Pr~r~qject means paragraph ~q(b) of this section. the which are Dot awarded under ~q25 CFR
a project or task for which NOAA Assistant Administrator will annually 932~.A(d), to States based on an annual
awards funding based on the criteria at determine the proportion to be awarded evaluation and ranking of projects of
15 CFR 932.5(~a). Such tasks are essential to eligible coastal States by weighted special merit, as defined in 15 CFR
to meeting the milestones and objectives formula and the proportion to be 932~4qAd). Funding of pro~8q*ts of special
of each state's strategy. As funding for awarded to eligible coastal States for merit will be limited to the highest
weighted formula tasks is more projects of special merit. This ranked pr~o~8q*ct~s based on the criteria at
predictable than for projects of special determination will take into account the 15 CFR ~q9~q32.~q5~6qf~6qt
merit. basic functions necessary to total amount appropriated under section (1) The Assistant Administrator will
achieve the objectives of the strategy, 31~q8(a)(2~q) of the CZMA. as amended. notify each State annually of the total
such as hiring of full fi~r~r~i~e staff should be (d) We~qi~qgh~qtedformula ~qfu~nd~q&~i~0q& ~q(IX~I~qJ A amount of funds to be devoted to ~sec~qti~qa
included in weighted formula tasks. weighted formula funding target will, be 309 pursuant to 1~q5 CFR 9~q3~q2~-~q4~6qf~6qt the
~(e) Projects of Special Merit ~q(~6qP~0qS~qI~8qW determined for each State that meets the proportion to be awarded by weighted
meant a project or task that NOAA will eligibility requirements at 15 CFR formula pursuant to 15 CFR ~q9~q3~q2.~q4~q(c~q@ the
rank and evaluate based on criteria at ~2q0~q2~.1~q(~qb~q). The weighted formula funding ~qSta~4qW~s weighted formula funding target
15 CFR 932.5(b). As PSM funds will be target will be the State base allocation pursuant to 1~q6 CYR ~q9~q3~2q&4~q(d~q@ and the
awarded competitively ~6qo~n an annual determ~qb~ied by the application of the total amount of funds available for
basis. these projects should further the formula at 15 CFR 92~q7.1~q(c~q). multiplied by funding for projects of ~spe~c~qi~qial merit
objectives of the strategy but may not be a w~e~qi~qgh~qdr~ig factor derived from the pursuant to 15 CFR ~q932~8qA~q(e~q@
essential to meeting specific Assistant Administrator's evaluation
benchmarks in the strategy. ~qP~qS~4qU and ranking of the quality of the State's 1~q9~q32 ~6qCrI~qt~erl~s f~qor ~s~ec~qO~on 309 p~i c~ql~e~c
projects should not -be dependent on Strategy (as described in ~q(d~q)(~q1) of ~qd~0q&
long term levels of funding to succeed. section).~-a~s supported by the State's (a) ~4qS~ac~qh~a~n ~2qX~2qV c~qn~qi~e~qn~d for w~e~i~qb~qb~qi~e~2qd
(f) Fiscal needs means the extent to. Assessment~. J~qa~rmulafun~8q&~0qV
which a State must rely solely on ~q0~4q0 ~qI~4qU app~ql~qIc~ation of the we" ~-
~J~N~U~U~U~N (~q1) For those projects that wig be
Federal funds to complete a project factor may result in a weighted formula funded by weighted formula. the
under section ~q30~q9 because State funds funding ta~i~r~qge~qt that is higher or lower Assistant A~4qAmin~i trator will determine
are not otherwise ava~qdab~qle. than the S~qt~at~6qW~s base allo~c~a~qdon. Each that
(g) Technical needs means the extent Stat~4qW~s w~e~2q*ht~ed ~qf~or~nn~i~ql~e f~qun~t~qhr~ig taw (~q1~q) ~q7~q1~qm project is consistent with the
to which a State lack~a trained personnel wig be adjusted ~qt~8q6 reflect the funds State's approved Assessment and
or equipment or access to trained ~av~ai~ql~ab~ql~qa Strategy and advances the attainment of
personnel or equipment to complete a (i~qf~ql) The Assistant ~qA~h~n~in t~o~f my the ~o~qb~qje~ct~8qf~8qte~s Of t~qh~43~-Strate~qgy-~.
project under section 30~q0. establish ~q-~t~n~i- and ~qn~qox~qi~qm~e~r~n (~qH) Costs are reasonable and
~(h) Assistant Administrator means the weighted formula funding targets u~r~qk~ql~e~r necessary to achieve the o~qb~ql~e~c~4qu~qm at
Assistant Administrator for Ocean 15 CFR 9~2qU~8q*d~q@ both the project and the Strategy.
Services and Coastal Zone (2) Ile Assistant Admini~s~qhat~qo Will Allowability of costs w~2qf~2qf~2ql be determined
Management, or the NOAA Official determine such ~qS~qt~a~qt~0qW~e w~o~0qo~qt~qi~v~qg factor in accordance %nth the ~qpr~ovis~ql~o~qw of
responsible for directing the Federal based on ~a~n evaluation and ~qm~n~qb~qdm~qg at ONE C~0qkcu~qla~r A~-~6qC. Cost P~r~qI~n~4qdp~ql~e~s for
Coastal Zone Management Program. the State's Strategy that ~qtak~qm ~qh~2qA~o State and Local Governments ~qs~qt
~1932.4 Aft~e~st~qi~qm of ~*~e~etk~qm 3~q0~q9 cons~qid~er~s~qt~ql~e~i~i the following: ~q(W~q) ~q7~8qU pro~qjec~qa is tech~n~qica~0qf~0qt ~s~o~u~o~4q*
funds. (~qi) The scope and value of t~qh~e ~qf~qiv~q) ~qI~2qU State has an ~eff~ect~4qN~e plan to
(a)(1) As required by section 30~q9~q(e~q) of p~qnp~o~se~qd program c~qh~a~n~qa~qp~q(~s) c~o~ntal~n~e~t~ql ensure proper and e~2qf~2qf~2qldent
the Act, a State will not be re~qq~~I - A to in the Strategy in terms of improved
contribute any portion of the ~c~o~u~s~-t~'~.~O~u~qf any. coastal resource management; administration of the project; and
proposal for which funding is awarded (ii) ~q7`he technical merits of the ~q(v) ~qI~6qU Sao has s~a~qI~nn~qitted the
under this section. Str~s~qh~6qW in term of ~qp n~qj a A design and required project ~qh~qd~qb~r~i~na~4qdan as sp~e~c~2qM~8qW
(2) As re~qqu~qb~v~qd by section 3~4qM~qf~qJ of the met ~eff~e~c~6qW~g~ue~s~qs in 1~q5 C~4qM ~q932~6qA~0qM~8qX~qI~qI
Act. beginning in fiscal year IM. not (~qH~qI) no ~qhk~qeW~8qw~8qW of success~q, ~qt~qhat do (2~q) h~i ~r~ev~qie~v~6qA~n~qg projects that ~qw~qi~2qf~2qf~0q6
less than 10 percent and not mom t~8qhan State will have ~6q= a~08qf~08qta~20qWn~0qg the con~qi~qi~0q1~8qd~qe~qr~qed~q'under the weighted ~2qf~8qm~qo~qu~2qla~q.~q.
20 percent of the amounts appropriated program change(~qs), including a the Assistant Administrator will take
to implement sections 30~2q6 and 30~2q5A of evaluation of the State's put into consideration the fiscal and ~q*
the Act shall be retained by the p~qe~28qd~8q@~qi~qe and support for ~2qt~2qh~qe technical no*& of ~20qp~16qq~6qp~8qm~20qw Sta~08qf~08qt~qs and
Secretary for use in u~qnp~4qleme~qnti~qn~0qg ~28q&~20qb ~4qs~8qt~8qm~8q6~20qw~q. and. the overall merit of each proposal. ilk
section, up to a ~8qm~qax~6qk~qo~8qm of ~8q$~8q1~2q0~20qA~2q0~6q0~20qA~16qW ~8q(~0qi~qv~8q) The fiscal and technical needs ~qe~8qf term ~qof b~qe~qn~qa~32qf~32qt t~qo t~2qh~qe public-
annually. the State. (~8qb) ~24qS~qe~24qW~qba 30~2q9 ~qcr~6qi~4qt~qe~16qd~qa fi~qar ev~qah~qu~16qW~qa~qn
(~qb) This Assistant A~4qdmi~qn~0qistra~4qt~qrw will (3) Each State will be notified and r~qa~qn~8qk~8q!~20qW ~16qof~16qP~qr~q0~48q*~qC~04qf~04qt ~qD~56qf~4qV~16qP~qB~qC~20qk~8qd ~8q=~q0~16qd~8qL
annually determine the amount of ~8qf~8qi~qn~qsd~qo indi~qvi~qodual~8ql~6qy of its weighting factor~q. (1) After determining ~8qt~8qb~qa~qs~qs pr~qoj~4qoc~8qi~qs t~8qb~12qa
to be devoted to section ~2q3~2q0~20q% which shall masons for swiping this ~4qwe~6qi~0qg~2qht~6qi~20qm
be not less than 10 percent nor more factor, and any changes thereto~q. In a ~0qO~6qM ~0qC~qW~qM~4qA~2qW ~qA~q-~q4~q7~q. ~0qC~2qM~qI ~00qf~00qt~qk~qN~16q*~0qh~q* ~0qI~6qm So"
than 20 percent of the tou~2qd amount consultation with the Assistant ~6qwd ~qI~2qm~qod G~qw~2q@~q'~q* Is ~q&~qv~qs~qh~0qk~00qM~qe ~qk~qo~qa do ~qO~0qf~0ql~qic~qs
Oro== ~qa~04qW ~0qC~qo~qs~qe~00qW R~2qf~2qt~6qm~6qm Ma~qn~qe~qe~2q@~qt. P~qo~24qf~24qt
appropriated under section ~6q328~8q(~qs)~8q(2) of Ad~2qm~4qi~qni~qstr~qak~qm~qr. a State may choose to ~qC~q0~2qW~00q*~qn~qW~qd~6qW ~qD~2qm~qs~qi~0qm ~0qt~6qw~qw~qm~04qw ~00q&~2qN~00q* ~00qb~4qd~00qf~00qt~q&
the Coastal Zone Mana~6qg~qem~qe t Act. as make substantive changes ~0qt~0qo its to= ~8qM US ~qC~qa~qn~qn~8qU~2qM~4qN AV==. ~2qNW~q.
amended ~2q(~0q1~0q6 U.~2qS.~16qM 14~0q64)~q. taking into approved Assessment and St~qra~0qb~16qW to w~qa~qa~q6~2qN~qU~2qM~qD~qc~qa~2qm~qs~q.

Federal Register Vol. 57, No. 135 Tuesday, July 14. 1992 Rules and Regulations 31119

will be funded under weighted formula determined by the Assistant equipment that are needed to carry out
funding, the Assistant Administrator Administrator. These draft proposals proposed projects and that are not
will evaluate and rank State funding shall contain all of the information available to the applying agency, and
proposals of special merit which may be needed for final application, including what efforts the applying agency has
funded under 15 CFR 932.4(e). the following: made, if any, to obtain the trained
(2) In addition to meeting the criteria (1) A clear and concise description of personnel and equipment it needs (for
in paragraph ja)ti) of this section. the projects that the State proposes to example, through agreements with other
proposa!s will be evaluated and ranked be funded under section 309. This State agencies).
under this subsection using the description shall explain the (6) The Assistant Administrator may
following criteria: relationship of each proposed project to request additional documentation of
(i) Aferit. (90 points) The Assistant the State's approved Assessment and fiscal and technical needs.
Administrator will review each Strategy and how each proposed project (7) Following the first year of funding
application to determine the following: will accomplish all or part of a program under section 309, the draft proposal
(A) Degree to which the project change that the State has identified in shall describe how the past year's work
significantly advances the program its Strategy. In addition, each project contributed to the attainment of a
improvements and leads to a program description shall include: program change as defined in 15 CFR
change identified in the State's Strategy. (i) A specific timetable for completion 932.3(a) in one or more of the coastal
In making this determination, the of each project. zone enhancement objectives.
Assistant Administrator shall consider (ii) A description of the activities that (8) If the sum of estimated project
the weighting factor derived from the will be undertaken to complete each costs for projects the State recommends
evaluation of the quality of the State's project and by whom; be funded under 15 GFR 932.5(a)
Strategy, as supported by the State's (iii) The identification of any exceeds the State's weighted formula
Assessment. relative to the weighting subawardees. pursuant to 15 CFR funding target pursuant to'15 CFR
factors assigned to other eligible States; 923.95(d)(3)(ii)-, and 932.4(d), NOAA shall determine, in
(B) Overall benefit of the project to (iv) The estimated total cost for each consultation with the State, which
the public relative to the project's cost; project.
(C) Innovativeness of the proposal; (24 Section 309 funds may be used for projects are appropriate for funding with
(D) Transferability of the results to any of the following allowable uses weighted formula funds.
problems in other coastal States; and which support the attainment of a (c) Re view of draft proposals. (1) The
(E) The State's past performance program change: Assistant Admin 'istrator will make the
under section 309. (i) Personnel costs; final determination of which projects
(ii) Fiscal needs. (5 points) The (ii) Supplies and overhead; should be funded by weighted formula
Assistant Administrator -.Wll review (iii) Travel: and which projects should be funded as
each application to determine the "fiscal (iv) Equipment (pursuant to 15 CFR projects of special merit, taking into
needs" of a State as defined in 15 CFR part 24); account the State's recommendations.
932.3(e). (v) Projects, studies and reports; and (2) The Assistant Administrator may
(iii) Technical needs. (5 points) The (vi) Contractual costs including seek advice from technical experts in
Assistant Administrator will review subcontracM subawards, personal the fields of the coastal zone
each application to determine the service contracts with individuals. enhancement objectives as to the
"technical needs" of a State as defined memoranda of agreement/ technical soundness and overall merit of
in 15 CFR 932.3(n. understanding. and other forms of section 309 project proposals.
(c) Section 309 funds not awarded to Passthrough funding for the purpose of (3) The Assistant Administrator will
States under I 932.5(a) will be awarded carrying out the provisions of section make the final determinations on project
to States under 15 CFR 932.5(b). 309. selection using the criteria at 25 CF1t
(3) Funds may not be used for land 932.5(a) and evaluate and rank projects
932.6 Pro-appOcatim procedures. acquisition or low cost construction of special merit based on the witeria at
(a) Pre-submission consultation. Each projects. 15 CFR 93ZS(b).
State is strongly encouraged to consult (4) IMe State may recommend which (4) If the Assistant Administrator
with the Assistant Administrator prior projects should be funded by weighted determines that a State's project
to the submission of its draft proposal formula under 15 CFR 932.5(a) and proposal(s) for weighted formula
(see 15 CFR 932.6(b)) and formal which projects should be funded as funding fails to meet the criteria at 15
application for section 309 funding. The projects of special merit under 15 CFR CFR 937-5(a). the Assistant
purpose of the consultation will be to 932.s(b). Administrator may either reduce or
determine whether the proposed (5) The draft proposal'shall contain deny the amount available to the State
projects are consistent with the documentation of fiscal needs and under 15 CFR 932.4(d@ .
purposes and objectives of section 309 -technical needs, if any. 11is (5) Each state wiH be notified of the,
and with the State's approved Strategy, documentation shall include: results of the-review of draft proposals,
to resolve any questions concerning (I) For fiscal needs. information on the as described in paregraphe (c) (3) and
eligibility.for funding undecsection 300 current State budget (surplas*or deficit). (4) of this sectioa. in time to include
(see 15 CFR 932.1(b)), and to discuss - the budget of the applying agency approved section 309 projects in their
preliminarily the State's (increase or decrease over previous applications for, financial asgstance
recommendations regarding which fiscal year). future budget projections. pursuant to subpart J of 25CFR part 923.
projects should be funded by weighted and what efforts have been made by the
formula and which projects should be applying agency. if any, to secure � "U Fm eppW Un -for Mumicial
individually evaluated and ranked as additional State funds from the aselstenice &W applesdon Wew and
projects of special merit. Legislature and/or from off-budget appi a - A procedures,@
(a) Applications for finandal
(b) Draft prvposals. States shall sources such as user fees; and
submit draft proposals for action 399 (ii) For technical needs. identification assistance under this part must be
funding annually on a schedule to be of the technical knowledge, skills and developed and submitted on the same

31120 Federal Register/ VoL 57, No. 135 / Tuesday, July 14. 1992 /Rules and Regulations

schedule as applications for financial change in the weighting factor assigned
assistance under subpart I of is CFR to its Strategy.
part 923 FR DOc 92-18102 Filed 7-13-92: 8:45 am)
(b) Applications for financial Billing Code 35 to -06-__
assistance under this part must be in a
separate section of the application and
must contain the information specified
at 15 CFR 932.6(b)(1) for each approved
section 309 project.
(c) Applications will be reviewed for
conformance with the regulations at
subpart J 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 15
CFR 932.6(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 I of each year.

932.8 Revisions to assessemnts 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%
address new enhancement objectives
not identified as a priority in the original
Assessment. also must revise the
Assessment through a public process as
described in NOAA's guidance.
(e) The Assistant Administator. to
consultation with the State, my reduce
a state's weighting factor assigned to its
Strategy as a result of failure to met die
milestones in its Strategy.
(f) The Assistant Administrator will
notify the State of his/her decision to
approve at deny this proposed
revision(s) to the Strategy, and any

P@
,* 6.
Part 929
Key Largo -
National Marine Sanctuary
Final Regulations

National Oceanic and Atmosph ic Adm., Commerce � 929.3
perio the State may request p to 30 Sec.
&dditi al days to respond, fo a maxi- 929.7 Activities prohibited or controlled.
mum o 60 days from receipt f notice. 929.8 Other authorities.
(ii) If e State does pot ne pond sat- 929.9 Penalties for commission of prohibit.
isfactoril within the tm allowed. ed acts.
929.10 Permit Procedures and criteria.
the agen will notify t State of 929.11 Appeals Of administrative action.
intent to ake the prop ed action.
This notic Will be publ hed in the Aux ORxTy: Title III of Pub. L. 92-532. 88
FtDERAL R sTER and w inform the Stat. 1061, 1062 (16 U.S.C. 1431-1434).
State of its rkht to a pu ic hearing. SOURCE 48 FR 55118, Dec. 9. 1983. unless
(III) If the @tate does not request a otherwise noted.
public hearing or sub it satisfactory 929.1 Authority.
evidence of adkerence r Justification
within 30 d ys of pu lication of this The Sanctuary has been designated
notice, the a"gen w decide whether by the Secretary of Commerce pursu-
VI)rc
V pro
C
V1prc
0
V Vrc ant to the authority of section 302(a)
to withdraw pro approval and fi- of the Marine Protection, Research
nancial assistanc the agency will and Sanctuaries Act of 1972 as amend-
notify the State ting of the deci- ed (the Act). The following regulations
sion and the reaso for it. The notifi. are issued pursuant to Title III of the
cation will set f o h actions by the Act.
State which ul use the Secretary
to cancel th t wal. 1929.2 Purpose.
Uv) if tit te equests a public
hearing within 0 s of publication The purpose of designating the Key
of the notice f int nt to withdraw Largo National Marine Sanctuary is to
program appro al an financial assist. protect and preserve the coral reef
ance,the ant A rator will ecosystem in its natural state and to
publish 30 a s advan notice of the regulate uses within the Sanctuary to
hearing in F@W REGISTER and ensure the health and well-being of
the newspa s) of larg st circulation the coral and associated flora and
in the State coastal zo e. The hear- fauna-
ing will be eld in a loc Ion conven- l 929.3 Boundaries.
ient to t citizens of the State's
F
coastal Zo and a record f the hear- The Sanctuary consists of a portion
in b maintained. Wi in 30 days of the Atlantic Ocean beginning at ap-
c
tie@ wo pletion of the aring, the proximately three miles east of Key
agency make the dete ination as Largo, Florida, adjacent to the John
set fort in paragraph (b (2)(ill) of Pennekamp Coral Reef State Park.
this sect n The coordinates for the Sanctuary
(3) If pr;gram approval d finan. are: The point of beginning (POB) is
cial ass tance are withdrawn ursuant at geographic coordinates 250 (de-
to this section, a notice will b placed grees), 19.45' (minutes) north latitude,
in th FtDmtAL Rzrisnm and ederal 800, 12.01 west longitude, said point
cons ency under section 307 f the being the northeast boundary corner
Act cease to apply to the ate's of John Pennekamp Coral Reef State
CZ program. Park. F'rom said POB run thence
southeasterly to geographic coordi-
nates 25% 16.2' north latitude 80'. 8.7'
PART 929-KEY LARGO NATIONAL west longitude. said point also being
MARINE SANCTUARY FINAL REGU- on the 300 foot isobath, thence in a
LATIONS southwesterly direction to geographic
coordinates 25% 07.5' north latitude.
800, 12.5' west longitude, thence again
See. run in a southwesterly direction to ge-
929.1 Authority.
929.2 Purpose. ographic coordinates 24% 38.3' north
929.3 Boundaries. latitude. 800. 19.8' west longitude,
929.4 Definition$. thence leaving said 300 foot isobath
929.5 Management and enforcement. run northwesterly to geographic co-
the '
al d,
sph

t p
0 a r
60 c.
0 fn(
If e ponc
I .jj@
a \rein
0
g
it to I
notic
EaX

929.6 Allowed activities. ordinates 25". 2.7 north latitude, 80%

187

� 929.4 15 CFR Ch. IX (1-1-92 Edition)
25.25' west longitude, said point being restrictions and conditions imposed by
the southeast boundary comer of other authorities.
John Pennekamp Coral Reef State es prohibited or controlled.
Park, thence in a northeasterly direc- 929.7 Activiti
tion along said easterly boundary of (a) Unless permitted by the Assist-
said State Park to the POB. ant Administrator in accordance with
6 929.4 Deflnitions. 1929.10, or as may be necessary for
the national defense. Or to respond to
(a) "Administrator" means the Ad- an emergency threatening life. proper-
ministrator of the National Oceanic ty or the environment, the following
and Atmospheric Administration activities are prohibited or controlled
(NOAA). within the Sanctuary. All prohibitions
(b) "Assistant Administrator" means
the Assistant Administrator for Ocean and controls must be applied consist-
Services and Coastal Zone ently with international law. Refer to
Manage' J 929.9 for penalties for cornmi ion of
ment, National Oceanic and Atmos- prohibited acts.
pheric Administration, or his/her suc- (1) Removal or damage of natural
cessor, or designee. ate in. features, marine life and archaeologi-
(c) "Persons" means any priv cal and historical resources. (1) No
dividual, partnership, corporation, or person shall destroy. injure, harmfully
other entity; or any officer, employee, disturb, break. cut or similarly damage
agent, department, agency or instru- or remove any coral or other marine
mentality of the Federal government, invertebrate, or any plant, soil. rock,
or any State or local unit of the gov- or other material, except that com-
ernment. mercial tairin of spiny lobster and
(d) "The Sanctuary" means the Key stone crab by trap and recreational
Largo National Marine Sanctuary. taking of spiny lobster by bane] which
(e) "Tropical fish" means fish and
invertebrates of rninirnal sport and is consistent with both the applicable
food value, usually brightly colored. regulations under the appropriate
often used for aquaria purposes and Fishery Management Plan and these
which live In a close interrelationship regulations is allowed. Divers are pro-
with corals and coral reef substrates. hibited from handling coral forma-
tions, standing on coral formations, or
9 929.5 Management and enforcement. otherwise disturbing the corals.
The National Oceanic and Atmos- (H) No person shall catch or collect
pheric Administration (NOAA) has any tropical fish.
primary responsibility for the manage- (iii) No person shall remove, deface.
ment of the Sanctuary pursuant to damage, or tamper with archaeological
the Act. NOAA's responsibilities under or historical resources or the cargo of
the Act require that the Sanctuary any submerged wrecks or other histor-
Programs Division review, consider, ircal resources Within the boundaries
and approve any activities that t;ake of the Sanctuary.
place in the Sanctuary in rdance (iv) There absk" be a rebuttable pre-
with these rules and regulations. The gumption that any Items listed in
U.S. Coast Guard and the Florida De- these paragraphs found In the posses-
partment of Natural Resources, Divi. sion of a person within the Sanctuary
sion of Recreation and Parks (FDNR) have been collected or removed from
shall conduct surveillance and enforce- within the Sanctuary-
ment of these regulations pursuant to (2) Dredging, JIlling. eXCavating and
14 U.S.C. 89, 16 U.&C. 1432 (f X4), 16 building activitieL Xo Person shall
U.S.C. 7421 (b), 16 U.S.C. 3375 ft). or dredge. excavate, fill or otherwise
other appropriate legal authority. alter the seabed In any way nor con-
struct any structure of any kind.
1929.6 Allowed activideL whether permanent or temporary,
All activities except those specifical- with the exception of navigation aids.
ly prohibited by 1929.7 or other &PPli- (3) Dtschargm No person shwIl de-
cable authority may be undertaken Posit Or (113CIISMe any materiels or
within the Sanctuary subject to the substance of any kind into the waters

188

National Oceanic and Atmospheric Adm., Commerce � 929.7
of the Sanctuary. The only exceptions (iv) Within 100 yards of divers, sight.
are: seeing boats or fishermen, no water.
(i) Fish or fish parts and chumming craft shall be operated at a speed
materials; greater than 4 knots or in any manner
(ii) Cooling waters from vessels; and to create a wake, except by law en-
(iii) Effluent from marine sanitation forcement officials while in the per-
devices approved by the United States f ormance of -their official duties.
Coast Guard. rs. No (v) All watercraft from which diving
(4) Tampering with marke operations are being conducted shall
person shall mark. deface or damage fly in a conspicuous manner the red
in any way whatsoever, or displace, and white "divers down" flag. Divers
remove or tamper with any signs, no- shall stay within 100 yards of their
tices or placards, whether temporary diving flag.
of permanent, or with any navigation- (7) Use of dangerous weapons.
al aids. monuments, stakes, posts, Except for law enforcement purposes,
mooring buoys, scientific equipment or no person shall use or discharge explo-
other boundary markers installed by sives or weapons of any description
the Sanctuary Manager, or tmp floats
placed for the purpose of lobster fish- within the Sanct--ary boundaries. Dis-
ing. tress signaling devices, necessary and
(5) Use of harmful JUhing methods. proper for safe vessel operation, and
No person shall use within the Sanctu. knives generally used by fishermen
ary, or shall carry or possess, except and swirruners are not considered
while passing without interruption weapons for purposes of this subsec-
through the Sanctuary or for law en- tion.
forcement purposes, the following fire- (b) The Sanctuary may be closed to
arms or weapons: Pole spears, air public use in the event of emergency
rifles, bows and arrows, slings, Hawai- conditions endangering life or proper-
ian slings, rubber powered arbaletes, ty. The Assistant Administrator or
pneumatic and spring loaded guns, ex- his/her designee may also close cer-
plosive powered guns or similar devices tain areas in order to permit recovery
known as spearguns. No person shall of the living resources from overuse,
use within the Sanctuary: or provide for scientific research relat-
(i) Wire fish traps; ing to protection and management.
(ii) Bottom trawls, dredges. fish However, the total closed area shall
sleds, or similar vessel-towed or an' not exceed a size necessary to accom-
chored bottom fishing gear or net; or plish these purposes. Public notice of
(HI) Poisons, electric charges, explo- closures will be provided through the
sives or similar devices. local news media and posting of Plac-
(6) Operation Qf watercrqft and an- ards at the John Pennekamp Coral
choring. All watercraft shall be operat- Reef State Park, if deemed necessary.
ed in accordance with applicable Fed- (c) The regulation of activities
eral rules and regulations. The follow- within the Sanctuary shall not prohib-
ing additional regulations apply within it any activity conducted by the De-
the boundaries of the Sanctuary. partment of Defense that is essential
(1) Watercraft Shall be operated to for national defense or because of
avoid striking or otherwise causing emergency. Such activities shall be
damage to the natural features of the conducted consistently with a regula-
Sanctuary. tions to the maximum extent Possible.
01) Watercraft must use mooring (d) The prohibitions In this section
buoys, stations or anchoring arms
when such facilities have been provid- are not based on any claim of territor-
ed. iality and will be applied to foreign
(iii) No anchor shall be cast or persons and vessels only in rdance
dragged in such a way as to dams e with reC06nIZed ]Principle$ Of int*,zu&
any Coral reef formations. Anchors tiOnZI law. including treaties. cOnvOn-
shall be dropped only on sand flats off tions and other international agree.
the reefs and be Placed to avoid drag- ments to which the United States IN
ging into the coral formations. signatory.

189

� 929.8 IS CFR Ch. IX (1-1-92 Edition)

6 929.8 Other authorities. general professional and financial re-
No license, permit or other authori. sponsibility of the applicant; (2) the
zation issued pursuant to any other appropriateness of the methods being
authority may validly authorize any proposed to the Purpose(s) of the ac.
activity prohibited by j 929.7 unless tivitY; (3) the extent to which the con.
such activity meets the criteria stated duct of any permitted activity may di-
in j 929.10 (a), W and (d), and is spe. minish or enhance the value of the
cifically authorized by the Assistant Sanctuary as a source of recreation,
Administrator. education, or scientific information;
and (4) the end value of the activity.
6 929.9 Penalties for commission of pro- W In addition to meeting the crite-
hibited acts. ria in 1929.10 (a) and (c), the appH-
Section 303 of the Act authorizes the cant must also satisfactorily demon-
assessment of a civil penalty of not strate to the Assistant Administrator.
more than $50,000 for each violation (1) That adequate safeguards shall
of any regulation issued pursuant to be provided to protect the environ-
the Act, and further authorizes a pro- ment; and (2) that the environment
ceeding in rem against any vessel used shall be returned to the condition
in violation of any such regulation. which existed before the activity oc.
NOAA will apply the consolidated civil curred.
procedure regulations set forth at 46 Permits shall be appropriately condi-
PR 61643 (1981) (to be codified at 15 tioned. and monitored by NOAA to
CPR 904.100 through 904.243), and the ensure compliance.
seizure, forfeiture, and disposal proce- (e) In considering an application
dure regulations set forth at 46 FR submitted pursuant to this section, the
31648 (1981) (to be codified at 50 CPR Assistant Administrator may seek and
Part 219) to all enforcement matters consider the views of Regional Fishery
under the Act. Management Councils and any other
2 929-10 Permit procedures and criteria. person or entity, within or outside of
(a) Any person in possession of a the Federal government, and may
valid permit issued by the Assistant hold a public hearing, as he/she deems
Administrator in 9=ordance with this appropriate*
section may conduct in the Sanctuary W The Assistant Administrator may
activities specified in the permit In- grant a permit which has been applied
cluding any activity specifically Pro- for pursuant to this section. in whole
hibited under 1929.7, If such activity or in part, and subJect to such
is: (1) Research related to the re- condition(s) as deemed necessary. and
sources of the Sanctuary; (2) to fur- may attach to any permit granted for
ther the educational value of the research related to the Sanctuary stiv-
Sanctuary: or (3) for salvage or recov- ulations requiring that. (1) The Assist-
ery operations. ant Administrator or a designated rep-
W Permit applications shall be ad- resentative may observe and monitor
dressed to the Assistant any activity permitted by this section;
tor, . Attn: Sanctuary Programs Divi- (2) any information obtained In the re-
sion. National Oceanic and Atmos- search site shall be made available to
pheric Administration, 3300 Wbiteha- the Public: (3) Periodic reports Of the
ven Street. NW., Washington. IDC status of progress of such activity be
20235. An application shall Include a submitted; and (4) the permittee shall
description of all activities proposed. fly the Sanctuary research flag while
the equipment. methods. and person- working I'm the Sanctuary-
nel (particularly describing relevant (g) A permit granted pursuant to
experience) involved. and a timetable this section isnontranderrable.
for completion of the proposed activi- W 7be may susp=4
ty. Copies of all other required 11- revoke. modify, or deny a MUlt
censes or permits shall be attachedL granted or sought pursuant to this sec-
(c) In considering whether to grant a tion. in whole or In Vart. U it is deter-
permit. the Assistant Administrator mined that the Applicant or PUMIttee
shik1l evaluate such matters as: (1) The has acted In violation of the terms of

190

National Oceanic and Atmospheric Adm., Commerc Ph 930

the permit or of these regulations, or hearing officer designated for that
for other good cause shown. Any such purpose, after first giving notice of the
action shall be communicated in writ- time, place, and subject matter of the
ing to the applicant or Permittee, and hearing in the Federal Register. Such
shall set forth the reason(s) for the hearing shall normally be held no
action taken. Procedures governing later than 30 days following publica-
permit sanctions and denials for en- tion of the notice In the FEDERAL REG-
forcement reasons are found at Sub- ister unless the hearing officer ex-
part D of 15 CPR Part 904. tends the time for reasons deemed eq-
(Information collection requirements con- uitable. The appellant, the applicant
tained in paragraph (b) have been approved or permittee If different, and. other in-
by the Office of Management and Budget terested persons may appear personal.
under control number 0648-0141 for use ly or by counsel at the hearing and
through October 31, 1988) submit such material and present such
148 FR 55 118, Dec. 9. 1983, as amended at 49 arguments as determined appropriate
FR 1041. Jan. 6. 1984; 49 FR 13335, Apr. 4. by the hearing officer. Within 30 days
1984 of the last day of the hearing, the
hearing officer shall recommend a de-
g 929.11 Appeals of administrative action. cision. In writing to the Administrator.
(a) Except as provided in Subpart D (d) The Administrator may adopt
of 15 CPR Part 904. the applicant for the hearing officer's recommended de-
a permit or the permittee, or any cision, in whole or In part, or may
other Interested person (hereafter Ap- reject or modif y It. In any event, the
pellant) may appeal the granting, Administrator shall notify the inter-
denial, conditioning, or suspension of ested persons of his/her decision. and
any permit under 929.10 to the Ad- the reason(s) therefor in writing
ministrator of N0OAA. In order to be within 30 days of receipt of the recom-
considered by the Administrator, such mended decision of the hearing offi-
appeal must be in writing. must state cer. The Administrator's decision shall
the action(s) appealed, and the rea- constitute final action for the. Agency
sons therefore, and must be submitted for the purposes of the Administrative
within 30 days of the action(s) by the Procedure Act.
Assistant Administrator. The Appel- (e) Any time limit prescribed in this
lant may request an informal hearing section may be extended by the Ad-
on the appeal. ministrator for good cause for a period
(b) Upon receipt of an appeal au- not to exceed 30 days. either upon his/
thorized by this section. the Adminis- her own motion or upon written re-
trator may request the appellant, and quest from the appellant, permit ap-
the permit applicant or permittee if plicant or permittee, stating the
other than the appellant, to submit reason(s) therefor.
such additional Information and In [48 FR 55118. Dec. 9, 1983, as amended at 49
such form as will allow action upon FR 1041, Jan. 6. 1984
the appeal. The Administrator shall
decide the appeal using the criteria set
out in 1929.10 (a), (c) and (d) and any
information relative to the aplication PART. 930-FEDERAL CONSISTENCY
on file, any information provided by WITH, APPROVED COASTAL/MAN-
the appellant, and such other consid- AGEMENT PROGRAMS
eration as Is deemed appropriate. The
Administrator shall notify the appel-
lant of the final decision and the
reason(s) therefor, in writing. normal-
See.
ly within 30 days of the date of the re- 930.1 Overall obJectives
ceipt of adeQuate information required
Subpart B-General Definitions
to make the decision.
(c) It a hearing is requested or. If the 930.10 index to definitions.
Administrator determines that one is 930.11 Act
930.12 Section.
appropriate, the Administrator may
grant an informal hearing before a 930.13 Secretary.

7.
Part 930
Federal Consistency
with
Approved Coastal Zone
Management Programs

National Oceanic and Atmospheric Adm., Commerce Pt. 930

the permit or of these regulations, or
for other good cause shown. Any such
action shall be communicated in writ-
ing to the applicant or Permittee, and
shall set forth teh reason(s) for the
action taken. Procedures governing
permit sanctions and denials for en-
forcement reasons are found at sub-
part D of 15 CFR Part 904.

(Information collection requirements con-
tained in paragraph (b) have been approved
by the Office of Management and Budget
under control number 0648-0141 for use
through October 31, 1986)

(48 FR 55118 Dec. 9. 1983, as amended at 49
FR 1041, Jan 6, 1984: 49 FR 13335, Apr. 4.
1984)

929.11 Appeals of administrative action.
(a) Except as provided in subpart D
of 15 CFR Part 904, the applicant for
a permit or the Permittee, or any
other interested person (hereafter Ap-
pellant) may appeal the granting,
denial, conditioning, or suspension of
any permit under 929.10 to the Ad-
ministrator of NOAA. In order to be
considered by the Administrator, such
appeal must be in writing, must state
the action(s) appealed, and the rea-
sons therefore, and must be submitted
within 30 days of the action(s) by the
Assistant Administrator. The Appel-
lant may request an informal hearing
ont he appeal.
(b) Upon receipt of an appeal au-
thorized by this section, the Adminis-
trator may request the appellant, and
the permit applicant or permittee if
other than the appellant, to submit
such additional information and in
such form as will allow action upon
the appeal. The Administrator shall
decide the appeal using the criteria set
out in 929.10(a), (c) and (d) and any
information relative to the aplication
on file, any information provieded by
the appellant, and such other consid-
eration as is deemed appropriate. The
Administrator shall notify the appel-
lant of the final decision and the
reason(s) therefor, in writing normal-
ly within 30 days of the date of the re-
ceipt of adequate information required
to make the decision.
(c) If a hearing is requested or if the
Administrator determines that one is
appropriate, the Administrator may
gratn an informal hearing before a
hearing officer designated for that
purpose after first giving notice of the
time, place, and subject matter of the
haring in the Federal Register. Such
hearing shall normally be held no
later than 30 days following pulbica-
tion of the notice in the Federal Reg-
ister unless the hearing officer ex-
tends the time for reasons deemed eq-
uitable. The appellant, the applicant
or permittee if different, and, other in-
terested persons may appear personal-
ly or by counsel at the hearing and
submit such material and present such
arguments as determined appropriate
by the hearing officer. within 30 days
of the last day of the hearing, the
hearing officer shall recommend a de-
cision in writing to the Administrator.
(d) The Administrator may adopt
the hearing officer's recommended de-
cision, in whole or in part, or may
reject or modify it. In any event, the
Administrator shall notify the inter-
ested persons of his/her decision, and
the reason(s) therefor in writing
within 30 days of receipt of the recom-
mended decision of the hearing offi-
cer. The administrator's decision shall
constitute final action for the Agency
for the purposes of the Administrative
Procedure Act.
(e) Any time limit prescribed in this
section may be extended by the Ad-
ministrator for good cause for a period
not to exceed 30 days, either upon his/
her own motion or upon written re-
quest from the appellant, permit ap-
plicant or permittee, stating the
reason(s) therefor.

(48 FR 55118, Dec, 9, 1983, as amended at 49
FR 1041, Jan. 6, 1984)

Part 930-FEDERAL CONSISTENCY
WITH APPROVED COASTAL MAN-
AGEMENT PROGRAMS

Subpart A0Objectives
sec.
930.1 Overall Objectives.

Subpart B-General Definitions

930.10 Index to definitions.
930.11 Act.
930.12 Section.
930.13 Secretary.

191

Pt. 930 15 CFR Ch. IX (1-1-92 Edition)

sec- Sec.
930.14 Executive Office of the President. 930.65 Federal permitting agency responsi-.
930.15 OCZM. bility.
930.16 Assistant Administrator. 930.66 Availability of mediation for previ-
930.17 Federal agency. ously reviewed activities.
930.18 State agency.
930.19 Management program. Subpart E-Consistency for Outer Centinental
930.20 Coastal zone. Shelf (OCS) Exploration, Development
930.21 Associated facilities. and Production Activities

Subpart C--Consistency for Federal Activities 930.70 Objectives.
930.71 Federal license or permIt activity
930.30 Objectives. described in detail.
930.31 Federal activity. 930.72 Person.
930.32 Consistent to the maximum extent 030.73 OCS plan.
practicable. 930.74 OCS activities subject to State
930.33 Identifying Federal activities direct- agency review.
ly affecting the coastal zone. 930.75 State agency assistance to Persons;
930.34 Federal agency consistency deterMi- information requirements.
nations. 930.76 Submission of an OCS plan and con-
930.35 Federal and State agency coordina- sistency certification.
tion. 930.77 Necessary data and information.
930.36 Availability of mediation for nega- 930.78 Commencement of State agency
tive determination disputes. review; public notice.
930.37 Consistency determin tions for pro- 930.79 State agency concurrence or obJec-
posed activities. tion.
930.38 Consistency determinations for ac- 930.80 Effect of State agency concurrence.
tivities initiated prior to management 930.81 Federal permitting agency resPonsi-
program approval- bility.
930.39 Content of a consistency determina- 930.82 Multiple permit review.
tion. 930.83 Amended or new OCS Plans.
930.40 Multiple Federal agency ParticiPa- 930.84 Review of amended or new OCS
tion. plans; public notice.
930.41 State agency response. 930.85 Continuing State agency objections.
930.42 State agency disagreement. 930.86 Failure to Comply substantially with
930.43 Availability of mediation for dis- an approved OCS plan.
putes concerning proposed activities.
930.44 Availability of mediation for previ- subpart F-consistancy for Federal Assistance
ously reviewed activities to State and Local Governemnts
Subpart D- Consistancy for Activities 930.90 Objective&
Requiring a Federal License or Permit 930.91 Federal assistance.
930.92 Applicant agency.
930.50 Objectives. 930.93 Intergovernmental review Process.
930.51 Federal license or permit. 930.94 State Intergovernmental review
930.52 Applicant. Process for consistency.
930.53 Management program license and 930.95 Guidance Provided by the State
permit listing. agency.
930.54 unlisted Federal license and permit 930.96 Consistency review.
activities. 930.97 Federal assisting agency resPOnsibil-
930.55 Availability of mediation for license ity.
or permit disputes. 930.98 Federally assisted activities Outside
930.56 State agency guidance and assist. of the coastal zone or the described geo-
ance to applicants; Information reQuire- graphic area
ments. 930.99 AvallabilitY of - mediation for Feder-
930.57 Consistency al assistance disputes.
930.58 Necessary data and inf0rmati0n 93o.100 Availability of mediation for prev-
930.59 Multiple permit review. ously reviewed activities
930.60 Commencement Of State agency
review. Subpart G- Secretarial Mediation
930.61 Public notice.
930.62 Public hearings. 930.110 Objectives
930.63 State agency concurrence with a 930.111 Informal negotiations
consistency certification. 930.112 Request for mediation.
930.64 State agency objection to a consist- 930.113 Public hearings.
ency certification. 930.114 secretarial mediation efforts.

192

National Oceanic and Atmospheric Adm., Commerce � 930.1
Sec. (b) To implement the Federal con.
930.115 Termination of mediation. sistency provisions in a manner which
930.116 Judicial review. strikes a balance between the need to
Subpart H-Socreterial Review Related to the ensure consistency for Federal actions
Objectives or Purposes of the Ad and Na- af ecting the coastal zone with ap-
tional Security Interests proved coastal management and the
need to promote Federal programs;
930.120 Objectives. (c) To provide flexible procedures
930.121 Consistent with the objectives or which foster intergovernmental coop-
purposes of the Act. eration and minimize duplicative
930.122 Necessary in the interest of nation. effort and unnecessary delay, while
al security. making certain that the objectives of
930.123 Appellant. the Federal consistency provisions of
930.124 Informal discussions. the Act are satisfied:
930.125 Appeals to the Secretary.
930.126 Federal and State agency re- (d) To interpret significant terms in
sponses to appeals. the Federal consistency provisions so
930.127 Public notice; receipt of comments. that they can be uniformly under-
930-128 Dismissal of appeals. stood and adhered to by all agencies,
930.129 Public hearings. individuals and other affected parties;
930.130 Secretarial review. (e) To provide procedures to make
930.131 Federal agency responsibility. certain that all Federal agency and
930.132 Review initiated by the Secretary. State agency consistency decisions are
930.133 Public notice; receipt of comments; directly related to the objectives, poli-
public hearings.
930.134 Secretarial review; Federal agency cies. standards and other criteria set
responsibility. forth in, or referenced as part of, ap-
Subpart I.-Assistant Administrator Reporting proved coastal management programs;
mW CoMnuing Review of Federal Actions (f) To provide procedures which the
Secretary, in cooperation with the Ex-
Subject to tM Fe" I Comistefty Ro- ecutive Office of the President, may
quireasents use to mediate serious disagreements
930.140 Objectives. which arise between Federal and State
930.141 Notification of Federal actions be- agencies during the administration of
Heved to be inconsistent with approved approved coastal mamagement pro-
maLnuement programs- gram*.
930.142 Notification of Federal actions be- (g) To provide procedures which
lieved to have been incorrectly deter- permit the Secretary to review Federal
mined to be inconsistent with an ap- license or permit activities, or Federal
proved management program.
930.143 Assistant Administrator reporting. assistance activities, to determine
930.144 Assistant Administrator advisory whether they are consistent with the
statementL objectives or purposes of the Act, or
930.145 Review of the implementation of are necessary in the interest of nation-
the Federal consistency Provisions. al security,
AuTHoax, Y: Seca. 307. 316 and 317, Coastal (h) To provide procedures which
Zone Management Act of 1972. Pub. L. 92- permit Interested parties to notify the
583, 86 Stat. 1280 (16 U.S.C. 1451 et seci.), as Assistant Administrator for Coastal
amended by Pub. L 94-370, 90 Stat. 1013. Zone Management of Federal actions
SouRcx: 44 PR 37143. June 25, 1979, unless believed to be inconsistent with ap-
otherwise noted. proved coastal management program.
or believed to have been Incorrectly
Subpart A-Objectives determined to be inconsistent with an
approved management program; and
1930.1 Overall objectives. (1) To provide procedures for the re-
The objectives of these regulations porting of any Federal actions found
are: (a) To describe the obligations of by the Assistant tar for
all agencies, Individuals and other par- Coastal Zone Management to be In-
ties who are required to comply with consistent with an approved coastal
the Federal consistency provisions of zone management program, and for
the Coastal Zone Management Act: the performance review of State im-

193

� 930.10 15 CFR Ch. IX (1-1-92 Edition)
Plementation of the Federal consisten- shall Participate with the Secretary in
cy provisions. seeking to mediate serious disagree.
ments which may arise between a Fed.
Subpart B-General Definitions eral agency and a coastal State.
930.10 Index to definitions. � 930.15 OCZM.
The following list includes all terms The term "OCZM" means the Office
defined in Part 930 of this title keyed of Coastal Zone Management, Nation-
to the section or paragraph in which al Oceanic and Atmospheric Adminis-
they are defined. tra,tion, U.S. Department of Com-
merce.
Term section
930.16 Assistant Administrator.
Act ............................................................................. 930.11 The term "Assistant Administrator"
Appelliant ................................................................... 930.123
Applicant ................................................................... 930.52 means the Assistant Administrator for
Applicant agency .............................. ...................... 930.92 Coastal Zone Management, National
Assistant administrator ........................................... 930.16 Oceanic and Atmospheric Administra-
Associated facilities ................................................. 930.21 tion, U.S. Department of Commerce.
Coastal zone ............................................................ 930.29
Consistant to the maximum extent practicable ... 930.32
Consistant with the objectives or purposes of 930.17 Federal agency.
the Ad ................................................................... 930.121
development project ............................................... 930.31(b) The term "Federal agency" means
Executive Office of the president .......................... 930.14 any department, agency, board, com-
Failure substantially to comply with an OCS mission. council, independent office or
Plan ..................................................I..................... 930.86(d) similar entity within the executive
Federal activity ......................................................... 930.31
Federal agency ........................................................ 930.17 branch of the Federal government, or
Federal assistance .................................................. 930.91 any wholly owned Federal government
Federal license or permit ....................................... 930-51 corporation
Federal license or permit activity descibed in
detail ...................................................................... 930.71
management program ............................................. 930.19 930.18 State agency.
Necessary in the interest of national security ..... 930.122 (a) The term "State agency" means
OCS plan ... ............................ . ............................... 930.73
OCZM .................................................... . .................. 930.15 the agency of the State government
OMB A-95 process .. . ............................................. 930.93 designated pursuant to section
person .......... . .... .......... . .......................................... 930.72 306(cX5) of the Act to receive and ad-
secretary ................................................................... 930,13 minister grants for an approved coast-
section ...................................................................... 930.12
State agency ............................ . .............................. 930.18 al management program. or a single
designee State agency appointed by
the 306(c)(5) State agency. Any ap-
930.11 Act. pointment by the 306q(c)(5) State
agency of a designee agency must be
The term "Act" means the Coastal described in the State's
Zone Management Act of 1972, as Program. In the absence of such de-
amended (16 U.S.C. 1451 et seq.). scription, all consistency determina-
930.12 Section. tions, consistency certifications and
Federal assistance proposals shall be
The term "Section" means a section sent to and reviewed by the 306(cX5)
of the Coastal Zone Management Act State agency.
of 1972, as amended. (b) The State agency Is responsible
for on Federal agency
930.13 Secretary. consistency determinations (see Sub-
The term "Secretary" means the part C of this part), concurring with or
Secretary of the U.S. Department Of obJecting to consistency certifications
Commerce. for Federal licenses. permits. and
Outer continental Shelf plans (see
1930.14 Executive Office of the President Subparts D and E of this part). and ro-
The term "Executive Office of the viewing the consistency of Federal As-
President" means the office, council. sistance activities proposed by State or
board, or other entity within the Exec- local government Agencies (see Sub,
utive Office of the President which part F Of this Part). The State agency

194

National Oceanic and Atmospheric Adm., Commerce � 930.32
shall be responsible for securing neces- Subpart C-Consistoncy for Federal
sary review and comment from other Adivitlas
State, regional, or local government
agencies. Thereafter, only the State � 930.30 Objectives.
agency is authorized to comment offi- The provisions of this subpart are
cially on a Federal consistency deter- provided to assure that all federally
mination, concur with or object to a conducted or supported activities in.
consistency certification. or determine cluding development projects directly
the consistency of a proposed Federal affecting the coastal zone are under-
assistance ctetivity. taken in a manner consistent to the
maximum extent practicable with ap-
� 930.19 Management program. proved State coastal management pro.
The term "management program" grams.
has the same definition as provided In � 930.31 Federal activity.
section 304(11) of the Act, except that
for the purposes of this part the term (a) The term "Federal activity"
is limited to those management pro. means any functions performed by or
grams adopted by a coastal State in ac- on behalf of a Federal agency In the
cordance with the provisions of section exercise of Its statutory responsibil-
306 of the Act, and approved by the ities.
Assistant Administrator. (b) A Federal development project is
a Federal activity involving the plan-
� 930.20 Coastal xone. ning, construction, modification, or re-
moval of public works, facilities, or
The term "coastal zone" has the other structures, and the acquisition,
same definition as provided in section utilization, or disposal of land or water
304(l) of the Act. resources.
(c) The term "Federal activity" does
930.21 Associated facilities. not Include the issuance of a Federal
The term "associated facilities" de. license or permit to an applicant or
scribes all proposed facilities: person (see Subparts D and E of this
(a) Which are specifically designed, part) or the granting of Federal assist-
located, constructed. operated, adapt- ance to an applicant agency (see Sub-
ed, or otherwise used, in full or in part P of this part).
major part, to meet the needs of a �930.32 Consistent to the maximum
Federal action (e.g., activity, develop- extent practicable.
ment project, license, permit, or assist-
ance). and (a) The term "consistent to the max-
(b) Without which the Federal imum extent practicable" describes
action, as proposed, could not be con- the requirement for Federal activities
ducted. including development projects direct-
ly affecting the coastal zone of States
All further requirements in this part with approved management programs
related to the review of and consisten- to be fully consistent with such pro-
cy for Federal activities including de- gram unless compliance is prohibited
velopment projects (see Subpart C Of based upon the requirements of exist-
this part), Federal license and permit Ing law applicable to the Federal agen-
activities (see Subparts D and E of this cy's operations. If a Federal agency as-
part) and Federal assistance activities serts that compliance with the man-
(see Subpart P of this part) also apply agement program is prohibited, it
to associated facilities related to those must clearly describe to the State
Federal actions. Therefore,-. the propo- agency the -statutory provisions, legis-
nent of a Federal action must consider lative history, or other legal authority
whether the Federal action and Its as- which limits the Federal agency's dis-
sociated facilities affect the coastal cretion to comply with the provisions
zone and, if so, whether these interre- of the management program
lated activities satisfy the relevant The duty the Act Imposes upon Peder-
consistency requirement of the Act. al agencies is notset aside by virtue of

195

� 930.33 15 CFR Ch. IX (1-1-92 Edition)
section 307(e). The Act was Intended rectly affecting the coastal zone. The
to cause substantive changes in Feder- Federal agency may provide the State
al agency decisionmaking within the agency with this information in any
context of the discretionary powers re- manner it chooses so Ion& as the re-
siding within such agencies. Accord- quirements of this subpart are satis-
ingly, when read together, sections fied.
307(c) (1) and (2) and 307(e) require (b) Federal agencies shall provide
Federal agencies, whenever legally State agencies with a consistency de-
permissible, to consider State-manage- termination at the earliest practicable
ment programs as supplemental re- time in the planning or reassessment
quirements to be adhered to in addi- of the activity. A consistency determi-
tion to existing agency mandates. nation should be prepared following
(b) A Federal agency may deviate development of sufficient inform tion
from full consistency with an ap- to determine reasonably the consisten-
proved management program when cy of the activity with the State's
such deviation is justified because of management program, but before the
some unforeseen circum es arising Federal agency reaches a significant
after the approval of the management point of decisionmaking in its review
program which present the Federal process. The consistency determina-
agency with a substantial obstacle tion shall be provided to State agen-
that prevents complete adherence to cies at least 90 days before final ap-
the approved program. proval of the Federal activity unless
6930.33 Identifying Federal activities di. both the Federal agency and the State
rectly affecting the coastal zone. agency agree to an alternative notifi-
(a) Federal agencies shall determine cation schedule.
which of their activities directly affect 1930.35 Federal and State agency coordi-
the coastal zone of States with ap- nation.
proved management programs.
(b) Federal agencies shall consider (a) State agencies should list in their
all development projects within the management programs Federal activi-
coastal zone to be activities directly af- ties which, in the opinion of the State
fecting the coastal zone. AU other agency, are likely to directly affect the
types of activities within the coastal coastal zone and require a Federal
zone are subject to Federal agency agency consistency determination.
review to determine whether they di- Listed Federal activities must be de-
rectly affect the coastal zone. scribed in terms of the specific type of
(c)(1) Federal activities outside of activity involved (e.g.. Federal recla-
the coastal zone, as defined In Section mation projects). In the event the
304(l) of the Act. are subject to Feder- State agency chooses to describe Ped-
al agency review to determine whether eral activities outside of the coastal
they directly affect the coastal zone. zone but likely to directly affect the
(2) OCS oil and gas lease sale activi- coastal zone, It must alw describe the
ties conducted pursuant to the Outer geographic location of such activities
Continental Shelf Lands Act (43 (e.g., reclamation projects in coastal
U.S.C. 1331 et seq.) are not Federal ac- floodplains).
tivities which directly affect the coast- M State agencies should monitor
al zone within the meaning of Section unlisted Federal activities (e.g., by use
307(c)(1) of the Act, and. therefore. of intergovernmental review proem
are not subject to review under this established pursuant to MO. 12372,
Subpart. review, review of National Environ-
[44 PR 37143. June 25. 1979, as amended at mental Policy Act (NEPA) envirow
50 PR 35213. Aug. 30, 19851 mental impact statementA6 etc.) and
should notify Federal agencies of un-
9930.34 Federal agency consistency deter- listed Federal activities which Federal
minations. agencies have not subjected to a con-
(a) Federal agencies shan provide Watency review but which. in the opin.
State agencies with consistency deter- ton of the State agency. dirS" affect
minations for all Federal activities di. the coasW zone.and require a Federal

196

National Oceanic and Atmospheric Adm., Commerce � 930.37
agency consistency determination. 144 FR 37143. June 25, 1979. as amended at
state agencies must notify Federal 48 FR 29136, June 24, 19831
is agencies within 45 days from receipt � 930.36 Availability of mediation for neg.
of notice of the unlisted Federal activi- ative determination disputes.
ty, otherwise the State agency waives
its right to request a consistency de- In the event of a serious disagree-
termination. The waiver does not ment between a Federal agency and a
apply in cases where the State agency State agency regarding a determina.
does not receive notice of the Federal tion related to whether a proposed ac.
activity (e.g., for those Federal activi. tivity directly affects the coastal zone,
ties which are not processed through either party may seek the Secretarial
Intergoverrunental Review Process es- mediation services provided for in Sub-
tablished pursuant to E.O. 12372, Part G.
NEPA review or a similar procedure
which permits State agency monitor- 9 930.37 Consistency determinations for
ing). proposed activities.
W The recommended listing and (a) Federal agencies shall review
monitoring procedures described in their proposed Federal activities
paragraphs (a) and (b) of this section which directly affect the coastal zone
are neither a substitute for nor elimi- in order to develop consistency deter-
nate Federal agency responsibility minations which indicate whether
under If 930.33(b) and 930.34 to pro- such activities will be undertaken in a
vide State agencies with consistency manner consistent to the maximum
determinations for all development extent practicable with approved
projects in the coastal zone and for all State management programs. Federal
other Federal activities which the Fed- agencies are encouraged to consult
eral agency finds directly affect the with State agencies during their ef-
coastal zone. forts to assess whether such activities
(d) If a Federal agency decides that will be consistent to the maximum
a consistency determination is not re- extent practicable with such pro-
quired for a Federal activity (1) Identi- KraMs.
fied by a State agency on Its list or (b) In cases where Federal agencies
through case-by-case monitoring, (2) will be performing repeated activity
which is the same as or similar to ac- other than a development project
tivities for which consistency determi- (e.g., ongoing maintenance, waste dis.
nations have been prepared in the posal, etc.) which cumulatively has a
past. or (3) for which the Federal direct effect upon the coastal zone,
agency undertook a thorough consist- the agency may develop a general con-
ency assessment and developed initial sistency determination thereby avoid-
findings on the effects of the activity ing the necessity of issuing separate
on the coastal zone. the Federal consistency determinations for each
agency shall provide the State agency incremental action controlled by the
with a notification, at the earliest major activity. A general consistency
practicable time in the planning of the determination may only be used in sit-
activity, briefly setting forth the rea- uations where the incremental actions
sons for its negative determination. A are repetitive or periodic, substantially
negative determination shall be pro- similar in nature, and do not directly
vided to the State agency at least 90 affect the coastal zone when per-
days before final approval of the activ- formed separately. U a Federal agency
ity, unless both the Federal agency issues a general consistency determi-
and the State agency agree. to an alter- nation. it must thereafter periodically
native notification schedule. consult with the State agency to dia-
(Executive Order 12372. July 14, 1982 (47 cum the manner In which the incre-
FR 30959). as amended April S. 1983 (48 PR mentil actions are being undert"en.
15587): am 401. Intergovernmental Coop- (c) In cam where the Federal
eration Act of 1968. as amended (31 UA.C. agency has sufficient information to
0506); sec 204. Demonstration Cities and determine the consistency of a pro-
Metropolitan I)evelopment Act of im as posed development project from plan-
amended (42 U.S.C. 3334)). ning to completion. only one consist-

197

� 9M.38 15 OR Ch. IX (M." Ediffen)
ency determination will be required. ant to the National Environmental
However, in cases where major Feder- Policy Act).
al decisions related to a proposed de-
velopment project Will be made in 6 930.39 Content of a consistency determi.
phases based upon developing infor- nation.
mation, with each subsequent phase (a) The consistency determination
subject to Federal agency discretion to shall Include a brief statement indicat-
implement alternative decisions based ing whether or not the proposed activ-
upon such information (e.g.. planning, ity will be undertaken in a manner
siting, and design decisions), a consist- consistent to the maximum extent
ency determination will be required practicable with the management pro-
for each major decision. In cases of gram. The statement must be based
phased decisionmaking, Federal agen- upon an evaluation of the relevant
cies shall ensure that the development provisions of the management pro-
project continues to be consistent to gram. The consistency determin tion
the maximum extent practicable with shall also include a detailed descrip-
the State's management Program- tion of the activity. Its associated fa-
6 930.39 Consistency determinations for cWties. and their coastal zone effects,
activities initiated prior to manage- and comprehensive data and informa-
ment program approval. tion sufficient to support the Federal
agency's consistency statement. The
(a) A consistency determination will unt of detail in the statement
be required for ongoing Federal activi. amo
ties other than development Projects evaluation, activity description and
(e.g., waste disposal practices) initiated supporting information shall be com-
mensurate with the expected effects
prior to management Program RPPrOv- of the activity on the coastal zone.
al. which are governed by statutory M Federal agencies shall be guided
authority under which the Federal by the following in mwirin their con-
agency retaIns discretion to reassess sistency determinations. The activity
and modify the activity. In these cam (e.g., project siting and constuction).
the consistency determination must be Its direct effects (e.g., air. water, waste
made by the Federal agency at the discharges, etc.). and associated facili-
earliest practicable time following ties (e.g.. proposed siting and construc-
ge ent program approval. and
the State agency must be provided tion of road. connecting pipe-
with a consistency determination no line, support buildings, etc.) and the
later than 120 days after ftm@ffpe e direct effects of the associated fadli-
program approval for ongoing- vi- ties (e.g.. erosion, wetlands. beach
ties which the State agency lists or access Impacts, etc.) must all be con-
identifies through monitoring as sub- sistent to the maximum extent Practi-
ject to consistency with the manage- cable with the anagement program
ment program. Although facilities (ec..
M A consistency determination zecz Ltional housin which is induced
shall be required for major. phased by but not necessarily related to &
Federal development project decisions Federal harbor dredging ProJect-see
described in I 930.37(c) which are 1930.21) must be included within the
made following e e program consistency determination's descrip-
approval and are related to develop- tion of the direct effects of the activi-
ment projects initiated Prior to Pro- ty. Federal agencies are not responal-
gram approval. In roodrin these new ble for evaluating the COnBiStenCY Of
decisions, Federal agencies shall con- such facilities.
sider coastal zone effects not fully (c) In m-'rin their consistency de-
evaluated at the outset of the proJect. terminations, Federal agencies shall
This provision shall not apply to give appropriate weight to the various
phased Federal decisions which were types of provisions within the manage-
specifically described, considered and ment program. Federal agencies must
approved prior to e pro- ensure that their activities we consist-
gram approval (e.g.. in IL final environ. ent to the may'roum extent Practics-
mental impact statement issued pursu- ble with the enforceable. mandatory

198

National Ocoanic and Atmosphoric Adm., Commorco � 930.42
policies of the management program. 9 930.41 State agency response.
However, Federal agencies need only (a) A State agency shall inform the
give adequate consideration to man- Federal agency of Its agreement or dis.
agement program provisions which are agreement with the Federal agency's
in the nature of recommendations. Fi- consistency determination at the earli-
nallY, Federal agencies do not have to est practicable time. If a final response
evaluate coastal zone effects for which has not been developed and issued
the management Program does not within 45 days from receipt of the
contain mandatory or recommended Federal agency notification. the State
policies because, in the absence of agency should at that time inform the
such provisions, there is no basis for Federal agency of the status of the
making a consistency determination matter and the basis for further delay.
with respect to such effects. The Federal agency may presume
(d) When Federal agency standards State agency agreement if the State
are more restrictive than standards or agency falls to provide a response
requirements contained in the State's within 45 days from receipt of the
management program, the Federal Federal agency notification.
agency may continue to apply its (b) State agency agreement shall not
stricter standards (e.g., restrict project be presumed in cases where the State
development or design alternatives agency, with the 45 day period, re-
notwithstanding permissive manage- quests an extension of time to review
ment program policies). In such cases the matter. -Federal agencies shall ap-
the Federal agency should inform the prove one request for an extension
State agency in the consistency deter- period of 15 days or less. In consider-
mination of the statutory, regulatory ing whether a longer or additional ex.
or other basis for the application of tension period is appropriate, the Fed.
the stricter standards. eral agency should consider the mag-
nitude and complexity of the inform -
� 930.40 Multiple Federal agency partici- tion contained in the consistency de-
pation. termination.
(c) Final Federal agency action may
Whenever more than one Federal not be taken sooner than 90 days from
agency is involved in conducting or the issuance of the consistency deter-
supporting a Federal activity or its as- mination to the State agency unless
sociated facilities directly affecting both the Federal agency and the State
the coastal zone, or is involved in a agency agree to an alternative period
group of Federal activities related to (see � 930.34(b)).
each other because of their geographic
proximity, consideration should be 6 930.42 State agency disagreement.
given to the preparation of one con- (a) In the event the State agency
sistency determination for all the Fed- disagrees with the Federal agency's
eral activities involved. In such cam, consistency deter?nfn tion. the State
Federal agencies should consider joint agency shall &CCOmpanY Its response
preparation or lead agency develop- to the Federal agency with Its reasons
ment of the consistency determina- for the disagreement and supporting
tion. In either case, the consistency de- information. The State agency re-
termination (a) must be transmitted to sponse must describe (1) how the proo
the State agency at least 90 days Posed activity will be inconsistent with
before final decisions are taken by any specific elements of the nuumeement,
of the participating agencies, (b) must program, and (2) alternative measures
indicate whether or not each of the (if they exist) which, if adopted by the
proposed activities is consistent to the Federal agency, would allow the activi-
maximum extent practicable with the ty to proceed in a manner consistent
management program and (c) must In- to the maximum extent practicable
clude information on each proposed with the management program.
activity sufficient to support the con- (b) U the State agency's disagree-
ment is based upon a finding that the
sistency determination. Federal agency has failed to supply

199

� 930.43 15 CFR Ch. IX (1-1-92 Edition)
sufficient information (see zone and is not consistent to the maxi-
I 930.39(a)). the State agency's re- mum extent practicable with the
sponse must describe the nature of the State's management program. The
information requested and the necessi- State agency's request must include
ty of having such information to de- supporting information and a proposal
termine the consistency of the Federal for recommended remedial action.
activity with the management pro- W If, after a reasonable time follow-
gram. ing a request for remedial action, the
(c) State agencies shall send to the State agency still maintains that a se.
Assistant Administrator a copy of re- rious disagreement exists, either party
sponses which describe disagreements may request the Secretarial mediation
with Federal agency consistency deter- services provided for in Subpart G.
minations.
0930.43 Availability of mediation for dis- Subpart D-Consistoncy for Activities
putes concerning proposed activities. Requiring a Federal License or
(a) In the event of a serious disagree- Permit
ment between a Federal agency and a 6 930.50 Objectives.
State agency regarding the consisten- The provisions of this subpart are
cy of a proposed Federal activity di- provided to assure that Federally li-
rectly affecting the coastal zone, censed or permitted activities affecting
either party may request the Secretar- the coastal zone are conducted in a
ial mediation services provided for in manner consistent with approved man-
Subpart 0. agement programs.
6 930." Availability of mediation for pre-
viously reviewed activities. 0 930.51 Federal license or permit.
(a) Federal and State agencies shall (a) The term "Federal license or
cooperate in their efforts to monitor permit" means any authorization, cer-
Federally approved activities in order tification, approval, or other form of
to make certain that such activities permission which any Federal agency
continue to be undertaken in a is empowered to issue to an applicant.
manner consistent, to the maximum W The term also includes the fol-
extent practicable, with the State's lowing types of renewals and major
management program amendments which affect the coastal
W The State agency shall request zone:
that the Federal agency take appropri- (1) Renewals and major amendments
ate remedial action following a serious of Federal license and permit activities
disagreement resulting from a State not previously reviewed by the State
agency's objection to a Federal activi- &gencr.
ty which was: (1) Previously deter- (2) Renewals and major amendments
mined to be consistent to the maxi. of Federal license and permit activities
mum extent practicable with the previously reviewed by the State
State's management program. but agency which are filed after and are
which the State agency later main. subject to management program
tains is being conducted or is having a amendments not In existence at the
coastal zone effect substantially differ- time of original State agency revievr.
ent than originally proposed and. as a and
result, is no longer consistent to the (3) Renewals and major amendments
maximum extent practicable with the of Federal Uoense and permit activities
State's management program or (2) previously reviewed by the State
previously determined not to be a Fed- agency which will cause coastal zone
eral activity directly affecting the effects y different than
coantal zone, but which the State those originally reviewed by the State
agency later mainMins is being con- agency.
ducted or In having a coastal zone 1930.52 Applkant
effect substantially different than The term "applicant" means any In.
originally proposed and. an a result.
the activity directly affects the coastal dividU&L PUbUC Or Private Corporation.

200

National Oceanic and Atmospheric Adm., Commerce �
partnership, association, or other which are covered by the general con.
entity organized or existing under the currence. Minor Federal license or
laws of any State, or any State, region- permit activities which satisfy the con-
al, or local government, who, following ditions of the general concurrence are
management program approval, files not subject to the consistency certifi-
an application for a Federal license or cation requirement of this subpart.
permit to conduct an activity affecting Except in cases where the State
the coastal zone. The term "applicant" agency indicates otherwise, copies of
does not include Federal agencies aP- Federal license or permit applications
plying for Federal licenses or permits. for activities subject to a general con-
Federal agency "activities" requiring currence must be sent by the applicant
Federal licenses or permits are subject to the State agency to allow the State
to the consistency requirements of agency to monitor adherence to the
Subpart C of this Part. conditions required by such concur-
� 930.53 Management program license and rence. Confidential and proprietary
material within such applications may
permit listing. be deleted.
(a) During management program de- (d) The license and permit list may
velopment, Federal agencies should be amended by the State agency fol-
assist State agencies in Identifying lowing consultation with the affected
Federal license and permit activities Federal agency and approval of addi-
which reasonably can be expected to tions or deletions by the Assistant Ad.
affect the coastal zone. ministmtor. The State agency shall
(b) State agencies shall develop a list provide copies of the list and any
of Federal license and permit activities amendments to Federal agencies and
which are likely to affect the coastal shall make the information available
zone and which the State agency to the public.
wishes to review for consistency with (e) No Federal license or permit de-
the management program. The list scribed on an approved list shall be
shall be included as part of the man- issued by a Federal agency until the
agement program, and the Federal li- requirements of this subpart have
cense and permit activities shall be de' been satisfied. Federal agencies shall
scribed in terms of the specific licenses inform applicants for listed licenses
or permits involved (e.g.. Corps of En- and permits of the requirements Of
gineers 404 permits, Coast Guard +b subpart.
bridge permits, etc.). In the event the "lis
State agency chooses to review Feder- 9930.54 Unlisted Federal license and
al licenses and permits for activities permit activities.
outside of the coastal zone but likely (a) With the assistance of Federal
to affect the coastal zone, it must gen-
erally describe the geographic location agencies, State agencies should moni-
of such activities. tor unlisted Federal license and permit
(c) If a State agency wishes to avoid activities (e.g., by use of intergovern-
repeated review of minor ]Federally mental review Process established Pur-
permitted activities which, while indi. suant to E.O. 12372, review of NEPA
vidually inconsequential, cumulatively envirOr=ental impact statements,
cause effects on the coastal zone, the etc.) and shall immediately notify Fed-
State agency, after developing condi. eral agencies and applicants of UnHat-
tions allowing concurrence for such ac. ed activities affecting the coastal zone
tivities, may issue a general public which require State agency review.
notice (see 1930.61) and general con. State agencies must inform the Feder-
currence allowing similar minor work al agency and applicant within 30 days
in the same geographic area to pro- from notice of the license Or Permit
ceed without prior State agency appliCILtiOnt otherwise the State
review. in such cam. the State agency agency waives its right to review the
must set forth in the management unlisted activity. The waiver does not
program license and permit list the apply in cam Where the State agency
minor Federal license and Permit Ac- does not receive notice Of the Federal
tivities and the relevent conditions license or Permit activity.

201

� 930.55 15 CFR Ch. IX (1-1-92 Edition)
(b) The State agency must also certification and accompanying infor-
notify the Assistant Administrator of mation, whichever Period terminates
unlisted Federal license or permit ac- last.
tivities which the State agency be- (Executive Order 12372, July 14, 1982 (47
lieves should be subject to State FR 30959). as amended April 8,1983 (48 PR
agency review. Following State agency 15587); sec. 401, Intergovernmental Coop-
notification to the Federal agency, aP- eration Act of 1968, as amended (31 U.S.C.
plicant and the Assistant Administra- 6506); sec 204, Demonstration Cities and
tor, the Federal agency may not issue Metropolitan Development Act of 1966 as
the license or permit until the require- amended (42 U.S.C. 3334)).
ments of this subpart have been satis- [44 FR 37143, June 25. 1979, as amended at
fied, unless the Assistant Administra. 48 FR 29136, June 24. 19831
tor disapproves the State agency deci- 9 930.55 Availability of mediation for li-
sion to review the activity. cense or permit disputes.
(c) The Federal agency and the ap-
plicant have 15 days from receipt of In the event of a serious disagree-
the State agency notice to provide ment between a Federal and State
comments to the Assistant Adminis- agency regarding whether a listed or
trator regarding the State agency's de. unlisted Federal license or permit ac-
cision to review the activity. The sole tivity Is subject to consistency review,
basis for the Assistant Administrator,s either party may request the Secretar-
approval or disapproval of the State ial mediation services provided for in
agency's decision will relate to wheth- Subpart G: notice shall be provided to
er the proposed activity can be reason. the applicant. The existence of a seri-
ably expected to affect the coastal ous disagreement will not relieve the
zone of the State. The Assistant Ad- Federal agency from the responsibility
ministrator shall issue a decision, with for withholding approval of a license
supporting comments, to the State or permit application for an activity
agency, Federal agency and applicant on an approved management program
within 30 days from receipt of the list (see J 930.53) or individually ap-
State agency notice. proved by the Assistant Administrator
(d) In the event of disapproval by (see 1930.54) pending satisfaction of
the Assistant Administrator, the Fed. the requirement's of this subpart.
eral agency may approve the license or Similarly. the existence of a serious
permit application and the applicant disagreement will not prevent the Fed-
need not comply with the require- eral agency from approving a license
ments of this subpart. If the Assistant or permit activity which has not re-
Administrator approves the State ceived Assistant Administrator aPProv-
agency's decision, the Federal agency al.
and applicant must comply with the
consistency certification procedures of 1930.56 State agency guidance and assist-
ance to applimnts; Information re-
this subpart. quirements.
(e) Following an approval by the As
sistant Administrator, the applicant (a) As a preliminary matter. any ap-
shall. amend the Federal application plicant for a Federal license or permit
by including a consistency certifica- selected for review by a State agency
tion and shall provide the State should obtain the views and assistance
agency with a copy of the certification of that agency regarding the means
along with necessary supporting data for ensuring that the proposed activity
and information (see It 930.63 and will be conducted in a manner consist-
930.64). For the purposes of this sec. ent with the State's management Pro-
tion, concurrence by the State agency gram As part of its assistance efforts.
shall be conclusively Presumed in the the State agency shall Make XV111able
absence of a State agency objection for public inspection copies of the
within six months from the original management program document.
Federal agency notice to the State (b) The -anagement program as
agency (see paragraph (a) of this Sec. originally approved or amended may
tion) or within three months from re- describe requirements regarding the
ceipt of the applicant's consistency data and information necessary to

202

National Oceanic and Atmospheric Adm., Commerce � 930.59
assess the consistency of Federal li- (3) A brief assessment relating the
cense and permit activities. Required probable coastal zone effects of the
data and information may not include proposal and its associated facilities to
confidential and proprietary material. the relevant elements of the manage.
In the case of approved amendments, ment program.
State agencies shall send copies to rel- (4) A brief set of findings, derived
evant Federal agencies who shall, in from the assessment, indicating that
turn, provide the information require- the proposed activity (e.g., project
ments to applicants. If a State does siting and construction), its associated
not choose to develop or amend its facilities (e.g., access road, support
management program to include Infor- buildings), and their effects (e.g., air,
mation requirements, the applicant water, waste discharges, erosion, wet-
must, at a minimum, supply the State lands, beach access impacts) are all
agency with the information required consistent with the provisions of the
by 1930.58. management program. In developing
930.57 Consistency certifications. findings, the applicant shall give ap-
propriate weight to the various types
(a) When satisfied that the proposed of provisions within the management
activity meets the Federal Consistency program. while applicants must be
requirements of this subpart, all appli- consistent with the enforceable, man-
cants for Federal licenses or Permits datory policies of the management
subject to State agency review shall program, they need only demonstrate
provide in the application to the Fed- adequate consideration of policies
eral licensing or permitting agency a which are in the nature of recommen-
certification that the proposed activity dations. Applicants need not make
complies with and will be conducted in findings with respect to coastal zone
a manner consistent with the State's effects for which the management
approved management program. At program does not contain mandatory
the same time, the applicant shall,fur- or recommended policies.
nish to the State agency a copy of the (b) At the request of the applicant,
certification. interested parties who have access to
(b) The applicant's consistency certi- information and data required by sub-
fication shall be in the following form: paragraphs (a) (1) and (2) of this sec-
"The proposed activity complies with tion may provide the State agency
(name of State) approved coastal man- with all or part of the material re-
agement program and will be conduct- quired. Furthermore, upon request by
ed in a manner consistent with such
program.op the applicant, the State agency shall
provide assistance for developing the
0 930.58 NecessM data and information. assessment and findings required by
(a) The applicant shall furnish the paragraphs (a) (3) and (4) of this aec-
State agency with necessary data and tion.
information along with the constaten- (W When -satisfied that adequate
cy certification. Such information and protection against public disclosure
data shall include the following: exists. applicants should provide the
(1) A detailed description of the pro- State agency with confidential and
posed activity and its associated Will- proprietary Inform tion which the
ties which is adequate to permit an as- State agency rinaintains is necessaxy to
sessment of their probable coastal make a reasoned decision on the con.
zone effects. Maps, diagrams, technical sistency of the proposal. State agency
data and other relevant material must requests for such Information must be
be submitted when a written descrip- related to the necessity of having such
tion alone will not adequately describe information to assess adequately the
the proposal (a copy of the Federal ap- c0asW zone effects of the proposal.
plication and all supporting material 1930.59 Multiple permit review.
provided to the Federal agency should
also be submitted to the State agency). (a) Applicants shit". to the extent
(2) Information required by the practicable. consolidate related Feder-
State agency pursuant to I 930.56(b). al license and permit activities affect.

203

� 930.60 15 CFR Ch. IX (1-1-92 EdIflon)
ing the coastal zone for State agency W A number of procedural options,
review. State agencies shall, to the if permitted by State law, are available
extent practicable, provide applicants to State agencies to satisfy the public
with a "one-stop" multiple permit notice requirements of this subpart.
review for consolidated permits to They include, but are not limited to:
minimize duplication of effort and to (1) The State agency providing the
avoid unnecessary delays. public notice;
(b) A State agency objection to one (2) The State agency requiring the
or more of the license or permit activi- applicant to provide the public notice,
ties submitted for consolidated review or
shall not prevent the applicant from (3) The State agency relying upon
receiving Federal agency approval for the public notice provided by the Fed-
those license and permit activities eral agency reviewing the application
found to be consistent with the man. for the Federal license or permit (e.g.,
agement program. notice of availability of NEPA environ-
mental impact statements) if such
1930.60 Commencement of State agency notice satisfies the minimum require-
review. ments set forth in paragraphs (a) and
(a) Except as provided in I 930.54(e), W of this section.
State agency review of an applicant's (d) Federal and State agencies are
consistency certification begins at the encouraged to issue Joint public no-
time the State agency receives a COPY tices whenever possible to minimize
duplication of effort and to avoid un-
of the consistency certification, and necessary delays.
the information and data required
pursuant to 1930.58. (Executive Order 12372. July 14. 1982 (47
W A State agency request for infor- PR 30959). as amended April 8, 1983 (48 PR
mation or data in addition to that re- 15587); sec. 401. Intergoverrunental Coop-
quired by 1930.58 shall not extend the eration Act of 1988. as amended (31 U.S.C.
65M); aft 204, Demonstration Cities and
date of commencement of State Metropolitan I)evelopment A& of no ss
agency review. amended (42 U.S.C. 3334)).
(44 PR 37143, June 25, 1979, an amended at
1930.61 Public notice. 48 PR 29136, June 24. 19831
(a) Following receipt of the material 1930.62 Public hearings.
described in 1930.60 the State agency
shall ensure timely public notice of (a) At the discretion of the State
the proposed activity. At a minimum agency, public notice may include the
the provision of public notice must be announcement of one or more public
in accordance with State law. In addi- hearings. Public hearings shall be
tion, public notice must be provided In scheduled with a view towards (1) al-
the immediate area of the coastal zone lowing access to the consistencY certi-
which is likely to be affected by the fication and accompanying public in-
proposed activity. Public notice shall formation within a reasonable time
be expanded in proportion to the prior to the hearing. (2) facilitating
degree of likely public interest result- broad public attendance and participa.
ing from the unique geographic area tion at the hearing. and (3) affording
involved, the substantial commitment the applicant expeditious consider-
of or Impact on coastal resources, the ation of the proposed activity.
complexity or controversy of the pro- W Federal and State agencies are
posal. or for other good cause. encouraged to hold Joint Public hear-
(b) Public notice shall facilitate ings In the event both agencies deter-
public comment by providing a sum- mine that a hearing on the action in
mary of the proposed activity, by an- necessary.
nouncing the availability for inspec- 193063 State agency concurrence with a
tion of the consistency certification consistency certification.
and accompanying public information
and data, and by requesting that com- (a) At the earliest practicable time.
ments be submitted to the State the State agency shall notify the PW.
agency. eral agency and the applicant whether

204

14aflonal Oceanic and Atmospheric Adm., Commerce 93OA6
the State agency concurs with or ob- the State agency should attempt to
jects to a consistency certification. agree upon conditions. which, if met
Concurrence by the State agency shall by the applicant, would permit StAte
be conclusively presumed in the ab- agency concurrence. The parties shall
sence of a State agency objection also consult with the Federal agency
within six months following com- responsible for approving the Federal
mencement of State agency review. license or permit to ensure that pro.
(b) State agencies should restrict the posed conditions satisfy Federal as
period of public notice, receipt of com- well as State management Program re-
ments, hearing proceedings and final quirements.
decision-making to the minimum time (d) A State agency objection may be
necessary to inform the public. obtain based upon a determination that the
sufficient comment, and develop a rea- applicant has failed, following a writ.
sonable decision on the matter. If the ten State agency request. to supply
State agency has not issued a decision the information required Pursuant to
within three months following com- J 903.58. If the State agency objects on
mencement of State agency review, it the grounds of insufficient informa-
shall notify the applicant and the Fed- tion, the objection must describe the
eral agency of the status of the matter nature of the information requested
and the basis for further delay. and the necessity of having such infor.
(c) If the State agency issues a con- mation to determine the consistency
currence or is conclusively presumed of the activity with the management
to concur with the applicant's consist- program.
ency certification, the Federal agency (e) A State agency objection shall in-
may approve the Federal license or clude a statement informing the appli-
permit application. Notwithstanding cant of a right of appeal to the Secre-
State agency concurrence with a con- tary on the grounds described in Sub-
sistency certification, the Federal per- part H.
mitting agency may deny approval of
the Federal license or permit applica- 1930.65 Federal permitting agency re-
tion. Federal agencies should not sponsibility.
delay processing applications pending
receipt of a State agency's concur- Following receipt of a State agency
rence. In the event a Federal agency objection to a consistency certifica-
determines that an application will tion, the Federal agency shall not
not be approved. it shall immediately issue the Federal license or permit
notify the applicant and the State except as provided in Subpart R of
agency. this part.
0 930.64 State agency objection to a con. 1930.66 Availability of mediation for pre.
sistency certiftestion. viously reviewed activities.
(a) If the State agency objects to the (a) Federal and State agencies shall
applicant's consistency certification cooperate in their efforts to monitor
within six months following com- Federally licensed and permitted ac-
mencement of review, it shall notify tivities in order to make certain that
the applicant, Federal agency and As- such activities continue to conform to
sistant Administrator of the objection. both Federal and State requirements.
(b) State agency objections must de- (b) The State agency shall request
scribe (1) how the proposed activity is that the Federal agency take appropri-
inconsistent with specific elements of ate remedial action following a serious
the management program and (2) al- Usagreement resulting from a State
ternative measures (if they exist) agency objection to a Federally H-
which. if adopted by the applicant. censed or permitted activity which
would permit the proposed activity to was: (1) Previously determined to be
be conducted in a manner consistent consistent with the State's manage-
with the management program ment program, but which the State
W During the period when the agency later maintains in being con-
State agency is reviewing the consist- ducted or in having coastal zone ef.
ency certification, the applicant and fects different than

205

930.70 15 CFR Ch. IX (M." Edition)
originally proposed and, as a result, is nee following management program
no longer consistent with the State's approval, an OCS plan which describes
management program; or (2) previous- in detail Federal license or permit ac-
ly determined not to be an activity af- tivities.
fecting the coastal zone, but which the
State agency later maintains is being 9 930.73 OCS plan.
conducted or is having coastal effects (a) The term "OCS plan" means any
substantially different than originally plan for the exploration or develop-
proposed and, as a result, the activity ment of, or production from. any area
affects the coastal zone in a manner which has been leased under the
inconsistent with the State's manage- Outer Continental Shelf Lands Act (43
ment program. The State agency's re- U.S.C. 1331 et seq.), and the regula-
quest must include supporting infor- tions under that Act. which Is submit-
mation and a proposal for recommend. ted to the Secretary of the Interior or
ed remedial action; a copy of the re- designee following management pro-
quest must be sent to the applicant. gram approval and which describes in
W If. after a reasonable time follow- detail Federal license or permit activi-
ing a request for remedial action. the ties.
State agency still maintains that a se- W The requirements of this subpart
rious disagreement exists with the do not apply to Federal license and
Federal agency, either party may seek permit applications filed after man-
the Secretarial mediation services pro- agement program approval for activi-
vided for In Subpart G of this part. ties described in detail in OCS plans
approved by the Secretary of the Inte-
Subpart E-Consistency for Outer rior or designee prior to management
Continental Shelf (OCS) Explora- program approval.
tion, Development and Produc- 0 930-74 OCS activities subject to State
tion Activities agency review.
9 930.70 Objectives. Except for States which do not an-
The provisions of this subpart are ticipate coastal zone effects resulting
provided to assure that all Federal H- from OCS activities, miumement pro-
cense and permit activities described gram lists required pursuant to
in detail in OCS plans and which 1930.53 shall include a reference to
affect the coastal zone are conducted OCS plans which describe in detail
in a manner consistent with approved Federal license and permit activities
coastal zone management programs. affecting the coastal zone.

6 930.71 Federal license or permit activity 0 930-76 State agency assistance to per-
described in detail. sona; information requirements.
The term "Federal license or permit (a) As a preliminary matter. any
activity described in detail" means any person intending to submit to the Sec-
activity requiring a Federal license or retary of the Interior and OCS plan
permit, as defined In 1930.51, which which describes in detail Federal li-
the Secretary of the Interior deter- cense or permit activities affecting the
mines must be described in detail coastal zone should obtain the views
within an OCS plan. and assistance of the State agency re-
garding the means for ensuring that
1930.72 Person. such activities will be conducted in a
The term -person" means any indi- manner consistent with the States
vidual, corporation. Partnership. 8880- management Program. As Part Of Its
ciation. or other entity organized or assistance efforts, the State agency
existing under the laws of any State. shall make available for Wspection
the Federal government. any State, re- copies of the program
gional, or local government, or any document.
entity of such Federal. State. regional W in accordance with the provi-
or local government. who submits to sions In 1930.56(b), the management
the Secret&ry of the Interior. Or desiff- Program as originally approved or

206

National Ocoonic and Atmosph*ric Adm., Commorco � 930.78
amended may describe requirements (3) A brief set of findings, derived
regarding data and information which from the assessment, indicating that
will be necessary for the State agency each of the proposed activities (e.g.,
to assess the consistency of the Feder- drilling, platform placement) and
al license and permit activities de- their associated facilities (e.g., onshore
scribed In detail in OCS plans. support structures, offshore pipelines),
and their effects (e.g., air, water, waste
� 930.76 Submission of an OCS plan and discharge, erosion, wetlands. beach
consistency certification. access impacts) are all consistent with
Any person submitting to the Secre- the provisions of the management pro-
tary of the Interior or designee any gram. In developing findings, the
OCS plan shall: person shall give appropriate weight
(a) Identify all activities described in to the various provisions within the
detail in the plan which are subject to management program in accordance
State agency review; with the guidance provided in
(b) When satisfied that the proposed J 930.58(a)(4).
activities meet the Federal consistency W At the request of the person, in-
requirements of this subpart, provide terested parties who have access to in.
the Secretary of the Interior or desig- formation required by paragraphs (a)
nee with a consistency certification, and (b)(1) of this section may provide
attached to the OCS plan, and the the State agency with all or part of
Secretary of the Interior or designee the material required. Furthermore,
shall furnish the State agency a copy upon request by the person, the State
of the OCS plan (excluding proprie- agency shall provide assistance for de-
tary information) and consistency cer- veloping the assessment and findings
tification. required by paragraphs M (2) and (3)
(c) The person's consistency certifi- of this section.
cation shall be in the following form: W When satisfied that adequate
The proposed activities described in detail protection against public disclosure
in this plan comply with (name of Stateft)) exists, persons should provide the
approved coastal nuuwement proffram(s) State agency with confidential and
and wili be conducted in a manner consist- proprietary Information which the
ent with such program(s). State agency maintains Is necessary to
6 930.77 Nece"ary data and Information. make a reasoned decision on the con-
(a) The State agency shall use the sistency of the proposed activities.
information received pursuant to the State agency requests for such infor-
Department of the Interior's operat- mation must be related to the necemi-
ing regulations governing exploration, ty of having such Information to
development and production oper- assess adequately the coastal zone ef-
ations on the OCS (see 30 CPR 250.34) fects of the proposed activities.
and regulations pertaining to the OCS li 930.7S Commencement of State agency
information program (see 30 CPR Part review; public notice.
252) t4b determine the consistency of
proposed Federal license and Permit (a) State agency review of the per-
activities described in detail in OCS son's consistency certification begins
plans. at the time the State agency receives a
(b) The person shall supplement the copy of the OCS plan.. consistency cer-
information provided by paragraph (a) tification, and required necessary data
of this section by supplying the State and information. A State amcy re-
agency with: quest for information and data in ad-
(1) information required by the dition to that required by 1930-77
State agency pursuant to I 930-75(b). -shall not extend the date of com-
(2) A brief asseument relating the mencement of State agency review.
probable coastal zone effects of the ac- M Following receipt of the material
tivities and their associated facilities described In paragraph (a) of this sec-,
to the relevant elements of the man. tion. the State agency shall ensure
&cement program, and timely public notice of the proposed

207

� 930.79 15 CFR Ch. IX (1-1-92 Edition)
activities in accordance with the direc- ency certifications and supporting in-
tives within if 930.61 through 930.62. formation for State agency review at
� 930.79 State agency concurrence or ob. the time Federal applications are actu-
ally filed for the Federal licenses and
jection. permits to which such concurrence ap-
(a) At the earliest practicable time. plies.
the State agency shall notif y the (b) Unless the State agency indicates
person, the Secretary of the Interior otherwise, copies of Federal license
or designee and the Assistant Adminis- and permit applications for activities
trator of its concurrence with or objec- described in detail in an OCS plan
tion to the consistency certification. which has received State agency con-
State agencies should restrict the currence shall be sent by the person to
period of public notice, receipt of com- the State agency to allow the State
ments, hearing proceedings and final agency to monitor the activities. Con-
decision-making to the minimum time fidential and proprietary material
necessary to inform the public, obtain within such applications may be delet-
sufficient comment, and develop a rea- ed.
sonable decision on the matter. If the
State agency has not issued a decision 9 930.81 Federal permitting agency re-
within three months following com- sponsibility.
mencement of State agency review. it
shall notify the person, the Secretary Following receipt of a State agency
of the Interior or designee and the As- objection to a consistency certification
sistant Administrator of the status of related to Federal license or permit ac-
review and the basis for further delay tivities described in detail in an OCS
in issuing a final decision. Notice shall plan, the Federal agency shall not
be in written form and postmarked no issue any of such licenses or permits
later than three months following the except as provided in Subpart H of
State agency's receipt of the certifica- this part.
tion and supporting information. Con-
currence by the State agency shall be 1930.82 Multiple permit review.
conclusively presumed if the notifica- (a) A person submitting a consisten-
tion required by this subparagraph is cy certification for Federal license *or
not providedL permit activities described In detail in
(b) Concurrence by the State agency an OCS plan is strongly encouraged to
shaU be conclusively presumed in the work with other Federal agencies in
absence of a State agency objection to an effort to include, for consolidated
the consistency certification within six State agency review, consistency certi-
months following commencement of fications and supporting data and in-
State agency review.
W If the State agency objects to one formation applicable to OCS-related
or more of the Federal license or Federal license and permit activities
permit activities described in detail In affecting the coastal zone which are
the OCS Plan. it must provide a aepa- not required to be described in detail
rate discussion for each objection in in OCS plans but which are subjected
accordance with the directives within to State agency consistency review
1930.64 W and W. The objection (e.g.. Corps of Engineer permits for
shall also include a statement inform. the placement of structures on the
ing the person of a right of appeal to OCS and for dredging and the trans-
the Secretary on the grounds de- POrtation of dredged material. Envi-
scribed in Subpart H. rorunental Protection Agency air and
water Quality permits for offshore op-
1930.80 Effect of State agency concur- erations and onshore support and
rencL pi xwasing facilities, etc.). In the event
(a) If the State agency issues a con. the person does not consolidate such
currence or in conclusively Presumed OCS-related permit activities with the
to concur with the person's consisten- State agency's review of the OCS Plan.
cy certification. the person will not be such activities Will remain 8ubJeCt to
required to submit additional consist- individual State agency review under

208

National Oceanic and Atmospheric Adm., Commerce � M."
the requirements of Subpart D of this (b) Following receipt of the material
part. described in paragraph (a) of this sec.
(b) A State agency objection to one tion, the State agency shall ensure
or more of the OCS-related Federal li. timely public notice of the proposed
cense or permit activities submitted activities in accordance with the direc-
for consolidated review shall not pre. tives within �� 930.61 through 930.62.
vent the person from receiving Federal (C) The State agency shall concur
agency approval (1) for those OCS-re- with or object to the person's consist-
lated license or permit activities found ency certification in accordance with
by the State agency to be consistent the directives within � 930.79, except
with the management program, and that the applicable time period for
(2) for the license and permit activities purposes of concurrence by conclusive
described in detail in the OCS plan presumption shall be three months in-
provided the State agency concurs stead of six months.
with the consistency certification for (d) If the State agency issues a con-
such plan. Similarly, a State agency currence or is conclusively presumed
objection to the consistency certifica- to concur with the person's new con-
tion for an OCS plan shall not prevent sistency certification, the person will
the person from receiving Federal not be required to submit additional
agency approval for those OCS-related consistency certifications and support-
license or permit activities determined ing information for State agency
by the State agency to be consistent review at the time Federal applica-
with the management program. tions are actually filed for the Federal
licenses and permits to which such
� 930.83 Amended or, new OCS plans. concurrence applies.
If the State agency objects to the (e) Unless the State agency indicates
person's OCS plan consistency certifi- otherwise, copies of Federal license
cation, and if, pursuant to Subpart H, and permit applications for activities
the Secretary does not determine that described in detail In an amended or
each of the objected to Federal license new OCS plan which has received
or permit activities described in detail State agency concurrence shall be sent
in such plan is consistent with the ob- by the person to the State agency to
jectives or purposes of the Act, or is allow the State agency to monitor thi
necessary in the interest of national activities. Confidential and proprie-
security, the person shall submit an tary material within such applications
amended or new plan to the Secretary may be deleted.
of the Interior or designee and to the
State agency along with a consistency � 930.85 Continuing State agency objec-
certification and data and information dons.
necessary to support the new consist- If the State agency objects to the
ency determination. The data and in- consistency certification for an amend-
formation shall specifically describe ed or new OCS plan. the prohibition in
modifications made to the original 1930.81 against Federal agency ap-
OCS plan. and the manner in which proval of licenses or permits for activi-
such modifications will ensure that all ties described in detail In such a plan
of the proposed Federal license or applies. further Secretarial review pur-
permit activities described in detail in suant to Subpart H may take place,
the amended or new plan will be con- and the development of an additional
ducted in a manner consistent with amended or new OCS plan and con-
the State's management program. sistency certification may be required
6930.84 Review of amended'or new OCS pursuant to It 930.83 through 930.84.
plans. public notice. 1930.66 Failure to comply substantially
(a) After receipt of a copy of the with an approved OCS plan.
amended or new OCS plan, consisten- (a) The Department of the Interior
cy certification. and accompanying and State agencies shall cooperate in
data and Information, State agency their efforts to monitor FlederallY 11-
reviewshall begin. censed and permitted activities de-

209

930." 15 CFR Ch. IX (1-1-92 Edition)
scribed in detail OCS plans to make than originally described by the
certain that such activities continue to person In the plan or accompanying
conform to both Federal and State re- information and, as a result, the activi-
quirements. ties are no longer being conducted in a
(b) If a State agency claims that a manner consistent with the State's
person is failing substantially to management program. The Secretary
comply with an approved OCS plan may make a finding that a person has
subject to the requirements of this failed substantially to comply with an
Subpart, and such failure allegedly in- approved OCS plan only after provid-
volves the conduct of activities affect- ing a reasonable opportunity for the
ing the coastal zone in a manner that person and the Secretary of the Interi-
is not consistent with the approved or to review the State agency's objec-
management program, the State tion and to submit comments for the
agency shall transmit its claim to the 0-cretary's consideration.
U.S. Geological Survey supervisor for
the area involved. Such claim shall in-
clude: (1) A description of the specific Subpart F-Consistoncy for Federal
activity involved and the alleged lack Assistance to State and Local
of compliance with the OCS plan, and Governments
(2) a request for appropriate remedial
action. A copy of the claim shall be 1930.90 Objectives.
sent to the person and the Assistant The provisions of this subpart are
Administrator. provided to assure that Federal assist-
(c) If. after a reasonable time follow- ance to State and local governments
ing a request for remedial action, the for activities affecting the coastal zone
State agency still maintains that the is granted only when such activities
person is failing to comply substantial- are consistent with approved coastal
ly with the OCS plan, the governor or zone managements programs.
section 306(c)(5) State agency (see
1930.18) may file a written objection 0 930.91 Federal assistance.
with the Secretary. If the Secretary
finds that the person is failing to The term "Federal assistance"
comply substantially with the OCS means assistance provided under a
plan, the person shall submit an Federal program to an applicant
amended or new OCS plan along with agency through grant or contractual
a consistency certification and sup- arrangements, loans, subsidies, guar-
porting information to the Secretary antees. insurance, or other form of fi-
of the Interior or designee and to the nancial aid.
State agency. Following such a finding
by the Secretary, the person shall 1930.92 Applicant agency.
comply with the originally approved The term "applicant agency" means
OCS plan, or with interim orders any unit of State or local government,
issued Jointly by the Secretary and the or any related public entity such as a
U.S. Geological Survey, pending ap- special purpose district, which, follow-
proval of the amended or new 0CS Ing management program approval,
plan. The directives within If 930.83 submits an application for Federal as-
through 930.85 shall apply to further sistance.
State agency review of the consistency
certification for the amended or new l930.93 Intergovernmental review proc.
plan. em
(d) A person shall be found to have
failed substantially to comply with an The term "intergovernmental review
approved OCS plan if the State PrOcew" describes the procedures es-
agency claims and the Secretary finds tablished by states pursuant to E.O.
that one or more of the activities de. 12372, "Intergovernmental Review of
scribed in detail in the OCS plan Federal Programs," and implementing
which affects the coastal zone are regulations of the review of Federal fl-
being conducted or are having a coast- nancial assistAnce to Mtes and local
al zone effect substantially different governments.

210

National Oceanic and Atmospheric Adm., Commerce � M.%
(Executive Order 12372, July 14, 1982 (47 W The State agency shall provide
FR 30959), as amended April 8, 1983 (48 FR copies of any Federal assistance list or
15587); sec. 401, Intergovernmental Coop- geographic Provision, and any refine-
emtion Act of 1968, as amended (31 U.S.C. ments, to Federal agencies, units of
6506): sec 204, Demonstration Cities and
Metropolitan Development Act of 1966 as State or local government empowered
amended (42 U.S.C. 3334)). to undertake Federally assisted activi.
[48 FR 29136. June 24, 19831 ties within the Coastal zone or de.
scribed geographic area.
� 930.94 State intergovernmental review (Executive Order 12372, July 14, 1982 (47
process for consistency. FR 30959). as amended April 8. 1983 (48 PR
The process by which states with ap- 15587); sec. 401. Intergovernmental Coop.
proved coastal management programs emtion Act of 1968, as amended (31 U.S.C.
may review applications from state 6506); sec 204, Demonstration Cities and
agencies and local governments for Metropolitan Development Act of 1966 as
Federal assistance should be developed amended (42 U.S.C. 3334)).
by each state in accordance with Exec- (44 PR 37143, June 25, 1979. Redesignated
utive Order 12372 and implementing and amended at 48 PR 29136, June 24, 1983]
regulations. In accordance with the 0 930-96 Consistency review.
Executive Order and regulations,
states may use this process to review (a) If pursuant to the intergovern-
such applications for consistency with mental review process, the State
their approved coastal management agency does not object to the proposed
program. activity, the Federal agency may grant
(Executive Order 12372, July 14, 1982 (47 the Federal assistance to the applicant
FR 30959). as amended April 8. 1983 (48 PR agency. Notwithstanding State agency
15587); sec. 401, IntersovernmentLI Coop- consistency approval for the proposed
eration Act of 1968, as amended (31 U.S.C. project, the Federal agency may deny
6606); am 204, Demonstration Cities and assistance to the appUcant agency.
Metropolitan Development Act of IM as Federal agencies should not delay
amended (42 U.S.C. 3334)). processing applications pending re-
E48 PR 29137, June 24, 19833 ceipt of a State agency approval or ob-
Jection. In the event a Federal agency
1930.95 Guidance provided by the State determines that an application will
avncy. not be approved, it shall immediately
(a) State agencies should include notify the applicant agency and the
within the management program a State agency.
listing of specific types of Federal as- (b) If pursuant to the intergovern-
sistance programs subject to a consist- mental review process, the State
ency review. Such a bating, and any agency objects to the proposed
amendments, will require prior project. the state agency shall notify
306(c)(5) state agency (see J 930.18) the applicant agency, Federal agency
consultation with affected Federal and the Assistant r of the
agencies and approval by the Assistant objection.
Administrator. W State agency objections must de-
W In the event the State agency scribe: (1) How the proposed project Is
chooses to review applications for Fed- inconsistent with specific elements of
eral assistance activities outside of the the management program, and (2) al-
coastal zone but likely to affect the ternative measures (if they exist)
coastal zone, the State agency must which, U adopted by the applicant
develop a Federal assistance provision agency. would permit the proposed
within the management program gen- project to be conducted in a manner
erally describing the geographic area consistent with the management pro.
(e.g. coastal floodplains) within which grarm
Federal assistance activities will be (d) A State agency objection may be
subject to review. This provision, and based upon a determination that the
any refinements. will require prior applicant agency has failed. fol1owing
306(cX5) State agency conaWtation a written State agency request, to
with affected Federal agencies and ap- supply necessary If the
proval by the Assistant Administrator. State agency objects on the grounds of
0 211

� 930.97 15 CFR Ch. IX 0 - 1 -92 Edition)
insufficient information, the objection Federal agency of its objection to a
must describe the nature of the infor- proposed Federally assisted activity,
mation requested and the necessity of the Federal agency shall not provide
having such information to determine assistance to the applicant agency
the consistency of the activity with except as provided in Subpart H,
the management program. unless the Assistant Administrator dis-
(e) State agency objections shall in- approves the State agency's decision
clude a statement informing the appli- to review the activity. The Assistant
cant agency of a right of appeal to the Administrator shall be guided by. the
Secretary on the grounds described in provisions in � 930.54 (c) and W.
Subpart H of this part. (Executive Order 12372. July 14, 1982 (47
(Executive Order 12372, July 14, 1982 (47 PR 30959). as amended April 8, 1983 (48 PR
PR 30959). as amended April 8. 1983 (48 PR 15587% sec. 401, Intergovernmental Coop-
15587). sec. 401. Intergovernmental coop- emtion Act of 1968, as amended (31 U.S.C..
eration Act of 1968, as amended (31 U.S.C. 6506); sec 204, Demonstration Cities and
6506); sec 204, Demonstration Cities and Metropolitan Development Act of 1966 as
Metropolitan Development Act of 1966 as amended (42 U.S.C. 3334)).
amended (42 U.S.C. 3334)). [44 FR 37143, June 25, 1979. as amended at
[44 FR 37143, June 25. 1979. as amended at 48 PR 29137, June 24, 19831
48 PR 29137, June 24. 19831 9 930.99 Availability of mediation for Fed-
6 930.97 Federal assisting agency responsi- eral assistance disputes.
bility. In the event of a serious disagree-
Following receipt of a State agency ment between a Federal and State
objection. the Federal agency shall agency regarding whether a Federal
not approve assistance for the activity assistance activity is subject to consist-
except as provided in Subpart H of ency review, either party may request
this part. the Secretarial mediation services pro-
vided for in Subpart G of this part.
0930.98 Federally assisted activities out- The existence of a serious disagree-
side of the coastal zone or the de. ment will not relieve the Federal
scribed geographic area. agency from the responsibility for
(a) State agencies should monitor withholding Federal assistance for the
proposed Federal assistance activities activity pending satisfaction of the re-
outside of the coastal zone or the de. quirements of this subpart, except in
scribed geographic area (e.g.. by use of cases where the Assistant Administra-
the intergovernmental review process, tor has disapproved a State agency de-
review of NEPA environmental impact cision to review an activity.
statements, etc.) and shall immediate- 9930.100 Availability of mediation for
ly notify applicant agencies, Federal ously reviewed activities.
agencies. and any other agency or previ
office which may be identified by the (a) Federal and State agencies sh&U
state in Its intergovernmental review cooperate in their efforts to monitor
process pursuant to E.O. 12372 of pro- Federally assisted activities in order to
posed activities which can reasonably make certain that such activities con-
be expected to affect the coastal zone tinue to conform to both Federal and
and which the State agency is review- State requirements.
ing for consistency with the manage- (b) The State agency shall request
ment program. Notification shall abo that the Federal agency take appropri-
be sent by the State agency to the As- ate remedial action following a serious
sistant Administrator. State agencies disagreement resulting from a State
must inform the parties of objections agency objection to a Federany assist-
within the time period permitted ed activity which was: (1) Previously
under the intergovernmental review determined to be consistent with the
process, otherwise the State agency State's management program but
waives its right to object to the proo which the State agency later main-
posed activity. tains in being conducted or is having a
(b) If within the permitted time coastal zone effect differ-
period the State agency notifies the ent than originaUy proposed and. an a

212

National Oceanic and Atmospheric Adm., Commerce � 930-113
result, is no longer consistent with the (b) Within 15 days following receipt
State management program. or (2) of a request f or mediation the dis-
previously determined not to be a agreeing agency shall transmit a writ.
project affecting the coastal zone, but ten response to the Secretary, and to
which the State agency later main- the agency requesting mediation, indi-
tains is being conducted or is having a cating whether it wishes to participate
coastal zone effect substantially differ- in the mediation process. If the dis-
ent than originally proposed and, as a agreeing agency declines the offer to
result the project affects the coastal enter into mediation efforts, it must
zone in a maxmer inconsistent with the indicate the basis for its refusal in its
State's management program. The response. Upon receipt of a refusal to
State agency's request must include participate in mediation efforts, the
supporting information and a proposal Secretary shall seek to persuade the
for recommended remedial action; a disagreeing agency to reconsider its
copy of the request must be sent to decision and enter into mediation ef.
the applicant agency. forts. If the disagreeing agencies do
(c) If, after a reasonable time follow- not all agree to participate, the Secre-
ing a request for remedial action, t tary will cease efforts to provide medi-
State agency still maintains that a s - ation assistance.
rious disagreement exists with th
Federal agency, either party may seek � 930.113 Public hearings.
the Secretarial mediation services pro. (a) If the parties agree to the media-
vided for in Subpart G of this part. tion process, the Secretary shall ap-
Subpart G-Secretarial Mediation point a hearing officer who shall
schedule a hearing in the local area
6930.110 Objective& concerned. The hearing officer shall
The purpose of this subpart is to de- give the parties at least 30 days notice
scribe mediation procedures which of the time and place set for the hear-
Federal and State agencies may use to ing and shall provide timely public
attempt to resolve serious disagree- notice of the hearing.
ments which arise during the adminis- (b) At the time public notice is pro-
tration of approved management pro- vided, the Federal and State agencies
0 grams. shall provide the public with conven-
ient access to public data and informa-
l 930.111 Informal negotiations. tion related to the serious disagree-
The availability of mediation does ment-
not preclude use by the parties of al- (c) Hearings shall be informal and
ternative means for resolving their dis. shall be conducted by the hearing offi-
agreement. In the event a serious dis- cer with the objective of securing in a
agreement arises. the parties are timely fashion information related to
strongly encouraged to make every the disagreement. The Federal and
effort to resolve the disagreement in. State agencies, as well as other inter-
formally. OCZM shall be available to ested parties, may offer information at
assist the parties in these efforts. the hearing subject to the hearing of.
ficer's supervision as to the extent and
� 930.112 Request for mediation. manner of presentation. Unduly rep-
(a) The Secretary or other head of a etitious oral presentation may be ex-
Federal agency, or the Governor or cluded at the discretion of the hearing
the section 306(c)(5) State agency (see Office?", in the event of such exclusion
1930.18), may notify the Secretary in the party may provide the hearing of-
writing of the existence of a Serious ficer with a written submission of the
disagreement. and may request that Proposed oral presentation. Hearings
the Secretary seek to mediate the seri- will be recorded and the hearing Offi-
ous disagreement. A copy of the writ- cer shall provide transcripts and copies
ten request must be sent to the agency of written information offered at the
with which the requesting agency dis- hearing to the Federal and State
agrees, and to the Assistant Adminis- agency Parties. The Public May inspect
trator. and copy the transc:ripta and written

213

� 930.114 15 OR Ch. IX (1-1-" Idition)
information provided to these agen- Subpart H-S*cretarlol Review Relat-
cies. ed to the Objectives or Purposes
I 93o.1 14 Secretarial mediation efforts. of the Ad and National Security
Interests
(a) Following the close of the hear-
ing, the hearing officer shall transmit 6 930.120 Objectives.
the hearing record to the Secretary. The provisions of this subpart pro-
Upon receipt of the hearing record. vide procedures by which the Secre.
the Secretary shall schedule a media- tary may find that a Federal license or
tion conference to be attended by rep- permit activity, including those de.
resentatives from the Office of the scribed in detail in an OCS plan, or a
Secretary, the disagreeing Federal and Federal assistance activity, which is in-
State agencies. and any other interest- consistent with a management pro-
ed parties whose participation is gram, may be federally approved be-
deemed necessary by the Secretary. cause the activity is consistent with
The Secretary shall provide the par- the objectives or purposes of the Act,
ties at least 10 days notice of the time or is necessary in the interest of na-
and place set for the mediation confer- tiOnal security.
ence. 9 930.121 Consistent with the objectives or
(b) Secretarial mediation efforts purposes of the Act.
shall last only so long as the Federal The term "consistent with the obJec-
and State agencies agree to partici- tives or purposes of the Act" describes
pate. The Secretary shall confer with a Federal license or permit activity, or
the Executive Office of the President, a Federal assistance activity which, al-
as necessary, during the mediation though inconsistent with a State's
process. management program, Is found by the
6 930.115 Termination of mediation. Secretary to be permissible because it
satisfies the following four require-
Mediation shall terminate (a) at any menta:
time the Federal and State agencies (a) The activity furthers one or more
agree to a resolution of the serious dis- of the competing national objectives
alleement, (b) if one of the agencies or purposes contained in section 302 or
withdraws from mediation, (c) in the 303 of the Act,
event the agencies fail to reach a reso- (b) When performed sepamtely or
lution of the serious disagreement when its cumulative effects are consid-
within 15 days following Secretarial ered. it will not cause adverse effects
conference efforts. and the agencies on the natural resources of the coastal
do not agree to extend mediation zone substantial enough to outweigh
beyond that period. or (d) for other its contribution to the national inter-
good cause. est. .
(c) The activity will not violate any
0930.116 Judicial review. reQuirements of the Clean Air Act. as
The availability of the mediation amended, or the Federal Water Pollu-
tion Control Act, as amended, and
services provided in this subpart is not (d) There is no reasonable alterna-
intended expressly or implicitly to tive available (e.g.. location design.
limit the parties' use of alternate etc.) which would permit the activity
forums to resolve disputes. SPecifical- to be conducted in & manner conwst,
ly, judicial review where otherwise ent with the prograuL
available by law may be sought by any
party to a serious disagreement with- 1930.122 Neenaary In the interest of as.
out first having exhausted the Media- tional security.
tion process provided for in this sub- The term "necessary In the interest
part. of national security" describes a Fed-
eral license or permit activity. or a
Federal assistance activity which. al-
though with a state's

214

National Oceanic and Atmosph*rlc Adm., Commerce � 930-128
management Program, is found by the Normally, the Secretary shall limit an
Secretary to be Permissible because a extension period to 15 days.
national defense or other national se-
curity interest would be significantly 930.126 Federal and State agency re.
impaired if the activity were not per- sponses to appeals.
mitted to go forward as proposed. Sec- (a) Upon receipt of the notice of
retarial review of national security appeal and supporting information,
issues shall be aided by information the Federal -and State agencies shall
submitted by the Department of De. have 30 days to submit detailed com-
fense or other interested Federal agen- ments to the Secretary. Copies of such
cies. The views of such agencies, while comments shall be sent to the appel-
not binding, shall be given consider-
able weight by the Secretary. The Se^. lant and other agency within the same
time period.
retary will seek information to deter-
mine whether the objected-to activiltv (b) Requests for extensions may be
directly supports national defense or made pursuant to I 930.125(c).
other essential national security objec- 930.127 Public notice; receipt of com-
tives. ments.
� 930.123 Appellant (a) The Secretary shall provide
The term "appellant" refers to an timely public notice of the appeal
applicant, person or applicant agency within 15 days of receipt of the notice.
submitting an appeal to the Secretary At a minimum, public notice shall be
pursuant to the provisions of this sub- provided in the immediate area of the
part. coastal zone which is likely to be af-
� 930.124 Informal discussions. fected by the proposed activity. At the
time public notice is provided, the Fed-
In the event the State agency in- eral and State agencies shall provide
forms the applicant, person or appli- the public with convenient access to
cant agency that It intends to object to copies of the appellant's notice of
the proposed activity, the parties appeal and accompanying public infor-
should consult informally to attempt mation, and to the public information
to resolve the matter in a mgmner in the agencies' detailed comments.
which avoids the necessity of appeal- (b) Interested persons may submit
ing the issue to the Secretary. OCZM comments to the Secretary within 30
shall be available to assist the parties days from the date of public notice,
in these discussions. with copies Provided to the appellant
6 930.125 Appeals to the Secretary. and to the Federal and State agencies
within the same time period.
(a) An appellant may file a notice of (c) Requests for extensions may be
appeal with the Secretary with 30 made pursuant to I 930.125(c).
days of the appellant's receipt of a
State agency objection. The notice of � 930-128 Dismissal of appeals.
appeal shall be accompanied by a The Secretary may dismi an
statement in support of the appel- appeal for good cause. Good cause
lant's position, along with supporting shall include, but is not limited to:
data and information. The appellant (a) Failure of the appellant to
shall send a copy of the notice of submit a notice of appeal within the
appeal and accompanying documents required 30-day period.
to the Federal and State agencies in. (b) Failure of the appellant to
volved. submit the supporting information
(b) No extension of time will be per- within the required period or ap-
mitted for the filing of 'a notice of
appeal. proved extension period;
(c) The Secretary may approve a (c) Secretarial receipt of a detailed
reasonable request for an extension of comment from the Federal agency
time to submit supporting information stating that the agency has disaP-
so long as the request is filed with the proved the Federal license. Permit or
Secretary within the 30-day period. assistance application;
311-W9 0-92-8 215

� 930.1" 15 OR Ch. IX (1-1-92 Edition)

(d) Failure of the appellant to base permit activity, or a Federal assistance
the appeal on grounds that the pro- activity, is consistent with the objec-
posed activity either (1) is consistent tives or purposes of the Act. or Is nec-
with the objectives or purposes of the essary in the interest of national secu-
Act or (2) is necessary in the interest rity. Secretarial review may be initiat-
of national security. ed either before of after the comple-
tion of State agency review. The Sec-
� 930.129 Public hearings. retary's decision to revtew'the activity
The Secretary may order a hearing may result from an independent con-
independently or in reponse to a re- cern regarding the activity or a re-
quest. If a hearing is ordered by the quest from interested parties. If the
Secretary it shall be guided by the Secretary decides to initiate review,
procedures described within � 930.113. notification shall be sent to the appli-
cant, person or applicant agency, and
� 930.130 Secretarial review. to the Federal and State agencies. The
(a) In reviewing an appeal, the Sec- notice shall include a statement de-
retary shall find that a proposed Fed- scribing the reasons for the review and
eral license or permit activity, or a shall contain a request for submission
Federal assistance activity, is consist- of detailed comments to be submitted
ent with the objectives or purposes of within 30 days from receipt of the no-
the Act, or is necessary in the interest tification. Copies of comments shall be
of national security, when the infor- exchanged among the parties.
mation submitted supports this con- (b) Requests for extensions may be
clusion. made pursuant to i 930.125(c).
(b) The Secretary shall make all rea-
sonable efforts to complete consider- 6930.133 Public notice, receipt of com-
ation of an appeal within 90 days from ments; public hearings.
the date of public notice. (a) Upon receipt of detailed com-
(c) Following consideration of the ments from the parties, the Secretary
appeal, the Secretary shall issue a de- shall provide public notice and request
cision in writing to the appellant and public comments in accordance with
to the Federal and State agencies indi- the provisions in J 930.127.
cating whether the proposed activity (b) The Secretary may order a hear-
is consistent with the objectives or ing in accordance with the provisions
purposes of the Act, or Is necessary in in J 930.129.
the interest of national security; the
decision shall include the basis for 0 930.134 Secretarial review, Federal
such finding. The Secretary shall Pro- agency responsibility.
vide public notice of the decision. (a) Secretarial review shall be under-
(d) The decision of the Secretary taken in accordance with the provi-
shall constitute final agency action for sions in 1930.130.
the purposes of the Administrative (b) Federal agencies are responsible
Procedure Act. for adhering to the provisions in
� 930.131 Federal agency responsibility. J 930.131 when deciding to approve or
deny an appUcation for an activity ob-
(aj If the Secretary finds that the jected to by a State agency and inde-
proposed activity is consistent with pendently reviewed by the Secretary.
the objectives or purposes of the Act,
or is necessary in the interest of na-
tionai security, the Federal agency Subipart I-Assistant Administrator
may approve the activity. Reporting and Continuing
(b) If the secretary does not make. Itovi*w of Fodoral AcHons Sub-
either of these findings. the Federal loct to the Fedoral Consistency
agency shall not approve the activity. Roquiroments
6930.132 Review Initiated by the Seem 1930.140 Objectives.
taFY.
(a) The Secretary may choose to The provisions of this subpwt pro-
consider whether a Federal license or vide procedures to permit Interested

216

National Oceanic and Atmospheric Adm., Commerce � 930.145
parties to notify the Assistant Admin- � 930.142 Notification of Federal actions
istrator of Federal actions (a) believed believed to have been incorrectly deter.
to be inconsistent with an approved mined to be inconsistent with an ap.
management program but which are proved management program.
not so found by the Federal or State (a) Interested parties are invited to
reviewing agency, and (b) believed to submit to the Assistant Administrator
have been incorrectly determined to detailed comments related to Federal
be inconsistent with an approved man- license and permit activities, including
agement program. This subpart also those described in detail in OCS plans.
provides for the reporting of any Fed- and Federal assistance activities which
eral actions found by the Assistant Ad- are believed to have been incorrectly
ministrator to be inconsistent with an determined by a State agency to be in-
approved management program and consistent with an approved manage-
for the performance review of State ment program. Copies of such com-
implementation of the Federal consist- ments should be sent to the relevant
ency provisions of this part. Federal and State agencies, and to the
applicant. person, or applicant agency
� 930.141 Notification of Federal actions as appropriate.
believed to be inconsistent with ap- (b) Comments need not conform to
proved management programs. any particular form, but should be
(a) Interested parties are invited to specific, substantive, and factual, and
rator must clearly describe the basis for the
submit to the Assistant Administ belief that the State agency has incor-
detailed comments related to the al- rectly objected to the Federal action
leged inconsistency of Federal activi- on the grounds of its inconsistency
ties including development projects, with the management program.
Federal license or permit activities, in- (c) The Assistant Administrator
cluding those described in detail in shall assure that public information
OCS plans, and Federal assistance ac- within such comments is made avail-
tivities which are subject to the re- able for public inspection.
quirements of this part, and which 9 930.143 Assistant Administrator report-
have not been found by a Federal
agency or State agency to be inconsist-
ent with an approved management After considering the views of inter-
program. Copies of such comments ested parties, the relevant Federal
should be sent to relevant Federal and agency, State agency, and the appli-
State agencies, and to the applicant, cant, person, or applicant agency, as
person or applicant agency as appro- appropriate, the Assistant Administra-
priate. tor shaH determine whether the Fed-
(b) Comments need not conform to eral action will be Included in the
any particular form, but should be annual report listing of inconsistent
specific, substantive and factual, and Federal actions.
must describe how the Federal action � 930.144 Assistant Administrator advisory
is or would be inconsistent with an ap- statements.
proved management program. Upon request, the Assistant Admin-
(c) Commentators are encouraged to istrator may Issue as advisory state-
recommend modifications or alterna- ment prior to the Issuance of the
tives to the existing or proposed action annual report indicating whether a
which would enable it to be consistent Federal action will be listed within the
with the management program. tor annual report as being inconsistent
(d) The Assistant Administra with an approved managernent pro-
shall assure that public information gram.
within such comments is made avaff.
able for public inspection. 1930.145 Review of the implementation of
Federal consistency provisions.
As part of the responsibility to con-
duct a continuing review of approved

217

Pt. 931 15 CFR Ch. IX (1-1-92 Edition)

management programs, the Assistant Sec.
Administrator shall review the per- 931-33 'Eligibility for financial assistance
formance of each State's implementa- under this subpart.
tion of the Federal consistency provi- 931-34 allowable uses.
sions in this part. The Assistant Ad- 931.35 section 308(c) allotment.
ministrator shall use information re- 931.36 Application for financial assistance.
ceived pursuant to this subpart to 931.37 Limitations on expenditures.
evaluate instances where a State Subpart-E Financing Public Facilities and
agency is believed to have either failed Public Services
to object to inconsistent Federal ac-
tions, or improperly objected to con- 931.40 General.
sistent Federal actions. This evalua- 931.41 Objectives.
tion shall be incorporated within the 931.42 Definitions.
Assistant Administrator's general ef. 931.43 Eligibility.
forts to ascertain instances where a 931.44 Allowable
State has not adhered to Its approved 931.45 Credit assistance inventory.
management program and such lack of 931.46 Allotment formula
adherence is not justified. 931.47 A.1lotment of cr t assistance.
931.48 Recall and reversion of allotted
credit assistance.
931.49 Application for recalled or reverted
PAR "I-COASTAL ENERGY credit assistance.
PACT PROGRAM 931.50 ApplIcation for ffinancial assistance
to provide public facilities and services.
Subpart A-General 931.51 Special requirements for section
308 (d)(1) loans.
Sec. 931.52 Special requirements for section
931.1 Coastal Energy Impact Program- 308(d)(2) Federal guarantees
general description
931.2 Objecetives if the CEIP. SubPart F-Repayment Assistence
Subpart Definitions 931.60 General.
931.61 Objective
931.9 Index to definitions. 931.02 Definitions.
931.10 Act. 931.63 Purpose&
931.11 Coastal zone. 931.64 Sources of repayment an
931.12 Fund. 931.65 General eligibility.
931.13 Coastal energy activity. 931.66 Reports.
931.14 Significantly affected. 931.67 Review for repayment assistance.
931.15 New or expanded coastal energy ac- 931.68 Award of repayment assistance.
tivity. 931.69 Appeal procedure.
931.16 Outer Continents Shelf.
931.17 Outer Continental %Shelf energy ac- Subpart G-Grants for uneveldable losses of
tivity. Voluable Coastal Environemntal and rec
931.18 Energy facility. reational Resources
931.19 New or expanded energy facility.
931.20 Unit of general purpose local gov- 931.70 General.
ernment. 931.71 Objectives,
931.21 Unit of local government. 931.72 Definitions.
931.22 NOAA and OCZM. 931.73 Eligibility.
931.23 Assistant Administrator. 931.74 Allowable uses
931.24 NEPA and EIS. 931.75 Allotment of section 308(dX4) envi-
ronmental and recreational grants.
Subpart C-Basic Eligibility 931.76 Reversion of allotted funds
931.25 Eligible coastal state. 931.77 Application for environmental and
931.26 Satisfactory progress. recreational grants.
931.27 Eligibility determination. 931.78 Limitations.
Subpart D-Coastal Engergy Impact Grants Subpart H-Lateral Seaward Boundaries
931.30 GeneraL 931.80 General.
931.31 Objectives. 931.81 Establishment of delimitation lines
931.32 Definitions. when agreements exist between States

218

8.
Part 933
Coastal Zone Management,
Research and Technical Assistance

Natio al Oceanic and Atmos heric Adm., Commerce � 9M.2
0932-44 mendments. SOURCE 42 FR 38738, July 29, 1977, unless
Amen nts to an proved appli- otherwise noted.
cation mus be s ed to and ap-
proved by th A e Administrator Subpart A-Genoral
prior to initiat n 0 he contemplated
change. Reque for substantial � 933.1 Basic purposes.
changes should b iscussed with the (a) This section sets forth the basic
Associate Admi tor well in ad- purposes for which the national re-
vance. While al ame dments must be search and technical assistance pro-
approved in iting y the NOAA gram, pursuant to subsection 310(a) of
Grants, Offic , approv may be pre- the Act, will be operated, and for
sumed for inor men ents if the which State research and technical as.
grantee h not been notif d of obJec- sistance grants, Pursuant to subsection
tions wit 30 working days f date of 310(b) of the Act, will be awarded. The
postm of the request. basic intent of both subsections is to
fund research, study, and training
which supports the development and
PART 933-COASTAL ZONE MAN. administration of State coastal zone
AGEMENT RESEARCH AND TECH- management programs. However,
there is a significance difference in
NICAL ASSISTANCE focus between the two subsections in
Subpart A-4*n*rol that State grants pursuant to subsec-
tion 310(b) will be awarded to State
Sec. coastal zone development or manage-
933.1 Basic purposes. ment agencies for the purpose of
933.2 Definitions. meeting State-specific research, study
and training needs, while the national
Subpart "ational Research and Technical program pursuant to subsection 310(a)
Assistance Program will work with a variety of entities and
933.10 General. will endeavor to address needs which
933.11 Eligible entities and arrangements. are regional or national in scope.
933.12 Use of funds. (b) Comment Statutory citation,
subsection 310(a):
Subpart C-Operation of National Research The Secretary may conduct a program of
and Technical Assistance Program research. study, and training to support the
933.20 Priorities and annual spending developent and implementation of manage-
plans. ment programs.*** The Secretary may
933.21 Funding arrangements. enter into contracts or other arrangements
with any qualified person for the purposes
Subpart D-Stato Grants for Research and of carrying out this subsection.
Technical Assistance (c) Comment Statutory citation,
933.30 General. subsection 310(b):
933.31 Eligible entities. The Secretary may make grants to coastal
933.32 Use of funds. states to assist such states in carrying out
933.33 Funding priorities. research. studies, and training required with
respect to coastal zone management.
Subpart 11-Application for State Research and
Technical Assistance Grants 9 933.2 Definitions.
933.40 General. (a) The term "Act" means the Coast-
933.41 Applicant responsibility. al Zone Management Act or 1972, as
933.42 Application procedure. amended.
933.43 Approval of applications. (b) The term "Secretary" means the
933.44 Amendments. Secretary of Commerce or his/her des-
a' Oc'*anl,

l
4mndm4
e@n ts t,
be
M@bss
us
dy t A
to inLtiat If

c
t
e
e
0

ssh
ate
e Wh it
R

A
e
0
at
u
ld

le a
e
n

I
b
of

t
d'

e
s
t
h
fo

0
in econten
'n Am*s

anPove
@m ted to
ir
ci e ZA
rsub
ussedw
mi rwell
am ents In
0 ed in itingythe
ffi
Its
0c 'approva may
@d for inor :Men ents
tee h not be n notifd01
,w t w
, 1 30 orking days f
11 of the request

933.45 Copies of products. ignee. Delegations of authority from
Au=ORrrir: Sec. 310, Coastal Zone Man- the Secretary to the Administrator,
Mement Act of 11172 (Pub. L 92-593 86 National Oceanic and Atmospheric
Stat. 1280, as amended by rub. L 04-376, go Administration (NOAA). have been
Stat. 10 13). duly executed by Amendment 5 of De-

257

� 933.10 15 CFR Ch. IX (1-1-92 Edition)
partment of Commerce Organization 6 933-11 Eligible entities and arrange.
Order 25-5A, dated October 13, 1976, ments.
and from the Administrator to the As- (a) The Associate Administrator will
sociate Administrator for Coastal Zone enter into contracts or make other ar-
Management, by NOAA Circular 76- rangements with any qualified person
82, effective October 13, 1976. for the performance of work pursuant
(c) The term "Associate Administra- to subsection 310(a) of the Act.
tor" means the Associate Administra- (1) For purposes of this subsection.
tor for Coastal Zone Management, Na- the term "other arrangements" in.
tional Oceanic and Atmospheric Ad- cludes both cost-reimbursable and
ministration, U.S. Department Of non-reimbursable arrangements with
Commerce. other Federal agencies. Such arrange-
(d) The term "Person" is as defined ments shall include the use of the pro-
in subsection 304(13) of the Act and visions of the Intergovernmental Per-
means ,any individual; any corpora- sonnel Act of 1970 (Pub. L. 91-648;
tion, partnership, association, or other Pub. L. 93-638) both for purposes of
entity organized or existing under the training and for providing technical
laws or any state, regional, or local assistance. Other arrangements may
government; or any entity of any such also include grants to State agencies
Federal, State. regional, or local gov- or other units of government, or to
ernment." educational or non-profit institutions.
(b) Comment Statutory citation,
Subpart B-National Research and subsection 310(a):
Technical Assistance Program Each department. agency. and instrumen-
tality of the executive branch of the Feder-
9 933.10 General. al Government may assist the Secretary. on
(a) The national research and tech. a reimbursable basis or otherwise in carry-
ing out the purposes of this section, Includ-
nical assistance program established ing, but not limited to, the furnishing of in-
pursuant to subsection 310(a) of the formation to the extent permitted by law.
Act is a program utilizing contracts the transfer of personnel with their consent
and other arrangements to support re- and without prejudice to their position and
gional and national research, study, rating, and the performance of any re-
and training activities which assist search. study. and training which does not
I- interfere with the performance of the pri-
State efforts to develop and/or admin. Mary duties of such department, agency or
ister coastal zone management pro- instrumentality.
grams.
(1) This program will be conducted 9 933.12 Use of fundL
so as to complement and support work (a) Research and studies under sub-
being done by States using grants section 310(a) shall include studies,
under section 305 or 306 of the Act. pilot or demonstration projects. or
(2) Research, study and training ef. other analyses complementing or en-
forts will be expected to address the hancing development and/or adminis-
needs of a group of States, a region, or tration of State coastal management
the entire nation or the national program, but with broader applica-
coastal zone management program. tion than research and studies funded
(b) The national research and tech- pursuant to subsealon 310(b). The
nical assistance program is differenti- term "broader application" is intended
ated from the interstate grant pro- to imply both a broader geographic
gram, pursuant to section 309 of the coverage and a broader range of prob-
Act. by the former's emphasis on tech- lems.
nical research, study and training. The (1) Research and studies funded
interstate program, by contract, fo- under subsection 310(a) can be expect-
cuses upon regional cooperation and ed to:
coordination with particular attention (1) Supplement and enhance work
directed toward the development of geared toward management program
compatible coastal zone policies. development and administration;

258

National Oceanic and Atmospheric Adm., Commerce � 933.20
(ii) Aid in the resolution of coastal Subpart C-Operation of National
zone management issues; Research and Technical Assist-
(III) Have application to a group of anco Program
States, a region, or the entire nation;
Qv) Assist in resolving issues related � 933.20 Priorities and annual spending
to the administration of the national plans.
coastal zone management program; (a) Periodically. the Associate Ad-
and ministrator will' develop a priorities
(v) Where appropriate, be transfera- plan for the national research and
ble or usable beyond the study area. technical assistance program.
(2) In contrast to State grants pursu- (1) This plan will indicate those
ant to subsection 310(b), these efforts coastal zone management issues, sub-
will not necessarily focus on technical jects, and areas which the Associate
and site-specific studies. Administrator believes should be the
(b) Training under subsection 310(a) subject of research, study, and train.
shall include study, course-work, or Ing over a specific period of time (usu-
other educational activities geared ally three to five years). Relative pri-
toward developing and/or improving orities will be assigned to major sub-
the capabilities of individuals working ject areas contained in the plan.
in or preparing to work in the field of (2) In order to be responsive to
coastal zone management. Such train. State, regional, and national coastal
ing need not be limited solely to the zone management issues and needs,
short-term, professional skill develop- and to avoid duplication of research
ment anticipated in subsection 310(b). being conducted by others, the prior-
(1) Training activities funded under ities plan will be circulated for com-
subsection 310(a) can be expected to: ment in draft form to coastal States,
(I) Improve the capabilities of per- other Federal agencies and other in-
sonnel currently involved in coastal terested parties engaged in related re-
zone management work, search and/or training.
(ii) Provide for the development of (3) After considering these com-
additional trained coastal zone man- ments, the Associate Administrator
agement personnel. will finalize the priorities plan and
(III) Contribute to improved under- make It generally available.
standing of the field of coastal zone (4) The priorities plan will be revised
management, or Periodically by the Associate Adminis-
ans- trator and updated as deemed appro-
(tv) Meet the needs of, or be tr priate, following circulation of such
femble to, a group of States, a region, changes for review and comment.
or the entire nation. (b) CommenL Statutory citation,
(2) Training may include, but need subsection 310(c)(D-
not be limited to, the following: The Secretary shall provide for the co-
(I) Internships or other training pro- ordination of research, studies, and training
grams designed to provide actual expe- activities under this section with any other
rience working in the field of coastal such activities that are conducted by, or
zone management; 3ubJect to the authority of. the Secretary.
(ii) Course or curriculum develop- (c) Based upon the priorities plan,
ment and testing at the high school. the Associate Administrator will devel-
college, and graduate school levels; op an annual spending plan for subsec-
(III) Testing of new approaches to tion 310(a) which will indicate planned
education and training in coastal zone research and technical assistance ac.
management; and tivitiea for that fiscAl year in more
Ov) Exploration of the relationship detail. Where possible. the spending
of coastal zone management to other plan will also indicate the means by
related fields. which the Associate Administrator In-
tends to accomplish such studies (i.e..
by reQuest for proposals. transfer of
funds to other Federal agencies,

259

� 933.21 15 CFR Ch. IX (1-1-92 Edition)

grants, etc.) and the timing of such ac- be difficult to judge whether an activi-
tions. ty is most appropriately funded pursu-
(1) A summary of the spending plan ant to subsection 310(b) or pursuant to
and the updated priorities plan will be sections 305 and 306 of the Act.
made available to all interested parties (1) Generally speaking, those activi-
upon request. ties which are essential to meeting the
� 933.21 Funding arrangements. criteria for program approval or which
are integral to operating an approved
(a) To accomplish the national re- program should be funded pursuant to
search and technical assistance pro- sections 305 and 306 of the Act.
gram, the Associate Administrator (2) Those activities which enhance
may utilize any appropriate proce- or improve a State's ability to meet
dures which may include: the criteria for approval or to operate
(1) Competitive procurement, an approved program should be
(2) Sole source procurement, funded pursuant to subsection 310(b).
(3) Grants to State agencies or other
units of government, or to educational (3) It is anticipated that research
or non-profit institutions, and studies funded pursuant to section
(4) Cooperative agreements, 310(b) will be more technical in nature
(5) Cost-reimbursement of other or more geographically specific than
Federal agencies, and those activities typically funded pursu-
(6) Personnel transfers on a reim- ant to sections 305 and 306 of the Act.
bursable or non-reimbursable basis.
(b) Because of the variety of funding 9 933.31 Eligible entities.
arrangements available to the Associ- To be eligible for grants pursuant to
ate Administrator pursuant to subsec- subsection 310(b), a State must either
tion 310(a), the specific application be making adequate progress toward
procedures will vary depending on the the development of a coastal zone
nature of appropriate arrangements. management program pursuant to sec-
and will be in accordance with pre- tion 305 of the Act or be operating an
scribed procedures applicable to the approved management program pursu-
Federal government or pursuant to ant to section 306 of the Act.
Department of Commerce or NOAA
administrative procedures. 9 933.32 Use of funds.
Subpart D-Stato Grants for Research (a) For purposes of subsection
and Technical Assistance 310(b), research and studies shall in-
clude studies, pilot or demonstration
� 933.30 General. proJects, or other analyses of short
(a) The State research and technical term duration which can be expected
assistance program, pursuant to sub- to show results within one year's time.
section 310(b) of the Act, is a program Such research or studies shall be de-
of grants to States to support re- rived from State coastal zone manage-
search, study and training activities ment program development and/or ad-
which improve State capability to de- ministration needs and shall utilize ex-
velop and/or administer coastal zone isting materials to the extent possible.
management programs. (1) Such research and studles will
(1) Research, study and training tend to focus more on technical and
grant applications should develop site-specific issues rather than on in-
from needs identified or problems ex- 8titutional and managerial issues.
perienced during program develop- (2) Research and studies related to
ment and/or administration. the coastal energy impact program, es-
(2) Applications should be justified tablished pursuant to section 308 of
in terms of the usefulness of the an. the Act, may be funded pursuant to
ticipated results to basic program ef- subsection 310(b) of the Act if such re-
forts. search and studies are clearly related
(b) Because of the highly applied to a State's Ongoing anagement pro-
nature of research conducted pursuant gram efforts and if such research and
to subsection 310(b) of the Act. It may studies are not otherwise fundable

260

National Oceanic and Atmospheric Adm., Commerce � 933.40
pursuant to sections 308, 305 or 306 of (1) Activities which have a continu-
the Act. ing funding dimension and a long time
(3) Research and studies related to frame for completion; and
or conducted within an estuarine sanc- (2) Institutional and/or management
tuary established pursuant to section studies more -appropriately funded
315(l) of the Act may be funded under pursuant to sections 305 and 306 of
subsection 310(b) if such research and the Act.
studies can be shown to be related to
program administration, and other' Subpart E-Application for State Re-
wise meet the criteria set forth in search and Technical Assistance
these regulations. Grants
(b) For purposes of subsection
310(b), training shall refer to the edu- 8 933.40 General.
cation or other development of such
personnel as may be needed to effi- (a) The purpose of this section Is to
ciently and effectively develop and/or define the procedures by which grant-
administer State coastal zone manage- ees apply for and administer grants
ment programs or to administer coast- under the Act and to provide guide-
al energy impact funds. lines regarding the content of applica-
(1) In general, such training should tions for State research and technical
be of short term duration and should assistance grants pursuant to subsec-
be directed toward the development of tion 310(b) of the Act. These proce-
specific job-related skills. dures shall be use and interpreted in
(2) Such training may be for, but not conjunction with the Grants manage-
limited to, the following types of ex. ment Manual for Grants under the
pertise at both the State and local Coastal Zone Management Act, here-
levels: permit reviewers and inspectors, inafter referred to as the "Manual."
law enforcement officers, natural re- The Manual incorporates a wide range
source managers, economists, fiscal of. of Federal requirements, including
ficers, attorneys, planners, and per. those established by the Office of
sons with specialized training in the Management and Budget. the General
is natural sciences. Services Administration. the Depart-
(c) Grants issued pursuant to subsec. ment of the Treasury, the General Ac-
tion 310(b) of the Act may not be used counting Office, and the Department
for the following purposes: of Commerce.
(1) Basic and/or long term research (b) Applications for grants under
or education efforts; subsection 310(b) of the Act will be ac-
(2) State man ement program ad. cepted by the Associate Administrator
ministration activities; at any time during the fiscal year pro-
(3) Construction; vided that they contain the informa-
(4) Land acquisition: or tion required pursuant to 1933.42.
(5) Permanent equipment acQuisi- (c) States are encouraged to submit
tions, unless such acquisitions can also applications for grants under subsec-
be used for program development and/ tion 310(b) at the same time that they
or administration purposes. submit applications for grants under
section 305 or 306 in order to enable
1933.33 Funding priorities. the Associate Administrator to review
(a) The Associate Administrator Will More COMPreherAiVelY State Manage-
not establish priorities between nor al- ment program efforts and to expedite
locate funds specifically to ' research processing at both the State and Fed-
and study activities on the one hand eral levels.
or training activities on the other. (d) States may submit more than
(b) Highest funding priority will be one subsection 310(b) application per
given to those research, study and/or year if research or technical assistance
training activities which directly sup- needs arise that were not anticipated
port program development and/or ad. at the time of first application for sub-
ministration. section 310(b) funds.
(c) Lower funding priority will be (e) An application need not contain
given to the following'*. both research and training elements.

261

� 933.41 15 CFR Ch. IX (1-1-92 Edition)
(f) Grants shall not exceed eighty substantially deficient In adherence to
percent of the total cost of the pro- E.O. 12372 requirements.
posed research and/or training. Feder- (c) In Part M Program Narrative, of
al funds received from other sources the Form SF-424. the applicant shall
cannot be used to match subsection respond to the following requirements:
310(b) grants. Match provided by the (1) A description of the work pro-
applicant may consist of cash or in- gram to be undertaken during the
kind services as provided in the grant period. This work program shall
Manual. include:
(g) Costs claimed as charges to the (I) A precise description of each
grant project must be beneficial and major research or study task to be un-
necessary to the objectives of the dertaken, including an explanation of
grant project. As used herein the the need for this task, how it will be
terms "costs" and "grant project" per- accomplished, what existing material
tain to both the Federal grant and the it builds --.. what results are expected,
matching share. The allowability of and how -,.,iese results will be used in
costs will be determined in accordance the management program.
with the provisions of FMC 74-4: Cost (ID A precise description of each
Principles Applicable to Grants and major training task to be undertaken,
Contracts with State and Local Gov- including an explanation of the need
ernments. for this training, how it will be accom-
(h) Grants shall be made for a maxi- plished. what existing efforts it builds
mum of one year's duration. on, who will benefit from it, and how
6 933.41 Applicant responsibility. these benefits will relate to the man-
(a) The application shall designate agement program.
the entity to receive and administer , (III) For each task, identify any
grants pursuant to subsection 310(b). ,Other Entities," as defined in the
The applicant for such grants must be Manual," that will be allocated re-
that entity designated by the Gover- sPOnsibility for carrying out all or por-
nor pursuant to 15 CFR 920.52 where tions of the task, and indicate the esti-
a State is developing a coastal manage- mated cost of any subcontract for each
ment program or that entity designat- allocation. Identify. if any, that por-
ed by the Governor pursuant to sec- tion of the task that will be carried
tion 306(c)(5) of the Act where a coast- out under contract with consultants
al State is administering an approved and indicate the estimated cost of
management program. This entity such contract(s). Where all or part of
may, in turn. pass through funds to, or the work is to be subcontracted, the
subcontract with, other entities. extent and nature of grantee aupervi-
(b) The grantee will be administra. sion should be Indicated.
tively and fiscally responsible for all (iv) For each task indicate the esti-
aspects of the grant, including any mated total cost. Also indicate the esti-
subcontracts made by the grantee. mated total months of effort, If my,
allocated to the task from the appli-
9 933.42 Application procedure. cant's staff.
(a) All applications are subject to (2) The surn of all tasks in para-
the provisions of E.O. 12372. graph (c)(1) of this section should
(b) The Form SF-424, Application equal the total estimated grant project
for Federal Assistance (Non-Construc- cost.
tion Programs), constitutes the formid (3) Using two categories. Profession-
application and must be submitted al and ClericaL indicate the total
sixty days prior to the desired grant number of personnel In each category
beginning date. The application must on the applicant's staff that will be as-
be accompanied by evidence of compli- signed to the grant project Also Indi-
&nee with requirement of ILO. 12372. cate the num assigned full-time
including the resolution of any prob- and the number assigned law than
lems raised about the proposed full-time In the two categorks. Addl-
project. The Associate Administrator ti0n&IIY, indicate the number Of neW
will not accept applications that are positions created In the tWO C&teg0rIe6

262

National Oceanic and Atmospheric Adm., Commerce � 935.1
as a result of the grant project. Indi- any interested Person. grantees shall
cate total personnel costs. supply the Associate Administrator
(Executive Order 12372, July 14, 1982 (47 with five (5) Copies of any products, re.
PR 10,159), as amended April 8. 1983 (48 FR Ports, studies, etc. financed in whole
15587); sec. 401. Intergovernmental Coop- or in part by subsection 310(b) monies.
eration Act of 1968, as amended (31 U.S.C. Such products shall be received by the
6506); sec 204. Demonstration Cities and Associate Administrator no later than
Metropolitan Development Act of 1966 as three months after the expiration
amended (42 U.S.C. 3334)). date of the grant.
(42 F9R 38738, July 29, 1977, as amended at
48 FR 29137, June 24, 19831 (b) CommenL Statutory citation.
subsection 310(c)(2):
� 933.43 Approval of applications. The Secretary shall make the results of
(a) An application for a state re- research conducted pursuant to this section
search, study and/or training grant available to any interested person.
which complies with the policies and (1) At least one of the copies re-
requirements of the Act and the guid- ceived by the Associate Administrator
ance contained in this subpart shall be
approved by the Associate Admini tra- shall be transmitted to the National
tor, assuming available funding. Technical Information Service for pur-
(b) Should an application be found poses of assuring general availability
deficient, the Associate Administrator to interested parties.
will notify the applicant in writing as
to the manner In which the applica-
tion fails to conform to the require. P T 935-THE CHANNEL ISLANDS
ments of the Act or this subpart. Con- TIONAL MARINE SANCTUARY
ferences may be held on these mat- R LATIONS
ters. Corrections to the application
will provide the basis for resubmittal Sec.
of the application for further consid- 935.1 Aut rity.
eration and review. 935.2
(c) The Associate Administrator 935.3 Boun ea.
may. upon finding extenuating cir- 935.4 Definit
cum tances relating to an application 935.5 Allowed i ties.
for State research, study and/or train- 935.6 Hydrocar operations.
ing grant, waive appropriate adminis- 935.7 Prohibite4d ivities.
trative requirements contained herein. 935.8 Penalties for mmi ion of prohibit-
933.44 Amendments. ed acti.
935.9 Permit pr and criteria.
(a) Amendments to an approved aP- 935.10 Certification of er permits.
plication must be submitted to the
As- 935.11 Appeals of rative action.
sociate Administrator prior to initi- ArrzNDLx 1A--CmANw= NATzoxAL
ation of the contemplated change. Re- MARM SANCMART
quests for substantial changes should
be discussed with the Associate Ad- AmBoRrrr. 16 U.S.C. 1431-14
ministmtor well in advance. While 0 Somwr. 45 FR 65203, Oct. 2, 1 unless
amendments must be approved in writ- otherwise noted.
ing by the NOAA Grants Officer, ap-
proval may be presumed for minor 9 935.1 Authority.
amendments if the grantee has not The Sanctuary has been
been notified of objections within pursuant to the authority f sec n
thirty (30) working days of Ahe date Of 302(a) of Title III of the arine
postmsL k of the request. tection, Research and Sanctuaries
� 933.45 Copies of products. of 1972. 16 U.S.C. 1431 through 1434
- (the Act). The followinc reffulatiow
(a) In order to Insure the abi1ity of are isaued purm=t to the authoritim
the Associate Admin' trator to make of sections 302(f), 302(g) and 303 of
the results of research conducted pur- the Act.
suant to this subsection available to
vi

d
0
M

263

9.
Part 935
Channel Island .
National Marine Sanctuary
Regulations

National Oceanic and Atmospheric Adm., Commerce

as a result of the grant project. Indi-
cate total personnel costs.

(Ececutive Order 12372. July 14, 1982 (47
FR 30959), as amended April 8, 1983 (48 FR
15587): sec. 401, Intergovernmental coop-
eration Act of 1968, as amended (31 U.S.C.
8508); sec 204, Demonstration cities and
Metropolitan Development Act of 1968 as
amended (42 U.S.C. 3334)).
(42 FR 38738, July 29, 1977, as amended at
48 FR 29137, June 24, 1983)

933.__ Approval of applications.

(A) An applicaton for a state re-
search, study and/or training grant
which complies with the policies and
requirements of the Act and the guid-
ance contained in this subpart shall be
approved by the Associate Administra-
tor, assuming available funding.
(b) Should an application be found
deficient, the Associate Administrator
will notify the applicant in writing as
to the manner in which the applica-
tion fails to conform to the require-
ments of the Act or this subpart. con-
ferences may be held on these mat-
ters, Corrections to teh application
will provide the basis for resubmital
of the application for further consid-
eration and review.
(c) The associatet administrator
may, upon finding extenuatin cir-
cumstances relating to an application
for State research, study and/or train-
ing grant, waive appropriate adminis-
trative requirements contained herin.

933.44 Amendments.
(a) Amendments to an approved ap-
plication must be submitted to the As-
sociate Administrator prior to initi-
atin of the contemplated change. Re-
quests for substantial changes should
be discussed with the Associate Ad-
ministrator well in advance. While all
amendments must be approved in writ-
ing by the NOAA grants officer, ap-
proval may be presumed for minor
amendments if the grantee has not
been notified of objections within
thirty (30) working days of the date of
postmark of the request.

933.45 Copies of products.
(a) In order to insure the ability of
the Associate Administrator to make
the results of research conducted pur-
suant to this subsection available to
any interested person, grantees shall
supply the Associate Administrator
with five(5) copies of any products, re-
ports, studies, etc. financed in whole
or in part by subsection 310 (b) monies.
Such products shall be recevied by the
Associate Adminitrator no later than
three months after the expiration
date of the Grant.
(b) Comment Statutory citation,
Subsection 310(c)(2):

The secretary shall make the results of
research conducted pursuant to this section
available to any interested person.

(1) At least one of the copies re-
ceived by the Associate Administrator
shall be transmitted to the National
Technical Information Service for pur-
poses of assuring general availability
to interested parties.

PART 935-THE CHANNEL ISLANDS
NATIONAL MARINE SANCTUARY
REGULATIONS

Sec.
935.1 Authority.
935.2 Purpose.
935.3 Boundaries.
935.4 Definitions.
935.5 Allowed activities.
935.6 Hydrocarbon operations.
935.7 Prohibited activites.
935.8 Penatlies for commission of prohibit-
ed acts
935.9 Permit procedures and criteria.
935.10 Certification of other permits.
935.11 Appeals of administrative action.

APPENDIX 1A-CHANNEL ISLANDS NATIONAL
MARINE SANCTUARY

Authroity: 16 U.S.C. 1431-1434

Source 45 FR 65203, oct 2, 1980 unless
otherwise noted.

935.1 Authority.

The sanctuary has been designated
pursuant to the authority of section
302(a) of Title III of the Marine Pro-
tection, Research and Sanctuaries Act
of 1972, 16 U.S.C. 1431 through 1434
(the Act). The following regulations
are issued pursuant to the authorities
of sectionis 302(f) 302(g) and 303 of
The Act.

263

� N5.2 15 CFK Ch- IX (1-1-92 Edition)
9 935.2 Purpose. � 935.5 Aflowed activities.
- The purpose of designating the All activities excePt those specifical.
Sanctuary is to protect and preserve ly prohibited by If 935.6 and 935.7
the extraordinary ecosystem including may be carried on in the Sanctuary
marine birds and mammals and other subject to all prohibitions, restrictions
natural resources of the waters sur- and conditions imposed by any other
rounding the northern Channel Is. authority. Recreational use of the
lands and Santa Barbara Island and area is encouraged.
ensure the continued availability of
the area as a research and recreational 0 935.6 Hydrocarbon operations.
resource. This area supports a particu- (a) Hydrocarbon exploration. devel-
larly rich and diverse marine biota, opment and production pursuant to
partially because it is located in a trLn- any lease executed prior to the effec.
sition zone between northern and tive date of these regulations and the
southern waters and partially because laying of any pipeline is allowed sub-
It is one of very few areas off the ject to paragraph (b) of this section
Southern California coast that has and to all prohibitions, restrictions
been relatively unaltered by human and conditions imposed by applicable
use. regulations, permits, licenses or other
authorizations and consistency reviews
9 936.3 Boundarits. including those Issued by the Depart-
The Sanctuary consists of an area of ment of the Interior, the Coast Guard.
the waters off the coast of California the Corps of Engineers. the Environ.
of approximately 1252.5 square nauti. mental Protection Agency and under
cal miles adjacent to the following is- the California Coastal Management
lands and offshore rocks: San Miguel Program and its implementing regula-
Island. Santa Cruz Island, Santa Rosa tionS.
Island, Anamps Island, Santa Barbara (b) No person may engage in any hy-
Island, Richardson Rock, and Castle drocarbon operation unless the follow-
Rock extending seaward to a distance ins oil spill contingency equipment is
of 6 nautical miles (nm). The coordi- available at the site of such operation:
nates are shown In Appendix IA. (1) 1500 feet of open ocean contain-
ment boom and a boat capable of de-
l 936.4 Deftnitions. ployiM the boo=
(a) ds tor" means the Ad- (2) One oil skimmint device capable
ministrator of the National Oceanic of open ocean use; and
and Atmospheric Adudnistration. (3) Fifteen Wes of oil sorbent mate-
(b) "Assistant Admlni4mtoe' means rW.
the Assistant Administrator for Coast- (c) Hydrocarbon exploration. devel-
al Zone Management. National Ocean- opment and production activities pur-
ic and Atmospheric Administration. suant to leases executed on or after
(c) "Person" means any private indi. the effective date of these regulations
vidual, partnership. corporation, or are prohibited.
other entity; or any officer, employee,
asent, department. agency or instru- 193&7 Prohibited activities.
mentality of the Federal government. (a) Except as may be necessary for
or any state or local unit of govern. the national defense, In accordance
ment. with Article 5. Section 2 of the Desis-
(d) "Islands" means San Miguel nation, or as may be necessary to re-
Island. Santa Cruz Island. Santa Ross spond to an emergency threatening
Island, Anscaps Island, Santa Barbara life. property, or the environment, the
Island, Richardson Rock. and Castle following activities are prohibited
Rock. within the Sanctuary unless permitted
(e) "Vessel" rn mns watercraft of- any by the Assistant Administrator in ac-
description capable of being used u a cordance with 1935.9. All prohibitions
means of transportation on the waters shall be applied Consistently with
of the Sanctuary. International law.

264

National Oceanic and Atmospheric Adm., Commerce � 935.9
(1) Discharge of substances. No remove or damage any historical or
person shall deposit or discharge any cultural resource.
materials or substances of any kind (b) All activities currently carried
except: out by the Department of Defense
(i) Fish or parts and chumming ma- within the Sanctuary are essential for
terials (bait); the national defense and, therefore,
(ii) Water (including cooling water) not subject to these prohibitions. The
and other biodegradable effluents inci- exemption of . additional activities
dental to vessel use of the sanctuary having significant impact shall be de-
generated by: termined in consultation between the
(A) Marine sanitation devices; Assistant Administrator and the De-
(B) Routine vessel maintenance, e.g. partment of Defense.
deck wash down; (c) The prohibitions in this section
(C) Engine exhaust; or are not based on any claim of territor-
(D) Meals on board vessels, iality and will be applied to foreign
(iii) Effluents incidental to hydro- persons and vessels only in accordance
carbon exploration and exploitation with recognized principles of intema-
activities as allowed by � 935.6. tional law, including treaties, conven-
(2) Alteration of, or construction on, tions and other international agree-
the seabed. Except in connection with ments to which the United States is
the laying of any pipeline as allowed signatory.
by 1 935.6, within 2 nautical miles of �935.8 Penalities for commission of pro-
any Island. no person shall: hibited acts.
(i) Construct any structure other (a) Section 303 of the Act authorizes
than a navigation aid, or the assessment of a civil penalty of not
(it) Drill through the seabed, or more than $50,000 against any person
(lit) Dredge or otherwise alter the subject to the jurisdiction of the
seabed in any way, other thin United States for each violation of any
(A) To anchor vessels, or regulation issued pursuant to the Act,
(B) To bottom trawl from a commer- and further authorizes a proceeding in
cial fishing vessel. rem against any vessel used in viola-
(3) Commercial vessels operations. tion of any such regulation. Proce-
Except to transport Persons or suP' dures are set out in Subpart D of Part
plies to or from an Island. no person 922 (15 CPR Part 922) of this chapter.
shall operate within one nautical mile Subpart D is applicable to any in-
of an Island any vessel engaged in the stance of a violation of these regula-
trade of carrying cargo. including but tions.
not limited to tankers and other bulk
carriers and barges, or any vessel en- 1935.9 Permit procedures and criteria.
gaged in the trade of servicing off- (a) Any person in possession of a
shore installations. In no event shall valid permit issued by the Assistant
this section be construed to limit Administrator in accordance with this
access for fishing Uncluding kelp har. section may conduct any activity in
vesting), recreational. or research ves- the Sanctuary prohibited under
sels. 1935.7 if such activity Is either: (1) Re-
(4) Disturbing marine mammals and search related to the resouces of the
birds. No person shall disturb seabirds Sanctuary. (2) to further the educa-
or marine mammals by flying motor. tional value of the Sanctuary, or (3)
ized aircraft at less than 1000 feet over for salvage or recovery operation&
the waters within one nautical mile of (b) Permit applicationa shall be ad-
any Island except: dressed to:
(1) For enforcement purposes;
(it) To engage in keep bed sunreys; Assistant Ach"'in'strator for Coastal, Zone
or Man"ement
Attn: Sanctuary Procraw Oftim Division
(W) To transport persons or supplies of Operations and Enforcement
to or from an Island. National Oceanic and Atmospheric Adminis-
(5) Removing or dam42ging historical tration. 3300 Whitehaven Street. N.W.
or cultural resource& No person shall Washington. DC 20nb.

265

� "S.10 15 CFR Ch. IX (1-1-92 Edition)
An application shall provide sufficient dures governing permit sanctions and
information to enable the Assistant denials for enforcement reasons are
Administrator to make the determina- found at Subpart D of 15 CPR Part
tion called for in Paragraph (c) of this 904.
section and shall include a description (Information collection requirements con.
of all activities proposed. the equip- tained in paragraph (b) have been approved
ment, methods, and personnel (par- by the Office of Management and Budget
ticularly describing relevant experi- under control number 0648-0141)
ence) involved and a timetable for
completion of the proposed activity. 145 PR 65203, Oct. 2. 1980. as amended at 49
FR 1041, Jan. 6, 1984; 49 FR 13335, Apr. 4,
Copies of all other required licenses or 19841
permits shall be attached.
(c) In considering whether to grant a 6 935.10 Certification of other permits.
permit the Ass' tant Administrator (a) All permits, licenses and other
shall evaluate such matters as: (1) The authorizations issued pursuant to ' y
general professional. and financial re- an
sponsibility of the applicant! (2) the other authority are hereby certified
appropriateness of the meth@@ envi- and shall remain valid if they do not
sioned to the Purpose(s) of the activi- authorize any activity prohibited by
ty; (3) the extent to which the conduct 1935.6 or J 935.7. Any interested
of any permitted activity may dimin- person may request that the Assistant
ish or enhance the value of the Sanc. Administrator offer an opinion on
tuary as a source of recreation. or as a whether an activity is prohibited by
source of educational or scientific in- these regulations.
formation; (4) the end value of the ac- 1935.11 Appeals of administrative action.
tivity and (5) such other matters as
may be deemed appropriate. (a) Except as provided in Subpart D
(d) In considering any application of 15 CFR Part 904, any interested
submitted pursuant to this section, the person (the Appellant) may appeal the
Assistant Administrator may seek and granting. denial. conditioning. or sus-
consider the views of any person or pension of any permit under 1935.9 to
entity. within or outside of the Feder- the Administrator of NOAA. In order
al government. and may hold a public to be considered by the Administrator,
hearing, as deemed appropriate. such appeal must be in writing, must
(e) The Assistant Administrator state the action(s) appealed, and the
may. at his or her discretion, grant a reasons therefore, and must be sub-
permit which has been applied for mitted within 30 days of the action(s)
pursuant to this section, in whole or in by the Assistant Administrator. The
part, and subject to such condition(s) Appellant may request an informal
as deemed appropriate. The Assistant hearing on the appeal.
Administrator or a designated repre- (b) Upon receipt of an appeal au-
sentative may observe any permitted thorized by this section, the Adminis-
activity and/or require the submission trator will notify the permit applicant.
of one or more reports of the status or if other than the appellant, and will
progress of such activity. Any inform - request such additional information
tion obtained shall be available to the and in such form as will allow action
public. upon the appeal. Upon receipt of suffi-
M The Administrator maysuspend. cient information. the Administrator
revoke, modify. or deny a permit will decide the appeal in accordance
granted or sought pursuant to this sec- with the criteria set out in I 935.9(c) as
tion. in whole or in part. if it is deter- appropriate. based upon information
mined that the applicant or permit relative to the application on file at
holder has acted in violation of the OCZM and any additional informa-
terms of the permit or of these recula. tion. the summary record kept of any
tions, or for other good cause shown. hearing and the hearing officer's rec-
Any such action shall be communicat- ommended decision. if any. an provid-
ed in writing to the applicant or ed in paragraph (c) of this section, and
permit holder, andshall set forth the such other considerations an deemed
reason(s) for the action taken. Proce- appropriate. The Administrator wiU

266

National Oceanic and Atomospheric Adm., Commerce pt. 935, App. 1A

notifiy all interested persons of the de-
cision, and the reason(s) therefor, in
writing, normally within 30 days of
the receipt of sufficient information,
unless additional time is needed for a
hearing.
(c) If a hearing is requested or if the
Administrator determines that one is
appropriate, the Administrator may
grant an informal hearing before a
hearing officer designated for that
purpose after first giving notice of the
time, place, and subject matter of the
hearing in the Federal Register. Such
hearing shall normally be held no
later than 30 days following publica-
tion of the notice in the Federal Reg-
ister unless the hearing officer ex-
tends the time for reasons deemed eq-
uitable. The appellant, the applicant
(if different) and , at the discretion of
the hearing officer, other interested
persons, may appear personally or by
counsel at the hearing and submit
such material and present such argu-
ments as determined appropriate by
the hearing officer. Within 30 days of
the last day of the hearing, the hear-
ing officer shall recommend in writing
a decision to the Administrator.
(d) The administrator may adopt
the hearing officer's recommended de-
cision, in whole or in part, or may
reject or modify it. In any event, the
Administrator willnotify interested
persons of the decision, and the
reason(s) therefor in writing within 30
days of receipt of the recommended
decision of the hearing officer. The
Administrator's action shall constitute
final action for the agency for the pur-
poses of the Administrative Proce-
dures Act.
(e) Any time limit precribed in this
section may be extended for a period
not to exceed 30 days by the Adminis-
trator for good cause, either upon his
or her own motion or upon written re0
quest from the appellant or applicant
stating the reason(s) therefor.

(45 FR 65203, Oct. 2. 1980, as amended at 49
FR 1041, Jan 6, 1984)

267

PART 936-THE POINT REYES/FAR-
ALLON ISLANDS MARINE SANCTU-
ARY REGULATIONS

sec.
938.1 Authority.
938.2 Purpose.
938.3 Boundaries.
938.4 Definitions.

15 CFR ch. IX (1-1-92 Edition)
sec.
936.5 Allowed activities.
936.6 Prohibited activites.
936.7 Penalties for commission of prohibit-
ed acts.
936.8 Permit procedures and criteria.
936.9 Certification of other permits.
936.10 Appeals of administrtive action.

Appendix-POINT REYES-FARALLOW ISLANDS
NATINAL MARINE SANCTUARY

AUTHORITY: Secs. 302(d). (f),(g), and 303
of Title IIX. Marine Protection . Research
and Sanctuaries Act of 1972, 16 U.S.C. 1431-
1434. Secs 3_2(f) 302 (g) and 303. Act.

Source 46 FR 7939, Jan, 26, 1981, unless
otherwise noted.

936.1 Authority.
The sanctuary has been designated
by the Secretary of Commerce pursu-
ant to the authority of section 302(a)
of Title III of the Marine Protection,
Research and Sanctuaries Act of 1972,
16 U.S.C. 1431 through 1434 (the Act).
The folowing regualtiosn are issued
pursuant to the authorities of sections
302(f) 302(g) and 303 of the Act.

936.2 Purpose.
The purpose of designating the
Sanctuary is to protect and preserve
the extraordinary ecosystem, includ-
ing marine birds, mammals, and other
natural resources of the waters sur-
rounding the Farallon Islands and
Point Reyes, and to ensure the contin-
ued availability of the area as a re-
search and recreationial resource.

936.3 Boundaries.
The 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 Co-
ordinates are listed in Appendix I.

The shoreward boundary follows the
mean high tide line and the seaward
limit of point Reyes National Sea-
shore. Between Bodega Head and
Point Reyes Headlands, the Sanctuary
extends seaward 3nmi beyond state
waters. The sanctuary also includes
the waters within 12 nmi of the faral-
lon Islands, and between the Islands
and the mainland from Point Reyes

268

19- @ I
iw 10*
Part 936
Point Reyes/Farallones -Islands
National Marine Sanctuaries
Regulations

National Oceanic and Atmospheric Adm., Commerce 935.1

ast a result of the grant project. Indi-
cate total personnel costs.

(Executive order 12372, July 14, 1982 (47
FR 30959, as amended April 8, 1983 (48 FR
15587); sec. 401, Intergovernmental Coop-
eration act of 1968, as amended (31 U.S.C.
8506); Sec 204, Demonstration Cities and
Metropolitan Development Act of 1966 as
amended (42 U.S.C. 3334)).
(42 FR 29137, June 24, 1983)

933.__ Approval of applications.
(a) An application for a state re-
search. study and/or training grant
which complies with the policies and
requirements of the Act and the guid-
ance contained in this subpart shall be
approved by the Associate Administra-
tor assuming available funding.
(b) Should an application be found
deficient, the Associate Administrator
will notify the applicant in writing as
to the manner in which the applica-
tion fails to conform to the require-
ments of the Act or this subpart. Con-
ferences may be held on these mat-
ters. Corrections to the application
will provide the basis for resubmittal
of the application for further consid-
eration and review.
(c) The Associate Administrator
may, upon finding extenuating cir-
cumstances relating to an application
for state research, study and/or train-
ing grant, waive appropriate adminis-
trative requirements contained herein.

933.44 Amendments.
(a) Amendments to and approved ap-
plication must be submittd to the As-
sociate Administrator prior to initi-
ation of the contemplated change. Re-
quests for substantial changes should
be discussed with teh Associate Ad-
ministrator well in advance. While all
amendments must be approved in writ-
ing by the NOAA Grants Officer, ap-
proval may be presumed for minor
amendments if the grantee has not
been notified of objections within
thirty (30) working days of the date of
postmark of the request.

933.45 Copies of Products.
(a) In order to insure the ability of
the Associate Administrator to make
the results of research conducted pur-
suant to this subsection available to
any interested person, grantees shall
supply the Associate Administator
with five (5) copies of any products, re-
ports, studies, etc. Financed in whole
or in part by subsection 310(b) monies.
Such products shall be received by the
Associate Administrator no later than
three months after the expiration
date of the grant.
(b) Comment Statutory citation,
subsection 310(c)(2):

The secretary shall make the results of
research conducted pursuant to thsi section
available to any interested person.

PART 935-THE CHANNEL ISLANDS
NATIONAL MARINE SACNTUARY
REGULATIONS

Sec.
935.1 Authority.
935.2 Purpose
935.3 Boundaries
935.4 Definitions.
935.5 Allowed activities.
935.6 Hydrocarbon operationis.
935.7 Prohibited activites.
935.8 Penalties for commission of prohibit-
ed acts.
935.9 Permit procedures and criteria.
935.10 Certification of other permits.
935.11 Appeals of administrative action.

APPENDIX 1A-CHANNEL ISLANDS NATIONAL
MARINE SANCTUARY

AUTHORITY:16 U.S.C. 1431-1434.

Source 45 FR 65203, Oct 2, 1980, unless
otherwise noted.

935.1 Authority

The Sanctuary has been designated
pursuant to the authority of section
302(a) aof Title III of the Marine Pro-
tection, Research and Sanctuaries Act
of 1972, 16 U.S.C. 1431 through 1434
(the Act). The following regulations
are issued pursuant to the authorities
of sections 302(f) 302(g) and 303 of
the Act.

263

� "5.2 15 CFR Ch. IX (1-1-92 Edition)
9 935.2 Purpose. 1935.5 Allowed activities.
The purpose of designating the All activities except those specifical-
Sanctuary is to protect and preserve ly prohibited by If 935.6 and 935.7
the extraordinary ecosystem including may be carried on in the Sanctuary
marine birds and nuunmals and other subject to all prohibitions, restrictions
natural resources of the waters sur- and conditions imposed by any other
rounding the northern Channel IS- LUthority. Recreational use of the
lands and Santa Barbara Island and area is encouraged.
ensure the continued availability of
the area as a research and recreational � 935.6 Hydrocarbon operations.
resource. This area supports a particu- (a) Hydrocarbon exploration, devel-
larly rich and diverse marine biota, opment and production pursuant to
partially because it is located in a tran- any lease executed prior to the effec-
sition zone between northern and tive date of these regulations and the
southern waters and partially because laying of any pipeline is allowed sub-
it Is one of very few areas off the ject to paragraph (b) of this section
Southern California coast that has and to all prohibitions, restrictions
been relatively unaltered by human and conditions imposed by applicable
use. regulations, permits, licenses or other
authorizations and consistency reviews
1935.3 Boundaries. including those issued by the Depart-
The Sanctuary consists of an area of ment of the Interior, the Coast Guard.
the waters off the coast of California the Corps of Engineers, the Environ.
of approximately 1252.5 square nauti- mental Protection Agency and under
cal miles adjacent to the following is- the California Coastal Management
lands and offshore rocks: San Miguel Program and its implementing regula-
Island, Santa Cruz Island, Santa Rosa tions.
Island. Anacapa Island, Santa Barbara (b) No person may engage in any hy-
Island, Richardson Rock, and Castle drocarbon operation unless the follow.
Rock extending seaward to a distance ing oil spiU contingency equipment is
of 6 nautical miles (run). The coordi- available at the site of such operation:
nates are shown in Appendix IA. (1) 1500 feet of open ocean contain-
ment boom and a boat capable of de-
l 935.4 Definitions. ploying the boo=
(A) 46 r" means the Ad- (2) One oil skimming device capable
rainiatrator of the National Oceanic of open ocean use; and
and Atmospheric Administration. (3) Fifteen balm of oil sorbent mate-
(b) "Assistant Admiln'strator" me&ns rill.
the Assistant Administrator for Coast- (c) Hydrocarbon exploration. devel-
al Zone Management, National Ocean- opment and production activities pur-
ic and Atmospheric Administration. suant to le executed on or after
W "Person" me&ns any private indi- the effective date of these regulations
vidual, partnership, corporation, or are ]Prohibited.
other entity; or any officer, employee.
agent, department, agency or instru- 193&7 Prohibited activities.
mentality of the Federal government, (a) Except as may be necessary for
or any state or local unit of govern- the national defense, in accordance
ment. with Article 5. Section 2 of the Desig-
W "Islands" means San Miguel nation. or as may be necessary to re-
Island, Santa Cruz Island. Santa Rosa spond to an emergency threatening
Island, Anacapa, Island, Santa Barbara life, property. or the environment, the
Island, Richardson Rock, and Castle following activities are prohibited
Rock. within the Sanctuary unless permitted
(e) "Vessel" means watercraft of any by the Assistant Administrator in ac-
description capable of being used as a cordance with 1935-9. All prohibitions
means of transportation on the waters shall be applied consistently with
of the Sanctuary. international law.

264

National Oceanic and Atmospheric Adm., Commerce � "S.9
(1) Discharge of substances. No remove or damage any historical or
person shall deposit or discharge any cultural resource.
materials or substances of any kind (b) All activities currently carried
except: out by the Department of Defense
(I) Fish or parts and chumming ma- within the Sanctuary are essential for
terials (bait); the national defense and, therefore,
(ii) Water (including cooling water) not subJect to these Prohibitions. The
and other biodegradable effluents inci. exemption of . additional activities
dental to vessel use of the sanctuary having significant Impact shall be de-
generated by: termined in consultation between the
(A) Marine sanitation devices; Assistant Administrator and the De-
(B) Routine vessel maintenance, e.g. partment of Defense.
deck wash down; (c) The prohibitions in this section
(C) Engine exhaust; or are not based on any claim of territor-
(D) Meals on board vessels; iality and will be applied to foreign
(III) Effluents incidental to hydro- persons and vessels only in accordance
carbon exploration and exploitation with recognized principles of interna-
activities as allowed by 1935.6. tional law, including treaties, conven-
(2) Alteration of, or construction on, tions and other international agree-
the seabed. Except in connection with ments to which the United States is
the laying of any pipeline as allowed signatory.
by 1 935.6, within 2 nautical miles of �935.8 Penalities for commission of pro-
any Island, no person shall: hibited acts.
(1) Construct any structure other (a) Section 303 of the Act authorizes
than a navigation aid, or the assessment of a civil penalty of not
(ii) Drill through the seabed, or more than $50,000 against any person
(ill) Dredge or otherwise alter the subJect to the Jurisdiction of the
seabed in any way, other than United States for each violation of any
(A) To anchor vessels, or regulation issued pursuant to the Act,
(B) To bottom trawl from a commer- and further authorizes a proceeding in
cial fishing vessel. rem against any vessel used in viola-
(3) Commercial vessels operations. tion of any such regulation. Proce-
Except to transport persons or sup- dures are set out in Subpart D of Part
plies to or from an Island, no person 922 (15 CIFR Part 922) of thia chapter.
shall operate within one nautical mile Subpart D Is applicable to any in-
of an Island any vessel engaged in the stance of a violation of these reffula-
trade of carrying cargo, including but tions.
not limited to tankers and other bulk
carriers and barges, or any vessel en. 6 935.9 Permit procedures and criteria.
gaged in the trade of servicing off. (a) Any person in possession of a
shore installations. In no event shall valid permit issued by the Assistant
this section be construed to limit Administrator in accordance with this
access for fishing (including kelp har- section may conduct any activity in
vesting), recreational. or research ves- the Sanctuary prohibited under
sels. 1935.7 if such activity Is either: (1) Re-
(4) Disturbing marine mammals and search related to the resouces of the
birds. No person shall disturb seabirds Sanctuary, (2) to further the educa-
or marine mammals by flying motor. tional value of the Sanctuary, or (3)
ized aircraft at less than 1000 feet over for salvage or recovery operation&
the waters within one nautical mile of
any Island except'. (b) Permit applications shall be ad-
(I) For enforcement purposes; dressed to:
(ii) To engage in keep bed surveys; Assistant Administrator for CAwtal Zone
or Alanacement,
(ill) To transport persons or supplies Attn: Sanctuary Programs Office. Division
of Operations and Worcement
to or from an Island. National Oceanic and Atmospheric AdmInia-
(5) Removing or damaving histortcal tration. 3300 Whitehaven Street. N.W..
or cultural resources. No person shall Washington. 10C 20235.

265

W
� "5.10 15 CFR Ch. IX (1-1-92 Edition)
An application shall provide sufficient dures governing permit sanctions and
information to enable the Assistant denials for enforcement reasons are
Administrator to make the determina- found at Subpart D of 15 CPR Part
tion called for in paragraph W of this 904.
section and shall include a description (Information collection requirements con-
of all activities Proposed, the equip- tained in paragraph (b) have been approved
ment, methods, and personnel (Par- by the Office of Management and Budget
ticularly describing relevant experi- under control number 0648-0141)
ence) involved and a timetable for
completion of the proposed activity. (45 PR 65203, Oct. 2. 1980, as amended at 49
FR 1041, Jan. 6, 1984; 49 FR 13335, Apr. 4,
Copies of all other required licenses or 19841
permits shall be attached.
W In considering whether to grant a 935.10 Certification of other permits.
permit the Assistant Administrator (a) All permits, licenses and other
shall evaluate such matters as: (1) The
general professional. and financial re- authorizations issued pursuant to any
sponsibility of the applicant; (2) the other authority are hereby certified
appropriateness of the methods envi- and shall remain valid if they do not
, activi_ authorize any activity prohibited by
sioned to the purpose(s) of the, 1935.6 or 1935.7. Any interested
ty; (3) the extent to which the conduct person may request that the Assistant
of any permitted activity may dimin- Administrator offer an opinion on
ish or enhance the value of the Sanc- whether an activity is prohibited by
tuary as a source of recreation. or as a hese regulations.
source of educational or scientific in- t
formation; (4) the end value of the ac- 6 935.11 Appeals of administrative action.
tivity and (5) such other matters as
may be deemed appropriate. (a) Except as provided in Subpart D
(d) In considering any application of 15 CPR Part 904, any interested
submitted pursuant to this section. the person (the Appellant) may appeal the
Assistant Administrator may seek and granting, denial, conditioning, or sus-
consider the views of any person or pension of any permit under 1935.9 to
entity, within or outside of the Feder- the Administrator of NOAA. In order
al government, and may hold a public to be considered by the Administrator,
hearing, as deemed appropriate. such appeal must be in writing, must
(e) The Assistant Administrator state the action(s) appealed, and the
may. at his or her discretion, grant a reasons therefore, and must be sub-
permit which has been applied for m1tted within 30 days of the action(s)
pursuant to this section, in whole or in by the Assistant Administrator. The
part, and subject to such condition(s) Appellant may request an informal
as deemed appropriate. The Assistant hearing on the appeal.
Administrator or a designated repre- M Upon receipt of an appeal au-
sentative may observe any permitted thorized by this section, the Adminis-
activity and/or require the submission trator will notify the permit applicant,
of one or more reports of the status or if other than the appellant, and will
progress of such activity. Any informa. request such additional information
tion obtained shall be available to the and in such form as will allow action
public. upon the appeal. Upon receipt of suffi-
(f ) The Administrator may suspend, cient information. the Administrator
revoke, modify. or deny a permit will decide the appeal in accordance
granted or sought pursuant to this sec- with the criteria set out in I 935.9(c) an
tion. in whole or in part, if it is deter- appropriate, based upon information
mined that the applicant or permit relative to the application on file at
holder has acted in violation of the OCZM and any additional informa.
terms of the permit or of these regula- tion. the summarY record kept of any
tions, or for other good cause shown. hearing and the hearing officer's rec-
Any such action shall be communicat. ommended decision, if anY, as Provid-
ed in writing to the applicant or ed in paragraph (c) of this section. and
permit holder, and shall set forth the such other considerations an deemed
reason(s) for the action taken. Proce- appropriate. The Administrator wiU

266

National Oceanic and Atmospheric Adm, Commerce Pt. 935, app. 1A

notify all interested persons of the de-
cision, and the reason(s) therefor, in
writing, normally within 30 days of
the receipt of sufficient information,
unless additional time is needed for a
hearing.
(c) If a hearing is requested or if the
Administrator determines that one is
appropriate, the Administrator may
grant an informal hearing before a
hearing officer designated for that
purpose after first giving notice of the
time, place, and subject matter of the
hearing in the Federal Register. Such
hearing shall normally be held no
later than 30 days following publica-
tion of the notice in the Federal Reg-
ister unless the hearing officer ex-
tends the time for reasons deemed eq-
uitable. The appellant, the applicant
(if different) and, at the discretion of
the hearing officer, other interested
persons, may appear personally or by
counsel at the hearing and submit
such material and present such argu-
ments as determined appropriate by
the hearing officer. Within 30 days of
the last day of the hearing, the hear-
ing officer shall recommend in writing
a decision to the Administrator.
(d) The Administrator may adopt
the hearing officer's recommended de-
cision, in whole or in part, or may
reject or modify it. In any event, the
Administrator will notify interested
persons of the decision, and the
reason(s) therefor in writing within 30
days of receipt of the recommended
decision of the hearing officer. The
Administrator's action shall constitute
fianl action for the agency for the pur-
poses of the Administrative Proce-
dures Act.
(e) Any time limit prescribed in this
section may be extended for a period
not to exceed 30 days by the Adminis-
trator for good cause, either upon his
or her own motion or upon written re-
quest from the appellant or applicant
stating the reason(s) therefor.

(45 FR 65203, Oct 2, 1980 as amended at 49
Fr 1041, Jan. 6, 1984

267

PART 936-THE POINT REYES/FAR-
ALLON ISLANDS MARIEN SANCTU-
ARY REGULATIONS

Sec.
936.1 Authority.
936.2 Purpose.
936.3 Boundaries
936.4 Definitions.

15 CFR ch. IX (1-1-92 Edition)

sec.
936.5 Allowed activities.
936.6 Prohibited activiteis.
936.7 Penalties for commission of prohibit-
ed acts
936.8 Permit procedures and criteria.
936.9 Certification of other permits.
936.10 Appeals of administrative action.

Appendix-Point Reyes-Farallon Islands
National Marine Sanctuary

Authority Secs. 302(d), (f), (g) and 303
of TItle III Marine Protection Research
and sanctuaries Act of 1972, 16 U.S.C. 1431-
1434. Secs 302(f), 302(g) and 303 Act.

Source 46 FR 7939, Jan, 26, 1981, unless
otherwise noted

936.1 Authority
The sanctuary has been designated
by the Secretary of Commerce pursu-
ant to the authority of section 302(a)
of Title III of the Marine Protection,
Research and Sanctuaries Act of 1972,
16 U.S.C. 1431 through 1434 (the Act).
The following regulations are issued
pursuant to the authorities of sections
302(f), 302(g) and 303 of the Act.

936.2 Purpose.
The purpose of designating the
Sanctuary is to protect and preserve
the extraordinary ecosystem, includ-
int marine birds, mammals, and other
natural resources, of the waters sur-
rounding the Farallon Islands and
Point Reyes, and to ensure the contin-
ued availability of the area as a re-
search and recreational resource.

936.3 Boundaries.

The Sanctuary consists fo 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 (nmi). The co-
ordinates are listed in Appendix I.

The shoreward boundary follows the
mean high tide line and the seaward
limit of Point Reyes National Sea-
shore. Between Bodega Head and
Point Reyes Headlands, the sanctuary
extends seaward 3nml beyond state
waters. The sanctuary also includes
the waterse within 12 nmi of the Faral-
lon Islands, and between the Islands
and the mainland from Pont Reyes

268

11.
Part 937
Looe Key
National Marine Sanctuary
Regulations

''0

PART 936-THE POINT REYES/FAR-
ALLON ISLANDS MARINE SANCTU-
ARY REGULATIONS

sec.
936.1 Authority.
936.2 Purpose.
936.3 Boundaries.
936.4 Definitions.

15 CFR CH. IX (1-1-92 Edition)
sec.
936.5 Allowed activities.
936.6 Prohibited activities.
936.7 Penalties for commission of prohibit-
ed acts.
936.8 Permit procedures and criteria.
936.9 Certification of other permits.
936.10 Appeals of administrative action.

APPENDIX I-Point Reyes-Farallow Islands
National Marine Sanctuary

Authority: sec.s 302(d), (f), (g) and 303
of title III. Marine Protection. Research
and Sanctuaries Act of 1972, 16 U.S.C. 1431-
1434. Secs 302(f), 302(g) and 303, Act.

Source 46 FR 7939, Jan. 26, 1981, unless
otherwise noted.

936.1 Authority.

The sanctuary has been designated
by the Secretary of commerce pursu-
ant to the authority of section 302(a)
of Title III of the Marine Protection,
Research adn Sanctuaries Act of 1972,
16 U.S.C. 1431 through 1434 (the Act0.
The following regualtions are issued
pursuant to the authorities of sections
302(f) 302(g), and 303 of the Act.

936.2 Purpose.
The purpose of designating the
Sanctuary is to protect and preserve
the extraordinary ecosystem, indclud-
ing marine birds, mammals, and other
natural resources, of the waters sur-
rounding the Farallon Islands and
Point Reyes, and to ensure the contin-
ued availability of the area as a re-
search and recreational resource.

936.3 Boundaries

The sanctuary consist of an area of
the waters adjacent ot 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), adn includes approximately 948
square nautical miles (nmi2) THe co-
ordinates are listed in Appendix I.

The shoreward boundary follows the
mean high tide line and the seaward
limit of point Reyes National Sea-
shore. Between Bodega Head and
point Reyes Headlands the Sanctuary
extends seaward 3 nmi beyond state
waters. The Sanctuary also includes
the waters within 12 nmi of the Faral-
lon Islands, and between the Islands
and the Mainland from point Reyes.

268

National Oceanic and Atmospheric Adm., Commerce � 936.6
Headlands to Rocky Point. The Sanc- tance greater than 2 nmi from the
tuary includes Bodega Bay, but not Farallon Islands, Bolinas Iagoon, and
Bodega Harbor. Areas of Special Biological Signifi.
cance where certified to have no sig-
� 936.4 Definitions. nificant effect on sanctuary resources
(a) "Administrator" means the Ad- in accordance with 1936.9.
ministrator of the National Oceanic (2) Discharge of substances. No
and Atmospheric Administration. person shall deposit or discharge any
(b) "Areas of Special Biological Sig- materials or substances of any kind
nificance" (ASBS) means those areas except:
established by the State of California (1) Fish or parts and chumming ma.
prior to the designation of the sanctu- terials (bait).
ary except that for purposes of these (it) Water (including cooling water)
regulations, the area established and other biodegradable effluents Inci.
around the Farallon Islands shall not dental to vessel use of the sanctuary
be included. generated by:
(c) "Assistant Administrator" means (A) Marine sanitation devices;
the Assistant Administrator for Coast- (B) Routine vessel maintenance, e.g.,
al Zone Management, National Ocean- deck wash down;
ic and Atmospheric Administration. (C) Engine exhaust; or
(d) "Person" means any private indi-
vidual, partnership, corporation, or (D) Meals on board vessels.
other entity; or any officer. employee, (iii) Dredge material disposed of at
agent, department, agency or instru- the interim dumpsite now established
mentality of the Federal government approximately 10 nmi south of the
or any State or local unit of govern- southeast Farallon Island and munici-
ment. pal sewage provided such discharges
(0 "Vessel" means watercraft of anv are certified in accordance with
description capable of being used as a 1936.9.
means of transportation on the waters (3) Alteration Qf or construction on
of the Sanctuary. the seabed. Except in connection with
the laying of pipelines or construction
1936.5 Allowed activities. of an outfall if certified in accordance
AD activities except those specifical. With 1936.9. no person shall:
ly prohibited by 1936.6 may be carried (1) Construct any structure other
on in the Sanctuary subject to all pro. than a navigation aid.
hibitions, restrictions, and conditions (it) Drill through the seabed, and
imposed by any other authority. Rec- (iii) Dredge or otherwise alter the
reational use of the area is encour- seabed in any way other than by an-
aged. choring vessels or botton trawling
from a commercial fishing vessel.
6 936.6 Prohibited wtivitles. except for routine maintenance and
(a) Except as may be necessary for navigation. ecological maintenance,
national 'defense, in accordance with mariculture, and the construction of
Article 5. Section 2 of the Designation. docks and piers in Tomales Bay.
or as may be necessary to respond to (4) Operations Qf vessels. Except to
an emergency threatening life. proper- transport persons or supplies to or
ty or the environment, the following from Wands or inikinland areas adja.
activities are prohibited within the cent to sanctuary watem within an
Sanctuary unless permitted by the As- area extending 2 nautical miles from
sistant Administrator in accordance the Farallon Islands, Bolines Imagoon,
with 1936.8 or 1936.9. All prohibitions or any Area of Special Biological Sig.
shall be applied consistently with nificance. no person shall operate any
international law. vessel engaged In the trade of carrying
(1) Hydrocarbon operations. Hydro- cargo. including but not limited to
carbon exploration. development, and tankers and other bulk carriers and
production are prohibited except that barges, or any vessel engaged in the
pipelines related to operations outside trade of servicing offshore installa.
the Sanctuary may be placed at a dis- tions. In no event -shall this section be

269

� "6.7 15 CFR Ch. IX (1-1-92 Edition)
construed to limit access for fishing. 1936.0, If such an activity Is (1) re-
40 recreational or research vessels. search related to the resources of the
(5) Disturbing marine mammals and Sanctuary, (2) to further the educa-
birds. No person shall disturb seabirds tional value of the Sanctuary, or (3)
or marine m&rnmy-1 by flying motor- for salvage or recovery operations.
ized aircraft at less than 1000 feet over (b) Permit applications shall be ad-
the waters within one nautical mile of dressed to the Assistant Administrator
the Farallon Islands, Bolinas Lagoon, for Coastal Zone Management, Attn:
or any'Area, of Special Biological Sig- Office of Coastal Zone Management,
nificance except to transport persons Sanctuary Programs Office, National
or supplies to or from the Islands or Oceanic and Atmospheric Administra-
for enforcement purposes. tion. 3300 Whitehaven Street, NW.,
(6) Removing or damaging historical Washington, DC 20235. An application
or cultural resources. No person -shall shall provide sufficient information to
remove or damage any historical or enable the Assistant Administrator to
cultural resource. make the determination called for in
(b) All activities currently carried paragraph (c) of this section and shall
out by the Department of Defense include a description of all activities
within the Sanctuary are essential for proposed, the equipment, methods,
the national defense and, therefore, and personnel (particularly describing
not subject to these prohibitions. The relevant experience) involved, and a
exemption of additional activities timetable for completion of the pro-
having significant impacts shall be de- posed activity. Copies of all other re-
termined in consultation between the quired licenses or permits shall be at-
Assistant Admin' trator and the De- tached.
partment of Defense. (c) In considering whether to grant a
(c) The prohibitions In this section permit, the Assistant Administrator
are not based on any claim of territor- shall evaluate (1) the general profes-
tality and will be applied to foreign sional and financial responsibility of
persons and vessels only in accordance the applicant. (2) the appropriateness
with recognized principles of interna- of the methods envisioned to the
tional law, including treaties. conven- purpose(s) of the activity, (3) the
tions, and other international agree- extent,to which the conduct of any
ments to which the United States Is permitted activity may diminish or en-
signatory. hance the value of the Sanctuary, (4)
the end value of the activity. and (5)
1936.7 Penalties for commission of pro- other matters as deemed appropriate.
hibited acts. (d) In considering any application
(a) Section 303 of the Act authorizes submitted pursuant to this section, the
the assessment of a civil penalty of not Assistant Administrator may seek and
more than $50,000 against any person consider the views of any person or
subject to the jurisdiction of the entity, within or outside the Federal
United States for each violation of any government, and may hold a public
regulation issued pursuant to the Act, hearing, as deemed appropriate.
and further authorizes a proceeding in (e) The Assistant Administrator
rem against any vessel used in viola- may. at his or her discretion. grant a
tion of any such regulation. Proce- permit which has been applied for
dures are outlined in Subpart D of pursuant to this section, in whole or in
Part 922 (15 CPR Part 922) of this part, and subject to such condition(s)
chapter. Subpart D Is applicable to as deemed appropriate. The Assistant
any instance of a violation of these Administrator or a designated repre-
regulations. sentative may observe any permitted
activity and/or require the submission
1936.8 Permit procedures and criteria. of one or more reporta of the status or
00 Any person in possession of a progress of such activity. Any informa-
valid permit Issued by the Assistant tion obtained will be made available to
Administrator in accordance with this the public.
section may conduct any activity in (f) The tor may suspend.
the Sanctuary. prohibited under revoke, modify, or deny a permit

270

National Oceanic and Atmospheric Adm., Commerce � 936.10
granted or sought pursuant to this sec- (d) Any certification called for in
tion, in whole or in part, if it is deter- this section shall be presumed unless
mined that the applicant or Permit the Assistant Administrator acts to
holder has acted in violation of the deny or condition certification within
terms of the permit or of these regula- 60 days from the date that the Assist-
tions, or for other good cause shown. ant Administrator receives notice of
Any such action shall be communicat- the Proposed permit and the necessary
ed in writing to the applicant or supporting data.
permit holder, and shall set forth the (e) The Assistant Administrator may
reason(s) for the action taken. Proce- amend, suspend, or revoke any certifi-
dures governing permit sanctions and cation made under this section when-
denials for enforcement reasons are ever continued operation would violate
found at Subpart D of 15 CPR Part any terms or conditions of the certifi.
904. cation. Any such action shall be.for-
(Information collection requirements con- warded in writing to both the holder
tained in paragraph (b) have been approved of the certified permit and the issuing
by the Office of Management and Budget agency and shall set forth reason(s)
under control number 0648-0141) for the action taken.
[46 PR 7939. Jan. 26. 1981, as amended at 49 (f) Either the holder or the Issuing
FR 1041, Jan. 6. 1984; 49 FR 13335, Apr. 4, agency may appeal any action condi-
19841 tioning, denying, amending, suspend-
0 936.9 Certification of other permits. ing, or revoking any certification in ac-
(a) All permits, licenses, and other cordance with the procedure provided
authorizations issued pursuant to any for in 1936.10.
other authority are hereby certified 936.10 Appeals of administrative action.
and shall remain valid if they do not
authorize any activity prohibited by (a) Except as provided in Subpart D
1936.6. Any interested person may re- of 15 CFR Part 904, any interested
quest that the Assistant Administrator person (the Appellant) may appeal the
offer an opinion on whether an activi- granting, denial, conditioning, or sus-
ty is prohibited by these regulations. pension of any permit under 1936.8 to
. (b) A permit, license, or other au- the Administrator of NOAA. In order
thorization allowing the discharge of to be considered by the Admin' trator,
municipal sewage, the laying of any such appeal must be in writing. must
pipeline outside 2 nmi from the Faral- state the action(s) appealed, and the
lon Islands. Bolinas Lagoon and Areas reasons therefore, and must be sub-
of Special Biological Significance, or mitted within 30 days of the action(s)
the disposal of dredge material at the by the Assistant Administrator. The
interim dumpsite now established ap- Appellant may request an infornua
proximately 10 nmi south of the hearing on the appeal.
Southeast Farallon Island prior to the (b) Upon receipt of an appeal au-
selection of a permanent dumpsite thorized by this section, the Adminis-
shall be valid if certified by the Assist- trator will notify the permit applicant,
ant Administrator as consistent with if other than the appellant, and may
the purpose of the Sanctuary and request such additional information
having no significant effect on sanctu- and in such form as will allow action
ary resources. Such certification may upon the appeal. Upon receipt of suffi-
impose terms and conditions as cient information. the Admini trator
deemed appropriate to ensure consist- will decide the appeal in accordance
ency. with the criteria defined in I 936.8(c)
(c) In considering whether to make as appropriate, based upon informa.
the certifications called for In this sec- tion relative to the application on file
tion, the Assistant Administrator may at 0CZW and my additional informa-
seek and consider the views of any tion. the summary record kept of any
other person or entity. within or out- hearing, and the hearing officers rec-
side the Federal government, and may ommended decision. if any. as provid-
hold a public hearing as deemed ap- ed in paragraph (c) of this section and
propriate. such other considerations as deemed

271

Pt. 936, App. 1

appropriate. The Administrator will
notifiy all interested persons of the de-
cision, and the reason(s) for the deci-
sions, in writing, within 30 days of re-
ceipt of sufficient information, unless
additional time is needed for a hear-
ing.
(c) If a hearing is requested or if the
Administrator determines one is ap-
proprite, the Administrator may
grant an informal hearing before a
designated hearing officer after first
giving notice of the time, place, and
subject matter of the hearing in the
Federal REgister. Such hearing must
normally be held no later than 30 days
following publication of the notice in
the Federal Register unless the hear-
ing officer extends the time for rea-
sons deemed equitable. The appellant,
the applicant (if different), and other
interested persons (at the discretion of
the hearing officer) may appear per-
sonally or by counsel at the hearing,
and submit material and present argu-
ments as determined appropriate by
the hearing officer. Within 30 days of
the last day of the hearing, the hear-
ing officer shall recommend in writing
a decision of the Administrator.
(d) The Administrator may adopt
the hearing officer's recommended de-
cision, in whole or in part, or may
reject or modify it. In any event, the
Administrator shall notify interested
persons of the decision., and the
reason(s) for the decision,in writing,
within 30 days of receipt of the recom-
mended decision of the hearing offi-
cer. The Administrator's action will
constitute final action for the agency
fort he purpose of the Administrative
Procedures Act.
(e) Any time limit prescribed in this
section may be extended for a period
not to exceed 30 days by the Adminis-
trator for good cause upon written re-
quest from the appellant or applicant
stating the reason(s) for the exten-
sion.

(46 FR 7939, Jan 26, 1981, as amended at 49
FR 1041, Jan 6, 1984)

PART 937 THE LOOE KEY NATION-
AL MARINE SANCTUARY REGULA-
TIONS

Sec
937.1 Authority
937.2 Purpose.
937.3 Boundaries.
937.4 Definitions.
937.5 Allowed activities
937.6 Activities prohibited without a
permit.
937.7 Penalties for commission of prohibit-
ed acts.
937.8 Permit Procedures and criteria.
937.9 Other permits
937.10 Appeals from administrative Action.

Authority: Secs. 302(f). 302(g), 303, pub.
L. 92-532. 88 stat. 1061, 1062 (16 U.S.C.
1431-1434).

Source 46 FR 7949 Jan. 26. 1981, unless
otherwise noted.

272

12*
Part 938
Gray's Reef
National Marine Sanctuary
Regulations

Pt. 938
cant, if other than the appellant, an
may request such additional informa-
tion and in such form as will all
action upon the appeal. Upon receipt
of sufficient information, the Adminis-
cordance with the criteria set in
937.8(c) as appropriate, based upon
information relative to the application
on file at CCZM and any additional in-
formation, the summary record kept
of any hearing and the hearing offi-
cer's recommended decision, if any, as
provided in paragraph (c) of this sec-
tion and such other considerations as
deemed appropraite. The Administra-
tor shall notify all interested parsons
of the decision, and the reason(s)
therefor in writing, normally within 30
days of the creceipt of suppiecient infor-
mation, unless additional time is
needed for a hearing.
(c) If a hearing is requested or if the
Administrator determines one is ap-
propriate, the Administrator may
grant an informal hearing before a
hearing officer designated for that
purpose after first giving notice of the
time, place, and subject matter of the
hearing in the FEDERAL REGISTER. Such
hearing shall normally be held no
later thatn 30 days following publica-
tion of the notice in the FEDERAL REG-
ISTER unless the hearing officer ex-
tends the time for reasons deemed eq-
uitable. The appelant, the applicant
(if different) and, at the discretion of
the hearing officer, other interested
persons, may appear personally or by
counsel at the hearing and submit ma-
terial and present such arguments as
determined appropriate by the hear-
ing officer. Within 30 days of the last
day of the hearing, the hearing officer
shall recommend in writing a decision
to the Adminstrator.
(d) The Administrator may adopt
the hearinng officer's recommended de-
cision, in whole or in part, or amy
Administrator shall notify intered
persons of the decision, and reason(s)
therefor in writing within 30 days of
receipt of the recommended decision
of the hearing officer. The Adminis-
trator's action shall constitute final
action for the Agency for the purposes
of the Administrative Procedure Act.

15 CFR Ch. IX (1-1-92)

(e) Any time limit prescribed in this
section may be extended for a period
not to exceed 30 days by the Adminis-
trator for good cause, either upon his
or her own motion or upon written re-
quest from the appellant or applicant
stating the reason(s) therefor.

[46 FR 7949, Jan. 26, 1981, as amended at 49
FR 1041. Jan. 6, 1984]

PART 938--TYE GRAY'S REEF NA-
TIONAL MARINE SANCTUARY
REGULATIONS

Sec.
938.1 Authority.
938.2 Purpose.
938.3 Boundaries.
938.4 Definitions.
938.5 Allowed activities.
938.6 Prohibited activities.
938.7 Penalties for commission of prohibit-
ed acts.
938.8 Permit procedures and critieria.
938.9 Certification of other permits.
938.10 Appeals of administrative action.

AUTHORITY: Secs. 302(a), (f), (g) and 303 of
Title III, Marine Protection, Research and
Sanctuaries Act of 1972, as amended, 16
U.S.C. 1431-1434.
SOURCE: 46 FR 7944, Jan. 26, 1981, unless
otherwise noted.

938.1 Authority.
The Sanctuary has been designated
pursuant to the authority of section
302(a) of Title III of the Marine Pro-
tection. Research and Sanctuaries Act
of 1972, as amended 16 U.S.C. 1431
through 1434 (the Act). The following
regulations are issued pursuant to the
authorities of section 302(f), 302(g),
and 303 of the Act.

938.2 Purpose.

The purpose of designating the
Sanctuary is to protect and preserve
the live bottom ecosystem and other
natural resources of the waters of
Gray's Reef and to ensure the contin-
ued availability of the area as an eco-
logical, research, and recreational re-
source.

938.3 Boundaries.

The sanctuary consists of 16.68
square nautical miles of high sea
waters off the coast of Georgia. The

276

National Oceanic and Atmospheric Adm., Commerce � 938.6
sanctuary boundary includes all (iff) Vessel cooling waters.
waters within a rectangle starting at (3) Operation of watercrot All wa.
coordinate 310 21' 45" N. 800 55117- W, tercraft shall be operated in accord-
commencing to coordinatn 310 25' 151, ance with Federal rules and regula-
N, 806 55' 17" W, thence to coordinate tions that would apply if there were
310 25' 15" N, 80* 49' 42" W. thence to no Sanctuary.
coordinate 31* 21'45" N, 80* 49'42" W, (4) Wire trap fishing. No person
thence back to the point of origin. shall use, place, or possess wire fish
traps within the Sanctuary without a
� 938.4 Definitions. permit.
(a) "Administrator" refers to the Ad- (5) Bottom trawling and specimen
ministrator of the National Oceanic dredging. No person shall use a bottom
and Atmospheric Administration. trawl, specimen dredge, or similar
(b) "Assistant Administrator" refers vessel-towed bottom sampling device
to the Assistant Administrator for within the Sanctuary without a
Coastal Zone Management, National permit.
Oceanic and Atmospheric Administra- (6) Marine specimen collecting. (I)
tion. No person shall break, cut, or similarly
(c) -Person" is any private individ- damage, take. or remove any bottom
ual, partnership, corporation, or other formation, any marine invertebrate, or
entity; or any officer, employee, agent, any marine plant without a permit.
department, agency or instrumentality (H) No person shall take without a
of the Federal government or any permit any tropical fish, which is a
State or local unit of government. fish of minirnal sport and food value,
usually brightly colored. often used
9 938.5 Allowed activities. for aquaria purposes, and which lives
All activities except those specifical- in a direct relationship with the live
ly prohibited by 1938.6 may be carried bottom community.
out within the Sanctuary subject to all (W) There shall be a rebuttable pre-
prohibitions, restrictions, and condi- sumption that any items listed in this
tions imposed by any other authority. paragraph found in the possession of a
person within the Sanctuary have
9 938.6 Prohibited activities. been collected or removed from the
(a) Except as may be necessary for Sanctuary.
national defense In accordance with Uv) No person shall use poisons,
Article 5, Section 2 of the Designation electric charges, explosives, or similar
or as may be necessary to respond to methods to take any marine animal or
an emergency threatening life. proper- plant.
ty, or the environment, the following (7) Removing or damaging historic
activities are prohibited within the or cultural msourceL No person shall
Sanctuary unless permitted by the As. tamper with. damage, or remove Any
sistant Administrator in accordance historic or cultural resources without
with � 938.8. AD prohibitions will be a permit.
applied consistently with international (b) AD activities currently carried
law. out by the Department of Defense
(1) Alteration of or construction on within the Sanctuary are essential for
the seabed. No person shall dredge, the national defense and, therefore,
drill. or otherwise alter the seabed in not subject to these prohibitions. The
any way nor construct any structure exemption of additional activities
other than a navigation aid without a having significant impacts shall be de.
permit. termined in consultation between the
(2) Discharge Qf substances. No Assistant ministrator and the De-
person shall deposit or discharge any PUtment, 0
materials or substances of any kind (c) The prohibitions In this section
except: are not based on any clairn of territor-
(I) Fish or parts, bait, and chummin iality and will be applied to foreign
materials; persons and vessels only in amrdance
(n) Effluent from marine sanitation with recognized priniciples of Interna-
devices; and tional law. including treaties, conven-

277

� 938.7 15 CFR Ch. IX (1-1-92 Edition)

tions. and other international agree- (d) In considering any application
ments to which the United States is submitted pursuant to this section, the
signatory. Assistant Administrator may seek and
consider the views of any person or
� 938.7 Penalties for commission of pro. entity, within or outside of the Feder-
hibited acts. al Government, and may hold a public
Section 303 of the Act authorizes the hearing, as deemed appropriate.
assessment of a civil penalty of not (e) The Assistant Administrator
more than $50,000 against any person may. at his or her discretion. grant a
subject to the Jurisdiction of the permit which has been applied for
United States for each violation of any pursuant to this section. in whole or in
regulation issued pursuant to the Act, part, and subject to such condition(s)
and further authorizes a proceeding in as deemed appropriate. The Assistant
rem against any vessel used in viola- Administrator or a designated repre-
tion of any such regulation. sentative may observe any permitted
6 938.8 Permit procedures and criteria. activity and/or require the submission
of one or more reports of the status or
(a) Any person in possession of a progress of such activity. Any infornia-
valid permit issued by the Assistant tion obtained will be made available to
AdministratoOr in accordance with this the public.
section may conduct the specific activ- M The Administrator may suspend,
ity in the Sanctuary including any ac- revoke, modify. or deny a permit
tivity specifically prohibited under granted or sought pursuant to this sec-
1938.6, if such activity is (1) research tion, in whole or in put. if it is deter-
related to the resources of the Sanctu, mined that the applicant or permit
ary, (2) to further the educational holder has acted in violation of the
value of the! Sanctuary. or (3) for sal- terms of the permit or of these regula-
vace or recovery operations. tions, or for other good cause shown.
(b) Permit applications shall be ad- Any such action shall be cornmunicat-
dressed to the Assistant Administrator ed in writing to the applicant or
for Coastal Zone Management, Attn: permit holder, and shall set forth the
Office of Sanctuary Programs, Nation- reason(s) for the action taken. Proce-
al Oceanic and Atmospheric Adminis- dures governing permit sanctions and
tration, 3300 Whitehaven Street, 1M., denials for enforcement reasons are
Washington, DC 20235. An application found at Subpart ID of 15 CPR Part
shall provide sufficient information to 904.
enable the Assistant Administrator to
make the determination called for in (Information collection requirements con-
paragraph (c) of this section and shall t9ined in paragraph (b) have been approved
include a description of all activities by the Office of hLuagement and Budget
proposed, the equipment, methods, under control number 0648-0141)
and personnel (particularly describing (46 PR 7944. Jam 26. 1981, as amended at 49
relevant experience) involved, and a PR 1041. Jan. 6. 1984: 49 PR 13335, Apr. 4.
timetable for completion of the pro- 19841
posed activity. Copies of all other re- 1938.9 Certification of other permits.
quired licenses or permits shall be at-
tached. (a) All permits. licenses and other
(c) In considering whether to grant a authorizations issued pursuant to any
permit, the, Assistant Administrator other authority are hereby certified
shall evaluate (1) the general Profe& and shall remain valid U they do not
sional and financial responsibility of authorize any activity prohibited by
the applicant, (2) the appropriateness 1938.6. Any interested person may re-
of the methods envisioned to the Quest that the Assistant Ministrator
purpose(s) of the activity, (3) the offer an opinion on whether an activi-
extent to which the conduct of any ty is prohibited by these regulations.
permitted activity may diminish or en- (b) The Assistant Administrator may
hance the value of the Sanctuary, (4) amend. suspend. or revoke the certifi-
the end value of the activity, and (5) cation made under this section when-
other matters an deemed appropriate. ever continued operation would violate

278

7@
Naflonal Oc*anlc and Atmesphoric Adin., Commerce
any term or conditions of the certifica- the FtDzp.AL RZrrsT= unl
tion. Any such action shall be forward- Ing officer extends the time f or
ed in writing to both the holder of the sons deemed equitable. The ap
certified permit and the issuing the applicant (if different) and othe
agency and shall set forth reason(s) interested persons (a
t the discretion of'r'-
for the action taken. Either the permit the hearing officer) may appear per.:'-v'.
holder or the issuing agency may sonally or by counsel at the hearing
appeal the action as provided for in and submit such 'material and Present
� 938.10. such arguments as determined appro
� 938.10 Appeals of administrative action. Priate by the hearing officer. Within
30 days of the last day of the hearing,
(a) Except as provided in Subpart D the hearing officer shall recommend
of 15 CFR Part 904, any interested in writing a decision to the Adminis.
person (the Appellant) may appeal the trator.
granting, denial, conditioning, or sus- (d) The Administrator may adopt
pension of any permit under J 938.8 to the hearing officer's recommended de.
the Administrator of NOAA. In order cision, in whole or in part. or may
to be considered by the Administrator, reject or modify it. In any event, the
such appeal must be in writing, must Administrator shall notify interested
state the action(s) appealed, and the persons of the decision and the
reasons therefore, and must be sub- reason(s) for the decision, in writing,
mitted within 30 days of the action(s) within 30 days of receipt of the recom-
by the Assistant Administrator. The mended decision of the hearing offi-
Appellant may request an informal cer. The Administrator's action will
hearing on the appeal. constitute final action for the Agency
(b) Upon receipt of an appeal au- for the purposes of the Administrative
thorized by this section, the Adminis- Procedures Act.
trator will notify the permit applicant, (e) Any time limit prescribed in this
if other than the appellant, and may section may be extended for a period
request such additional information not to exceed 30 days by the Adminis-
and in such form as will allow action tmtor for good cause upon written re-
upon the appeal. Upon receipt of suffi- quest from the appellant or applicant
cient information, the Administrator stating the reason(s) for the exten-
will decide the appeal In accordance sion.
with the criteria defined in � 938.8(c) (46 FR 7944. Jan. 26, 1981, as amended at 49
as appropriate, based upon informa- FR 1041, Jan. 6,19841
tion relative to the application on file
at OCZM and any additional informa-
tion, the summar record kept of any PAR 941-FAGATELE BAY ATION-
hearing, the hearing office's recom- AL RINE SANCTUAR REGULA-
mended decision, if any. as provided in
paragraph (c) of this section, and such TION
other considerations as deemed appro-
priate. The Administrator will notify Sec.
all interested persons of the decision 941.1 Authori
and the reason(s) for the decision, in 941.2 Purpose. >
writing. within 30 days of receipt of 941-3 Scope of re ti ns.
sufficient information, unless addi- 941.4 Boundaries.
tional time is needed for a hearing. 941.5 Definitions.
(c) If a hearing is requested or if the 941.8 Manuement enforcement.
941.7 Allowed activiti
Administrator determines one is ap. 941.8 Activitives pfohi or controlled.
propriate, the Administrator may 941.9 Other autti6rities.
Col
grant an informal hearing before a 941.10 PenAltiestfor co an of prohib-

t
designated hearing officer after first ited acts.
giving notice of the time, place, and 941-11 Perml ures d criteria.
subject matter of the hearing In the 941-12 APpealtbf Permit ac n-
F='ERAL RzrisTzR. Such hearing must Au=oarrr. *ltle M of Pub. 9&498. 16
normally be held no later than 30 days U.S.C. 1431-1439. (Pub. 1. 92-5 2 as amend-
@
BAY Al
R 0
U /AR E
ns.

following publication of the notice In ed by Pub. I- W332 and Pub. L 3498).

279

3114M9 0-92-10

w 13.
Part 941
Fagatele B ay -
I National Marine Sanctuary
Regulations

4 *

National Oceanic and Atmospheric Adm., Commerce Pt. 941

any term or conditions of the certifica-
tion. Any such action shall be forward-
ed in writing to both the holder of the
certified permit and the issuin
agency and shall set forth reason(s)
for the action taken. Either the permit
holder or the issuing agency may
appeal the action as provided for in
938.10.
938.10 Appeals of administrative action.
(a) Except as provided in Subpart D
of 15 CFR Part 904, any interested
person (the Appellant) may appeal the
granting, denial, conditioning, or sus-
pension of any permit under 938.8 to
the Administrator of NOAA. In order
to be considered by the Administrator,
such appeal must be in writing, must
state the action(s) appealed, and the
reasons therefore, and must be sub-
mitted within 30 days of the action(s)
by the Assistant Adminsitrator. The
Appellant may request an informal
hearing on the appeal.
(b) Upon receipt of an appeal au-
thorized by this section, the Adminis-
trator will notify the permit applicant,
if other than the appellant, and may
request such additional information
and in such form as will allow action
upon the appeal. Upon receipt of suffi-
cient information, the Administrator
will decide the appeal in accordance
with the criteria defined in 938.8(c)
as appropriate, based upon informa-
tion relative to the application on file
at OCZM and any additional informa-
tion, the summary record kept of any
hearing, the hearing office's recom-
mended decision, if any, as provided in
paragraph (c) of this section, and such
other considerations as deemed appro-
priate. The Administrator will notify
all interested persons of the decision
and the reason(s) for the decision, in
wriiting, within 30 days of receipt of
sufficient information, unless addi-
tional time is needed for a hearing.
(c) If a hearing is requested or if the
Administrator determines one is ap-
propriate, the Administrator may
grant an informal hearing before a
designated hearing officer after first
giving notice of the time, place, and
subject matter of the hearing in the
FEDERAL REGISTER. Such hearing must
normally be held no later than 30 days
following publication of the notice in

the FEDERAL REGISTER unless the hear-
ing officer extends the time for rea-
sons deemed equitable. The applicant,
the applicant (if different) and other
interested persons (at the discretion of
the hearing officer) may appear per-
sonally or by counsel at the hearing
and submit such material and present
such arguments as determined appro-
priate by the hearing officer. Within
30 days of the last day of the hearing,
the hearing officer shall recommend
in writing a decision to the Adminis-
trator.
(d) The Administrator may adopt
the hearing officer's recommended de-
cision, in whole or in part, or may
reject or modify it. In any event, the
Administrator shall notify interested
reason(s) for the decision, in writing,
within 30 days of receipt of the recom-
mended decision of the hearing offi-
cer. The Administrator's action will
constitute final action for the Agency
for the pruposes of the Administrative
Procedures Act.
(e) Any time limit prescribed in this
section may be extended for a period
not to exceed 30 days by the Administ-
trator for good cause upon written re-
quest from the appellant or applicant
stating the reason(s) for the exten-
sion.

[46 FR 7944, Jan. 26, 1981, as ammended at 49
FR 1041, Jan. 6, 1984]

PART 941--FAGATELE BAY NATION-
AL MARINE SANCTUARY REGULA-
TIONS

Sec.
941.1 Authority.
941.2 Purpose.
941.3 Scope of regulations.
941.4 Boundaries.
941.5 Definitions.
941.6 Mangement and enforcement.
941.7 Allowed activities.
941.8 Activities prohibited or controlled.
941.9 Other authorities.
941.10 Penalties for commission of prohib-
ited acts.
941.11 Permit procedures and criteria.
941.12 Appeal of permit action.

AUTHORITY: Title III of Pub. L. 98-498, 16
U.S.C. 1431-1439. (Pub. L. 92-532 as amend-
ed by Pub. L. 96-332 and Pub. L. 98-498).

279

311-049 0--92---10

� 941.1 1 S CFR Ch. IX (1 - 1 .92 Edition)
SouRcz: 51 FR 15880. Aw. 29, 1986, unless as the Pagatele Bay National Marine
otherwise noted. Sanctuary (the Sanctuary). Neither
� 941.1 Authority. these provisions nor any permit issued
under Its authority shall be construed
The Sanctuary has been designated to relieve a person from any other re-
by the Secretary of Commerce pursu- quirements imposed by statute or reg-
ant to the authority of section 303(a) ulation of the Territory of American
of the Marine Protection, Research Samoa or of the United States. In ad-
and Sanctuaries Act of 1972. (the Act). dition, no statute or regulation of the
16 U.S.C. 1433; (Pub. L. 98-498). The Territory of American Samoa shall be
following regulations are issued pursu- construed to relieve a person from the
ant to Title III of the Act. restrictions, conditions, and require-
9 941.2 Purpose. ments contained in this part.
� 941.4 Boundaries.
he purpose of designating the Fa-
gatele Bay National Marine Sanctuary The Sanctuary is a 163-acre (.25 sq.
is to protect a unique deepwater ter- mi.) coastal embayment formed by a
race formation and a coral reef ecosys- collapsed volcanic crater on the island
tem representative of the warm water of Tutuila. American Samoa. The site
tropical Pacific Islands in its natural is divided into two Subzones. A and B,
state and to regulate uses within the and includes Fagatele Bay in its en-
Sanctuary to ensure the health and in- tirety up to mean high high water
tegrity of the ecosystem and its associ- (MHHW). The seaward boundaries are
ated nora and fauna. defined by straight lines between the
following points, as approved by the
9 941.3 Scope of regulationL NOAA Charting Services Branch, and
The provisions of this part apply the American Samoa Department of
only to the area defined by regulation Public Works:

Pak" PL NO. sub- Laftwe Lorqmxw
zom

F"&Wo Point ............................................................................... 1-1 A 14*22'15' S ................... 170*46'5' W
mstaum4o& senownark ................................................................ 1-2 A 14'22'18* S ................... 1?W4S*36* W
Fagatele Point ...................................................... . ....................... 2-1 8 14*22'15' S ................... 170'46*5' W
stqm ftint ......................................................................... 2-2 8 14*22'"- S ................... 170*45'27* W

6 941.5 Definitions. (e) "Cultural Resources" means any
(a) "Administrator" means the Ad- historical or cultural feature, includ-
ministrator of the National Oceanic ing archaeological sites. historic struc-
and Atmospheric Administration tures, shipwrecks, and artifacts.
(NOAA). (f) "Designation" means the action
(b) "Assistant Administrator" menas taken by the Secretary of Commerce,
the Assistant Administrator for Ocean to prescribe, through a Designation
Services and Coastal Zone Manage- Document and implementing rules and
ment, National Ocean Service, Nation- regulations, the terms for establishing
al Oceanic and Atmospheric Adminis- the Sanctuary.
tration, or his or her successor. or des- (g) "Director" means Director of the
ignee. Development Planning Office. Terri-
(c) "Benthic Community" me&na the tory of American Samoa or the head
assemblage of organisms. substrate, of any successor agency.
and structural formations found at or (h) "The Management Plan" means
near the bottom that is periodically or the document that outlines the day-to-
permanently covered by water. day operations of the FqMtele Bay
(d) ,Commercial FUMW National Marine Sanctuary and in-
any activity that results in the sale or cludes but is not limited to Provisions
trade for intended profit of fish. shell- for Reseamho Interpretation, Surveil-
fish. algae, or corals.

280

National Oceanic and Atmospheric Adm., Commerce � 941.8
lance and Enforcement, and Adminis- � 941.7 Allowed activities.
tration. All activities except those specifical.
(1) "Permit" means any document ly prohibited by J 941.8 may be carried
issued under Federal or territorial au- out within the Sanctuary subject to all
thority, signed by an authorized offi- prohibitions, restrictions, and condi-
cial, and specifying the permitted ac- tions imposed by other authorities.
tions.
(j) "Permittee" means any person � 941.8 Activities prohibited or controlled.
issued a valid permit as defined in (a) Unless permitted by the Assist-
paragraph (I) of this section and pur- ant Administrator in accordance with
suant to the requirements of these � 941.11, or as may be necessary for
regulations. national defense, or to respond to an
W "Persons" means any private in- emergency threatening life. property
dividual, partnership, corporation, or or the environment, the following ac-
other entity; or any officer, employee, tivities are prohibited or controlled in
agent, department, agency or instru- Subzones A and B of the Sanctuary.
mentality of the Federal Government, All prohibitions and controls will be
or any State or local unit of govern- applied consistently with international
ment. law. Refer to � 941.10 for penalties for
(1) "The Sanctuary" means the Fa. commission of prohibited acts.
gatele Bay National Marine Sanctu. (1) Taking and Damaging Natural
ary. Resources. (I) No person shall gather,
(m) "Sanctuary Manager" means the take, break, cut, damage, destroy, or
person hired by NOAA to manage and possess any invertebrate, coral, bottom
formation, or marine plant.
operate the Sanctuary. 01) No person shall take, gather, cut,
(n) "Secretary" means the Secretary damage, destroy, or possess any crown-
of Commerce, or his or her successor of-thorns starfish (Acanthaster
or designee. planci).
� 941.6 Management and enforcement. (III) No person shall possess or use
poisons, electrical charges, explosives,
The National Oceanic and Atmos- or similar environmentally destructive
pheric Administration (NOAA) has methods.
primary responsibility for the manage- (iv) No person shall posses or use
ment of the Sanctuary pursuant to spearguns, Including such devices
the Act. The American Samoa Devel. known as Hawaiian slings, pole spears,
opment Planning Office (DPO) will arbalettes, pneumatic and spring-
assist NOAA in the administration of loaded spearguns, bows and arrows,
the Sanctuary, and act as the lead bang sticks, or any similar taking
agency, in conformance with the Des- device.
ignation Document, these regulations, (v) No person shall possess or use
and the terms and provisions of any seines, trammel nets. or any fixed net.
grant or cooperative agreement. In ac- (vi) There shall be a rebuttable pre-
cordance with I 922.32(b) of the Na- sumption that any items listed in
tional Marine Sanctuary Program these paragraphs found in the posses-
Regulations, 15 CFR Part 922. NOAA sion of a person within the Sanctuary
may act to deputize enforcement have been used. collected, or removed
agents of the American Samoa Gov- from within the Sanctuary.
ernment (ASO) to enforce these regu, (2) Operation Qf Vessels. (I) No vessel
lations. If NOAA chooses to exercise shall approach closer than 200 feet to
a vessel displaying a dive flag except
this provision, a memorandum of un- at & maximum speed of three knots.
derstanding shall be executed between (it) All vessels from which diving op.
NOAA and the ASO or the person(s) erations are being conducted shall fly
or entity authorized to act on their in a conspicuous nwmer the interna.
behalf. Prosecution of violations will tional code flag alpha "A."
be carried out by NOAA in accordance (111) All vessels shall be operated to
with 1941.10 of these regulations. avoid strflftg or otherwise causing

281

� 941.9 IS CFR Ch. IX (1-1-92 Edition)
damage to the natural features of the ttons, and other international agree-
Sanctuary. ments to which the United States is
(3) Discharges. No person shall signatory.
litter, deposit, or discharge any mate-
rials or substances of any kind into the � 941.9 Other authorities.
waters of the Sanctuary. No license, permit or other authori-
(4) Disturbance of the Benthic Com- zation issued pursuant to any other
munity, Disturbance of the benthic authority may validly authorize any
community by dredging, filling, dyna- activity prohibited by j 941.8 unless
miting, bottom trawling, or any alter- such activity meets the criteria stated
ation of the seabed shall be prohibit- @@ i 941.11(a), (c) and (d). and is specif-
ed. ically authorized by the Assistant Ad-
(5) Removing or Damaging Cultural ministrator.
Resources. No person shall remove,
damage, or tamper with any historical 6 941.10 Penalties for commission of pro-
or cultural resource within the bound- hibited acts.
aries of the Sanctuary. Section 307 of the Act, 16 U.S.C.
(6) Taking of Sea Turtles. No person 1437. authorizes the assessment of a
shall ensnare, entrap. or fish any sea civil penalty of not more than
turtle while it is listed as a threatened $50.000.00 for each violation of any
or endangered species as defined by regulation issued pursuant to the Act,
the Endangered Species Act of 1973, as and further authorizes a proceeding in
amended, 16 U.S.C. 1531 et seq. rem against any vessel used in viola-
(7) Use of Dangerous Weapons. tion of any such regulation. NOAA
Except for law enforcement purposes. will apply to all enforcement matters
no person shall use or discharge explo- under the Act the consolidated civil
sives or weapons of any description procedure regulations set forth at 15
within the Sanctuary boundaries. Dis- CPR Part 904.
tress signaling devices, necessary and
proper for safe vessel operation, and 9941.11 Permit procedures and criteria.
knives generally used by fishermen
and swimmers are not considered (a) Under special circumstances an
weapons for purposes of this subsec- activity otherwise prohibited by
tion. 1941.8 of these regulations may be al-
(8) Other Prohibitions. No person lowed by permit. The activity must be
shall mark, deface, or damage in any conducted for resemb or educational
way, or displace or remove or tamper Purposes designed to enhance under-
with any signs, notices, or placards. standing of the Sanctuary environ-
whether temporary or permanent, or ment or to improve resource manage-
with any monuments, stakes, posts, or ment dectsionnmking. The activity
other boundary markers related to the must also be Judged not to cause long-
Sanctuary. term or irreparable harm to the re-
(b) In addition to those activities sources of the Sanctuary. A permit
prohibited or controlled in accordance may be granted by the Assistant Ad-
with i 941.8(a), the following activities ministrator of NOAA In consultation
are prohibited or controlled in Sub- with the Development and Planning
zone A: Office.
(1) Taking and Damaging Natural (b) Any person In possession of a
Resources. (1) No person shall possess valid permit Issued by the Assistant
or use fishing poles. handlines, or Administrator in accordance with this
trawls. section may conduct the specified ac-
(ii) Commercial fishing shall be pro. tiVity in the Sanctuary If Such activity
hibited. is.
(c) The prohibitions in this section (1) Related to research involving
are not based on any claim of territor- Sanctuary resources;
iality and will be applied to foreign (2) To further the value
persons and vessels only in accordance of the Sanctuarr. or
with recognized principles of interna- (3) For salvage or recovery oper-
tional law, including treaties, conven- ations.

282

National Oceanic and Atmospheric Adm., Commerce � 941.12
(c) Permit applications shall be ad- Sanctuary may include, but is not lim-
dressed to the Assistant Administrator ited to, the following conditions:
for Ocean Services and Coastal Zone (1) The Assistant Administrator, Di.
Management, ATTN: Sanctuary Pro- rector, or their designated representa-
grams Division. National Ocean Serv- tives may observe any activity permit-
ice, National Oceanic and Atmospheric ted by this section;
Administration. 3300 Whitehaven (2) Any information obtained in the
Street, NW., Washington, D.C. 20235. research site shall be made available
An application shall include a descrip- to the public, and
tion of all proposed activities, the (3) The submission of one or more
equipment, methods, and personnel in- reports of the status of such research
volved, and a timetable for completion activity may be required.
of the proposed activity. Copies of all (h) A permit granted pursuant to
other required licenses or permits this section is non-transferrable.
shall be attached. (i) The Assistant Administrator may
(d) In considering whether to grant amend, suspend, or revoke a permit
a permit, the Assistant Administrator granted pursuant to this section, in
shall evaluate such matters as: whole or in part, temporarily or indef i-
(1) The general professional and fi- nitely if, in his/her view. the permit-
nancial responsibility of the applicant; tee has acted in violation of the terms
(2) The appropriateness of the meth- of the permit or regulations, or for
ods being proposed for the purpose(s) other good cause shown. Any such
of the activity: action shall be communicated in writ-
(3) The extent to which the conduct ing to the applicant or permit holder
of any permitted activity may dimin- and shall set forth the reason(s) for
ish or enhance the value of the Sanc- the action taken. The permittee in re-
tuary as a source of recreation, educa- lation to whom such action has been
tion, or scientific information: and taken may appeal the action to the
(4) The end value of the activity. Administrator as provided for in
(e) In addition to meeting the crite- 1941.12.
ria in � 941.11(a) and (c), the applicant (information collection requirements for
also must demonstrate to the Assist- j 941.11 have been approved by the Office
ant Administrator that: of Management and Budget under control
(1) The activity shall be conducted number 0648-0141)
with adequate safeguards for the envi-
ronment; and 9 941.12 Appeal of permit action.
(2) The environment shall be re- (a) Except for permit actions which
turned to, or will regenerate to, the are imposed for enforcement reasons
condition which existed before the ac- and covered by the procedures at Sub-
tivity occurred. part D of 15 CFR Part 904, an appli-
(f) In considering an application sub- cant for a permit, the permittee, or
mitted pursuant to this Section. the any other interested person (hereafter
Assistant Administrator shall seek and Appellant) may appeal the granting,
considei the views of the Sanctuary denial, conditioning or suspension of
Manager and Director. The Assistant any permit under 1941.11 to the Ad-
Administrator also may seek and con- ministrator of NOAA. In order to be
sider the views of any other person or considered by the Administrator, such
entity, within or outside of the Terri- appeal must be in writing, must state
torial Government and may hold a the action(s) appealed and the
public hearing, as he or she deems ap- reason(s) therefor, and must be sub-
propriate. mitted within 30 days of the action(s)
(g) The Assistant Administrator by the Assistant Administrator. The
may, at his or her discretion, grant a Appellant may request an informal
permit which has been applied for hearing on the appeal.
pursuant to this section, In whole or in (b) Upon receipt of an appeal au-
part, and subJect the permit to such thorized by this section, the Adminis.
condition(s) as the Assistant Adminis- trator may request the Appellant to
trator deems necessary. A permit submit such additional information
granted for research related to the and in such form as wfil allow action

283

� 942.1 15 CFR Ch. IX (1-1-92 Edition)
upon the appeal. The Administrator Sec
shall decide the appeal using the crite- 942.7 Penalties.
ria set out in � 941.11 (a), (c) and (d) 942.8 Permit applications-procedures and
and any information relative to the criteria.
942.9 Certification of other authorizations.
application on file, any information 942.10 A eals of administrative action.
provided by the Appellant, and such APPENDIX TO PART 942-CORDELL BANK NA-
other consideration as is deemed ap- TIONAL MARINE SANCTUARY BOUNDARY
propriate. The Administrator shall COORDINATES.
notify the Appellant of the final deci-
sion and the reason(s) therefor in writ- AUTHORITY: SeCs. 303, 304, 305, and,307 of
ing, normally within 30 days of the Title III -the Marine Protection, Re-
date of the receipt of adequate infor- search, and anctuaries Act of 1972, as
amended, 16 S.C. 1433, 1434, 1435, and
mation required to make the decision. 1437; section 2 of Pub. L. No. lO1-74, 103
(c) If a hearing is requested, or If the Stat. 554: Designation Document( for the
Administrator determines that one is Cordell Bank National Marine Sanctuary.
appropriate, the Administrator may Article 4. section 1(c).
grant an informal hearing before a SOURCE: 54 FR 22423, May 24, 89, unless
Hearing Officer appointed for that otherwise noted.
purpose. The Appellant and any other
interested persons may appear person- 942.1 Authority.
ally or by counsel at the hearing and
submit material and present argu- The Sanctuary as bee designated
ments as determined appropriate by by the designee f the Secretary of
the Hearing Officer. Within 30 days of Commerce pursuant to the authority
the last day of the hearing, the Hear- of Title III of the Marine Protection,
ing Officer shall recommend a decision Research, and Sanctuaries Act of 1972,
in writing to the Administrator. as amended, 16 U.S.C. 1431 et seqq.
(d) The Administrator may adopt ("Act"). The regulations in this part
the Hearing Officer's recommended are issued pursuant the authority
decision, In whole or in part, or may of sections 303, 304, 05, and 307 of
reject or modify It. In any event. the the Act.
Administrator shall notify the inter- 942.2 Purpose.
ested persons of his or her decision,
and the reason(s) therefor in writing The purpose of designating the
within 30 days of receipt of the recom- Sanctuary is to protect and conserve
mended decision of the Hearing Offi- the special, discrete, highly productive
cer. The Administrator's decision shall marine area of Cordell Bank and its
constitute final action by NOAA for surrounding waters and ensure the
purposes of the Administrative proce. continued availability of the ecologi-
dure Act, 5 U.S.C. 551 et seq. cal, research, educatiol, aesthetic,
(e) Any time limit prescribed in this historical and recreational resources
section may be extended by the Ad. therein.
ministrator for good cause for a period I
not to exceed 30 days, either upon his 1942.3 Boundary.
or her own motion or upon written re- The Sanctuary consists of area of
quest from the Appellant, permit ap. marine waters approximately 50 miles
plicant or permittee stating the West-northwest of San Francisco, Call-
reason(s) therefor. fornia. The Sancturary consists of a
397.05 square nautical mile ex-
PART 942-CORDELL BANK tending at 1800 from the northernmost
NATIONAL MARINE SANCTUARY boundary of the Point Reyes- on
Islands National Marine Sanctuary
to the 1,000 fathom bath
Sec. northwest of the Bank, then South
942.1 Authority. along this isobath to the PRNMS
942.2 Purpose. boundary and back to the northwest
942.3 Boundary. along this boundary to the beginning
942.4 Definitions. point. The boundary coordinates are
942.5 Allowed activities. listed in Appendix I following 942.10.

284

I
o

Iw
,7!:; , "--,
14*
- Part 942
11 Cordell Bank -
National Marine Sanctuary
Regulations

942.1

upon the appeal. The Administrator
shall decide the appeal using the crite-
ria set out in 941.11 (a), (c) and (d)
and any information relative to the
application on file, any information
provided by the Appellant, and such
other consideration as is deemed ap-
propriate. The Administrator shall
notify the Appellant of the final deci-
sion and the reason(s) therefor in writ-
ing. normall within 30 days of the
date of the receipt of adequate infor-
mation required to make the decision.
(c) If a hearing is requested or if the
Administrator determines that one is
appropriate, the Administrator may
grant an informal hearing before a
Hearing Officer appointed for that
purpose. The Appellant and any other
interested persons may appear person-
ally or by counsel at the hearing and
submit materal and present argu-
ments as determined appropriate by
the Hearing Officer. Within 30 days of
the last day of the hearing, the Hear-
ing Officer shall recommend a decision
in writing to the Administrator.
(d) The Administrator may adopt
the Hearing Officer's recommended
decision, in whole or in part, or may
reject or modify it. If any event, the
Administrator shall notify the inter-
ested persons of his or her decision,
and reason(s) therefor in writing
within 30 days of receipt of the recom-
mended decision of the Hearing Offi-
cer. The Administrator's decision shall
constitute final action by NOAA for
purposes of the Administrative Proce-
dure Act, 5 U.S.C. 551 et seq.
(e) Any time limit prescribed in this
section may be extended by the Ad-
ministrator for good cause for a period
not to exceed 30 days, either upon his
or her own motion or upon written re-
quest from the Appellant, permit ap-
plicant or permittee stating the
reason(s) therefor.

PART 942--CORDELL BANK
NATIONAL MARINE SANCTUARY

Sec.
942.1 Authority.
942.2 Purpose.
942.3 Boundary.
942.4 Definitions.
942.5 Allowed activities.
942.6 Prohibited activities.

15 CFR Ch. IX (1-1-92 Edition)

Sec.
942.7 Penalties
942.8 Permit applications-procedures and
criteria.
942.9 Certification of other authorizations.
942.10 Appeals of administrative action.

APPENDIX I TO PART 942--CORDELL BANK NA-
TIONAL MARINE SANCTUARY BOUNDARY
COORDINATES.

AUTHORITY: Secs. 303, 304, 305, and 307 of
Title III of the Marine Protection, Re-
search, and Sanctuaries Act of 1972, as
amended, 16 U.S.C. 1433, 1434, 1435, and
1437; section 2 of Pub. L. No. 101-74, 103
Stat. 554; Designation Document for the
Cordell Bank National Marine Sanctuary,
Artice 4, section 1(c).

SOURCE: 54 FR 22423, May 24, 1989, unless
otherwise noted.

942.1 Authority.
The Sanctuary has been designated
by the designee of the Secretary of
Commerce pursuant to the authority
of Title III of the Marine Protection,
Research, and Sanctuaries Act of 1972,
as amended, 16 U.S.C. 1431 et seq,
("Act"). The regulations in this part
are issued pursuant to the authority
of sections 303, 304, 305, and 307 of
the Act.

942.2 Purpose.
The purpose of designating the
Sanctuary is to protect and conserve
the special, discrete, highly productive
marine area of Cordell Bank and its
surrounding waters and to ensure the
continued availability of the ecologi-
cal, research, educational, aesthetic,
historical and recreational resources
therein.

942.3 Boundary.
The Sanctuary consists of an area of
marine waters approximately 50 miles
west-northwest of San Francisco, Cali-
fornia. The Sanctuary consists of a
397.05 square nautical mile area ex-
tending at 180 from the northernmost
boundary of the Point Reyes-Farallon
Islands National Marine Sanctuary
(PRNMS) to the 1,000 fathom isobath
northwest of the Bank, then south
along this isobath to the PRNMS
boundary and back to the northwest
along this boundary to the beginning
point. The boundary coordinates are
listed in Appendix I following 942.10.

284

National Oceanic and Atmospheric Adm., Commerce � 942.6
� 942.4 Definitions. terials or substances of any kind
(a) Act means Title III of the Marine except:
Protection, Research, and Sanctuaries (A) Fish, fish parts and chumming
Act of 1972, as amended, 16 U.S.C. materials (bait) produced and discard-
1431 et seq. ed during routine fishing activities
(b) Administrator means the Admin- conducted in the Sanctuary: and
istrator of the National Oceanic and (B) Water (including cooling water)
Atmospheric Administration (NOAA), and other biodegradable effluents inci-
U.S. Department of Commerce, or des- dental to use of a vessel in the Sanctu.
ignee. ary and generated by: Marine sanita.
(c) Assistant Administrator means tion devices approved by the United
the Assistant Administrator for Ocean States Coast Guard; routine vessel
Services and Coastal Zone Manage- InAinteriance, eg., deck wash down;
ment, National Ocean Service, NOAA. engine exhaust; or meals on board ves.
or designee. sels.
(d) Injure means to change adverse- (ii) Depositing or discharging, from
ly, either in the long- or short-term, a any location beyond the boundaries of
chemical or physical quality of, or the the Sanctuary, materials or substances
viability of, a Sanctuary resource. of any kind, except for the exclusions
(e) Person means any private individ- listed in paragraph (a)(1)(i) of this sec-
ual. partnership, corporation, or other tion, which enter the Sanctuary and
entity; or any officer, employee, agent, injure a Sanctuary resource.
department, agency or instrumentality (2) Removing, taking, or injuring
of the Federal government, any state sanctuary resources. Removing,
or local government, or any foreign taking, or injuring or attempting to
government. remove, take. or injure benthic inver-
(f) Sanctuary means the Cordell tebrates or algae located on Cordell
Bank National Marine Sanctuary. Bank or within the 50 fathom isobath
(g) Sanctuary resource means a surrounding the Bank. There is a re-
living or non-living resource of the buttable presumption that any such
Sanctuary that contributes to its con- resource found in the possession of. a
servation, recreational, ecological, his- person within the Sanctuary was
torical, research, educational. or aes- taken or removed by that person. This
thetic value. prohibition does not apply to acciden-
Other termn appearing in these regu- tal removal, injury, or takings during
lations are defined in 15 CPR 922.2. normal fishing operations.
f 942.5 Allowed activities. (3) Mmloring for, or developing or
producing, oi4 gas, or mineralL Explo-
All activities except those prohibited ration for. or development or produc-
by 1942.6 may be conducted within tion of, oil. gas, or minerals in any
the Sanctuary subject to all other pro- area of the Sanctuary.
hibitions, restrictions, and conditions (b) All activities being carried out by
imposed by any other authority. the Department of Defense (DOD)
6 942.6 Prohibited activities. within the Sanctuary on the effective
date of designation that are necessary
(a) Except as necessary for national for national defense are exempt from
defense, as necessary to respond to an the prohibitions contained In these
emergency threatening life, property regulations. Additional DOD activities
or the environment, or as permitted or initiated after the effective date of
certified by the Assistant Administra- designation that are necessary for na-
tor in accordance with 1�942.8 and tional defense will be exempted by the
942.9. the following activities are pro- Assistant Administrator after consul.
hibited and thus unlawful for any tation between the Department of
person to conduct: Commerce and DOD. DOD activities
(1) Depositing or discharging mar- not necessary for national defense.
tertaZs or substanceL W Depositing or such as routine exercises and vessel
discharging, from any location within operations, are subject to all prohibl-
the boundaries of the Sanctuary. ma. tions contained In these regulations.

285

� 942.7 15 CFR Ch. IX (1-1-92 Edition)
(c) The prohibitions in this section describing relevant experience) in-
are applicable to foreign persons and volved, and a timetable for completion
foreign flag vessels only to the extent of the proposed activity. Copies of all
consistent with generally recognized other required permits, licenses, ap.
principles of international law, and in provals, and other authorizations shall
accordance with treaties, conventions, be attached.
and other international agreements to (c) Upon receipt of a complete appli-
which the United States is a party. cation, the Assistant Administrator
(d) Where necessary to prevent im- may seek the views of any person,
mediate, serious, and irreversible within or outside the Federal Govern-
damage to a Sanctuary resource, any ment, and may hold a public hearing,
activity may be regulated within the at his or her discretion.
limits of the Act on an emergency (d) The Assistant Administrator, at
basis for no more than 120 days. his or her discretion, may issue a
(54 FR 22423, May 24. 1989. as amended at permit subJect to such terms and con.
54 FR 52343. Dec. 21, 19891 ditions as deemed appropriate, to con.
duct an activity otherwise prohibited
9 942.7 Penalties. by 1942.6, if the Assistant Administra-
(a) Section 307(c) of the Act author- tor finds that the activity will further
izes the assessment of a civil penalty research related to Sanctuary re-
of not more than $50,000 for each vio- sources; further the educational or
lation of the Act or any regulation or historical value of the Sanctuary; fur.
permit issued pursuant to the Act. ther salvage or recovery operations in
Each day of a continuing violation or near the Sanctuary in connection
constitutes a separate violation. Sec. with a recent air or marine casualty;
tion 307(c)(3) further authorizes a pro- or assist in the management of the
ceeding in Yen against any vessel used Sanctuary. In deciding whether to
in such violation and for which a civil issue a permit, the Assistant Adminis.
penalty has been assessed. trator may consider such factors as
(b) Regulations setting forth the ad- the professional qualifications and fi-
ministmtive procedures governing the nancial ability of the applicant as re-
assessment of civil penalties, enforce- lated to the proposed activity; the ap-
ment hearings and appeals, permit propriateness of the methods and pro-
sanctions and denials for enforcement cedures proposed by the applicant for
reasons, and the issuance of written the conduct of the activity; the extent
warnings appear at 15 CFR part 904. to which the conduct of the activity
may Mmin' h or enhance the values
6 942.8 Permit applications.-procedures for which the Sanctuary was designat-
and criteria. ed; and the end value of the appll-
(a) If a person wishes to conduct an cant's overall activity.
activity prohibited under 1942.6, that (e) A permit issued pursuant to this
person must apply for. receive, and section is nontransferable.
have in possession on board any vessel M The Assistant dm1nistrator may
used a valid permit issued pursuant to amend, suspend or revoke a permit
this part authorizing that person to issued pursuant to this subsection, In
conduct that activity. whole or in part, If the Assistant Ad-
(b) Permit applications shall be ad- ministrator determines that the per.
dressed to the Assistant Administra- m1ttee has acted In violation of the
tor, Ocean Services and Coastal Zone term or conditions of the permit or of
Management ATTN: Marine and Es- these regulations or that other good
tuarine Management Division, Office cause exists for amending. suspending
of Ocean and Coastal Resource Man- or revoking the permit. Any such
agement, National Ocean Service, Na- action shall be V"21" In writ-
tional Oceanic and Atmospheric Ad- ing to the permittee, and shall set
ministration, 1825 Connecticut Avenue forth the reason(s) for the action
NW., Washington. 13C 20235. An appll- taken. Procedures governing permit
cation shall include a description of all sanctions and denials for enforcement
activities proposed. the equipment, reasons are found at subpart D of 15
methods, and personnel (particularly CPR part 04.

286

National Oceanic and Atmospheric Adm.? Commerce � 942.10
6942.9 Certification of other authoriza. cordance with the Procedure Provided
tions. for in J 942.10.
(a) AD permits, licenses, approvals,
and other authorizations issued pursu- 0 942.10 Appeals of administrative action.
ant to any authority are valid within (a) Except for permit actions taken
the Sanctuary subject only to the pro- for enforcement reasons and therefore
hibitions set forth In 1942.6. All appli- covered by the procedures at subpart
cable regulatory programs remain in D of 15 CFR part 904, an applicant for
effect. a permit, a permittee, or any other in.
(b) A permit, license, approval, or terested person (hereinafter appel-
other authorization allowing the dis- lant) may appeal the grant, dental,
charge or deposit of materials or sub- conditioning, amendment, suspension,
stances otherwise prohibited under or revocation of any permit under
J 942.6(a)(1), or the removal, taking, or 1942.8 to the Administrator of NOAA.
injury of, or attempt to remove, take, In order to be considered by the Ad.
or injure benthic invertebrates or ministrator, such appeal must be in
algae otherwise prohibited under writing, must state the action(s) ap-
J 942.6(a)(2) shall be valid if certified pealed and the reason(s) therefor, and
by the Assistant Administrator as con- Must be submitted within 30 days of
sistent with the purpose of the Sanc- the action(s) by the Assistant Adminis-
tuary and having no significant effect trator. The Administrator, in his or
on Sanctuary resources. Such certifi- her discretion. may hold an informal
cation may impose terms and condi- hearing on the appeal.
tions as deemed appropriate to ensure (b) Upon receipt of an appeal au-
consistency. thorized by this section, the Adminis-
M In considering whether to make trator may request the appellant, the
the certifications called for in this sec- permit applicant or permittee, if other
tion, the Assistant Administrator may than the appellant. or any person.
seek and consider the views of any within or outside the Pederal govern-
other person. within or outside the ment, to submit such information as
]Federal government, and may hold a the Administrator may deem appropri.
public hearing as deemed appropriate.
(d) Any certification called for in ate in order to decide the appeal. The
this section shall be presumed unless Administrator shall decide the appeal
the Assistant Administrator acts to based on the record before the Assist-
deny or condition the certification ant Administrator and the record of
within 60 days from the date that the the appeal. The &dmini tra,tor shall
Assistant Administrator receives notify the appella7nt and other inter-
notice of the permit, license, approval, ested persons of the final decision and
or other authorization. and the sup- the reason(s) therefor in writing, nor-
porting data deemed necessary by the mally within 30 days of the date of the
Assistant Administrator in order to receipt of adequate information to
make a decision on the certification. make the decision.
(e) The Assistant Administrator may M If the Administrator determines
amend. suspend, or revoke any certifi- that an informal hearing should be
cation made under this section when- held, the Administrator may designate
ever the continued conduct of the ac- an officer before whom the hearing
tivity would violate any terms or con- shall be held. Notice of the time,
ditions of the certification.. Any such place, and subject matter of the hear-
action shall be communicated In writ- ing shall be published in the P)cDzmL
ing to both the holder of the certified RzarsTm Such hearing shall be held
permit. license, approval, or other au- no later than 30 days following publi-
thoriza,tion and the Issuing agency and cation of the notice in the ftD=4i
shall set forth reason(s) for the action RzrisT=. unless the hearing officer
taken. extends the time for reasons deemed
M Either the holder or the issuing equitable. The appellant, the appli-
agency may appeal any action condi- cant or permittee and other Interested
tioning, denying, amending, suspend- persons may appear personally or by
Inc. or revoking any certification in ac- counsel at the hearing and submit

287

Pt. 942, App. 1
such material and present such argu-
ments as determined appropriate by
the hearing officer. Within 30 days of
the conclusion of the hearing. the
hearing officer shall recommend a de-
cision in writing to the Administrator.
(d) The Administrator may adopt
the hearing officer's recommended de-
cision. in whole or in part, or may
reJect or modify it. In any event, the
Administrator shall notify the appel-
lant and other interested persons
his/her decision, and the reason(s)
therefor in writing within 30 days of
receipt of the recommended decision
of the hearing officer. The Adminis-
trator's decision shall constitute final
agency action for the purposes of the
Administrative Procedure Act.
(e) Any time limit prescribed in this
section may be extended by the Ad-
ministrator for good cause for a period
not to exceed 30 days, either upon his/
her own motion or upon written re-
quest from the appellant, permit ap-
plicant, or permittee, stating the
reason(s) therefor.

APPENDIX I TO PART 942--CORDELL
BANK NATINAL MARINE SANCTUARY
BOUNDARY COORDINATES

15 CFR Ch. IX (1-1-92 Edition)

PART 943--FLOWER GARDEN BANKS
NATIONAL MARINE SANCTUARY

Sec.
943.1 Purpose.
943.2 Boundaries.
943.3 Definitions.
943.4 activities.
943.5 Prohibited activites.
943.6 requirements applicable to
hydrocarbon-drilling discharges.
943.7 Emergency regulation.
943.8 Penalties for commission of prohibit-ed activities.
943.9 National Marine Sanctuary per-
mits--application procedures and issu-
ance criteria.
943.11 Certification of pre-existing leases,
licenses, permits, approvals, other au-
thorizations, or rights to conduct a pro-
hibited activity.
943.12 Notification and review of applica-
tions for leases, licenses, permits, ap-
provals, or other authorizations to con-
duct a prohibited activity.
943.13 Appeals of administrative action.
APPENDIX I TO PART 943-- FLOWER GARDEN
BANKS NATIONAL MARINE SANCTUARY
BOUNDARY COORDINATES
APPENDIX II TO PART 943--COORDINATES FOR
THE DEPARTMENT OF THE INTERIOR ROPO-
GRAPHIC LEASE STIPULATIONS FOR OCS
LEASE SALE .
AUTHORITY: Sections 302, 303, 304, 305,
307, and 310 of title III of the Marine Pro-
tection, Research, and Sanctuaries Act of
1972, as amended, 16 U.S.C. 1431 et seq.

SOURCE: FR 63643, Dec. 5, 1991, unless
otherwise noted.

EFFECTIVE DATE NOTE: At 56 FR 63643,
Dec. 5, 1991, Part 943 was added, effective
"either days after publication in the FED-
ERAL REGISTER or later if the Congress takes
certain adjournments".

288

15.
Part 943
Flower Garden Bartks
National Marine Sanctuary
Regulations

Pt. 942, App. I

such material and present such argu-
ments as determines appropriate by
the hearing officer. Within 30 days of
the conclusion of the hearing, the
hearing officer shall recommend a de-
ceision in writing to the Administrator.
(d) The Administrator may adopt
the hearing officer's recommended de-
cision, in whole or in part, or may
reject or modify it. In any event, the
Administrator shall notify the appel-
lant and other interested persons of
his/her decision, and the reason(s)
therefor in writing within 30 days of
receipt of the recommended decision
of the hearing officer. The Adminis-
trator's decision shall constitute final
agency action for the purposes of the
Administrative Procedure Act.
(e)Any time limit prescribed in this
section may be extended by the Ad
-ministrator for good cause for a period
not to exceed 30 days, either upon his/
her own motion or upon written re-
quest from the appellant, permit ap-
plicant or permittee, stating the
reason(s) therfor.

APPENDIX I TO PART 942--CORDELL
BANK NATIONAL MARINE SANCTUARY
BOUNDARY COORDINATES

15 CFR Ch IX (1-1-92 Edition)

PART 943--FLOWER GARDEN BANKS
NATIONAL MARINE SANCTUARY

Sec.
943.1 Purpose.
943.2 Boundaries.
943.3 Definitions.
943.4 Allowed activities.
943.5 Prohibited activities.
943.6 Shunting requirements applicable to
hydrocarbon-drilling discharges.
943.7 Emergency regulations.
943.8 Penalties for commission of prohibit-
ed activities.
943.9 Response costs and damages.
943.10 National Marine Sanctuary per-
mits-application procedures and issu-
ance criteria.
943.11 Certification of pre-existing leases,
lecenses, permits, approvals, other au-
thorizations, or rights to conduct a pro-
hibited activity.
943.12 Notification and review of applica-
tions for leases, licenses, permits, ap-
provals, or other authorizations to con-
duct a prohibited activity.
943.13 Appeals of administrative action.

APPENDIX I TO PART 943--FLOWER GARDEN
BANKS NATIONAL MARINE SANCTUARY
BOUNDARY COORDINATES
APPENDIX II TO PART 943--COORDINATES FOR
THE DEPARTMENT OF THE INTERIOR TOPO-
GRAPHIC LEASE STIPULATIONS FOR OCS
LEASE SALE 112

AUTHORITY: Sections 302, 303, 304, 305,
307, and 310 of title III of the Marine Pro-
tection. Research, and Sanctuaries Act of
1972, as amended, 16 U.S.C. 1431 et seq.

SOURCE: 56 FR 63643, Dec. 5, 1991, unless
otherwise noted.

EFFECTIVE DATE NOTE: At 56 FR 63643,
Dec. 5, 1991, Part 943 was added, effective
"either 45 days after publication in the FED-
ERAL REGISTER or later if the Congress takes
certain adjournments".

288

National Oceanic and Atmospheric Adm., Commerce � 943.3
� 943.1 PurPose. or electrically operated, hand-held or
The purpose of the regulations in mounted. This term does not include
this part is to implement the designa. bottom longlines.
tion of the Flower Garden Banks Na. (5) Director means the Director of
tional Marine Sanctuary by regulating the Office of Ocean and Coastal Re.
activities affecting the Sanctuary con- source Management, National Oceanic
sistent with the terms of that designa- and Atmospheric Administration.
tion in order to protect and manage (6) Effective date of Sanctuary desig.
the conservation, ecological, recre- nation means the date the regulations
ational, research, educational, histori- implementing the designation of the
cal and esthetic resources and quali- Sanctuary become effective.
ties of the area. (7) Historical resource means a re-
� 943.2 BoundaAes. source Possessing historical, cultural,
archaeological or paleontological sig-
The Flower Garden Banks National nificance, including sites. structuies,
Marine Sanctuary consists of two sep- districts, and objects significantly as-
arate areas of ocean waters over and sociated with or representative of ear-
surrounding the East and West Flower lier people, cultures, and human ac.
Garden Banks, and the submerged tivities and events.
lands thereunder including the Banks. (8) InJure means change adversely.
in the northwestern Gulf of Mexico. either in the long or short term, a
The area designated at the East Bank chemical, biological or physical at.
is located approximately 120 nautical tribute of, or the viability of. To
miles south-southwest of Cameron, "injure" therefore Includes, but is not
Louisiana, and encompasses 19.20 limited to, to cause the loss of and to
square nautical miles, and the area destroy.
designated at the West Bank is located (9) No-activity zone means one of
approximately 110 nautical miles the two geographic areas delineated
southeast of Galveston, Texas, and en-
compasses 22.50 square nautical miles by the Department of the Interior in
The two areas encompass a total oi stipulations for OCS lease sale 112
41.70 square nautical miles (143.21 over and surrounding the East and
square kilometers). The boundary co- West Flower Garden Banks as areas in
ordinates for each area are listed in which activities associated with explo-
appendix I to this part. ration for, development of. or produc-
tion of hydrocarbons are prohibited.
� 943.3 DefinitionL The precise coordinates of these areas
(a) (1) Act means title III of the are provided in appendix 11. These
Marine Protection, Research, and particular coordinates define the geo.
Sanctuaries Act of 1972, as amended, graphic scope of the "no-activity
16 U.S.C. 1431 et seq. zones" for purposes of the regulations
(2) Administrator or Under Secre- in this Part. These coordinates are
tary means the Administrator of the based on the "V4 V4 Y4" system former-
National Oceanic and Atmospheric ly used by the Department of the Inte-
Administration/Under Secretary of rior, a method that delineates a specif-
Commerce for Oceans and Atmos- ic portion of a block rather than the
phere. actual underlying isobath.
(3) Assistant Administrator means (10) Person means any private indi-
the Assistant Administrator for Ocean vidual, partnership. corporation, or
Services and Coastal Zone Manage. other entity: or any officer. employee,
ment, National Ocean Service, Nation- agent, agency, department or instru.
al Oceanic and Atmospheric Adminis- mentality of the Federal government.
tration. of any State or local unit of govern.
(4) Conventional hook and line gear ment, or of any foreign government.
means any fishing apparatus operated (11) Sanctuary means the Flower
aboard a vessel and composed of a Garden Banks National Marine Sanc-
single line terminated by a combina. Wary.
tion of sinkers and hooks or lures and (12) Sanctuary quality means a Pat.
spooled upon a reel that may be hand- ticular and essential characteristic of

289

� 943.4 15 CFR Ch. IX (1-1-92 Edition)
the Sanctuary, including but not limit- (3) Anchoring a vessel of less than or
ed to water quality and air quality. equal to 100 feet (30.48 meters) in reg-
(13) Sanctuary resource means any istered length within an area of the
living or non-living resource of the Sanctuary where a mooring buoy is
Sanctuary that contributes to its con- available.
servation, recreational, ecological, his- (4) Anchoring a vessel within the
torical, research, educational or es- Sanctuary using more than fifteen
thetic value, including, but not limited feet (4.57 meters) of chain or wire rope
to, carbonate rock, corals and other attached to the anchor.
bottom formations, coralline algae and (5) Anchoring a vessel within the
other plants, marine invertebrates, Sanctuary using anchor lines (exclu-
brine-seep biota, fish, turtles and sive of the anchor chain or wire rope
marine mammill . permitted by paragraph (a)(4) of this
(14) Shunt means to discharge ex- section) other than those of a soft
pended drilling cuttings and fluids fiber or nylon, polypropylene, or simi-
near the ocean seafloor. lar material.
(15) Vessel means a watercraft of (6) Discharging or depositing, from
any description capable of being used within the boundaries of the Sanctu-
as a means of transportation in the ary, any material or other matter
waters of the Sanctuary. except:
(b) Other terms appearing in the (i) Fish, fish parts, chumming mate-
regulations in this Part are defined at rials or bait used in or resulting from
15 CFIR 922.2 and/or in the Marine fishing with conventional hook and
Protection, Research, and Sanctuaries line gear. in the Sanctuary;
Act of 1972, as amended (33 U.S.C. (ii) Biodegradable effluents inciden-
1401 et seq. and 16 U.S.C. 1431 et seq.). tal to vessel use and generated by
marine sanitation devices approved in
0 943.4 Allowed activitim accordance with section 312 of the
All activities except those prohibited Federal Water Pollution Control Act,
by 1943.5 may be undertaken subject as amended, 33 U.S.C. 1322;
to the requirements of J 943.6, subject (iii) Water generated by routine
to any emergency regulations promul- vessel operations (ag., cooling water,
gated pursuant to � 943.7. and subject deck wash down, and graywater as de-
to all prohibitions. restrictions, and fined by section 312 of the Federal
conditions validly imposed by any Water Pollution Control Act, as
other Federal authority of competent amended, 33 U.S.C. 1322) excluding
Jurisdiction. If any valid regulation oily wastes from bilge pumping. or
issued by any Federal authority of (1v) Engine exhaust.
competent Jurisdiction. regardless Of The prohibitions in this paragraph
when issued, conflicts with a Sanctu- (a)(6) do not apply to the discharge, in
ary regulation, the regulation deemed areas of the Sanctuary outside the no-
by the Director or designee as more activity zones, of drilling cuttings and
protective of Sanctuary resources and drilling fluids necessarily discharged
qualities shall govern. incidental to the exploration for, de-
943.5 Prohibited activitie& velopment of, or production of oil or
gas in those areas unless such dW
(a) Except as specified in paragraphs charge injures a Sanctuary resource or
(c) through (h) of this section. the fol- Quality. (See 1943.6 for the shunting
lowing activities are prohibited and requirement applicable to such dis-
thus unlawful for any person to con- charges.)
duct or cause to be conducted: (7) Discharging or depositing, from
(1) Exploring for, developing or pro- beyond the boundaries of the Sanctu-
ducing oil. gas or minerals within a no- ary, any material or other matter,
activity zone. except those listed in paragraphs
(2) Anchoring or otherwise mooring (a)(6)(i) through (tv) of this section.
within the Sanctuary a vessel greater that subsequently enters the Sanctu-
than 100 feet (30.48 meters) in regis- ary and injures a Sanctuary resource
tered length. or Quality.

290

Notional Oceanic and Atmospheric Adm., Commerce � 943.5
(8) Drilling into, dredging or other- (c) The Prohibitions in paragraphs
wise altering the seabed of the Sanctu- (a)(2), (4), (5), (8) and (14) of this sec-
ary (except by anchoring); or con- tion do not apply to necessary activi-
structing, placing or abandoning any ties conducted in areas of the Sanctu-
structure, material or other matter on ary outside the no-activity zones and
the seabed of the Sanctuary. incidental to exploration for. develop.
(9) Injuring or removing, or attempt- ment of, or production of oil or gas in
ing to injure or remove, any coral or those areas.
other bottom formation. coralline (d) The Prohibitions in paragraphs
algae or other plant, marine inverte- (a)(2) through (14) of this section do
brate, brine-seep biota or curbonate not apply to activities necessary to re-
rock within the Sanctuary. spond to emergencies threatening life,
(10) Taking any marine mammal or property, or the environment.
turtle within the Sanctuary, except as (e)(1) The prohibitions in para-
permitted by regulations, as amended, graphs (a)(2) through (14) of this sec-
promulgated under the Marine tion do not apply to activities being
Mammal Protection Act, as amended, carried out by the Department of De-
16 U.S.C. 1361 et 3eq., and the Endan- fense as of the eff ective date of Sanc-
gered Species Act. as amended, 16 tuary designation. Such activities shall
U.S.C. 1531 et 3eq. be carried out in a manner that mini-
(11) Injuring. catching, harvesting, mizes any adverse impact on Sanctu-
collecting or feeding, or attempting to ary resources and qualities. The prohi-
injure, catch, harvest, collect or feed. bitions in paragraphs (a)(2) through
any fish within the Sanctuary by use (14) of this section do not apply to any
of bottom longlines, traps, nets. new activities carried out by the De-
bottom trawls or any other gear, partment of Defense that do not have
device, equipment or means except by the potential for any significant ad-
use of conventional hook and line verse impacts on Sanctuary resources
gear. or qualities. Such activities shall be
(12) Possessing within the Sanctuary carried out in a manner that mini-
mizes any adverse impact on Sanctu-
(regardless of where collected, caught, ary resources and qualifies. New activi-
harvested or removed), except for ties with the potential for significant
valid law enforcement purposes, any adverse impacts on Sanctuary re-
carbonate rock, coral or other bottom sources or qualities may be exempted
formation, coralline algae or other from the prohibitions in paragraphs
plant, marine invertebrate, brine-seep (a)(2) through (14) of this section by
biota, or fish (except for fish caught by the Director or designee after consul-
use of conventional hook and line tation between the Director or desig-
gear). nee and the Department of Defense. If
(13) Possessing or using within the it is determined that an activity may
Sanctuary, except possessing while be carried out. such activity shall be
passing without interruption through carried out in a manner that mini.
it or for valid law enforcement pur- mizes any adverse impact on Sanctu.
poses, any fishing gear, device, equip- ary resources and qualities.
ment or means except conventional (2) In the event of threatened or
hook and line gear. actual destruction of, loss of, or injury
(14) Possessing, except for valid law to a Sanctuary resource or quality re-
enforcement purposes, or using explo- sulting from an untoward incident, in-
sives or releasing electrical charges cluding but not limited to spins and
within the Sanctuary. groundings, caused by a component of
W The regulations in this part shall the Department of Defense. the cogni-
be applied to foreign persons and for- zant component shall promptly coordi-
eign vessels in accordance with gener- nate with the Director or designee for
ally recognized principles of interna- the purpose of taking appropriate ac-
tional law, and in accordance with tions to respond to and mitigate the
treaties, conventions, and other inter- harm and. if possible, restore or re-
0 national agreements to which the place the Sanctuary resource or Qual-.
United States Is a party. ity.

291

� 943.6 15 CFR Ch. IX (1-1-92 Edition)
(f) The prohibitions in paragraphs gas or minerals in a no-activity zone
(a)(2) through (14) of this section do and issued after the effective date of
not apply to any activity executed in Sanctuary designation shall be invalid.
accordance with the scope, purpose,
terms, and conditions of a National � 943.6 Shunting requirements applicable
Marine Sanctuary permit issued pur- to hydrocarbon-drilling discharges.
suant to � 943.10 or a Special Use Persons engaged in the exploration
permit issued pursuant to section 310 for, development of, or production of
of the Act.* oil or gas in areas of the Sanctuary
(g) The prohibitions in paragraphs outside the no-activity zones must
(a)(2) through (14) of this section do shunt all drilling cuttings and drilling
not apply to any activity authorized
by a valid lease, permit, license, ap- fluids to the seabed through a down-
proval, or other authorization in exist. pipe that terminates an appropriate
ence on the effective date of Sanctu. distance, but no more than ten meters,
ary designation and issued by any Fed. from the seabed.
eral authority of competent jurisdic-
tion, or by any valid right of subsist- 9 943.7 Emergency regulations.
ence use or access in existence on the Wbere necessary to prevent or mini-
effective date of Sanctuary designa. mize the destruction of loss of, or
tion, provided that the holder of such injury to a Sanctuary resource or qual-
authorization or right complies with ity, or minimize the imminent risk of
1943.11 and with any terms and condi- such destruction, loss or injury, any
tions on the exercise of such lease, and all activities are subject to imme-
permit, license, approval, other au- diate temporary regulation, including
thorization, or right imposed by the prohibition.
Director or designee as a condition of
certification as he or she deems neces- 0 943.8 Penalties for commission of pro-
sary to achieve the purposes for which hibited activities.
the Sanctuary was designated.
(h) The prohibitions in paragraphs (a) Each violation of the Act, any
(a)(2) through (14) of this section do regulation in this part, or any permit
not apply to any activity authorized issued pursuant thereto, is subject to a
by any lease, permit, license, approval civil penalty of not more than $50.000.
or other authorization issued after the Each day of a continuing violation
effective date of Sanctuary designa- constitutes a separate violation.
tion, provided that the applicant com- (b) Regulations setting forth the
plies with 1943.12, the Director or des- procedures governing administrative
ignee notifies the applicant and au- proceedings for assessment of civil
thorizing agency that he or she does penalties, permit sanctions and denials
not object to issuance of the authori- for enforcement reasons, issuance and
zation, and the applicant complies use of written warnings, and release or
with any terms and conditions the Di- forfeiture of seized property appear at
rector or designee deems necessary to 15 CFR part 904.
protect Sanctuary resources and quali-
ties. 1943.9 Response coats and damages.
W Notwithstanding paragraphs (f), Under section 312 of the Act, any
(g) and (h) of this section, in no event person who destroys, causes the loss
may the Director or designee issue a Of, or injures any sanctuary resource is
National Marine Sanctuary permit liable to the United States for re-
under 1943.10 or a Special Use permit
under section 310 of the Act authoriz- 8POnse costs and damages resulting
ing, or otherwise approve, the explora- from such destruction, loss. or injury.
tion for, development of, or produc. and any vessel used to destroy, cause
tion of oil. gas or minerals in a no-ac- the low of, or injure any sanctuary re-
tivity zone, and any leases. licenwa, source Is liable In rem to the United
permits, approvals, or other authoriza- States for response costs and damages
tions authorizing the exploration for, resulting from such destruction. loss,
development of. or production of oU. or injury.

292

National Oceanic and Atmospheric Adm., Commerce � 943.10
� 943.10 National Marine Sanctuary per- duration of its effects; the appropri-
mite-Application procedures and issu- ateness of the methods and procedures
ance criteria. proposed by the applicant for the con-
(&) A person may conduct an activity duct of the activity; the extent to
prohibited by � 943.5(a)(2) through which the conduct of the activity may
(14) if conducted in accordance with diminish or enhance Sanctuary re-
the scope, purpose, terms, and condi- sources and qualities; the cumulative
tions of a permit issued under this sec- ef fects of the activity; and the end
tion. value of the activity. In addition, the
(b) Applications for such permits Director or designee may consider
should be addressed to the Director of such other f actors as he or she deems
the Office of Ocean and Coastal Re- appropriate.
source Management; ATTN: Sanctuar- (e) A permit issued Pursuant to this
ies and Reserves Division. Office of section is nontransferable.
Ocean and Coastal Resource Manage- (f) The Director or designee may
ment, National Ocean Service, Nation- amend, suspend, or revoke a permit
al Oceanic and Atmospheric Adminis-
tration, 1825 Connecticut Avenue, issued Pursuant to this section or deny
NW., Washington, DC 20235. An appli- a permit application pursuant to this
cation must include a detailed descrip- section, in whole or in part, if it is de.
tion of the proposed activity including termined that the permittee or appli.
a timetable for completion of the ac- cant has acted in violation of the
tivity and the equipment, personnel, terms or conditions of the permit or of
and methodology to be employed. The these regulations or for other good
qualifications and experience of all cause. Any such action shall be com-
personnel must be set forth in the ap- municated in writing to the permittee
plication. The application must set or applicant and shall set forth the
forth the potential effects of the activ- reason(s) for the action taken. Proce.
ity, if any, on Sanctuary resources and dures governing permit sanctions and
qualities. Copies of all other required denials for enforcement reasons are
licenses, permits. approvals, or other set forth in subpart D of 15 CFR part
authorizations must be attached. 904.
(c) Upon receipt of an application, (g) It shall be a condition of any
the Director or designee may request permit issued that the permit or a
such additional information from the copy thereof be displayed on board all
applicant as he or she deems necessary vessels or aircraft used in the conduct
to act on the application and may seek of the activity.
the views of any persons.
(d) The Director or designee, at his (h) The Director or designee may.
or her discretion, may issue a permit , inter alia, make it a condition of any
subject to such terms and conditions permit issued that any information ob-
as he or she deems appropriate, to tained under the permit be made avail-
conduct an activity prohibited by able to the public.
I 943.5(a)(2) through (14), if the Direc- (i) The Director or designee may.
tor or designee finds that the activity inter alia, make it a condition of any
will: further research related to Sanc- permit issued that a NOAA official be
tuary resources: further the educa- allowed to observe any activity con-
tional, natural or historical resource ducted under the permit and/or that
value of the Sanctuary;. further sal, the permit holder submit one or more
vage or recovery operations in or near reports on the statutes, progress, or re-
the Sanctuary in connection with a sults of any activity authorized by the
recent air or marine casualty; or assist permit.
in managing the Sanctuary. In decid- (J) The applicant for or holder of a
ing whether to issue a permit, the Di- National Maxine Sanctuary permit
rector or designee shLU consider such may appeal the dental, conditioning,
0 factors as: The professional qualifica- amendment, suspension, or revocation
tions and financial abiHty of the appli-
cant as related to the'proposed activi- 'Of the permit in accordance with the
ty; the duration of the activity and the procedures set forth In 1943.13.

293

943.11 15 CFR Ch. IX (1-1-92 EdIflon)
9 943.11 Certification of pre-existing which the authorization has been
leases, licenses, permits, approvals, issued, or the right given, is prohibited
other authorizations, or rights to con- under I 943.5(a)(2) through (14).
duct a prohibited activity. (d) Requests for findings or certifica-
(a) The prohibitions set forth in tions should be addressed to the Direc-
943.5(a)(2) through (14) do not apply tor, Office of Ocean -and Coastal Re-
to any activity authorized by a valid source Management; XLIN: Sanctuar-
lease, permit, license, approval or ies and Reserves Division, Office of
other authorization in existence on Ocean and Coastal Resource Manage-
the effective date of Sanctuary desig- ment, National Ocean Service, Nation-
nation and issued by any Federal au- al Oceanic and Atmospheric Adminis-
thority of competent Jurisdiction, or tration, 1825 Connecticut Avenue NW..
by any valid right of subsistence use or Washington, DC 20235. A copy of the
access in existence on the effective lease, permit, license, approval or
date of Sanctuary designation, provid- other authorization must accompany
ed that: the request.
(1) The holder of such authorization (e) The Director or designee may re-
or right notifies the Director designee, quest additional information from the
in writing, within 90 days of the effec- certification requester as or he deems
tive date of Sanctuary designation. Of necessary to condition appropriately
the existence of such authorization or the exercise of the certified authoriza-
right and requests certification of tion or right to achieve the Purposes
such authorization or right; for which the Sanctuary was designat-
(2) The holder complies with the ed. The information requested must be
other provisions of this 1943.11; and received by the Director or designee
(3) The holder complies with any within 45 days of the postmark date of
ternin and conditions on the exercise the request. The Director or designee
of such authorization or right imposed may seek the views of my Persons On
as a condition of certification, by the the certification request.
Director or designee, to achieve the - (f) The Director or designee may
purposes for which the Sanctuary was amend any certification made under
designated. this section whenever additional Infor-
(b) The holder of a valid lease, mation becomes avagable Justifying
permit, license, approval or other au- such an amendment.
thorization in existence on the effec- (g) The Director or designee abs,11
tive date of Sanctuary designation and communicate my decision on a certifi-
issued by any Federal authority of cation request or any action taken
competent Jurisdiction. or of my valid with respect to my certification made
right of subsistence use or access in under this section. In writing. to both
existence on the effective date of e holder of the certified lease,
sanctuary designation, authorizing an th
activity prohibited by 1 943.5(a)(2) permit, license. approval, other au-
through (14) may conduct the activity thorization or right, and the Issuing
without being in violation of 1943.5, agency, and shall set forth the
pending final agency action on his or reason(s) for the decision or action
her certification request, provided the taken.
holder is in compliance with this (h) Any time limit Prescribed in Or
1943.11. established under this section may be
(c) Any holder of a valid lease, extended by the Director or designee
permit. license. approval, or other au- for good cause.
thorization in existence On the effec- (I) The holder may appeal any
tive date of Sanctuary designation and action conditioning. amending. Rus-
issued by any Federal authority of Pending, or revoking any certification
competent Jurisdiction. or any holder in accordance with the procedures set
of a vaUd right of subsistence use Or forth in 1943-13.
access in existence on the effective (j) Any amendment, renewal or ex-
date of Sanctuary designation may re, tension not in existence on the effec.
quest the Director or designee to issue tive date of Sanctuary designation of a
a finding as to whether the activity for lease, Permit. license. APPrOVUL Other

294

National Oceanic and Atmospheric Adm., Commerce � 943.13
authorization or right is subject to the applicant as he or she deems necessary
provisions of � 943.12. to determine whether to object to issu.
ance of such lease, license, permit, ap-
9 943.12 Notification and review of appli- proval or other authorization (or to is-
cations for legmes, licenses, permits, ap- suance of an amendment, extension or
provals, or other authorizations to con- renewal of such authorization), or
duct a prohibited activitY. what terms and conditions are neces-
(a) The prohibitions set forth in sary to protect Sanctuary resources
943.5(a) (2) through (14) do not and qualities. The information re-
apply to any activity authorized by quested must be received by the Direc-
any valid lease, permit, license, ap- tor or designee within 45 days of the
proval or other authorization issued postmark date of the request. The Di-
after the effective date of Sanetuary rector or designee may seek the views
designation by any Federal authority of any persons on the application.
of competent Jurisdiction, provided (e) The Director or designee shall
that: notify, in writing, the agency to which
(1) The applicant notifies the Direc- application has been made of his or
tor or designee, in writing, of the aP- her review of the application and pos.
plication for such authorization (and sible objection to issuance. After
of any application for an amendment, review of the application and informa.
renewal or extension of such authori- tion received with respect thereto, the
zation) within fifteen (15) days of the Director or designee shall notify both
date of application or of the effective the agency and applicant, in writing,
date of Sanctuary designation, which- ;;hether he or she has an objection to
ever is later; issuance and what terms and condi-
(2) The applicant complies with the tions he or she deems necessary to
other provisions of this � 943.12; protect Sanctuary resources and quali-
(3) The Director or designee notifies ties. The Director or designee shall
the applicant and authorizing agency state the reason(s) for any objection
that he or she does not object to issu- or the reason(s) that any terms and
ance of the authorization (or amend- conditions are deemed necessary to
ment, renewal or extension); and protect Sanctuary resources and Quall-
(4) The applicant complies with any ties.
terms and conditions the Director or (f) The Director or designee may
designee deems necessary to protect amend the terms and conditions
Sanctuary resources and qualities. deemed necessary to protect Sanctu-
(b) Any potential applicant for a ary resources and Qualities whenever
lease, permit, license, approval or additional information becomes avail-
other authorization from any Federal able justifying such an amendment.
authority (or for an amendment. re- (g) Any time limit prescribed in or
newal or extension of such authoriza- established under this section may be
tion) may request the Director or des- extended by the Director or designee
ignee to issue a finding as to whether for good cause.
the activity for which in application is
intended to be made is prohibited by (h) The applicant may appeal any
I 943.5(a) (2) through (14). objection by. or terms or conditions
W Notification of findings should be imposed by. the Director or designee
addressed to the Director, Office Of to the Assistant Administrator or des-
Ocean and Coastal Resource Manage- ignee In accordance with the proce-
ment; ATTN: Sanctuaries and Re- dures set forth in 1943.13.
serves Division. Office of Ocean and 1943.13 Appeals of administuitive acUon.
Coastal Resource Management, Na-
tional Ocean Service, National Oceanic (a) Except for permit actions taken
and Atmospheric Administration, 1825 for enforcement reasons (see subpart
Connecticut Avenue NW., Washing- D of 15 CPR part 904 for applicable
ton. DC 20235. A copy of the applica- procedures), an applicant for. or a
tion must accompany the notification. holder of, a � 943.10 National Marine
40 (d) The Director or designee may re- Sanctuary permit, an applicant for. or
quest additional information from the a holder of, a section 3 10 of the Act

295

943.13

Special Use permit, a 943.11 certifica-
tion requester, or a 943.12 applicant
(hereinafter appellant) may appeal to
the Assistant Administrator or desig-
nee:
(1) The grant, denial, conditioning,
amendment, suspension, or revocation
by the Director or designee of a Na-
tional Marine Sanctuary or Special
Use permit;
(2) The conditioning, amendment,
suspension, or revocation of a certifi-
cation under 943.11; or
(3) The objection to issuance or the
imposition of terms and conditions
under 943.12.
(b) An appeal under paragraph (a)
of this section must be in writing,
state the action(s) by the Director or
designee appealed and the reason(s)
for the appeal, and be received within
30 days of the action(s) by the Direc-
tor or designee. Appeals should be ad-
dressed to the Assistant Administra-
tor, Office of Ocean and Coastal Re-
source Management, ATTN: Sanctuary-
ies and Reserves Division, Office of
Ocean and Coastal Resource Manage-
ment National Ocean Service, Nation-
al Oceanic and Atmospheric Adminis-
tration, 1825 Connecticut Avenue,
NW., Washington, DC 20235.
(c) While the appeal is pending, ap-
pellants requesting certification pursu-
ant to 943.11 who are in compliance
with such section may continue to con-
duct their activities without being in
violation of the prohibitions in
943.5(a) (2) through (14). All other
appellants may not conduct their ac-
tivities without being subject to the
prohibitions in 943.5(a) (2) through
(14).
(d) The Assistant Administrator or
designee may request the appellant to
submit such information as the Assist-
ant Administrator or designee deems
necessary in order for him or her to
decide the appeal. The information re-
quested must be received by the As-
sistant Administrator or designee
within 45 days of the postmark date of
the request. The Assistant Administrator
or designee may hold an informal
hearing on the appeal. If the Assistant
Administrator or designee determines
that an informal hearing should be

15 CFR Ch. IX (1-1-92 Edition)

held, the Assistant Administrator or
designee may designate an officer
before whom the hearing shall be
held. The hering officer shall give
notice in the FEDERAL REGISTER of the
time, place, and subject matter of the
hearing. The appellant and the Direc-
tor or designee may appear personally
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 Ad-
ministrator or designee.
(e) The Assistant Administrator or
designee 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 or designee and any in-
formation submitted regarding the
appeal, and, if a hearing has been
held, on the record before the hearing
officer and the hearing officer's rec-
ommended decision. The Assistant Ad-
ministrator or designee shall notify
the appelant of the final decision and
the reason(s) therefor in writing. the
Assistant Administrator or designee's
decision shall constitute final agency
action for the purposes of the Admin-
istrative Procedure Act.
(f) Any time limit prescribed in or
established under this section other
than the 30 day limit for filling an
appeal may be extended by the Assist-
ant Administrator, designee, or hear-
ing officer for good cause.

APPENDIX I TO PART 943--FLOWER
GARDEN BANKS NATIONAL MARINE
SANCTUARY BOUNDARY COORDINATES

The boundary coordinates are based
on geographic positions of the North
American Datum of 1927 (NAD 27).

National Oceanic and Atmospheric Adm., Commerce � 943.13
Point No. LaMide Longrtude N W V4, N E V4. S W 1/4; N E V,. N Vr V,, S W y,
NE1/4, SEV4, SWY4;
....... ... 27*14'03*35" 93*34'18*42" NEV4, NEV., SEV4; W112, NEV., SEV.;
E-10 .................................... 27-53'25.95" 93*35'03.79" SEV4; NWV4, SWI/4, SEIK;
E-1 I .................................... 27*52'51.14" 93-36-57.59,, Block A-389
NEV4, NWV4; NWY4. NW1/4. SWY4, NW11.,
West Flower Garden Bank NEA, SEV4. NWI/4; WV2, SEIA, NWI/4,
NV2, NWV4, SWV4.
W-1 ..................................... 27*49'09.24" 93*50'43.35"
W-2 ..................................... 27'50'10.23" 93'52'07.96" West Flower Garden Bank
W-3 ..................................... 27'51'13.14" 93*52'50 *68"
W-4 ..................................... 27*51'31.24" 93'52*49* 79" Block A-383
w-5 ..................................... 27-52*49-55" 93*52'21.891, E %, SE N. SE V4; SW V2, SE V4, SE V4.
w_6 ..................................... 27-54'59.08" 93*49'41.87" Block A-384
W-7 ..................................... 27-54'57.08" 93'48'38.52" WV2, SWV4. NEV4; SEI/4, SWV4, NEV4; S%,
W_s ..................................... 27-54'33.46" 93*47'10.38" SEK, NEY4;
w-9 ..................................... 27-54-13.51" 93*46'48.96" SEV4, NWIA;
W-10 ................................... 27*53'37.67" 93'46'50.671,
W-1 I ................................... 27*52'56."" 93*47*14.10" E%, SWV4; E%, NWI/4, SWV4; SWV4, NWV4.
W-12 ............................. 27*50'38 31 11 93*47'22.1361, SWV4; SWV4, SWV4;
W-13 ................................... 27*49'11*23'* 93'48'42.5911 SE V4
Block A-385
SWV4, SWV4, NWY4;
NV4. SWY4; NWV4, SWV4, SWV4.
APPENDIX II TO PART 943-COORDI- Block A-397
NATES FOR THE DzPARTmExT or THE W%. W%, NWV4;
INTERIOR TOPOGRAPHIC LEASE STIPtT- W%, NWV4, SWV4; NWV4, SWV4, SWV4.
LATIONS FOR OCS LEASE SALE 112 Block A-398
Entire block
East Flower Garden Bank Block A-399
E%;
Block A-366 SEV4, NEV4, NWV4; E%, SEV4, NWV4;
SEV4, SWV4; E%, NZY4, SWV4; SWV4, NEY4. SWV4; NEV4.
S%, NEV4, SEV4; SEV4, NWV4, SEY4; S%. SE SEV4, SWY4.
Y4; Block A-401
Block A-367 NEV4, NEY4; N%. NWV4, KEV4; NEV4, SEIY4,
W%. KWV4, SWV4; SWV4. WY4, SWY4. ME V4
Block A-374 Block A-Block 134
W%, NWV4, NWY4; W%, SWV4, NWV4; That portion of the block north of a line
SEV4, SWV4, NWIV4; connecting points 17 and 18, defined
SWV4, NEV4, SWV4; W%, SWV4; W%, SEIA. under the universal transverse mercator
SWY4; SEY4. SEY4, SWY4. grid system as follows: Point 17:
Block A-375 X=1.378,080.00'; Y=10.096,183.001; Point
E%; 18: X=1,376,079.4l'; Y=10,096,183.00';
E%, NWV4, NWV4. SWV4, NWV4, NWI/4; Block A-135
E@i, SWI/4, NWV4; NWV4, SWI/4, NWV4, That portion of the block northwest of a
SW'/4; line connecting points 16 and 17. defined
Block A-388 under the universal transverse mercator
N'E V4; grid system as follows: Point IS:
Vi, NWY4; E%, NWY4, NWV4; NEIA. WK. X=1.383,293.84'; Y=10,103.281.93': Point
NWY4; E%, SWV4; E%. NEV4. SWV4: 17: X 1,378,080.001; Y. 10.096.193.00';

297

t,
C11.
16*
Part 944
Monterey Bay .
National Marine Sanctuary
Regulations
(final rule dated
'September 18, 1992)

@z, 0

f,@

Friday
September 18, 1992

Part III

Department of
Commerce

Nadonal Oceanic and Abnospheric
Administration

15 CFR Chapter IX, Subehapters A wW 0
and Pon 944
Monterey Bay National Marine Sanctuary
Regulations; Final Rule
cog

43310 Federal Register / Vol. 57, No. 182 / Friday, September 18, 1992 / Rules and Regulations

DEPARTMENT OF COMMERCE Secretary of Commerce that the setting forth the procedures for
designation or any of its terms is designation. requires him or her to
15 CFR Chapter IX. Subchapter A and unacceptable, the designation or the publish in the Federal Register
0 and Part 944 tmacceptable terms cannot take effect in regulations implementing the
the area of the Sanctuary lying within designation and to advise the public of
(Docket No. 900122-20201 the seaward boundary of the State. If the availability of the FEIS/MP.
RIN 0640-AC63 the Secretary considers that any The authority of the Secretary to
disapproval will affect the designation designate national marine sanctuaries
Monterey Say National Mark* in a manner *that the goals and and administer the other provisions of
Sanctuary Regulations objectives of the Sanctuary cannot be the Act has been delegated to the Under
AGENCY: Office of Ocean and Coastal fulfilled, the Secretary may withdraw Secretary of Commerce for Oceans and
Resource Management (OCRM@ the entire designation. A document Atmosphere by DOC Organization
National Ocean Service (NOS). National announcing the effective date will be Order 10-15. section 3.01(z), January 11.
Oceanic and Atmospheric published in the Federal Register. 1988. The authority to administer the
Administration (NOAA@ Commerce. ADDRESSES: Copies of the Final other provisions of the Act has been
ACTKW Final rule; National Marine Environmental Impact Statement/ redelegated to the Assistant
Sanctuary Designation. final rule; and Management Plan (FES/MP) prepared Administrator for Ocean Services and
summary of final management plan. for the designation are available upon Coastal 2one Management of NOAA by
request to the Sanctuaries and Reserves NOAA Circular 83-38, Directive 05-W.
SUMMARr. The National Oceanic and Division, Office of Ocean and Coastal September 21,1983. as amended.
Atmospheric Administration (NOAA), Resource Management National Ocean The State of California nominated the
by the Designation Document contained Service. National Oceanic and Monterey Bay area in 1977, along with
in this document. and as required by Atmospheric Administration. 1825- nine other offshore marine areas. for
section 205(a)(3) of Public Law 100-W, Connecticut Avenue, NW.. suite 714, consideration for designation as
designates an approximately 4.024 Washington. DC 20235. national marine sanctuaries. In response
square nautical mile area of coastal and Fog FURTHER INFORMATWN CONTACT. to these nominations. NOAA selected
ocean waters, and the submerged lands Mark Murfay-Brown, 202/606-412& the Channel Islands, the Point Reyes-
thereunder, in and surrounding SUPPLEMENTARY INFORMATKNC Farallon Islands, and the Monterey Bay
Monterey Bay off the coast of central areas for hirther consideration. In
California as the Monterey Bay National I. Background December 1978, NOAA released an
Marine Sanctuary. This document Title III of the Marine Protection. issue paper on these three sites,
publishes the Designation Document for Research, and Sanctuaries Act. as presenting several boundary and
the Sanctuary and summarizes the final amended (the "Act" or "UPRSA"). 16 regulatory options for each site. Public
management plan for it. The final U.S.C. 1431 et seq., authorizes the hearings were held and, based on the
management plan details the goals and Secretary of Commerce to designate responses, NOAA, on August 10. IM,
objectives, management responsibilities, discrete areas of the marine declared all three sites as active
research activities, interpretive and environment as national marine candidates for designation as national
educational programs, and enforcement. sanctuaries if. as required bi section 303 marine sanctuaries.
including surveillance. activities for the of the Act (16 U.S.C. 1433). the Secretary On September 21. 1M. the Channel
Sanctuary. finds, in consultation with Congress, a blands National Marine Sanctuary was
Further. NOAA issues final variety of specified officials. and other designated and on January 1& 1981. the
regulations to implement the designation interested persons. that the designation Point Reyes-Farallon Islands National
by regulating activities affecting the will fulfill the purposes and policies of Marine Sanctuary (later renamed the
Sanctuary consistent with the provisions the Act (set forth in section 3M(b) (18 Gulf of the Farallones National Marine
of the Designation Document.The U.S.C. 1431(b)) andL Sanctuary) was designated. On
intended effect of these regulations is to (1) The area proposed for designation December 14. 1983 (see 48 FR 56253).
protect the conservation. recreational. Is of special national significance due to NOAA removed the Monterey Bay area
ecological, historical. research. its resource or human-use valuer. hom the list of active candidateiL
educational and esthetic resources and (2) Existing state and Federal On November 7,1958, Public Law 100-
qualities of the Monterey Bay National authorities are inadequate to ensure 627, which amends and authorizes
Marine Sanctuary. coordinated and comprehensive appropriations for title M of the Act.
EFFECTIVE DATES: Pursuant to section conservation and management of the was signed into law. Section 205(a)(3) of
304(b) of the Marine Protection. area, including resource protection. Public Law 1OD-627 directs that the
Research. and Sanctuaries Act. -scientific research and public educatiow Secretary of Commerce designate the
Congress and the Governor of the State (3) Designation of the area as a Monterey Bay National Marine
of California have forty-five days of national marine sanctuary will facilitate Sanctuary-
continuous session of Congress the coordinated and comprehensive On January 6. 1989. NOAA announced
beginning on the day on which this conservation and management of the (54 FR 448) that the Monterey Bay area
document is published to review the area; and had again become an active candidate
designation and regulations before they (4) The area is of a size and nature for designation as a national marine
take effect. After forty-five days. the that will permit comprehensive and sanctuary. On January 25 and 26, 19138,
designation (and any of its terms not coordinated conservation and NOAA sponsored two public scoping
disapproved by Congress through management. meetings in Monterey and Santa Cruz to
enactment of a joint resolution) and Before the Secretary may designate an solicit public comment on the scope and
regulations automatically become final area as a national marine sanctuary. significance of issues involved in
and take effect. Further, if the Governor section 303 (16 U.S.C. 1433) requires him designating the Sanctuary. The public
of the State of California certifies within or her to make the above described - response was extremely favorable to
the forty-five-day period to the findings and section 304 (18 U.S.C. 1434). proceeding with the evaluation.

Federal Register / Vol. 57. No. 182 / Friday, September 18, 1992 / Rules and Regulations 43311
On August 3,1990 NOAA published a The boundary expansion excludes a associated with blow-outs, rupture of
proposed Designation Document and small area of approximately 71 square pipelines or loading of tankers but also
proposed implementing regulations and nautical miles off the north coast of San long-term chronic events such as
announced the availability of the Draft Mateo County and the City and County discharge of drilling fluids. cuttings and
Environmental impact Statement/ of San Francisco. The excluded area air emissions. Offshore oil and gas
Management Plan (DEIS/Nip) (55 FR encompasses the anticipated discharge activities have never been conducted in
31786). Public hearings tu receive plume of the combined sewer overflow the Monterey Bay area. The area would
comments on the proposed designation. component of the City and County of suffer aesthetic disturbance ranging
proposed regulations, and DEIS/Mp San Francisco's sewage treatment from the presence of offshore rig
were held on September 12, 199o in program, the shipping channel providing structures to building of shore facilities
Monterey; on September 13, i9W in access to and from San Francisco Bay, and the necessary transportation of
Santa Cruz; and on September 14,1990 and the Golden Gate dredged material personnel and equipment to and from
in Half Moon Bay, California. All disposal site associated with this the offshore rigs.
comments received by NOAA in channel. NOAA has determined that the (3) Comment. NOAA should either
response to the Federal Register notice nature and level of these activities are regulate or prohibit vessel traffic within
and at the Public hearings were not appropriate for inclusion within a the Sanctuary area. Specifically:
considered and, where appropriate, national marine sanctuary. By excluding (1) Traffic should be prohibited unless
were incorporated. A summary of the this small area from the Sanctuary, vessels are bound for a destination
significant comments on the proposed NOAA will be able to focus Sanctuary within the Sanctuary;
regulations and the regulatory elements management on the long-term protection (2) Size of vessels to be regulated or
of the DEIS/N9 and NOAA's responses of other areas that contain nationally prohibited from the Sanctuary area
to them follow. The comments are both significant resources and qualities and should be clarified.
presented and responded to in greater are less heavily impacted by human (3) Vessels should either be routed
detail in appendix F of the FEISNY. activity. By excluding the anticipated offshore and avoid the Sanctuary area
(1) Comment- NOAA should extend its discharge plume of the combined sewer completely, or traffic lanes should be
overflow from the Sanctuary, a buffer developed along the Sanctuary e4es;
preferred Boundary Alternative 2 both zone has been created protecting and
north and south and choose Boundary Sanctuary resources and qualities from (4) Vessels traveling along the
Alternative 5. Boundary Alternative 5 the discharge. Sanctuary boundary should be limited to
would protect critical nesting and The boundary expansion not only specific port access routes and shipping
migratory paths between Monterey and encompasses additional resources but lanes established by the United States
San Mateo County coasts, create a also will provide enhanced protection Coast Guard JUSCG) and NOAA.
continuous protected management from potential human threats to the Response. The Designation Document
regime between the Gulf of the north and south. For example, to the lists vessel operations as being subject
Farallones National Marine Sanctuary north, off of the San Mateo coast, to Sanctuary regulation. However, upon
and the proposed Monterey Bay potential new dredged material disposal designation only the operation of
National Marine Sanctuary. provide a and oil and gas development activities personal water craft is being regulated
greater buffer to sensitive areas such as are under consideration within the as part of the Sanctuary regime (see
Afto Nuevo and the Fitzgerald Marine Sanctuary boundary. To the south, the comment responses 18 and 19). There
Reserve, and protect a greater area of pristine area of the Big Sur coast and are no Sanctuary regulations planned at
the southern California sea otter range sea otter habitat would be encompassed this time for the traffic regulation of
and habitat. and protected by the Sanctuary regime. other vessels. NOAA is currently
Response: NOAA agrees. The MS/ (2) Comment. Oil and gas working with the USCG. the primary
MP-preferred Boundary Alternative 5 development within the Sanctuary source of vessel traffic regulation. to
incorporates a north and south should either be prohibited or regulated. determine the need for additional
extension of the DEIS/MP-preferred Concerns range from impacts of measures to ensure protection of
Boundary Alternative 2. Boundary potential toxic wastes released from oil- Sanctuary resources and qualities from
Alternative 5 received the vast majority drilling platforms, reduced tourism due vessel traffic. These consultations aim
of support from the public during the to diminished scenic views. lack of to determin which resources are most
public comment period. Boundary adequate emergency oil response at risk. which vessel traffic practices am
Alternative 5 has been chosen as capabilities. to catastrophic blow outs. most threatening and which regulations
preferred because it integrates Response. NOAA agrees. The or restrictions would be most
important coastal, nearshore and dee*P- regulations prohibit exploring for, appropriate to alleviate potential
ocean canyon resource zones under one developing or producing oil or gas threats, including those. if any. from
management regime. These zones throughout the entire Sanctuary. Such foreign vessels. Because the disposal of
include the Monterey submarine econornic development and construction dredged material outside the Sanctuary
canyon-the focal point of the of man-made structures would severely (see Comment/Response (9) below) will
Sanctuary: Monterey Bay itself-, the Big disrupt the natural and aesthetic necessitate the transport of these
Sur and San Mateo coastal area. qualities of the area and be inconsistent materials through the SancUaLry. NOAA
including AAo Nuevo and the Fitzgerald with the purposes of the Sanctuary. will also work closely with the U.S.
Marine Reserve: the adjacent Although certain man-made structures Army Corps of Engineers (COE) and
continental shelf, slope and rise: certain may be permissible in the future for U.S. EnviromenW Protection Agency
highly productive shoreline and limited purpo4es such as research or (EPA) on such transport activities.
intertidal areas. such as Pescadero natural resource protection. the threats These ongoing consultations build
Marsh and Elkhorn Slough;- and the deep from oil and gas activities to Sanctuary upon recent Federal and State
ocean environments of the Ascension. resources and qualities warrant legislation (since publication of ffie
Monterey Bay. Big Sur and Parfington prohibition. Threats include not only DEIS/MP. in August 1990) that further
Canyon complexes. catastrophic events such as oil spills protects Sanctuary resources and

43312 Federal Register / Vol. 57, No. 1a2 I Friday, September 18, 1992 / Rules and Regulations

qualities from vessel traffic. Specifically, regional, State, and Federal agencies to (7) Comment: NOAA should clarify in
the National Oil Pollution Act of 1990 ensure adequate cleanup response. the FEIS/MP what harbors will be
establishes double hull requirements for Response: Under the National Oil and excluded and why.
tank vessels. Most tank vessels over Hazardous Substances Pollution Response: The FEIS/MP includes a
5,000 gross tons will be required to have Contingency Plan (NCP), 40 CFR part specific section on harbors. Pillar Point.
double hulls by 2010. while vessels 300, the USCG serves as the Federal on- Santa Cruz, Moss Landing (except
under 5,000 gross tons will be required scene coordinator to organize all waters, and submerged lands
to have a double hull or a double containment, removal and disposal thereunder, of Elkhorn Slough east of the
containment system by 2015. All newly efforts, and resources during a spill U.S. Highway One bridge to the
co,'nstructed tankers must contain a event. If a spill occurs. NOAA will take boundary of the Elkhorn Slough
double hull (or double containment an active role, to the extent allowable. National Estuarine Research Reserve).
system if under 5.000 gross tons). while to participate. coordinate, and actively and Monterey harbors shoreward from
existing vessels are phased out over a protect natural resources. During the their respective International Collision
period of years. In addition. SB 2M planning phase, NOAA will work with at Sea regulation (Colreg.) demarcation
California's Oil Spill Prevention and the existing response mechanism, and lines are not part of the Sanctuary.
Response Act, requires numerous will cooperate with local government.. NOAA excluded these harbor areas
prevention as well as mitigation industry, organizations and interested from the Sanctuary because they do not
measures aimed at protecting marine individuals to implement a possess resources and qualities
resources from oil spills particularly comprehensive contingency plan. A top warranting Sanctuary protection.
from tankers. priority for the Sanctuary Manager will (8) Comment. Dredging is essential to
Vessel traffic separation zones off of be to meet with those involved with maintaining viable working harbors.
San Francisco, implemented by the contingency planning to coordinate However, because of potential
USCG. also help protect Sanctuary Sanctuary roles and responsibilities degradation to the environment.
resources and qualities. during an emergency response situation. dredging should be prohibited within the
If It appears that regulation of vessel (6) Comment. Depositing or Sanctuary. NOAA should clearly state
traffic as part of the Sanctuary regime discharging from any location within the how regulations will affect current
may be necessary, NOAA will make dredging activities in the Sanctuary.
such determination in consultation with boundary of the Sanctuary or from Response: Most harbor areas do not
the USCG, COE. EPA, other affected beyond the boundary of the Sanctuary lie within the Sanctuary (see Comment/
Federal and State agencies and the should be prohibited. The regulation of Response (71 above) and therefore are
International Maritime Organization discharges to improve water quality is a not affected'by the Sanctuary dredging
(IMO) through the USCC. If it is significant concern. prohibitions. In addition, existing
determined that such regulation is Response: The regulations prohibit activities relating to the maintenance of
necessary, NOAA will develop the depositing or discharging most material the harbors have been exempted from
necessary regulations, also in and other matter from any location Sanctuary regulation. NOAA will work
coordination with those agencies. within the boundary of the Sanctuary, 'closely with COE and EPA to ensure
Coordination among agencies is and from beyond the boundary of the that Sanctuary resources and qualities
intended to focus ongoing efforts to Sanctuary if such matter subsequently are protected, while allowing essential
provide adequate protection to the enters the Sanctuary and injures dredging activities to be conducted.
Sanctuary and to emphasize the resources or qualities. (9) Comment. Ocean dumping is a
sensitivity of Sanctuary resources and NOAA has entered into a threat to the marine environment and
qualities. Memorandum of Agreement (MGA) with should be entirely prohibited within the
(4) Comment. If spills cannot be the State of California, EPA and the Sanctuary area. NOAA should also
prevented entirely. a contingency plan Association of Monterey Bay Area specify whether Federally authorized
should exist for emergency response and Governments regarding the Sanctuary dredged material disposal sites SF-12
cleanup. To facilitate response action. regulations relating to water quality and SF-14 will remain available for
NOAA should work with. and build within State waters within the future dredging projects that would
upon, the efforts of other organizations Sanctuary. With regard to permits, the otherwise qualify for State and Federal
and agencies already developing plans MOA encompasses (I) National permits.
for the area. Pollutant Discharge Elimination System Response: Ile Sanctuary regulations
Response: NOAA agrees and will (NPDES) permits issued by the State of prohibit the designation and use of any
work with. and build upon. the efforts of California under section 13377 of the new ocean dredged material disposal
others. The FEIS/MP identifies existing California Water Code and (11) Waste sites within the Sanctuary. Ile ocean
oil spill contingency plans and efforts. in Discharge Requirements issued by the disposal of dredged material is subject
the Monterey Bay area. The Monterey State of California under section 13263 to stringent regulation under tide I of the
Bay National Marine Sanctuary requires of the California Water Code. The MOA 14PRSA. NOAA will work closely with
its own contingency plan to ensure that specifies how the Sanctuary certification COE and EPA to ensure Sanctuary
resources are protected during events process for existing permits and review resources and qualities are protected
that threaten the environment. A process for new or revised (including from future dredged material disposal
prototype sanctuary contingency plan is renewal) permits will be admin stered activities.
almost complete. and will be tested at within State wate- Ahin the With regard to the COE dredged
the Channel Islands National Marine Sanctuary in coort..:.,ition with the State material disposal activities: (a) Those
Sanctuary. Once implementation permit program. The MOA also activities located within the Sanctuary
experience has been gained. the plan addresses integration and coordination boundary will continue to be regulated
will be adapted to other sanctuary sites. of research and monitoring efforts and under section 103 of the MMSA and
including Monterey Bay. the development of a comprehensive section 404 of the Clean Water Act.
(5) Comment: Agreements should be water quality protection program for the These activities have previously
established between various local. Sanctuary. undergone intense public scrutiny and

Federal Register / Vol. 57, No. 182 / Friday, September 18, 1992 / Rules and Regulations 43313

environmental oversight by EPA. Any National Estuarine Research Reserve Water Resources and Regional Water
proposed newactivities at existing sites. (ESNERR), and this relationship should Quality Control Boards and State Lands
i.e., activities not pursuant to and in be formalized. It is important to create a Commission, regarding potential land-
compliance with an existing ppxmit or link between the Monterey Bay and water-based threats and impacts to
approval, will be subject to the review Sanctuary and the Reserve, even if this the Sanctuary. The physical boundary of
process of � 944.11. means exempting Moss Landing Harbor. this sanctuary encompasses ocean and
(b) Those activities located at existing An agreement should be developed coastal waters up to the mean high-
sites outside the Sanctuary boundary between NOAA and the Moss Landing water line. NOAA intends to protect the
and at the authorized disposal site that Harbor District to ensure the success of ' Sanctuary from the impacts of coastal
will result from the disposal site study the two programs as well as development via its regulation of
underway on the effective date of coordinating the management plans and discharges or deposits from beyond the
Sanctuary designation will be regulated objectives of both sites. boundary of the Sanctuary that
primarily under section 103 of the Response: NOAA agrees it is subsequently enter the Sanctuary and
MPRSA and section 4o4 of the Clean important to coordinate closely with the injure a Sanctuary resource or quality.
Water Act and will not be regulated ESNERR to ensure the success of both (13) Comment: NOAA should clarify
under the Sanctuary regulatgry regime. sites. The Sanctuary includes all waters, whether it will limit the amount of silt in
Because of the intensive environmental and submerged lands thereunder, in the the sand used for beach nourishment.
evaluation.of disposal sites and disposal Slough up to the ESNERR boundary. Even though the sand may be placed
activities by COE and EPA, NoAA does NOAA agrees that links should be above the high tide mark, erosion may
not anticipate that any site designated fostered since missions and goals are move silt into the Bay.
for disposal of dredged material will similar. NOAA supports the exchange of Response: NOAA will work with
impact Sanctuary resources. Therefore, information, research, education and COE, EPA and other appropriate
the Sanctuary regulatory prohibition on staff expertise between the two authorities to determine the impacts of
discharges does not apply to dredged programs. Meeting the objectives for beach nourishment programs. if it
material deposited outside the both sites, as well as implementing the should appear that a particular project
Sanctuary at existing disposal sites off management plans, can be coordinated would injure Sanctuary resources or
of the Golden Gate (see appendix IV to through the Sanctuary Advisory qualities, NOAA may impose terms and
the regulations) and will not apply to Committee and the ESNERR Advisory conditions pursuant to 15 CFR 944.10
dredged material deposited outside the Committee. NOAA encourages and 944.11.
Sanctuary at the authorized disposal Sanctuary and ESNERR staff to (14) Comment: Protection of historical
site that will result from the disposal participate actively in this process. and cultural resources within the
site study underway on the effective However, regardless of their Sanctuary is a significant concern.
date of Sanctuary designation, provided similarities, the two programs must NOAA should prohibit moving, injuring,
that the activity is pursuant to, and remain separate because the National
complies with the terms and conditions Estuarine Reserve Research System or possessing historical resources within
of, a valid Federal permit or approval. Program regulations prohibit the the Sanctuary. However, Sanctuary
The future disposal site will be located inclusion of reserves within sanctuaries regulations should not apply to activities
within one of the Long-Term (15'CFR 921.4(c)). permitted by the State within State
Management Strategy Ocean Study After consultation with the Moss waters under the Shipwreck and
Areas described in appendix IV. When Landing Harbor District. NOAA has Historic Maritime Resources Program.
that site is authorized. appendix IV will determined the most appropriate Response. NOAA agrees that it is
be updated to incorporate its precise method of linking the two sites is to necessary to protect and manage
location. COE will coordinate closely exclude from the Sanctuary Moss historical and cultural resources within
with NOAA concerning the management Landing Harbor east of the Colregs. line the Sanctuary boundary. The regulations
include a prohibition on moving,
of dredged material disposal activities and west of the Highway-One bridge,
at the new site. and to include the waters of fthorn removing. possessing or injuring, or
(10) Comment: The regulatory regime Slough east of the Highway One bridge attempting to move, remove or injure
for aquaculture and kelp harvesting to the boundary of the ESNERR with these resources.
activities within the Sanctuary remains overlapping jurisdiction with the Moss The Abandoned Shipwreck Act of
unclear. Currently, aquaculture Landing Harbor District over the Moss 1987 gives States the title to certain
development is the responsibility of the Landing Harbor. abandoned shipwrecks in State waters.
California Department of Fish and Came (12) Comment- There is a need for Under the MPRSA. the Sanctuaries and
(CDF&G), and because of this, landward protection and controls on Reserves Division. NOAA. has
aquaculture operations requiring seabed nearshore development. Adequate managerial responsibilities for
alterations should be excluded from protection of the ocean environment abandoned shipwrecks within National
Sanctuary regulations, and allowed to must include management of the Marine Sanctuaries, including those
continue. adjacent coastal and upland zones. located in State waters, for the purpose
Response: Neither kelp harvesting nor NOAA should extend its jurisdiction to of protecting them. NOAA will
aquaculture is being regulated as part of include beaches, dunes, uplands, and coordinate with State agencies to ensure
the Sanctuary regime upon designation. %vetland habitats adjacent to the that historical and cultural resources. as
Both activities are included in the proposed Sanctuary. well as living marine resources. within
Designation Document as activities Response. NOAA agrees that the Sanctuary are protected.
subject to future regulation should be protection and management of the land (15) Comment: The prohibition on the
need arise. NOAA will coordinate with portion of the coastal zone is necessary taking of marine mammals, and seabirds
the CDF&G, which is responsible for for adequate protection of the ocean within the Sanctuary is redundant with
managing kelp harvesting and environment. NOAA will coordinate the Endangered Species Act (ESA), the
aquaculture operations. with existing coastal management Marine Mammal Protection Act (MMPA I
(11) Comment: Ile Sanctuary should authorities, such as COF. EPA. the and the Migratory Bird Treaty Act
include all waters in the Elkhorn Slough California Coastal Commission. State (MBTA).

43314 Federal Register / Vol. 57, No. 182 / Friday, September 18. 1992 / Rules and Regulations

Response.- While marine mammals, the Monterey Bay area fish resources including those with high human-use
migratory seabirds and endangered are already extensively managed by levels such as beaches: diving,
species are protected under these acts. existing authorities. swimming and surfing areas; state
NOAA believes that the higher penalties Should problems arise in the future parks; and reserves. Besides the
afforded under the MPRSA will provide NOAA would consult with the State. potential danger to recreationists.
a stronger deterrent PFMC and NMFS as well as the industry MPWC disrupt low-intensity area uses.
The META sets maximum criminal to determine an appropriate course of In addition, many corrimenters fourid the
fines at either S5W or SZ000 per action. operation of MPWC to be incompatible
violation. depending on the violation. (17) Comment. Many commenters with the existence of the Sanctuary for
The MWA sets maximum civil requested NOAA to prohibit motorized reasons unquantifiable-
penalties at $10,000 and maximum aircraft from flying over the Sanctuary. Response: NOAA recognizes the
criminal fines at $20.000. The ESA sets Other commenters stated Federal threat posed by MPWC operation to the
ma:wnurn civil penalties at $500,$12.000 Aviation Regulations (FARs) already conservational, recreational. ecological
or $25,000 per violation, depending on adequately protect Sanctuary resources and esthetic resources and qualities of
the violation; maximum criminal fines from aircraft impacts. making additional the Sanctum. As a result. the
are set at SK000. (All three statutes regulations unnecessary. In addition.. regulations have been revised to
also provide for imprisonment for new regulations may hinder cooperative prohibit the operation of MPWC within
criminal violations.) emergency response plans, routine the Sanctuary, except within few zones
The MPRSA (under section 307) helicopter operations. and rescue and access routes (15 CFR 944.5(a)(8)).
allows NOAA to assess civil penalties attempts. Generally, these areas are located off
as high as $50AW for each violation. In Response: The regulations prohibit the harbors of Pillar Point, Santa Cruz.
addition. monies collected under the flying motorized aircraft at less than Moss Landing. and Monterey.'Mey
MPRSA are available to enhance the 1,000 feet above the Sanctuary within were chosen to avoid injury to kelp
National Marine Sanctuary Program. four zoom Generally, these zones are beds, sea otters and other marine
(16) Comment- Many commenters from Point Santa Cruz north. Carmel mammals, seabirds and other marine
stated fishing should not be prohibited Bay south (overlapping the California life and ko minimize conflicts with other
within the Sanctuary. Instead. fisheries Sea Otter Game Refuge), and around recreational users and because these
resource regulation should remain under Moss Landing and Elkhorn Slough (see areas are accessible from launch areas
the jurisdiction of the State of appendix 11 for specific zones). and encompass areas traditionally used
California. the National Marine NOAA recognizes that overflights are by MPWC. Restriction of MPWC
Fisheries Service [N&*SJ and the regulated under the FAR& Unlike the operation to these areas of the
Pacific Fisheries Management Council FAR9, however. Sanctuary overflight Sanctuary will also reduce esthetic
(PFMC). Other commenters requested regulations are intended to protect the disturbance.
NOAA to regulate harmful fishing living marine resources of dw Sanctuary A prohibition of MPWC operation in
activities such as gill-netting and shark from disturbsnee by low-flying aircraft the Sanctuary except in the four are-as is
finning. NOAA's position should be and in this case require flying at higher
clarified in the FEIS/MP. altitudes than normally required by the designed to bicrease resource protection
Response: Fishing is not being FARa. The prohibition doas not apply to while still allowing opportunities for this
regulated as part of the Sanctuary overflights that: form of recreation in the Sanctuary. .
regime and is not included in the (1) Are necessary to respond to an There has been at least one reported
Designation Document as an activity emergency threatening life. property or collision in the Monterey Bay area
subject to future regulation. Fisheries the environment; between a jet Wd and sea ottars.
management will remain under the (2) Are necessary for valid law Collisions with and other disturbance of
existing jurisdiction of the State of enforcement or marin m--rn-ls elsewhere from
California, NUFS and PFMC. Sanctum (3) Conducted by the Departroew of MmC have also occurred. The small
prohibitions that may indirectly affect Defense and spwAcally exempted by size, maneuverability and high speed of
fishing activities have been written to NOAA after consultation with that then craft is what cam" the" craft to
explicitly exempt aquaculture, kelp Department pose a thireat to resources. Resources
harvesting and traditional fishing (18) Comment A more precise such as sea otters and seabirds are
activities. definition of "thrill craft" is needed. either unable to avoid these craft or are
Existing fishery management agencies Response. NOAA has changed the frequently alarmed enough to
are primarily concerned with the term "duill craft" in the proposed s4pifficantly modify their behavior such
regulation and management of fish regulations to "inotorind personal as cessation of feeding or abandonment
stocks for a healthy fishery. In contrast watercraft" [MPWCJ in the final of young. Also other. more benign. uses
the sanctuary program has a different regulations and revised the definitim to of the Sanctuary such as sailing.
and broader mandate under the h(PRSA include vessels up to fifisien fftL This kayakin& vArfing and divixig am
to protect all sanctuary resources on an category of venal was selected because interfered with during the operation of
ecosystem wide basis. Ibus. while of the threat posed to SancWary heWC Further. as indicAled abom
fishery agencies may be concen res es by their operation. restriction of operation of UPWC to the
about certain fishing efforts and (ig) Continent Thrill craft shouJId be specified sones and access routes will
techniques in relation to fish stock prohibited throughout the Sanctuary. reduce esthetic disturbance, The moan
abundance and distribution the 'The danger thm craft pose to do and access routes whom the h(PWC con
Sanctuary program is also concerned biological resources of the area. such as still operaft allow the WIPWC oPemtom
about the potential incidental impacts of marine maornals and kWp beds. as wa to condom this form of recreation albeit
specific fishery technique on all as other users of dn area Such W divers in areas away firom thcae other forms of
sanctuary resources including benthic and surfers nimessitates a probibitkm or recreation and bayea those am-as
habitats or marine mammals as well as regulation of personsil water craft. In inhabited by ron nutatmals and
the role the target species plays in the addition. MPWC should be prohi1xited in seabirds and other 9820itive Mrim Iffe.
%ealth of the ecosystem. In the case of $.areas of biok*ical significance." By anablishin defined hdPWC

Federal Register / Vol. 57, No. 182 / Friday, September 18. 1992 / Rules and Regulations 43315

operating areas, this approach provides hydrocarbon development lease sales in basis, unless section 1 of Article IV is
for more effective enforcement to Federal waters, not DOD. While the amended to include the type of activity
protect sensitive marine life and for less Sanctuary regulations allow DOD to by the same procedures by which the
confusion to MPWC operators and other conduct certain prohibited activities, original designation was made.
recreationists than would the they do not allow DOD to conduct any Article 11. Description of the Area
establishment of minimum approach oil, gas or mineral activity in the
distances governing approaches by Sanctuary. The Monterey Bay National Marine
MPWC to sensitive marine life or other II. Designation Document Sanctuary (the "Sanctuary") boundary
recreational uses. NOAA intends to encompass a total of approximately
install buoys to mark the boundaries of Section 304(a)(4) of the Act requires 4,024 square nautical miles
the MPWC operating areas. that the terms of designation set forth (approximately 13,800 square
(201 Comment. NOAA should choose the geographic area included within the kilometers) of coastal and ocean waters,
DEIS/MP management plan alternative Sanctuary-, the characteristics of the and the submerged lands thereunder, in
2. which proposes that full-time staffing area that give it conservation, ' and surrounding Monterey Bay, off the
be implemented immediately after recreational, ecological, historical, central coast of California. T'he northern
designation. The Sanctuary is important, research, educational or esthetic value; terminus of the boundary is located
and the commitment of a full-time and and the types of activities that will be along the southern boundary of the Gulf
immediate staff is necessary to initiate subject to regulation by the Secretary to of Farallones National Marine
Sanctuary programs. protect those characteristics. This Sanctuary and runs westward to
Response: NOAA's preferred section also specifies that the terms of approximately 123*07'W. The boundary
management plan is a variation of designation may be modified only by the then extends south in an arc which
alternative 2. This plan would establish same procedures by which the original generally follows the 500 fathom
the Sanctuary headquarters soon after designation was made. Thus the terms isobath. At approximately 37*03'N, the
designation and immediately provide of designation serve as a constitutionfor boundary arcs south to =2*251W.
full-time staffing of approximately five the Sanctuary. 36*10'N, due west of Partington Point.
personnel to ensure that the Sanctuary The Designation Document for the The boundary again follows the 500
program is implemented quickly and Monterey Bay National Marine fathom isobath south to 121*41'W,
efficiently. NOAA's preferred Sanctuary follows: 35*33'N, due west of Cambria. The
management plan will build upon public Designation Docuznen t for the Monterey boundary then extends shoreward
support from the designation process Bay National Manne Sanctuary towards the mean high-water line. The
and will increase opportunities for
interpretation and research programs Under the authority of title III of the landward boundary is defined by the
soon after designation. Additional staff Marine Protection, Research, and mean high-water line between the Gulf
and satellite facilities will be phased in Sanctuaries Act of 1972, as amended of Farallones National Marine
after designation. (the "Act"). 16 U.S.C. 1431 et seq., Sanctuary and Cambria. exclusive of a
(21) Comment: NOAA should clearly Monterey Bay and its surrounding small area off the north coast of San
identify how the Sanctuary Advisory waters offshore central California, and Mateo County and the City and County
Committee (SAC) will be set up, who the submerged lands under Monterey of San Francisco between Point Bonita
will be on it and how it will function. Bay and its surrounding waters, as and Point San Pedro. Pillar Point Santa
Response. One of the Sanctuary described in Article 11, are hereby Cruz. Moss Landing, and Monterey
Manager's first priorities will be to designated as the Monterey Bay harbors are all excluded from the
create the SAC according to the process National Marine Sanctuary for the Sanctuary boundary shoreward from
and guidelines of the Federal Advisory purposes of protecting and managing the their respective International Collision
Committee Act (FACA). See appendix A conservation. ecological, recreational, at Sea regulation (Colreg.) demarcation
of the FEIS/MP. It is NOAA's goal to research. educational. historical and lines except for Moss Landing Harbor.
have wide representation on the SAC. esthetic resources and qualities of the where all of the Elkhorn Slough east of
and the Manager will consider the area. the Highway One bridge is included
comments of all interested parties. within the SanchiM boundary.
NOAA will draft a charter. make Article 1. Effect of Designation Appendix I to this Designation
membership recommendations, which The Act authorizes the issuance of Document sets forth the precise
will include appropriate governmental such final regulations as are necessary Sanctuary boundary.
and non-governmental representatives, and reasonable to implement the Article M. Characteristics of the Area
to the Secretary of Commerce, and designation. including managing and That Give It Particular Value
coordinate with the General Services protecting the conservatim
Administration's review of the SAC recreational. ecological. historical. The Monterey Bay area in
formation and accomplishments. The research. educational and esthetic characterized by a combination of
SAC will function strictly in an advisory resource$ and qualities of the Monterey. oceanic conditions and undersea
capacity. Once the Sanctuary Manger is Bay National Marine Sanctuary. Section topography that provides for a highly
selected. terms of office, committee I of Article IV of this Designation productive ecosystem and a wide
composition and function will be Document lists activities of the types variety of marine habitat. The area is
defined in accordance with FACA. that either are to be regulated on the characterized by a narrow continental
(ZZ) Comment: NOAA should clarify effective date of designation or may shelf hinged by a variety of coastal
the relationship between Department of have to be regulated at some later date types. The Monterey Submarine Canyon
Defense (DOD) national defense in order to protect Sanctuary resources is unique in its size, configuration. and
exemptions from prohibited activities and qualities. Listing does not proximity to shore. This canyon system
and oil and gas activities. necessarily mean that a type of activity provides habitat for pelagic communities
Response. The Minerals Management will be regulated; however, if a type of and. along with other distinct
Service (MMS) in the Department of the activity is not listed it may not be bathymetric features. may modify
Interior (DOI) is responsible for regulated. except on an emergency currents and act to enrich local waters

43316 Federal Register i Vol. 57. No. 182 Friday, September 18. 1~992 / Rules and Regulations

through strong seasonal u~qpwellin~qg. related programs for school groups and I~L Operating a vessel ~q(~qi~-~-~q- water craft
Monterey Ba~qy itself is a rare geological teachers. of any description) in the Sanctuary-,
feature. as it is one of the few large The Final Environmental Impact i. Aqua~c~u~qlh~qwe or kel~o harvesting
embayments along the Pacific coast. Statement/ Management Plan provides within the Sanctuary; ~a~nd
The Monterey Bay area has a highly more detail on the characteristics of the ~qj. Interfering with, obstructing,
diverse floral and faunal component. Monterey Bay area that give it particular delaying o~r preventing an investigation.
Algal diversity is extremely high and the value. search. seizure or disposition of se~qi2ed
concentrations of p~qi~n~niped~s, whales, Article IV. Scope of Regulations property in connection with enforcement
otters, and some seabird species is of the Act o~r any regulation or permit
ou~ts~anding. The fish stocks, particularly Section ~q1. Activities subject to issued under the Act-
in Monterey Bay, are abundant and the regulation
variety of crustaceans and other Ile following activities are subject to Section 2 Emer~qg~e~q=~es
invertebrates is hi~qg~qJL regulation, including prohibition. to the Where necessary to prevent or
In addition there are many direct and extent necessary and reasonable to minimize the destruction of. loss o~qL or
indirect human uses of the area. The ensure the protection and management injury to a Sanctuary resource or
most important economic activity of the conservation. ecological. quality, or minimize the imminent risk of
directly dependent on the resources is recreational. research. educational~. such ~qdestr~u~octi~q= loss or injury, any and
commercial fishing. which has played an historical and esthetic resources and all activities, including those not listed
important role in the history of qualities of the area: in section I of this Article, are subject to
Monterey Bay and continues to be of a. Exploring for, developing or immediate temporary reg~u~qla~qd~o~n.
great economic value. producing oil. gas or minerals ~qCe,~0q&~. clay, including prohibition.
The diverse resources of the Monterey
Bay area are enjoyed by the residents of stone. sand. me~qt~al~ql~qife~rou~s ores. gravel~,
this area as wel~qf as the numerous no~n-metallif~erous ores or any other solid Article V. Effect an Leases, Permits.
visitors. The population of Monterey material or other matter of commercial I~qAce~n~ses and Rights
and Santa Cruz counties is rapidly value) within the San~ct~i~aa~r~6qy~. Pu~r~swmt to section 3~qD~q4(c~q](~q1) of the
expanding and is based in large part on b~. Discharging or depositing, from Act, ~q18 U~.~4q&C. 1434(c~qj(i~q@ no valid lease,
the attractiveness of the area's natural within the boundary of the Sanctuary. permit. license. approval or other
beauty. ~T~qhe high water quality and the any material or other matter, except aut~qh~o~qnz~at~qi~on ~qasu~ed by ~s~ay Federal~.
resulting variety of biota and their dredged material deposited at disposal State or local authority of competent
e sites authorized prior to the effective
proximity to shore is one of the prim ~qjurisdic~6qb~4qm or any right of subsistence
reasons for the international renown of date of Sanctuary de~s~ql~ig~nation. provided use or access, may be terminate~qd by the
the area as a prime tourist location. ~qT~8qhe that the activity in pursuant to, and Secretary of Commerce or designee as a
quality and abundance of the natural complies with the terms and conditions re~qm~qAt of this designation or as a re~qm~qd~qt of
resources has attracted man from the of. a valid Federal permit or approval any Sanctuary regulation if s~och
earliest prehistoric tin~ies to the present existing on the effective date of auth~o~rr~qizat~qi~on or right was in existence
and as a result the area contains Sanctuary d~es~qi~qg~nat~qi~0qm on the effective date of this designation~.
~i~q"cant historical. eg.~, archaeological c~. Discharging or depositing~. from The Secretary of Commerce or design".
and paleontological. resources, such as beyond the boundary of the Sanctuary. however, ~qv~qm~qy regulate the exercise
Costano~n Indian midden deposits, any material or other matter, except (including, but not limited to, the
aboriginal remains and sunken ships dredged material deposited at the ~. os~qition of terms and conditions) of
and aircraft. authorized disposal sites described in IMP
~qThe biological and physical appendix ~8qU of this Designation such authorization or right consistent
characteristics of the Monterey Bay area Document~. provided that the activity is with the purposes for which the
combine to provide outstanding pursuant to, and complies with the terms Sanctuary is designated~.
opportunities for scientific research on and conditions of. a valid Federal permit In no e~v~e~n~ql may ~qT~qh~e Secretary or
many aspects of marine ecosystems. or approval; - designee issue a permit ~au~qt~qh~o~ri~zi~o& or
The diverse habitats are readily d~. Taking, removing. moving. catching, otherwise approve: ~q(~q2~q) The exploration
accessible to researchers. Thirteen Collecting, harvesting. feeding, injuring. for. development of or ~qp~t~od~u~c~qt~qh~o~n of ~O~qi~qL
major research and education facilities destroying at causing the lose o~qE or ~qgas or -in~ar~a~l~s within the Sa~n~c~qb~qw~r~qy. ~q(2)
are found within the Monterey Bay area. attempting to take. remove. move. catch. the d~qi~qw~ql~w~h~r~qg~e Of Pri~qma~F~qF~-~qt~r~e~d~qh~e~qd ~sew~s~0qp
These institutions are exceptional collect. harvest~. feed. ~qi~n~8q*~qm d~e~s~qt~6qm or (except ~qiw ~r~eg~0q&tio~r~qu Pursuant to
resources with a long history of research cause the loss ~C~qE a nu~iri~ne ~s~na~qm~qm~al sea section ~q3~2qN~q(~c~2qXl~ql of the Act. of the
and large databases possessing a turtle, seabird. historical resource or exercise of valid ~su~4qf~4ql~u~qx~qiza~qd~a~i~qm ~1~A
considerable amount of baseline other Sanctum a - ~qn ~qc ~qi ~q- exist~qe~2qm~qs an the ~qa~28qf~28qf~2qw~20qAve data of
information on the Bay and its e. Drilling into. d~8qm~8qi~0qgin~0qg or o~4qt~8qi~2qmwi~8qn San~qct~qV~qa~qZY designation Mad issued b~6qY
resource& Extensive marine and coastal altering the seabed of t~8qhe Sa~2qwt~quar~6qY~q. or other authorities Of ~qC~qO~8qM~6qP~qe~4qt~2q"~8qt
education and interpretive efforts co~08qw~4qn~8qwti~qn~0qg~q. placing or a~8qb~qa~qnd~qo~qnd~qn~6qg my ~8qJur~6qi~qsdictim~8q@ or (~2q3) the ~32q&~16q"~qo~qsal Of
complement Monterey Bay's many structure. material or other matter on the dredged material within t~4qh~qe ~24qS~8qo~8qwt~qu~12qm
research activities. For example. the seabed of the Sa~8qnct~qua~qr~6q1~qr~q. other than at sites au~28qd~2qw~qeiz~qe~8qd by t~4qh~qe ~0qL~0qLS,
Monterey Bay Aquarium has attracted ~8qL Possessing within ~28qd~8qw Sanctuary a Environmental A Agency (in
millions of visitors who have Sanctuary resource or ~qarry other consultation with the ~0qL~6qL~24q& Army Corps
experienced the interpretive exhibits of resource. regardless of whom token of E~4qa~0qg~2qo~2qw~8qn) prior in t~8qh~qe effective date
the marine environment Point L~8qAbo~qa removed. moved. caught collected or of designation~q. Any purported
Ecological Reserve. Elkhorn Slough ~q* harvested. that. if ~0qi~4qt had been found with aut~8qh~qo~qr~6qic~qat~6qi~8qo~2qn issued b~0qy ~8qat~8qb~qer
National E~s~4qb~8qu~qirin~qe Research Reserve. the Sanctuary. would be a Sa~qn~qc~2qh~6qw~16qy authorities after the ~qe~28qf~28qf~8qect~6qiw~qe date of
~qI~.on~qg Marine Laboratory and Ado Nueva re~qs~qc~qm Sanctuary designation for any of ~4qd~8qw~qee
State Reserve a~4ql~4ql have excellent docent ~0qg~q* Flying a motorized aircraft above ~qa~qc~16q&~12qW~8qw w~4qit~8qi~qa~qn the Sanctum shall be
p~r~o~qgra~qn~t~s serving the public. and marine the ~2qSa~qn~qc~0qh~qsar~08qr. invalid~q.

F~de~qM Register ~/ Vol. 57, No. 182 / Friday, September 18, 1992 / Rules andRegulat~ion~ 43~317

Article V~q1. Alteration of this Designation POW ~L~&~qf~qt~x~qm ~L~qW~V~M~X~W POW* ~L~a~b~u~w~e ~L~qN~V~M~4~0
The terms of designation. as defined ~37 45.875 12234~-140 4~2~q-~.~q-~.~-~q-~q-~.~q- ~37 22~-~9~77 123 18~-2~31
under section 304(a) of the Act, may be ~3~7 44.~qM 122~3~7.3~6~9 43~-. 3~722.820 12~31~6.142
modified only by the same procedures 3 37 4~4.491 122~37.15~9 44~q-~-~q-~.~q- 3~722.685 123 18.1~13
by which the original designation is ~3745.40~6 12233.~68~9 45~-.~q-..~q-.~- 3722.555 123 18.083
made, including public hearings~. 5 37 4~5.~8~7~5 122 3~4~.~q!40 4~6- 37 22.3~92 12~3 18.0~6~6
47~-~q-.~q-.~-~q-~q-.~- 3722.229 123 18.0~64
consultation with interested FederaL 48 ~3722.0~51 123 1~8.~0~3~0
State and local agencies, review by the In addition, the U.S. Enviro~n-ntal ~37 21~A~qM 123 18.02~q3
appropriate Congressional committees 3721.6~97 12~3 ~18~.02~3
and Governor of the State of California. Protection Agency, as of the effective 51 37~2~1-~547 123 18.0~14
and approval by the Secretary of date of Sanctuary designation. is (in ~52~-~q-~q- 3721.401 12~q3 17.~0qM
consultation with the U.S. Army Corps ~S3~q_~q_~q_~q_ 3721.173 123 1~7.~0qM
Commerce or designee. of Engineers) in the process of 3720.~978 123 ~17~.966
55 ~3720.7~67 123 17.~9~6~0
Appendix 1. Mont~e~4qM Say ~0qH~at~qion~id establishing a dredged material disposal ~5~6 37 20.~58~8 123 17~A~qX
Marine Sanctuary Boundary site outside the northern boundary of 5~7~-~q- 3720.45~8 123 17.~921
~4qC~;oord~qin~ates ~qthe Monterey Bay National Marine ~5~B~_~q_ 37202~55 123 17.8~94
Sanctuary. W~8qb~qm that disposal site is so 3720.179 123 17.87~6
~0qW~q_~q_~q_ ~q3720.05~4 123 17.8~7~6
(Appendix based on North American authorized~. &is appendix will be ~6~1 ~q3~7 19.98~6 123 17.8~92
Datum of i~2qm~8q&~q) updated to incorporate its precise ~6~q2 3~719.877 123 17.~8~q"
A~P~PRox~imATEL~qY 4,024 SOUARE NA~4qU~4qM~4qAL location. The site w~qi~qU be located outside ~6~3- 37 1~9.~7~92 123 17.~921
the Monterey Bay National Marine ~6~4 37 1~9.~6~94 123 17.960
MILES ~q8~q5 ~37 1~0-~0qW 123 17.~9~9~9
Sanctuary and any other emoting as 37 19.489 123 18.0~5~6
PC" L~a~qf~qt~w~e L~o~r~qo~qw~qa national marine sanctuary and within ~6~7 37 ~1~9~-~352 123 ~18.~134
one of the following Long-Term as 37 1~9~2~qM 123 ISMS
Management Strata" ocean study ~0~9 37 ~1~9.12~6 123 ~18.306
37 52 ~5~6.09055 122 37 ~q3~q9.~125~64 ~7~q0 ~37 1~9.02~6 123 18.3~7~q6
2 ~3~7 39 5~9~.0~1~"~7~6 122 4~5 3.~7~9~S~O7 areas: 7~1- 37 18.~914 123 18.4~82
3.. . ......... . ..... 37 3~6 58.391~04 122 48 ~9.73~6~7~1 ~3~7 ~I~S~A~qW 123 ~qM554
4~_~q_~_~_~_ ~'~37 34 17.30224 ~122 48 U.3~0~141 S~qh~0q* Area ~q3 37 18.~7~1~9 12~3 ~1~8.~65~4
3731 47 122 ~q5~1 ~3~L~0qW6~9 ~74 ~q37 I~&~SI~S 12~q3 ~1~8~.~7~q"
37 30 34.1103~0 ~122 54 22.12170 The area described by the following ~75 - 37 I~SA~qW 12~3 ISM
3~7 2~0 ~q3~9~.~O~S~qM 12~3 ~qW 2~7~.~?~0 points and a ~2qf~2qive-~qmutica~ql~-mfle-wide 37 18.378 I~qM 18~-~qM
8.. . . ......- 37 30 29~-~4~0~7~qM ~'~1~q23 ~q4~q5 ~o~l~qd~-~0q@ zone ~v~ve~st of western boundary of ~7~7 ~q- ~3~7 ~I~S~-~2~65 123 19~.1~0~1
9~.. ~.~q- 37 31 ~170~9~9~4~9 123 ~q0~7 ~4~7.~633~03 that area: ~7~8 - 37 18.1~51 123 19~-1~9~0
10 ...... . ....... 37 27 10.~9~3~5~1~M 123 0~8 24.32210 ~qM~_~q_~q_ 37 1~0.070 12~3 1~9~.2~04
11 37 20 35.374~91 123 0~q6 ~q54~-~1~q7~qM an ~q- ~3~7 ~18.0~04 ~1~2~3 ~qM~qU~S
12..~q-~q-~q- ~3~7 ~13 ~50~2~1~0~06, 1230~6 ~qU~.50~600 ~P~q*~* L~a~qf~qt~qd~o ~L~q=~qq~b~X~I~& ~al ~q- V 1~7.~951 123 ~i~g~q=
13.~q_~q_ 37 07 ~4~&~7~0~"0 ~123 0~1 4~&~10~0~04 ~S2_ 37 1~7.8~64 123 19.4~5~4
14- ~37 03 46,~60~9~9~9 122 6~4 45 13 as ~q3~7 ~1~7~.905 123 ~1~9~.5~qZ
~3~7 02 0~6.30~955 122 ~4~6 35.~0212~5 1 ~qV 2~5~.~85~0 123 ~qM~02~6 ~R~A ~37 17.~735 12~3 1~9~-~S~0qU
3~6 55 ~1~7~.~5~6~qM 122 ~4~6 ~2~1.4~1~121 2 V 25.79~3 123 21~0q= ~e~5 ~37 ~t7.~641 123 19.~6~q0
17 ..... ~q_~_ ~3~6 ~4~8 ~2~qZ~7~42~44 122 ~4~6 5~6~q2~M~qW 3 ~3725.~733 12321.91~9 3717.5~65 123 1~9A~I~T
~1~9~q-~q- 3~6 41 30.91~6~1~9 122 ~4~6 ~19~,4~0~73~6 ~4 ~q3~7 2~5~.~q6~8~6 ~?23 2~1.~910 ~0qW 1~7.4~8~q9 123 1~9~-~O~qn
~3~6 34 45.~7~6~07~0 122 4~6 2~I~L9~6~722 5 ~0qV 25~.~qW~O 123 21.~8~1~1~6 ~s~o V ~17.401 123 19~-~6~17
20 ............_ ~3~6 2~6 24.~1~9~qM ~122 ~43 3~7-4~3~527 ~6- ~3~725 12321.~875 @a-_- ~37 17.352 123 ~I~&~O~G~S
21 _ ~3~6 22 20~.~70~3~$2 122 3~0 26.~42~02~0 7~' ~q37 ~q2~q&5~13 ~t23 21~0q" ~9~q0 ~0qW ~17~-~30~6 123 1~9.5~8~q3
~2~2~-~q-.~q-~q- ~3~6 ~1~6 ~4~&935~qM 122 3~4 2~L7~0qM~qG ~q8 ~q3725.451 123 21 AM In ~qW 17 123 ~1~9~1~0qM
23..~-~q-~q- ~3~6 11 44.53~83~6 122 2~q6 ~q3~7.~1~6~141 ~q9 ~q37 ~q2~q5~0q2~04 123 21.7~0qM go 37 ~17~q24~6 12~31~9.5~14
24 .................. ~3~6 0~7 ~2~6~.9~8~9~1~6~8 122 21 54~-97541 10 37 25~qM~A~I 12321 ~'an as 37 2~5~.9~02 123 ~q0~.~6~17
25 .................. 36 ~04 07.0~6898 122 14 ~q3~9.75~024 ~I~1~q_~q_ 37 252~qM 123 ~0qM59~6 ~C~M 3725.850 12321.92~9
26 ............ ~__ ~3~6 0~1 2~5~.22233 122 ~q0~7 ~O~O~L~I~SOS~S ~1~9 3~725~.1~80 123 VASS
27 .................. 35 5~9 46~.4~6~q3~8~1 ~'~12~1 5~q6 5~q6~0qM~0qM 13 3~q725.130 123 21~@~4q=
28 ... . ............. 35 58 59.12170 121 502~6.47931 ~14~q-~q- 3~725.057 12321.240
29 ............ . .... 35 58 53.~638~q0 121 45 22.~82~q3~8~q3 3~7 ~24~J9~2 123 21.16~7 ~2qM~qw ~qp~arti~c~qe of t~2qM am described by
30 ............ . .... 35 55 45.~S~O~L~?~3 121 42 40~q2~L~qW 3724.8~7~8 ~12~321.0~0~0 the above points that lies within the
31 .............. . .. 35 ~50 ~15.~9425~6 ~1~qW ~43 ~0~&2~*~qM 17~-~q-.~q- ~3724.70~6 12321.0~3~4 Monterey Bay National Marine
32 ~3~6 43 142~8~qM 121 ~42 ~4~MM2~1 ~q%__ 3724.700 12320~-~9~7~6 Sanctuary as described in Appendix I is
33 ............... . .35 35 41 ~A~S~qM 121 41 25.~074~14 So- 3~724.~602 12320.8~72
~34 ......... ...... 35 33 ~1~1~1~5999 121 ~3~749.~741~92 2~C 37 24~.62~1 12320.7~0~3 ~a~X~-~qk~g~qd~2qW
35 ........ . ....... 35 33 17.~4~S~qM ~12~1 0~5 52.~89~9~0~1 21 ~3~72~4.4~4~9 ~123 2~0.~6~0~2
36 .......... ~4q_~q.~q.~q. 37 35 3~0.7~3~qM 122 31 ~14~q.9~1~1~qM ~0~0 ~3~7 24~qM ~12~3 20.5~q0 ~4qS~qh~0q* Am ~q4
37 .......... . .. . .. 37 ~q3~q6 4~q9.2~q173~q9 122 ~0q3~q7 0~0q0~q.~00q=~q7~q7 2~q2 3724.3~q42 12320.~q5~6q0
38 ..... ~8q_- 37 4~q6 ~qOQ~qJ~q18~q9~q63 122 39 ~qO~qQA~qQ~6qW 24 37 24~q2~6qM 12320.421 ~4qT~28qhe area described by this following
37 49 05.~q1~q1~q0~q8~q0 122 31 ~q46.305~q42 2~q5 3~q724.24~q6 12320.340 p~qo~0qi~qn~12qb and a f~0q1~qV~q4~8qH~8qA~qU~20qd~qC~qa~28qW~qR~0qi~8q1~q*~q-W~28qW~qG
~q2~q6~2q-~8q-~q_ 3~q724.193 123 20 zone west of the western boundary of
~0q3~0q7 ~0q2~qt~2qw ~6qM~0q3 ~qJ~6qa~q%~6qm that area:
~q2~qB~q.~8q-~2q_ 3724.103 ~q12320.031
App~6qw~qx~0qHx ~20qL Dredged N~20qW~2qw~24qW ~28qf~28qtp~0qo~0qea~0ql 2~6qi ~q3~q7 ~q24~qA~6qM ~q12~q3 ~q19~q.93~q4
S~20qf~20qt~qs Ad~8qj~qa~qc~6qwt to Me ~24qM~0qo~qr~16q"~28qM Bay 30 37 2~q4~6qA~qI~q? ~qI~00qZI IS= Pow ~0qL~qB~qWA~qW~qO ~0qL~0qW~0q4~qW~qA~q1~q*
31~q.~q- 3~q7~0q2~0q3.~q95~q2 12~q3 1~q1.~q6~q6~0q2
N~qatlo~qn~qa~0qd Mw~6qin~qi~qs Sanctuary 3~q2.~q- 3~q72~0q190~q0 ~q12~q3 1~q0~q9.~q31~q17
(Appendix based an North American 3~q3. ~6qV ~qZ~qL~6qM ~q1~q2~q2 Was 1- ~q37 17.406 ~q12~q3 ?A2~q8
34 ~0q3~q7 2~q&~q7~6q0 In ~qI~qL~0q27~q8 2 37 17.4~q9~q9 123 14.071
Datum of 1~8q9~08qM.) ~q3~q6 ~q3~q72~q3.72~q9 123 ~q19.~q125 3 ~q3~q7 ~q17~q3~2qW ~q12~q5 14~q2~8qf~8qt
As of the effect" date of Sanctuary ~q3~q6~4q-.~4q-~2q- 3~q72~q3.~q6~q4~q4 123 ~q1~q6.9~q0~q6 4- 3~q7 ~8qM~6qM In ~4qU.412
designation. the U.S. Army Corps of 37 ~q3~q7~q2~q3~q.~qS~q8~q2 ~q12~q3 WON 5 ~q3~q7 ~6qM~q1~q7~q0 ~q12~q2 ~q1~q4~2qM~qT
Engineers operates the ~8qf~qo~8ql~8ql~qow~6qi~qr~qig 3~q8_ ~0q3~q7 2~qL~q4~00qW In ~6qW~q7~q0~q7 ~q6 17.0~q4~q7 123 14.~q6~q6~q1
39. 3~q7 ~q2~q3~q21~q6~q7 I~6qM MUM 7 371~q6.94~q9 123 ~q14.~2qM
dredged material disposal site# ~qad~8qfacent 4~q0_ 37 ~6qM 12~0qS ~q14.~q4~00qV a ~q3~q7 ~qI~6qU14 123 14~qA~6qM
to the Sanctuary off of the Golden G~qa~12qW. 4~q1~4q-~q-~--- ~q3~q72~q3.~q12~0q3 123 1& 23 I~qS-~6q0~q8

43318 Federal Register Vol. 57, No. 182 Friday, September 18, 19~92 / Rules and Regulations

Point ~L~a~b~h~qA~e ~Lo~n~qo~u~i~de Point Latitude ~L~o~r~4~p~t~u~d~e The FEIS/MP includes a detailed
discussion. by program area. of agency
~0 ...................................... 37 1~6~.568 123 15.118 4........................................ 3~7 34.574 ~123 2o~.~-~,~z~qu roles and responsibilities. The goals and
I I...................................... 37 16.451 123 15.219 5........................................ 3~7 34.661 123 19.507 objectives for the Sanctuary are:
12 ...................................... 37 16.348 123 15.308 6........................................ 37 34.725 123 1~9.376
13 ...................................... 37 16~.~qM 1 ~qM 15.~,~qW 7........................................ 37 34.7~25 I~qM 19.376 Resource Protection
14 ...................................... 37 16.090 123 15.446 ~8........................................ 37 35.031 ~1~q1 ~19.452
15 ...................................... 37 15~.~9~99 123 15.484 ~9........................................ 37 35.935 123 1~9~.0~81 The highest priority management goal
16 ...................................... 37 15.8~18 12~3 15.547 10 ...................................... 3~7 36.7~69 123 18.~542 is to-protect the marine environment.
17 ...................................... 37 15.637 123 15.585 11 ...................................... 3~7 37.6~q% 123 17~.7~8~8 resources and qualities of the Sanctuary.
le ... . ............................... 37 15.482 123 15~-585 12 ...................................... 37 37.765 123 17.743
1 ~ .................................... 37 15.314 123 15.5~98 13 ...................................... 37 37.789 123 17.827 The specific objectives of protection
2~ ..... . . .......................... 37 15.184 123 15.~61~0 14 ...................................... 37 37.~qW8 123 17.911 efforts are to:
2~ ................................... 37 15.055 123 15.635 15 ...................................... 37 37.~887 123 17.99~6 (1) Coordinate policies and
2~ . .................................... 37 14.~912 123 15.~q6~73 16 .................... ................. 37 37.937 123 18.105
23 . . .................................. 37 14.7~63 123 15~.~G~0qN 17 .................... ................. 37 3~7.998 123 1~q8.202 procedures among agencies sharing
24 ...... . ...... . .............. . ... 37 14.667 123 15.712 18 .. . .................................. 3738.085 123 18.359 responsibility for protection and
. ..................... 3~7 14.551 123 1~6.72~4 19 ...................................... 3~738.1~83 123 18.52~9 management of resources;
26 . . ..... . . . . ........ . ..... . ..... 37 14.421 123 ~t~S.74~9 2~0 ............. ........................ 37 3~0.270 123 18.~q674 (2) Encourage participation by
27 ........ . ..................... . .... 37 14292 123 15~-799 21 ...................................... 37 38~.3~qW I~qM ~1~8~* 832 interested agencies and organizations in
28 ................ . .................... 37 14.1~68 123 15~-~q850 22 ..... . . . ................. ......... 37 38.455 123 ~1~8.97~7
29 .... ................................. 37 14.072 123 15.~8~87 23 ...................................... 3~738.554 123 19.134 the development of procedures to
30 .. . ................... . ...... . ..... 37 13.95~6 123 15~-938 24 ................ . .................... 37 38.640 123 19.255 address specific management concerns
31 ..... . ........................ ..... 37 13.801 123 16.001 25 ....... . .......................... .. 3~7 3~0.72~6 123 19~-~1~q" (eg., monitoring and emergency-
32 ................ . .. ................ 37 13.~672 123 WON 2~6 ...................................... 37 3~0.82~5 123 19.497 grams),
. ............ .37 13.568 123 ~1~6~-102 27 ......... . ........................... 37 ~38~.~911 123 ~1~9~.~6~qW response pro
28 .................... . ................ 3~7 38.~985 I~qM 19.~7~qW (3) Develop an effective and
34 ------ . ..... . .... ............... 37 13.~451 123 1~6~-178 29 .... ................................. 37 ~3~9.071 123 19~.811 coordinated program for the
. . . .............. 37 13.322 123 16~0q2~0qN 30 ...... . .......................... . .. ~q3~7 3~9.19~5 1~qM 19.9~61
36 . . . . ...... . .. . ..... . ........ 37 13.1~9~3 123 16.~qM enforcement of Sanctuary regulations.
37 .. . . ... . . . ..... . . ...... . ... 37 13.063 123 1~6~2~qn 31 .............. ....................-3~73~9.318 I~qM 20.1~38 (4) Enforce Sanctuary regulations in
37 ~I~Z~O73 123 1 ~6~_~2~q0~1 32 ..... ...................... . ....... 3~73~9.4~4~q9 12320272
39 ....... . . ...... . 37 12.830 123 ~1~6~.~q= 33~.~.~.~-~.. . ......... . ................ 37 39.478 12320~-35~6 addition to other regulations already in
40~~~.~ . . . ........ .~q_~_~_~_ 37 12-~qM 123 16.355 34 ... . . .............................. 37 39~,~565 I~qM 20.48~q5 place;
41 ........ . . . . ....... ~_~q_ 37 ~I~Z4~58 123 1~6.367 35 . . . . . ........................... 37 3~9~A~qW 123 ~0qM~.574 (5) Promote public awareness of. and
37 12.275 123 1~6.3~S7 36 ........ . ............................ 37 39.762 12320~-~q6~q96 voluntary compliance with~. Sanctuary
373~9.840 12320.791
I ....... . .~q_. 3~7 ~I~Z122 12~3 ~16.~qW 3~0 . . . . . . . . ....... . ........... 37 3~9.99~2 123 20.88~9 regulations and objectives, through an
37 11.987 123 1~6.312 373~9.~9~97 12320.98~6 educational/interpretive program
37 1 ~I.~8~qW 123 ~1~6~0q2~qN 40 ...... .. ......... 3~740.096 12321.095
4~ .. . ...... . 37 11.754 123 1~6.21~6 41 . .. . .. ....................... 3740.1~61 12321.192 stressing resource sensitivity and wise
37 11.~631 123 ~1~6.14~2 42 .. . .... ................... ... 3~7 40~q2~qM 123 212~qM use;
37 11.537 123 1~6.0~6~7 43 .... . .... . ........ . ............-37 40~.~0q= 12321.373 (a) Ensure that the water quality of
49 ... . .......... 37 11.473 123 ~1~q&994 3740.41~6 12321.4~70
~0 ......... . . . 37 11.4~2D 12~3 ~15.~930 3~740.51~6 12~3 21.~qM Monterey Bay is maintained at a level
51 ...... 37 11 _~0qW 123 15.~q6~72 nsonant with Sanctuary designation;
52 ..... .............. 37 11~.~344 123 ~15.~4qM 4~6 . . . . ........... . ... . .. .3740.~61~6 1232~1.867 C~O
3~740.73~6 123 21.785 (7) Establish mechanisms for
53 ......... . ............... 3~7 1~1.2~79 123 15~.~q0~06 3~7 40~0q" 123 21~.906 coordination among a~ql~ql the agencies
~4 37 11~.227 123 ~IS.S4~7 37 40.9~q63 123 2~Z~qW7
~~~_~.-~~-~~-~*~*~q_-~'- 37 11.1~8~8 123 ~I~S~A21 50 . . ....... . ..... 3741.107 123 2~Z~I48 participating in Sanctuary management:
56 ....... 37 11~-~1~50 12~q3 ~'~qS~@~0qM 51 37 4~1~.~q= 12322269 (8) Ensure that the appropriate
57 ........ ~~~~~~~~~~ 37 11.116 12~3 15.124 ~q5~2_~...~._~' 3~741.378 123 22-~0qM management agencies incorporates
. ................. 37 11.0~9~6 12~844-9~90 3~741.515 123 2~2~.499
59 ....... .... . ........ .37 1~1.~0~85 research results and scientific data into
123 ~14~J~qM 3~7 4~1.8~0~0 123 2~q2~.~qW~?
~0 ..... ........... 37 11.072 123 ~14.~0qM 37 41~.~9~qW 12~222.70~4 effective resource protection strategies.
61 ....... ~*~*---~*- 37 11~.~059 123 14.437 ~q3? 41.920 ~123 22.7~s~e and
62 ....... ...... ~*~*~*~' 37 11.0~62 123 ~14~q359 ~5~7_~.__ 37 42~qM~O 123 ~2~9 ~q(9) Reduce threats to Sanctuary
63 37 1~1.033 123 14~q2~qN 37 42.~17~4 12~3 22~qM~qO
64 ................137 11.00~4 123 14.1~5~8 ~q3~7422~9~5 12322.~957 resources and qualities.
65 ......... ................137 ~10.~978 123 ~14.~0qM 80 . . ............... 37 4~qL42~1 123 23.012 Research P~z~v~qgram
66 3~7 10.~942 123 13.978 37 42.5~83 12323~-105
~~ ........ ~-~-~~~---~*~*~*-~*~* 37 ~I~O~qA~0qW 123 1~3.8~77 3~742.704 12323.1~q65 Effective management of the
~~ ...........~.... ~~ ................... 37 10.847 123 13~A~0qM 3~7 4~2-~qM 1232~3~-225 Sanctuary requires the initiation of a
~9 ...................................... 37 ~I~O~A~qW 123 13.~7~qV 3~q743.005 12323.310
70 ....................... .............. 37 10.712 123 13.~6~14 . .. ...... 37 43~A~qN 123 23~L3~q58 Sanctuary resea~qmh program. ~qT~6qhe
71 .............. . ...................... 37 10.~6~4~8 123 13.531 3~q7 4~q3~.~0qM ~12323.410 purpose of Sanctuary research activities
72 ...................................... 37 1~0.584 123 13.43~9 37 43~-3~qV 123 2~3~-~qW is to improve understanding of the
73 .....................-------------- ~37 1 ~q.50~q6 123 13.370 3~743.37~q6 ~12~q323.482
74 ...................................... 37 ~q1~q0.~q5~2qm 123 7~q@~6qM ~qO~qW . . ....... . .~8q_~q_~q_~q_ 37 ~q4~q&~q444 1~q2~q323.5~q15 Monterey Bay area environment
75 ....... . . . . ....... . .... . ..... ~q3~q7 17~qA9~q6 123 7.~q529 1 resources and qualities. and to resolve
specific management problems. some of
End of Designation Document which may involve resources common to
Study Area 5 both the Bay and nearby State parks.
IIL Summary of Final Mana~6qg~qe~qtne~qnt Plan refuge& and reserves. Research results
~qT~4qhe area described by the following The FEI~4qS/MP for the Monterey Bay will be used in interpretive programs for
points and a five-n~qaut~6qical-m~6qile~q-w~0qide National Marine Sanctuary sets forth visitors and others interested in th~qe
zone west of the western boundary of the Sanctuary's location and provides Sanctuary. as well as for protection and
that area- details on the most important resources management of resources and qualities.
point ~qL~qa~8qNud~qe I L~qong~qM and uses of the Sanctuary. ~20qT~8qh~qe FEIS/MP Specific objectives for the research
describes the resource protection. program are to:
............. ... ... 37 43.4~4q" 123 2~q151 research. education and interpretive ~2q(i~8q) Establish a framework and
3~q7 43~q.43~q6 123 = programs, and details the specific procedures for administering research to
3 .... . .. . .... ~q_..-..~q_..~q-.~q_~q-~q_ 1 37 34~q-S~qO~qO I ~qI~qz3 3o~qa~8qm activities to be taken in each p~qr~qo~8qgr~qe~qa~qL ensure that resea~0qmh projects are

Federal Register / Vol. 57, No. 182 / Friday, September 18, 1992 Rules and Regulations 43319

responsive to management concerns and (1) Provide relevant information about any person to conduct them or cause
that results contribute to improve Sanctuary regulations, use policies and them to be conducted. However, any of
management of the Sanctuary: standards; the prohibited activities except for. (1)
(2) Incorporate research results into (2) Collaborate with public and The exploration for. development of or
the interpretive/ education program in a private organizations in promoting production of oil, gas or minerals in the
format useful for the general public, compatible uses of the Sanctuary; Sanctuary, (2) the discharge of primary-
(3) Focus and coordinate data (31 Encourage the public who use the treated sewage within the Sanctuary
collection efforts on the physical, Sanctuary to respect sensitive Sanctuary (except for certification. pursuant to
chemical, geological and biological resources and qualities and � 944.10, of valid authorizations in
oceanography of the Sanctuary; (4) Monitor and assess the levels of existence on the effective date of
(4) Encourage studies that integrate use to identify and control potential Sanctuary designation and issued by
research from the variety of coastal degradation of resources and qualities other authorities of competent
habitats with nearshore and open ocean and minimize potential user conflicts. jurisdiction), or (3) the disposal of
processes; The Sanctuary will be managed from dredged material within the Sanctuary
(5) Initiate a monitoring program to a headquarters loca .ted in the Monterey other than at sites authorized by EPA (in
assess environmental changes as they Bay region. consultation with COE) prior to the
occur due to natural and human IV. Summary of Regulations effective date of designation could be
processes; The regulations set forth the boundary conducted lawfully if one of the
(6) Identify the range of effects on the of the Sanctuary. prohibit a relatively following four situations applies;
environment that would result from narrow range of activities. establish (1) The activity is necessary to
predicted changes in human activity or procedures for Rpplying for national respond to an emergency threatening
natural phenomena; and marine sanctuary permits to conduct life. property or the environment;
(7) Encourage information exchange prohibited activities. establish authorized by a National Marine
among all the organizations and certification procedures for existing Sanctuary permit issued under section
agencies undertaking management- leases, licenses, permit& approvals, 944-9; or authorized by a Special Use
related research in the Sanctuary to other authorizations or rights permit issued under Section 310 of the
promote more informed management. authorizing the conduct of a prohibited Act.
Education Progzum activity; establish notification and (2) With regard to Department of
review procedures for applications for Defense activities: The activity is an
The goal for education programs is to leases, licenses. permi* approvals or existing mifitM activity, or the activity
improve public awareness and other authorizations to conduct a is a new activity and exempted by the
understanding of the significance of the prohibited actMty-, am forth the Director of the Office of Ocean and
Sanctuary and the need to protect its maximum Per-d&Y Penalties fur violating Coastal Resource Management or
resources and qualities. Sanctuary regulations; and establish designee after consultation between the
The management objectives designed Pr0cedWW for administrative appeal& Director or designee and the Department
to meet this goal are to: Specifically, the regulabons add a of Defense. 7lie regulations require that
(1) Provide the public with new part 944 to title = Code of Federal the Department of Defense carry out its
information on the Sanctuary and its Regulatimm activities in a manner that avoids to the
goals and objectives, with an emphasis Section 9"l sets forth as the purpose maximum extent practicable any
on the beed to use Sanctuary resources of the regulations to implement the adverse impact on Sanctuary resources
and qualities wisely to ensure their long- designation of the Monterey Bay and qualities and that it. in the event of
term viability; National Marine Sanctuary by threatened or actual destruction of. loss
(2) Broaden support for the Sanctuary regWaftS activities affecting the of, or injury to a Sanctuary resource or
management by offering programs. Sanctuary consistent with the terms Of quality resulting from an untoward
suited to visitors with a range of diverse that designation in order to protect and incident. including but not limited to
interests; manage the conserved= ecological. spills and groundings. caused by it
(3) Provide for public involvement by recreatkinaL research, educationat promptly coordinate with the Director cc
encouraging feedback on the historical and esthetic resources and des@griee for the purpose of taking
effectiveness of education programs, qualities of the area. appropriate actions to respond to and
collaboration with Sanctuary Section 9442 and appendix I following mitigate the harm and. if possible.
management staff in extension and I W.12 set forth the boundary of the restore or replace the Sanctuary
outreach programs. and participation in Sanctuary. resource or quality. The final regulatim
other volunteer programs; and Section 964.3 defines various terms regarding Department of Defense
(4) Collaborate with other used in the nVoladons. Other terms. activities differs from the pwposed
organizations to provide educational appearing in the regulations are defined
services complementary to the at 15 CFR 9= andlor tn the MPRSA. regulation prindpwy bir.
Sanctuary progranL Section 94!L4 allows afl activities (i) Making all sallitary activities (as
except those prohibited by I 9GU to be specifically identified in FELSIMP)
Visitor Use undertaken to the requhvmmto currently being carried out by do
The Sanctuary goal for visitor of any emoymmy regulation Department of Defense examW fross the
management is to facilitate, to the promulgated pursuant to I 9"A subject Saactus" regulatory prc&lbftWm not
extent compatible with the primary to all prohibibons, restrictions and just those determined necessary for the
objective of resource Protection. public conditions vabdly imposed by any other nationaldefenw.
and private saw of the resources of the authorft of couWatent IwWdWfim and (ii) Adding the requirement to avoid to
Sanctuary not prohibited purstiant to subject to " liabift established by the maximum extent practicable any
other authorities. section 312 of the Act. adverse impacts; and
Specific management objectives we Section 9"3 probibilte a vaflmy of (iii) Adding the requfrement of prompt
to; activities and thus nakes it unlawful for coordinadm in the even of an

43'29'20 Federal Register / Vol. 57, No. 182 / Friday, September 1& 1992 / Rules and Regulations

untoward incident, for the purpose of location within the boundary of the material deposited outside the
taking appropriate actions. Sanctuary materials or other substances Sanctuary at the duly authorized
(3) The activity is authorized by a except: (1) Fish, fish parts, chumming disposal site that will result from the
certification by the Director of the Office materials or bait used in or resulting disposal site study underway on the
of Ocean and Coastal Resource from traditional fishing operations in the effective date of Sanctuary designation.
Management or designee under � 944.10 Sanctuary; (2) biodegradable effluent provided that the dredged material
of a valid lease, permit license or other Incidental to vessel use and generated disposal is pursuant to, and complies
authorization issued by any Federal. by marine sanitation devices approved with the t'erms and conditions of. a valid
State or local authority of competent in accordance with section 312 of the Federal permit or approval. The future
jurisdiction and in existence on (or Federal Water Pollution Control Act. as disposal site will be located within one
conducted pursuant to any valid right of amended, (FWPCA), 33 U.S.C. 1322 et of the Long-Term Management Strategy
subsistence use or access in existence seq.; (3) water generated by routine Ocean Study Areas described in
on) the effective date of this designation, vessel operations (e.g., cooling water, appendix IV. When that disposal site is
subject to complying with any terms and deck wash down and graywater as authorized. appendix IV will be updated
conditions imposed by the Director or defined by section 312 of the FWPCA) to incorporate its precise location. The
designee as he or she deems necessary excluding oily wastes from bilge intent of this prohibition is to protect the
to achieve the purposes for which the pumping; (4) engine exhaust, and (5) Sanctuary resources and qualities from
Sanctuary was designated. dredged materials deposited at disposal the harmful effects of land and sea-
(4) The activity is authorized by a sites authorized by COE or EPA prior to generated non-point and Point source
valid lease, permit, license, approval or the effective date of Sanctuary pollution.
other authorization issued by any designation. provided that the activity is The fourth activity prohibited is
Federal, State or local authority of pursuant to. and complies with the terms moving. removing or injuring or
competent jurisdiction after the effective and conditions of, a valid Federal permit attempting to move, remove or injure a
date of Sanctuary designation. provided or approval existing on the effective Sanctuary historical resource. Historical
that the Director of the Office of Ocean date of Sanctuary designation. resources in the marine environment are
and Coastal Resource Management or This prohibition is necessary in order fragile, finite and non-renewable. This
designee was notified of the application to protect Sanctuary resources and prohibition is designed to protect these
in accordance with the requirements of qualities from the effects of pollutants resources so that they may be
1944.11, the applicant complies with the deposited or discharged into the researched and information about their
requirements of 1944.11, the Director or Sanctuary. contents and type made available for
designee notifies the applicant and Disposal activities at the existing sites the benefit of the public. This
authorizing agency that he or she does within the Sanctuary are allowed prohibition does not apply to moving.
not object to issuance of the provided such disposal is pursuant to, removing or injury resulting incidentally
authorization, and the applicant and complies with the terms and . from kelp harvesting, aquaculture or
complies with any terms and conditions conditions of. a valid Federal permit or traditional fishing operations.
the Director deems necessary to protect approval existing on the effective date The fifth activity prohibited is drilling
Sanctuary resources and qualities. of Sanctuary designation. Once existing into, dredging or otherwise altering the
The first activity prohibited is permits expire, additional disposal at seabed of the Sanctuary; or constructing.
exploring for, developing or producing such previously approved or permitted placing or abandoning any structure.
oil. gas or minerals within the sites must be approved by NOAA in material or other matter on the seabed
Sanctuary. The resources and qualities accordance with J 944.11. AD other of the Sanctuary. except if any of the
of the Monterey Bay area, particularly disposal of dredged material within the above results incidentally from: (1)
sea otters, sea birds, and pinnipeds that Sanctuary is prohibited. Point source Anchoring vessels; (2) kelp harvestin&
use the haul-out sites, kelp forests add discharges, including, but not limited to, aquaculture or traditional fishing
rocks along the Monterey Bay coast and desalination plants, are allowed operations; (3) installation of navigation
the high water quality of the area. are provided such discharge is certified by aids; (4) harbor maintenance in the
especially vulnerable to oil and gas NOAA in accordance with I 94CILO or
activities in the area. A prohibition on approved by NOAA in accordance with areas necessarily associated with
oil and gas activities within the 1944.11. After expiration of current Federal Projects in existence on the
Sanctuary boundary will provide partial permits. discharges from municipal effective date of Sanctuary designation.
protection from oil and gas activities for treatment plants will be subject to the including dredging of entrance channels
the resources and qualities within the review process of 1944-21. At a and repair, replacement or rehabilitation
boundary. Only partial protection would minimum. secondary treatment will be of breakwaters and Jetties; or (5)
be provided due to the remaining threat required. Depending on the risk to construction. repair, replacement or
from oil and gas activities outside of the Sanctuary resources and qualities. rehabilitation of docks or piers. Federal
Sanctuary boundary and from vessel greater treatment may be required. Projects are any water resources
traffic, particularly oil tankers, transiting The third activity prohibited is development projects conducted by
through and near the Sanctuary. A depositing or discharging. from beyond COE or operating under a permit or
prohibition on mineral activities within the boundary of the Sanctuary. other authorization issued by COE and
the 3anctuary is consistent with the materials or other matter that authorized by-Federal law.
prohibition on alteration of or subsequently enter the Sanctuary and The intent of this prohibition is to
construction on the seabed as discussed injure a Sanctuary resource of quality. protect the resources and qualities of the
below. "Mineral" is defined to mean except for the first four exclusions Sanctuary from the harmful effects of
clay. stone. sand. gravel. metalliferous discussed above for the second activities such as. but not limited to.
ore. nonmetalliferous ore or any other prohibited activity, dredged material archaeological excavations, drilling into
solid material or other matter of deposited outside the Sanctuary at the seabed. strip mininst laying of
commercial value. dispowd sites off of the Golden Gate pipelines and outfalls, and offshore
The second activity prohibited is authorized prior to the effective date of commercial development. which may
depositing or discharging from any Sanctuary designation. and dredged - disrupt and/or destroy sensitive marine

Federal Register / Vol. 57, No. 182 / Friday, September 18, 1992 / Rules and Regulations 43321

benthic habitats, such as kelp beds, interfering with, obstructing. delaying or consider such factors as the professional
invertebrate populations, fish habitats, preventing investigations, searches, qualifications and financial ability of the
and estuaries and sloughs. seizures of disposition of seized applicant as related to the proposed
The sixith activity prohibited is taking property in connection with enforcement activity, the duration of the activity and
marine mammals, sea turtles or seabirds of the Act or any regulation or permit the duration of its effects, the
in or above the Sanctuary, except as issued under the Act. appropriateness of the methods and
permitted by regulations, as amended, Section 944.6 authorizes the procedures proposed by the applicant
promulgated under the Marine Mammal regulation, including prohibition, on a for the conduct of the activity, the extent
Protection Act, as amended, (MMPA). 16 temporary basis of any activity where to which the conduct of the activity may
U.S.C. 1361 et seq., the Endangered necessary to prevent or minimize the diminish or enhance Sanctuary
Species Act. as amended. (ESA), 16 destruction of, loss of, or injury to a resources and qualities, the cumulative
U.S.C. 1531 et seq., and the Migratory Sanctuary resource or quality. or effects of the activity, and the end value
Bird Treaty Act. as amended. (MBTA), minimize the imminent risk of such of the activity. In addition, the Director
16 U.S.C. 703 et seq. The term "taking" destruction, loss or injury. or designee is authorized to consider
includes all forms of harassment. The Section 944.7 sets forth the maximum any other factors she or he deems
MMPA, ESA and MBTA prohibit the statutory civil penalty for violating a appropriate.
taking of species protected under those regulation--M.000. Each day of a Section 944.10 sets forth procedures
Acts. The prohibition overlaps with the continuing violation constitutes a for requesting certification of leases,
MMPA, ESA, and MBTA but also separate violation. Section 944.8 repeats licenses, permits, approvals, other
extends protection for Sanctuary the provision in section 312 of the Act authorizations or rights in existence on
resources on an environmentally holistic that any person who destroys, causes the date of Sanctuary designation
basic and provides a greater deterrent the loss of, or injures any sanctuary authorizing the conduct of an activity
with civil penalties of up to $50,000 per resource is liable to the United States prohibited under paragraphs (a) (2H9)
taking. The prohibition covers all marine for response costs and damages of 1944.5. Pursuant to paragraph (f) of
mammals. sea turtles and seabirds in or resulting from such destruction, loss or 1944.5, the prohibitions in paragraphs
above the Sanctuary. injury, and any vessel used to destroy, (a) (2H9) of 1944.5 do not apply to any
The seventh activity prohibited is cause the loss of, or injure any activity authorized by a valid lease,
flying motorized aircraft at less than sanctuary resource is liable in rem to the permit, license, approval or other
1,000 feet (305 in) above the Sanctuary United States for response costs and authorization in existence on the
within four specified zones (See damages resulting from such effective date of Sancthary designation
appendix 11 for the zones). This area- destruction. loss or injury. The purpose and issued by any Federal, State or local
specific prohibition on overflights below of these sections is to notify the public authority of competent jurisdiction, or
1.000 feet (305 in) is designed to limit of the liability for violating a Sanctuary by any valid right of subsistence use or
potential noise impacts, particularly regulation or the Act. access in existence on the effective date
those that might startle hauled-out seals Regulations setting forth the of Sanctuary designation, provided that
and sea lions, sea otters or birds nesting procedures governing administrative the holder of such authorization or right
along the shoreline margins of the proceedings for assessment of civil complies with the requirements of
Sanctuary. penalties. permit sanctions and denials 1944.10 (eg., notifies the Director or
The eighth activity prohibited is the for enforcement reasons, issuance and designee of the existence of.- requests
operation of motorized personal water use of written warnings, and release or certification of, and provides requested
craft within the Sanctuary except in four forfeiture of seized property appear at 15 information regarding such
specified zones and access routes to and CFR part 904. authorization or right) and complies
from these zones (see appendix III for Section 9".9 sets forth the procedures
the zones and routes). This regulation is for applying for a National Marine with any terms and conditions on the
intended to provide enhanced resource Sanctuary permit to conduct a exercise of such authorization or right
protection by prohibiting operation of prohibited activity and the criteria imposed as a condition of certification
motorized personal water craft in areas governing the issuance, denial, by the Director or designee as she or he
of high marine mammal and seabird amendment, suspension and revocation deems necessary to achieve the
concentrations. kelp forest areas, river of such permits. A permit may be purposes for which the Sanctuary was
mouths, estuaries, lagoons and other granted by the Director of the Office for designated.
similar areas where sensitive marine Ocean and Coastal Resource Section 944.10 allows the holder 90
Management or designee if he or she days from the effective date of
resources are concentrated and most
vulnerable to disturbance and other finds that the activity will have only Sanctuary designation to request
injury from personal water craft. The negligible short-term adverse effects on certification. The holder is allowed to
regulation is also intended to allow the Sanctuary resources and qualities and conduct the activity without being in
continuation of this form of recreation will: Further research related to violation of paragraphs (a) (2)-(9) of
while minimizing conflicts with other Sanctuary resources; further the � 944.5 pending final agency action on
recreational users. as well as reducing educational. natural or historical his or her certification request. provided
esthetic disturbance. resource value of the Sanctuary; further the holder has complied with all
Both the ninth and tenth prohibitions salvage or recovery operations in or requirements of J 944.10.
serve to facilitate enforcement actions near the Sanctuary in connection with a Section 944.10 also allows the Director
for violations of Sanctuary regulations. recent air or marine casualty; assist in or designee to request additional
The ninth prohibition is the possession the management of the Sanctuary; or information from the holder and to seek
within the Sanctuary of any historical further salvage or recovery operations in the views of other persons.
resource or marine mammal, sea turtle connection with an abandoned As a condition of certification. the
or seabird, regardless of where the shipwreck in the Sanctuary title to Director or designee will impose such
resource was taken. except in which is held by the State of California. terms and conditions on the exercise of
compliance with the ESA. MMPA and In deciding whether to issue a permit. such lease, permit. license, approval,
MBTA and the tenth prohibition is the Director or designee is required to other authorization or right as she or he

433Z2 Federal Register Vol. 57. No. 182 / Friday, September 18, 1992 / Rules and Regulations

deems necessary to achieve the other Federal officials below the Analysis be prepared. The
purposes for which the Sanctuary was Director's level. Administrator of NOAA has determined
designated. This is consistent with the Section 944.11 allows the Director or that the regulations in this motive are
Secretary's authority under section designee to request additional not major because they are not likely to
304(c)(2) of the Act. (Section 944.10 has information from the applicant and to result in:
no application to oil, gas or mineral seek the views of other persons. (1) An annual effect on the economy
activities as there is no existing lease. An application for an amendment to. of $100 million or more;
permit. license, approval, other an extension of. or a renewal of an (2) A major increase in costs or prices
authorization or right for any of these authorization is also subject to the for consumers, individual industries,
activities within the Sanctuary.) provisions of 1944.11. Federal. state or local government
The MOA entered into by NOAA. the The MOA entered into by NOAA. the agencies or geographic regions; or
State of California, EPA and the State of California, EPA and the (3) Significant adverse effects on
Association of Monterey Bay Area Association of Monterey Bay Area competition, employment, investment.
Governments regarding the Sanctuary Governments regarding the Sanctuary productivity, innovation or on the ability
regulations relating to water quality regulations relating to water quality of United States-based enterprises to
within State waters within the within State waters within the compete with foreign-based enterprises
Sanctuary (discussed under Comment/ Sanctuary specifies how the process of in domestic or export markets.
Response (6) under section 1. � 944.11 will be administered within
Background of this notice) specifies how State waters within the Sanctuary in Regulatory Flexibility Act
the process of 1944.10 will be coordination with the State permit The regulations in this motive allow
administered within State waters within program. all activities to be conducted in the
the Sanctuary in coordination with the The applicant may appeal any Sanctuary other than a relatively
State permit program. objection by, or terms or conditions narrow range of prohibited activities.
The holder may appeal any action imposed by, the Director to the The procedures in these regulations for
conditioning, amending. suspending or Assistant Administrator or designee in applying for National Marine Sanctuary
revoking any certification in accordance accordance with the procedures set permits to conduct prohibited activities,
with the procedures set forth in 1944.12. forth in 4 944-12. for requesting certifications for pre-
Any amendment. renewal or Section 944.12 sets forth the existing leases. licenses, permits,
extension not in existence as of the date procedures for appealing to the approvals, other authorizations or rights
of Sanctuary designation of a lease, Assistant Administrator or designee authorizing the conduct of a prohibited
permit. license, approval. other actions of the Director or designee with activity. and for notifying NOAA of
authorization or right is subject to the respect to: (1) The granting. applications for leases, licenses.
provisions of 1944.11. conditioning, amendment, denial, permits. approvals or other
Section 944.11 states that consistent suspension or revocation of a National authorizations to conduct a prohibited
with paragraph (g) of 1944.5. the Marine Sanctuary permit under 1944.9 activity will all act to lessen any
prohibitions of paragraphs (a)(2)-(9) of or a Special Use permit under section adverse economic effect on small
J 944.5 do not apply to any activity 310 of thelAct; (2) the granting, denial. entities. The regulations, in total. will
authorized by any valid lease. permit. conditioning, amendment, suspension or not have a significant economic impact
license. approval or other authorization revocation of a certification under on a substantial number of small
issued after the effective date of J 944-1(k or (3) the objection to issuance entities, and when they were proposed
Sanctuary designation by any Federal. or the imposition of terms and the General Counsel of the Department
State or local authority of competent conditions under 1944.11. of Commerce so certified to the Chief
jurisdiction. provided that the applicant Prior to conditioning the exercise of Counsel for Advocacy of the Small
notifies the Director or designee of the existing leases. permits. licenses, Business Administration. As a result
application for such authorization within approvals, other authorizations or neither an initial nor final Regulatory
13;' days of the date of filing of the or conditioning or objecting to PrOZ'd" Flexibility Analysis was preparecL
application or of the effective date of authorizations NOAA intends to consult
Sanctuary designation, whichever is with relevant issuing agencies as well as PaperworkReductions Act
later, that the applicant is in compliance owners. holders or applicants. NOAA's Thri rule contains collection of
with the other provisions of 1944.11. . policy is to encourage best available informaltion requirements subject to the
that the Director or designee notifies the management practices to minimize non- requirements of the Paperwork
applicant and authorizing agency that he point source pollution entering the Reduction Act (Pub. L N412). The
or she does not object to issuance of the Sanctuary and. for municipal sewage collection of information requirements
authorization, and that the applicant discharge, to require, at a minimum.
complies with any terms and conditions contained in the rule have been
the Director deems necessary to protect secondary treatment and sometimes reviewed by the Office of Management
Sanctuary resources and qualities. In tertiary treatment or more. depending on and Budget (OMB) under section 3504(h)
order to ensure maintenance of predicted effects on Sanctuary resources of the Paperwork Reduction Act and
program-wide consistency regarding and qualities. have been approved under OMB Control
these activities. which may address v. Miscellaneous Rulemaking No. 0548-0141. Comments from the
issues or uses of a highly sensitive Requirements public on the collection of information
nature on the local level. the authority requirements contained in this rule are
granted the Director under 1944.11 to Executive Order 12291 invited and should be addressed to the
object to or impose terms or conditions Under Executive Order 1=1. the Office of Information and Regulatory
on the exercise of any valid lease, Department must judge whether the Affairs, Office of Management and
permit. license. approval or other regulations in this notice are "majoe' Budget. Washington. DC 20503 (attn:
authorization issued after the effective within the meaning of section I of the Desk Officer for NOAA) and to Richard
date of Sanctuary designation will not Order, and therefore subject to the Roberts. room 305. 8010 Executive
be delegated or otherwise assigned to requirement that a Regulatory Impact Boulevard. Rockville. MD 20859

Federal Register / Vol. 57, No. 182 / Friday, September 18, 1992 / Rules and Regulations 43323

Executive Order 12612 exploration or development and Appendix H to Part 944 Zones Within the
production plan. no OCS leases have Sanctuary Where Overflights Below 1000
A Federalism Assessment (FA) was been sold for tracts within the Feet Are Prohibited
prepared for the proposed designation,
draft management plan and proposed Sanctuary and no exploration or Appendix III to part 944 Zones and Access
implementing regulations. The FA production and development plans have Routes Within the Sanctuary Where the
concluded that all were fully consistent been filed or approved. Operation of Personal Water Craft is
with the principles, criteria and List of Subjects in 25 CFR Part 944 Allowed
requirements set forth in sections 2 Appendix IV to Part 944--Dredged Material
through 5 of Executive Order 12612, Administrative practice and Disposal Sites Adjacent to the Monterey Bay
Federalism Considerations in Policy procedure. Coastal zone, Education, National Marine Sanctuary
Formulation and Implementation (52 FR Environmental protection, Marine Authority: Sections 302. 303, 304. 305, 307,
41685, Oct. 26,1987). Copies of the FA resources, Natural resources, Penalties, 310 and 312 of title III of the Marine
are available upon request to the Office Recreation and recreation areas, Protection. Research, and Sanctuaries Act of
of Ocean and Coastal Resource Reporting and recordkeeping 197Z as amended (16 U.S.C. 1431 et seq.).
Management at the address listed requirements, Research. 944.1 Purpose.
above. (Federal Domestic Assistance Catalog The purpose of the regulations in this
National Environmental Policy Act Number 11-429 Marine Sanctuary Program) part is to implement the designation of
In accordance with Section 304(a)(2) Dated: September 15,1992. the Monterey Bay National Marine
of the Act (16 U.S.C. 1434(a)(2)) and the W. Stanley Wilson. Sanctuary by regulating activities
provisions of the National Assistant Administratorfor Ocean Services affecting the Sanctuary consistent with
Environmental Policy Act of 1969 (42 and Coastal Zone Management. the terms of that designation in order to
protect and manage the conservation,
U.S.C. 4321-4370(a)), a DEIS/MP was Accordingly, for the reason set forth ecological, recreational, research,
prepared for the designation and the above. 15 CFR chapter IX is amended as educational, historical and esthetic
proposed regulations. As required by follows: resources and qualities of the area.
section 304(a)(2) of the Act, the DEIS/
UP included the resource assessment SUBCHAPTER B-OCEAN AND COASTAL 944-2 BOundBrY-
report required by section 303(b)(3) of RESOURCE MANAGEMENT (a) The Monterey Bay National
the Act (16 U.S.C. 1433(b)(3)), maps
depicting the boundary of the area Parts 921-943 [Tratteferred to SubchWw Marine Sanctuary consists of an area of
proposed to be designated. and the a] approximately 4,OZ4 square nautical
existing and potential uses and I. Subchapter B heading is added to Miles of coastal and ocean waters, and
resources of the area. Copies of the read as set forth above. the submerged lands thereunder, in and.
surrounding Monterey Bay, off the
DEIS/MP were made available for Z Parts 921 through 943 are central coast of California.
public review on August 3, i9m, with transferred from subchapter A to (b) The northern terminus of the
comments due on October 3, i9w. Public subchapter B. boundary is located along the southern
hearings were held in Monterey, Santa 3. Part 944-is added to subchapter B boundary of the Gulf of Farallones
Cruz and Half Moon Bay, California to read as follows: National Marine Sanctuary and runs
from September 12 to 14. 19M. All westward to approximately 1230M'W.
comments were reviewed and. where BA The boundary then extends south in an
appropriate, incorporated into the FFIS/ PART 944 K)NMEY Y
MP and these regulations. Copies of the -NATIONAL MARINE SANCTUARY arc which generally follows the 500
FEIS/Ml? are available upon request fathom isobath. At approximately
(see address section). sm 3700374, the boundary arcs south to
944.1 Purpose. iZr25'W. 36010'N, due west of
Executive Order 12630 944.2 Boundary. Partington Point. The boundary again
This rule does not have takings 9".3 Definitions. follows the 500 fathom isobath south to
implications within the meaning of 944.4 Allowed activities. 121*41W. 35*33N. due west of Cambria.
Executive Order 12630 sufficient to N4.5 Prohibited activities. The boundary theri extends shoreward
require preparation of a Takings 944.6 Emergency regulations. towards the mean high-water line. The
Implications Assessment under that 944.7 Penalties for violations of regulations. landward boundary is defined by the
order. It would not appear to have an 944.8 Response costs *and damages. mean high-water line between the Gulf
944.9 National Marine Sanctuary permits- of Farallones National Marine
effect on private property sufficiently. application procedures and issuance Sanctuary and Cambria, exclusive of a
severe as effectively to deny criteria. small area off the north coast of San
economically viable use of any distinct 944.10 rArtification of pre-existing leases. Mateo County and the City and County
legally potential property interest to its licenses, permits. approvals. other of San Francisco between Point Bonita
owner or to have the effect of. or result authorizations or rights to conduct a
in, a permanent or temporary physical prohibited activity. and Point San Pedro. Pillar Point. Santa
occupation, invasion. or deprivation. 944.11 Notification and review of Cn= Moss Landing and Monterey
While the prohibition on the applications for leases. licenses. permits, harbors are excluded from the
exploration. development and approvals or other authorizations to - Sanctuary boundary shoreward from
production of oil. gas and minerals from conduct a prohibited activity. their respective International Collision
the Sanctuary might have a takings 944.1a Appeals of administrative action. at Sea regulation (Colreg.) demarcation
implication if it abrogated an existing Appendix I to Part 9"-Montsrey Bay lines except for Moss Landing Harbor,
lease for OCS tracts within the National Marine Sanctuary Boundary where all of Mkhorn Slough east of the
Sanctuary or an approval of an Coordinates Highway One bridge is included within

43324 Federal Register / Vol. 57. No. 182 / Friday. September 18, 1992 / Rules and Regulations

the Sanctuary boundary. The precise wet bikes. surf jets. miniature speed any emergency regulations promulgated
boundary of the Sanctuary appears in boats, air boats and hovercraft. pursuant to 1944-6. subject to all
appendix I to this part. Person means any private individual. prohibitions. restrictions and condition
� 944.3 Deffmit1ofm partnership, corporation or other entity; validly imposed by any other authority:
or any officer, employee, agent. of competent jurisdiction. and subject t
(a) The following definitions apply to department, agency or instrumentality of the liability established by section 312
this part: the Federal Government, of any State or of the Act (see 1944.8).
Act means Title III of the Marine local unit of government, or of any-
Protection. Research, and Sanctuaries foreign government. � 944.S -Prohratted ac"es.
Act of 1972, as amended (16 U.S.C. 1431 Sanctuary means the Monterey Bay (a) Except as specified in paragraphs
et seq.). National Marine Sanctuary. (c) through (h) of this 1944-5. the
Administrator or Under Secretary Sanctuary quality means any following activities are prohibited and
means the Administrator of the National particular and essential characteristic of thus unlawful for any person to conduct
Oceanic and Atmospheric the Sanctuary. including, but not limited or cause to be conducted:
Administration /Under Secretary of to. water quality, sediment quality and (1) Exploring for, developing or
Commerce for Oceans and Atmosphere. air quality. producing oil, gas or minerals within the
Assistant Administrator means the Sanctuary resource means any living Sanctuary.
Assistant Administrator for Ocean or non-livtng resource of the Sanctuary (2) Discharging or depositing, from
Services and Coastal Zone that contributes to its conservation. within the boundary of the Sanctuary,
Management. National Oceanic and recreational, ecological, historicaL any material or other matter except:
Atmospheric Administration. research. educational or esthetic value, (i) Fish, fish parts, chumming
Director means the Director of the including, but not limited to. the
Office of Ocean and Coastal Resource substratum of the Monterey Bay area, materials or bait used in or resulting
Management. National Oceanic and bottom formations. coralline algae, from traditional fishing operations in the
Atmospheric Administration. marine plants and algae, invertebrates Sanctuary;
Effective date of Sanctuary plankton. fish, birds. sea turtles, manine' (ii) Biodegradable effluent incidental
designation means the date the mammals and historical resources. ' ' to vessel use and generated by marine
regulations in this part implementing the Take or taking means the following- sanitation devices approved in
designation of the Sanctuary become (1)(i) For any sea turtle, marine accordance with section 312 of the
effective, mammal or seabird listed as either Federal Water Pollution Control Act, as
Federal Project means any water endangered or threatened pursuant to amended. (FWPCA), 33 U.S.C. 1322 et
resources development project the Endangered Species Act, the term seq.;
conducted by the U.S. Army Corps of means to harass. harm pursue, hunt, (iii) Water generated by routine vessel
shoot, wound. kill. trap, capture, collect operations (eg., cooling water. deck
Engineers or operating under a permit or or injure, or to attempt to engage in any wash down and graywater as defined by
other authorization issued by the Corp such conduct: section 312 of the FWPCA) excluding
of Engineers and authorized by Fed= (ii) For any other sea turtle, marine oily wastes from bilge pumping;
law. mammal or seabird. the term means to (iv) Engine exhaust: or
Historical resource means any harass, hunt. capture, ldII, collect or (v) Dredged material deposited at
resource possessing historical. culturaL injure, or to attempt to engage in any disposal sites authorized by the U.S.
archaeological or paleontological such conduct. Environmental Protection Agency (EPA)
significance, including sites, structures. (2) For the purpose of both paragraphs (in consultation with the U.& Army
districts and objects significantly (1) (i) and (ii), of this definition the term Corps of Engineers (COE)) prior to the
associated with or representative of includes, but is not limited to, any of the effective date of Sanctuary designation.
earlier people, cultures and human following activities: Collecting any dead provided that the activity is pursuant to.
activities and events. Historical or injured sea turtle. marine mammal or and complies with the terms and
resources include historical properties seabird. or any part thereof: restraining
as defined in the National Historic conditions of. a valid Federal permit or
Preservation Act. as amendedL and or detaining any sea turtle, marine approval exist* an the effective date
implementing regulations, as amended. mammal or seabirdL or any part thereof. of Sanctuary designation.
Injure means to change adversely, no matter how temporarilr, tagging any (3) Discharging or depositing, from
either in the long or short term. a sea turtle, marine mammal or seabird-, beyond the boundary of the Sanctuary,
chemical. biological or physical attribute operating a vessel or aircraft or doing any material or other matter that
of. or the viability of. To "injure" any other act that results in the subsequently enters the Sanctuary and
therefore includes, but is not limited to. disturbing or molesting of any sea turtle. injuries a Sanctuary resource of quality,
to cause the loss of and to destro marine mammal or seabird. except those listed in paragraphs (a)(2)
Y. Vessel means a watercraft of any
Mineral means clay. stone. sand. description capable of being used as a (1). through (1v) of this 1944.5 and
gravel. metalliferous ore. means of transportation in/on the dredged material deposited at the
nonmetalliferous ore or any other solid, waters of the Sanctuary. authorized disposal sites described in
material or other matter of commercial (b) Other terms appearing in the appendix IV to this part. provided th&t
value. regulations in this part are defined at is the dredged material disposal is
Motorized personal watercraft means CFR 922.2 and/or in the Marine pursuant to, and complies with the terms
any motorized vessel that is less than Protection. Research. and Sanctuaries and conditions of. a valid Federal permit
fifteen feet in length as manufactured. is Act of IL97Z as amended. 33 U.S.C. 14M or approval.
capable of exceeding a speed of fifteen et seq. and 18 U.S.Q 1431 et seq. (4) MoviM removft or injuring. or
knots. and has the capacity to carry not attempting to move. remove or injure. a
more than the operator and one other 1944.4 Abowed wdvtft& Sanctuary historical resource. This
person while in operation. The term Ali activities except those prohibited prohibition does not apply to moving,
mcludes. but is not limited to. jet skis. by 1944.5 may be undertaken subject to removing or injury resulting incidentally

Federal Register / Vol. 57, No. 182 Friday, September 1& 1992 / Rules and Regulations 43325

from kelp harvesting. aquaculture or to emergencies threatening life. property (g) The prohibitions in paragraphs
traditional fishing operations. or the environment. (a)(2) through (9) of this 1944.5 do not
(5) Drilling into, dredging or otherwise (d)(1) All Department of Defense apply to any activity authorized by any
altering the seabed of the Sanctuary; or activities shall be carried out in a lease. permit. license. approval or other
constructing, placing or abandoning any manner that avoids to the maximum authorization issued after the effective
structure, material or other matter on the extent practicable any adverse impacts date of Sanctuary designation and
seabed of the Sanctuary, except as an on Sanctuary resources and qualities. issued by any Federal. State or local
incidental result of: The prohibitions in paragraphs (a)(2) authority of competent jurisdiction.
(i) Anchoring vessels-, through (9) of this 1944.5 do not apply to provided that the applicant complies
(ii) Aquaculture. kelp harvesting or existing military activities carried out by with 1944.11, the Director or designee
traditional fishing operations; the Department of Defense, as notifies the applicant and authorizing
(iii) Installation of navigation aids; specifically identified in the Final agency that he or she does not object to
Ov) Harbor maintenance in the areas Environmental Impact Statement and issuance of the authorization. and the
necessarily associated with Federal Management Plan for the Proposed applicant complies with any terms and
Projects in existence on the effective Monterey Bay National Marine conditions the Director or designee
date of Sanctuary designation. including Sanctuary (NOAA. 1992). (Copies of the deems necessary to protect Sanctuary
dredging of entrance channels and FEIS/MP are available from the resources and qualities. Amendments.
repair, replacement or rehabilitation of Sanctuaries and Reserves Division. renewals and extensions of
breakwaters and jetties; or Office of Ocean and Coastal Resource authorizations in existence on the
(v) Construction. repair, replacement Management National Ocean Service.
or rehabilitation of docks or piers. National Oceanic and Atmospheric effective date of designation constitute
(6) Taking any marine mammal. sea Administration. 1825 Connecticut authorizations issued after the effective
turtle or seabird in or above the Avenue, NW., suite 714. Washington. date.
Sanctuary, except as permitted by DC 20235.) New activities may be (h) Notwithstanding paragraphs (e)
regulations. as amended. promulgated' exempted from the prohibitions in and (g) of this 1944.5, in no event may
under the Marine Mammal Protection paragraphs (a)(2) through (9) of this the Director or designee issue a National
Act. as amended, (MMPA), 16 U-S-CL � 944.5 by the Director or designee after Marine Sanctuary permit under 1944.9
1361 et seq., the Endangered Species consultation between the Director or or a Special Use permit under section
Act. as amended. (ESA), 16 U.S.C. 1531 designee and the Department of 310 of the Act authorizing, or otherwise
et seq.. and the Migratory Bird Treaty Defense. approve. Ile exploration for,
Act. as amended. [MBTA), 16 U.S.C. 703 (2) In the event of threatened or actual development or production of oil. gas or
et seq. destruction of. lose of, or injury to a minerals within the Sanctuary; the
(7) Flying motorized aircraft, except as sanctuary resource or quality resulting discharge of primary-treated sewage
necessary for valid law enforcement from an untoward incident. including within the Sanctuary (except by
purposes, at less than 1000 feet above but not limited to spills and groundings, certification. pursuant to � 944-10, of
any of the four zones within the caused by the Department of Defense, valid authorizations in existence on the
Sanctuary described in Appendix 11 to the cognizant component shall promptly effective date of Sanctuary designation
this Part. coordinate with the Director or designee and issued by other authorities of
(8) Operating motorized personal for the purpose of taking appropriate competent jurisdiction); or the disposal
water craft within the Sanctuary except actions to respond to and mitigate the of dredged material within the
within the four designated zones and harm and. if possible, restore or replace Sanctuary other than at sites authorized
access routes within the Sanctuary the Sanctuary resource or quality. by EPA (in consultation with COE) prior
described in appendix III to this parL (a) The prohibitions in paragraphs to the effective date of Sanctuary
(9) Possessing within the Sanctuary (a)(2) through (9) of this J 944.5 do not
(regardless of where taken, moved or apply to any activity executed in designation. Any purported
removed from), except as necessary for accordance with the scope. purpose, authorizations issued by other
valid law enforcement purposes, any terms and conditions of a National authorities after the effective date of
historical resource. or any marine Marine Sanctuary permit issed pursuant Sanctuary designs for any of these
mammal. sea turtle or seabird taken in to 1944.9 or a Special Use permit issued activities within the Sanctuary shall be
violation of regulations. as amended. pursuant to section 310 of the Act invalid.
promulgated under the MMPA, ESA or (f) The prohibitions in paragraphs I 9"A Emwgwwy r"pfistlam
MBTA. (a)(2) through (9) of this 1944.5 do not
(10) Interfering with. obstructing. apply to any activity authorized by a Where necessary to prevent or
delaying or preventing an investigation. valid lease, permit license, approval or minimize the destruction oE loss of. or
search, seizure or disposition of seized other authorization in existence on the injury to a Sanctuary resource or
property in connection with enforcement effective date of Sanctuary designation quality, or miniinize the ammbmt risk of
of the Act or any regulation or permit and issued by any Federal. State or local such destruction. 19" or injury. any and
issued under the Act. authority of competent jurisdiction. or all activities are subject to Jmnm4ate
(b) The regulations in this part shall by any valid right of subsistence use or temporary regulatim i0chiding
be applied to foreign persons and access in existence on the effective date Prewbifim
foreign vessels in accordance with of Sanctuary designation. provided that I 9W PW for V1012dons Of
generally recognized principles of the holder of such authorization or right r"Wasons.
international law. and in accordance complies with 1944.10 and with any
with treaties, conventions and other terms and conditions on the exercise of (a) Each violation of the Act. any
international agreements to which the such authorization or right imposed by regulation in this part. or any permit
United States is a party. the Director at designee as a condition issued pursuant thereto. is subject to a
(e) The prohibitions in paragraphs of certification as he or she dems civil penalty of not nwe than SM WO
(a)(2) thruugh (10) of this I WC5 do not necessary to achieve the purposes for Each day of a continuing violation
apply to activities necessary to respond which the Sanctuary was designatei constitutes a separate violation.

43326 Federal Register / Vol. 57. No. 182 / Friday, September 18, 1992 / Rules and Regulations

fb) Regulations setting forth the Sanctuary resources and qualities; appeal the denial. conditioning.
procedures governing administrative further the educational. natural or amendment. suspension or revocation of
proceedings for assessment of civil historical resource value of the the permit in accordance with the
penalties, permit sanctions and denials Sanctuary, further salvage or recovery procedures set forth in J 944.12.
for enforcement reasons, issuance and operations in or near the Sanctuary in 1944.10 Certificationofpre-existing
use of written warnings, and release or connection with a recent air or marine losses. licenses, permits, approval*, other
forfeiture of seized property appear at 15
casualty'. assist in managing the authorizations or rights to conduct a
CFR part 904. Sanctuary; or further salvage or prohibited activity.
944.8 Response costs and damages. recovery operations in connection with (a) The prohibitions set forth in
an abandoned shipwreck in the
Under section 312 of the Act, any Sanctuary title to which is held by the 944.5(a)(2) through (9) do not apply to
person who destroys, causes the loss of, State of California. In deciding whether any activity authorized by a valid lease,
or injures any Sanctuary resource is to issue a permit, the Director or permit. license, approval or other
liable to the United States for response designee shall consider such factors as, authorization in existence on the
costs and damages resulting from such The professional qualifications and effective date of Sanctuary designation
destruction, loss or injury, and any financial ability of the applicant as and issued by any Federal, State or local
vessel used to destroy, cause the loss of, related to the proposed activity; the authority of competent jurisdiction, or
or injure any Sanctuary resource is duration of the activity and the duration by any valid right of subsistence use or
liable in rem to the United States for of its effects; the appropriateness of the access in existence on the effective date
response costs and damages resulting methods and procedures.proposed by of Sanctuary designation. provided that:
from such destruction, loss or injury. the applicant for the conduct of the (1) The holder of such authorization or
1944.9 National Marine Sanctuary activity; the extent to which the conduct right notifies the Director or designee, in
PWM a two procedures and of the activity may diminish or enhance writing, within 90 days of the effective
hmpnnce criteris, Sanctuary resources and qualities; the date of Sanctuary designation, of the
(a) A person may conduct an activity cumulative effects of the activity-, and existence of such authorization or right
prohibited by 1944.5 (a)(2) through (9) if the end value of the activity. In addition, and requests certification of such
the Director or designee may consider authorization or right
conducted in accordance with the scope, such other factors as he or she deems (2) The holder complies with the other
purpose, terms and conditions of a appropriate. provisions of this 1944.10; and
permit issued under this 1944.9. (e) A permit issued pursuant to this (3) The holder complies with any
(b) Applications for such permits J 944.9 is nontransferable. terms and conditions on the exercise of
should be addressed to the Director of (f) The Director or designee may such authorization or right imposed as a
the Office of Ocean and Coastal amend. suspend or revoke a permit condition of certification, by the
Resource Management; Attn: issued pursuant to this 1944.9 for good Director or designee, to achieve the
Sanctuaries and Reserves Division. cause. The Director or designee may purposes for which the Sanctuary was
Office of Ocean and Coastal Resource deny a permit application pursuant to designated.
Management National Ocean Service. this 1944.9. in whole or in part, if it is (b) The holder of a valid lease, permit.
National Oceanic and Atmospheric determined that the permittee or license. approval or other authorization
Administration, IM Connecticut applicant has acted in violation of the
Avenue, NW., Washington. DC in existence on the effective date of
20235. terms or conditions of a permit or of the Sanctuary designation and issued by
An application must include a detailed regulations in this part or for other good any Federal. State or local authority of
description of the proposed activity cause. Any such action shall be
including a timetable for completion of competent jurisdiction. or of any valid
communicated in writing to the right of subsistence use or access in
the activity and the equipment, permittee or applicant by certified mail
personnel and methodology to be and shall set forth the reason(s) for the existence on the effective date of
employed. The qualifications and action taken. Procedures governing Sanctuary designation. authorizing an
experience of all personnel must be activity prohibited by I 944.5(a) (2)
set permit sanctions and denials for through (9) may conduct the activity
forth in the application. The application enforcement reasons are set forth in without being in violation of 1944-5.
must set forth the potential effects of the subpart D of 15 CFR part 904. pending final agency action on his or her
activity. if any. on Sanctuary resources (g) It shall be a condition of any certification requeaL provided the
and qualities. Copies of all other permit issued that the permit or 'a copy holder is in compliance with this
required licenses. permits, approvals or thereof be displayed on board all
other authorizations must be attached. vessels or aircraft used -in the conduct of 1944"0'
(c) Upon receipt of an application. the the activity. (c) Any holder of a valid lease. Permit.
Director or designee may request such . (h) The Director or designee may, license, approval or other authorization
additional information from the inter afid, make it a condition of any in existeme on the effective date of
applicant as he or she deems necessary permit issued that any data or Sanctuary designation and issued by
to act on the application and may seek information obtained under the permit any Federal. State or ilocal authority of
the views of any persons. be made available to the public. competent jurisdiction. or any holder of
(d) The Director or designee, at his or (i) The Director or designee may. inter a valid right of subsistence use or access
her discretion. may issue a permit. alia. make it a condition of any permit in existence an the effective date of
subject to such terms and conditions as issued that a NOAA official be allowed Sanctuary designation. may request the
he or she deems appropriate, to conduct to observe any activity conducted under Director or designee to issue a finding as
an activity prohibited by I 944.5(a)(2) the permit and/or that the permit holder to whether the activity for which the
through (9) if the Director or designee submit one or more reports on the authorization has been issued. or the
finds that the activity will have only status, progress or results of any activity right given, is prohibited under I 944.5(a)
negligible short-term adverse effects on authorized by the permit. (2) through (9).
Sanctuary resources and qualities and 0) The applicant for or holder of a (d) Requests for findings or
will- Further research related to National Marine Sanctuary permit may certifications should be addressed to the

Federal Register / Vol. 57, No. 182 / Friaay, September 18, 1992 / Rules and Regulations 43327

Director, Office of Ocean and Coastal (H) Waste Discharge Requirements (c) Notifications of filings of
Resource Management; Attn: issued by the State of California under applications and requests for findings
Sanctuaries and Reserves Division. section 13263 of the California Water should be addressed to the Director.
Office of Ocean and Coastal Resource Code. office of Ocean and Coastal Resource
Management, National Ocean Service, (2) The MOA specifies how the Management; Attrr Sanctuaries and
National Oceanic and Atmospheric certification process of this � 944.10 will Reserves Division. Office of Ocean and
Administration, 1825 Connecticut be administered within State waters Coastal Resource Management,
Avenue. NW., Washington. DC 20235. A within the Sanctuary in coordination National Ocean Service, National
copy of the lease, permit, license, with the State permit program. Oceanic and Atmospheric
approval or other authorization must (3) The MOA may be obtained from Administration, 1825 Connecticut
accompany the request. the Sanctuaries and Reserves Division. Avenue, NW., Washington. DC 20235. A
(e) The Director or designee may Office of Ocean and Coastal Resource copy of the application must accompany
request additional information from the Management, National Ocean Service, the notification.
certification requester as or he deems National Oceanic and Atmospheric (d) Ile Director or designee may
necessary to condition appropriately the Administration, 1825 Connecticut request additional information from the
exercise of the certified authorization or Avenue, NW., suite 714, Washington. applicant as he or she deems necessary
right to achieve the purposes for which DC 20235. to determine whether to object to
the Sanctuary was designated. The issuance of such lease, license, permit.
information requested must be received 1944.11 Notification and review of approval or other authorization (or to
by the Director or designee within 45 applications for hmmmM licenses. permits. issuance of an amendment, extension or
days of the postmark date of the approvals or other authorizations to renewal of such authorization), or what
request. The Director or designee may conduct a pfohlbl activity. terms and conditions are necessary to
seek the views of any persons on the (a)(1) 'Me prohibitions set forth in protect Sanctuary resources and
certification request. I 944.5(a)(2) through (9) do not apply to qualities. The information requested
(f) The Director or designee may any activity authorized by any valid must be received by the Director or
amend any certification made under this lease, permit. license, approval or other designee within 45 days of the postmark
1944.10 whenever additional authorization issued after the effective date of the request Ile Director or
information becomes available date of Sanctuary designation by any
Justifying such an amendment. Federal, State or local authority of designee may seek the views of any
(g) The Director or designee shall competent jurisdiction. provided that persons on the application.
communicate any decision on a (i) The applicant notifies the Director (e) The Director. or designee if there
certification request or any action taken or designee, in writing. of the are no objections, terms or conditions,
with respect to any certification made application for such authorization (and shall notify, in writing. the agency to
under this 1944.10, in writing. to both of any application for an amendment which application has been made of his
the holder of the certified lease. permit. renewal or extension of such or her review of the application and
license, approval. other authorization or authorization) within fifteen (15) days of pos.sible objection to issuance. After
right and the issuing agency, and shall the date of application or of the effective review of the application and
set forth the reason(s) for the decision or date of Sanctuary designation. information received with respect
action taken. whichever is later, thereto, the Director, or designee if there
(h) Any time limit prescribed in or (ii) The applicant complies with the are no objections, terms or conditions,
established under this 6 944.10 may be other provisions of this 1944.11; shall notify both the agency and
extended by the Director or designee for (iii) The Director or designee notifies applicant, in writing, whether he or she
good cause. the applicant and authorizing agency has an objection to issuance and what
(i) The holder may appeal any action that he or she does not object to terms and conditions he or she deems
conditioning. amending, suspending or issuance of the authorization (or necessary to protect Sanctuary
revoking any certification in accordance amendmea renewal or extension@. and resources and qualities. The Director
with the procedures set forth in 1944.12. (iv) The applicant complies with any shall state the reason(s) for any
(j) Any amendment. renewal or terms and conditions the Director deems objection or the reason(s) that any terms
extension not in existence on the necessary to protect Sanctuary and conditions are deemed necessary to
effective date of Sanctuary designation resources and qualities. protect Sanctuary resources and
of a lease, pertrit. license. approval. (2) The authority granted the Director qualities.
other authorization or right is subject to under this 1944.21 to object to or impose (0 The Director may amend the terms
the pro%isions of J 944.11. terms or conditions on the wmqciss of and conditions deemed necessary to
(k)(1) The National Oceanic and any valid leass. permit. license. protect Sanctuary resources and
Atmospheric Administration (NOAA) approval or other authorization issued qualities whenever additional
has entered into a Memorandum of after the effective date of Sawtuary information becomes available
Agreement (MOA) with the State of designation may not be delegated or justifying such an amendment.
California, EPA and the Association of otherwise assigned to other Federal (g) Any time limit prescribed in or
Monterey Bay Area Governments officials below the Director's level. established under this J OKII may be
regarding the Sanctuary regulations (b) Any potential applicant for a extended by the Director or designee for
relating to water quality within State lease, permit. license, approval or other good cause.
waters within the Sanctuary. With authorization from any Federal, State or (h) The applicant may appeal any
regard to permits, the MOA local authority (or for an amend- nt. objection by, or terms or conditions
encompasses: renewal or extension of such imposed by. the Director to the
(i) National Pollutant Discharge authorization) may request the Director Assistant Administrator or designee in
Elimination System (NPDES) permits or designee to issue a finding as to accordance with the procedures set
issued by the State of California under whether the activity for which an forth in I 944AL
section 13377 of the California Water application is intended to be made is (i)(i) NOAA has entered into a
Code;and prohibited by I 944.5(a)(2) through (9). Memorandum of Agreement (MOA) with

IF 43328 Federal Register / Vol. 57, No. 182 / Friday, September 18, 1992 / Rules and Regulations

the State of California, EPA and the their activities without being subject to APPROXIMATELY 4,024 SOUARE NAUTICAL
Association of Monterey Bay Area the prohibitions in ~q� 944.5 (a)(1) through MILES
Governments regarding the Sanctuary (10)~.
regulations relating to water quality (d) The Assistant Administrator or Point Latitude Longitude
within State waters within the designee may request the appellant to
~@~~nctuary. With regard to permits, the submit such information as the I.................... 37 52 5~6.090~55 122 37 39A2564
2.................... 37 39 59.0617~6 122 45 3.79307
MC~A encompasses: Assistant Administrator or designee 37 ~3~6 58.39164 122 46 9.73~671
~ti~) National Pollutant Discharge 3~w...............
deems necessary in order for him or her 4............. 37 ~34 17.30224 122 48 14.38141
E~~~~mination System (NPDES) permits to decide the appeal. The information 5 ~.~-~*~'~* .... -~* ... 37 31 47.55~64~9 122 51 35.56769
issued by the State of California under 36 37 30 34.11030 122 ~54 22.12170
section 13377 of the California Water requested must be received by the ~7 37 29 3~9.05866 123 00 27.70792
Code~and Assistant Administrator or designee ~8.................... 37 30 29.47603 123 0~5 46~22767
(ii) Waste Discharge Requirements within 45 days of the postmark date of 9.................... 37 31 17.66945 12~3 07 47.6~3363
10 .................. 37 2~7 ~I~O~.~qW594 123 0~8 24.32210
issued by the State of California under the request. The Assistant 11 .................. 37 20 35.374~91 123 07 54.12763
section 132~q63 of the California Water Administrator may seek the views of 12 ......... . ....... 37 13 50.21~605 123 0~6 15.506~00
Code. any other persons. The Assistant 13 ............ ~_... 37 07 48.7~6~610 123 0~1 43.109~94
(~2).T~he MOA specifies how the Administrator or designee may hold an 14 .................. 37 03 4~q6.~609~0q" 122 ~q54 45.39513
1~q5 .................. 37 02 06.30955 122 46 35.02125
process of this ~qJ ~q944~-11 will be informal hearing on the appeal. If the 16 .................. 36 55 17.5~6782 122 48 21.41121
administered within State waters within Assistant Administrator or designee 17 .... . ............ 3~6 4a 22.742~q" 122 48 56.290~07
the Sanctuary in coordination with the determines that an informal hearing IS ... . .... . . . .... ~3~6 41 30.9151~6 122 4~8 1~9.40739
19 ............. . . .~3~6 34 45.~7~0qW70 122 4~6 26.96772
State permit program. should be held. the Assistant 20 ............ . . .. 3~6 2~q8 24.18076 122 43 32.4~3527
~9 944.12 Appeals of administrative action. Administrator or designee may 21 .................. ~q3~6 22 20.~70~312 122 39 28.42026
designate an officer before whom the 22 ........ . .~q_... 36 1~6 43.935~68 122 34 2~6.~77255
(a) Except for permit actions taken for 2~3 .. . ............. ~3~6 11 ~44~-~5~0~0qM 1~2~2 28 37.16141
enforcement reasons (see subpart D of hearing shall be held. The hearing 36 07 26.~8~6988 ~122 21 54.97541
15 CFR part 904 for applicable officer shall give notice in the Federal ~3~6 04 07.~0~8~qM 122 14 39.75924
Register of the time. place and subject ~3~6 01 28.2~0q= 122 07 00.190~68
procedures), an applicant for, or a 35 5~9 45A~qM1 121 ~5~8 56.36189
holder of, a ~qJ 944.9 National Marine matter of the hearing. The appellant and 27 .................
35 5~8 59.12170 ~121 50 2~6A~qM~I
Sanctuary permit, an applicant for, or a the Director or designee may appear 29 .......... . ... . .~3~5 5~8 53.638~6~6 121 45 2~2~.~SZ~3363
holder of, a section 310 of the Act personally or by counsel at the hearing 30~-.~-~q-.. 35 55 46.60~623 ~t2~l 424028540
Special Use permit, a ~q1944.10 and submit such material and -present 31 .................. 35 50 15.84256 121 430920193
32 .. . ............. 35 43 ~14.~1 2~6690 ~12~1 4243.79121
certification requester or a ~q1944.11 such arguments as deemed appropriate ~33~_~_~_~_~_~q_~_ 35 35 4~1~.~S~qM~S 121 41 25.07414
applicant (hereinafter appellant) may by the hearing officer. Within W days 34~q-...~-.. 35 33 11.759~99 121 3749.74192
appeal to the Assistant Administrator or after the record for the hearing closes 35 33 ~17.4~5~qM 121 05 52.~S~qMI
d the hearing officer shall recommend ~q; 37 35 3~9.73~1~,80 122 31 ~t4~.9~6033
esign 37 ... . .... 37 3~6 4921739 122 37 ~qW~qM577
~(~1~) Ire grant, denial. conditioning, decision in writing to the Assistant ~3~8 37 4~6 ~0~0.98983 122 39 00.40~4~66
~@n~qt suspension or revocation Administrator or designee. ~39 --------- 3~7 4~q9 05.~6~90~80 122 31 4~6~-30542
by the Director or designee of a National (e) The Assistant Administrator or
Marine Sanctuary or Special Use permit; designee shall decide the appeal using
(2) The conditioning, amendment. the same regulatory criteria as for the Appendix 11 to Pwt 944-Zon~0qn W~qh~0qN~n
suspension or revocation of a initial decision and shall base the ~0qow Sanctuary Whom ~8qOv~er~ql~qilghts
certification under ~q1944.10; or appeal decision on the record before the Below 1000 ~qF~0qM Are ~qP~roh~0qW~qit~qe~qd
(3) The objection to issuance or ~qt~qhe Director or designee and any
imposition of terms and conditions information submitted regarding the The four zones are:
under ~� 944.11 ~q(1~q) From mean high water out to three
~(b) An appeal under paragraph (a) of appeal~. and. if a hearing has been held. nautical miles between a line extending from
this ~1944.12 must be in writing, state the on the record before the hearing officer point Santa ~qC~r~qm on a southwesterly heading
action~(s) by the Director or designee and the hearing officer's recommended of ~6q= and a line extending ~6qk~om 2.0 nautical
appealed and the reason(s) for the decision. The Assistant Administrator or miles ~n~8q" of P~e~s~c~qAdero Point on a
appeal. and be received within 30 days designee shall notify the appellant of the southwesterly heading of ~qZ~2qW~-~.
of receipt of notice of the action by the final decision and the rea~so~n(~s) therefor ~q(2~q) From mean high water out to three
Director or designee. Appeals should be in writing. The Assistant Administrator nautical miles between a line extending from
the Carmel River mouth on a westerly
3ddressed to the Assistant or designee's decision shall constitute heading of 270~* and a line extending due west
Administrator, Office of Ocean and final agency action for the purposes of along latitude 330 ~q3~q3~, ~qt~q7~4qm~4qu off of Cambria.
Coastal Resource Management. Attn: the A~qt~8qiministrative Procedure Act (3) From mean high water and within a five
Sanctuaries and Reserves Division. (f) Any time limit prescribed in or nautical mile arc drawn hom a center point
Office of Ocean and Coastal Resource established under this J 944.12 other at the end of Mass Landing Pier, and
Management. National Ocean Service. than the 30 day limit for filing an appeal (4) Over t~6qh~qe waters of Elkhorn Slough cast
National Oceanic and Atmospheric may be extended by the Assistant of the Highway one bridge to Elkhorn Road.
Administration, 1825 Connecticut Administrator, designee or hearing Appendix III to ~24qPwt 9~20q"-Zon~0qe~qs and
Avenue. N`W.~q. Washington, DC 20235. officer for good cause. Ac~qc~qe~qs~0qe Rou~2qt~0qe~0qa W~20qM~16qM the ~28qS~00qw~00qw~6qb~04qM~8qY
(c) While the appeal is pending,
appellants requesting certification Whom t~20qM ~32qOp~04qw~0qa~4q�~04qw of ~28qMo~20qUw~24qk~qed
Appendix I to Pad 944 ~0qlo~qnt~q*~6qMY ~4qB~qa~8qy personal Water Craft ~0qI~0qg Allowed
pursuant to ~4q1944.10 who am in National Marine Sa~0qn~0qc~16qh~qiary Boundary
compliance with such section may Coo~qrd~6qin~qat~6q" The four zones and access routes are:
continue to conduct their activities ~8q(~qi~2q) ~8qi~16qt~qs approximately one 1~4q1.0) square
without being in violation of the (Appendix Based on North American nautical mile area off P~8qi~6qll~4qn Point Harbor
prohibitions in ~2q19~04q"~q.~4q5 (a)~6q(2) through (~4q9)~q. Datum of 1983.) from launch ramp (~0q3~q7~q*~00qW N. ~qI~qL22~q*2~4qW W~8q)
All other appellants may net conduct through harbor entrance to the northern

Federal Register / Vol. 57, No. 182 / Friday, September 1& 1992 Rules and Regulations 43329

boundary of Zone One bounded by (a) ~P~qm~t Latitude L~ong~qf~qt~qf~qt Point Latitude ~Lon~7t~1~X~1~e
~17~*~2~-9~*~6~' N ~qlbreakwa~,er buoyl, 122~*2~9~' W; ~q1b~q,
37~*~28~.8~'N (bell buoy), 1~22'28.9~'W; (c~q) 37~*2~&8~' 1........... . ............... ........... 37 2~5~A~qW 123 21.~92~6 8~3 ................... . ................. 37 17.805 123 1~9.52~5
N~, 122~*2~8~'W; and ~q(d) 37~*29~0q0 N~. 1~22~*28~'W. 2.......... . ............................ 37 25.7~93 12~3 21.~qM 8~4 ........................ ...... _37 17.735 123 19.567
(2) The approximately three [3~.01 square 3........................................ 37 25.733 123 21.~91~9 85 .. . .................................. 37 17.~6~41 123 1~9.~600
nautical mile area off of Santa Cruz Small ~' 4............ . .......................... 37 25~qM~O 123 21.910 8~6 ................ .................... 37 17.5~6~6 123 1~9.~617
Craft Harbor ramp from 36~*57.4~'N along a 5......................................... 37 25.6~30 123 21.~896 87 ............... . . ... . ...... . .... 37 17.489 123 ~1~9.~S~qU
1~0~0 yard wide access route due south along 6........................................ 37 25.56~6 1 ~qM 21..875 ~8~8 ................. . ........... . ... . .37 17.401 123 19.61~7
122~* W to the northern boundary of Zone 7.... . ............................... . .37 25.513 I~qM 2~1.~8~qW 8~9 ............................... 3~7 17.352 123 19~.~60~6
Two (marked by the whistle b~n~oy at 1~0 8........................................ 37 25.451 123 21.820 90 ... .............. .... .... 37 17-~1~4~5 123 19.5~83
fathom curve) bounded by (a) 3~ra~'55~'N ~9........ ....................... ~-.~-. 37 25.394 123 21.77~9 91 .................... 37 17.273 123 ~1~9~.~558
~10 ............. . ........ 3725.334 123 21.~69~8 92 ................. . .......... . ....... 37 17.248 123 1~9~.5~14
1~2~2~*02~'W; (b) 36~*55~'N. 121~'~58~'W; (c) 3e~,~58~-5~' 11 . . ......... .................. ...... 3725.2~68 123 21.5~95 93 ... ................. ....... . ....... 37 25~*802 123 0.~617
N. 121~*58~' W; and (d) 36~*~5~&5~' N~. 1~2Z~*O~Z W: 12 ........... .................. ....... 37 25A~qW 123 21.4~56 94 . ..... . ..................... . ...... 37 25~.8~60 123 2~1~.~qW~qS
(3) The approximately five ~q15.01 square 13 ......................... . ........... 3725.13~9 12321.3~58 ~I
nautical mile area off of Moss Landing 14 . . ............... . ... . ..... . ..... 37 2~5~.0~67 12321.240
Harbor/Elkhorn Yacht Club Launch Ramp . . . . . ........ 3725.~9~92 12321.1~6~7 'Me portion of the area described by the
from 36~*~4~&5~'N along a 100 yeard wide access ~1~6 ...... . . . .. . ...... - - - -------- ~.3724.87~6 123 21.0~9~3 above points that lies within the Monterey
route due west along harbor entrance to the 17 ...... . ......... . ..... . ............ 37 24.7~6~5 12321-034 Bay National Marine Sanctuary as described
eastern boundary of Zone Three bounded by is .. . .... . ..... ........... ~_~_ 37 24.700 123 20.~975 In Appendix I is excluded.
1~9 ... . ..... . . ......... . .. . .. . ..... 37 24.002 12320.872
(a) 3~6~*~50~'N~. 121~*49.3~'W; (b) 3~6~*50~'N. 20 ... . .......... 37 24.521 12320.783 Study Area 4
1~21~*~50~.8~'W; (c) 3~q6~*4~q6~.7~* N~, 121~*50~0qZ W~; (d) 21 ........... . .. . ...... . . . . . .... . .37 24.449 123 ~2~O~.~6a~2
36~'4~6.7~'N~. 1~2~1~*4~qW W; ~q(e) 36~*470 N. 121~*48.~2~' 22 .. . . ..... . ....... 3724~391 123 20.5~99 ~qT~qhe area described by the following points
W: and (f) ~36~*48.9~'N~. ~1~21~*4~&2~'W; and 23 ... . .................. . . .. ....... 3724.342 123 20.503 and a five-nautical~-mile~-wide zone west of
(4) The approximately five 15.01 square 24 .. . .... . ........ . 37 24~-~296 123 20.421 the western boundary that area: Table
nautical mile area off of the U.S. Coast Guard 25 ......... . ....... . .. .. . . ..... 37 24.245 123 20.340 follows
Pier (Monterey Harbor) Launch Ramp from 3724.193 123 20.238
36~*36.5~' N~. I~ZI~*53.5~' W along a 1~q0~0 yard wide 27 . .... . . . ............. . ... ~q-~-~-. 37 24.147 ~123 2~O~A~34 Point ~L~qO~D~qA~G ~L~on~9~f~t~w~e
28 ....... . .... 37 24.~1~(~* 123 20.031
access route due north to the southern 2~9 . ........ . . .......... 3724.0~q62 123 1~9.~9~qU
boundary of Zone Four bounded by (a) . ...... . ..... 3724.01~7 123 1~9~@~0qM 37 17.4~9~6 123 7.~q5~0qM
3~q6~*38.~qr N~. 1~2~1~'55.4' W; (b) 3~q6~*3~q6.~1~r N. 31 . . ....... . .. . . ....... __~. 3723.952 123 1~9~.~6~62 37 17.4~9~9 123 14.071
1~2~1~*~qS~qZ~qS~'W; (c) 3~q6~*3~&3~'N~. I~qZI~*51.3~'W: and 32 ..... . ... . . ....... . ... 3723.~90~6 123 1~9~.~517 37 1~7~.~q= 123 14~.~0qM
(d) 3~q6~-4~q(Y N~. 121-~q54.4~'W. ~3723.855 1~q23 1~9~3~9~q6 37 17.279 123 14.412
3723.790 123 1~92~0qM 37 17.1~7~6 12~3 14.5~q37
Appendix IV to Part 944-~8qO~r~e~qd~qg~Od 37 23.728 123 19.125 a...... . .. . ..... 37 17.04~7 123 14.0~51
. . . ...... 37 23.~8~q" 123 18.9~6~6 37 ~16~.~949 12~q3 14.764
Material Disposal Sites Adjacent to the 37....._... . ....... . ......... . .3723.5~62 123 18~-8~38 a. . . ............. 37 1~6.814 123 14.8~7~9
Monterey Say National Marine ~38 ..... . . ...... . ... . ...... 3723.4~82 123 18.707 - ------- --- 37 1~6.~6~64 123 15.02~6
Sanctuary . . ....... 37 23.3~67 123 18~.~q558 37 1~6.56~6 123 I~q&II~qS
40 .................................. .. 372~3~254 123 18.4~37 ~1 37 1~6.451 123 15219
(Appendix based on North American 41 ..... . . .............. . ... . ........ 37 ~qM~A~qM ~I~qM 16.319 37 1~6.34~6 123 15~3~qM
Datum of 1983.) 42 . . . ............ . . ........ . .... 372~2-~977 123 18~-231 . ..... 37 1~6~q" 123 ~IS-~0qW
As of the effective date of Sanctuary 43 - - -- - -- - - ----------------- - -- 3~722.820 123 18~-142 ~q3~7 ~1~6.0~90 123 IS.44~6
designation. the U.S. Army Corp 44 ... . ................ . . ........... 37 " 123 1~8.113 37 15.99~9 123 15.4~64
~9 of 45 ........ . . .. . ... . ................. 372~2-~S~qM 123 ~1~6~1~qM 37 15~.818 123 ~I~S~S~47
Engineers operates the following dredged 37 22~-~qM 123 18~-0~68 17 . . .. . . ..... . ........... 3~7 15.~537 123 15.5~05
material disposal sites adjacent to the 47 .... . ..... . ............ . ... . ..... 37 " ~Z~q" I~qM I~S~A~qM ......... _ 37 15.482 123 15~0qM~qS
Sanctuary off of the Golden Gate: 48_ . ........... ~37220~51 12~3 ~18.0~3~9 37 ~1~&314 123 1~6~.596
4~9 . .............................. 37 21.8~6~S 123 18.02~3 37 ~15.1~04 123 ~15.~6~1~0
3721.8~97 123 18.0~23 37 15.0~5~q5 12~3 ~I~S~A~0qW
Point ~L~a~b~u~x~l~e Lon~qgt~b~i~d~e . ..... . ... . ......_~3721.~547 123 ~18.010 3~7 14.912 123 ~I~&~S~q"
52 3721.401 12~3 17.9~95 23 .. . .. . ........ . ..... 37 14.783 12~3 1~5~.8~9~6
I........................................ 37 4~5.8~75 12234.140 53 ..... . . 37 21.1~7~3 123 17.980 3~7 14~.~66~7 123 1~6.712
2........................................ 37 44.97~8 122 37.369 54 .... . . ............. ...... ~q_... 37 ~qW.9~78 12~3 17.9~65 37 14.5~61 12~3 15.~724
3........................................ 37 44.49~1 122 37~A~S~O . .............. 3~720.7~q6~7 123 17.~9~qW 26 .. . .. . ....... 37 14.421 12~3 15.74~9
4... .................................... 37 45.~40~6 122 33~.~qW9 S~6 . . .. . . ....... . .................. 3~7 ~20.~5~8~8 123 17.~936 3~7 14~292 12~3 15.79~0
5........................................ 37 45.875 12234.140 57 .. . .... . ..... . .. . ........ . ...... 3720.458 123 17.~921 28 ..... . .. 37 14.188 123 ~I~&~8~0qW
58 37 2~02~qM 123 17.8~04 37 14.072 12~3 15.8~5~7
3720.~179 12~3 1~7.87~6 37 13.~9~5~6 123 ~IS.~9~3~6
In addition. the U.S. Environmental ~00 .. . ........... . . ... . . . ....... 3~72~0.0~64 123 17~-87~6 37 13.801 123 1~6.001
37 ~1~9.~9~66 123 17.~682 37 1~&~6~7~2 123 1~6~4~qM
Protection Agency. as of the effective date of ~02 ...... . .... 3~7 ~1~9.~677 123 17~2~q% ~1~7 13~@6~88 123 ~16,~10~2
Sanctuary designation, is (in consultation 37 19.792 123 1~7~-921 37 ~1~&46~1 123 ~16.~1~7~8
with the U.S. Army Corps of Engineers) in the ~q64~q.~q-~q.~q.~q.. . ... . ....... . ...... .37 1~0q9.~q6~q94 123 17.9~6qW 3~q7 ~q13~00q= 12~q3 ~q16.2~0q2~q9
process of establishing a dredged material ~q3~q7 1~q9.~q5~q92 ~q123 i~q?~q.~6qM 37 13.1~q9~q3 12~q3 ~q1~q6~q2~q9~q6
disposal site outside the northern boundary ~q3~q7 19.48~q9 123 18.0~q5~q6 37 13.0~q83 123 1~q62~6qn
of the Monterey Bay National Marine . ..... 37 1~q9~q3~6qW 123 18.134 3~q7 12.9~q73 12~q3 ~q1~0q6.~0q3~q0~q4
Sanctuary. When that disposal site is 37 ~q1~q9~q.~6q= 12~q3 1~q82~q31 ~q3~q9 ...... ~q37 12.8~q30 123 ~q1~q6~00q=
37 1~q9.12~q6 123 18.305 37 12~q.~q660 123 1~q6.3~q56
authorized. this appendix will be updated to 37 i~qg.o2~0qe ~qi2~0qs ~qie~q.378 37 1~q14~q5~q6 123 1~q6~q2~q67
incorporate its precise location. 'Me site will 7~q1 37 1~q8.914 123 18~q-4~q82 4~q2~4q-.~4q-~q-~4q-~8q-~8q- 3~q7122~q75 123 1~q6~q3~q57
be located outside the Monterey Bay 37 ~q1~q6~00q= 123 1~q6~q-55~0q6 37 1~q2-122 123 1 ~0qG.~00qW
National Marine Sanctuary and any other 73 -- - - -- - - --------- 37 18.719 123 18.~q6~q5~q8 ~q37 ~q11.9~q6~q7 123~-1~q6.312
existing national marine sanctuary and . .......... 37 18.~q81~q5 123 ~q18.~q784 45- 37 11.~q8~q5~q3 123 1~q62~q6~q9
within one of the following L~qa~qng~q-Term 37 1~q6.4~q92 123 ~qI~qS~q.~qS~2qW 4~q6___ 37 II~qJ~6qU 123 ~q16.~q2~q1~q6
Management Strategy ocean study areas: 37 I~2q&~6qM 123 I~q&~qO~6qN 47.. 37 ~q11.~q8~q31 123 1~q&1~q42
37 1~q62~q65 123 1~q9~q-101 37 11.537 12~q3 ~qI~qG~qA67
Study Area ~0q3 37 18.~q151 123 ~q1~q1~qL~qI~q9~q0 4~q9 ~q3~q7 1~q1.473 123 ~q1~q5~q.~q9~q94
37 ~q18.070 123 ~qI~q9_~q-~qs4 ~q5~q0~q.______ ~q3~q7 1~q1.42~q0 123 1~q1930
Ile area described by the following points SO... . .......... 37 ~q18.00~q4 ~q123 19-~6qV~qO 5~q1~q-~q. ~q3~q7 ~q1~q1~q3~q00 123 ~q1~q&~q8~q7~q2
and a five-nautical-m~0qile-wide zone west of 37 17.~q951 123 1~q9-~6qM 52_____~q.___ 37 1~q1~q.~q3~8q" 12~q3 1~q5~q.~q8~00qn
the western boundary of that area: 37 17.884 123 1~q9~q-4~q54 53~2q_~8q_~q_.~8q_~q1 3~q7 11~6q2~2qM 123 MASS

43330 Federal Register Vol. 57, No. 182 / Friday, September Ia. 1992 / Rules and Regulations
Labbide Lwvnw, Point @@Ouxw wwtw, Point Laftwe Longitude

64- 37 11-227 123 15.547 37 34.574 123 20.234 40 ...................... ........... 37 40.095 123 21.095
37 11.168 123 15.421 37 34.661 123 19-W7 41 ...................................... 3740.181 t23 21.192
37 11.150 123 15-20 3734.725 123 19.376 42 ........... . .......... . ............ 37 40.289 12321.288
. ..... 37 11.116 123 15.124 37 34.M 122 19-376 4.3 . .................. . ............ .. 37 40.330 123 21.M
37 11.098 123 14.9W 8 .. . ..... . .. . ...... 37 35.031 123 19-452 44."**'-*-'* .............. . ...... 3740.416 123 21.470
37 11.085 123 14.8n 9 .......... . ...... 37 35.M 123 19-081 45 37 40.516 123 21.563
- --- --- 37 11.072 t23 14.626 10 ........ 37 3&769 123 1 SAW 46 3740.618 123 21.W7
37 11.059 123 14.437 11 ......... . ....... 37 37.GW 123 17.786 47 --- - --- -- 37 40.736 12321.785
. ...... 37 11.052 123 14.359 37 37.765 123 17.743 48 ... ***"--'-
.......... 37 40.8W 12321.906
37 11.033 123 14.250 . ...... 3737.70 123 17AI27 37 40.963 M 22.027
64- 37 11.004 123 14.158 37 37JM 123 17.911 3741.107 12322.146
65.- 37 10.978 123 14.078 37 37.887 123 17@M 51 ........ . ....... . . . .. . . . . ...... 37 412M 12322269
37 10.942 123 13.978 3737.937 123 18.105 52 ................ ....... . ...... -- 37 41.37e 123 2Z390
67 ..... . ..... . . 37 10.890 123 13.877 37 37@M 123 1&= 53--... . . . ......... 3741,515 123 22.499
68- 37 IOA47 123 13.802 37 38M6 123 1 MW
69-- 37 10.804 123 13.727 37 38.183 123 18.5" 64 ........... . . . .................... 37 41.M M M607
37 10.712 123 13.614 37 X270 123 IW4 . ......... . . . ..... 37 41.9W 12322.704
71 ...... . ........... 37 10.64e 123 13-531 3738-1 123 1&832 56 . . ...... . . . . ...................... 3741.920 12322.766
72 ......... .................. . ..... .37 10.5U 123 13.439 22__.__.__ 37 38.465 123 16AM 3742.036 12322.825
73 ..................... 37 10.506 123 13.370 37369% 123 19.134 58 . .......... 3742.174 12322.8ft
74 ..... . ..................... 37 10.502 M 7.506 24_____.- 3738 123 1G.M 374220 12322.057
75- 37 17.496 123 7JM 37 36.726 123 19 364 3742.421 12323.012
3738.825 123 19.497 61 ......... . . 3742.50 12323.105
27--.--.-- 37 X91 1 123 MM 62.--- 3742.704 12323.165
Study Area 5 28- 37 38M5 123 19.703 3749626 12323.225
29 . .. . .. 3739.071 123 19411 64.-.--.-. 3743.005 12323.310
The area described by the foHowing points 3o- 3739.195 in 19mi 65--...-. 3743.086 123 M-3W
and a five-nauftal-mile-wide zone west of 31- 37 3U18 12320.138 37 43-205 123 23.410
the western boundary that area: 37 39AO4 123 20= 67 . ......... . . . ...... 3743.327 123 23.467
33- 3739.476 123 20 68 .......... 37 43.376 123 23.482
34 3739.565 123 2D.465 80 37 43."4 12323.515
Point Uvftde Lorqmjft 35- 37 39 W4 12320.574
36 3739.762 M 20M
37 43.4" 12323.515 37----- 37 39A40 123 21791 [FR Doc. 92-22512 Filed 9-17-4M US am]
2-.----- 3743.436 123 30.063 38- - 37 39AM 123 20
3734.566 12330.053 39-----=l 3730.997 123 2UN ORAMO COM 361649-M

0 17,
Coastal Zone Management Act
of 1972 as amended

S-882
71:8001

COASTAL ZONE MANAGEMENT ACT OF 1972

(PL 92-583, 16 U.S.C. 1451 et seq., October 27, 1972; Amended by PL 93-612,
January 2, 1975; PL 94-370.-Juiv 26, 1976; PL 95-219, December 28, 1977; PL 95-372,
September 18, 1978; PL 96-464, October 17, 1980; PL 98-620, November 11, 1984; PL
99-272, April 7, 1986; PL 99-626, November 7, 1986; PL 10 1-508, November 5, 1990)

SHORT TITLE Lakes, territorial sea, exclusive economic zone, and Out-
er Continental Shelf are placing stress on these areas
SEC. 301. This title may be cited as the "Coastal Zone and are creating the need for resolution of serious
MatTagement Act of 1972". conflicts among important and competing uses and val-
ues in coastal and ocean waters.
CONGRESSIONAL FINDINGS [Former 302(f)-(i) redesignated as (g)-l(j) by PL
SEC. 302. The Congress finds that - 96-4641.
(a) There is a national interest in the effective manage. (g) Special natural and scenic characteristics are being
ment, beneficial use, protection, and development of the damaged by ill-planned development that threatens these
coastal zone. values.
(b) The coastal zone is rich in a variety of natural, (h) In fight of competing demands and the urgent need
commercial, recreational, ecological, industrial, and esthetic to protect and to give high priority to natural systems in
resources of immediate and potential value to the present' the coastal zone, present state and local institutional
and future well-being of the Nation. arrangements for planning and regulating land and water
(c) The increasing and competing demands u pon the uses in such areas are inadequate.
lands and waters of our coastal zone occasioned by pop- (i) The key to more effective protection and use of the
ulation growth and economic development, including land and water resources of the coastaf zone is to en-
requirements for industry, commerce, residential' courage the states to exercise their full authority over the
development. recreation, extraction of mineral resources lands and waters in the coastal zone by assisting the
and fossil fuels, transportation and navigation, waste dis- states, in cooperation with Federal and local
posal, and harvesting of Fish, shellfish, and other living governments and other vitally affected interests, in
marine resources, have resulted in the loss of living developing land and water use programs for the coastal
marine resources, wildlife, nutrient-rich areas, perma- zone, including unified policies, criteria, standards,
nent and adverse changes to ecological systems, decrcas- methods, and processes for dealing with land and water
ing open space for public use, and shoreline erosion. use decisions of mdre than local significance.
(d) The habitat areas of the coastal zone, and the fish, 0) The national objective of attaining a greater degree
shellfish, other living marine resources, and wildlife of energy self-sufficiency would be advanced by
therein, are ecologically fragile and consequently ex- providing Federal Financial assistance to meet state and
tremely vulnerable to destructions by man's alterations. local needs resulting from new or expanded energy activi-
[302(a) amended by PL 101-5081 ty in or affecting the coastal zone.
(e) Important ecological, cultural, historic, and es- [302(k)-(m) added by PL 101-508]
thetic values in the coastal zone which are essential to the (k) -Land uses in the coastal zone, and the uses of
yvell-being of all citizens are being irretrievably damaged adjacent lands which drain into the coastal zone, may
or lost. significantly affect the quality of coastal waters and
[302(f) added by PL 96-464; amended by PL 101-5081 habitats, and efforts to control coastal water pollution
(f) New and expanding demands for food, energy, from land use activities must be improved.
minerals, defense needs, recreation, waste disposal, (1) Because global warming may result in a substan-
transportation, and industrial activities in the Great tial sea level rise with serious adverse effects in the

3-8-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037 7

71:8002 FEDERAL LAWS

coastal zone, coastal states must anticipate and plan for commercial and industrial developments in or adjacent
such an occurrence. to areas where such development already exists,
(m) Because of their proximity to and reliance upon (E) public access to the coasts for recreation purposes,
the ocean and its resources, the coastal states have (F) assistance in the redevelopment of deteriorating
substantial and significant interests in the protection, urban waterfronts and ports, and sensitive preservation
management, and development of the resources of the and restoration of historic, cultural, and esthetic
exclusive economic zone that can only be served by the coastal features,
active participation of coastal states in all Federal pro- (G) the coordination and simplification of procedures
grams affecting such resources and, wherever appropri- in order to ensure expedited governmental decision-
ate, by the development of state ocean resource plans as making for the management of coastal resources,
part of their federally approved coastal zone manage- (H) continued consultation and coordination with, and
ment programs. the giving of adequate consideration to the views of,
affected Federal agencies,
CONGRESSIONAL DECLARATION OF POLICY (1) the giving of timely and effective notification
[303 revised by PL 96-4641 of, and opportunities for public and local government
participation in, coastal management decisionmaking,
SEC. 303. The Congress finds and declares that it is
the national policy- [303(2)(1) amended by PL 101-508]
(1) to preserve, protect, develop, and where possible, (J) assistance to support comprehensive planning, con-
to restore or enhance, the resources of the Nation's servation, and management for living marine re-
coastal zone for this and succeeding generations; sources, including planning for the siting of pollution
(2) to encourage and assist the states to exercise control and aquaculture facilities within the coastal zone,
effectively their responsibilities in the coastal zone and improved coordination between State and Federal
through the development and implementation of manage- coastal zone management agencies and State and wild-
ment programs to achieve wise use of the land and water life agencies, and
resources of the coastal zone, giving full consideration to [303(2)(J) amended by PL 101'-5081
ecological, cultural, historic, and esthetic values as well (K) the study and development, in any case in which
as the needs for compatible economic development, the Secretary considers it to be appropriate, of plans for
which programs should at least provide for- addressing the adverse effects upon the coastal zone of
[303(2) introductory paragraph amended by PL land subsidence and of sea level rise; and
101-5081 [303(2)(K) amended by PL 101-508]
(A) the protection of natural resources, including (3) to encourage the preparation of special area
wetlands, floodplains, estuaries, beaches, dunes, barrier management plans which provide for increased specificity
islands, coral reefs, and fish and wildlife and their in protecting significant natural resources, reasonable
habitat, within the coastal zone, coastal-dependent economic growth, improved protection
(B) the management of coastal development to of life and property in hazardous areas, including those
minimize the lo 'ss of life and property caused by areas likely to be affected by land subsidence, sea level
improper development in flood-prone, storm surge, rise, or fluctuating water levels of the Great Lakes, and
geological hazard, and erosion-prone areas and in areas improved predictability in governmental decisionmaking;
likely to be affected by or vulnerable to sea level rise, [303(3) amended by PL 101-508]
land subsidence, and saltwater intrusion, and by the
destruction of natural protective features such as beach- (4) to encourage the participation and cooperation
es, dunes, wetlands, and barrier islands. of the public, state and local governments, and
[303 (2)(B) amended, former (C)-(I) redesignated as interstate and other regional agencies, as well as of the
new (D)-(J) and new (C) added by PL 101-508] Federal agencies having programs affecting the'coastal
(C) the management of coastal development to'im- zone, in carrying out the purposes of this title;
prove, safeguard, and restore the quality of coastal [303(4) amended and (5) and (6) added by PL
waters, and to protect natural resources and existing 101-5081
uses of those waters. - .- (5) to encourage coordination and cooperation with
(D) priority consideration being given to coastal- and among the appropriate Federal, State, and local
dependent uses and orderly processes for siting major agencies, and international organizations where appro-
facilities related to national defense, energy, fisheries priate, in collection, analysis, synthesis, and dissemina-
development, recreation, ports and transportation, and tion of coastal management information, research re-
the location, to the maximum extent practicable, of new sults, and technical assistance, to support State and

Environment Reporter

S-882
COASTAL ZONE ACT 71:8003

Federal regulation of land use practices affecting the (4) The term "coastal state" means a state of the
coastal and ocean resources of the United States; and United States in, or bordering on. the Atlantic, Pacific.
(6) to respond to changing circumstances affecting the or Arctic Ocean, the Gulf of Mexico, Long Island Sound,
coastal environment and coastal resource management or one or more of the Great Lakes. For the purposes of
by encouraging States to consider such issues as ocean this title, the term also includes Puerto Rico, the Virgin
uses potentially affecting the coastal zone. Islands, Guam, the Commonwealth of the Northern
Mariana Islands, and the Trust Territories of the
DEFINITIONS Pacific Islands, and American Samoa.
SEC. 304. For the purposes of this title - [304(4) amended by PL 96-464]
(1) The term "coastal zone" means the coastal waters (5) The term "coastal energy activity" means any of
(including the lands therein and thereunder) and the adja- the following activities if, and to the extent that (A) the
cent shorelands (including the waters therein and conduct. support, or facilitation of such activity requires
thereunder), strongly influenced by each other and in and involves the siting. construction, expansion, or
proximity to the shorelines of the several coastal states . n of any equipment or facility, and (B) any
li operatio
and includes islands, transitional and intertidal areas, sa technical requirement exists which, in the determination
marshes, wetlands,- and beaches. The zone extends, in of the Secretary, necessitates- that the siting, construc-
Great Lakes waters, to the international boundary tion, expansion. or operation of such equipment or facili-
between the United States and Canada and, in other ty be carried out in, on in close proximity to, the coastal
areas, seaward to the. outer limit of the outer limit of zone of any coastal state.
State title and ownership under the Submerged Lands (i) Any outer Continental Shelf energy activity.
Act (43 U.S.C. 1301 et seq.), the Act of March 2, 1917 (ii) Any transportation, conversion. treatment,
(48 U.S.C. 749), the Covenant to Establish a Common- transfer, or storage of liquefied natural gas.
wealth of the Northern Mariana Islands in Political (iii) Any transportation. transfer, or storage of.oil.
Union with the United States of America, as approved natural gas, or coal (including, but not limited to, by
by the Act of March 24, 1976 (48 U.S.C. 1681 note), or means of any deep-water port, as defined in section 3(10)
section I of the Act of November 20, 1963 (48 U.S.C. of the Deepwater Port Act of 1974 (33 U.S.C. 1502(10))).
1705, as applicable. The zone extends inland. from the For purposes of this paragraph, the siting, construc-
shorelines only to the extent necessary to control tion. expansion, or operation of any equipment or facility
shorelands, the uses of which have a direct and significant shall be 'in close proximity to the coastal zone'of any
impact on the coastal waters. Excluded from the coastal coastal state if such siting, construction, expansion, or
zone are lands the use of which is by law subject solely to operation has, or is likely to have, a significant effect on
the discretion of or which is held in trust by the Federal such coastal zone.
Government, its officers or agents and to control those (6) The term "energy facilities" means any equipment
geographical areas which are likely to be affected by or or facility which is or will be used primarily -
vulnerable to sea level rise. (A) in th@ exploration for, or the development, produc-
[304(l) amended by PL 101-508] tion, conversion. storage, @ transfer, processing, or
(2) The term "coastal resource of national significance" transportation of, any energy resource; or
means any coastal wettand, beach, dune, barrier island, (B) for the manufacture, production, or assembly of
reef, estuary, or fish and wildlife habitat, if any equipment, machinery, products. or devices which are in-
such area is determined by a coastal state to be of volved in any activity described in subparagraph (A).
substantial biological or natural storm protective value. The term includes. but is not limited to (i) electric
(New 304(2) added by PL 96-464 and former 304(2)- generating plants; (ii) petroleum refineries and associated
(16) redesignated as (3)-(17) by PL 96-4641 facilities. (iii) gasification plants; (iv) facilities used for
(3) The term "coastal waters" means (A) in the Great the transportation, conversion, treatment, transfer, or
Lakes area, the waters within the territorial jurisdiction storage of liquefied natural gas; (v) uranium enrichment
of the United States consisting of thiGreat Lakes, their or nuclear fuel processing facilities; (vi) oil and gas
connecting waters, harbors, roadsteads, and estuary-type facilities. including platforms, assembly plants, storage
areas such as bays, shallows, and marshes and (8) in depots. tank farms, crew and supply bases, and refining
other areas, those waters, adjacent to the shorelines, complexes, (vii) facilities including deepwater ports. for
which contain a measurable quantity or.oercentage of sea the transfer of petroleum. (viii) pipelines and transmis-
water including, but not limited to, sounds. bays, sion facilities. and (ix) terminals which are associated
lagoo@s, bayous, ponds, and estuaries. with any of the foregoing.

3-48-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. WashhVlm. D.C. 20037 9

71:8004 FEDERAL LAWS

(6a) The term 'enforceable policy' means State poli- Federal Government, any state, regional. or local govern-
cies which are legally binding through constitutional ment. or any entity of any such Federal, state, regional,
provisions, laws, regulations, land use plans, ordinances, or local government.
or judicial or administrative decisions, by which a State (15) The. term "public facilities and public services"
exerts control over private and public land and water means facilities or services which are financed, in whole
uses and natural resources in the coastal zone. or in part, by any state or political subdivision thereof.
[304(6a) added by the PL 101-508] including, but not limited to, highways and secondary
(7) The term "estuary" means that part of a river or roads, parking, mass transit, docks, navigation aids, fire
stream or other body of water having unimpaired connec- and police protection, water supply, waste collection and
tion with the open sea, where the sea water is measurably treatment (including drainage), schools and education.
diluted with fresh water derived from land drainage. The and hospitals and health care. Such term may also in-
term includes cstuary-typc areas of the Great Lakes. clude any other facility or service so financed which the
(8) The term "estuarine sanctuary" means a research Secretary finds will support increased population.
area which may include any part or all of an estuary and (16) The term "Secretary" means the Secretary of
any island, transitional area. and upland in. adjoining. or Commerce.
adjacent to such estuary, and which constitute to the ex- (17) The term 'special area management plan'
tent feasible a natural unit. set aside to provide scientists means a comprehensive plan providing for natural
and students the opportunity to examine over a period of resource protection and reasonable coastal-dependent
time the ecological relationships within the area. economic growth containing a detailed and"comprehensive
(9) The term "Fund" means the Coastal Energy Im- statement of policies; standards and criteria to guide
pact Fund established by section 308(h). public and private uses of lands and waters; and
(10) The term "land use" means activities which are mechanisms for timely implementation in specific
conducted in. or on the shorelands within, the coastal geographic areas within the coastal zone.
zone, subject to the requirements outlined in section [304(17) added by PL 96-464]
307(g). (18) The term "water use" means a use, activity, or
(11) The term "local government" means any political project conducted in -or on waters within the coastal
subdivision of. or any special entity created by, any zone.
coastal state which (in whole or part) is located in, or has [304(18) revised by PL 101-508]
authority over, such state's coastal zone and which (A)
has authority to levy taxes, or to establish and collect MANAGEMENT PROGRAM DEVELOPMENT
user fees, or (B) provides any public facility or public ser- GRANTS
vice which is financed in whole or part by taxes or user
fees. The term includes, but is not limited to, any school SEC. 305. (a) In fiscal years 1991, 1992, and 1993,
district. fire district, transportation authority, and any the Secretary may make a grant annually to any coastal
other special purpose district or authority. state without an approved program if the coastal state
(12) The term "management program" includes, but is demonstrates to the satisfaction of the Secretary that the
not limited to, a comprehensive statement in words, grant will be used to develop a management program
maps, illustrations. or other media of communication. consistent with the requirements set forth in section 306.
prepared and adopted by the state in accordance with the The amount of any such grant shall not exceed $200,000
provisions of this title, setting forth objectives, policies. in any fiscal year, and shall require State matching
and standards to guide public and private uses of lands funds according to a 4-to-1 ratio of Federal-to-State
and waters in the coastal zone. contributions. After an initial grant is made to a coastal
(13) The term @outer continental shelf energy activity" state pursuant to this subsection, no subsequent grant
means any exploration for, or any development or shall be made to that coastal state pursuant to this
production of, oil or natural gas from the outer con- subsection unless the Secretary finds that the coastal
tinental shelf (as defined in section 2(a) of the Outer state is satisfactorily developing its management pro-
Continental Shelf Lands Act,(43 U.S.C. 1331(a)), or the gram. No coastal state is eligible to receive more than
siting, construction, expansion. or operation of any new two grants pursuant to this subsection.
or expanded energy facilities directly required by such ex- (b) Any coastal state which has completed the devel-
ploration, develop!nent, or production. opment of its management program shall submit such
(14) The term "person" means any individual: any cor- program to the Secretary for review and approval pursu-
poration. partnership, association, or other entity ant to section 306.
organized or existing under the laws of any state: the [305 revised by PL 101-508]

Envwonmeni Reportw 10

S-M
COASTAL ZONE ACT 71:8005

ADMINISTRATIVE GRANTS (D) An identification of the means by which the State
[306 revised by PL 101-5081 proposes to exert control over the land uses and water
SEC. 306. (a) The Secretary may make grants to any uses referred to in subparagraph (B), including a list of
coastal state for the purpose of administering that state's relevant State constitutional provisions, laws, regula-
management program, it the state matches any such tions, and judicial decisions.
grant according to the following ratios of Federal-to- (E) Broad guidelines on priorities of uses in particular
State contributions for the applicable fiscal year: areas, including specifically those uses of lowest priority.
(1) For those States for which programs were ap- (F) A description of the organizational structure pro-
proved prior to enactment of the Coastal Zone Act posed to implement such management program, includ-
Reauthorization Amendments of 1990, 1 to I for any ing the responsibilities and interrelationships of local,
fiscal year. areiwide, State, regional, and interstate agencies in the
(2) For programs approved after enactment of the management process.
Coastal Zone Act Reauthorization Amendments of (G) A definition of the term 'beach' and a planning
1990, 4 to I for the first fiscal year, 2.3 to I for the process for the protection of, and access to, public
second fiscal year, 1.5 to I for the third fiscal year, and I beaches and other public coastal areas of environnitntal,
to I for each fiscal year thereafter. recreational, historical, esthetic, ecological,.or cultural
(b) The Secretary may make a grant to a coastal state value.
under subsection (a) only if the Secretary finds that the (H) A planning process for energy facilities likely to
management program of the coastal state meets all be located in, or which 'may significantly affect, the
applicable requirements of this title and has been ap- coastal zone, including a process for anticipating the
proved in accordance with subsection (d); management of the impacts resulting from such
(c) Grants under this section shall be allocated to facilities.
coastal states with approved programs based on rules (1) A planning process for assessing the effects of, and
and regulations promulgated by the Secretary which studying and evaluating ways to control, or lessen * the
shall take into account the 'extent and nature of the impact of, shoreline erosion, and to restore areas ad-
shoreline and area covered by the program, population of versely affected by such erosion.
-.he area, and other relevant factors. The Secretary shall (3) The State has-
establish, after consulting with the coastal states, maxi- (A) coordinated its program with local, areawide, and
mum and minimum grants for any fiscal year to promote interstate plans applicable to areas within the coastal
equity between coastal states and effective coastal zone-
management. (i) existing on January I of the year in which the
(d) Before approving a management program submit- State's management program is submitted to the Secre-
ted by a coastal state, the Secretary shall find the tary; and
following: (ii) which have been developed by a local government,
(1) The State has developed and adopted a manage- an areawide agency, a regional agency, or an interstate
ment program for its coastal zone in accordance with agency;and
rules and regulations promulgated by the Secretary, (B) established an effective mechanism for continuing
after notice, and with the opportunity of full participa- consultation and coordination between the management
tion by relevant Federal agencies, State agencies, local agency desigpated pursuant to paragraph (6) and with
governments, regional organizations, port authorities, local governments, interstate agencies, regional agencies,
and other interested parties and individuals, public and and areawide agencies within the coastal zone to assure
private, which is adequate to carry out the purposes of the full participation of those local governments and
this title and is consistent with the policy declared in agencies in carrying out the purposes of this title; except
section 303. that the Secretary shall not find any mechanism to be
(2) The management program includes each of the effective for purposes of this subparagraph unless it
following required program elements: requires that-
(A) An identification of the boundaries of the coastal (i) the management agency, before implementing any
zone subject to the management program. management program decision which would conflict
(B) A definition of what shall constitute permissible with any local zoning ordinance, decision, or other ac-
land uses and water uses within the coastal zone which tion, shall send a notice of the management program
have a direct and significant impact on the coastal decision to any local government whose zoning authoriiy
waters. is affected;
(C) An inventory and designation of areas of particu- (ii) within the 30-day period commencing on the date
lar concern within the coastal zone. of receipt of that notice, the local government may

3-8-91 Pubosw by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037

71:8006 FEDERAL LAWS

submit to the management agency written comments on (B) Direct State land 'and water use planning and
the management program decision, and any recommen- regulation.
dation for alternatives; and (C) State administrative review for consistency with
(iii) the management agency, if any comments are the management program of all development plans,
submitted to it within the 30-day period by any local projects,- or land and water use regulations, including
government- exceptions and variances -thereto, proposed by any State
(1) shall consider the comments; or local authority or private developer, with power to
(11) may, in its discretion, hold a public hearing on the approve or disapprove after public notice and an oppor-
comments; and tunity for hearings.
(111) may not take any action within the 30-day (12) The management program contains a method of
period to implement the management program decision. assuring that local land use and water use regulations
(4) The State has held public hearings in the develop- within the coastal zone do not unreasonably restrict or
ment of the management program. exclude land uses and water uses of regional benefit.
(5) The management program and any changes there- (13) The management program provides for-
to have been reviewed and approved by the Governor of (A) the inventory and designation of areas that con-
the State. tain one or more coastal resources of national signifi-
(6) The Governor of the State has designated a single cance;and
State agency to receive and administer grants for: imple- (B) speciAc and enforceable standards to protect such
menting the management program. resources.
(7) The State is organized to implement the manage- (14) The management program provides for public
ment program. participation in permitting processes, consistency deter-
(8) The management program provides for adequate minations, and other similar decisions.
consideration of the national interest involved in plan- (15) The management program provides a mechanism
ning for, and managing the coastal zone, including the to ensure that all State agencies will adhere to the
siting of facilities such as energy facilities which are of program.
greater than local significance. In the case of energy .(16) The management program contains enforceable
facilities, the Secretary shall find that the State has
given consideration to any Applicable national or inter- policies and'mechanisms to implement the applicable
state energy plan or program. requirements of the Coastal Nonpoint Pollution Control
(9) The management program includes procedures Program of the State required by section 6217 of the
whereby specific areas may be designated for the pur- Coastal Zone Act Reauthorization Amendments of
1990.
pose of-prescrving or restoring them for their conserva- (e) A coastal state may amend or mod .ify a manage-
tion, recreational, ecological, historical, or esthetic ment program which it has submitted and which has
values. been approved by the Secretary under -this section,
(10) The State, acting through its chosen agency or subject to the following conditions:
agencies (including local governments, areawide agen-
cies, regional agencies, or interstate agencies) has au- (1) The State shall promptly notify the Secretary of
thority for the management of the coastal zone in ac- any proposed amendment, modification, or other pro-
cordance with the management program. Such authority gram change and submit it for the Secretary's approval.
shall include power- The Secretary may suspend all or part of any grant
(A) to administer land use and water use regulations made under this section pending State submission of the
to control development to ensure compliance with the proposed amendments, modification, or other program
management program, and to resolve conflicts among change.
competing uses; and (2) Within 30 days after the date the Secretary
(B) to acquire fee simple and less than fee simple receives any proposed amendment, the Secretary shall
interests in land, waters, and other property through notify the State whether the Secretary approves or
condemnation or other me -ans, when necessary to achieve disapproves the amendment, or whether the Secretary
conformance with the management program. finds it is necessary to extend the review of the proposed
(11) The management program provides for any one amendment for a period not to exceed 120 days after the
or a combination of the following general techniques for date the Secretary received the proposed amendment.
control of land uses and water uses within the coastal The Secretary may extend this period only as necessary
zone: to meet the requirements of the National Environmental
(A) State establishment of criteria and standards for Policy Act of 1969 (42 U.S.C. 4321 et seq.). If the
local implementation, subject to administrative review Secretary does not notify the coastal state that the
and enforcement. Secretary approves or disapproves the amendment with-

Envvonm*M ReporW 12

S-W
COASTAL ZONE ACT 71:8007

in that period, then the amendment shall be conclusively (b) The Secretary may make grants to any eligible
presumed as approved. coastal state to assist that state in meeting one or
(3)(A) Except as provided in subparagraph (B), a more of the following objectives:
coastal state may not implement any amendment, modi- (1) The preservation or restoration of specific areas
fication, or other change as part of its approved manage- of the state that (A) are designated under the manage-
ment program unless the amendment, modification, or ment program procedures required by section 306
other change is approved by the Secretary under this (d)(9) because of - their 'conservation 'recreational, eco-
subsection. logical, or esthetic values, or (B) contain one or more
(B) The Secretary, after determining on a preliminary coastal resources of national significance, or for the
basis, that an amendment, modification, or other change purpose of restoring and enhancing shellfish production
which has been submitted for approval under this sub- by the purchase and distribution of clutch material on
section is likely to meet the program approval standards publicly owned reef tracts.
in this section, may permit the State to expend funds [306A(b)(1) amended by PL 101-5081
awarded under this section to begin implementing the (2) The redevelopment of deteriorating and under-
proposed amendment, modification, or change. This pre- utilized urban waterfronts and ports that are designated
liminary approval shall not extend for more than 6 under section 305(b)(3) in the state's management
months and may not be renewed. A proposed amend- program as areas of particular concern.
ment, modification, or change which has been giien (3) The provision of access of public beaches and
preliminary approval and is not finally approved under other public coastal areas and to coastal waters in
this paragraph shall not be considered an enforceable accordance with the planning process required under
policy for purposes of section 307. section 305(b)(7).
[Editor's note.- Sec. 6206(b) of PL 101-508 provides: (c) (1) Each grant made by the Secretary under
"(b) Additional Program Requiriments.-Each State this section shall be subject to such terms and con-
which submits a management program for approval ditions as may be appropriate to ensure that the'grant
under section 306 of the Coastal Zone Management Act is used for purposes consistent with this section.
of 1972, as amended by this subtitle (including a State (2) Grants made under this section may be used for-
which submitted a program before the date of enactment (A) the acquisition of fee simple and other interests
of this Act), shall demonstrate to the Secretary- in land; , -
(1) that the program complies with section 306(d)(14) (B) low-cost construction projects determined by the
and (15) of that Act, by not later than 3 years after the Secretary to be consistent with the purposes of this
date of the enactment of this Act; and section, including but not limited to, paths, walkways,
(2) that the program complies with section 306(d)(16) fences, parks, and the rehabilitation of historic buildings
of that Act, by not later than 30 months after the date of and structures; except that not more than 50 per centum
publication of final guidance under section 6217(g) of of any grant made under this section may be used for
this Act."] such construction projects;
RESOURCE MANAGEMENT (C) in the case of grants made for objectives
IMPROVEMENT GRANTS described in subsection (b)(2)-
(306A added by PL 96-4641 (i) the rehabilitation or acquisition of piers to
provide increased public use, including compatible
SEC. 306A. (a) F 'or purposes of this section- commercial activity,
(1) The term 'eligible coastal state' means a coastal (ii) the establishment of shoreline stabilization
state that for any fiscal year for which a grant is measures including the installation or rehabilitation of
applied for under this section- bulkheads for the purpose of public safety or increasing
((A) has a management program approved under public access and use, and
section 306. and (iij) the removal or replacement of pilings where
(B) in the judgment of the Secretary, is making such action will provide increased recreational use of
satisfactory progress in activities designed to result in urban waterfront areas,
significant improvement in achieving the coastal manage- but activities provided for under this paragraph shall
ment objectives specified in section 303(2)(A) through not be treated as construction projects subject to the
(1). limitations in paragraph (B),
(2) The term 'urban waterfront and port' means any (D) engineering designs, specifications, and other
developed area that is densely populated and is being appropriate reports; and
used for, or has been used for, urban residential (E) educational, interpretive, and management costs
recreational, commercial, shipping or industrial pur- and such other related costs as the Secretary determines
poses. to be consistent with the purposes of this section.

341-91 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WashingM, D.C. 20037 13

71:8008 FEDERAL LAWS

(d)(1) The Secretary may make grants to any coastal (B) After any final judgment, decree, or order of any
state for the purpose of carrying out the project or Federal court that is appealable under section 1291 or
purpose for which such grants are awarded, if the state 1292 of title 28, United States Code, or under any other
matches any such grant according to the following ratios applicable provision of Federal law, that a specific Fed-
of Federal to state contribution for the applicable fiscal eral agency activity is not in compliance with subpara-
year: 4 to I for fiscal 1986; 2.3 to I for fiscal year 1987; graph (A), and certification by the Secretary that medi-
1.5 to I for fiscal year 1988; and I to I for each fiscal ation under subsection (h) is not likely to result in such
year after fiscal year 1988. compliance, the President may, upon written request
[Former 306A(d)(1) deleted and new (d)(1) added by from the Secretary, exempt from compliance those ele-
PL 99-2721 ments of the Federal agency activity that are found by
the Federal court to be inconsistent with an approved
(2) Grants provided under this section may be used State program, if the President determines that the
to pay a coastal state's share of costs required under activity is in the paramount interest of the United
any other Federal program that is consistent with the States. No such exemption shall be granted on the basis
purposes of this section. of a lack of appropriations unless the President has
(3) The total amount of grants made under this specifically requested such appropriations as part of the
section to any eligible coastal state for any fiscal' budgetary process, and the Congress has failed to make
year may not exceed an amount equal to 10 per centum available the requested appropriations.
of the total amount appropriated to carry out this (C) Each Federal agency carrying out an activity
section for such fiscal year. subject to paragraph (1) shall provide a consistency
(e) With the approval of the Secretary, an eligible determination to the relevant State agency designated
coastal state may allocate to a local. government, an under section 306(d)(6) at the earliest practicable time,
areawide agency designated under section 204 of the but in no cage later than 90 days before final approval *of
Demonstration Cities and Metropolitan Development the Federal activity unless both the Federal agency and
Act of 1966, a regional agency, or an interstate agency, the State agency agree to a different schedule.
a portion of any grant made under this section for [307(c)(1) revised by PL 101-5081
the purpose of carrying out this section; except tnat
such an allocation shall not relieve that state of the (2) Any Federal agency which shall undertake any
responsibility for ensuring that any funds so allocated development project in the coastal zone of a state shall
are applied in furtherance of the state's approved insure that the project is, to the maximum extent prgc-
management program. ticable, consistent with the enforceable policies of ap-
(f) In addition to providing grants under this section, proved state management programs.
the Secretary shall assist eligible coastal states and their [307(c)(2) amended by PL 101-508]
local governments in identifying and obtaining other (3)(A) After final approval by the Secretary of a state's
sources of available Federal technical and financial management program, any applicant for a required
assistance regarding the objectives of this @ection. Federal license or permit to conduct an activity, in or
COORDINATION AND COOPERATION outside of the coastal zone, affecting any land or water
use or natural resource of the coastal zone of that state
SEC. 307. (a) In carrying out his functions and respon- shall provide in the application to the licensing or per-
sibilities under this title, the Secretary shall consult with, mitting agency a certification that the proposed activity
cooperate with, and, to the maximum extent practicable, complies with the enforceable policies of the state's
coordinate his activities with other interested Federal approved program and that such activity will be conduct-
agencies. ed in a manner consistent with the program. At the same
(b) The Secretary shall not approve the management time, the applicant shall furnish to the state or its
program submitted by a state pursuant to section 306 un- designated agency a copy of the certification, with all
less the views of Federal agencies principally affected by necessary information and data. Each coastal state shall
such program have been adequately considered. establish procedures for public notice in the case of all
(c)(1)(A) Each Federal agency activity within or such certifications and, to the extent it deems appropri-
outside the coastal zone that affects any land or water ate. procedures for public hearings in connection there-
use or natural resource of the coastal zone shall be with. At the earliest practicable time, the state or its
carried out in a manner which is consistent to the designated agency shall notify the Federal agency con-
maximum extent practicable with the enforceable poli- cerned that the state concurs with or objects to the
cies of approved State management programs. A Federal applicant's certification. If the state or its designated
agency activity shall be subject to this paragraph unless agency fails to furnish the required notification within
it is subject to paragraph (2) or (3). six months after receipt of its copy of the applicant's

Envwomnw Reporw 14

S-M
COASTAL ZONE ACT 71:8009

certification, the state's concurrence with the certifica- (iii) the Secretary finds, pursuant to subparagraph (A),
tion shall be conclusively presumed. No license or permit that each activity which is described in detail in such plan
shall be granted by the Federal agency until the state or is consistent with the objectives of this title or is
its designated ageRcy has concurred with the applicant's otherwise necessary in the interest of national security.
certification or until, by the state's failure to act, the If a state concurs or is conclusively presumed to con-
concurrence is conclusively presumed, unless the Secre- cur, or if the Secretary makes such a finding, the
tary, on his own initiative or upon appeal by the appli- provisions of subpariagraph (A) are not applicable with
cant, finds, after providing a reasonable opportunity for respect to such person, such state, and any Federal
detailed comments from the Federal agency involved license or permit which is required to conduct any activi-
and from the state, that the activity is consistent with ty affecting land uses or water uses in the coastal zone of
the objectives of this title or is otherwise necessary in the such state which is described in detail in the plan to which
interest of national security. such concurrence or Finding applies. If such state objects
[307(c)(3)(A) amended by PL 101-5081 to such certification and if the Secretary fails to make a
(B) After the management program of any coastal finding under clause (iii) with respect to such certifica-
state has been approved by the Secretary under section tion, or if such person fails substantially to comply with
306, any person who submits to the Secretary of the such plan as submitted, such person shall submit an
Interior any plan for the exploration or development of, amendment to such plan, or a new plan, to the Secretary
or production from. any area which has been leased un- of the Interior. With.respect Lo any amendment or new
der the Outer Continental Shelf Lands Act (43 U.S.C. plan submitted to the Secretary of the Interior pursuant
1331 et seq.) and regulations under such Act shall, with to the preceding sentence, the applicable time period for
respect to any exploration, development, or production purposes of concurrence by conclusive presumption un-
described in such plan and affecting any land use or water der subparagraph (A) is 3 months.
ate, (d) State and local governments submitting
use or natural resource of the coastal zone of such st applications for Federal assistance under other 'Federal
attach to such plan a certification that each activity programs, in or outside of the coastal zone, affecting any
which is described in detail in such plan complies with the land or water use of natural resource of the coastal *zone
enforceable policies of such state's approved management shall indicate the views of the appropriate state or local
program and will be carried out in a manner consistent agency as to the relationship of such activities to the
with such program. No Federal official or agency approved management program for the coastal zone.
shall grant such person any license or permit for any ac- Such applications shall be submitted and coordinated in
tivity described in detail in such plan until such state or accordance with the provisions of title IV of the Inter-
its designated agency receives a copy of such certification governmental Coordination Act of 1968 (82 Stat. 1098).
and plan, together with any other necessary data and in- Federal agencies shall not approve proposed projects
formation. and until - that are inconsistent with the enforceable policies of a
[307(c)(3)(B) introductory text amended by PL coastal state's management program, except upon a
101-5081 finding by the Secretary that such project in consistent
(i) such state or its designated agency, in accordance with the purposes of this title or necessary in the interest
with the procedures required to be established by such of national security.
state pursuant to subparagraph (A), concurs with such [307(d) amended by PL 101-5081
person's certification and notifies the Secretary and the (e) Nothing in this title shall be construed -
Secretary of the Interior of such concurrence. (1) to diminish either Federal or state jurisdiction.
(ii) concurrence by such state with such certifica- responsibility, or rights in the field of planning, develop-
tion is conclusively presumed as provided for in subpara- ment, or control of water resources. submerged lands, or
graph (A). except if such state fails to concur with or navigable waters; nor to displace. supersede, limit. or
object to such ccrtification within three months after modify any interstate compact or the jurisdiction or
receipt of its copy of such certirication and supporting responsibility of any legally established joint or common
information. such state shall provide the Secretary, the agency of two or more states or of two or more states and
appropriate federal agency, and such person with a the Federal Government: nor to limit the authority of
written statement describing the status of review and the Congress to authorize and fund projects,
basis for further delay in issuing a final decision. and if (2) as superseding, modifying, or repealing existing
such statement is not so provided, concurrence by such laws applicable to th@ variou's Federal agencies. nor to
state with such certification shall be -conclusively pre- affect the jurisdiction. powers. or prerogatives of the
sumed: or International Joint Commission. United States and
f(ii) revised by PL 95-372, September 18, 19781 Canada, the Permanent Engineering Board, and the

Pubfished by THE BUREAU OF NATIONAL AFFAIRS. INC., Washington, O.C. 20037

71:8010 FEDERAL LAWS

United States operating entity or entities established pur- loans made pursuant to this section as in effect before
suant to the Columbia River Basin Treaty, signed at the date of the enactment of the Coastal Zone Act
Washington, January 17, 1961, or the International Reauthorization Amendments of 1990, and any repay.
Boundary and Water Commission, United States and ment schedule established pursuant to this Act as in
Mexico. - effect before that date of enactment, are not altered by
(f) Notwithstanding any other provision of this title, any provision of this title. Such loans shall be repaid
nothing in this title shall in any way affect any require- under authority of this, subsection and the Secretary may
ment (1) established by the Federal Water Pollution Con- issue regulations governing such repayment. If the Sec-
trol Act, as amended, or the Clean Air Act, as amended, retary finds that any coastal state or unit of local
or (2) established by the Federal Government or by any government is unable to meet its obligations pursuant to
state or local government pursuant to such Acts. Such this subsection because the actual increases in employ-
requirements shall be incorporated in any program ment and related population resulting from coastal ener-
developed pursuant to this title and shall be the water gy activity and the facilities associated with such activity
pollution control and air pollution control requirements do not provide adequate revenues to enable such State or
applicable to such program. unit to meet such obligations in accordance with the
(g) When any state's coastal zone management appropriate repayment schedule, the Secretary shall,
program, submitted for approval. or proposed for after review of the information submitted by such State
modification pursuant to section 306 of this title, includes or unit, take any of the following actions:
requirements as to shorelands which also would be sub- (A) Modify the terms and conditions of such loan,
ject to any Federally supported national land use pro- (B) Refinance the loan.
gram which may be hereafter enacted, the Secretary, (C) Recommend to the Congress that legislation be
prior to approving such program, shall obtain the con- enacted to forgive the loan.
currence of the Secretary of the Interior, or such other (2) Loan repayments made pursuant to this subsection
Federal official as may be designated to administer the shall be retained by the Secretary as offsetting collec-
national land use program with respect to that portion of tions, and shall be deposited into the Coastal Zone
the coastal zone management program affecting such in- Management Fund established under subsection (b).
land areas. (b)(1) The Secretary shall established and maintain a
(h) In case of serious disagreement between any fund, to be known as the 'Coastal Zone Management
Federal agency and a coastal state - Fund' (hereinafter in this section referred to as the
(1) in the development or the initial implementation of 'Fund'), which shall consist of amounts retained and
a management program under section 305, or deposited into the Fund under subsection (a).
(2) in the administration of a management prbgrarn
approved under section 306; (2) Subject to amounts provided in appropriation
the Secretary, with the cooperation of the Executive Of- Acts, amounts in the Fund shall be available to the
rice of the President, shall seek to mediate the differences Secretary for use for the following:
involved in such disagreement. The process of such (A) Expenses incident to the administration of this
mediation shall, with respect to any disagreement title, in an amount not to exceed-
described in paragraph (2), include public hearings which (i) $5,000,000 for fiscal year 1991;
shall be conducted in the local area concerned. (ii) $5,225,000 for fiscal year 1992;
(i) With respect to appeals under subsections (c)(3) (iii) S5,460,125 for fiscal year 1993;
and (d) which are submitted after the date of the (iv) S5,705,830 for fiscal year 1994; and
enactment of the Coastal Zone Act Reauthorization (v) S5,962,593 for fiscal year 1995.
Amendments of 1990, the Secretary shall collect an (B) After use under subparagraph (A)-
application fee of not less than S200 for minor appeals (i) projects to address management issues which are
and not less than $500 for major appeals, unless the regional in scope, including interstate projects;
Secretary, upon consideration of an applicant's request (ii) demonstration projects which have high potential
for a fee waiver, determines that the applicant is unable for improving coastal zone management, especially at
to pay the fee. The Secretary shall collect such other fees the local level;
as are necessary to recover the full costs of administering (iii) emergency grants to State coastal zone manage-
and processing such appeals under subsection (c). ment agencies to address unforeseen or disaster-related
[307(i) added by PL 101-5081 circumstances;
COASTAL ZONE MANAGEMENT FUND (iv) appropriate awards recognizing excellence in
[308 revised by PL 95-372; PL 101-5081 coastal zone management as provided in section 314;
SEC. 308. (a)(1) The obligations of any coastal state (v) program development grants as authorized by
or unit of general purpose local government to repay section 305; and

Enwan"Wa Reportw

S-M
COASTAL ZONE ACT 71:8011

(vi) to provide financial support to coastal States for criteria established by the Secretary under subsection
use for investigating and applying the public trust doc- (d). The Secretary shall ensure that funding decisions
trine to implement State management programs ap- under this section take into consideration the fiscal and
proved under section 306. technical needs of proposing States and the overall merit
(3) On December I of each year, the Secretary shall of each proposal in terms of benefits to the public.
transmit to the Congress an annual report on the Fund', (d) Within 12 months following the date of enactment
including the balance of the Fund and an itemization of of this section, and consistent with the notice and partici-
all deposits into and disbursements from the Fund in the pation requirements established in section 317, the Sec-
preceding fiscal year. retary shall promulgate regulations concerning coastal
COASTAL ZONE ENHANCEMENT GRANTS zone enhancement grants that establish-
[309 revised by PL 96-464; PL 101-5081 (1) specific and detailed criteria that must be ad-
dressed by a coastal state (including the State's priority
SEC. 309. (a) For purposes of this section, the term needs for improvement as identified by the Secretary
.coastal zone enhancement objective' means any of the after careful consultation with the State) as part of the
following objectives: State's development and implementation of coastal zone
(1) Protection, restoration, or enhancement of the enhancement objectives;
existing coastal wetlands base, or creation of new coastal (2) administrative or procedural rules or requirements
wetlands. as necessary to facilitate the development and implemen-
(2) Preventing or significantly reducing threats to life tation of such objectives by costal states; and
and destruction of property by eliminating development (3) other funding award Criteria as are necessary or
and redevelopment in higb-hazard areas, managing de- appropriate to ensure that evaluations of proposals, and
velopment in other hazard areas, and anticipating and decisions to award funding, under this section are based
managing the effects of potential sea level rise and Great on objective standards applied fairly and equitably to
Lakes level rise. those proposals.
(3) Attaining increased opportunities for public ac- (e) A State shall not be required to contribute any
cess, taking into account current and future public ac- portion of the cost of any proposal for which funding is
cess needs, to coastal areas of recreational, historical, awarded under this section.
aesthetic, ecological, or cultural value. (f) Beginning in fiscal year 1991, not less than 10
(4) Reducing marine debris entering the Nation's percent and not more than 20 percent of the amounts
coastal and ocean environment by managing uses and appropriated to implement sections 306 and 306A of this
activities that contribute to the entry of such debris. title shall be retained by the Secretary f9r use in imple-
(5) Development and adoption of procedures to assess, menting this section, up to a maximum of S10,000,000
consider, and control cumulative and secondary impacts annually.
of coastal growth and development, including the collec- (g) If the Secretary finds that the State is not under-
tive effect on various individual uses or activities on taking the actions committed to under the terms of the
coastal resources, such as coastal wetlands and fishery grant, the Secretary shall suspend the State's eligibility
resources. for further funding under this section for at least one
(6) Preparing and implementing special area manage- year.
ment plans for important coastal areas.
(7) Planning for the use of ocean resourcts. TECHNICAL ASSISTANCE
(8) Adoption of procedures and enforceable policies to (310 added by PL 101-5081
help facilitate the siting of energy facilities and Govern- SEC. 3 10. (a) The Secretary shall conduct a program
ment facilities and energy-related activities and Govern- of technical assistance and managment-oriented research
ment activities which may be of greater than local necessary to support the development and implementa-
significance. tion of State coastal management program amendments
(b) Subject to the limitations and goals established in under section 309, and appropriate to the furtherance of
this section, the Secretary may make grants to coastal international cooperative efforts and technical assistance
states to provide funding for development and submis- in coastal zone management. Each department, agency,
sion for Federal approval of program changes that sup- and instrumentality of the executive branch of the Fed-
port attainment of one or more coastal. zone enhance- eral Government may assist the Secretary, on a reim-
meat objectives. bursable basis or otherwise, in carrying out the purposes
(c) The Secretary shall evaluate and rank State pro- of this section, including the furnishing of information to
posals for funding under this section, and make funding the extent permitted by law, the transfer of personnel
awards based on those proposals, taking into account the with their consent and without prejudice to their position

PuWlshed by THE BUREAU OF NATIONAL AFFAIM INC., WashingtOn. D.C. 20037 17

71:8012 FEDERAL LAWS

and rating, and the performance of any research, study, evaluation. Each evaluation shall be prepared in report
and technical assistance which does not interfere with form and shall include written responses to the written
the performance of the primary duties of such depart- comments received during the evaluation process. The
ment, agency, of instrumentality. The Secretary may final report of the evaluation shall be completed within
enter into contracts or other arrangements with any 120 days after the last public meeting held in the State
qualified person for the purposes of carrying out this being evaluated. Copies- of the evaluation shall be imme-
subsection. diately provided to all persons and organizations partici-
(b)(1) The Secretary shall provide for the coordina- pating in the evaluation process.
tion of technical assistance, studies, and research activi- [312(b) revised by PL 101-508)
ties under this section with any other such activities that (c)(1) The Secretary may suspend payment of any
are conducted by or subject to the authority of the portion of financial assistance extended to any coastal
Secretary. state under this title, and may withdraw any unexpended
(2) The Secretary shall make the results of research portion of such assistance, if the Secretary determines
and studies conducted pursuant to this section available that the coastal state is failing to adhere.to (A) the
to coastal states in the form of technical assistance management program or a State plan developed to
publications, workshops, or other means appropriate. manage a national estuarine reserve established under
(3) The Secretary shall consult with coastal states on section 315 of this title, or a portion of the program or
a regular basis regarding the development and imple- plan approved by the Secretary, or (B) the terms of any
mentation of the program established by this section. grant or cooperative agreement funded under this title.
PUBLIC HEARINGS (2) Financial assistance may not be suspended under
paragraph (1) unless the Secretary provides the Gover-
SEC. 311. All public hearings required under this title nor of the coastal state with-
must be announced at least thirty days prior to the hear- (A) written specifications and a schedule for the
ing date. At the time of the announcement, all agency actions that should be taken by the State in order that-
materials pertinent to the hearings. including documents, such suspension of financial assistance may be with-
studies. and other data, must be made available to the drawn; and
public for review and study. As similar materials are sub- (B) written specifications stating how those funds
sequently developed, they shall be made available to the from the suspended financial assistance shall be expend-
public as they become available to the agency. ed by the coastal state to take the actions referred to in
REVIEW OF PERFORMANCE subparagraph (A).
[312 revised by PL 96-4641 (3) The suspension of financial assistance'may not last
SEC. 312. (a) The Secretary shall conduct a-con- for less than 6 months or more than 36 months after the
tinuing review of the performance of coastal states date of suspension.
with respect to coastal management. Each review shall [312(c) amended by PL 99-272; revised by PL
include a written evaluation with an assessment and 101-5081
detailed findings concerning the extent to which the state (d) The Secretary shall withdraw approval of the
has implemented and enforced the program approved by management program of any coastal state and shall
the Secretary. addressed the coastal management needs withdraw financial assistance available to that State
identified in section 303(2)(A) through (K), and ad- under this title as well as any unexpended portion of
hered to the terms of any grant, loan, or cooperative such assistance, if the Secretary determines that the
agreement funded under this title. coastal state has failed to take the actions referred to in
[312(a) amended by PL 101-508] subsection (c)(2)(A).
(b) In evaluating a coastal state's performance, the [312(d) revised by PL 101-5081
Secretary shall conduct the evaluation in an open and (e) Management program approval and financial
public manner, and provide full opportunity for public assistance may not be withdrawn under subsection (d).
participation, including holding public meetings in the unless the Secretary gives the coastal state notice of
State being evaluated-and providing opportunities for the proposed withdrawal and an opportunity for a
the submission of written and oral comments by the public hearing on the pr9posed action. Upon the with-
public, The Secretary shall provide the public with at drawal of management program approval under this
least 45 days' notice of such public meetings by placing a subsection (d), the Secretary shall provide the coastal
notice in the Federal Register, by publication of timely state with written specifications of the actions that
notices in newspapers of general circulation within the should be taken, or not engaged in, by the state in
State being evaluated, and by communications with order that such withdrawal may be canceled by the
persons and organizations known to be interested in the Secretary.

Envirommm Reportw is

S-882
COASTAL ZONE ACT 71:8013

(f) (Repealed] (2) 5 local governments which have made the most
[312(f) repealed by PL 101-508] progress in developing and implementing the coastal
zone management principles embodied in this title; and
(Editor's note: Section 9(b) of PL 96-464 provides: (3) up to 10 graduate st*udents whose academic study
"(b) Within two hundred and seventy days after promises to contribute materially to development of new
the date of the enactment of this Act, the Secretary of or improved approaches to coastal zone management.
Commerce shall issue such regulations as may be (c) In making selections under subsection (b)(2) the
necessary or appropriate to administer section 312 of Secretary shall solicit nominations from the coastal
the Coastal Zone Management Act of 1972 (as states, and shall consult with experts in local government
amended by subsection (a)* of this section)."] planning and land use.
RECORDS AND AUDIT (d) In making selections under subsection (b)(3) the
@Secretary shall solicit nominations from coastal states
SEC. 313. (a) Each recipient of a grant under this and the National Sea Grant College Program.
title or of financial assistance under Sec. 308 shall (e) Using sums in the Coastal Zone Management
keep such records as the Secretary shall prescribe, Fund established under section 308, the Secretary shall
including. records which fully disclose the amount and establish and execute appropriate awards, to be known
disposition of the funds received under the grant and of as the 'Walter B. Jones Awards', including-
the proceeds of such assistance, the total cost of the pro@ (1) cash awards in an amount not to exceed $5,000
ject or undertaking supplied by other sources, and such each;
other records as will facilitate an effective audit. (2) research grants; and
(b) The Secretary and the Comptroller General of the (3) public ceremonies to acknowledge such awards.
United States, or any of their duly authorized represen- ADVISORY COMMITTEE
tatives, shall -
( I ) after any grant is made under this title or any finan- SEC. 314. [Repealed]
cial assistance is provided under section 308(d); and
(2) until the expiration of 3 years after - [314 repealed by PL 99-272]
(A) completion of the project, program, or other un- NATIONXL ESTUARINE RESEARCH
dertaking for which such grant was made or used, or RESERVE SYSTEM
(13) repayment of the loan or guaranteed indebtedness [315 head amended by PL 101-508]
for which such Financial assistance was provided, SEC. 315. (a) Establighment of the System.-There is
have access for purposes of audit and examination to any
record, book, document. and paper which belongs to or is established the National Estuarine Reserve Research
used or controlled by, any recipient of the grant funds or System (hereinafter referred to in this section as the
any person who entered into any transaction relating to 'Systern') that consists of-
such Financial assistance and which is pertinent for pur- (1) each estuarine sanctuary designated under this
poses ot'determining if the grant funds or the proceeds of section as in effect before the date of the enactment of.
such Financial assistance are being, or were, used in ac- the Coastal Zone Management Reauthorization Act of
cordance with the provisions of.this title. 1985; and -
(2) each estuarine area designated as a national es-
[The second 313 was added by PL 101-5081 tuarine reserve under subsection (b).
WALTER B. JONES EXCELLENCE IN COASTAL Each estuarine sanctuary referred to in paragraph (1) is
ZONE MANAGEMENT AWARDS hereby designated as a national estuarine reserve.
SEC. 313. (a) The Secretary shall, using sums in the (b) Designation of National Estuarine Reserves.-
Coastal Zone Management Fund established under sec After the date of the enactment of the Coastal Zone
- Management Reauthorization Act of 1985, the Secre-
tion 308, implement a program to promote excellence in tary may designate an estuarine area as a national
coastal zone management by identifying and acknowl- estuarine reserve if-
edging outstanding accomplishments in the field. (1) the Governor of the coastal State in which the
(b) The Secretary shall select annually- area is located nominates the area for that designation;
(1) one individual, other than an employee or officer and
of the Federal Government, whose contribution to the (2) the Secretary finds that-
field of coastal zone management has been the most (A) the area is a representative estuarine ecosystem
significant; that is suitable for long-term research and contributes to
the biogeographical and typological balance of the
'Subsection (a) revised Section 312 of this Act. System.

3-8-91 PubliSW by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington. D.C. 20037 19

71:8014 FEDERAL LAWS

(B) the law of the coastal State provides long-term (i) for purposes of acquiring such lands and waters,
protection for reserve resources to ensure a stable envi- and any property interests therein, as are necessary to
ronment for research; ensure the appropriate long-term management of an
(C) designation of the area as a reserve will serve to area as a national estuarine reserve,
enhance public awareness and understanding of estuar- (ii) for purposes of operating or managing a national
ine areas, and provide suitable opportunities for public estuarine reserve and constructing appropriate reserve
education and interpretation; and facilities, or
(D) the coastal State in which the area is located has (iii) for purposes of conducting educational or inter-
complied with the requirements of any regulations issued pretive activities; and
by the Secretary to implement this section. (B) to any coastal State or public or private person for
(c) Estuarine Research Guidelines.-The Secretary purposes of supporting research and monitoring within a
shall develop guidelines for the conduct of research national estuarine reserve that are consistent with the
within the System that shall include- research guidelines developed under subsection (c).
(1) a mechanism for identifying, and establishing (2) Financial assistance provided under paragraph (1)
priorities among, the coastal management issues that shall be subject to such terms and conditions as the
should be addressed through coordinated research within Secretary considers necessary or appropriate to protect
the System; the interests of the United States, 'including requiring
(2) the establishment of common research principles coastal States to execute suitable title documents setting
and objectives to guide the development of research forth the property interest or interests of the United
programs within the System; States in any lands and waters acquired in whole or part
(3) the identification of uniform research methodolo- with such financial assistance. .
gies which will ensure comparability of data, the broad- (3)(A) The amount of the financial assistance pro.
est application of research results, and the maximum use vided under paragraph (1)(A)(i) with respect to the
of the System for research purposes; acquisition of lands and waters, or interests therein, for
(4) the establishment of performance standards upon any one national estuarine reserve may not exceed an
which the effectiveness of the research efforts and the amount equal to 50 percent of the costs of the lands,
value of reserves within the System in addressing the waters, and interests therein or $5,000,000, whichever
coastal management issues identified in subsection (1) amount is less.
may be measured; and [315(c)(3)(A) amended by PL 101-508)
(5) the consideration of additional sources of funds for (B) The amount of the financial assistance provided
estuarine research than the funds authorized under this under paragraph (1)(A)(ii) and (iii) and paragraph
Act, and strategies for encouraging ibe use of such funds (1)(B) may not exceed 70 percent of the costs incurred
within the System, with particular emphasis on mecha- to achieve the purposes described in those paragraphs
nisms established under subsection (d). with respect to a reserve; except that the amount of the
In developing the guidelines under this section, the financial assistance provided under paragraph
Secretary @hall consult with prominent members of the (1)(A)(iii) may be up to 100 percent of any costs for
estuarine research community. activities that benefit the entire System.
(d) Promotion and Coordination of Estuarine Re- [315(c)(3)(B) amended by PL 101-5081
search.-The Secretary shall take such action as is (f) Evaluation of System Performance.-(I) The Sec-
necessary to promote and coordinate the use of the retary shall periodically evaluate the operation and man-
System for research purposes including- agement of each national estuarine reserve, including
(1) requiring that the National Oceanic and Atmo- education and interpretive activities, and the research
spheric Administration, in conducting or supporting es- being conducted within the reserve.
tuarine research give priority consideration to research (2) If evaluation under paragraph (1) reveals that the
that uses the System; and operation and management of the reserve is deficient, or
(2) consulting with ot -her Federal and State agencies that the research being conducted within the reserve is
to promote use of one or more reserves within the not consistent with the research guidelines developed
System by such agencies when conducting estuarine under subsection (c), the Secretary may suspend the
research. eligibility of that reserve for financial assistance tinder
(e) Financial Assistance.-(I) The Secretary may, in subsection (e) until the deficiency or inconsistency is
accordance with such rules and regulations as the Secre- remedied.
tary shall promulgate, make grants- (3) The secretary may withdraw the designation of an
(A) to a coastal State- estuarine area as a national estuarine reserve if evalua-

EnWonmem Reporw 20

S-8112
COASTAL ZONE ACT 71:8015

tion under paragraph (1) reveals that- zone including identification and discussion of Federal,
(A) the basis for any one or more of the findings made regional, state, and local responsibilities and functions
under subsection (b)(2) regarding that area no longer therein, (9) a summary of outstanding problems arising
exists; or in the administration of this title in order of priority;
(B) a substantial portion of the research conducted (10) a description of the economic, environmental, and
within the area, over a period of years, has not been social consequences of energy activity- affecting the
consistent with the research guidelines developed under coastal zone and an evaluation of the effectiveness of
subsection (c). financial assistance under section 308 in dealing with
(g) Rep6rt.-*The Secretary shall include in the report such consequences; (11) a. description and evaluation
required under section 316 information regarding- of applicable interstate and regional planning and
(1) new designations of national estuarine reserves; coordination mechanisms developed by the coastal
(2) any expansion of existing national estuarine states; (12) a-summary and evaluation of the research,
reserves; studies, and training conducted in support of coastal zone
(3) the status of the research program being conduct- management; and (13) such other information as may
ed within the System; and . be appropriate.
(4) a summary of the evaluations made under subsec- [316(a) amended by PL 96-464]
tion (f). (b) The report required by subsection (a) shall contain
such recommendations for additional legislation as the
[315 amended by PL 96-464; revised by PL 99-272] Secretary deems necessary to achieve the objectives of
COASTAL ZONE MANAGEMENT REPORT this title and enhance its effictive operation. '
(c) (1) The Secretary shall conduct a systematic
[316 head revised by PL 96-4641 review of Federal programs, other than this title, that
SEC. 316. (a) The Secretary shall consult with the affect coastal resources for purposes of identifying
Congress on a regular basis concerning the administra- conflicts between the objectives and administration 'of
tion of this title and shall prepare and submit to such programs and the purposes and policies of this
the President for transmittal to the Congress a report title. Not later than I year after the date of the enact-
summarizing the administration of this title during each ment of this subsection, the Secretary shall notify each
period of two consecutive fiscal years. Each report, which Federal agency having appropriate jurisdiction of any
shall. be transmitted to the Congress not later than conflict between its program and the purposes and
April I of the year - following the close of the policies of this title identified as a result of such review.
biennial period to which it pertains, shall include, but (2) The Secretary shall promptly submit a report to
not be restricted to (1) an identification of the state the Congress consisting of the information required
programs approved pursuant to this title during the under paragraph (1) of this subsection. Such report
preceding Federal fiscal year and a description of those shall include recommendations for changes necessary to
programs; (2) a listing of the states participating in resolve existing conflicts among Federal laws and
the provisions of this title and a description of the programs that affect the uses of coastal resources.
status of each state's programs and its accomplishments [316(c) added by PL 96-4641
during the preceding Federal fiscal year; (3) an itemiza-
tion of the allocation of funds to the various coastal
states and a breakdown of the major projects and areas RULES AND REGULATIONS
on which these funds were expended; (4) an identifi- SEC 317. The Secretary shall develop and promulgate,
cation of any state programs which have been reviewed pursuant to section 553 of title 5, United States Code,
and disapproved and a statement of the reasons for such after notice and opportunity for full participation by rele-
action; (5) a summary of evaluation findings prepared vant Federal agencies, state agencies, local governments,
in accordance with subsection (a) of section 312, and a regional organizations, port authorities, and other in-
description of any sanctions imposed under subsections terested parties, both public and private, such rules and
(c) and (d) of this section; (6) a listing of all activities regulations as may be necessary to carry out the
and projects which, pursuant to the provisions of sub- provisions of this title.
section _(c) or subsection (d) of section 307, are not
consistent with an applicable approved state manage- AUTHORIZATION OF APPROPRIATIONS
ment program; (7) a summary of the regulations issued SEC. 318. (a) There are authorized to be appropriated
by the Secretary or in effect during.-the preceding to the Secretary -
Federal Fiscal year; (8) a summary of a coordinated
national strategy and program for the Nation's coastal [318(a) revised by PL 96-464; PL 99-272; PL 101-5081

3-8-91 Publi*W by THE BUREAU OF NATIONAL AFFAIRS, INC., wasnington. D.C. 20037 21

71:8016 FEDERAL LAWS

(1) such sums, not to exceed $750,000 for each of the SEC 15. A DMIYVISTRA TION
fiscal years occurring during the period beginning Octo- (a) [Repealed by PL 95-219]
ber 1, 1990, and ending September 30, 1993, as may be (b) [Superseded by subsection (b) of PL 95-219.
necessary for grants under section 305, to remain avail- See editor's note below.)
able until expended;
(2) such sums, not to exceed $42,000,000 for the fiscal (c) [Repealed by PL-99-2721
year ending September 30, 1991, $48,890,000 for the SEC. 16. SHELLFISH SANITATION REGULA-
fiscal year ending September 30, 1992, $58,870,000 for TIONS.
the fiscal year ending September 30, 1993, S67,930,000 (a) The Secretary of Commerce shall -
for the fiscal year ending September 30, 1994, and (1) undertake a comprehensive review of all aspects of
$90,090,000 for the fiscal year ending September 30, the molluscan shellfish industry, including, but not
1995, as may be necessary for grants under sections 306, limited to, the harvesting, processing, and transportation
306A, and 309, to remain available until expended; of such shellfish, and
(3) such sums, not to exceed $6,000,000 for the fiscal (2) evaluate the impact of Federal law concerning
year ending September 30, 1991, $6,270,000 for the water quality on the molluscan shellfish industry.
fiscal year ending September 30, 1992, $6,552,000 for The Secretary of Commerce shall, not later than April
the fiscal year ending September 30, 1993, $6,847,000 30, 1977, submit a report to the Congress of the findings,
for the fiscal year ending September 30, 1994, and comments,'and recommendations (if any) which result
$7,155,000 for the fiscal year ending September 30, from such review and evaluation.
1995, as may be necessary for grants under section 315, (b) The Secretary of Health, Education, and Welfare
to remain available until expended; and shall not promulgate final regulations concerning the
(4) such sums, not to exceed $10,000,000 for each of national shellfish safety program before June 30, 1977.
the fiscal years occurring during the period beginning At least 60 days prior to the promulgation of*any such
October 1, 1990, and ending September 30, 1995, as regulations, the Secretary of Health, Education, and
may be necessary for activities under section 310 and for Welfare, in consultation with the Secretary of Commerce,'
administrative expenses incident to the administration of shall publish an analysis (1) of the economic impact of
this title; except that expenditures for such administra- such regulations on the domestic shellfish industry, and
tive expenses shall not exceed S5,000,000 in any such (2) the cost of such national shellfish safety program
fiscal year. relative to the benefits that it is expected to achieve.
(b) There are authorized to be appropriated until [Editor's note: In addition to repealing Section 15(a)
October 1, 1986, to the Fund, such sums, not to exceed of Pl. 94-370, subsection (b) of PL 95-219 amended
$800,ObO,000, for the purposes of carrying out the Section 5316 of Title 5, United States Code as follows:
provisions of section 308, other than subsection (b), of "(140) Assistant Administrator for Coastal Zone
which not to exceed $150,000,000 shall be for purposes Management, National Oceanic and Atmospheric Ad-
of subsections (c)(1), (c)(2) and (c)(3) of such ministration.
section. (141) Assistant Administrator- for Fisheries, National
[318(b) amended by PL 96-464] Oceanic and Atmospheric Administration.
(c) Federal funds received from other sources shall (142) Assistant Administrators (3), National Oceanic
not be used to pay a coastal state's share of costs under and Atmospheric Administration.
section 306 or 309. (143) General Counsel, National Oceanic and
(318(c) amended by PL 964641 Atmospheric Administration."]
(d) The amount of any grant, or portion of a grant, [Editor's note. Sections 2 through I I and 13 of
made to a State under any section of this Act which is PL 96-464 amended and have been incorporated into the
not obligated by such State during the fiscal year, or existing language of this Act. Section 12 of PL 96464
during the second fiscal year after the fiscal year, for follows:]
which it was first authorized to be obligated by such
State shall revert to the-Secretary. The Secretary shall SEC. 12. CONGRESSIONAL DISAPPROVAL
add such reverted amount to those funds available for PROCEDURE.
grants under the section for such reverted amount was (a) (1) The Secretary, after promulgating a final
originally made available. rule, shall submit such final rule to the Congress for
[318(d) added by PL 99-6261 review in accordance with this section. Such final rule
[Editor's note: In addition to amending existing sec- shall be delivered to each House of the Congress on
tions of the Coastal Zone Management Act of 1972 and the same date and to each House of the Congress while
adding new sections to the Act, PL 94-370 includes the it is in session. Such final rule shall be referred to the
following sections:] Committee on Commerce, Science, and Transportation

Emwonnont RepOrter 22

S-882
COASTAL ZONE ACT 71:8017

of Ile Senate and 10 Ile Committee on Merchant (5) Notwithstanding any other provision of this
Marine and Fisheries of the House, respectively. subsection, if a House has approved a concurrent
(2) Any such final rule shall become effective in resolution with respect to any final rule of the
accordance with its terms unless, before the end of the Secretary, then it shall not be in order to consider in
period of sixty calendar days of continuous session, such House any other concurrent resolution with respect
after the date such final rule is submitted to the Congress, to the same final rule.
both Houses of the Congress adopt a concurrent resolu- (c) (1) If a Final *rule of the Secretary is disapproved
tion disapproving such final rule. by the Congress under subsection (a)(2), then the
(b) (1) The provisions of this subsection are Secretary may promulgate a Final rule which relates
enacted by the Congress- to the same acts or practices as the final rule disapproved
(A) as an exercise in the rulemaking power of the by the Congress in accordance with this subsection.
House of Representatives and as such they are deemed Such final rule-
a part of the Rules of the House of Representatives (A) shall be based upon-
but applicable only with respect to the procedure to be (i) the rulemaking record of the final rule dis-
followed in the House of Representatives in the case of approved by the Congress, or
concurrent resolutions which are subject to this section, (ii) such rulemaking record and the record estab-
and such provisions supersede other rules only to the lished in supplemental rulemaking proceedings con-
extent that they are inconsistent with such other rule*s, ducted by the Secretary in accordance with section 553 of
and title 5, United States Code, in any case in which the
(B) with full recognition of the constitutional right Secretary determines that it is necessary to supplement
of either House to change the rules (so far as relating the existing rulemaking record; and
to the procedure of that House) at any time in the same (B) may contain such changes as the Secretary
manner and to the same extent as in the case of any considers necessary or appropriate.-
other rule of that House. (2) The. Secretary after promulgating a final -rule
(2) Any concurrent resolution disapproving a final under this subsection, shall submit the final rule to the
rule of the Secretary shall, upon introduction or receipt Congress in accordance with subsection (a)(1).
from the other House of the Congress, be referred (d) Congressional inaction on, or rejection of a
immediately by the presiding officer of such House to concurrent 'resolution of disapproval under this section
the Committee on Commerce, Science, and Transporta- shall not be construed as an expression of approval
tion of the Senate or to the Committee on Merchant of the final rule involved, and shall not be const rued
Marine and Fisheries of the House, as the case may be. to create any presumption of validity with respect to
(3) (A) When a committee has reported a con- such Final rule.
current resolution, it shall be at any time thereafter in (e) (1) Any interested party may institute such
order (even though a previous motion to the same effect actions in the appropriate district court of the United
has been disagreed to) to move to proceed to the con- States, including actions for declaratory judgment, as
sideration of the concurrent resolution. The motion may be appropriate to construe the constitutionality
shall be highly privileged in the House Of Representa- of any provision of this section. The district court
tives, and shall not be debatable. An amendment to immediately shall certify all questions of the consti-
such motion shall not be in order, and it shall not be tutionality of this section to the United States court
in order to move to reconsider the vote by which the of appeals :for the circuit involved, which shall hear
motion was agreed to or disagreed to. the matter sitting en banc.
(13) Debate in the House of Representatives on the (2) Notwithstanding any other provision of law, any
concurrent resolution shall be limited to not more than decision on a matter certified under paragraph (1)
ten hours which shall be divided equally between those shall be reviewable by appeal directly to the Supreme
favoring and those opposing such concurrent resolution Court of the United States. Such appeal shall be brought
and a motion further to limit debate shall not be not later than twenty days after the decision of the
debatable. In the House of Representatives, an amend- court of appeals.
ment to, or motion to recommit, the concurrent (5) [Repealed]
resolution shall not be in order, and it shall not be.
in order to move to reconsider the vote by which such [I 2(e)(3) repealed by PL 98-620]
concurrent resolution was agreed to or disagreed to. (f) (1) For purposes of this section-
(4) Appeals from the decision of the Chair relating (A) continuity of session is broken only by an ad-
to the application of the rules of the House of Repre- journment sine die; and
sentatives to the procedure relating to a concurrent (8) days on which the House of Representatives is
resolution shall be decided without debate. not in session because of an adjournment of more

3-8-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037 23

71:8018 FEDERAL LAWS

than rive days to a day certain are excluded in 1329, and 1330) and with State plans developed pursu-
the computation of the periods specified in subsection ant to the Coastal Zone Management Act of 1972, as
(a)(2) and subsection (b). amended by this Act. The program shall serve as an
(2) If an adjournment sine die of the Congress update and expansion of the State nonpoint source man-
occurs after the Secretary has submitted a final rule agement program developed under section 319 of the
under subsection (aXI), but such adjournment occurs- Federal Water Pollution Control Act, as the program
(A) before the end of the period specified in under that section relates to land and water uses affect-
subsection (a)(2); and ing coastal waters.
(B) before any action necessary to disapprove the (b) Program Contents. - Each State program under
final rule is completed under subsection (a)(2); this section shall provide for the implementation, at a
then the Secretary shall be required to resubmit the minimum, of management measures in conformity with
final rule involved at the beginning of the next regular the guidance published under subsection (g), to protect
session of the Congress. The period specified in sub- coastal waters generally and shall also contain the
section (a)(2) shall begin on the date of such resub- following:
mission. (1) Identifying land uses. - The identification of, and
(g) For purposes of this section: a continuing process for identifying, land uses which,
(1) The term. "Secretary" means the Secretary of individually or cumulatively, may cause or contribute
Commerce. significantly to a degradation of -
(2) The term "concurrent resolution" means a con- (A) those coastal waters where there is a failure to
current resolution the matter after the resolving clause attain or maintain applicable water quality standards or
of which is as follows: "That the Congress disapproves protect designated uses, as determined by the State
the final rule promulgated by the Secretary of Commerce pursuant to its water quality planning processes; or
dealing with the matter of . . which final rule (B) those coastal waters that are threatened by rea-
was submitted to the Congress on (The sonably foreseeable increases in pollution loadings from
blank spaces shall be filled appropriately.) new or expanding sources.
(3) The term "64 rule". means any.rule promulgated (2) Identifying critical coastal areas. - The identifi-
by the Secretary pursuant to the Coastal Zone Manage- cation of, and a continuing process for identifying, criti-
ment Act (16 U.S.C. 1450 et. seq.). cal coastal areas adjacent to coastal waters referred to in
(h) The provisions of this section shall take effect paragraph (1)(A) and (B), within which any new land
on the date of the enactment of this Act and shall uses or substantial expansion of existing land uses shall
cease to have any force or effect after September 30, be subject to management measures in addition to those
1985. provided for in subsection (g).
[Editor's note: Sec. 6217 of P.L. 101-508 did not (3) Management measures. - The implementation
amend the Coastal Zone Management Act of 1972, but and continuing revision from time to time of additional
provides the following: management measures applicable to the land uses and
PROTECTING COASTAL WATERS areas identified pursuant to paragraphs (1) and (2) that
are necessary to achieve and maintain applicable water
SEC. 6217. (a) In General. - (1) Program develop- quality standards under section 303 of the Federal Wa-
ment. - Not later than 30 months after the date of the ter Pollution Control Act (33 U.S.C. 1313) and protect
publication of final guidance under subsection (g), each designated uses.
State for which a management program has been ap- (4) Technical assistance. - The provision of technical
proved pursuant to section 306 of the Coastal Zone and other assistance to local governments and the public
Management Act of 1972 shall prepare and submit to for implementing the measures referred to in paragraph
the Secretary and the Administrator a Coastal Nonpoint (3), which may include assistance in developing ordi-
Pollution Control Program for approval pursuant to this nanccs and regulations, technical guidance, and model-
section. The purpose of the program shall be to develop ing to predict and assess the effectiveness of such mea-
and implement management measures for nonpoint sures, training, financial incentives, demonstration
source pollution to restore and protect coastal waters, projects, and other innovations to protect coastal water
working in close conjunction with other State and local quality and designated uses.
authorities.
(2) Program coordination. - A State program under (5) Public participation. - Opportunities for public
this section shall be coordinated closely with State and participation in all aspects of the program, including the
local water quality plans and programs developed pursu- use of public notices and opportunities for comment,
ant to sections 208, 303, 319, and 320 of the Federal nomination procedures, public hearings, technical and
Water Pollution Control Act (33 U.S.C. 1288, 1313, financial assistance, public education, and other means.

Environmont ReporW 24

S-882
COASTAL ZONE ACT 71:8019

(6) Administrative coordination.-The establishment The Secretary shall make amounts withheld under this
of mechanisms to improve coordination among State paragraph available to coastal States having programs
agencies and between State and local officials responsi- approved under this section.
ble for land use programs and permitting, water quality (4) Withholding water pollution control assist-
permitting and enforcement, habitat protection, and ance.-If the Administrator finds that a coastal State
public health and safety, through the use of joint project has failed to submit an approvable program as required
review, memoranda of agreement, or other mechanisms. by this section; tfie Administrator shall withhold from
(7) State coastal zone boundary modification.-A grants available to the State under section 319 of the
proposal to modify the boundaries of the State coastal Federal Water Pollution Control Act, for each fiscal
zone as the coastal management agency of the State year until such a program is submitted, an amount equal
determines is necessary to implement the recommenda- to a percentage of the grants awarded to the State for
tions made pursuant to subsection (e). If the coastal the preceding fiscal year under that section, as follows:
management agency does not have the authority to - (A) For fiscal year 1996, 10 percent of the amouftt
modify such boundaries, the program shall include rec- awarded for fiscal year 1995.
ommendations for such modifications to the appropriate (B) For fiscal year 1997, 15 percent of the amount
State authority. awarded for fiscal year 1996.
(c) Program Submission, Approval, and Implementa- (C) For fiscal year 1998, 20 percent of the amount
tion.-(l) Review and approval.-Within 6 months awarded for fiscal year 1997.
after the date of submission by a State of a program (D) For fiscal year 1999 and each fiscal year there-
pursuant to this section, the Secretary and the Adminis- after, 30 percent of the amount awarded for fiscal year
trator shall jointly review the program. The program 1998 or other preceding fiscal year.
shall be approved if- The Administrator shall make amounts withheld under
(A) the Secretary determines that the portions of the this paragraph available to States having programs ap-
program under the authority of the Secretary meet the proved pursuant to this subsection.
requirements of this section and the Administrator con- (d) Technical Assistance.-The Secretary and. the
curs with the determination; and Administrator shall-provide technical assistance to coast-
(B) the Administrator determines that the portions of al States and local governments in developing and imple-
the program under the authority of the Administrator menting programs under this section. Such assistance
meet the requirements of this section and the Secretary shall include-
concurs with that determination. (1) methods for assessing water quality impacts asso-
(2) Implementation of approved program.-If the ciated with coastal land uses;
program of a State is approved in accordance with (2) methods for assessing the cumulative water qual-
paragraph (1), the State shall implement the program, ity effects of coastal development;
including the management measures included in the (3) maintaining and from time to time revising an
program pursuant to subsection (b), through- inventory of model ordinances, and providing other as-
(A) changes to the State plan for control of nonpoint sistance to coastal States and local governments in iden-
source pollution approved under section 319 of the Fed- tifying, developing, and implementing pollution control
eral Water Pollution Control Act; and measures; and
(B) changes to the State coastal zone management (4) methods to predict and assess the effects of coastal
program developed under section 306 of the Coastal land use management measures on coastal water quality
Zone Management Act of 1972, as amended by this Act. and designated uses.
(3) Withholding coastal management assistance.- (e) Inland Coastal Zone Boundaries.-(I) Review.-
If the Secretary finds that a coastal State has-failed to The Secretary, in consultation with the Administrator of
submit an approvable program as required by this sec- the Environmental Protection Agency, shall, within 18
tion, the Secretary shall withhold for each fiscal year months after the effective date of this title, review the
until such a program is submitted a portion of grants inland coastal zone boundary of each coastal State
otherwise available to the State for the fiscal year under program which has been approved or is proposed for
section 306 of the Coastal Zone Management Act of approval under section 306 of the Coastal Zone Manage-
1972, as follows: ment Act of 1972, and evaluate whether the State's
(A) 10 percent for fiscal year 1996. coastal zone boundary extends inland to the extent
(B) 15 percent for fiscal year 1997. necessary to control the land and water uses that have a
(C) 20 percent for fiscal year 1998. significant impact on coastal waters of the State.
(D) 30 percent for fiscal year 1999 and each fiscal (2) Recommendation.-If the Secretary, in consulta-
year thereafter. tion with the Administrator, finds that modifications to

3-8-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037 25

71:8020 FEDERAL LAWS
the inland boundaries of a State's coastal zone are measures in reducing pollution loads and. improving
necessary for that State to more effectively manage land water quality.
and water uses to protect coastal waters, the Secretary, (3) Publication.-The Administrator, in consultation
in consultation with the Administrator, shall recommend with the Secretary shall publish-
appropriate modifications in writing to the affected (A) proposed guidance pursuant to this subsection not
State. later than 6 months after the date of the enactment of
(f) Financial Assistance.-(I) In general.-Upon re, this Act; and
quest of a State having a program approved under (B) final guidance pursuant to this subsection -not
section 306 of the Coastal Zone Management Act of later than 18 months after such effective date.
1972, the Secretary, in consultation with the Adminis- (4) Notice and comment.-The Administrator shall
trator, may provide grants to the State for use for provide to coastal States and other interested persons an
developing a State program under this section. opportunity to provide written comments on proposed
(2) Amount.-The total amount of grants to a State guidance under this subsection.
under this subsection shall not exceed 50 percent of the (5) Management measures.-For purposes of this sub-
total cost to the State of developing a program under this section, the term "management measures" means eco-
section. nomically achievable measures for the control of the
(3) State share.-The State share of the cost of an addition of pollutants from existing and new categories
activity carried out with a grant under this subsection and classes of nonpoint sources of pollution, which re-
shall be paid from amounts from non-Federal sources. flect the greatest degree of pollutant reduction achiev-
(4) Allocation.-Amounts available for grants under able through the application of the best available non-
this subsection shall be allocated among States in ac- point pollution control practices, technologies, processes,
cordance with regulations issued pursuant to section siting criteria, operating methods, or other alternatives.
306(c) of the Coastal Zone Management Act of 1972, (h) Authorizations of Appropriations.-
except that the Secretary may use not more than 25 (1) Administrator.-There is authorized to be appro--
percent of amounts available for such grants to assist priated to the Administrator for use for carrying out this
States which the Secretary, in consultation with the section not more than S1,000,000 for each of fiscal years
Administrator, determines are making exemplary pro- 1992, 1993; and 1994.
gress in preparing a State program under this section or (2) Secretary.-(A) Of amounts appropriated to the
have extreme needs with respect to coastal water quality. Secretary for a fiscal year under section 3 18 (a) (4) of the
(g) Guidance for Coastal Nonpoint Source Pollution Coastal Zone Management Act of 1972, as amended by
Control.-(l) In General.-The Administrator, in. con- this Act, not more than S1,000,000 shall be available for
sultation with the Secretary and the Director of the use by the Secretary for carrying out this section for that
United States Fish and Wildlife Service and other Fed- fiscal Year, other than for providing in the form of grants
eral agencies, shall publish (and periodically revise under subsection (f).
thereafter) guidance for specifying management mea- (B) There is authorized to be appropriated to the
sures for sources of nonpoint pollution in coastal waters. Secretary for use for providing in the form of grants
(2) Content.-Guidance under this subsection shall under subsection (f) not more than-
include, at a minimum- (i) S6,000,000 for fiscal year 1992;
(A) a description of a range of methods, measures, or (ii) $12,000,000 for fiscal year 1993;
practices, including structural and nonstructural controls (iii) S12,000,000 for fiscal year 1994; and
and operation and maintenance procedures, that consti- (iv),S12,000,000 for fiscal year 1995.
tute each measure; (i) Definitions.-In this section-
(B) a description of the categories and subcategories (t) the term "Administrator" means the Administra-
of activities and locations for which each measure may tor of the Environmental Protection Agency;
be suitable, (2) the term "coastal State" has the meaning given
(C) an identification -of the individual pollutants or the term "coastal state" under section 304 of the Coastal
categories or classes of pollutants that may be controlled Zone Management Act of 1972 (16 U.S.C. 1453);
by the measures and the water quality effects of the (3) each of the terms "coastal waters", and "coastal
measures, zone" has the meaning that term has in the Coastal
(D) quantitative estimates of the pollution reduction Management Act of 1972;
effects and costs of the measures; (4) the term "coastal management agency" means a
(E) a description of the factors which should be taken State agency designated pursuant to section 306(d)(6) of
into account in adapting the measures to specific sites or the Coastal Zone Management Act of 1972,
loc@tions: and (5) the term "land use" includes a use of waters
adjacent to coastal waters. and
(F) any necessary monitoring techniques to accompa- (6) the term "Secretary" means the Secretary of
ny the measures to assess over time the success of the Commerce.] . 0

Environment Reponer 26

184
1990 Amendments to the
Coastal Zone Management Act,
a summary
by the
Coastal Zone Information Center

1990 AMENDMENTS

TO THE

COASTAL ZONE MANAGEMENT ACT:

A SUMMARY

T @0- @Co, Coastal Zone Informan'ton Center
Of fice of Ocean and Coastal Resource management
Nat,onai Oceanic ana Atmospheric Aaministrati
on
1825 Connecticut Ave.. N.W.
Washington. 0 C. 20235
440
-606
(202@ -4115

COASTAL ZONE MANAGEMENT ACT REAUTHORIZATION

On November 5, 1990, the President signed the Coastal Zone Management Act
Amendments of 1990 (the Act), which reauthorized for five years the coastal zone
management and estuarine research reserve programs. Approved by Congress just
before it recessed for the November elections, the Act is designed to modernize and
strengthen the Coastal Zone Management Act (CZMA) to address the new and
emerging coastal issues of the 1990s. The Act makes a number of changes to the
CZMA, including the addition of Outer Continental Shelf oil and gas lease sales to the
Federal consistency provisions, the establishment of state coastal water quality protection
programs, and thecreation of a new enhancement grants program.

The final version of the five-year CZMA reauthorization, which was tied
strategically to the Omnibus Budget Reconciliation Act of 1990, was negotiated by
conferees from the Senate Commerce, Science and Transportation Committee and the
House Merchant Marine and Fisheries Committee, as part of the House-Senate
conference on the budget deficit reconciliation package. The conferees worked with the
Senate Environment and Public Works Committee and the House Public Works and
Transportation Committee to reach a compromise regarding the coastal water quality
provisions. The final language reflects a compromise between the House-passed CZMA
reauthorization bill, H.R. 5665, and a similar Senate measure (S. 2782).

Federal Consistency

The final bill amends the Federal consistency provisions (Section 307) to overturn
the Supreme Court's 1984 decision in Secreta1y of the Interior v. California and make
clear that Outer Continental Shelf (0 ) oil and gas lease sales are subject to the
requirements of Section 307(c)(1). The new language clarifies that all Federal agency
activities, including OCS oil and gas lease sales and the designation of ocean dumping
sites, whether in or outside of the coastal zone, are subject to the consistency
requirements of Section 307(c)(1) of the CZMA if they affect natural resources, land
uses or water uses in the coastal zone. This is in keeping with NOAA's current
regulations, which say that the geographic scope of Federal consistency review is based
on the effect of a Federal activity on coastal zone uses and resources, not on the location
of the activity.

In the conference report on the bill, the House and Senate conferees provided a
clarification regarding a Federal agency's determination of whether a specific Federal
agency activity may affect any natural resource, land use, or water use in the coastal
zone. The conferees stated that this determination "is to include effects in the coastal

including cumulative and secondary effects. Therefore, the term 'affecting' is to be
construed broadly, including direct effects which are caused by the activity and occur at
the same-time and place, and indirect effects which may be caused by the activity and are
later in time or farther removed in distance, but are still reasonably foreseeable."

A new provision is added to the CZMA, Section 307(c)(2), which authorizes the
President to exempt a specific Federal project if the President determines that it is in the
paramount interest of the U.S. This exemption can only arise after a Federal court has
determined that the Federal agency activity is inconsistent with a state CZM program.
The provision is based on similar exemption provisions in other environmental statutes,
including the Clean Water Act and the Clean Air Act. The Act clarifies that the
exemption can not be applicable to a class of Federal agency activities, only to a
specific activity.

Coastal NonRgint Pollution Control

The Act established a new, stand alone provision which requires states and
territories with federally-approved CZM programs to develop a Coastal Nonpoint
Pollution Control Program (CNPCP). The program, which must be submitted to NOAA
and the Environmental Protection Agency for approval, will be implemented through
changes to both the state coastal management and nonpoint source management
programs (Section 319 of the Clean Water Act). The purpose of the program is to
develop and implement management measures for nonpoint source pollution control to
restore and protect coastal waters, working in close conjunction with other state and local
authorities. The statute defines "management measures" as "economically achievable
measures for the control of the addition of poflutants from existing and new categories
and classes of nonpoint sources of pollution, which reflect the greatest degree of
pollutant reduction achievable through the application of the best available nonpoint
pollution control practices, technologies, processes, siting criteria, operating methods, or
other alternatives."

Under this new section, EPA must publish guidance, in consultation with NOAA
and other Federal agencies, specifying management measures for sources of nonpoint
pollution in coastal waters. The guidance must include: (1) a description of a range of
methods, measures, or practices, including structural and nonstructural controls and
operation and maintenance procedures, that constitute each measure; (2) a description of
the categories and subcategories of activities and locations for which each measure may
be suitable; (3) an identification of the individual pollutants or categories or classes of
pollutants that may be controlled by the measures and the water quality effects of the
measures; (4) quantitative estimates of the pollution reduction effects of the measures;
(5) a description of the factors which should be taken into account in adapting the
measures to specific sites or locations; and (6) any necessary monitoring techniques to
accompany the measures to assess over time the success of the measures in reducing
pollution loads and improving water quality. Draft guidance must be published six

-2,

months after enactment, with final guidance due within 18 months. Coastal states and
other interested parties must have an opportunity to provide written comments on the
draft guidance.

States have 30 months from issuance of final guidance. to comply with this
requirement. States which fail to submit appro-,able programs could lose up to 30
percent of their funding under Section 306 of the CZMA and Section 319 of the Clean
Water Act. In addition to providing management measures, the programs must contain,
among other things: identification of land uses which individually or cumulatively may
cause or contribute significantly to the degradation of certain coastal waters;
identification of "critical coastal areas" within which any new land uses or substantial
expansion of existing land uses will be subject to the management measures;
implementation of additional management measures applicable to the land uses and
identified coastal areas that are necessary to achieve and maintain applicable water
quality standards under Section 303 of the Clean Water Act; provision of technical
assistance to local governments and the public for implementing the management
measures; opportunities for public participation in all aspects of the program; and
establishment of mechanisms to improve coordination among state agencies and between
state and local officials.

NOAA and EPA are required to provide technical assistance to coastal states and
local governments in developing and implementing programs under this section. The
assistance must include: methods for assessing water quality impacts associated with
coastal land uses; methods for assessing the cumulative water quality effects of coastal
development; maintaining an inventory of model ordinances, and providing other
assistance to coastal states and local governments in identifying, developing and '
implementing pollution control measures; and methods to predict and assess the effects
of coastal land use management measures on coastal water quality and designated uses.

The Act also requires the Secretary of Commerce, in consultation with EPA, to
review the inland coastal zone boundary of each coastal state with a federally-approved
program and evaluate whether the state's coastal zone boundary extends inland to the
extent necessary to control the land and water uses that have a significant impact on
coastal waters of the state. This review must be completed within 18 months of
enactment. If the Secretary finds that modifications are necessary for a state to more
effectively manage land and water uses to protect coastal waters, he must recommend
appropriate modifications in writing to the state.

CZM Program Enhancements

CZMA's Section 309 was revised to establish a new enhancements grant program
to encourage states to continually improve their federally-approved CZM programs in
one or more of eight identified areas. The "Coastal Zone Enhancement Objectives"

include: (1) coastal wetlands management and protection; (2) natural hazards
management (including the potential for sea and Great Lakes level rise); (3) public
access improvements; (4) reduction of marine debris; (5) assessment of cumulative and
secondary impacts of coastal development; (6) special area management planning; (7)
ocean resource planning; and (8) siting of coastal energy and government facilities.

Beginning in Fiscal Year 1991, the Secretary is authorized to make grants (not less
than 10 percent and not more than 20 percent of the amounts appropriated under
Sections 306 and 306A of the CZMA) to coastal states to provide funding for
development and submission for Federal approval of program changes that support
attainment of one or more of the coastal zone enhancement objectives. As part of this
effort, the Secretary is required to evaluate and rank state proposals for funding, and
make funding awards based on those proposals. The Secretary has the authority to
suspend a state's eligibility for funding under Section 309 for at least one year, if the
Secretary finds that the state is not undertaking the actions committed to under the terms
of the 309 grant.

NOAA must issue regulations relating to the new Section 309 within 12 months of
enactment (by November 5, 1991). The regulations must establish: "(1) specific and
detailed criteria that must be addressed by a coastal state (including the state's priority
needs for improvement as identified by the Secretary after careful consultation with the
state) as part of the state's development and implementation of coastal zone
enhancement objectives; (2) administrative or procedural rules or requirements as
necessary to facilitate the development and implementation of such objectives by coastal
states; and (3) other funding award criteria as are necessary or appropriate to ensure
that evaluations of proposals, and decisions to award funding, under this section are
based on objective standards applied fairly and equitably to those proposals."

Coastal Zone Manarement Fund

The Act repeals the Coastal Energy Impact Program (CEIP), but requires that
repayments of the remaining $87-5 million in program loans still outstanding be deposited
into a new "Coastal Zone Management Fund" as they are repaid. Section 308(b)(2)
authorizes the Secretary to expend amounts in the Fund for administration of the CZM
program and for specified discretionary activities: regional and interstate projects
(formerly Section 309); demonstration projects; emergency assistance; excellence awards
pursuant to Section 313; program development grants pursuant to Section 305; and to
assist states in applying the public trust doctrine in the implementation of their CZM
programs. In recent years, annual loan repayments have ranged from a low of $4 million
to a high of $15 million, with an annual average of some $6-8 million. The House and
Senate conferees anticipate an annual expenditure of between $6 million and $8 million
through the CZM Fund, subject to appropriation.

,4,

Coastal Zone Management Review

The Act provides new authority under Section 312 to impose "interim sanctions"
on a state program for up to three years if the state is failing to adhere to its federally-
approved program. The Secretary is authorized to suspend 'financial assistance awards, if
he/,she determines that the coastal state is failing to adhere to (A) the fe de rally-ap proved
coastal management program or a state plan developed to manage a National Estuarine
Reserve established under Section 315, or a portion of the program or plan approved by
the Secretary, or (B) the terms of any grant or cooperative agreement. Before
suspending financial assistance, the Secretary must provide the Governor of the coastal
state with written specifications and a schedule for the actions that should be taken by
the State in order that the suspension be withdrawn, and written specifications stating
how those funds from the suspended financial assistance will be expended by the coastal
state to take actions identified by the Secretary. The suspension of financial assistance
may not last for less than six months or more than 36 months.

The House and Senate conferees also revised the procedures for carrying out
evaluations of State CZM programs and National Estuarine Research Reserves. In
addition to mandating "full" public participation in the evaluation of state programs, the
changes require: a 45-day notice for public meetings; written response to all written
comments on the evaluation; and completion of the final evaluation report within 120
days after the last public meeting held in the state.

Other provisions of the 1990 CZMA Amendments include:

a new section 310 which requires the Secretary to provide technical assistance and
manage me nt-oriented research to support development and implementation of
state CZM programs, and appropriate to the furtherance of international
cooperative efforts and technical assistance in coastal zone management;

minor modifications to the National Estuarine Research Reserve System including
an increase in the maximum amount of Federal financial assistance for land or
water acquisition at Reserve sites and an increase in the Federal share of costs for
managing a reserve and constructing facilities;

authorization for NOAA to make annual achievement awards to individuals and
local governments who have been recognized for outstanding accomplishments in
the field of coastal zone management;

a doubling of the authorization levels for the CZM program, from the fiscal year
1990 level of $51.6 million - of which $41 million was appropriated - to $120.1
million for Fiscal Year 1995; and

-5-

clarification that the seaward coastal zone boundary extends only to the limit of
state ownership and title (in most cases, three nautical miles), an issue that was
clouded when President Ronald Reagan extended the U.S. territorial sea to 12
miles in 1988.

The implementation of these major, new CZM1A provisions will be a challenge,
and will require much work and close cooperation at the Federal, state and local level
and with the public and private sectors. OCRM has already begun to organize its
activities in order to meet the tight timelines for guidance and regulations as required by
the 1990 Amendments. There is a 12-month statutory deadline for the enhancement
grant regulations. In addition, there are revisions to Section 312 that are effective
immediately and conflict with NOAA's current regulations. In order to meet these
immediate requirements, OCRM anticipates conducting a phased rulemaking with the
first phase limited to the enhancement grants program and program evaluations. We
expect to complete issue papers on these subjects in late February or early March. The
issue papers will be' widely distributed. OCRM will look forward to your comments and
your future involvement in the office's implementation activities.

For additional information, contact the Coastal Zone Information Center, Office of
Ocean and Coastal Resource Management, NOAA, 1825 Connecticut Ave., N.W.
Washington, D.C. 20235; (@b2) 606-4115

-6-

19.
Marine Protection, Research, and
Sanctuaries Act PRS
of 1972,
as amended
(without 1992 amendments)

S-888
71:6001

MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972
(Enacted by P.L. 92-532, October 23, 1972, 86 Stat. 1052, 33 U.S.C. 1401 et seq.,
and 16 U.S.C. 1431 et seq.; Amended by P.L. 93-254, March 22,1974; P.L. 93-472, Oc-
tober 26, 1974; P.L. 94-62, July 25, 1975; P.L. 94-326, June 30, 1976; P.L. 95-153, No-
vember 4, 1977; P.L. 96-332, August 29, 1980; P.L. 96-38 1, October 6, 1980; P.L. 96-
470, October 19, 1980; P.L. 96-572, December 22, 1980; P.L. 97-16, June 23, 1981;
P.L. 97-109, December 26, 198 1; PL 97-375, December 21, 1982; PL 97-424, January
6, 1983; PL 98-498, October 19, 1984; PL 99-272, April 7, 1986; PL 99-499, October
17, 1986; PL 99-662, November 17, 1986; PL 100-4, February 4. 1987; PL 100-17,
April 2, 1987; PL 100-536, October 28, 1988; PL 100-627, November 7, 1988; PL 100-
688, November 18, 1988; PL 10 1-593, November 16, 1996)

This Act may be cited as the "Marine Protection, (b) "Ocean waters" means those waters of the open
Research, and Sanctuaries Act of 1972." seas lying seaward of the base line from which the
territorial sea is measured, as provided for in the Conven-
tion on the Territorial Sea and the Contiguous Zone (15
Finding, Policy, and Purpose UST 1606; TIAS 5639).
Sec. 2. (a) Unregulated dumping of material into ocean (c) "Material" means matter of any kind or descrip-
waters endangers human health, welfare, and amenities, tion, including, but not limited to, dredged material, solid
and he marine environment, ecological systems, and waste, incinerator residue, garbage, sewage, sewage sludge,
economic potentialities. munitions, radiological, chemical, and biological wartare
agents, radioactive materials, chemicals, biological and
(b) The Congress declares that it is the policy of the laboratory waste, wreck or discarded equipment, rock,
United States to regulate the dumping of all types of sand, excavation debris, and industrial, municipal, agricul-
materials into ocean waters and to prevent or strictly tural, and other waste; but such term does not mean
limit the dumping into ocean waters of any material sewage from vessels within the meaning of section 312 of
which would adversely affect human health, -welfare, or the Federal Water Pollution Control Act, as amended (33
amenities, or the marine environment, ecological systems, U.S.C. 1322). Oil within the meaning of section 311 of
or economic potentialities. the Federal Water Pollution Control Act, as amended (3@
(c) It is the purpose of this Act to regulate (1) the U.S.C. 1321), shall be included only to the extent that
transportation by any person of material from the United such oil is taken on board a vessel or aircraft for the
States and, in the case of United States vessels, aircraft, purpose of dumping.
or agencies, the transportation of material from a location (d) "United States" includes the several States, the
outside the United States, when in either case the trans- District of Columbia, the Commonwealth of Puerto Rico,
portation is for the purpose of dumping the material into the Canal Zone, the territories and possessions of the
ocean waters, and (2) the dumping of material trans- United States, and the Trust Territory of the Pacific
ported by any person from a location outside the United Islands.
States if the dumping occurs in the territorial sea or the (e) "Person" means any private person or entity, or
contiguous zone of the United States. any officer, employee, agent, department, agency, or
See. 3. For the purposes of this Act the term- instrumentality of the Federal Government, of any State
(a) "Administrator" means the Administrator of the or local unit of government, or of any foreign govern-
Environmental Protection Agency. ment.

5-31-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037 5

71:6002 FEDERAL LAWS

(f) "Dumping" means a disposition of material: Pro- (1) "Transport" or "transportation" refers to the car-
vided, That it does not mean a disposition of any effluent riage and related handling of any material by a vessel, or
from any outfall structure to the extent that such disposi- by any other vehicle, including aircraft.
tion is regulated under the provisions of the Federal [Former 3(k) and (1) redesignated as (1) and (m) by PL
Water Pollution Control Act, as amended (33 U.S.C. 100-6881
1251-1376) under the provisions of section 13 of the (m) "Convention" means the Convention on the Pre-
Rivers and Harbors Act of 1899, as amended (33 U.S.C. vention of Marine Pollution by Dumping of Wastes and
407), or under the provisions of the Atomic Energy Act Other Matter.
of 1954, as amended (42 U.S.C. 2011, et seq.), nor does TITLE I - OCEAN DUMPING
it mean a routine discharge of effluent incidental to the -
propulsion of, or operation of motor-driven equipment Prohibited Acts
on, vessels: Provided further, That it does not mean the Sec. 101. (a) Except as may be authorized by a permit
construction of any fixed structure or artificial island nor issued pursuant to section 102 or section 103 of this title,
the intentional placement of any device in ocean waters and subject to regulations issued pursuant to section 108
or on or in the submerged land beneath such waters, for a of this title,
purpose other than disposal, when such construction or . (1) no person shall transport from the United States,
such placement is otherwise regulated by Federal or State and
law or occurs pursuant to an authorized Federal or State (2) in the case of a vessel or aircraft registered in the
program: And provided further, That it does not include United States or flying the United States flag or in the
the deposit of oyster shells or other materials when such case of a United States department, agency, or instru-
deposit is made for the purpose of developing, maintain- mentality, no person shall transport from any location
ing, or harvesting fisheries resources and is otherwise any material for the purpose of dumping it into ocean
regulated by Federal or State law or occurs pursuant to waters.
an authorized Federal or State program. (b) Except as.may be authorized by a permit issued
(g) "District court of the United States" includes the pursuant to section 102 of this title, and subject to
District Court of Guam, the District Court of the Virgin regulations issued pursuant to section 108 of this title, no
Islands, the District Court of Puerto Rico, the District person shall dump any material transported from a loca-
Court of the Canal Zone, and in the case of American tion outside the United States (1) into the territorial sea
Samoa and the Trust Territory of the Pacific Islands, the of the United States, or (2) into a zone contiguous to the
District Court of the United States for the District of territorial sea of the United States, extending to a line
Hawaii, which court shall have jurisdiction over actions twelve nautical miles seaward from the base line from
arising therein. which the breadth of the territorial sea is measured, to
(h) "Secretary" means the Secretary of the Army. the extent that it may affect the territorial sea or the
(i) "Dredged material" means any material excavated territory of the United States.
or dredged from the navigable waters of the United [Editor's note: Section 4 of P.L. 95-153 provided for
States. a ban on dumping of sewage sludge to take effect at the
0) "High-level radioactive waste" means the aqueous end of 1981. The following is the relevant section:
waste resulting from the operation of the first cycle
solvent extraction system, or equivalent, and the con. Sec. 4. (a) and (b) [Repealed]
centrated waste from subsequent extraction cycles, or [Former 4 (a) and (b) of PL 95-153 as amended by PL
equivalent, in a facility for reprocessing irradiated reactor 96-572, repealed by PL 100-688]
fuels, or irradiated fuel from nuclear power reactors. (a) Notwithstanding section 104B of the Marine Pro-
(k) "Medical waste" means isolation wastes; infec- tection, Research, and Sanctuaries Act of 1972, after
tious agents; human blood and blood products; pathologi- December 31, 1981, the Administrator may issue emer-
cal wastes; sharps; body parts; contaminated bedding; gency permits under title I 'of such Act for the
surgical wastes and potentially contaminated laboratory dumping of industrial waste into ocean waters, or
wastes; dialysis wastes; and such additional medical into w2ters described in such section 101(b), if
items as the Administrator shall prescribe by regulation. the Administrator determines that there has been
[New 3(k) added by PL 100-6881 demonstrated to exist an emergency, requiring the

Environment Reporter 6

S-824
MARINE PROTECTION ACT 71:6003

dumping of such waste, which poses an unacceptable (E) The persistence and permanence of the effects of
risk relating to human health and admits of no the dumping.
other feasible solution. As used herein, "emergency" (F) The effect of' dumping particular volumes and
refers to situations requiring action with a marked concentrations of such material;.
degree of urgency. (G) Appropriate locations and methods of disposal or
[Former 4(c) of PL-95-153 amended and redesignated recycling, including land-based alternatives and the pro-
as (a) by PL 100-688) bable impact of requiring use of such alternate locations
(b) For purposes of this section, the term -industrial or methods upon considerations affecting the public in-
waste" means any solid. semisolid, or liquid waste gener- terest.
uEed bv a manufacturing or processing plant. (H) The effect on alternate uses of oceans, such as
[New @ec. 4(b) of PIL 95-153 added by PIL 100-688] scientific study, fist-ung, and other living resource exploita-
(d) [Repeated] tion, and nonliving resource exploitation.
[Sec. 4(d) of PIL 95-153 repealed by PIL 100-68811 (1) In designatin g recommended sites, the Administra-
tor shall utilize wherever feasible locations beyond the
Environmental Protection Agency Permits edge of the COIlEinentul Shelf.
In establishing or re"sitia such @:riteria, the Administra-
Sec. 102. (a) Except in relation to dredged material, as tor shall consul"t with Fed-cral, State. and local officials,
provided for in section 103 of this title, and in relation to and interested members of the general public, is may
radiological. chemical, and biological warfare agents. high- appear appropriate to the Administrator. With respect to
leveliradioactive waste, and medical waste, for which no such criteria as may affect the civil works program of the
permit may be issued, the Administrator may issue permits, Department of the Army. the Administrator shall also
after notice and opportunity for public hearing, for the consult with Elie Secretarv. In reviewing applications for
transportation from the United Staes or, in the case of a permits, the Administratu'r shall make such provision for
vessel or aircraft registered in the United States or flying the consultation with interested Federal and State agencies as
United States flag, in the case of an agency or instri!- he deems useful or necessary. No permit shall be issued
mentafity of the United States, for the transportation for a dumping of material which will violate applicable
from j location outside the United States, of material for water quabty standards.
the purpose of dumping it into ocean waters, or for .the To file extent that lie may do so without relaxing the
dumping of material into the waters described in section requirements of this title, the Administrator, in establish-
101(b), where the Administrator determines that such ing or revising such criteria, shall apply the standards and
dumping wiU not unreasonably degrade or endanger hu- criteria binding upon the United States under the Conven-
man health, welfare, or amenities, or the marine environ- tion, including its Annexes.
ment, ecological systems, or economic potentialities. The [102(a) amended by PIL 100-6881
Administrator shaU establish and apply criteria for review-
ing and evaluating such permit applications, and. in (b) The Administrator may establish and issue various
establishing or revising such criteria, shall consider, but categories of permits, including the general permits
not be limited in his consideration to, the following: described in section 104(c).
(A) The need for the proposed dumping. (c) The Administrator may, considering the criteri3
(13) The effect of such dumping on human health and established pursuant to subsection (a) of this section.
welfare, including economic, esthetic, and recreational designate recommended sites or times for dumping and,
values. when he finds it necessary to protect critical areas, shaU,
(C) Tile effect of such dumping on fisheries resources, after consultation with the Secretary, also designate sites
plankton, fish, shellfish, wildlife, shore lines and beaches. or times within which certain materials may not be
(D) Tile effect ol'such dumping on marine ecosystems, dumped.
particularly with respect to- (d) No permit is required under this title for the
(t) file transfer, concentration, and dispersion of such transportation for dumping or the dumping of fish wastes,
material and its byproducts through biological. physical, except when deposited in harbors or other protected or
and clicmical processes, enclosed coastal waters, or where the Administrator finds
(0) potential changes in marine ecosystem diversity, that such deposits could endanger health, the environ-
productivity, and stability, and ment. or ecological systems in a specific location. Where
(iii) species and community population dynamics. the Administrator makes such a finding, such material

12-30-88 Pubij by THE BUREAU OF NATIONAL AFFAIRS. INC.. W&ShW4M. D.C. 20037 7

71:6004 FEDERAL LAWS

may be deposited only as authorized by a permit issued relating to critical areas, the determination of the Admin-
by the Administrator under this section. istrator shall prevail. Unless the Administrator grants a
(e) In the case of transportation of material. by an waiver pursuant to subsection (d), the Secretary shall not
agency or instrumentality of the United States or by a issue a permit which does not compJy with such criteria
vessel or aircraft registered in the United States or flying and with such restrictions.
the United States nag, from a location in a foreign State (d) If, in any case, the Secretary finds that, in the
Party to the Convention, a_permit issued pursuant to the disposition of dredged material, there is no economically
authority of that foreign State Party, in accordance with feasible method or site available other than a dumping
Convention requirements, and which otherwise could have site the utilization of which would result in noncom.
been issued pursuant to subsection (a) hereof, shall be pliance with the criteria established pursuant to section
accepted, for the purposes of this title, as if it were issued 102(a) relating to the effects of dumping or with the
by the Administrator under the authority of this restrictions established pursuant to section 102(c) relating
section: Provided, That in the case of an agency or to critical areas, he shall so certify and request a waiver
instrumentality of the United States, no application from the Administrator of the specific requilements in-
shall be made for a permit to be issued pursuant to volved. Within thirty days of the receipt of the waiver
the authority of a foreign State Party to the Convention request, unless the Administrator finds that the dumping
unless the Administrator concurs in the riling of such of the material will result in an unacceptably adverse
application. impact on municipal water supplies, shellfish beds, wild.
f102(e) amended by PL 96-5721 life, fisheries (including spawning and breeding areas), or
recreational areas, he shall grant the waiver.
Corps of Engineers Permits (e) In connection with Federal projects involving
Sec. 103. (a) Subject to the provisions of subsections dredged material, the Secretary may, in lieu of the permit
(b), (c), and (d) of this section, the Secretary may issue procedure, issue regulations which will require the applica-
permits, after notice and opportunity for public hearings ' tion to such projects of the same criteria, other factors to
for the transportation of dredged material for the purpose be evaluated, the same procedures, and the same require-
of dumping it into ocean waters, where the Secretary ments which apply to the issuance of permits under
determines a hat the dumping will not unreasonably de- subsections (a), (b), (c), and (d) of this section.
grade or enuranger human health, welfare, or amenities, or
the marine environment, ecological systems, or economic Permit Conditions
potentialities. Sec. 104. (a) Permits issued under this title shall
(b) In making the determination required by subsec- designate and include (1) the type of material authorized
tion (a), the Secretary shall apply those criteria, estab- to be transported for dumping or to be dumped; (2) the
lished pursuant to section 102(a), relating to the effects amount of material authorized to be transported for
of the dumping. Based upon an evaluation of the poten- dumping or to be dumped; (3) the location where such
tial effect of a permit denial on navigation, economic and transport for dumping will be terminated or where such
industrial development, and foreign and domestic com- dumping will occur; (4) the length of time for which the
merce of the United States, the Secretary shall make an permits are valid and their expiration date-, (5) any special
independent determination as to the need for the dump- provisions deemed necessary by the Administrator or the
ing. The Secretary shall also make an independent deter- Secretary, as the case may be, after consultation with the
mination as to other possible methods of disposal and as Secretary of the Department in which the Coast Guard is
to appropriate locations for the dumping. In considering operating, for the monitoring and surveillance of the
appropriate locations, he shall, to the extent feasible, transportation or dumping', and (6) such other matters as
utilize the recommended sites designated by the Admin- the Administrator or the Secretary, as the case may be,
istrator pursuant to section 102(c). deems appropriate.
(c) Prior to issuing any permit under this section, the (b) The Administrator or the Secretary, as the case
Secretary shall first notify the Administrator of his inten- may be, may prescribe such processing fees for permits
tion to do so. In any case in which the Administrator and such reporting requirements for actions taken pur-
disagrees with the determination of the Secretary as to suant to permits issued by him under this title as he
compliance with the criteria established pursuant to Sec- deems appropriate.
tion 102(a) relating to the effects of the dumping or with (c) Consistent with the requirements of sections 102
the restrictions established pursuant to section 102(c), and 103, but in lieu of a requirement for specific permits

Enwronmont A

S-824
MARINE PROTECTION ACT 71:6005
in such case, the Administrator or the Secretary, as the duration of time that is necessary to fulfill the purposes
case may be, may issue general permits for the transporta- of the research, such that the dumping will have minimal
tion for dumping, or dumping, or both, of specified adverse impact upon human health, welfare, and ameni-
materials or classes of materials for which he may issue ties, and the marine environment, ecological systems,
permits, which he determines will have a minimal adverse economic potentialities, and other legitimate uses;
environmental impact. (3) after consultation with the Secretary of Com-
(d) Any permit issued under this title shall be reviewed merce, that the potential benefits of such research will
periodically and, if appropriate, revised. The Administra- outweigh any such adverse impact; and
tor or the Secretary, as the case may be, may linut or (4) that the proposed dumping will be preceded by
deny the issuance of permits, or he may alter or revoke appropriate baseline monitoring studies of the proposed
partially or entirely the terms of perraits issued by him dump site and its surrounding environment.
under this title, for the transportation for dumping, or for Each permit issued pursuant to this subsection shall
the dumping, or both, of specified materials or classes of be subject to such conditions and restrictions as the
materials, where he finds that such materials cannot be Administrator determines to be necessary to minimize
dumped consistently with the criteria and other factors possible adverse impacts of such dumping.
required to be applied in evaluating the permit applica- [104(h) added by PIL 97-4241
tion. No action shall be taken under this subsection unless
the affected person or permittee shall have been given (i)(1) Two years after the date of enactment of this
notice and opportunity for a hearing on such action as subsection, the Administrator may not issue a permit
proposed. under this title for the disposal of radioactive waste
(e) The Administrator or the Secretary, as the case material until the applicant, in addition to complying
may be, shall require an applicant for a permit under this with all other requirements of this title, prepares, with
tifle to provide such information as he may consider respect to the site at*which the disposal is proposed, a
necessary to review and evaluate such application. Radioactive Material Disposal Impact Assessment
(f) Information received by the Administrator or the which shall include-
Secretary, as the case may be, as a part of any application (A) a listing of all radioactive materials in each
or in connection with any permit granted under this title container to be disposed, the number of containers to be
shall be available to the public as a matter of public dumped, the structural diagrams of each container, the
record, at every stage of the proceeding. The final deter- number of curies of each material in each container, and
mination of the Administrator or the Secretary, as the the exposure levels in Terns at the inside and outside of
case may be, shall be likewise available. each container:
(g) A copy of any permit issued under this title shall (13) an analysis of the environmental impact of the
be placed in a conspicuous place in the vessel which will proposed action, at the site at which the applicant
be used for the transportation or dumping authorized by desires to dispose of the material, upon human health
such permit, and an additionzi copy shaU be furnished by and welfare and marine life;
the issuing official to the Secretary of the department in (C) any adverse environmental effects at the site
which the Coast Guard is operating, or its designee. which cannot be avoided should the proposal be
(h) Notwithstanding any provision of title I of the implemented;
Marine Protection, Research, and Sanctuaries Act of (D) an analysis of the resulting environmental and
1972 to the contrary, during the two-year period begin- economic conditions if the containers fail to contain the
ning on the date of enactment of this subsection, no radioactive waste material when initially deposited at
permit may be issued under such title I that authorizes the specific site-,
the dumping of any low-level radioactive waste unless (E) a plan for the removal or containment of the
the Administrator of the Environmental Protection disposed nuclear material if the container leaks or
Agency determines- decomposes;
(1) that the proposed dumping is necessary to conduct (F) a determination by each affected State whether
research- the proposed action is consistent with its approved Coast-
(A) on new technology related to ocean dumping, or al Zone Management Program;
(B) to determine the degree to which the dumping of (G) an analysis of the economic impact upon other
such substance will degrade the marine environment; users of marine resources;
(2) that the scale of the proposed. dumping is limited (H) alternatives to the proposed action;
to the smallest amount of such material and the shortest (1) comments and results of consultation with State

12-30-88 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. Washington. D.C. 20037

low

71:6006 FEDERAL LAWS

officials and public hearings held in the coastal States a permit to - under the Marine Protection, Research,
that are nearest to the affected areas; and Sanctuaries Act of 1972 to dispose of radioactive
(J) a comprehensive monitoring plan to be carried out materials in the ocean as recommended by the Adminis-
by the applicant to determine the full effect of the trator to the Congress on -, 19 -.', the first blank
disposal on the marine environment, living resources, or space therein to be filled with the appropriate applicant
human health, which plan shall include, but not be to dispose of nuclear material and the second blank
limited to, the monitoring of exterior container radiation therein to be filled with the date on which the Adminis-
samples, the taking of water and sediment samples, and trator submits the recommendation to the House of
fish and benthic animal samples, adjacent to the contain- Representatives and the Senate.
ers, and the acquisition of such other information as the [1041(i) added by PL 97-424(i)(4)(D) amended bv PL
Administrator may require; and 100-17]
(K) such other information which the Administrator Special Provisions Regarding Certain Dumping Sites'
may require in order to determine the full effects of such (104A added by PL 99-6621
disposal.
(2) The Administrator shall include, in any permit to Sec. 104A. (a) New York Bight Apex.- (1) For
which paragraph (1) applies, such terms and conditions purposes of this subsection-
as may be necessary to ensure that the monitoring plan (A) The. term "Apex" ' means the New York Bight
required under paragraph (1)(J) is fully implemented, Apex consisting of the ocean waters of the Atlantic
including the analysis by the Administrator of the sam- ocean westward of 73 degrees 30 minutes west longitude
pies required to be taken under the plan. and northward of 40 degrees 10 minutes north latitude.
(3) The Administrator shall submit a copy of the (B) The term "Apex site" means that site within the
assessment prepared under paragraph (1) with respect to Apex at which the dumping of municipal sludge oc-
any permit to the Committee on Merchant Marine and curred before October 1, 1983.
Fisheries of the House of Representatives and the Com- (C) The term -efigible authority" means any sewer-
mittee on Environment and Public Works of the Senate. age authority or other unit of State or local government
(4) (A) Upon a determination by the Administrator that on November 2, 1983, was authorized under court
that a permit to which this subsection applies should be order to dump municipal sludge at the Apex site.
issued, the Administrator shall transmit such a recom- (2) No person may apply for a permit under this title
mendation to the House of Representatives and the in relation to the dumping of, or the transportation for
Senate. purposes of dumping, municipal sludge within the Apex
(B) No permit may be issued by the Administrator unless that person is an eligible authority.
under this Act for the disposal of radioactive materials (3) The Administrator may not issue. or rencw. any
in the ocean unless the Congress, by approval of a ermit under this title that authorizes the dumping of, or
resolution described in paragraph (D) within 90 days of p
continuous session of the Congress beginning on the date the transportation for purposes of dumping, municipal
after the date of receipt by the Senate and the House of sludge within the Apex after the earlier of-
Representatives of such recommendation, authorizes the (A) December 15, 1987; or
Administrator to grant a permit to dispose of radioactive (B) the day determined by the Administrator to be the
material under this Act. first day on which municipal sludge generated by eligible
(C) For purposes of this subsection- authorities can reasonably be dumped at a site designat-
(I) continuity of session of the Congress is broken only ed under section 102 other than a site within the Apex.
by an adjournment sine die; (b) Restriction on Use of the 106-Mile Site. - The
(2) the days on which either House is not in session Administrator may not issue or renew any permit under
because of an adjournment of more than three days to a this title which authorizes any person. other than a
day certain are excluded in the computation of the 90 person that is an eligible authority within the meaning of
day calendar period. subsection (a)( 1)(C), to dump. or to transport for the
(D) For the purposes of this subsection, the term purposes of dumping, municipal sludge within the site
resolution' means a joint resolution, the resolving clause designated under section 102(c) by the Administrator
of which is as follows: 'That the House of Representa- and known as the "I O6-Mile Ocean waste Dump Site"
tives and the Senate approve and authorize the Adminis- (as described in 49 F.R. 19005).
trator of the Environmental Protection Agency to grant [Editor's Note: Section 1004 of PL 100-688 provides:

Environmem Re 10

S-824
MARINE PROTECTION ACT 71:6007

"Sec. 1004. Enforcement Monitoring Report. person on or after the 270th day after the date of the
Not later than 6 months after the date of the enact- enactment of this section and before January 1. 1990,
ment of this Act, the Administrator of the Environmen- (B) 5150 for each dry ton (or equivalent) of sewage
tal Protection Agency (hereinafter in this title referred sludge or industrial waste transported or dumped by the
is to as the "Administrator"), in consultation with the person on or after January 1, 1990. and before Jan'uary
Secretary of Transportation, shall submit a report to the 1. 1991: and
Congress which outlines progress made in using electron- (C) S200 for each dry ton (or equivalent) of sewage
ic monitoring equipment, and other means to monitor sludge or industrial waste. transported or dumped by the
and prevent dumping of sewage sludge outside the site person on or after January 1, 1991, and before January
designated by the Administrator under section 102(c) 1. 1992.
and known as the -106-Mile Ocean Waste Dump Site" (2) Payment of fees. - Of the amount of fees under
(as described in 49 F.R. 19005), and by vessels in transit paragraph ( 1) for which a person is liable. such person-
to that site."] (A) shall pay into a trust account established by the
[The text of Section 104A as added by PL 100-4 was person in acco@dance with subsection (e) a sum equal to
repealed by PL 100-688. The text of the repealed Sec- 83 percent of such amount.
tion was identical to that of current Section 104A.] (B) shall pay to the Administrator a sum equal to S 15
Sec. 104B. Ocean Dumping of Sewage Sludge and per dry ton (or equivalent) of sewage sludge and indus-
Industrial Waste. trial waste transported or dumped by such person. for
(104B added by PL 100-688] use for agency activities as provided in subsection (f)( I ).
(a) Termination of Dumping- (C) subject to paragraph (5) shall pay into the Clean
(1) Prohibitions on Dumping. Notwithstanding any Oceans Fund established by the State in which the
other provision of law- person is located a sum equal to 50 percent of the
(A) on and after the 270th day after the date of the balance of such amount after application of subpara-
enactment of this section, no person (including a person graphs (A) and (B)-. and
described in section 104A(a)(1)(C)) shall dump into (D) subject to paragraph (5), shall pay to the State in
ocean waters. or transport for the purpose of dumping which the person is located a sum equal to the balance of
into ocean waters, sewage sludge or industrial waste, such amount after application of subparagraphs (A).
unless such person- (B). and (C), for deposit into the water pollution control
(i) has entered into a compliance agreement or en- revolving fund established by the State under title V1 of
forcement agreement which meets the requirements of the Federal Water Pollution Control Act, as provided in
subsection (c)(2) or (3), as applicable; and subsection (f)(2).
(ii) has obtained a permit issued under section 102 (3) Schedule for payment. - Fees under this subsec-
which authorizes such transportation and dumping; and tion shall be paid on a quarterly basis.
(B) after December 31, 1991, it shall be unlawful for (4) Waiver of fees. - (A) The Administrator shall
any person to dump into ocean waters, or to transport for waive all fees under this subsection, other than the
the purposes of dumping into ocean waters, sewage portion of fees required to be paid to the Administrator
sludge or industrial waste. under paragraph (2)(B) for agency activities. for any
(2) Prohibition an New Entrants. - The Administra- person who has entered into a compliance agreement
tor shall not issue any permit under this Act which which meets the requirements of subsection (c)(2).
authorizes a person to dump into ocean waters, or to
transport for the purposes of dumping into ocean waters (B) The Administrator shall reimpose fees under this
subsection for a person for whom such fees are waived
sewage sludge or industrial waste, unless that person was under subparagraph (A) if the Administrator determines
authorized by a permit issued under section 102 or by a
court order to dump into ocean waters, or to transport that-
for the purpose of dumping into ocean waters, sewage (i) the person has failed to comply with the terms of a
sludge or industrial waste on September 1, 1988. compliance agreement which the person entered into
(b) Special Dumping Fees.- under subsection (c)(2); and
(1) In General. - Subject to paragraph (4), any (ii) such failure is likely to result in the person not
person who dumps into ocean waters, or transports for being able to terminate by December 31, 1991, dumping
the purpose of dumping into ocean waters, sewage sludge or sewage sludge or industrial waste into ocean waters.
or industrial waste shall be liable for a- fee equal to- (C) The Administrator may waive fees reimposed for
(A) $100 for each dry ton (or equivalent) of sewage a person under subparagraph (B) if the Administrator
sludge or industrial waste transported or dumped by the determines that the person has returned to compliance

12-30-88 Pubfighed by THE 13UREAU OF NATIONAL AFFAIRS, INC.. WashlrgW. O.C. 20037

71:6008 FEDERAL LAWS

with a compliance agreement which the person entered (C) it requires the person to notify in a timely manner
into under subsection (c)(2). the Administrator and the Governor of the State of any
(5) Payments Prior to Establishment of Account. - problems the person has in complying with the schedule
(A) In any case in which a State has not established a referred to in subparagraph (B);
Clean Oceans Fund or a water pollution control revolv- (D) it requires the Administrator and the Governor of
ing fund under title VI of the Federal Water Pollution the State to evaluate on an ongoing basis the compliance
Control Act, fees required-to be paid by a person in that of the person with the schedule referred to in subpara-
State under paragraph (2)(C) or (D), as applicable, graph (B);
shall be paid to the Administrator. (E) it requires the person to pay in accordance with
(B) Amounts paid to the Administrator pursuant to this section all fees and penalties the person is liable for
this paragraph shall be held by the Administrator in under this section; and
escrow until the establishment of the fund into which (F) it authorizes the person to use interim measures
such amounts are requited to be paid under paragraph before completion of the alternative system referred to in
(2), or until the last day of the 1-year period beginning subparagraph (A).
on the date of such payment, whichever is earlier', and (3) Enforcement Agreements. - An agreement shall
thereafter- be an enforcement agreement for purposes of this section
(i) if such fund has been established, shall be paid by only if -
the Administrator into the fund; or (A) it includes a plan negotiated by the person, the
(ii) if such fund has not been established, shall revert State in which the person is located, and the Administra-
to the general fund of the Treasury. tor that will, in the opinion of the Administrator, if
(c) Compliance Agreements and Enforcement Agree- adhered to by the person in good faith, result in the
ments.- phasing out and termination of ocean dumping, and
(1) In General. - As a condition of issuing a permit transportation for the purpose of ocean dumping. of
under section 102 which authorizes a person to transport sewage sludge and industrial waste by such person
or dump sewage sludge or industrial waste, the Adminis- through the design. construction, and full implementa-
trator shall require that, before the issuance of such tion of an alternative system for the manage--nt of
permit, the person and the State in which the person is sewage sludge and in@ustrial waste transporzcd or
located entar into with the Administrator- dumped by the person,
(A) a compliance agreement which meets the require- (B) it includes a schedule which-
ments of paragraph (2). or (i) in the opinion of the Administrator, specifies rea-
(B) an enforcement agreement which meets the re- sonable dates by which the person shall complete the
quirements of paragraph (3). various activities that are necessary for the timely imple-
(2) Compliance Agreements. - An agreement shall mentation of the alternative system referred to in sub-
be a compliance agreement for purposes of this section paragraph (A); and
only if- (ii) meets the requirements of paragraph (4);
(A) it includes a plan negotiated by the person, the (C) it requires the person to notify in a timely manner
State in which the person is located, and the Administra- the Administrator and the Governor of the State of any
tor that will, in the opinion of the Administrator, if problems the person has in complying with the schedule
adhered to by the person in good faith, result in the referred to in subparagraph (B);
phasing out and termination of ocean dumping, and (D) it requires the Administrator and the Governor of
transportation for the purpose of ocean dumping, of the State to evaluate on an ongoing basis the compliance
sewage sludge and industrial waste by such person by of the person with the schedule referred to in subpara-
not later than December 31, 1991, through the design, graph (8): cordance with
construction, and full implementation of-an alternative (E) it requires the person to pay in ac
system for the management of sewage sludge and indus- this section all fees and penalties the person is liable for
trial waste transported or dumped by the person; under this section: and
(B) it includes a schedule which- (F) it authorizes the person to use interim measures
(1) in the opinion of the Administrator, specifies rea- before completion of the alternative system referred to in
sonable dates by which the person shall complete the subparagraph (A). d in a compliance
various activities that are necessary for the timely ' imple- (4) Schedules. - A schedule include
mentation of the alternative system referred to in sub. agreement pursuant to paragraph (2)(B) or an enforce
paragraph (A); and nient agreement pursuant to paragraph (3)(B) shall
(ii) meets the requirements of paragraph (4); establish deadlines for-

Environment ROPOrtfr 12

MARINE PROTECTION ACT S-824
71:6009

(A) preparation of engineering designs and related compliance agreement or enforcement agreement under
specifications for the alternative system referred to in subsection (c) and who dumps or transports sewage
paragraph (2)(A) or paragraph (3)(A), as applicable; sludge or industrial waste in violation of subsection
(B) compliance with appropriate Federal, State, and (a)( MB) shall be liable for a civil penalty, to be as-
local statutes. regulations, and ordinances; sessed by the Administrator, ai follows:
(C) site and equipment acquisitions for such alterna- (A) For each dry ton (or equivalent) of sewage sludge
tive system; or industrial waste dumped or transported by the person
(D) construction and testing of such alternative in violation of this subsection in calendar year 1992,
system: $600.
(E) operation of such alternative system at full capaci- (B) For each dry ton (or equivalent) of sewage sludge
tN*@ and or industrial waste dumped or transported by the person
(F) any other activities, including interim measures, in violation of this subsection in any year after calendar
that the Administrator considers necessary or year 1992, a sum equal to-
appropriate. (i) the amount of penalty per dry ton (or equivalent)
(5) Clean Oceans Funds. - (A) Each State that is a for a violation occurring in the preceding calendar year,
party to a compliance agreement or an enforcement plus
agreement under this subsection shall establish an inter- (ii) a percentage of such amount equal to 10 percent
est bearing account, to be known as a Clean Oceans of such amount, plus an additional I percent of such
Fund. into which a person shall pay fees and penalties in amount for each full calendar year since December 3 1.
accordance with subsections (b)(2)(C) and (d)(2)(Q(i), 1991.
respectively. .(2) Payment Of Penalty. - Of the amount of penal-
(B) A state which establishes a Clean Oceans Fund ties under paragraph (1) for which a person is liable.
pursuant to this paragraph shall allocate and pay from such person-
the fund each year, to each person in the State which has (A) shall pay into a trust account established by the
entered into a compliance agreement or enforcement person in accordance with subsection (e) a sum which is
agreement under this subsection, a portion of amounts in a percentage of such amount equal to-
the fund on the last day of that year. which is equal to (i) 90 percent of such amount, reduced by
the su;n of- (ii) 5 percent of such amount for each full calendar
(i) amounts paid by the person into the fund in that year since December 31, 1991;
@ear as fees pursuant to subsection (b)(2)(C) and as (B) shall pay to the Administrator a sum equal to S 15
penalties pursuant to subsection (d)(2)(Qi); per dry ton (or equivalent) of sewage sludge and indus-
(ii) amounts paid by the Administrator into the fund trial waste transported or dumped by such person in that
in that year as fees held in escrow for the person year. for use for agency activities as provided in subsec-
pursuant to subsection (b)(5)(B)-, and tion (f)(1);
(iii) interest on such amounts. (C) for violations in any year before calendar year
(C) Amounts allocated and paid to a person pursuant 1995-
to subparagraph (B)- (i) subject to paragraph (4), shall pay into the Clean
Oceans Fund established by the State in which the
(i) shall be used for the purposes described in subsec- person is located a sum equal to 50 percent of the
tion (e)(2)(B); and balance of such amount; and
(ii) may be used for matching Federal grants. -(ii) subject to paragraph (4), shall pay to the State in
(D) A Clean Oceans Fund established by a State which the person is located a sum equal to the portion of
pursuant to this paragraph shall be subject to such such amount which is not paid as provided in subpara-
accounting. reporting. and other requirements as may be graphs (A), (B), and (C), for deposit into the water
established by the Administrator to assure accountabil- pollution control revolving fund established by the State
ity of payments into and out of the fund. under title VI of the Federal Water Pollution Control
(6) Public Participation. - The Administrator shall Act. as provided in subsection (f)(2); and
provide an opportunity for public comment regarding (D) for violations in any year after calendar %,car
the establishment and implementation of compliance 1994. shall pay to the State in which the person is
agreements and enforcement agreements entered into located a sum equal to the balance of such amount. for
pursuant to this section. use by the State for providing assistance under subsec-
(d) Penalties.- tion (f)(3).
M In General. - In lieu of any other civil penality (3) Schedule for Payment. - Penalties under this
under this Act. any person who has entered into a subsection shall be paid on a quarterly basis.

12-30-83 Publish*d by THE BUREAU OF NATIONAL AFFAIRS. INC., WashingtOM, O.C. 20037 13

- - --------

71:6010 FEDERAL LAWS
(4) Payments Prior to Establishment of Account. - (B) in meeting the requirements of the Federal Water
In any case in which a State has not established a Clean Pollution Control Act (33 U.S.C. 1251 et seq.) which
Oceans Fund or a water pollution control revolving fund apply to the person. including operations and mainte-
under title V1 of the Federal Water Pollution Control nanc'c-. and
Act, penalties required to be paid by a person in that (C) for matching Federal grants.
State under paragraph (2)(C)(i) or (ii), as applicable, (4) Use for Matching Federal Grants. - Amounts in
shall be paid to the Administrator for holding and atrust account under this subsection may be used for
payment or reversion. as -applicable, in the same manner matching Federal grants.
as (F) Use of Fees and Penalties.-
,fees are held and paid or revert under subsection
(b)(5). ( I ) Agency Activities. - Of the total amount of fees
(e) Trust Account.- and penalties paid to the Administrator in a fiscal year
(1) In General. - A person who enters into a compli- pursuant to subsections (b)(2)(B) and (d)(2)(B). res'pec-
ance agreement or an enforcement agreement under tivelv-
subsection (c) shall establish a trust account for the hall
(A) not to exceed one-th*rd of such total amount s
payment and use of fees and penalties under this section. be used by the Administrator for-
(2) Trust Account Requirements. - An account shall (i) costs incurred or expected to be incurred in under-
be a trust account for purposes of this subsection only if taking activities directly associated with the issuance
it meets, to the satisfaction of the Administrator, the under this Act of permits for the transportation or
following requirements: dumping of sewage sludge and industrial waste. includ-
(A) Amounts in the account may be used only with I
the concurrence of the person who establishes & ac- ing the costs of any environmental assessment of the
count and the Administrator; except that the person may direct effects of dumping under the permits;
use amounts in the account for a purpose authorized by (ii) preparation of reports under subsection (i): and
(iii) such other research, studies. and projects the
subparagraph (B) after 60 days after notification of the
Administrator if the Administrator does not disapprove Administrator considers necessary for, and consistent
such use before the end of such 60-day period. with. the development and implementation of alternative
(B) Amounts in the account may be used only for sy*stems for the management of sewage sludge and indus-
projects which will identify, develop. and implement- trial waste.
(i) an alternative system, and any interim measures, (B) not to exceed one-third of such total amount shall
for the management of sewage sludge and industrial be transferred to the Secretary of the department in
waste. including but not limited to any such system or which the Coast Guard is operating for use for-
measures utilizing resource recovery, recycling. thermal (i) Coast Guard surveillance of transportation and
reduction, or composting techniques; or dumping of sewage sludge and industrial waste subject
(ii) improvements in pretreatment, treatment, and to this Act. and
(ii) such enforcement ac
storage techniques for sewage sludge and industrial tivities conducted bv the
waste to facilitate the implementation of such alternative Coast Guard with respect to such transportation and
svstem or interim measures. dumping as may be necessary to ensure to the maximum
I(C) Upon a finding by the Administrator that a extent practicable complete compliance with the require-
person did not pay fees or penalties into an account as ments of this Act; and
required by this section, or did not use amounts in the (C) not to exceed one-third of such total amount shall
account in accordance with this subsection, the balance be transferred to the Under Secretary of Commerce for
of the amounts in the account shall be paid to the State Oceans and Atmosphere for use for -
in which the person is located, for deposit into the water (i) monitoring, research, and reiated activities consist-
pollution control revolving fund established by the State ent with the program developed pursuant to subsection
under title VI of the Federal Water Pollution Control 0)( 1); and
Act, as provided in subsection (n(2). (ii) preparing annual reports to the Congress pursuant
(3) Use of Unexpended Amounts. - Upon a determi- to subsection 0)(4) which describe the results of such
nation by the Administrator that a person has terminat- monitoring, research, and activities.
ed ocean dumping of sewage sludge or industrial waste, (2) Deposits into State Water Pollution Control Re-
the balance of amounts in an account established by the volving Fund. - (A) Amounts paid to a State pursuant
person under this subsection shall be paid to the person to subsection (b)(2)(D), (d)(2)(C)(ii). or (e)(2)(C) shall
for use- be deposited into the water pollution control revolving
(A) for debts incurred by the person i .n complying fund established by the State pursuant to title V1 of the
with this Act or the Federal Water Pollution Control Federal Water Pollution Control Act.
Act: (B) Amounts deposited into a 5tate water pollution

Environment Roport*r 14

S-324
MARINE PROTECTION ACT 71:6011

control revolving fund pursuant to this paragraph- (A) enters into a compliance agreement or an enforce-
(i) shall not be used by the State to provide assistance ment agreement under subsection (c); and
to the person who paid such amounts for development or -(B) obtains a permit under section 102 which autho.
implementation of any alternative system; rizes such dumping or transporting.
(ii) shall not be considered to be State matching -(2) Requirements of Order.-Any order issued by
amounts under title VI of the Federal Water Pollution the Administration under this subsection-
Control Act: and - "(A) shall be -delivered by personal service to the
(iii) shall not be subject to State matching require- person named in the order:
ments under such title. (B) shall state with reasonable specificity the nature
(3) Penalty Payments to States After 1994. - (A) of the violation for which the order is issuea; and
Amounts pai@ to @ State as penalties pursuant to subsec- (C) shall Ir1equire that the person named in the order,
tion (d)(2)(D) may be used by the State- as a condition of dumping into ocean waters, or trans-
(i) for providing assistance to any person in the porting for the purpose of dumping into ocean waters,
State- sewage sludge or industrial waste -
(1) for implementing a management program under (i) shall enter into a compliance agreement or an
section 319 of the Federal Water Pollution Control Act, cnfcrcement agreement uder subsection (c); and
(11) for developing and implementing a conservation (ii) shall obtain a permit under section 102 which
and management plan under section 320 of such Act: or authorizes such dumping or transporting.
(111) for implementing technologies and management (3) Actions. - The Administrator may request the
practices necessary for controlling pollutant inputs ad- Attornev General to commence a civil action for appro-
versely affecting the New York Bight, as such inputs are priate relief. including a temporary or permanent injunc-
identified in the New York Bight Restoration Plan tion and the imposition of civil penalties authorized by
prepared under section 2301 of the Marine Plastic Pollu- I
tion Research and Control Act of 1987, and subsection (d)(1), for any violation of subsection (a)(1)
(ii) for providing assistance to any person in the State or of an order issued by the Administrator under this
%%ho was not required to pay such penalties for construc- section. Such an action may be brought in the district
court of the United States for the district in which the
tion of treatment works (as defined in section 212 of the defendant is located, resides, or is doing business, and
Federal Water Pollution Control Act) which are publicly such court shall have jurisdiction to restrain such viola-
owned. tion and require compliance with subsection (a)(1) and
(B) Amounts paid to a State as penalties pursuant to any such order.
Nubsection (d)(2)(D) which are not used in accordance (h) State Progress Reports. -
@%ith subparagraph (A) shall be deposited into the water
pollution control revolving fund established by the State I ) In General. - The Governor of each State that is
under title VI of the Federal Water Pollution Control a party to a compliance agreement or an enforcement
Act. Amounts deposited into such a fund pursuant to agreement under subsection (c) shall submit to the
this subparagraph- Administrator on September 30 of 1989 and of every year
(1) shall not be used by the State to provide assistance thereafter until the Administrator determines that ocean
to the person who paid such amounts; dumping of sewage sludge and industrial waste by per-
(ii) shall not be considered to be State matching sons located in that State has terminated, a report which
amounts under title VI of the Federal Water Pollution describes -
Control Act; and (A) the efforts of each person located in the State to
(iii) shall not be subject to State matching require- comply with a compliance agreement or enforcement
merits under such title. agreement entered into by the person pursuant to subsec-
(4) Deposits into Treasury as Offsetting Collections. tion (c). including the extent to which such person has
- Amounts of fees and penalties paid to the Adminis- complied with deadlines established by the schedule
trator pursuant to subsection (b)(2)(B) or (d)(2)(B) included in such agreement,
%Nhich are used by an agency in accordance with para- (B) activity of the State regarding permits for the
graph ( I ) shall be deposited into the Treasury as offset- construction and operation of each alternative system;
ting collections of the agency. and
(g) Enforcement.- (C) an accounting of amounts paid into and with-
(1) In General. - Whenever, on the basis of any drawn from a Clean Oceans Fund established by the
information available. the Admi .nistnitor finds that a State.
person is dumping or transporting sewage sludge or
industrial waste in violation. of subsection (a)(1). the (2) Failure to Submit Report. - If a State fails to
Administrator shall issue an order requiring such person submit a report in accordance with this subsection, the
to terminate such dumping or transporting (as applica- Administrator shall withhold funds reserved for such
c) until such person- State under section 205(g) of the Federal Water Pollu-

12-30-88 Publishod by TME BUREAU OF NATIONAL AFFAIRS. INC.. Washington, D.C. 20037 is

71:6012 FEDERAL LAWS

tion Control Act (33 U.S.C. 1285(g)). Funds withheld of environmental conditions on living marine organisms
pursuant to this paragraph may, at the discretion of the in these areas; and
Administrator, be restored to a State upon compliance (B) use of satellite and other advanced technologies 'in
with this subsection. conducting the program.
(i) EPA Progress Reports.- (3) Monitoring Activities. - The Administrator and
( I ) In General. - Not later than December 31 of the Under Secretary of Commerce for Oceans and At-
1989 and of each year thereafter until the Administrator mosphere shall each conduct monitoring activities con-
determines that ocean dufnping of sewage sludge and sistent with the program designed under paragraph (I ) -
industrial waste has terminated, the Administrator shall (4) Reports. - (A) Not later than I year after the
prepare and submit to the Congress a report on- date of the enactment of this section, the Administrator,
(A) progress being made by persons issued permits in cooperation with the Under Secretary of Commcrce
under section 102 for transportation or dumping of for Oceans and Atmosphere, shall submit to the Con-
sewage sludge or industrial waste in developing alterna- gress a report describing the program designed pursuant
tive systems for managing sewage sludge and industrial to paragraph (I).
waste; (8) Not later than December 31 of each year after the
(B) the efforts of each such person to comply with a submission of a report under subparagraph (A), the
compliance agreement or enforcement agreement en- Administrator and the Under Secretary of Commerce
tered into by the person pursuant to subsection (c), for Oceans and Atmosphere shall report to the Congress
including the extent to which such person has complied the results of monitoring activities conducted during the
with deadlines established by the schedule included in previous year under the program designed pursuant to
such agreement-, paragraph (I ).
(C) progress being made by the Administrator and (k) Definitions. - For purposes of this section-
others in identifying and implementing alternative sys- ( I ) the term "alternative system" means any method
tems for the management of sewage sludge and industri- for the management of sewage sludge or industrial waste
al waste; and which does not require a permit under this Act;
(D) progress being made toward the termination of (2) the term "Clean Oceans Fund" means such a fund
ocean dumping of sewage sludge and industrial waste. established by a State in accordance with subsection
(2) Referral to Congressional Committees. - Each (c)(5),
report submitted to the Congress under this subsection (3) the term "excluded material" means-
shall be referred to each standing committee of the (A) any dredged material discharged by the United
House of Representatives and of the Senate having States Army Corps of Engineers or discharged pursuant
jurisdiction over any part of the subject matter of the to a permit issued by the Secretary in accordance with
report. section 103; and
0) Environmental Monitoring.- (8) any waste from a tuna cannery operation located
(1) In General. - The Administrator, in cooperation in American Samoa or Puerto Rico discharged pursuant
with the Under Secretary of Commerce for Oceans and to a permit issued by the Administrator under section
Atmosphere, shall design a program for monitoring envi- 102.
ronmental conditions- (4) the term "industrial waste" means any solid,
(A) at the Apex site (as that term is defined in section semisolid, or liquid waste generated by a manufacturing
104A); or processing plant, other than an excluded material-,
(B) at the site designated by the Administrator under (5) the term "interim measure" means any short-term
section 102(c) and known as the "106-Mile Ocean method for the management of sewage sludge or indus-
Wastc Dump Site" (as described in 49 F.R. 19005); trial waste, which-
(C) at the site at which industrial waste is dumped-, (A) is issued before implementation of an alternative
and system; and
(D) within the potential area of influence of the (B) does not require a permit under this Act; and
sewage sludge and industrial waste dumped at those (6) the term "sewage sludge" means any solid, semiso-
sites. lid. or liquid waste generated by a wastewater treatment
(2) Program Requirements. - The program designed plant, other than an excluded material.
under paragraph (1) shall include, but is not,limited Sec. 104C. Prohibition on Disposal of Sewage Sludge
to- at Landfills on Staten Island.
(A) sampling of an appropriate number of fish and [104C added by PL 100-688]
shellfish species and other organisms to assess the effects (a) In General. - No person shall dispose of sewage

Environment R is

MARINE PROTECTION ACT S-824
71:6013

sludge at any landfill located on Staten Island, New not more than S250,000, or imprisoned for not more
York. than 5 years, or both; and
(b) Exclusion From Penalties.- (B) convicted of a violation involving such acti.vity
(1) In General. - Subject to paragraph (2), a person shall forfeit to the United States any property constitut-
Who violates this section shall not be subject to any ing or derived from any proc@eds the person obtained,
penalty under this Act. directly or indirectly, as a result of such violation, and
(2) Injunction. - 'aragraph (1) shall not prohibit the any of the property of the person which was used, or
bringing of an action for, or the granting of, an injunc- intended to be used in any manner or part, to commit or
tion under section 105 with respect to a violation of this to facilitate the commission of the violation.
section. (105(b)(2) added by PL 100-6881
(c) Definition. - For purposes of this section, the (c) For the purpose of imposing civil penalties and
term "sewage sludge" has the meaning such term has in criminal fines under this section each day of a continuing
section 104B. vioiaLion shall constitute a separate offense as shaU the
dumping from each of several vessels, or other sources.
Penalties (d) The Attorney General or his delegate may bring
Sec. 105. (a) Any person who violates any prnvision of actions for equitable relief to enjoin an imminent or
this title, or of the regulations promulgated under this continuing violation of this title, of regulations promul-
title, or a permit issued under this title shall be liable to a gated under this title, or of permits issued under this title,
civil penalty of not more than S50,000 for each violation and the district courts of the United States shall have
to be assessed by the Administrator. In additon, any jurisdiction to grant such relief as the equities of the case
person who violates this title or any regulation issued may require.
under this title by engaging in activity involving the (e) A vessel, except a public vessel within the meaning
dumping of medical waste shall be liable for a civil of section 13 of the Federal Water Pollution Control Act,
penalty of not more than $125,000 for each violation, to as amended (33 U.S.C. 1163), used in a violation, shall be
be assessed by the Administrator after written notice liable in rem for any civil penalty assessed or criminal fine
and an opportunity for a hearing. No penalty shall be imposed and may be proceeded against in any district
assessed until the person charged shall have been given court of the United States having jurisdiction thereof, but
notic:and an opportunity for a hearing of such violation. no vessel shall be liable unless it shall appear that one or
In determining the amount of the penalty, the gravity of more of the owners, or bareboat charterers, was at the
the violation. prior violations, and the demonstrated good time of the violation a consenting party or privy to such
faith of the person charged in attempting to achieve violation.
rapid compliance after notification of a violation shall be (f) If the provisions of any permit issued under section
considered by said Administrator. For good cause 102 or 103 are violated, the Administrator or the Sec-
shown. the Administrator may remit or mitigate such retary, as the case may be, may revoke the perrait or may
penalty. Upon failure of the offending party to pay the suspend the permit for a specified period of time. No
penalty the Administrator may request the Attorney permit shaU be revoked or suspended unless the permittee
General to commence an action in the appropriate dis- shall have been given notice and opportunity for a hearing
trict court of the United States for such relief as may be on such violation and proposed suspension or revocation:
appropriate. (g) (1) Except as provided in paragraph (2) of this
[105(a) amended by PL 100-6881 subsection any person may commence a civil suit on his
own behalf to enjoin any person, including the United
(b)(1) In additon to any action which may be brought States and any other governmental instrumentality or
under subsection (a) of this section, a person who know- agency (to the extent permitted by the eleventh amend-
ingly violates this title, regulations promulgated under ment to the Constitution), who is alleged to be in
this title. or a permit issued under this title shall be fined violation of any prohibition, limitation, criterion, or per-
not more than $50,000 or imprisoned for not more than mit established or issued by or under this title. The
one year. or both. district courts shall have jurisdiction, without regard to
[105(b)(1) designated by PL 100-688) the amount in controversy or the citizenship of the
(2) In addition to any action which may be brought parties, to enforce such prohibition, limitation, criterion,
udner subsection (a). any person- or permit, as the case may be.
(A) who knowingly violates any provision of this title (2) No action may be commenced-
by engaging in activity involving the dumping into ocean (A) prior to sixty days after notice of the violation has
waters of medical waste shall upon conviction be fined been given to the Administrator or the Secretary, and to

12-30-68 publishod by THE SUREAU OF NATIONAL AFFAIRS. INC., WaShIngtOn. D.C. 20037 17

71:6014 FEDERAL LAWS

any alleged violator of the prohibition, limitation, crite- the approaches to any harbor of the United States, or
rion, or permit, or may create an artificial island on the Outer Continental
(B) if the Attorney General has commenced and is Shelf, the Administrator shall consult with the Secretary
diligently prosecuting a civil action in a court of the and no permit shall be issued if the Secretary determines
United States to require compliance with the prohibition, that navigation will be unreasonably itripaired.
limitation, criterion, or permit; or (d) After the effective date of this title, no State shall
(C) if the Administrator has commenced action to adopt or enforce any rule -or regulation relating to any
impose a penalty pursuahl to subsection (a) of this activity regulated by this title. Any State may, however,
section, or if the Administrator, or the Secretary, has propose to the Administrator criteria relating to the
initiated permit revocation or suspension proceedings dumping of materials into ocean waters within its jurisdic-
under subsection (f) of this section; or tion, or into other ocean waters to the extent that such
(D) if the United States has commenced and is dili- dumping may affect waters within the jurisdiction of such
gently prosecuting a criminal action in a court of the State, and if the Administrator determines, after notice
United States or a State to redress a violation of this title. and opportunity for hearing, that the proposed criteria
(3) (A) Any suit under this subsection may be brought are not inconsistent with the purposes of this title, may
in the judicial district in which the violation occurs.
adopt those criteria and may issue regulations to imple-
(B) In anv such suit under this subsection in which the ment such criteria. Such determination shall be made by
United States is not a party, the Attorney General, at the the Administrator within one hundred and twenty days of
request of the Administrator or Secretary, may intervene receipt of the proposed criteria. For the purposes of this
on behalf of the United States as a matter of right. subsection, the term "State" means any State, interstate
(4) The court, in issuing any final order in any suit or regional authority, Federal territory or Commonwealth
brought pursuant to paragraph (1) of this subsection may or the District of Columbia.
award costs of litigation (including reasonable attorney (e) Nothing in this title shall be deemed to affect in
and expert witness fees) to any party, whenever the court anv manner or to any extent any provision of the Fish
determines such award is appropriate. and Wildlife Coordination Act as amended (16 U.S.C.
(5) The injunctive relief provided by this subsection 661-666c).
shall not restrict any right which any person (or class of (f) In addition to other provisions of law and not-
persons) ma@ have under any statute or common law to withstanding the specific exclusion relating to dredged
seek enforcement of any standard or limitation or to seek material in the first sentence in section 102(a) of
any other relief (including relief against the Administra- this Act, the dumping of dredged material in Long
tor, the Secretary, or a State agency). Island Sound from any Federal project (or pursuant
(h) No person shall be subject to a civil penalty or to to Federal authorization) or from a dredging project
a criminal fine or imprisonment for dumping materials by a non-Federal applicant exceeding 25,000 cubic yards
from a vessel if such materials are dumped in an emer- shall comply with the criteria established pursuant to
gency to safeguard life at sea. Any such emergency dump- the second sentence of section 102(a) of the Act
ing shall be reported to the Administrator under such relating to the effects of dumping. Subsection (d)
conditions as he may prescribe. of this section shall not apply to this subsection.
(106(f) added by PL 96-5721
Relationship to Other Laws (g) Savings Clause. - Nothing in this Act shall
Sec. 106. (a) After the effective date of this title, all Ii- restrict, a'ffect or modify the rights of any person (I) to
censes, permits, and authorizations other than those seek damages or enforcement of any standard or limita-
issued pursuant to this title shall be void and of no legal tion under State law, including State common law, or
effect, to the extent that they purport to authorize any (2) to seek damages under other Federal law, including
activity regulated by this title, and whether issued before maritime tort law, resulting from noncompliance with
or after the effective date of this title. any requirement of this Act or any permit under this
(b) The provisions of subsection (a) shall not apply to Act. 106(g) added by PL 99-4991
actions taken before the effective date of this title under
the authority of the Rivers and Harbors Act of 1899 (30 Enforcement
Star. I IS I), as amended (33 U.S.C. 401 et seq.). Sec. 107. (a) The Administrator or the Secretary as
(c) Prior to issuing any permit under this' title, if it the case may be, may, whenever appropriate, utilize by
appears to the Administrator that the disposition of mate- agreement, the personnel, services and facilities of other
rial, other than dredged material, may adversely affect Federal departments, agencies, and instrumentalities, or
navigation in the territorial sea of the United States, or in State agencies or instrumentalities,.. whether on a reim-

is
Environmem Rooorw

Mao

MARINE PROTECTION ACT S-826
71:6015

bursable or a nonreimbursable basis, in carrying out his [I I I amended by PL 96-572; PL 97-16; revised by PL
responsibilities under this title. 100-536]
(b) The Administrator or the Secretary may delegate
responsibility and authority for reviewing and evaluating Sec. 112. The Administrator shall on or before Febru-
permit applications, including the decision as to whether a ary I of each year report to the Congress on the
permit will be issued,- to an officer of his agency, or he administration of this title during the preceding fiscal
may delegate, by agreement, such responsibility and au- year, including recommendations for additional legisla-
thority to the heads of other Federal departments or tion if deemed necessary.
agencies, whether on a reimbursable or nonreimbursable 112 revised by PL 96-470)
basis.
(c) The Secretary of the department in which the
Coast Guard is operating shall conduct surveillance and
other appropriate enforcement activity to prevent unlaw- TITLE 11 - COMPREHENSIVE RESEARCH
ful transportation of material for dumping, or unlawful ON OCEAN DUMPING
dumping. Such enforcement activity shall include, but no!
be limited to, enforcement of regulations issued by him Sec. 201. The Secretary of Commerce, in coordination
pursuant to section 108, relating to safe transportation, with the Secretary of the Department in which the Coast
handling, carriage, storage, and stowage. The Secretary of Guard is operating and with the Administrator shall, with-
the department in which the Coast Guard is operating in six months of the enactment of this Act [October 23,
shall supply to the Administrator and to the Attorney 19721, initiate a comprehensive and continuing program
General, as appropriate, such information of enforcement of monitoring and research regarding the effects of the
activities and such evidentiary material assembled as they dumping of material into ocean waters or other coastal
may require in carrying out their duties relative to penal- waters where the tide ebbs and flows or into the Great
ty assessments, criminal prosecutions, or other actions in- Lakes or their connecting waters.
volving litigation pursuant to the provisions of this title. [201 amended by PL 99-2721
Regulations Sec. 202. (a)(1) The Secretary of Commerce, in close
consultation with other appropriate Federal depart-
Sec. 108. In carrying out the responsibilities and au- ments, agencies, and instrumentalities shall, within six
thority conferred by this title, the Administrator, the Set; months of the enactment of this Act, initiate a compre-
etary, and the Secretary of the department in which the hensive and continuing program of research with respect
Coast Guard is operating are authorized to issue such reg- to the possible long-range effects of pollution, overfish-
ul.tions as they may deem appropriate. ing, and man-induced changes of ocean ecosystems.
International Cooperation These responsibilities shall include the scientific assess-
Sec. 109. The Secretary of State, in consultation with ment of damages to the natural resources from spills of
the Administrator, shall seek effective international action petroleum or petroleum products. In carrying out such
and cooperation to insure protection of the marine en- research, the Secretary of Commerce shall take into
vironment, and may, for this purpose, formulate, present, account such factors as existing and proposed interna-
or support specific proposals in the United Nations and tional "policies affecting oceanic problems, economic con-
other competent international organizations for the devel- siderations involved in both the protection and the use of
opment of appropriate international rules and regulations the oceans, possible alternatives to existing programs,
in support of the policy of this Act. and ways in which the health of the oceans may best be
preser .ved for the benefit of succeeding generations of
Effective Date and Savings Provisions mankind.
See. 110. (a) This title shall take effect six months [202(a) amended by PL 96-381; (a)(1) designated and
after the date of the enactment of this Act. amended by PL 99-272]
(b) No legal action begun, or right of action accrued, (2) The Secretary of Commerce shall ensure that the
prior to the effective date of this title shall be affected by program under this section complements, when appropri-
any provision of this title. ate, the activities undertaken by other Federal agencies
pursuant to title I and section 203. That program shall
include but not be limited to -
Authorization of Appropriations (A) the development and assessment of scientific tech-
Sec. 111. There are authorized to be appropriated for niques to define and quantify. the degradation of the
purposes of carrying out this title, not to exceed marine environment;
S 12,000,000 for each of fiscal years 1989, 1990, and (B) the assessment of the capacity of the marine
1991. environment to receive materials without degradation'.

1-27-89 PuMWrwd by THE BUREAU OF NATIONAL AFFAIRS. INC.. WaS11019 . D-C- 20037 43

71:6016 FEDERAL LAWS

(C) continuing monitoring programs to assess the may unreasonably degrade or endanger human health,
health of the marine environment, including but not welfare, or amenities, or the marine environment,
limited to the monitoring of bottom oxygen concentra- ecological systems, or economic potentialities, and
tions, contaminant levels in biota, sediments, and the (B) developing disposal methods as alternatives
water column, diseases in fish and shellfish, and changes to the dumping described in subparagraph (A); and
in types and abundance of indicator species; (2) encourage, cooperate with. promote the coordina-
(D) the development 6f methodologies, techniques, tion of, and render financial and other assistance to
and equipment for disposal of wastp materials to mini- appropriate public authorities, agencies, and institutions
mize degradation of the marine environment. (whether Federal, State, interstate, or local) and
[202(a)(2) added by PL 99-2721 appropriate private agencies, institutions, and individuals
(b) In carrying out his responsibilities under this in the conduct of research and other activities described
section, the Secretary of Commerce, under the foreign in paragraph (1).
policy guidance of the President and pursuant to inter- (b). Nothing in this section shall be construed to
national agreements and treaties made by the President affect in any way the December 31, 1981, termination
with the advice and consent of the Senate, may act alone date, established in section 4 of the Act of November 4,
or in conjunction with any other nation or group of 1977 (Public Law 95-153; 33 U.S.C. 1412a) for
nations, and shall make known the results of his activities the ocean dumping of sewage sludge.
by such channels of corrununication as may appear appro- [203 revised by PL 96-3811
priate. (c) The Administrator, in cooperation with the Secre-
(c) Each department, agency, and independent instru- tary. the Secretary of Commerce, and other officials of
mentality of the Federal Government is authorized and appropriate Federal, State, and local agencies, shall
directed to cooperate with the Secretary of Commerce in assess the feasibility in coastal areas of regional manage-
carrying out the purposes of this section and, to the ex- ment plans for the disposal of waste materials. Such
tent permitted by law, to furnish such information as plans should integrate where appropriate Federal, State,
may be requested. regional. and local waste disposal activities into a com-
[Former 202(c) as amended by PL 96-470 was deleted prehensive regional disposal strategy. These plans should
and former subsections (d) and (e) were redesignated as address, among other things -
(c) and (d), respectively, by PL 99-272] (1) the sources, quantities, and types of materials that
(d) The Secretary of Commerce, in carrying out his require and will require disposal;
responsibilities under this section, shall, to the extent (2) the environmental, economic, social, and human
feasible utilize the personnel, services, and facilities of health factors (and the methods used to assess these
other Federal departments. agencies, and instrumentalities factors) associated with disposal alternatives;
(including those of the Coast Guard for monitoring pur. (3) the improvements in production processes, meth-
poses), and is authorized to enter into appropriate inter- ods of disposal, and recycling to reduce the adverse
agency agreements to accomplish this action. effects associated with such disposal alternatives;
(3) The Secretary of Commerce shall ensure that the (4) the applicable laws and regulations governing
comprehensive and continuing research program con- waste disposal; and
ducted under this subsection is consistent with the com- (5) improvements in permitting processes to reduce
prehensive plan for ocean pollution research and devel- administrative burdens.
opment and monitoring prepared under section 4 of the [203(c) added by PL 99-2721
National Ocean Pollution Planning Act of 1978 (33 (d) The Administrator. in cooperation with the Secre-
U.S.C. 1703). tary of Co.mmerce, shall submit to the Congress and the
[202(a)(3) added by PL 100-627] President, not later than one year after the date of
See. 203. (a) The Administrator of the Environ- enactment of this provision, a report on sewage sludge
mental Protection Agency shall- disposal in the New York City metropolitan region. The
(1) conduct research. investigations, experiments, report shall -
training, demonstrations, surveys, and studies for the (1) consider the factors listed in subsection (c) as they
purpose of- relate to landfilling. incineration, ocean dumping, or any
(A) determining means of minimizing. or ending, other feasible disposal or reuse/recycling option;
as soon as possible after the date of the enactment of (2) include an assessment of the cost of these alterna-
this section. the dumping into ocean waters, or tives; and
waters described in section 101(b), of material which (3) recommend such regulatory.or legislative changes

Environmem Reporter

S-826
MARINE PROTECTION ACT 71:6017
as may be necessary to reduce the adverse impacts exceed S14,500,000 for fiscal year 1990.
associated with sewage sludge disposal. (204 amended by PL 96-38 1; amended and redesignated
[203(d) added by PL 99-2721 as 205 by PL 99-272; amended by PL 100-627]
Annual Report
TITLE III - NATIONAL MARINE SANCTUARIES
Sec. 204. (a) In March of each year, the Secretary of
Commerce shall report to the Congress on his activities [Title III revised by PL 984981
under this title during the previous fiscal year. The Sec. 301. Findings, Purposes, and Policies.
report shall include - (a) Findings. - The Congress finds that -
(1) the Secretary's findings made under section 201, (1) this Nation historically has recognized the impor-
including an evaluation of the short-term ecological tance of protecting special areas of its public domain,
effects and the social and economic factors involved with but these efforts have been directed almost exclusively to
the dumping; land areas above the high-water mark;
(2) the results of activities undertaken pursuant to (2) certain areas of the marine environment possess
section 202; conservation, recreational, ecological, historical, re-
(3) with the concurrence of the Administrator and search, educational, or esthetic qualities which give them
after consulting with officials of other appropriate Fed- special national significance;
eral agencies, an identification of the short and long- (3) while the need to control the effects of particular
term research requirements associated with activities activities has led to enactment of resource-specific legis-
under title 1, and a description of how Federal research lation, these laws cannot in all cases provide a coordinat-
under titles I and 11 will meet those requirements; and ed and comprehensive approach to the conservation and
(4) activities of the Department of Commerce under management of special areas of the marine environment;
section 5 of the Act of March 10, 1934 (48 Stat. 401; 16 (4) a Federal program which identifies special areas
U.S.C. 665). of the marine environment will contribute positively to
(b) In March of each year, the Administrator shall marine resources conservation and management; and
report to the Congress on his activities during the pre- (5) such a Federal program will also serve to enhance
vious fiscal year under section 203. public awareness, understanding, appreciation, and wise
[205 added by PL 96-572; revised and redesignated as use of the marine environment.
204 by PL 99-272] (b) Purposes and Policies. - The purposes and poli-
(c) On October 31 of each year, the Under Secretary cies of this title are -
shall report to the Congress the specific programs that (1) to identify areas of the marine environment of
the National Oceanic and Atmospheric Administration special national significance due to their resource or
and the Environmental Protection Agency carried out human-use values;
pursuant to this title in the previous fiscal year, specifi- (2) to provide authority for comprehensive and coordi-
cally listing the amount of funds allocated to those nated conservation and management of these marine
specific programs in the previous fiscal year. areas that will complement existing regulatory
[204(c) added by PL 100-627] authorities;
(3) to support, promote, and coordinate scientific
Sec. 205. There are authorized to be appropriated for research on, and monitoring of, the resources of these
the rint f=al year after this Act is enacted and for the marine areas,
next two rucal yew thereafter such sunn as may be (4) to enhance public awareness, understanding, ap-
nece&%ary to carry out this title, but the mm appro* preciation, and wise use of the marine environment; and
priated for any such 'fiscal year may not exceed (5) to facilitate, to the extent compatible with the
$6,000,000. 1here we authorized to be appropnated not primary objective of resource protection, all public and
to exceed $1,500,000 for the transition period (July I private uses of the resources of these marine areas not
through September 30, 1976). not to exceed S5,6M.000 prohibited pursuant to other authorities.
for rLwal yur 1977, not to excead S6.5WOOO for
fiscal yeu 1978, not to exceed $11.3%,000 for rSCW Sec. 302. Definitions.
year 1981, not to exceed $12,000,000' for fiscal Year
1982, not to exceed S10,635,000 for fiscal year 1986, As used in this title, the term -
not to exceed S 11, 114,000 for fiscal year 1987, not to (1) "Draft management plan"means the plan described
exceed S 13,500,000 for fiscal year 1989, and not to in section 304(a)(1)(E);

1-27-89 Pubiisned by THE BUREAU OF NATIONAL AFFAIRS. INC., Washington, O.C. 2=7 45

71:6018 FEDERAL LAWS

(2) "Magnuson Act" means the Magnuson Fishery (1) determines that the designation will fulfill the
Conservation and Management Act (16 U.S.C. ISOI et purposes and policies of this title; and
seq.); - (2) finds that-
(3) "marine environment" means those areas of coastal (A) the area is of special national significance due to
and ocean waters, the Great Lakes and their connecting its resource or human-use values;
waters, and submerged lands over which the United (B) existing State and Federal authorities are inad-
States exercises jurisdiction, consistent with internation- equate to ensure coordinated and comprehensive conser-
al law-. vation and management of the area, including resource
(4) "Secretary" means the Secretary of Commerce; protection, scientific research, and public education;
[302(4) and (5) amended by PL 100-627] (C) designation of the area as a national marine
(5) "State" means each of the several States, the sanctuary will facilitate the objectives in subparagraph
District of Columbia, the Commonwealth of Puerto (B); and
Rico, the Commonwealth of the Northern Mariana (D) the area is of a size and nature that will permit
Islands, American Samoa, the Virgin Islands, Guam, comprehensive and coordinated conservation and
and any other commonwealth, territory, or possession of management.
the United States; and (b) Factors and Consultations Required in Making
(6) "damages" includes- Determinations and Findings.-
(A) compensation for- (1) Factors.-For purposes of determining if an area
(i)(1) the coast of replacing, restoring, or acquiring of the marine environment meets the standards set forth
the equivalent of a sanctuary resource. and in subsection (a), the Secretary shall consider-
(11) the value of the lost use of a sanctuary resource (A) the area's natural resource and ecological quali-
pending its restoration or replacement or the acquisition ties, including its contribution to biological productivity,
of an equivalent sanctuary resource; or maintenance of ecosystem structure, maintenance of
Oi) the value of a sanctuary resource if the sanctuary ecologically or commercially important or threatened
resource cannot be restored or replaced or if the equiv- species or species assemblages, and the biogeographic
alent of sL6;h resource cannot be acquired, and representation of the site;
(B) the cost of damage assessments under section (B) the area's historical, cultural, archaeological, or
312(b)(2),. paleontological significance;
[302(6)-(8) added by PL 100-6271 (C) the present and potential uses of the area that
(7) "response costs" means the costs of actions taken depend on maintenance of the area's resources, including
by the Secretary to minimize destruction or loss of, or commercial and recreational fishing, subsistence uses,
injury to, sanctuary resources, or to minimize the immi- other commercial and recreational activities, and re-
nent risks of such destruction, loss, or injury; and search and education;
(8) "sanctuary resource" means any living or nonliv- (D) the present and potential activities that may
ing resource of a national marine sanctuary that contrib- adversely affect the factors identified in subparagraphs
utes to the conservation, recreational, ecological, histori- (A), (B), (C);
cal, research, educational, or aesthetic value of the (E) the existing State and Federal regulatory and
sanctuary. management authorities applicable to the area and the
[Editor's note: Subsection (c) of Section 204 of PL adequacy of those authorities to fulfill the purposes and
100-627 provides: policies of this title;
-(c) Effective Date. - Amounts in the form of dam- (F) the manageability of the area, including such
ages received by the United'States after November 30, factors as its size, its ability to be identified as a discrete
1986, for destruction or loss of, or injury to, a sanctuary ecological unit with definable boundaries, its accessibil-
resource (as that term is defined in section 302(8) of the ity, and its suitability for monitoring and enforcement
Act (as amended by this Act)) shall be subject to section activities;
312 of the Act (as amended by this Act.)"] (G) the public benefits to be derived from sanctuary
status, with emphasis on the benefits of long-term pro-
Sec. 303. Sanctuary Designation Standards. tection of nationally significant resources, vital habitats,
(a) Standards.-The Semtary may designate any and resources which generate tourism;
discrete area of the marine environment as a national (H) the negative impacts produced by management
marine sanctuary and promulgate regulations imple- restrictions on income-generating activities such as living
menting the designation if the Secretary- and nonliving resources development; and

Ermmmem R"aw 46

S-826
MARINE PROTECTION ACT 71:6019

(1) the socioeconomic effects of sanctuary designation. (ii) the basis of the findings made under section
(2) Consultation.-In making determinations and 303(a) with respect to the area;
findings, the Secretary shall consult with- (iii) an assessment of the considerations under section
(A) the Committee on Merchant Marine and Fisher- 303(b)(1);
ies of the House of Representatives and the Committee (iv) proposed mechanisms to coordinate existing regu-
on Commerce, Science, and Transportation of the latory and management authorities within the area,
Senate; (v) the draft management plan detailing the proposed
(B) the Secretaries of State, Defense, Transportation, goals and objectives, management responsibilities, re-
and the Interior, the Administrator, and the heads of source studies, interpretive and educational programs,
other interested Federal agencies; and enforcement, including surveillance activities for the
(C) the responsible officials or relevant agency heads area;
of the appropriate State and local government entities, (vi) an estimate of the annual cost of the proposed
including coastal zone management agencies, that will or designation, including costs of personnel, equipment and
are likely to be affected by the establishment of the area facilities, enforcement, research, and public education;
as a national marine sanctuary; (vii) the draft environmental impact statement;
(D) the appropriate officials of any Regional Fishery (viii) an evaluation of the advantages of cooperative
Management Council established by section 302 of the State and Federal management if all or part of a
Magnuson Act (16 U.S.C. 1852) that may be affected proposed marine sanctuary is within the territorial limits
by the proposed designation; and of any State or is superjacent to the subsoil and seabed
(E) other interested persons. within the seaward boundary of a State, as that bound-
(3) Resource Assessment Report.-In making deter- ary is established under the Submerged Lands Act (43
minations and findings, the Secretary shall draft, as part U.S.C. 1301 et seq.); and
of the environmental impact statement referred to in (ix) the proposed regulations referred to in subpara-
section 304(a)(1), a resource assessment report docu- graph (A).
menting present and potential uses of the area, including [Editor's note.- Section 205(b) of PL 100-627
commercial and recreational fishing, research and edu- provides:
cation, minerals and energy development, subsistence "(b) Submission of Prospectuses.-The Secretary of
uses, and other commercial or recreational uses. The Commerce shall submit a prospectus under section
Secretary, in consultation with the Secretary of the 304(a)(1)(C) and (a)(5) of the Act (16 U.S.C.
Interior, shall draft a resource assessment section for the 1434(a)(1)(C) and (a)(5)) to the Committee on Mer-
report regarding any commercial or recreational re- chant Marine and Fisheries of the House of Representa-
source uses in the area under consideration that are tives and to the Committee on Commerce, Science, and
subject to the primary jurisdiction of the Department of Transportation of the Senate-
the Interior. (1) with respect to the Stellwagen Bank National
Sec. 304. Procedures for Designation and Marine Sanctuary, as generally described in the Federal
Implementation. Register notice of August 4, 1983, not later than Sep-
(a) Sanctuary Proposal.- tember 30, 1990; and
(1) Notice.-In proposing to designate a national (2) with respect to the Northern Puget Sound Nation-
marine sanctuary, the Secretary shall- al Marine Sanctuary, as generally described as the
(A) issue, in the Federal Register, a notice of the Washington State Nearshore area in the Federal Regis-
proposal, proposed regulations that may be necessary ter notice of August 4, 1983, not later than March 3 1.
and reasonable to implement the proposal, and a sum- 1991."]
mary of the draft management plan; (2) Environmental Impact Statement.-The Secre-
(B) provide notice of the proposal in newspapers of tary shall-
general circulation or electronic media in the communi- (A) prepare a draft environmental impact statement.
ties that may be affected by the proposal; and as provided by the National Environmental Policy Act of
(C) on the same day the notice required by subpara- 1969 (42 U.S.C. 4321 et seq.), on the proposal that
graph (A) is issued, the Secretary shall submit to the includes the resource assessment report required under
Committee on Merchant Marine and Fisheries of the section 303(b)(3), maps depicting the boundaries of the
House of Representatives and the Committee on Com- proposed designated area, and the existing and potential
merce, Science, and Transportation of the Senate a uses and resources of the area; and
prospectus on the proposal which shall contain- (B) make copies of the draft environmental impact
(i) the terms of the proposed designation; statement available to the public.

1-27-89 put)lishod by THE BUREAU OF NATIONAL AFFAIRS. INC.. W&Sh8nQt0n, D.C. 20037

71:6020 FEDERAL LAWS

(3) Public Hearing.-No sooner than thirty days after (b) Taking Effect of Designations. -
issuing a notice under this subsection, the Secretary shall (1) Notice. - In designating a national marine sanc-
hold at least one public hearing in the coastal area or tuary, the Secretary shall publish in the Federal Register
areas that will be most affected by the proposed designa- notice of the designation together with final regulations
tion of the area as a national marine sanctuary for the to implement the designation and any other matters
purpose of receiving the views of interested parties. required by law, and submit such notice to the Congress.
(4) Terms of Designation. - The terms of designation The Secretary shall advise the public of the availability
of a sanctuary shall include the geographic area pro- of the final management plan and the final environmen-
posed to be included within the sanctuary, the character- tal impact statement with respect to such sanctuary. The
istics of the area that give it conservation, recreational, Secretary shall issue a notice of designation with respect
ecological, historical, research, educational, or esthetic to a proposed national marine sanctuary site not later
value, and the types of activities that will be subject to than 30 months after the date a notice declaring the site
regulation by the Secretary to protect those characteris- to be an active candidate for sanctuary designation is
tics. The terms of designation may be modified only by published in the Federal Register under regulations
the same procedures by which the original designation is issued under this Act, or shall publish not later than
made. such date in the Federal Register findings regarding why
(5) Fishing Regulations. - The Secretary shall pro- such notice has not been published. No notice of designa-
vide the appropriate Regional Fishery Management tion may occur until the expiration of the period for
Council with the opportunity to prepare draft regula- Committee action under subsection (a)(6). The designa-
tions for fishing within the United States Fishery Con- tion (and any of its terms not disapproved under this
servation Zone as the Council may deem necessary to subsection) and regulations shall take effect and become
implement the proposed designation. Draft regulations final after the close of a review period of forty-five days
prepared by the Council, or a Council determination of continuous session of Congress beginning on the day
that regulations are not necessary pursuant to this para- on which such notice is published unless -
graph, shall be accepted and issued as proposed regula- [304(b)(1) amended by PL 100-6271
tions by the Secretary unless the Secretary finds that the (A) the designation or any of its terms is disapproved
Council's action fails to fulfill the purposes-and policies by enactment of a joint resolution of disapproval de-
of this title and the goals and objectives of the proposed scribed in paragraph (3); or
designation. In preparing the draft regulations, a Re- (B) in the case of a natural marine sanctuary that is
gional Fishery Management Council shall use as guid- located partially or entirely within the seaward boundary
ance the national standards of section 301(a) of the of any State, the Governor affected certifies to the
Magnuson Act (16 U.S.C. 1851) to the extent that the Secretary that the designation or any of its terms is
standar.ds are consistent and compatible with the goals unacceptable, in which case the designation or the unac-
and objectives of the proposed designation. The Secre- ceptable term shall not take effect in the area of the
tary shall prepare the fishing regulations, if the Council sanctuary lying within the seaward boundary of the
declines to make a determination with respect to the State.
need for regulations, makes a determination which is
rejected by the Secretary, or fails to prepare the draft (Editor's note.- Section 205(a) of PL 100-627 states:
regulations in a timely manner. Any amendments to the -(a) Issuance of Notice of Designation.-The Secre-
fishing regulations shall be drafted, approved, and issued tary of Commerce shall issue a notice of designation
in the same manner as the original regulations. under section 304(b)(1) of the Act (16 U.S.C.
(6) Committee Action. - After receiving the prospec- 1434(b)(1))-
tus under subsection (a)(1)(C), the Committee on Mer- (1) with respect to the proposed Cordell Banks Na-
chant Marine and Fisheries of the House of Representa- tional Marine Sanctuary as generally described in the
tives and the Committee on Commerce, Science, and Federal Register notice of June 30, 1983, not later than
Transportation of the Senate may each hold hearings on December 31, 1988;
the proposed designation and on the matters set forth in
the prospectus. If within the forty-five day period of (2) with respect to the Flower Garden Banks National
continuous session of Congress beginning on the date of Marine Sanctuary as generally described in the Federal
submission of the prospectus, either Committee issues a Register notice of August 2, 1984, not later than March
report concerning matters addressed in the-prospectus, 31, 1989; y National Ma-
the Secretary shall consider this report before publishing (3) with respect to the Monterey Ba
a notice to designate the national marine sanctuary. rine Sanctuary as generally described in the Federal

Environnwnt A* rter 48

S-826
MARINE PROTECTION ACT 71:6021

Register notice of December 31, 1979, not later than the motion shall not be in order, and it shall not be in
December 31. 1989; and order to move to reconsider the vote by which the motion
(4) with respect to the Western Washington Outer was agreed to or disagreed to.
Coast National Marine Sanctuary as generally described (C) This subsection is enacted by Congress as an
in the Federal Register notice of August 4, 1983, not exercise of the rulemaking power of each House of
later than June 30. 1990."1 Congress, respectively, and as such is deemed a part of
the rules of each House, respectively, but applicable only
(2) Withdrawal of Designation. - If the Secretary with respect to the procedure to be followed in the case
considers that actions taken under paragraph (1)(A) or of resolutions described in this subsection. This subsec-
(B) will a .ffect the designation of a national marin( tion supersedes other rules only to the extent that they
sanctuary in a manner that the goals and objectives of are inconsistent therewith, and is enacted with full rec-
the sanctuary cannot be fulfilled, the Secretary may ognition of the constitutional right of either House to
withdraw the entire designation. If the Secretary does change the rules (so far' as those relate to the procedure
not withdraw the designation, only those terms of the of that House) at any time, in the same manner, and to
designation not disapproved under paragraph (1)(A) or the same extent as in the case of any other rule of such
not certified under paragraph (1)(B) shall take effect. House.
(3) Resolution of Disapproval. - For the purposes of (c) Access and Valid Rights. -
this subsection, the term 'resolution of disapproval' (1) Nothing in this title shall be construed as termi-
means a joint resolution which states after the resolving nating or granting to the Secretary the right to termi-
clause the following: "That the Congress disapproves the nate any valid lease. permit, license, or right of subsis-
national marine sanctuary designation entitled tence use or of access if the lease, permit, license, or
that was submitted to Congress by the Secre- right -
tary of Commerce on the first blank (A) was in existence on the date of enactment of the
space being filled with the title of the designation and Marine Sanctuaries Amendments of 1984, with respect
the second blank space being filled with the date on to any national marine sanctuary designated before that
which the notice was submitted to Congress. In the event date; or
that the disapproval is addressed to one or more terms of (B) is in existence on the date of designation of any
the designation, the joint resolution shall state after the national marine sanctuary, with respect to any national
resolving clause the following: "That the Congress ap- marine sanctuary designated after the date of enactment
proves the national marine sanctuary designation enti- of the Marine Sanctuaries Amendments of 1984.
tled that was submitted to Congress by the (2) The exercise of a lease, permit, license, or right is
Secretary of Commerce on but disapproves subject to regulation by the Secretary consistent with the
the following terms of such designation: purposes for which the sanctuary is designated.
the first blank space being filled with Sec. 305. Application of Regulations and International
the title of the designation, the second blank space being Negotiations.
filled with the date on which the notice was submitted to (a) Regulations. - The regulations issued under sec-
Congress, and the third blank space referencing each tion 304 shall be applied in accordance with generally
term of the designation which is disapproved. recognized principles of international law, and in accord-
(4) Procedures. - ance with the treaties, conventions, and other agree-
(A) In computing the forty-five-day periods of con- ments to which the United States is a party. No regula-
tinuous session of Congress pursuant to subsection tion shall apply to a person who is not a citizen, national,
(a)(6) and paragraph (1) of this subsection - or resident alien of the United States, unless in accord-
(i) continuity of session is broken only by an adjourn- ance with-
ment of Congress sine die; and (1) generally recognized principles of international
(ii) the days on which either House of Congress is not law;
in session because of an adjournment of more than three (2) an agreement between the United States and the
days to a day certain are excluded. foreign state of which the person- is a citizen; or
(B) When the committee to which a joint resolution (3) an agreement between the United States and the
has been referred has reported such a resolution, it shall flag state of a foreign vessel, if the person is a crew-
at any time thereafter be in order to move to proceed to member of the vessel.
the consideration of the resolution. The motion shall be (b) Negotiations. - The Secretary of State, in consul-
privileged and shall not be debatable. An amendment to tation with the Secretary, shall take appropriate action

49
1-27-89 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. wasmington, D.C. 20037

71:6022 FEDERAL LAWS

to enter into negotiations with other governments to Attorney General, who shall recover the amount as-
make necessary arrangements for the protection of any sessed in any appropriate district court of the United
national marine sanctuary and to promote the purposes States. In such action, the validity and appropriateness
for which the sanctuary is established. of the final order imposing the civil penalty shall not be
subject to review.
Sec. 306. Research and Education. (6) Compromise or Other Action by Secretary.-The
The Secretary shall conduct research and educational Secretary may compromise, modify, or remit, with or
programs as are necessary and reasonable to carry out without conditions, any civil penalty which is or may be
the purposes and policies of this title. imposed under this section.
[307 revised by PL 100-627] (d) Forfeiture.-
(a) In General.-The Secretary shall conduct such (1) In General.-Any vessel (including the vessel's
enforcement activities as are necessary and reasonable to equipment, stores, and cargo) and other item used, and
carry out this title. any sanctuary resource taken or retained, in any man-
(b) Powers of Authorized Officers.-Any person -who ner, in connection with or as a result of any violation of
this title or of any regulation or permit issued under this
is authorized to enforce this title may- title shall be subject to forfeiture to the United States
(I) board, search, inspect, and seize any vessel sus- pursuant to a civil proceeding under this subsection.
pected of being used to violate this title or any regulation
or permit issued under this title and any equipment, (2) Application of the Customs Laws.-The Secretary
stores, and cargo of such vessel; may exercise the authority of any United States official
(2) seize wherever found any sanctuary resource taken granted by any relevant customs law relating to the
or retained in violation of this title or any regulation or seizure, forfeiture, condemnation, disposition, remission,
permit issued under this title; and mitigation of property in enforcing this title.
(3) seize any evidence of a violation of this title or of (3) Disposal of Sanctuary Resources.-Any sanctuary
any regulation or permit issued under this title; resource seized pursuant to this title may be disposed of
(4) execute any warrant or other process issued by any pursuant to an order of the appropriate court, or, if
court of competent jurisdiction; and perishable, in a manner prescribed by regulations pro-
(5) exercise any other lawful authority. mulgated by the Secretary. Any proceeds from the sale
(c) Civil Penalties.- of such sanctuary resource shall for all purposes repre-
( 1) Civil penalty.-Any person subject to the jurisdic- sent the sanctuary resource so disposed of in any subse-
tion of the United States who violates this title or any quent legal proceedings.
regulation or permit issued under this title shall be liable (4) Presumption.- For the purposes of this section
to the United States for a civil penalty of not more than there is a rebuttable presumption that all sanctuary
$50,000 for each such violation, to be assessed by the resources found on board a vessel that is used or seized
Secretary. Each day of a continuing violation shall in connection with a violation of this title or of any
constitute a separate violation. regulation or permit issued under this title were taken or
(2) Notice.-No penalty shall be assessed under this retained in violation of this title or of a regulation or
subsection until after the person charged has been given permit issued under this title.
notice and an opportunity for a hearing. (e) Payment of Storage, Care, and Other Costs.-
(3) In Rem Jurisdiction.-A vessel used in violating (1) In General.-Notwithstanding any other law, the
this title or any regulation or permit issued under this Secretary may use amounts received under this section
title shall be liable in rem for any civil penalty assessed in the form of civil penalties, forfeitures of property, and
for such violation and may be proceeded against in any costs imposed under paragraph (2) to pay-
district court of thi United States having jurisdiction. (A) the reasonable and necessary costs incurred by
(4) Review of Civil Penalty.-Any person against the Secretary in providing temporary storage, care, and
whom a civil penalty is assessed under this subsection maintenance of any sanctuary resource or other property
may obtain review in the United States district court for seized under this section pending disposition of any civil
the appropriate district by filing a complaint in such proceeding relating to any alleged violation with respect
court not later than 30 days after the date of such order. to which such property or sanctuary resource was seized;
(5) Collection of Penalties.-If any person fails to pay and information
an assessment of a civil penalty under this section after it (B) a reward to any person who furnishes
has become a final and unappealable order, or after the leading to an assessment of a civil penalty, or to a
appropriate court has entered final judgment in favor of forfeiture of property, for a violation of this title or of
the Secretary, the Secretary shall refer the matter to the any regulation or permit issued under this title.

Environment Reporter so

S-826
MARINE PROTECTION ACT 71:6023

(2) Liability for Costs.-Any person assessed a civil (1) requiring that the National Oceanic and Atmo-
penalty for a violation of this title or of any regulation or spheric Administration, in conducting or supporting ma-
permit issued under this title, and any claimant in a rine research. give priority to re5earch involving national
forfeiture action brought for such a violation, shall be marine sanctuaries; and
liable for the reasonable costs incurred by the Secretary (2) consulting with other Federal and State agencies
in storage, care, and- maintenance of any sanctuary to promote use by such agencies of one or more sanctuar-
resource or other property seized in connection with the ies for marine research.
violation. Sec. 310. Special Use Permits.
(f) Subpoenas.-In the case of any hearing under this
section which is determined on the record in accordance [3 10 added by PL 100-6271
with the procedures provided for under section 554 of (a) Issuance of Permits.-The Secretary may issue
title 5, United States Code, the Secretary may issue special use permits which authorize the conduct of spe-
subpoenas for the attendance and testimony of witnesses cific activities in a national marine sanctuary if the
and the production of relevant papers, books, and docu- secretary determines such authorization is necessary-
ments, and may administer oaths. (1) to establish conditions of access to and use of any
(g) Use of Resources of State and Other Federal sanctuary resource; or
Agencies.-The Secretary shall, whenever appropriate, (2) to promote public use and understanding of a
use by agreement the personnel, services, and facilities of sanctuary resource,
State and other Federal departments, agencies, and (b) Permit Terms.-A permit issued under this sec-
instrumentalities, on a reimbursable or nonreimbursable tion-
basis, to carry out the Secretary's responsibilities under (1) shall authorize the conduct of an activity only if
this section. that activity is compatible with the purposes for which
(h) Coast Guard Authority Not Limited.-Nothing in the sanctuary is designated and with protection of sanc-
this section shall be considered to limit the authority of tuary resources,
the Coast Guard to enforce this or any other Federal law (2) shall not authorize the conduct of any activity for
under section 89 of title 14, United States Code. a period of more than 5 years unless renewed by the
(i) Injunctive Relief.-If the Secretary determines Secretary;
that there is an imminent risk of destruction or loss of or (3) shall require that activities carried out under the
injury to a sanctuary resource, or that there has been permit be conducted in a manner that does not destroy,
actual destruction or loss of, or injury to, a sanctuary cause the loss of, or injure sanctuary resources; and
resource which may give rise to liability under section (4) shall require the permittee to purchase and main-
312, the Attorney General, upon request of the Secre- tain comprehensive general liability insurance against
tary, shall seek to obtain such relief as may be necessary claims arising out of activities conducted under the
to abate such risk or actual destruction, loss, or injury, or permit and to agree to hold the United States harmless
to restore or replace the sanctuary resource, or both. The against such claims.
district courts of the United States shall have jurisdic- (c) Fees.-
tion in such a case to order such relief as the public (1) Assessment and Collection.-The Secretary may.
interest and the equities of the case may require. assess and collect fees for the conduct of any activity
Sec. 308 [Repealed by PL 100-6271 under a permit issued under this section.
(2) Amount.-The amount of a fee under this subsec-
See. 308. Severability. tion shall be equal to the sum of-
If any provision of this Act or the application thereof (A) costs incurred, or expected to be incurred, by the
to any person or circumstances is held invalid, the Secretary in issuing the permit; be i'ncurred, by the
validity of the remainder of this Act and of the applica- (B) costs incurred, or expected to nduct of the activity
tion of such provision to other persons and circumstances Secretary as a direct result of the co
shall not be affected thereby. for which the permit is issued, including costs of moni-
toring the conduct of the activity; and
[Former 309 redesignated as 308 by PL 100-6271 (C) an amount which represents the fair market value
Sec. 309. Promotion And Coordination of Rmarch of the use of the sanctuary resource and a reasonable
[New 309 added by PL 100-6271 return to the United States Government.
The Secretary shall take such action as is necessary to (3) Use of Fees.-Amounts collected by the Secretary
promote and coordinate the use of national marine in the form of fees under this section may be used by the
sanctuaries for research purposes including- Secretary-

1-27419 Pubh3hed Dy THE BUREAU OF NATIONAL AFFAIRS. INC.. WS1h1n9W. D.C. 20037

71:6024 FEDERAL LAWS

(A) for issuing and administering permits under this of war, or an act or omission of a third party, and the
section; and person acted with due care;
(B) for expenses of designating and managing nation- (B) the destruction, loss, or injury was caused by an
al marine sanctuaries. activity authorized by Federal or State law; or
(d) Violations. -Upon violation of a term or condition (C) the destruction, loss, or injury was negligible.
of a permit issued under- this section, the Secretary (b) Response Actions And Damage Assessment.-
may- (1) Response Actions.-The Secretary may undertake
( 1) suspend or revoke the permit 'without compensa- all necessary actions to prevent or minimize the destruc-
tion to the permittee and without liability to the United tion or loss of, or injury to, sanctuary resources, or to
States; minimize the imminent risk of such destruction, loss, or
(2) assess a civil penalty in accordance with section injury.
307; or (2) Damage Assessment.-The Secretary shall assess
(3) both. damages to sanctuary resources in accordance with sec-
(e) Reports.-Each person issued a permit under this tion 302(6).
section shall submit an annual report to the Secretary (c) Civil Actions For Response Costs And Dam-
not later than December 31 of each year which describes ages.-The Attorney General, upon request of the Secre-
activities conducted under that permit and revenues tary, may commence a civil action in the United States
derived from such activities during the year. district court for the appropriate district against any
(f) Fishing.-Nothing in this section shall be consid- person or vessel who may be liable under subsection (a)
ered to require a person to obtain a permit under this for response costs and damages. The Secretary, acting as
section for the conduct of any fishing activities in a trustee for sanctuary resources for the United States,
national marine sanctuary. shall submit a request for such an action to the Attorney
Sec. 311. Cooperative Agreements And Donations. General whenever a person may be liable for such costs
[311 added by PL 100-6271 - or damages.
(a) Cooperative Agreements.-The Secretary may en- (d) Use Of Recovered Amounts.-Response costs and
ter into cooperative agreements with any.nonprofit or- damages recovered by the Secretary under this sect-ion
ganization * and civil penalties under section 307 shall be retained by
. (1) to aid and promote interpretive, historical, scienti- the Secretary in the manner provided for in section
fic, and educational activities; and 107(f)(1) of the Comprehensive Environmental Re-
(2) for the solicitation of private donations for the sponse, Compensation and Liability Act (42 U.S.C.
support of such activities. 9607(f)(1)), and used as follows:
(b) Donations.-The Secretary may accept donations (1) Response Costs And Damage Assessments.-
of funds, property, and services for use in designating Twenty percent of amounts recovered under this section,
and administering national marine sanctuaries under up to a maximum balance of S750,000, shall be used to
this title. finance response actions and damage assessments by the
Sec. 312. Destruction Or Loss Of, Or Injury To, Secretary.
Sanctuary Resources. (2) Restoration, Replacement, Management, And Im-
(312 added by PL 100-627] provement.-Amounts remaining after the operation of
(a) Liability.- paragraph (1) shall be used, in order of priority-
(1) In General.-Subject to paragraph (3), any per- (A) to restore, replace, or acquire the equivalent of*
son who destroys, causes the loss of, or injures any the sanctuary resources which were the subject of the
sanctuary resource is liable to the United States for action;
response costs and damages resulting from such destruc- (B) to manage and improve the national marine sanc-
tion, loss. or injury. tuary within which are located the sanctuary resources
(2) Liability In Rem.-Any vessel used to destroy, which were the subject of the action; and
cause the loss of, or injure any sanctuary resource shall (C) to manage and improve any other national marine
be liable in rem to the United States for response cosu sanctuary.
and damages resulting from such destruction, loss, or (3) Use Of Civil Penalties.-Amounts recovered un-
injury. der section 307 in the form of civil penalties shall be
(3) Defenses.-A person is not liable under this sub- used by the Secretary in accordance with section 307(e)
section if that person establishes that- and paragraphs (2)(B) and (C) of this subsection.
(A) the destruction or loss of. or injury to, the sanctu- (4) Federal-State Coordination.-Amounts recovered
ary resource was caused solely by an act of God, an act under this section with respect to. sanctuary resources
0
is

Envwonnwt ReporW 52

OWL

S-888
MARINE PROTECTION ACT 71:6025

lying within the jurisdiction of a State shall be used (B) an identification of suitable artifacts and materi-
under paragraphs (2)(A) and (B) in accordance with an als, including artifacts recovered or proposed for recov-
agreement entered into by the Secretary and the Gover- ery, for display in coastal North Carolina;
nor of that State. (C) an interpretive plan for the artifacts and materials
Sec. 313. Authorization Of Appropriations. which focuses on the sinking, discovery, and subsequent
[313 added by PL 100-627] management of the wreck of the United States ship
There are authorized to be appropriated to the Secre- Monitor; and
tary to carry out this title the following: (D) a draft cooperative agreement with the State of
(1) General Administration. - For general adminis- North Carolina to implement the plan.
tration of this title - (c) Disclaimer. - This section shall not affect the
(A) S1,800,000 for fiscal year 1989; following:
(B) S1,900,000 for fiscal year 1990; (1) Responsibilities Of Secretary. - The responsibil-
(C) S2,000,000 for fiscal year 1991; and ities of the Secretary to provide for the protection,
(D) $2,100,000 for fiscal year 1992. conservation, and display of artifacts and materials from
(2) Management of Sanctuaries. - For management the United States ship Monitor.
of national marine sanctuaries designated under this (2) Authority Of Secretary. - The authority of the
title- Secretary to designate the Mariner's Museum, located
(A) S2,000,000 for fiscal year 1989; at Newport News, Virginia, as the principal museum for
(B) S2,500,000 for fiscal year 1990; coordination of activities referred to in paragraph (1).
(C) S3,000,000 for fiscal year 1991; and
(D) $3,250,000 for fiscal year 1992.
(3) Site Review And Analysis. - For review and TITLE IV-REGIONAL MARINE RESEARCH
analysis of sites for designation under this title as nation- PROGRAMS
al marine sanctuaries - [Title IV added by PL 101-593]
(A) S450,000 for fiscal year 1989; Sm 401. Purposes. The purpose of this title is to
(B) S500,000 for fiscal year 1990; establish regional research programs, under effective
(C) S550,000 for fiscal year 1991; and Federal oversight, to-
(D) $600,000 for fiscal year 1992. (1) set priorities for regional marine and coastal re-
Sec. 314. U.S.S. Monitor Artifacts and Material& search in support of efforts to safeguard the water
quality and ecosystem health of each region; and
[314 added by PL 100-627] (2) carry out such research through grants and im-
(a) Congressional Policy. - In recognition of the proved coordination.
historical significance of the wreck of the United States Sec 402. Definitions. As used in this title, the term-
ship Monitor to coastal North Carolina and to the area (1) 'Board' means any Regional Marine Research
off the coast of North Carolina known as the Graveyard board established pursuant to section 403(a);
of the Atlantic, the Congress directs that a suitable (2) 'Federal agency' means any department, agency,
display of artifacts and materials from the United States or other instrumentality of the Federal Government,
ship Monitor be maintained permanently at an appropri- including any independent agency or establishment of
ate site in coastal North Carolina. the Federal Government and any government
(b) Interpretation And Display Of Artifacts. - corporation;
(1) Submission Of Plan. - The Secretary shall, (3) 'local government' means any city, town, borough,
within six months after the date of the enactment of this county, parish. district, or other public body which is a
section, submit to the Committee on Merchant Marine political subdivision of a State and which is created
and Fisheries of the House of Representatives a plan for pursuant to State law;
a suitable display in coastal North Carolina of artifacts (4) 'marine and coastal waters' means estuaries, wa-
and materials of the United States ship Monitor. ters of the estuarine zone, including wetlands, any other
(2) Contents Of Plan. - The plan submitted under waters seaward of the historic height of tidal influence,
subsection (a) shall, at a minimum, contain - the territorial seas, the contiguous zone, and the ocean;
(A) an identification of appropriate sites in coastal (5) 'nonprofit organization' means any organization,
North Carolina, either existing or proposed, for display association. or institution described in section 501(c)(3)
of artifacts and materials of the United States ship of the Internal Revenue Code of 1954 which is exempt
Monitor; from taxation pursuant to section 501(a) of such Code.

5-31-91 Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. wasningIm. D.C. 20037 7

71:6026 FEDERAL LAWS

(6) 'region' means I of the 9 regions described in (A) 3 members shall be appointed by the Administra-
section 403(a); and tor of the National Oceanic and Atmospheric Adminis-
(7) 'State' means a State, the District of Columbia, tration, including I member who shall be a Sea Grant
the Commonwealth of Puerto Rico, the Virgin Islands, Program Director from a State within such region, who
Guam, American Samoa, and the Commonwealth of the shall serve as chairman of the board;
Northern Mariana Islands. (B) 2 members shall be appointed by the Administra-
Sec. 403. Regional Marine Research Boards (a) Estab-
lishment.-A Regional Marine Research board shall be tor of the Environmental Protection Agency; and
established for each of the following regions: (C) 6 members shall be appointed by Governors of
(1) the Gulf of Maine region, comprised of the marine States located within the region.
and coastal waters off the State of Maine, New Hamp- (2) Qualifications.-Each individual appointed as a
shire and Massachusetts (north of Cape Cod); member of a Board shall possess expertise, pertinent -to
(2) the greater New York bight region, comprised of the region concerned, in scientific research, coastal zone
the marine and coastal waters off the States of Massa- management, fishery management, water quality man-
chusetts (south of Cape Cod), Rhode Island, Connecti- agement, State and loval government, or any other area
cut, New York, and New Jersey, from Cape Cod to which is directly relevant to the functions of the Board.
Cape May-, A majority of the members of each Board shall be
(3) the mid-Atlantic region, comprised of the marine trained in a field of marine or aquatic science and shall
and coastal waters off the States of New Jersey, Dela- be currently engaged in research or research
ware, Maryland, Virginia, and North Carolina, from administration.
Cape May to Cape Fear;
(4) the South Atlantic region, comprised of the ma- (3) Terms.-Each appointed member of a Board shall
rine and coastal waters off the States of North Carolina, serve for a term of 4 years. '
South Carolina, Georgia, and Florida, from Cape Fear (4) Vacancies.-In the event of a vacancy, a replace-
to the Florida Keys, including the marine and coastal ment member shall b@ appointed in the same manner
waters off Puerto Rico and the United States Virgin and in accordance with the same requirements as the
Islands; member being replaced and shall serve the remainder of
(5) the Gulf of Mexico region, comprised of the the term of the replaced member.
marine and coastal waters off the States of Florida, (5) Reimbursement of Expenses.-Each appointed
Alabama, Mississippi, Louisiana, and Texas along the member of a Board may be paid actual travel expenses,
Gulf coast from the Florida Keys to the Mexican border; and per them in lieu of subsistence expenses when away
(6) the California region, comprised of the marine and from the member's usual place of residence, in accord-
coastal waters off the State of California, from Point ance with section 5703 of title 5, United States Code,
Reyes to the Mexican border; when engaged in the actual performance of Board
(7) the North Pacific region, comprised of the marine duties.
and coastal waters off the States of California, Oregon,
and Washington, from Point Reyes to the Canadian (c) Functions.-Each Board shall, in accordance with
border; the provisions of this title-
(8) the Alaska region, comprised of the marine and (1) develop and submit to the Administrators of the
coastal waters off the State of Alaska; and National Oceanic and Atmospheric Administration and
(9) insular Pacific region, comprised of the marine the Environmental Protection Agency a marine research
and coastal waters off the State of Hawaii, Guam, plan, including periodic amendments thereto, that meets
American Samoa, and the Commonwealth of the North- the requirements of section 404;
ern Mariana Islands. (2) proiide a forum for coordinating research among
The Great Lakes Research Office authorized under research institutions and agencies;
section 118(d) of the Federal Water Pollution Control (3) provide for review and comment on research plans
Act (33 U.S.C. 1269(d)) shall be responsible for re- by affected users and interests, such as the commercial
search in the Great Lakes region and shall be considered and recreational fishing industries, other marine indus-
the Great Lakes counterpart to the research Program tries, State and local government entities, and environ-
established pursuant to this title. mental organizations;
(b) Membership.- (4) ensure that the highest quality of research projects
(1) Composition.-Each Board shall be comprised of will be conducted to carry out the comprehensive plan;
I I members of which- and

Emwannwon Rego to

MARINE PROTECTION ACT
71:6027

(5) prepare, for submission to Congress, a periodic (1) In General.-Each Board shall develop a compre-
report on the marine environmental research issues and hensive 4-year marine research plan for the region for
activities within the region in accordance with section which the Board is responsible, and shall amend the plan
406 of this title. at such times as the Board considers necessary to reflect
(d) Powers.-Each Board shall be authorized to- changing conditions, but no less frequently than once
(1) cooperate with Federal agencies, with States and every 4 years.
with local government entities, interstate and regional (2) Review and Consideration of National Plan.-In
agencies, other public agencies and authorities, nonprofit the development and amendment of its research plan,
institutions, laboratories, and organizations, or other the Board shall consider findings and recommendations
appropriate persons, in the preparation and support of of the national plan developed pursuant to the National
marine research in the region; Ocean Pollution Planning Act of 1978 (33 U.S.C. 1701
(2) enter into contracts, cooperative agreements or et seq.).
grants to State and local governmental entities, other' (b) Contents of Plan.-Such marine research plan
public agencies or institutions, and non-profit institutions shall include-
and organizations for purposes of carrying out the provi- (1) an overview of the environmental quality condi-
sions of this title; tions in the coastal and marine waters of the region and
(3) collect and make available through publications expected trends in these conditions;
and other appropriate means, the results of, and other (2) a comprehensive inventory and description of all
information pertaining to, the research conducted in the marine research related to water quality and ecosystem
region; health expected to be conducted in the region during the
(4) call conferences on regional marine research and 4-year term of the research plan;
assessment issues, giving opportunity for interested per- (3) a statement and explanation of the marine re-
sons to be heard and present papers at such conferences; search needs and priorities applicable to the marine and
(5) develop and stimulate, in consultation with the coastal waters of the region over the upcoming 10-year
Department of State, joint marine research projects with period with emphasis on the upcoming 3-to-5 year
foreign nations; period;
(6) utilize facilities and personnel of existing Federal (4) an assessment of how the plan will incorporate
agencies, including scientific laboratories and research existing marine, coastal, and estuarine research and
facilities; management in the region, including activities pursuant
(7) accept, and for all general purposes of this Act, to section 320 of the Federal Water Pollution Control
utilize funds from other sources, including but not limit- Act (33 U.S.C. 1330) and section 315 of the Coastal
ed to State and local funds, university funds, and dona- Zone Management Act of 1972 (16 U.S.C. 1461); and
tions; and (5) a general description of marine research and
(8) acquire secret processes, inventions, patent appli- monitoring objectives and timetables for achievement
cations, patents, licenses, and property rights, by pur- through the funding of projects under this title during
chase, license, lease, or donation. the 4-year period covered by the plan so as to meet the
(e) Administration.- priorities specified in the plan in accordance with para-
(1) Practices and Procedures.-Each Board shall de- graph (3).
termine its organization, and prescribe its practices and
procedures for carrying out its functions under this title. (c) Plan Review and Approval.-
Each Board should use existing research administrative (1) In General.-When a Board has developed a
capability to the extent practicable. marine research plan, including amendments thereto,
(2) Committees and Subcommittees.-Each Board the Board shall submit the plan to the Administrator of
shall establish such committees and subcommittees as the National Oceanic and Atmospheric Administration
arc appropriate in the performance of its functions. and the Administration of the Environmental Protection
(3) Staff and Support.-Each Board is authorized to Agency, who shall jointly determine whether the plan
hire such staff as are necessary to carry out the functions mects the requirements of subsection (b).
of the Board. (2) Time for Approval or Disapproval.-The Admin-
(f) Termination.-Each Board shall cease to exist on istrator of the National Oceanic and Atmospheric Ad-
October 1, 1999, unless extended by Congress. ministration and the Administrator of the Environmcn-
Sec 404. Regional Research Plans tal Protection Agency, shall jointly approve or
(a) Development and Amendment of Regional disapprove such research plan within 120 days after
Plans.- receiving the plan.

S41-91 PuMishal by THE BUREAU OF NAMNAL AFFAIRS. INC.. WnNngtan. D.C. 20037

71:6028 FEDERAL LAWS

(3) Action after Disapproval.-In the case of disap- (L) analysis and interpretation of research data for
proval of such research plan, the Administrator of the the benefit of State and local environmental protection
National Oceanic and Atmospheric Administration and and resource management agencies in the region.
the Administrator of the Environmental Protection (3) Grant applications submitted pursuant to this
Agency shall jointly notify the appropriate Board in subsection shall include-
writing, stating in detail tho revisions necessary to obtain (A) a description of the specific research projects to
approval of the plan. Such Administrators shall approve be conducted-,
or disapprove the revised plan within 90 days after (B) identification of the organization responsible for
receiving the revised plan from the Board. each project and the principal investigator directing the
Sec. 405. Research Grant Program project;
(a) Program Administration.-The Administrator of (C) a budget statement for each project;
the National Oceanic and Atmospheric Administration (D) a schedule of milestones and interim products for
shall administer a grant program to support the adminis- each research project;
trative functions of each Board. (E) a description of the relationship of the proposed
(b) Research Grants.-(I) Each Board may annually project to the goals, objectives, and priorities of the
submit a grant application to the Administrator of the research plan for the region and to other research
National Oceanic and Atmospheric Administration to projects; and
fund projects aimed at achieving the research priorities (F) any other information which may be required by
set forth in each research plan, including amendments the Administrator.
thereto, developed and approved pursuant to section 404. (c) Review and Approval of Project Proposals.-(I)
(2) Projects eligible for funding under this section The Administrator of the National Oceanic and Atmo-
shall include research, investigations, studies, surveys, or spheric Administration shall review the annual grant
demonstrations with respect to- application and, with the concurrence of the Administra-
(A) baseline assessment of marine environmental tor of the Environmental Protection Agency, approve
quality, including chemical, physical, and biological indi- such grant application with such conditions as are deter-
cators of environmental quality; mined to be appropriate based on peer reviews conducted
(B) effIcts or potential effects of contaminants, in- pursuant to paragraph (2).
cluding nutrients, toxic chemicals and heavy metals, on (2) The Administrator of the National Oceanic and
the environment, including marine and aquatic Atmospheric Administration shall develop a system of
organisms; peer review of grant applications which shall ensure that
(C) effects of modification of habitats, including only the highest quality research is approved for funding
coastal wetlands, seagrass beds and reefs, on the environ- and that each project is reviewed by research scientists
ment, including marine organisms; outside the region concerned.
(D) assessment of impacts of pollutant sources and (d) Reporting.-Any recipient of a grant under this
pollutant discharges into the coastal environment; section shall report to the appropriate Board, not later
(E) transport, dispersion, transformation, and fate and than 18 months after award of the grant, on the activi-
effect of contaminants in the marine environment; ties of such recipient conducted pursuant to this subsec-
(F) marine and estuarine habitat assessment and tion. Such report shall include narrative summaries and
restoration; technical data in such form as the Administrator of the
(G) methods and techniques for modeling environ- National Oceanic and Atmospheric Administration may
mental quality conditions and trends; require.
(H) methods and techniques for sampling of water, Sec. 406. Report on Research Program (a) Prepara-
sediment, marine and aquatic organisms, and demon- tion and Submission of Report.- Each Board receiving
stration of such methods and techniques; a grant under section 405 shall, not later than 2 years
(1) the effects on hurnsin health and the environment after the approval of its comprehensive plan under sec-
of contaminants or combinations of contaminants at tion 405 and at 2-year intervals thereafter, prepare and
various levels, whether natural or anthropogenic, that submit to the Administrator of the National Oceanic
are found in the marine environment; and Atmospheric Administration and the Administrator
(J) environmental assessment of potential effects of of the Environmental Protection Agency a report de-
major coastal and offshore development projects in the scribing-
region; (1) the findings and conclusions of research projects
(K) assessment of the effects of climate change on conducted in the region;
marine resources in the region; and (2) recommendations for improvements in the design

Envtomwit Repoo to

MARINE PROTECTION ACT S_8"
71:6029
or implementation of programs for the protection of the for purposes of making determinations and findings in
marine environment; and accordance with section 303(a) of the Act (16 U.S.C.
(3) available data and information concerning ccosys- 1433(a)) -
tcm health within the region. (A) regarding whether or not.all or any part of such
(b) Transmittal to Congress.- Upon receipt of a areas arc appropriate for designation as national marine
report prepared by a Board under subsection (a), the sanctuaries in accordance with the Act; and
Administrator of the National Oceanic and Atmospheric (13) regarding whether or not all or any part of the
Administration and the Administrator of the Environ- areas described in subsection (c)( 1), (2), and (3) should
mental Protection Agency shall transmit a copy of such be added to and administered as part of the Key Largo
report to the Committees on Commerce, Science, and National Marine Sanctuary or the Looe Key National
Transportation and on Environment and Public Works Marine Sanctuary.
of the Senate and to the Committee on Merchant Ma- (2) Report. - Not later than 2 years after the date of
rine and Fisheries of the House of Representatives. the enactment of this Act, the Secretary of Commerce
Sec. 407. Audwrization of Appropriations shall submit a report to the Committee on Merchant
(a) In General.- For purposes of carrying out the Marine and Fisher;cs of the House of Representatives
provisions of this title, there are authorized to be appro- and to the Committee on Commerce, Science, and
priated $18,000,000 for each of the fiscal years 1992 Transportation of the Senate which sets forth the deter-
through 1996. minations and findings referred to in paragraph (1).
(b) Allocation.-(I) Of funds appropriated in any (b) Designation Or Expansion Of Marine Sanctuaries.
fiscal year, not more than S500,000 shall be reserved for - If as a result of a study conducted pursuant to
administration of this title by the National Oceanic and subsection (a) the Secretary of Commerce makes the
Atmospheric Administration and the Environmental determinations and findings set forth in section 303(a)
Protection Agency. of the Act (16 U.S.C. 1433(a)) with respect to all or any
(2) Funds appropriated in a fiscal year which are part of the areas described in subsection (c), the Secre-
available after allocation pursuant to paragraph (1), tary of Commerce, in accordance with the procedures
shall be used to support the administrative costs of for the designation of national marine sanctuaries set
Boards established pursuant to subsection 403(a), pro- forth in section 304 of the Act (16 U.S.C. 1434) -
vided tfiat such funding does not exceed $300,000 for (1) shall designate such areas of parts of such areas as
each research Board in each fiscal year. national marine sanctuaries; or
(3) Seventy-five percent of funds appropriated in a (2) shall, with respect to all or any part of the areas
fiscal year available after allocation pursuant to para- described in subsections (c)(1), (2), and (3), add such
graphs (1) and (2), shall be allocated equally among areas or parts of such areas to the Key Largo National
Boards located in regions submitting research project Marine Sanctuary or the Looe Key National Marine
grant applications pursuant to section 405(b). Sanctuary;
(4) Twenty-five percent of funds appropriated in a as the Secretary of Commerce considers appropriate.
fiscal year available after allocation pursuant to para- (c) Areas Described. - The areas referred to in
graphs (1) and (2), shall be allocated among Boards subsections (a) and (b) are the following:
located in regions submitting research project grant (1) American Shoal. - The portion of the marine
applications pursuant to section 405(b) which, in the environment in the Florida Keys in the vicinity of
judgment of the Administrator of the National Oceanic American Shoal, including the part of such environment
and Atmospheric Administration, in consultation with located generally between such shoal and the Marquesas
the Administrator of the Environmental Protection Keys.
Agency, propose the most needed and highest quality (2) Sombrero Key. - The portion of the marine
research. environment in the Florida Keys in the vicinity of and
surrounding Sombrero Key.
MISCELLANEOUS PROVISIONS OF PUBLIC (3) Alligator Reef. - The portion of the marine
LAW 100-627 environment in the Florida Keys in the vicinity of and
surrounding Alligator Reef, including the portion locat-
Sec. 206. Study of Areas For Designation As Or ed generally between such reef and the Key Largo
Inclusion In National Marine Sanctuaries National Marine Sanctuary.
(a) Study. - (4) Santa Monica Bay. - The portion of the marine
(1) In General. - The Secretary of Commerce shall environment off the coast of California commonly re-
conduct a study of the areas described in subsection (c) ferred to as Santa Monica Bay, consisting of an area

5-31-91 PuMmo tpy TME BUREAU OF NATIONAL AFFAIRS. INC.. Wast*Vton. D.C. 20037

71:6030 FEDERAL LAWS

described generally as follows: Beginning at the point (B) of the Long Beach NAVTEX in Long Beach,
known as Point Dume near the western extent of Santa California.
Monica Bay, proceed generally southeast along the shor- (b) Study Review And Report. - The Secretary of
eline to the point known as Point Vincente near the Transportation shall review all Federal, State, and local 48
southern extent of Santa Monica Bay; then west to the studies conducted on the hazards of shipping operations
900 meter bathymetric contour; then generally north- and the risks those ope 'rations pose to the environment
west along the 900 meter-bathymetric contour to a point and natural resources of the Channel Islands National
due west of Point Dume, then east to Point Dume at the Marine Sanctuary, and report to the Congress not later
point of beginning. than 6 months after the date of the enactment of this
(d) Definition Of Marine Evironment. - For the Act on the status and recommendations of each of those
purposes of this section, the term "marine environment" studies. The Secretary shall include in the report a
has the meaning such term has in section 302(3) of the recommendation on whether an alternate vessel traffic
Act (16 U.S.C. 1432(b)). separation scheme would reduce the risks of shipping
Sec. 209. Channel Islands National Marine Sanctuary operations to the environment and natural resources in
Protection. the Channel Islands National Marine Sanctuary.
(a) Report. - The Secretary of Transportation, not (c) Proposal Of Designation of Area To Be Avoided.
later than 6 months after the date of the enactment of - The Secretary of Transportation shall prepare and
this Act, shall transmit to Congress - submit a proposal to the International Maritime Organi-
(1) the provisions of international conventions and zation to designate the portion of the Channel Islands
United States laws and regulations which reduce the risk National Marine Sanctuary which is outside of the
of a vessel collision or incident resulting in damage to the Santa Barbara Channel Traffic Separation Scheme, as
environment in the Channel Islands National Marine an area to be avoided. The Secretary shall ensure that
Sanctuary; the proposal would not result in undue interference with
(2) the provisions of the National Contingency Plan international vessel traffic in the Santa Barbara Chan-
for removal of oil and hazardous substances prepared nel, with operations associated with the United States
under section 311 (c) of the Federal Water Pollution Navy Pacific Missile Test Range, or with enjoyment of
Control Act (33 U.S.C. 1321(c)) which enable the Secre- the Channel Islands National Marine Sanctuary under
tary to effectively respond to an oil pollution incident in the title III of the National Marine Protection, Re-
-or affecting the Channel Islands National Marine search. and Sanctuaries Act of 1972 (16 U.S.C. 1431 et
Sanctuary; seq.).
(3) a list of pollution exercises conducted under that
National Contingency Plan in the Santa Barbara Chan-
nel before the date of the enactment of this Act, and a Sec. 210. Regulations.
schedule of pollution exercises scheduled to be conducted Not later than one year after the date of the enact-
under that plan in that channel during the 12 months ment of this Act, the Secretary of Commerce -
following the date of the enactment of this Act; and (1) shall propose regulations implementing the
(4) a report on the establishment - amendments made by this title; and
(A) under the Ports and Waterways Safety Act (33 (2) shall issue final regulations implementing the
U.S.C. 1221 et seq.) of safety fairways off the coast of amendments made by the Marine Sanctuaries Amend-
California; and ments of 1984.

Enwwan"we R"MW 12

20.
National Marine Sanctuaries:
Challenge and Opportunity
A report to the
National Oceanic and Atmospheric Administration
(THE PO= REPORT)

National Madne Sanamuies: Challenge
and Oppom"ty

A Report to
the
Natio@ O=nic and Amiospheric A&inistmfion

Mxine Sz=nrics PzviLwTem
Febnnry 2Z 1991

Contents

Introduction and Summary ................................................................................................ vii
Background .............................................................................. . .......................................... 7
History of Marine Sanctuaries ............................................................................................... 9
History of panel .................................................................................................................. 10

Recommendations .............................................................................................................. 11

Program Leadership ............................................................................................... 11
The Administration, NOAA and the Marine Sanctuaries program should commit
themselves to a leadership role in protecting the resources entrusted to them.

Program Vision ..................................................................................................... 12
NOAA should identifyy and endorse a clear vision of what it believes the Marine
Sanctuaries program should become, consistent with its statutory mandate.
Program Mission ..... .................................................................... 13
A mission statement should be articulated, identifying the steps necessary to achieve
this vision.

Budget ..................................................................................................................... 15
The Administration should request, and the Congress should authorize, a budget
adequate to accomplish the purposess of the individuals sanctuaries, to establish new
sanctuaries and to administer the program. For these three functions, an adequate
budget would be on she order of $30 million.

Improving the Designation Process ........................................................................ 15
Adequate resources must continue to be available to the sanctuary designation
process. Rather than divert these resources, new funding and personnel resources are
needed to manage effectively the sanctuaries already in the system.
Transfers of Resources and Responsibility to the Field ........................................... 16
Headquarters should be charged with placing sanctuary managers, setting policy for
sanctuary operations, providing strong and effective guidance where appropriate,
and monitoring sanctuary operations to see that policies and guidelines are being
followed. At the same time, much responsibility for sanctuary management and
operations should be decentralized and assigned to regional managers or sanctuary
managers who are closer to the sanctuaries themselves

Responsibilities of Sanctuary Managers .................................................................. 16
The program must attract, train and support effective sanctuary managers. Once in
place, managers should be encouraged to work closely with local groups and institu-
tions.

Personnel .............................................................................. ........... 17
The program needs to identify, retain or attract, and train high-caliber personnel.

Visibility ................................................................................................................. 17
The sanctuaries program needs to be given higher visibility and status within the
agency, with other agencies and with the public. It should be elevated to Office
status within the agency.

Priorities ................................................................................................................ 18
A high priority should be assigned to strengthening the management of existing
sanctuaries and utilizing the tremendous opportunities to develop strong effective
model sanctuaries in Florida and California. In addition, priority should be given
to new sanctuaries that will enhance biogeographic representation and plug gaps in
the existing system.

Cooperation with Other Programs ........................................................................ 19
The Marine Sanctuaries program must develop effective, cooperative and supportive
working relationships with other institutions and organizations with related
interests.

Experience in Other Programs ............................................................................... 21
NOAA should carefully examine and evaluate similar programs now in place or
under development in other countries.

Criteria, Number and Size ..................................................................................... 22
At a minimum each of the biogeographical provinces in U.S. waters should be
represented in the system, with one in each of that being sufficiently large to offer
reasonable assurance that these regions will be adequately represented. In addition,
sanctuaries should be established to protect natural and historical areas that contain
rare, critical, unique, outstanding or otherwise special resources, and there should be
further analysis of how much represntation is required in the system.

Outside Review ..................................................................................................... 23
Regular independent review should be a continuing element of the sanctuary
program.
Creation of Supporting Institution ......................................................................... 24
NOAA should explore the possiblity of a national nonprofit organization that is in
a position to Advise and encourage the marine sanctuary program; local cooperating
organization can also be of great value in the operation of sanctuary programs.
User Fees and Outside Support ............................................................................. 24
Part of the costs of she sanctuary program should be borne by the constituencies
serves
Review of Existing Intergovernmental Agreements ................................................ 25
Existing intergovernmental arrangements with state and local authorities should be
reexamined and, where appropriate, renegotiated by NOAA.
Name of the Program ............................................................................................. 25
The name of the program should not be changed.
Zoning ..................o............................................................................................ 25
NOAA should devise and Adopt an appropriate zoning system for national marine
sanctuaries as a priority matter, beginning with the new, large sanctuaries now in
the designation process.

Relationship with National Estuarine Research Reserves Program ......................... 26
The Marine Sanctuaries Program and the National Estuarine Research Reserve
Program have much in common and should continue to be encouraged to work
closely together in the future, at they have in the past.
Development of Research and Education Agendas ................................................. 27
NOAA should develop clear research and education agendas for the Marine Sanctu-
aries Program. These agenda should be fully integrated with the research and
education agenda of other NOAA agencies and also, to the maximum extent
possible, integrate these agendas with those performed outside NOAA by other
federal agencies, and private and international organizations.
NOAA should ensure that all its coastal and marine programs are appropriately
represented on the National Research Council's Committee on the Coastal Ocean.

Panel Conclusion . .................................................................................................. 27
If the issues discussed in this report are clearly addressed by the Administration and
the Congress, the Marine Sanctuaries program can achieve success and meet the
expectations created when it was establishhed in 1972. AM that is required it the
resolve to make it happen.

Appendices:

Members, National Marine Sanctuaries Review Team ....................................................................A

Great Barrier Reef Marine Park-pertinent facts ............................................................................B

Program Comparison-Sanctuaries and Estuaries Programs ............................................................C

Programs at existing National Marine Sanctuaries ........................................................................D

Resolution on Safeguarding Oceans and Water Resources ................................................................E
Adopted at Interparliamentary Conference on the Global
Environment, Washington, D.C., May 2,1990

National Marine Sanctuaries: Challenge and Opportunity

The United States has long been at the
forefront of international efforts to set
aside national parks and other reserves
on land, beginning with the establishment
of the world's first national part at
Yellowstone. One of the early champions
of this movement was President Teddy
Roosevelt, and he is still honored for his
efforts.

This Administration now has a unique
but fleeting opportunity to make a strong
commitment to a new and equally high
standard of stewardship in America's
oceans and Great Lakes. The American
public, increasingly aware of their heri-
tage of marine resources, will support
positive and immediate action to advance
a strong and effective progrm to in-
vigorate the National Marine Sanctuar-
ies Program.

A successful sanctuaries program would
not require a large staff, nor would it
demand a disproportionate share of funds
at a time when the pressure on all fund-
ing is heavy indeed. The program's budget
has been so small, particularly when
compared to similar programs in other
agencies, that it could be multiplied
tenfold without serious strain--sending
a powerful signal to the rest of the world
of this country's commitment to respon-
sible environmental citizenship.

Among the major public benefits of a of
a renewed Marine Sanctuaries Program
would be opportunities to help restore
depleted fisheries and promote environ-
mentally sound recreation. The program
can build on a solid track record of foster-
ing cooperation among federal and state
agencies charged with managing marine
environments, and allow these agencies
to conduct sanctuary-focused reserch
into the impacts of environmental per-
turbations and other causes as well. Cli-
mate change, the maintenance of marine
biodiversity and the accumulation of
badly-needed resource data over long

timeframes will be important products of
this research program.

The Exxon Valdez disaster in Prince Wil-
liam Sound demonstrated dramatically
the vulnerability of our marine environ-
ments and the public outcry than can
result when these environments are seen
to be mismanaged. The time to react to
the mounting threats to all of our coastal
and offshore environments is now, before
the accumulated impacts become either
irreversible, or rversible at costs that
would produce severe strains on an already
overburdened national treasury. A reju-
venated Marine Sanctuaries Program will
procalim a clear symbol of this Adminis-
tration's intention to act.

We see a cler vision of what this program
might become in the future:

By the year 2000, the National Marine
Sanctuaries Program will manage a com-
prehensive and integrated system of the
nation's most significant marine areas.
This management will be based on eco-
logically sound, well-researched principles
of resource protection and sustainable use
and will focus as well on improving public
understanding of the nation's marine
heritage and in extending sound marine
resource management principles to areas
beyond sanctuary boundaries.

The steps that remain to be taken to achieve
this vision are clear:

The Administration should request,
and the Congress should provide, a
budget that is adequate to carry out
this program.

Priorities should be established to es-
tablish the Florida Keys and the
sanctuaries on the central California
coast as the centerpieces of this renewed
effort.

Introduction and
Summary

vii

National Marine Sanctuaries: Challenge and Opportunity

The National Marine Sanctuaries pro-
gram should undertake an aggressive
program to communicate this program
to other agencies in govemment and to
the public, and should work hard to
establish cooperative relationships with
the groups and organizations who share
a stake in its success.

The vision is within our grasp. To achieve it,
we need only stretch out our hands and our
imaginations.

viii

National Marine Sanctuaries: Challenge and Opportunity

Background

In November, 1990, this panel ws asked by
NOAA's Assistant Administrator for Ocean
Services to review the National Marine
Sanctuaries Program and to make recom-
mendations on ways to improve it. This
report identifies a number of potential op-
portunities to revitalize the sanctuaries sys-
tem, and to enhance its position in the fore-
ground of international efforts to protect and
preserve a critical element of man's heritage.

While the panel is critical of some elements of
the program, it concluded that the inadequa-
cies of the past several years were due not so
much to neglect or malign indifference to the
marine resources involved as they were to an
ambivalence about the nature of, and need
for, active leadership and management of a
complex set of biological and social systems,
coupled with the always difficult problem of
competition for scarce personnel and funds.

The personnel associated with the program
have helped and supported the efforts of the
study effort. Our requests for information
have been promptly met, and coopera-
tion of the program managers has been
generous.

It seems scarcely necessary, in these days of
heightened environmental awareness, to un-
derscore the importance of coastal and ma-
rine resources to a healthy and functioning
ecosystem. A few excerpts from current and
authoritative sources put these issues into
perspective:

"...the margins of the sea are
affected by man almost
everywhere, and encroachment on
coastal areas continues worldwide.
Habitats are being lost irretrievable
to the construction of harbors and
industrial installations, to the
development of tourist facilities
and mariculture, and to the growth
of settlements and cities. Although
difficult to quantify, destruction
of beaches, coral reefs and
wetlands, including mangrove
forests, as well as increasing erosion
of the shore, are evident all over
the world. If unchecked, this trend
will lead to global deterioration in
the quality and productivity of the
marine environment."

GESAMP: The State of the Marine
Environment; UNEP Regional
Seas Reports and Studies No. 115,
1990

"The coastal zone is where land,
sea and atmosphere interact, and
has the highest biological
productivity on earth. It is also
home to most of the world's
population, who depend on its
resources and largely determine
its state of health. Global change
due to growth in resource
consumption and population
will have its biggest impacts in
the coastal zone. Six out of ten
people live within 60 kilometers
of coastal waters, and two-thirds
of the world's cities with
populations of 2.5 million or
more are near tidal estuaries.
Within the next 20-30 years, the
population of the coastal zone is
projected to almost double.

"The more people use the oceans
for waste disposal, the fewer living
resources will be available. The
ecosystems and resources of the
coastal zone are rapidly
deteriorating due to intense and
increasing human pressure,
including poorly planned and
regulated urban, industrial,
commercial and agricultural
development, and
overexploitation of living
resources. Coastal engineering
and development projects are
modifying coastal ecosystems on
a very large scale. Wetlands, coral
reefs, and seagrass beds are the
ecosystems most at risk.

"Billions of dollars and thousands
of lifetimes have been spent
worldwide to understand and
regulate human impact on the
sean and its resources. But the
efforts have not even approached

National Marine Sanctuaries: Challenge and Opportunity

what is needed. Most often, they
have focused on symptoms rather
than causes. In general, we have
not yet grasped the concepts
needed to manage relations
between people and the oceans.
The challenge for the next 20
years is to redres this basic
misunderstanding and develop
suitable institutions and
management mechanisms.

Priority actions--

"Ecosystems that most urgently
need protection from unplanned
or poorly regulated coastal
development include estuaries,
saltmarshes, mangroves, and
other wetlands; seagrass beds; and
coral reefs. Governments should
greatly accelerate the
establishment and effective
management of coastal and
marine protected areas. Where
possible, the protected areas
should be integrated as part of a
comprehensive planning
mechanism for all uses of coastal
ecosystems (as pioneered by the
Great Barrier Reef Marine Park
Authority in Australia)."

Caring for the World: A Strategy
for Sustainability (2nd Draft,
1990), prepared by IUCN,
UNEP and the World WIde
Fund for Nature

"Whereas...The Global water
cycle is essential to life on
earth...and Short-term economic
benefits from exploitation of
ocean and water resources deprive
future generations, diminish the
quality of life, disrupt
international stability and global
security, and even threaten life
itself:

NOW, therefore, be it resolved
that...nations join together in
international convention and by
individual action in an effort to...

Develop and implement
comprehensive national and
international plans to manage
activities in the coastal zone...(and)

Protect marine biodiversity and
productivity by developing
mechanisms to preserve sensitive
coastal areas such as wetlands,
barrier islands, estuaries, coral
reefs, and other critical wildlife
habitats.

Resoultion unanimously adopted
at the Interparliamentary
Conference on the Global
Environment, Washington,
D.C., May 2, 1990 (Appendix E
to this report)

The National Marine Sanctuaries Program
provides a unique opportunity for this Ad-
ministration to make a strong commitment
to a new standard of environmental steward-
ship. A relatively small investment of resources
could produce enormous returns in the form
of a model resource protection system.

A successfurl sanctuaries program would not
require a large staff, nor would it demand a
disproportionaze share of funds at a time
when the pressure on all funding is heavy
indeed. The program's budget has been so
small, by comparison to similar programs in
other agencies, that it could be increased
tenfold without serious strain--sending a
powerful signal to Americans and the rest of
the world of this country's renewed commit-
ment tot responsible environmental citizen-
ship.

National Marine Sanctuaries: Challenge and Opportunity

History of Marine
Sanctuaries

The Marine Protection, Research and Sanc-
tuaries Act of 1972 (sometimes called the
Ocean Dumping bill) passed both Houses of
Congress without serious opposition. The
marine sanctuaries provisions of the legisla-
tion (Title III of the Act) were a product of
earlier congressional concerns to protect
specific coastal regions. The principal purpose
of the legislation was identified as protection
of threatened coastal and marine resources.
Although the issue of "multiple use" was
raised from time to time during the debate,
the concept was never fully discussed, nor
were the ambiguities in the concept ever
discussed, still less resolved.

Following enactment of the legislation, not
much happened for several years. The first
marine sanctuaries were established in 1975,
one of them when the legislation was found
to offer protection for the wreck of the
Monitor--a conjunction of need
and resource, since no other laws on the
books at the time were adequate to handle a
job that all conceded was important.

The next four sanctuaries (Channel Islands,
Gray's Reef, Looe Key and the Gulf of the
Farallones) were created in the closing days of
the Carter Administration. The Reagan Ad-
ministration was strongly opposed to the
program, but Congressional support, coupled
with tacit NOAA assistance, kept it alive
through eight lean years. One tiny site,
Fagatele Bay in American Samos, was desig-
nated in that period. Independent studies of
the program in 1980 and 1981 by the Con-
gressional Research Service and the General
Accounting Office supported the view that
program filled important needs
that were not otherwise being met.

The Cordell Bank was designated in 1989,
bringing the total to eight areas, with several
others under active review. Congressional
impatience with the pace and operation of
the program had also escalated; the results of
this impatience produced direct legislative
involvement in the selection and in some
cases designation of the Florida Keys,
Monterey Bay, Stellwagen Bank, Flower
Garden Banks, Washington Outer Coast
and Northern Puget Sound areas,
shortcutting a process that, to some ob-
servers, had become glacial.

National Marine Sanctuaries: Challenge and Opportunity

The members of the panel (identified in
Appendix A) were invited to serve as an
independent review team in October 1990.
The twelve members of the panel are asso-
ciated with a range of institutions and orga-
nizations concerned with coastal and ma-
rine issues. No panel members speak for
their organizations in this endeavor--each
represents his or her view alone, informed
by contacts within that organization and
experience acquired in connection with its
activities.

The panel first met in November 1990 to
receive a briefing from people associated
with NOAA and/or the sanctuary program,
and from G. Carleton Ray and M. Geraldine
McCormick-Ray, consultants who were
asked to prepare a report on the sanctuaries
program and to assist the panel in its efforts.
This report, entitled "A Future for Marine
Sanctuaries," proved to be a highly useful
resource to the panel.

The panel next met on Key Largo in January
1991 to talk with people actively involved
in sanctuary operations and to visit the Key
Largo Sanctuary itself. The panel's co-
chairman visited the Channel Islands
Sanctuary office and spoke with state and
local officials involved in the California
sanctuary program. The panel last convened
in February 1991, when it met to complete
and present its final report.

The panel was also given copies of a NOAA
internal review report of the program, dated
August 30, 1990, reflecting the results of a
May, 1990, retreat designed to evaluate the
program and to help prepare for an antici-
pated reauthorization of the program in
1992.

History of panel

National Marine Sanctuaries: Challenge and Opportunity

Recommendations

In general, the panl has concluded that this
program affords this Administration a rare
opportunity to take important and bold steps
to protect and enhance these important parts
of our heritage, and in the process, to create
a model for the rest of the world of how to
respond to this challenge. What makes the
program particularly attractive is that these
results can be accomplished with a relatively
small investment of time, effort and funds.

In the past, NOAA's administration of the
Marine Sanctuaries Program has lacked lead-
ership, focus, resources and visibility, and the
program has suffered for it. It has generally
been treated as the runt of the NOAA litter,
receiving only occasional pats on the head as
executive and legislative attention was focused
on its larger and better endowed siblings.

We consider it unproductive to discuss the
failings of the program in detail; in a sense, it
is not even particularly important. In fact,
given the serious limitations imposed upon
it, it has achieved some notable successes.
What matters today is where it can and
should go from here. It is for this reason that
we prefer to concentrate on the positive
directions the program should take from this
point onward.

Prgram Leadership

The objective of the Marine Sanctuaries Pro-
gram should be to develop a global reputa-
tion for enlightened resource management.
This objective is within NOAA's grasp, should
it choose to reach out and take it.

NOAA should look at examples of successful
programs in similar area. One excellent place
to begin would be to examine closely the
history and operation of the Great Barrier
Reef Marine Park in Australia. That under-
taking (relying in part, as it happens, on the
U.S. legislation that created the Mrine Sanc-
tuaries program) has been a pioneer in its
field, and we can lern much from it. A brief
summary of some pertinent facts about the
Great Barrier Reef Marine Park is included as
Appendix B. To be sure, there are important
differences between the two programs, but
there are important similarities as well. Some

of their initiatives and concepts might travel
well.

From its inception, NOAA has been cau-
tious about assuming the mantle of man-
agement of resources entrusted to it. There
has always been a certain tension between
the worlds of science and information de-
velopment, on the one hand, and active
management or involvement with resources
on the other; the marine sanctuaries pro-
gram has not been spared from this split
focus. We believe that the sanctuaries pro-
gram does require active management, and
that NOAA should accept the fact and
acknowledge that it can and will carry out
the job.

NOAA should be willing and able to pro-
vide leadership to the sanctuary program,
should announce this to the world, and
should then carry it out to the best of its
abilities. If it cannot or will not, it should
acknowledge that to be the case and step
aside in favor of another agency of govern-
ment that is willing to do the job. It is no
secret that other candidates exist, and would
welcome the opportunity.

Regulations can be defended and supported
if they are designed to meet an identified
and accepted objective and are no more
restrictive than they need to be to accom-
plish that purpose. If sancturay manage-
ment is, and is seen to be, fair and compe-
tent by the communities and activities af-
fected by their programs, these communi-
ties and activities will support the program.
Cooperative programs have already been
developed for the management of sanctu-
ary operations in the Florida Keys, and
these might be used as models in other
regions as well.

Successful mangement of any program or
resouce implies the ability and willingness
to regulate, and to enforce those regulatins
when necessary. This does not, however,
connote heavy-handed, harsh or insensitive
law enforcement. On the other hand, regu-
lations must be enforced, if they are to be
believable.

The two sanctuaries in the Florida Keys
offer a useful model of enlightened regula-

National Marine Sanctuaries: Challenge and Opportunity

tion, based on education of the visitors to
the sanctuaries.

The United Nations Conference on Envi-
ronment and Development (UNCED) in
Brazil in 1992 would be an ideal place for
this nation to demonstrate the initiatives
that this panel urges for enlightened stew-
ardship of these important natural and cul-
tural resources.

Recommendation:

The Administration, NOAA and the
Marine Sanctuaries program should
commit themselves to a leadership role in
protecting the resources entrusted to them.

Program Vision

Today the Marine Sanctuaries Program
lacks a clear statment of its vision. We
found that some individuals did have a
vision for the program, but that vision was
not widely shared, nor did every vision
coincide. The panel spent considerable time
identifying what it felt to be a posititve and
acceptable vision for the program, at-
tempting to define a sense of where the
program should be if it were to achieve the
goals that we felt reasonable and achievable.

By the year 2000, the National
Marine Sanctuaries Program will
manage a comprehensive and
integrated system of the nation's
most significant marine areas. This
management will be based on
ecologically sound, well-researched
principles of resouce protection
and sustainable use and will focus
as well on improving public
understanding of the nation's
marine heritage and in extending
sound marine resource
management principles to areas
beyond sanctuary boundaries.

In support of this vision, the panel identi-
fied the following objectives:

By the beginning of the next century
there should be in place a national
marine resources program to identify
and manage the resources of the
Nation's coastal and offshore waters
and Great Lakes. This program will
fully evaluate the ecological, cultural,
historic, recreational, economic and
esthetic values of these resources, and
provide a foundation for a reasoned
and comprehensive mangement plant
to protect these vital assets.

We will have made significant progress
toward the development of an inte-
grated network of coastal and marine
protected areas through strengthen-
ing existing sanctuaries, identifying
and designating additional sites within
the twelve biogeographical provinces
surrounding the Nation. Habitats and
living resources in these areas will be
identified and provided with what-
ever protection is necessary to ensure
their sustainable existence as elements
of functioning biological and ecosys-
tems; cultural resources will be simi-
larly protected.

Adequate funding and resources will
be available to allow the National
Marine Sanctuaries Program to
achieve these important objectives.
This will be made possible through
increased public support and aware-
ness, innovative funding mechanisms
and better use of existing resources
within and outside the program.

The principal goals of the program will
be to protect and sustain the use of our
biological and cultural heritage. Edu-
cational and interpretive programs will
communicate to citizens of this and
other nations the strength and value
of our marine heritage. In this way the
educational and interpretive programs
will develop a strong constituency for
its future. Research and monitoring
programs will allow us to evaluate
local and global forces that affect these
resources.

It will be necessary to consolidate and
coordinate the public and private

National Marine Sanctuaries: Challenge and Opportunity

agencies concerned with these resources
as a means of developing an integrated,
multiple-use system for their develop-
ment and protection. Only in this way
can the conflicting demands upon these
resources be reconciled in such a way as
to establish the minimum amount of
interference consistent with the over-
riding need to protect their existence
and to conserve them for the use of
future generations. The program will
be characterized by a willingness to
learn and to cooperate in defining and
achieving objectives shared by govern-
ment agencies, non-government
agencies and private citizens and groups.

Decisive action will be necessary to
allow this program to achieve its objec-
tives. Leadership will be required at the
national level to support it and to
ensure the commitment of adequate
financial and human resources. With-
out this support, the program must
inevitably fail; with this support, it can
only succeed.

Our vision may not be that of NOAA, which
ceratinly can and should feel free to identify
and incorporate its own concept of what the
program should be and become. It is not
important that ours be the vision adopted; it
is essential that some vision be adopted, and
that it be made widely known within the
agency, within the government and public
affected by the marine sanctuary program.

Recommendation:

NOAA should identify and endorse a
clear vsion of what it believes the Marine
Sanctuaries program should become,
consistent with its statutory mandate.

Program Mission

The panel condluded that the Marine Sanc-
tuaries Program lacks a clear statment of its
mission: today the priorities that must be
established within the agency to accomplish
its objectives, once established. In defining

the purposes of the original legislation, the
Congress took important steps to establish
a mission statement, buts its conception of
its mission should reflect the events that
have occurred since then. We suggest the
following mission statement, with the clear
recognition that Administration policy may
suggest alternatives, but again with the ad-
juartion that some statment of mission be
adopted and published.

We propose the following:

The principal mission of the program is to
identify, manage and protect areas of the
marine environment of special national sig-
nificance. To the extend that the following
objectives are consistent with this purpose,
it is also the mission of the program:

to identify and designate a representa-
tive network of biogeographically
representative ecosystems to ensure
the continuing biodiversity of our
cosastal and marine areas, linked to an
international system of biosphere and
wilderness reserves aimed at main-
taining the diversity of the Earth's
natural living communities;

to use the authority provided by its
own and other legislative instruments
for comprehensive and coordinated
conservation and management of
these marine areas, and areas that
affect them directly;

to develop coordinated plans for the
protection and management of these
areas with appropriate federal, state
and local agencies of government,
and with other public and private
interests that are concerned with the
continuing health and resilience of
these areas;

to support, promote, and coordinate
scientific research (especially long-
term monitoring and other long-
term research projects) on the re-
sources of these marine areas and
changes that may be taking place
within them;

National Marine Sanctuaries: Challenge and Opportunity

to enhance public awareness, under-
standing, appreciation and wise use
of the marine environment;

to facilitate all public and private uses
of these marine areas not prohibited
pursuant to other authorities;

to create models of and incentives for
ways to protect and conserve these
marine areas;

to main, restore and enhance the
diversity of the biological resources
by providing places of refuge for ex-
ploited species that depend upon these
areas to survive and propagate
themselves; and

to make a positive contribution to
global programs encouraging con-
servation and sustainable use of re-
sources.

It would a useful and important step for
NOAA< once it has defined a statement and
mission for the program that it finds conge-
nial and acceptable, to set goals to be met as
the sanctuary program goes forward. These
goals should be as specific as circumstances
will allow, and should incorporate specific
timetables and programmatic milestones.

Some of those goals will not be achieved
within the timeframe contemplated. This
should be considered not as a disaster, but as
an occasion to review those goals, to identify
those events that made it impossible to
achieve them, and to define more realistic
objectives in the future.

It must be pointed out that this goal-setting
process implies an ability to monitor events,
both in headquarters and in the field, that
does not appear to exist today. This situa-
tion should be rectified and much clearer
communications should be established in
both directions in the chain of command.

Recommendation:

A mission statment should be articulated,
identifying the steps necessary to achieve
this vision.

Budget

The existing budget for the Marine Sanctu-
aries Program is quite inadequate to meet
the demands made upon it today, far less
tomorrow, if the program is to be revitalized.
An annual budget of $4 million odes not
begin to meet the needs of the sanctuary
program in place today, to say nothing of the
program as it has been and is likely to be
further extended by Congressional initia-
tive.

While the panel was not able to specity a
definitive budget for the program, we can
recommend a process for constructing an
adequate budget. There are currently eight
sanctuaries in the system, and another eight
well on the way to designation. An adequate
budget for the Florida Keys National Sanc-
tuary alone would be $7-8 million. The
California sanctuaries, as a group (Channel
Islands, Monterey Bay, the Gulf of the
Farallones and Cordell Bank), should prob-
able receive a similar level of funding.

NOAA should build the sanctuaries budge
in three components: (1) a budget for op-
erating the sanctuaries themselves, which
would allow each sanctuary to accomplish
its fundamental purpose, (2) a separate bud-
get for selecting and designating new sanctu-
aries, and (3) a budget for administering the
program itself. Final funding for the pro-
gram should allocate amounts for each of
these components. We estimate that this
process would produce a budget on the
order of $30 million.

Although this would represent a major in-
crease in the budget for the program, the
returns on this investment would be at least
as great, in our view. To put this into per-
spective, it might be noted that such a
budget would be approximately 3% of the
budget of the National Park Service for the
coming year.

The panel was intrigued by the concept of a
regime in which federal funds might be
matched by contributions from state or local
sources, or perhaps be augmented by the
activities of a private foundation, as already
described. If such a system could be estab-

National Marine Sanctuaries: Challenge Opportunity

lished, the leverage of federal funds might be
considerably increased.

Can the program achieve the position that we
envision as a model of environmental re-
source management without additional
funds? We do not believe that it can.

Recommendation:

The Administration should request, and
the Congress should authorize, a budget
adequate to accomplish the purposes of the
individual sanctuaries, to establish new
sanctuaries and to administer the program.
For these three functions, an adequate
budget would be on the order of $30
million.

Improving the Designation Process

A substantial part of the budget for, and
management of, the marine sanctuary pro-
gram is now committed to the process of
preparing environmental impact statements
and designation of new sanctuaries. Not
harmful in itself, this process is draining
scarce resources from the actual management
of the sanctuaries already in existence. More
than half of the personnel in the program
office work in Washington, D.C. As the
program grows, the balance between the field
and headquarters staff should be reexamined
and the duties and responsibilities of head-
quarters staff redefined.

The designation process should be tied di-
rectly to the program's mission and vision.
Emphasis should be placed on designating
areas for the purpose of integrated ecosystem
mangement of marine areas, using the cri-
teria identified in this report (Criteria,
Number and Size, page 22).

NOAA should explore the possibility of as-
signing parts of this process to other compe-
tent agencies within the Department, where
this can be done without viriating the integ-
rity of the work that they also handle. It
should also reevaluate its priorities between
acquiring new sanctuaries and adequately

dealing with those already in the system.
There is very little sense to biting off new
pieces when it is already incapable of digest-
ing the old ones. If the Congress chooses to
impose new burdens on the program by
designating additional sanctuaries to be
manages and work to be done, the Congress
should also provide the necessary funds and
support to allow this job to be done compe-
tently and thoroughly.

At present, the sanctuary designation pro-
cess is estimated to require two and a half
years. This may be necessary, but it may also
be that this process could be shortened.
This question deserves attention.

The sanctuary Program Development Plan
is now more than eight years old--it is
possible that it is still perfectly suited to the
program, but that should be determined
anew. In like manner, the Site Evaluation
List and the process for determining what
gets placed on it should be examined in the
light of whatever decision the agency makes
on the future of the sanctuary program.

The Ray report bears on this point:

"A thorough revision of the SEL is necessary
to resolve how ecologically scaled represen-
tativeness may be achieved--i.e, at regional,
local, and inter-regional scales--and to
define what a "nationally significant"
sanctuary system should be. Sanctuaries
established on a hierarchy of scales are re-
quired to address such issues as sustainable
resource use, biodiversity, and global change.
This is a challenging scientific question that
requires state-of-the-art GIS, modelling,
and interpretation."

Recommendation:

Adequate resources must continue to be
available to the sanctuary designation
process. Rather than divert these resources,
new funding and personnel resources are
needed to manage effectively be
sanctuaries already in the system.

National Marine Sanctuaries: Challenge and Opportunity

Transfers of Resources and
Responsibility to the Field

The responsiblities of the sanctuary head-
quarters office should be clearly established,
and the lines of authority should be clearly
drawn. One step that should be taken at the
headquarters level would be to bring in
national research and education coordina-
tors to work with appropriate people in the
field and in other agencies as well. Specific
responsibilities that should be assigned to
these individuals would include: (1)
monitoring ongoing project; (2) develop-
ing research and education agendas to
support sanctuary activities; (3) developing
program priorities and helping to arrive at
an overall program budget; (4) facilitating
communication of the results of programs
developed within individual sanctuaries;
and (5) developing guidelines for research
and education activities and helping to
define job descriptions for people handling
these duties in the field.

Having achieved this, it is the panel's view
that there may be merit to relocating re-
gional managers from headquarters to new
regional offices much nearer to the field
sites. The sanctuaries are, after all, the
program's raison d'etre and the places where
the program will ultimately succeed or fail.
Such regional center need only accommo-
date the existing regional management
framework located in Washing, and
they should wherever practicable use space
and support staff already available to the
sanctuary program or its partner agencies in
the states. The establishment of effective
ways to maintain regular communication
upward to headquarters and outward to site
managers and partner agencies must be an
integral part of this structural adjustment.

Recommendation:

Headquarters should be charged with
placing sanctuary managers, setting policy
for sanctuary operations, providing strong
and effective guidance where appropriate,
and monitoring sanctuary operations to
see that policies and guidelines are being

followed. At the same time, much
responsibility for sanctuary management
and operations should be decentralized
and assigned to regional managers, or
sanctuary managers that are closer to the
sanctuaries themselves.

Responsibilities of Sanctuary
Managers

A first-rate sanctuary program will need
first=rate people to operate the sanctuaries,
and we ought not to settle for less. The
current selection process relies heavily upon
assignments from the NOAA Corps, pro-
vides little or no opportunity for adequate
training of managers, nor does it provide the
guidance and resources they need to do the
job properly.

If NOAA expects their field personnel to
work effectively with state and local organi-
zations, it must include, as an important
element of the selection process, the ability
to locate these people. Once in place, re-
gional and sanctuary managers should be
given encouragement and authority to handle
field operations without constant reference
to headquarters for decisions that should be
made in the field. Responsibility must be
assignable, and with it, accountability.

Permits for nonconsumptive scientific re-
search and educational activities ought to be
delegated to field offices instead of being
referred to Washington, as they now are. If
the field offices fail to fulfill their responsi-
bilities, the solution is to find the right
people in the field--not to further separate
authority from responsibility by clasping it
to headquarters' bosom. Clearly some per-
mits, involving significant risk to the integ-
rity of specific areas, should still be discussed
at length with agencies and people else-
where, but this decision ought properly to be
a function of the discretion vested in the
management of the system.

Regional and sanctuary managers should be
encouraged to develop new initiatives and
innovative programs with local communi-
ties and organizations. An excellent start has

National Marine Sanctuaries: Challenge and Opportunity

been made in the Channel Islands sanctuary the responsibility of the Executive Branch-,
to develop a range of educational materials providing thew resources is that of the
and programs, using resources cooperatively Legislative Branch.
developed with schools, museums, colleges
and ocher community groups. T'his kind of A successful marine sanctuaries program
effort should be given wide encouragement will ultimately stand or fall on the quality of
within NOAA in general, not just within the the personnel who carry it out. This is no
sanctuary program. reflection upon the capabilities of the people
currently involved in the sanctuaries pro.-
Managers should be enabled and assisted to grain; it is a clear call to identify and select
develop better lines of communication be- the right people to make it work in the
tween sanctuaries, as well as up and down the future. While there are undeniable advan-
chain of command. Periodic meetings of tages inherent in drawing site management
sanctuary managers, augmented by electronic personnel from the NOAA Corps, it is
mail capabilities, will help all stay abreast of important that steps be taken to develop
new developments, as well as take advantage and maintain a cadre of non-Corps manag-
of new concepts that appear to beworking in erswho can make a long-term commitment
one or mom of the individual sanauaries. to the marine sanctuaries program as a
As the sanctuary program develops, it will career.
inevitably be necessary to shape it to meet The program we propose is exciting and
local conditions. When and a the Florida will attract highly competent and moti-
Keys sanctuary takes shape, it will dearly be vated personnel. These people exist. They
beyond the ability of a single manager to should be identified, recruited where n
administer the entire area. as well as work say. trained and given the tools to allow
with state and local officials concerned with than to do the job.
the area. Similarly, as the sanctuary system in
California, and perhaps in the state of Wash- Recommendation:
ington, mature, it will almost certainly be
necessary to break these arms into subsets The program needs to identify, retain or
perhaps under the supervision of an overall attract and train high-caliber personnel.
sanctuary supervisor. Here again it will be
important to allow the delegation of author-
ity to the appropriate officials in the field.

Recommendation: Visibility

The program must attract, train and The Marine Sanctuaries program today is a
support effective sanctuary managers. Once well-kept secret with respect to other agen-
in place, managers should be encouraged cies in NOAA, the Department of Com-
to work closely with local groups and merce, the Federal Government and the
institutions. public at large. Most of those who know
something about it seem to have reserva-
tions about its adequacy or importance.
Even in the arean where sanctuaries are
located, it is often not easy to find the
sanctuary office, let alone people who are
Personnel familiar with and supportive of sanctuary
operations.
Many of the goals and objectives that we
believe reasonable for this program to achieve With all these constituencies, the sanctuary
depend upon the adequacy of financial and program needs, and would profit from,
personnel resources if they are to be achieved. much wider visibility and awareness of what
Today those resources are clearly insufficient. it mean, and what it could mean to them.
Requesting aqdequate financial resources is We are particularly sensitive to the need to

National Marine Sanctuaries: Challenge and Opportunity

develop closer cooperative relationships with program were to be reorganized and recon-
people in the communities directly affected stituted.
by sanctuary operations, and with those
who are most likely to visit and use sanctu- In terms of the Sanctuaries Program itself,
aries, but these are far from their only the panel considered it a maner of highest
potential supporters. priority to put into place as soon as possible
an effective, well-managed operating model.
Many more' people have heard, and have For a number ofreasons, chiefly having todo
strong positive feelings, about the Grand with the integrity and geographical reach of
Canyon and the Great Barrier Reef than the system, we recommend that the pro-
will ever visit them. Ile Florida Keys, to posed Florida Keys National Marine Sanc-
take one ample, could achieve that kind tuary be so designated and established.
of public support and encouragement if The highest level of priority should be given
NOAA were to develop the public aware- to strengthening the management of exist-
ness and understanding that it could, if it ing sanctuaries and developing more effec-
were to seize the opportunity. tive, well-managed operating models from
The panel feels strongly that the program the sanctuaries now in the process. Fot
should be elevated in importance within different reasons, the sanctuaries currently
NOAA, removing it from the relative ob- under development for the Floria Keys and
scurity in which it now languishes and the Central California sanctuaries offer out-
placing it at a point in which the Adminis. standing opportunities. NOAA should rec-
trator is directly involved. If the Sanctuaries ognize this, take fill advantage of the oppor-
Program were redesigned as a Program tunity and make a priority of the rapid
Office within the National Ocean Service, development of these excellent models.
at the level of the four other offices within
that service (Charting and Geodetic Ser- Given its integrity, geographic reach and its
vices, Ocean and Earth Science Ocean international reputation, the Florida Keys is
Resources Conservation, and Assessment an excellent choice to be brought on line as
and Ocean and Coastal Resource Manage- soon as this can be done. This would involve
ment), it would providea measure ofvisibil- an open and complete public planning pro-
ity and vitality that it critically requires. If cess, a well-designed research and monitor-
the program is to achieve the kind of pre- ing agenda, an expanded enforcement pro-
eminence that we believe it capable of, and gram patterned after the one already in the
assume the leadership role that we contem- Key Largo and Looe Key sanctuaries, and an
plate, it must clearly assume a larger role education and outreach program. It would
within the agency. also require adequate staffing, clear rules and
regulations, adequate facilities, the continu-
Recommendation: ation of an already well-desinged and defined
working arrangement between the federal
The sanctuaries program needs to be and state governments, which participation as
given higher visibility and status within appropriate on the part of local authorities,
the agency, with other agencies and with an adequate operations budget and the influ-
the public. It should be elevated to Officer sion of additional trained and competent
status within the agency. mangers. It will probably be useful to sub-
divide the management of the Floride Keys
Sanctuary into as many as four subdivisions
under the overall direction of a sanctuary
supervisor, retaining close working arrange-
Priorities ments between the subdivisions.

The panel has looked carefully at the priori- Similarly, the marine resources of Monterey
ties that appear to exist today, and at what Bay, and the Central California coast, com-
it considers those priorities might be, if the bined with their visibility and the extraordi-
nary level of public support for resource

National Marine Sanctuaries: Challenge and Opportunity

protection and the sanctuary program in the
area, offer an important opportunity to the
sanctuary program. The strong public sup-
port in the area makes this priority particu-
larly attractive, since it virtually assures suc-
cess if an effective sancturay system can be
established. Equally importantly, the in-
formed and environmentally-oriented com-
munity in the area will view this effort as a
failure unless the sanctuary's boundaries and
regulations provide real protection from
threats to this system's integrity, including oil
and gas activities, vessel traffic, overfishing
and pollution. The operational elements
mentioned in connection with the Florida
Keys sanctuary will also be important for this
effort.

Although these would surely be ambitious
undertakings, the time effort and resources
required to create such model operations
would be well repaid in heightened public
appreciation and support for the Marine
Sanctuaries Program.

It is also important to assign some sense of
priorities in the designation and establish-
ment of sanctuaries themselves. Individual
sanctuaries may, and usually will, satisfy a
number of criteria. It would be useful and
important for the sanctuary system to en-
compass areas adjacent to the United States
in such a way as to incorporate a true sample
of each of the twelve biogeographical prov-
inces that have been identified in U.S. waters.
As it happens, the Florida Keys precisely
meets this criterion. Within these provinces,
it should further be possible to take steps to
protect and enhance their biodiversity, and
this is an important element of an effective
sanctuary system.

A number of values are likely to be incorpo-
rated in any existing or proposed sanctuary.
Some of these values will be present, to some
degree, in most areas. Principal among these
are the biological and ecological values that
they contain, but other values are to be found
as well: recreational, economic, esthetic and
cultural/historical. How these are to be ranked
or weighted is a complex decision, not within
our capability to resolve at this time. Still, it
is important to recognize that this multiplic-
ity of values does exit and that enhancing

and protecting these values is a vital element
of this program.

Recommendation:

A high priority should be assigned to
strengthening the management of existing
sanctuaries and utilizing the tremendous
opportunities to develop strong effective
model sanctuaries in Florida and
California. In addition, priority should
be given to new sanctuaries that will
enhance biogeographic representation
and plug gaps in the existing systems.

Cooperation with Other Programs

At present, the sanctuary program is small
and is not generally known within other
agencies of government, or to the public at
large. Where it is know, it is frequently
regarded as an irritant or as essentially irrei-
evant to ongoing activities.

This program cannot achieve its objectives
acting alone, not should it attempt to do so.
Others, inside and outside government,
have parallel or complementary objectives,
and it is only good sense to work with these
to achieve a purpose that all can support. A
vigorous outreach program would, we be-
lieve, pay handsome dividends.

Heightening the visibility of the program
will be an important step in this direction--
people can't help you do you job if they
don't know what it is or who you are. The
other half of the equation involves selling
your program--letting people know how
they themselves will benefit from what it is
you are trying to accomplish.

There are already several federal agencies
whose programs intersect those of the Ma-
rine Sanctuaries Program. many of them
are within NOAA (Hazardous Materials,
Strategic Assessment, Endangered Species,
Marine Mammals, Sea Grant, NMFS,
Coastal Zone Management are included in
this list, and there are almost certainly oth-

National Marine Sanctuaries: Challenge and Opportunity

ers). Sanctuaries and their operation inter- there are, of course, always additional steps
sea with several other existing NOAA pro- that might be taken.:
grams, and some thoughtful work should
be done on the ben way to integrate these. In situations where other agencies share
Among these, NMFS, Sea Grant, CZM, enforcement and protection responsibilities
etc. are currently performing research thar with the Marine Sanctuaries Program (eg.,
could be done in marine sanctuaries, thus marine mammals and endangered species),
satisfying needs of both agencies. For ex- memoranda of understanding should be
ample, marine mammals can be found, developed, specifying what tasks should
some of them also endangered or threat- take on. These memoranda should be used
ened, in the California sanctuaries. Pre- to strengthen and enhance, not weaken, the
cisely who assumes who role for their program's Protective mandate.
protection and management may not be The Chairman of the Great Barrier Reef
dear-it certainly was not clear to us. Other Marine Park Authority, has commented
agencies in the federal government have eloquently on this Point: "... it will be dear
extensive responsibilities that affect coastal that the key to any successful program will be
and marine ecosystems, such as the De- public support. This only comes from de-
partment of the Interior, the Corps of En- liberate and enthusiastic involvement ofthe
gineers and the Environmental Protection public in A elements of planning and re-
Agency- search. I cannot emphasize this point too
State governments also have considerable strongly. Bureaucrats, who often judge the
powers and duties that affect the manage- value of their lives according to the power
ment of resources, as well as education, they have wielded either publicly or coverly,
research and law enforcement Closework- fight like the devil to prevent the public from
ing relationships with state agencies is an having any real say. This is a formula for
essential element of an adequate marine failure, If you want to do what we have done.
sanctuaries system, and important strides you will need to work very closely with the
have already been taken in this direction. Non Government Organisations (NGOs)
Cooperation with the State of Florida is as your allies None of the above implies that
strong and effective, and should serve as a the public actually has the decision making
model for such efforts in other states. power. Neither does it suggest that you will
ever get agreement from all of the public, nor
All services of NOAA. and its state partners that you will get full agreement from any
in the sanctuaries program, should examnine sector of the public (eg., an NGO). How-
the merits ofusing these sanctuaries as their ever, as Churchill said about democracy 'it is
public 'windows" on the marine environ- a very poor system, but it is much better than
ment--places wherein not only the sanctu- any alternative'.' (Letter from Graeme
arias program itself but also other NOAA Kelleher to Frank Potter, December 20,
and state marine environmental manage, 1990.)
ment and research programs can reach a NOAA should develop an energetic and
much broader public audience than is cur- comprehensive program to increase public
rently available to them. The benefits of awareness and support of marine sanctuar-
heightened cooperation among agencies, ies. One step might be to proved a range of
and of much greater public awarenes and materials for public education, such as inter-
understanding of marine environmental pretive exhibits, formal and informal edu-
issues, and government initiatives to address cation materials, public television programs,
videotapes and other educational materials.
Local communities have perhaps the stron- These could be made available in local com-
gest direct interest in a workable marine munities through aquaria, museums, dive
sanctuary program, since it is here that the shops and other organizations interested in
cases today, relationships with local institu- water activities. The Great Barrier Reef Ma-
tions are already close and supportive, but rine Park Authority has developed just such

National Marine Sanctuaries: Challenge and Opportunity

an array of informational materials, and it
plays an important role in ensuring that
program's justly deserved international
reputation. We are not her eproposing yet
another barrage of brochures and glossy
handouts, but material with some depth and
weight, that will inform what we believe to be
an interested and supportive constituency for
the rejuvenated program.

The story that NOAA should be communi-
cating is that of the positive impact that a
healthy marine ecosystem can have, and the
steps that are necessary toa chieve this objec-
tive. Where concentrated tourist use of a
sanctuary can threaten the quality of condi-
tions in the sanctuary, that story must be told.
NOAA has already produced materials for
some of the waters for which it is responsible
in Florida, and this effort deserves to be
amplified and communicated to a wider
audience.

National and local organizations with envi-
ronmental concerns are an obvious constitu-
ency for the marine sanctuary program, and
here NOAA's record is mixed. In some re-
gions, good working relationships have
evolved, and in others, bureaucratic dragons
thrive. It would be very much worth the
effort to improve these connections wherever
possible, enabling organizations with strong
local and national memberships to pass on
the message that the process of cleaning up
and protecting critical marine areas has begun
and that this is an issue in which everyone has
an important stake.

A critical element of this message is that these
systems, like most environmental systems,
are ones for which a longer-term vision is
ncecessary than is customary in decision mak-
ing today, particularly in the public sector. In
the recent past, there has grown up a doctrine
of discounting assets for the future. Such a
concept may perhaps make sense when ap-
plied to standard economic assets and values--
it makes no sense at all when applied to the
physical environment that supports life on
this planet. To treat the future of an essential

element of a support system that involves
tiny elements of an ecosystem, such as
microbes and algae, and large elements of
that system, such as trees, whales and man,
as irrelevant in the very near future (a dis-
count rate of 10% assumes a zero value in
less than eight years) is, it seems to us, a
philosophy that is leading us in the wrong
direction. NOAA could play an important
role in reversing this trend.

Recommendation:

The Marine Sanctuaries program must
develop effective, cooperative and
supportive working relationships with
other institutions and oranizations with
related interests.

Experience in Other Programs

We have already mentioned the Great Bar-
rier Reef Marine Park as an important
potential model for the U.S. system. NOAA
could profit from a careful review of that
park, with particular attention being paid to
the success which it has achieved, as well as
the problems that it still faces. The working
arrangement that has evolved over the years
between the Australian national and state
authorities may suggest similar possiblities
for consideration as the U.S. system devel-
ops. The Florida Keys sanctuary is a place
where such insights might be invaluable.

Other nations have taken steps that might
offer useful information on opportunities
and risks for an ambitious program for
marine sanctuaries. Canada, England, New
Zealand and Scotland have all done some
innovative work in this field. The office of
the World Conservation Union (formerly
International Union for the Conservation
of Nature) in Gland, Switzerland has devel-
oped a large database of national laws and
regulations that might be particularly useful
in designing such a system.

A relatively small amount of time and en-
ergy spent in examining these experiences.

National Marine Sanctuaries: Challenge and Opportunity

might be well invested in seiaing opportuni-
ties and avoiding problems in the United
States Marine Sanctuaries Program.

Recommendation:

NOAA should carefully examine and
evalutate similar programs now in place
or under development in other countries.

Criteria, Number and Size

The number of the unites in the National
Marine Sactuaries Program, as well as
their size, will be determined by the desig-
nation of sites based on a clear set of site
seltection criteria. These critera focus at-
tention on the marine areas that best fulfill
the goals and objectives of the program.

Site selection criteria may be divided into
two braod categories:

A) Outstanding marine areas (on a rela-
tively large georgraphical scale) representa-
tive of the biogeographical provinces of the
U.S. coast and,

B) Area that meet one of more of the
following criteria:

They contain habitats and/or living
resources that are unique in their
occurrence.

They contain unique or outstanding
ecological, biological, geological,
oceanographic, cultural or historical
resources.

They contain habitats critical to rare,
threatened or endangered species.

They contian habitat critical to the
conservation of living marine re-
sources.

They represent relatively pristine/un-
disturbed coastal marine resources

They are areas in which harvest regia
(reproductive refuges) shoul be

designated to maintain or replenish
depleted living resources.

They are ares of particularly high
natural productivity.

They are significant in maintaining
biodiversity in coast marine ecosys-
tems.

The marine sanctuary system today con-
tains several distinct areas, each with its
own unique set of resources, problems,
and opportunities. These are locate din
five of the twelve recognized biogeo-
graphical provinces in U.S. coastal waters.
Beginnning off the coast of Maine and
proceeding in order, they are: Acadian,
Virginian, Carolinian, West Indian,
Louisianian, Vera Cruzan, Califonian,
Orgeonian, Sitkan, Aletian, Arctic/
Subarctic and Indo-Pacific. (For a more
complete description of these, refer to
Figure 1 and Table 1 in Appendix B, "A
Future for Maine Sanctuaries."

Five of these now contain sanctuaries that
meet at least some of these criteria; when and
if Stellwagen Bank, Norfolk Canyon and
Flower Garden Bank are added, this will
bring the total to eight. In the case of the
Flordia Keys, Channel Islands, Gulf of the
arallones, and Cordell Banks, the units
provide sufficient resources to protect biodi-
versity and offer an opportunity to create
one or more reporductive refuges where
depleted species could recover.

In giving attention to the completion of the
marine sanctuary system, it is important that
the sanctuaries program not attempt to be all
things to all who bring their expectations to
them. Early scientific attention should be
given to the thorny question of how much
representation of a biogeographic province
is "enough." It should be borne in mind that
the ideal would be for sancruaries to be
capable of management as functioning econ-
systems. The regions encompassed should
be large enough to be managed with full
regard to those elements and resources that
allow them to function as ecosystems. Useful
guidance may perhaps be taken fromthe
Brunddand Commission's recommendation
that 12% of the Earth's surface should be set
aside within protected areas, although the

National Marine Sanctuaries: Challenge and Opportunity

adequacy of that standard in marine environ-
ments warrants more study-it may be too
low.

The larger sanctuary units (like the Florida
Keys or Mnterey Bay) can provide the focus
and marshall the resources necessary for a
coordinated long-term reserach and moni-
toring program. Such an effort could be
directed toward achieving comprehensive
understanding of the systems ecology of
marine areas of significan size and scope.
Models deveoped for these area will be
useful not only to inform the ongoing re-
source management for the specific snactu-
ary units, but also as models which might be
applied to other and larger marine areas
throughout the world.

It is understood that while the National
Marine Sanctuary Program can hope to de-
velop informed and comprehensive man-
agement plans for the sanctuary units them-
selves, the effective management of the
majority of marine resources, both living and
non-living, will require the coordinated efforts
and significant levels of research funding
from other NOAA offices as well as other
agencies of government.

We are unquestionably seeing increasing signs
of accelerating degradation of living marine
resources. Marine sanctuaries offer the pos-
sibility of arresting, and perhaps even reversing
that process, at least in some areas. In fact, this
is already happening in some sanctuaries,
although on a very small scale: Large fish are
beginning to return to Loose Key after limi-
tations were placed on the manner in which
they may be taken.

The global climate change that may already
be occuring may be particularly relevant to
fragile marine ecosystems. Today we have
little ability to monitor those changes. Fur-
ther, it might be possible-and if possible, it
would certainly b eenormously useful-to
use marine sanctuary areas as laboratories to
develop insights into relationships of resource
protection to its long-term sustainable use.

The last twenty years has seen the evolution
of the concept of "biosphere reserves," of
areas to be protected a scritical elements of
important ecosystems. The concept has taken
hold on land, and a number of areas have

been established that meet the criteria es-
stablished for such regions. Marine sanctu-
aries would be a perfect example of what might
be done with such a concept and the
Florida Keys Marine Sanctuary may be
ideally situated for such status. The Man
and Biosphere program should be reviewed
in the light of its particular and potential
relevance to a revitalized Marine Sanctuary
program. Here again, NOAA is confronted
by a real opportunity.

Recoommendation:

At a minimum, each of the
biogeographical provinces in U.S. waters
should be represented in the system, with
one in each of these being sufficiently
large to offer reasonable assurance that
these regions will be adequately
represented. In addition, sanctuaries
should be established to protect natural
and historical ares that contain rare,
critical, unique, outstanding or otherwise
special resources, and there should be
further analysis of how much
representation is required in the system.

Outside Review

The panel has had a excellent, albeit limi-
ited, opportunity to examine the overall
direction of the marine sanctuary program.
Some deficiencies and shortcomings have
been disclosed that, from the advantage of
distance, seem fairly obvious, although they
may not have seemed so to peope charged
with everday operation of the program.

The program should continue to use out-
side review as a check on its progress. We are
not requesting reappointment, but we do
recommend that some comparable institu-
tion be created as an "Advisory Committee,"
with all the attendant rules and obligations
that such committees are subject to, is
beyond the scope of our review. Another
possibility is that such a panel be given

National Marine Sanctuaries: Challenge and Opportunity

authority comparable to that of the Marine
Mammal Commission, which can make
recommendations to the Secretaries of
Commerce and Interior that must be re-
sponded to.

Individual sanctuaries could also profit from
closer involvement with advisory groups.
Some may feel that this could make it
impossible to reach decisions-that oper-
ating in a "goldfish bowl" may inchibit
sound decision process. We find this ar-
gument uncompelling and suggest that local
communitiies may find it much easier to
support sanctuary activities if they are al-
lowed to play a greater role in guiding their
operations.

Recommendation:

Regular independent review should be a
continuing element of the sanctuary
program.

Creation of Supporting Institution

Organizations, some with federal charters,
exist to fill these roles with respect to other
programs. The National Park Service and
Fish and Wildlife Service have such organi-
zations associated with them.

Such organizations can serve at faoci for
national publicity programs, as centers for
private fundrasining to support individual
areas, and to act as interfaces with local or
commercial ventures anxious to play a posi-
tive role in furthering program objectives.
Interactions between such organizations and
their federal counterparts can be valuable
for all concerned.

Recommendation:

NOAA should explore the possibility of a
national nonprofit organziation that is
in a position to advise and encourage the
marine sanctuary program; local

cooperating organizations can also be of
great value to the operation of sanctuary
programs.

User Fees and Outside Support

In recent year, the concept of "user fees" has
been widely discussed a supplement to
regular legislative apropriations. We are
unable to specify what those fees should
cover, what their level should be, or how they
should be collected, but we do note the
success of the "Golden Eagle Passport" pro-
gram in the National Park System and
suggest it as a useful example for further
study with respect to the sanctuary system.

Fines and penalties from ship groundings
and other violations of regulations are cur-
rently allocated to the sanctuaries themselves;
this practice should be continued, and per-
haps even amplified by making certain that
all those funds be allocated to the sanctuary
in which the violation occured. SImilarly,
vessel confiscations as a result of criminal
activities may continue to provide an im-
protant asset to the program.

NOAA may also wish to look into the
posibility of establishing concession ar-
rangements for activities associated with
sanctuary operations, alghough we are aware
that this is an area not without controversy,
and that we may conceivably be opening
Pandora's Box in suggesting it. Accordingly
we do no more at this point than suggest it
further consideration.

Recommendation:

Part of the costs of the sanctuary program
should be borne by the constituencies it
serves.

National Marine Sanctuaries: Challenge and Opportunity

Review of existing
intergovernmental agreements

The sanctuary system has evolved and changed
in the years since its inception. Arrangements
that may have worked well in the past should
be review in the light of new circumstances
and conditions. For Example, the State of
California has been assigned responsibility
for regulatory enforcement in sanctuaries in
and near state waters. ITs enforcement budget
and program are clearly inadequate to meet
the demands on the system. Most of the
funds supporting enforcement come from
permit fees levied upon fishermen who op-
erate in coastal waters. State enforcement
agents are understandably reluctant to en-
force regulations upon these fishermen, since
vigorous enforcement might well drive some
marginal operators out of business, thus
further eroding the financial base of the
enforcement program. The result, in the
Channel Islands, at least, is that the local sea
urchin and abalone resources have been
devastated by overfishing; paradoxically,
scarcely any of these animals can nob e
found within the Channel Island sancutary
itself. The "Tragedy of the Commons" re-
asserts itself, and we are the poorer for it.

A more useful example may suggest itself
from the cooperative working arrangements
with enforcement personnel in Florida. Here
the concept of "interpretive enforcement"
seems to work well, as it does in Australia,
where enforcement responsibilities have been
undertaken by officials of Queensland. In
these cases, enforcement officers exist as an
improtant element of public contract, not just
as police officers checking permits and visitor
activities, but also as helping visitors under-
stand what activities may be harmful to the
reef and how to avoid these.

Our remarks should not be taken as necessar-
ily critical of California, but as suggestions
that we may be able to learn useful lessons
from other places, and that those examples
could perhaps replicate themselves in new
territories. In a similar vein, the educational
programs that have been developed in Cali-
fornia and Georgia (in connection with the
Gray's bank sancruary) could well suggest

themselves a useful models elsewhere in
the sanctuary system.

Time has passed since the sanctuary system
was first established, and NOAA ought
now to be in a position to derive some useful
experience from the history of individual
sanctuaries, and to explore the possibility of
transferring this expereince elsewhere within
the entire sancutary system.

Recommendation:

Existing intergovernmental
arrangements with state and local
authorities should be reexamned and,
where appropriate, renegotiated by
NOAA.

Name of the program

There has been considerable discussion
about the value of changing the name of the
program. The panel concludes that the
program's name should not be changed
without a clear and compelling reason to do
so.

Recommendation:

The name of the program should not be
changed.

Zoning

One characteristic of successful marine pro-
tected area programs is that they provide a
complex and sophisticated ocnception of
multiple use of marine resources, while at
the same time ensuring the protection of
vulnerable species, communities and habi-
tats. Use of thes resources can be separated
by boundaries of space, time or both. Zoning
of large sanctuaries is very much as option,
and this is a practice that has been imple-
mented with great succes on the Great
Barrier Reef (Included with Appendix B is
a matrix showing zoning practices in the

National Marine Sanctuaries: Challenge and Opportunity

Cairns Section of the Great Barrier Reef.)
Zoning is also an important management
tool in may other international marine
protected area programs.

Zoning systems have also been suggested
for sanctuaries in the country. Once the
system begins to include large areas, such as
the proposed Florida Keys Sanctuary, an
effective zoning system will becom an
essentail management tool. Within a
properly designed sanctuary system some
species and habitats will receive almost
complete protection, but this is certainly
not the case for all areas, at all times and in
all places. There will undoubtedly be a
requirement for zones of strict preservation,
or "harvest refugia," but there will also be
zones within which varying intensisties and
types of resources use can be accommodated.
Zonation will always province a degree of
protection not available outside sanctuary
boundaries.

NOAA has already initiated the study of
zoning concepts, both internally and in
discussions with managers of protected ar-
eas in other nations. This work must con-
tinue, with a view to putting in place effective
zoning systems when management plans
are prepared during the designation process
for large new sanctuaries such as the Florida
Keys sanctuary, and those proposed for
Monterey Bay, the Outer Washington Coast
and Puger Sound. An important part of this
task will be to determine what resource uses
and scales of use are appropriate to the
various zoning categories that are identified.

Recommendation:

NOAA should devise and adopt an
appropriate zoning system for national
marine sanctuaries as a priority matter,
beginning with the new, large sanctuaries
now in the designation process.

Relationship with National
Esttuarine Research Reserves
Program

Another thorny and ultimately unresolved
issue has to do with the relationship betwwen
the marine sanctuary program and the es-
turaine research program authorized
by the Coastal Zone Management Act
(which, not entirely coincidentally, was also
enacted into law in 1972). The programs
have much in common, and NOAA, not
unreasonably, moved both programs into the
same office.

A comparison of the two programs (Appen-
dix C), is instructive, showing the similari-
ties between the two programs, as well as the
differences, which are also important. If, as
we suggest, the sanctuaries program should
be elevated within NOAA, and perhaps
moved elsewhere within the agency, it will
also be important to maintain good working
relationships between the sanctuary and es-
tuaries programs.

"These programs both have
strong features that can be
enhanced via synergism. Some
estuarine and marine sanctuaries
coexist in a ecological and
regional context, especially over
wide continental selves....
Management of these can be
coordinated and directed toward
land/sea ecosystem protection.
Coordiantion could benefit
program management,
education, and research, as well
as simplify management."

We concur completely.

National Sanctuaries: Challenge and Opportunity

Recommendation:

The Marine Sanctuaries Program and
the National Estuarine Reserach Reserve
Program have much in common and
should continue to be encouraged to work
closely together in the future, as they have
in the past.

Development of research and
education agendas

Here, we can do no better than to cite the Ray
report once again:

"The NMSP, with experience
gained from Estuarine Research
Reserves and other programs such
as the National Park Service,
should develop a research agenda
that is directed towards
conservation and management,
but that is also open to basic
research. This requires that a
reaserch coordinator at a senior
level be hired to help identify
research needs at national and site
levels, and to develop a research
and monitoring PDP. Efforts
should be made to develop projects
that can address the major
environmental problmes of the
'90s and that are cognizant of the
many on-going programs of
NOAA and other agencies, as well
as internationally.

"Similar to the Research Agenda,
an Education Agenda would guide
educational goals and differentiate
between education and public
relations. Such an Agenda could
determine how best to utilize
services that can complement both
the Program and local interests."

A clear agenda for research and education
would go far to demonstrate to the public
NOAA's commitment to a vital, functioning
marine sanctuary system.

The National Research Council has created
a Committee on the Coastal Ocean to focus
on coastal ocean science, particulary on
issues that are not currently receiving ad-
equate attention, and that might benefit
from a fresh assessment effort using data
and information available today.

The sancutaries program is not represented
on this Committee, but it should be, be-
cause this Committee's efforts are concen-
trated on precisely the kinds of issues that an
ongoing and alert sanctuary program must
deal with.

Recommendation:

NOAA should develop clear research
and education agendas for the Marine
Sanctuaries Program. These agendas
should be fully integrated with the
research and education agendas of other
NOAA agencies and also, to the
maximum extent possible, integrate these
agendas with those performed outside
NOAA by other federal agencies, and
private and international organizations.

NOAA should ensure that all its coastal
and marine programs are appropriately
represented on the National Research
Council's Committee on the Coastal
Ocean.

Panel Conclusion:

If the issues discussed in this report are
clearly addressed by the Administration
and the Congress, the Marine Sanctuaries
program can achieve success and meet
the expectations created when it was
established in 1972. All that is required
is the resolve to make it happen.

Appendix A

Members, Marine Sanctuaries Review Panel

Brown, Jim; Executive Training Director, NAUI
Calkins, Jay; Director of Marine Extension, Sea Grant, Georgia
Dykstra, Jake; President (ret), Pt. Judith Cooperative

Hurnke, John; Vice-President for Agency Relations, Nature Conservancy

McVery, Pamela; Director, Division of Marine Resources , Florida Department of Natural
Resources

Naab, Michael; Director, Maritime Preservation, National Trust for Historic Preservation

Peschke, John; American Petroleum Institute
Porter, Frank; Secretary-Iteneral, International Network for Environmental Policy

Sobel, Jack; Director, Marine Protected Resources Program, Center for Marine Conservation

Taylor, Sarah; Executive Director, Critical Area Commission

Webster, Steven; Education Director, Monterey Bay Aqualium

Yurick, Douglas; Assistant to the Assistant Deputy Minister, Canadian Parks Service

Appendix B
GREAT BARRIER REEF MARINE PARK -PERTINENT FACTS
The Great Barrier Reef Maxine Park in Australia, currently some 350,000 square kilometers in
area, was established as a marine park by the Great Barrier Reef Marine Park Act of 1975. It
stretches along the northeast coast of Q_ueensland for roughly 2,000 kilometers, and contains
within its boundaries roughly 2,900 individual reefs. At its northern end, the Great Barrier Reef
is narrow, consisting mainly of "ribbon" reefs; to the south it widens, and is characterized by
"patch7 reefs.

'Mat legislition, drawing in pan upon precedents in the United States' enactment of the Marine
Protection, Research and Sanctuaries Act of 1972, created a Marine Park Authority, a
Consultative Committee to advise the government and the Authority on matters pertaining to
the Park. The Act also requires zoning plans for all areas within the Park, with extensive public
participation and involvement; these must be submitted to the Parliament for review.

Ministerial Council

In 1979, the Great Barrier Reef Ministerial Council was established to coordinate licy on the
Reef with the Parliament. 'Ne Council has four members, two from each house. Re Council is
chaired by the Minister for the Environment, currently the Honourable Ros Kelly.

Consultative Committee

This is a 12-16 member advisory body set up to represent various interests in the Reef Named by
Minister and Authority, it represents interests including tourism, fishing, conservation, science
and the Aboriginal and local government communities.

Reefplanning and zoning
The planning process is elaborate and extensiv@visitors to the park are invited to make
recommendations for improvement in the zoning plans as they are being developed and
amended. At presen4 the park has four subdivisions: the Mackay/Capricom Section is the
southernmost of these, followed by the Central Section, the Cairns Section and the Far
Northern Section, ending at the northern tip of the continent. 'Me Cairns Section was recently
rezoned by theAuthority following a period of extensive public comment and review, increa d
from three to five months to accommodate needs for broad representation.
Attached is a matrix showing various activities permitted (in this case the Capricomia section) on
the Reef, together with a summary of the zoning plan and procem

S taffit xg
Ile Authority has a smaH off= (staff of four) in Canberra, and a law office in Townsville,
immediately Ajacent to the WiwE At present, Ile Authority employs roughly 100 people,

Aquarium
Also in Townrvrille is an aquarium, operated by the Authority and paid for by admission fees and
Aquarium shop Isales. In 1989-90, approximately 200,000 people visited the Aquarium,
diminishing to some extent the pressure upon the Reef itsq, and informing the public about the
need to use the Reef more wisely.
In*1989-90, the Parliament appropriated $1 million (Australian S) to provide working capital for
the Aquarium. Receipts from Aquarium activities were approximately $1.618 million from the
Aquarium.

Human use of the Reef

The Marine Park Authority estimates the value of Reef-related activities to be on the order of $1
million per year, in terms of tourist income to the area. In 1986-7, the last year for which figures
are available, the Authority estimated an estimated 162,000 visitor trips to the Reef, resulting in
1, 018,000 visitor nights spent at resorts in the area, and the contribution of $175.6 million at
resorts in the area.

Budget
For the fiscal year ended June 30, 1990, revenues for the Park Authority were $12.492,874. Of
this amount, $9.266 million was contributed by the Commonwealth, $2.191, 140 was
contributed by Q_ueensland for day-to-day management, and the balance was miscellaneous
revenues (permit fees, fines, etc.).
For the same period, expenses were $11,647,583 ($1.534 adrn inistration; $2.902 reseaich and
monitorinr, $1.269 planning and rnanagerrietir, $1.201 education and info=mation; $948 0
environmental impact management and $4.791 to Q_ueensland for day-to-day management).

Management and en
'Mere is in place a cornpl= arrangement between the Commonweadth and the state of
Q_ueensland covering mnagementof the am and the cost of bWW4 and maintainin the
capital assets associated with it in essence, much of the day-w-&y, hands-on activity associated
with the operation of the park has been delegated to the various agencies i4thin the Q_ueensland
government, chiefly the %yeensland National Parks and WdWe Service.

Zoning
"The Great Baxrier Reef Marine Park is not a National Park. It is a multiple-use
protected area, fitting the definition of Category Vill of the classification system used by
IUCN, the World Conservation Union (8). It also meets the criteria for selection and
management as a Biosphere Reserve (Category IX), although it has not been formally
proposed or established as one. The Reef was inscribed on the World Heritage List in
1981 as a natural site (Category X).
"Through the use of zoning, conflicting activities are separated, areas are provided which
are suitable for particular activities and some areas are protected from use. Levels of
protection within the Park vary from almost complete absence of restriction on activity
in some zones to zones within which almost no human activities are permitted. The only
activities which am prohibited throughout the Park are oil exploration, mining (other
thin for approved research purposes), littering, spearfishing with SCUBA and the taking
of large specimens of certain species of fish.
"In the zoning plans which have been developed so far, there are three major categories
of zones. They are

I Preservation zones and Scientific Equivalent to IUCN Category 1,
Research zones Scientific Research/Strict Nature
Reserve. The only human activity
permitted is strictly controlled
scientific research.

2. Maxine National Park zones Equivalent to IUCN Category 11,
National Park. The major uses
pemitted are scientific, educational
and recreational.

3. General Use zones Equivalent to IUCN Categories IV,
Managed Nature Reserve and Vl,
Resource Rerves. Uses are held at
levels which do not jeopardize the
ecosystem or its major elements.
Commerical and recreational fishing
are generally permitted, although
bottom trawling is prohibited in one
of these two zones.

"The zones are find during the life of a zoning Plan (generally five years). They are
complemented by generally smaller areas which give special. protection from time to time
to animal breeding or nesting sites, to sities in general use and other zones which are
required to be protected to allow appreciation of nature five from fishing or collecting
and to sites, suitable for scientific research.
"Because then has been a dramtatic increase in the use of the Marine Park by tourists, the
existing zoning system, which focuse on fishing, is proving inadequate. There is

increasing competition for tourism use of particular sites. Usually these sites are near
major areas of coastal development (e.g. Cairns or Townsville) or have particular
attributes which make them suitable for tourism - the Whitsunday Islands, for example.
"At a special conference arranged by the Authority in late 1988, participants agreed that
there was a need to incorporate into the zoning system a tourism strategy. This strategy
would identify those areas which are particularly suited to tourism development and those
that should be retained in their natural state, undisturbed by such development.
" The strategy is being implemented through the zoning system, initially in the rezoning
of the Cairns Section of the Marine Park It will be extended to the other three Sections
as they are rezoned during the next five years. Initial zoning of the entire Marine Park
was completed on schedule in 1988-Australia's Bicentenary.
"A major constraint in zoning for tourism his been that many tourists like to observe the
natural qualities of the Great Barrier Reef undisturbed by fishing. Modem technology
allows them to do this from semi-submersible vessels and from underwater observatories.
If carried out with care these activities can have very little if any effect on the Reef s
ecosystem. They are, in other words, compatible with the Authority's goal. The need to
provide for such activities in zones which are protected from fishing has led the
Authority to consider adopting a slightly different zoning system as follows:
Zone Name Relation to Previous Zoning
System

1. Preservation Zone Incorporates old Preservation and
Scientific Research Zones

2. Marine National Park Zone Same as old Marine National Park
B Zone

3. Marine Park Recreation Zone Same as old Marine National Park A
Zone
4. General Use (No Trawling) Zone Same as old General. Use B Zone
5. General Use Zone Same as old General Use A Zone
The new names have been designed to describe more accurately the qualities of the
zones. The major change proposed to the zoning system is to divide each the zones
other than the PReservation Zone into two catergories:
"Category 1 - no structure (for example, floating hotels, pontoons or mariculture) will be
permitted. Mooring buoys my be permitted.
"Category 2 - such structures are permitted provided they meet environmental guidelines.
A permit is required
"The adoption of this new zoning scheme will allow the Authority, in association with
interested members of the public and with other to develop and apply tourism
strategy for the whole of the Great Barrier Reef. The aim will be ensure that the
whole Red will not become dotted with tourist and other structures while at the same
time providing for careful development on reefs which an suitable for that purpose. The
strategy should allow the Authority to continue to provide for protection of the Great

Barrier Reef whil@ allowing careful development -in other words, to provide for.
sustainable development."
Source: 'Sustainable Development of t'he Great Barrier Reef Marine Park, Gratme Kelle&7@
Chairman, Great Barrier Reef Marine Park Authority)

Conclusion.r

Management and operation of the Great Barrier Reef has much to commend it as a model for
deiling with problems associated with the United States Nigrine Sanctuary Program. It seems
particularly relevant to the Florida Keys sancruuy recently designated by Congressional initiative,
although there are other useful lessons to be derived as well.
One significant distinction that must be borne in mind is that at the time the Great Barrier Reef
was established, much of the Reef area was still essentially undeveloped. This factor diminished
substantially the burden that would have to be borne as a new regulatory regime evolves in the
Florida keys.

Appendix C
Program Comparison-Sanctuaries and Estuaries*

Estuarine Sanctuaries Marine Sanctuaries

Authorizing legisiation Coastal Zone Management Act Marine Protection, Research, Sanctuaries Act
Sec. 315 National Estuarine
Reserve Research System

Date of Authorization 1972 1972

Legisiative purpose To preserve representative estuarine areas so To preserve or restore areas for their conservation
they may provide long-term scientific & recreation ecology, or esthetics
educational value

To identify areas of the marine environment of special
national significance due to the resource or
human-use values;

To provide for comprehensive and coordi-
nated conservation & management of these marine
areas that will complement existing regulatory
authorities;

To support, promote, and coordinate scientific
research on, and monitoring of these marine areas

To enhance public awareness, understanding,
appreciation, and wise use of the marine environment

To facilitate, to the extent compatible with the primary
objective of resource protection, allpublic & private
uses of the resources of these marine areas not
prohibited pursuant to other
authorities

Who designates? The Secretary of Commerce AFTER The Secretary of Commerce, AFTER consultation with
the Governor nominates the area the Committee on Merchant Marine & Fisheries of the
House of Reps.; the Committee on Commerce,
Science, and Transportation of the Senate; Secretaries
of State, Defense, the Interior, Transportation; the
Administrator, the heads of other interested Federal
agencies; the responsible officals or relevant officials
or relevant agency head of the appropriate State
& local goernment entities, including CZM agencies,
that will be or are affected by establishment; the
appropriate officials of any Regional Fishery Manage-
ment Council affected by the proposed designation;
other interested persons.

Source: G.C. and
G.M. Ray, 1990

Designation process The Secretary shall issue notice in Federal Register.
in newspaper. It will submit to Committee on
Mercharnt Marine & Fisheries & the Committee on
Commerce, Science and Transportation of the
Senate

Habitat type Estuarine ecosystem Ocean waters lying within territorial limits of any
State or superjacent to the subsoil. And the seabed
within the seaward boundary of a coastal state where
the water ebbs and flows. And those waters as far
seaward as the outer Continental Shelf as defined in
the Convention of the Continental Shelf. And
including Great Lakes and its connecting water.

Legislative Criteria Representative estuarine ecosystems suitable for National sinificance due to its resources, culture, or
for designation long-term research and contributes to biogeo- human use values
graphical & typological balance of the System
Where existing State & Federal authorities are
The law of coastal state provides long-term inadequate to insure coordianted & comprehensive
protection for reserve resources to ensure stable comservation & management of the are, including
environment research resource protection, scientific research, protection, &
public education.
That designation will serve to enchance public
awareness & understanding of estuarine areas & Natural resource & ecological qualities, including
provide suitable opportunities of public contributions to biological diversity, maintenance of
education & interpretation ecosystem structure, maintenance of ecologically or
commercially improtant or threatened species or
The state has complied with requirements of any species assemblages & biogeographic representa-
regulations issued by the Secretary to implement tion of the site
this section
Historical, cultural, archaeological or palenontological
significance

Present and potential uses of area that depend on
maintenance of area's resources, including
commercial & recreational fishing, subsistance uses,
other commercial & recreational activities, &
research & education

Present and potential activities that may adversely
affect the factors identified above.

Existing State and Federal regulatory & management
authorities applicable to the area and the adequacy of
those authorities to fulfill the purposes & policies of
the title

The manageablity of the area, including such factors
as it size, it ability to be identified as a discrete
ecological unite with definable boundaries, its
accessibility, & its suitability for monitoring &
enforcement activities.

Public benefits to be derived from sanctuary status,
with emphasis on the benefits of long-term protection
of nationally significant resources, vital habitats,
& resources which generate tourism

Negative impacts produced by management restric-
tions on income-generating activities such as living and
nonliving resources development

Socioeconomic effects of sanctuary designation

Legislative Research Provides guidelines for research & promo- Nonexistent
Guidelines tion and coordiantion of research

Legislative funding Based on 50/50 match between State and Entirely Federal
Federal Gov. for acquisiton, development &
operation.

The amount of financial assistance for acquisti-
tion of land & waters, or interest therein, for
any one national estuarine sanctuary may not
exceed an amount equal to 50% of the costs of
the lands, waters, and interests therein or
$4,000,000.00, which ever amount is less.

The amount of financial assistance for acquis-
tion of lands & waters, or interests therein, for
any one national estuarine reserve may not
exceed an amount equal to 50% of costs
incurred to achieve described purpose

OPERATIONAL All-470,000.00/year Channel Islands $506,000.00
EXPENDITURES Key Largo 716,000.00
for each site for 1990 Gulf Farallones 445,181.00
Looe Key 445,000.00
Gray's Reef 162,000.00
Monitor 125,000.00
Fagatele Bay 120,000.00
Cordell Bank 9,000.00

FUNDS/SITE
1988 $150,000.00 $260,000.00 ratio = 1/58
1989 $132,000.00 $239,000.00 = 1/95
1990(est) $145,000.00 $173,000.00 = 1/84
1991(est) $134,000.00 $184,000.00 = 1/89

Legislated evalutation The Secretary shall periodically evaluate the
of performance operation & management of each national
estuarine reserve. Includes education &
interpretative activities, & research being
conducted within the reserve.

If evaluation reveals the operation & manage-
ment of the reserve is deficient or the research
conducted is not cnsistent with research
guidelines described, the Secretary may
suspend eligibility of that reserve for financial
assistance until defieciency or inconsistency is
remedied.

REPORTING Coastal Zone Management Report for two Resource Assessment Report. The Secretary of
consecutive fiscal years, April 1 following the Commerce shall draft a resource assessment (as
close of the biennial part of EIS) documenting present & potential uses of
the area, including commercial & recreational
The Secretary shall include in the report fishing, research and education, minerals & energy
information on new designations, expansion of development subsistence uses, & other commercial
existing reserves, status of research pro gram, & recreational uses.
and summary of the evaluations made
The Secretary, in consultation with the Secretary of
Interior, shall draft a resource assessment section for
the report regarding any commercial or recreational
resource uses in the area under consideration that
are subject to primary jurisdiciton of Dept. of Interior.

Marine & Estuarine Managment Division
Program management Marine & Estuarine Management Division

Program Planning Document is non-existent Program Development Plan, 1982

Program Research Pruposes Defined Not defined.

STAFF(number)
Headquarters (for both)

1988 17
1989 25
1990 30

Existing (May):
Division Chief's Office 3(Chief, Secretary, Program Specialist)
7(branc Chief, Typist, M r. Archaeo, Res. Proj
Manager, Pres. Prog. SPec., Edu. Proj. Manager,
Tech. Proj. Mgt. Edu. Prog. Spec)

Atl. & Great Lakes. 7 (Reg. manager, Sec., Sen. PRoj. Manger, Prog
(managers-4)
Gulf & Caribbean. 4 (Reg. manager, Sen. Proj. manager, Prog. Spec,
Biol)

6 (ft. manager, rypa Sen Prq Manager Prog
PWAC-- Spar--3)

1991 32

Oro-Ole NOAA paid
1988 0 7
1989 0 9
1990 0 20
1991 (est) 0 35

On-tie No*40M paid
1988 65 17
1989 70 18
1990 75 20
1991 (est) 80 18

Number of designalail slim
1988 17. 7
1989 18 8
1990 19 8
1991(so) 12

Proven MISSION Nanvdsleril: EslablIMM of a rystom of i alloo marine sarax-
fts purpose is 10 natural ft WA in which iesbnWconider,dkM vdmmpmhensW
ID Woer claa & male stufts of to MA & ffWvW*t0fWW manne Weastr" bv-term
human pozomses coccurring in 00 aria WON & Worl141111: of ft public

Pmgrarn GOALS Presvidan d souMne hOW. io ocWI Erft= mmm p niarwo Ihmugh ft impiemenla-
eo ge species & wildille ton cof accomposherosiwo, ftterm maiwnem plan
WOW 10 ft speft RIMUM

Pig. & research fa spW scis d0c.
.Mlma" Raw 7-1&impmw

Btw= pj* mrinagg, urodM@ ard wise

'IMF & P0001114

ftAolarapilmon ccmpW* pul* & prwou'use of
SPINOW11181k am

WrWfE Stile daignIft SM SV& Eydjigm List

NUMBER & yEAR OF
DESIGNATED WES
1972 0 0
1973 0 0
1974 1 0
1975 0 -2
1976 2 0
1977 0 0
1978 1 0
1979 1 .0
1980 4 1
1981 2 3
1982 3 0
1983 0 0
1984 1 0
1985 0 0
1986 1 1
1987 0 0
1988 1 0
1989 1 1

TOTAL - Squn Idlorneftil 1,03.8 Wn2 7,047 kn;
TlnV, to d"naft 30 morths

FUNDING
Estuarine Sanctuaries (in thousands) Marine Sanctuaries
Authorized Approp. spent Authorized Approp. spent

1972 n.a. n.a n.a. $10,000 0 0
1973 na na na S10,000 0 0
1974 $9,000 -$4,001) $824 $10,000 0 NOM
1975 $9,000 0 $1,500 $10,000 0. NOM
1976 S9,000 0 SSW $6,200 0 NOM
1977 S9,000 $1,500 $2,450 S500 0 NOM
1978 $9,000 $300 $300 S500 0 NOM
1979 $9.000 $3,000 $1,941 $500 sm $49
1980 $9.000 $3,000 $4,010 S1,750 $1.750 $175
1981 W000 $3,000 $2.077 S Z250 $2,250 $1,983
1982 $9.000 SZOOO SZ948 S Z250 SZm $1.625
1983 S9.000 SM SZ511 $2.250 $Zm $1,786
1984 S9,000 W= S2.M SZm SZm $I'M
1985 S9,000 SM $4,542 S3,000 $2.982 SZ145
1986 $Z5,00 SZ059 SZ165 $3,300 S Z750 Si'm
1987 $3,800 SZLW SZ944 $3,500 SZ796 3Z144
1988 $4,500 $Zug SZ907-8 S 3.900 $Z90 SVVI
1989 S5.Ow SZ790 $Z894-6 $4,250 S Z5n sun
1990 S5,500 $3.490 $3.490 $4,900 $3,122 $3,795

Appendix 0

Progranu at &irting NationaI Manne Sanctuariet
The nature of the existing program at the sanctuaries in existence as of the end of 1990 may be briefly
described as follows:

Budget
For several years after the program was authorized, the marine sanctuaxies program had no budget at
all-what little activity that took place was paid for from general NOAA funds. Beginning in 1979, a
line item was included in the NOAA budget for marine sanctuary programs. That authorized amount
increased in the ensuing years to a level slightly in excess of $4 million for the current fiscal year.

The budget for the program, drawn as a line chart, appears as follows:

$450
$400 t
$350

$300

$250

$200

$150
$10001 1 1 1 1 1 1 1
$500 1 1
$0 [44+ .11 1 11 14-4

This chart sdO don not ted the entire story. Some of the program's costs are covered by salaries paid
to NOAA commissioned officers, which come ftorn a diffetent location in the budget. ALso.
cooperative arrangements with state agencies are not reflected in this budgm

Aravino
'Me chart on the nert pap represents NOAKs indication of activities conducted at the sanctuaries
currently in the system. Every activity marked with a checkmark is said to take PISCe within the
sanctuary indicated. 'Me chart does not indicate the level of activity involved, which may range from a
full-time task fame committed to the element. or may merely involve part-time or volunteer actions.

Appendix E
SAFEGUARDING OCEANS AND WATER RESOURCES
Resolutions adopted -at
The Interparliamentary Conference:
on the Global Environment
Washington, D.C.,

May 2,1990

Whereas:

� The global water cycle is essential to life on earth;
� The scale of human activity has caused changes at every level of this cycle: polluting the
earth's water and oceans; endangering human health; shifting the distribution of water by
large-scale development; and reducing aquatic life due to pollution, over-harvesting,
destruction of habitats, and alteration of ecosystems on local, regional, and global scales-,
� The best way to protect water resources is to keep pollution. from entering waters;
� High-seas drifinet fishing and other destructive activities disrupt marine life throughout the
world's oceans; and

� Short-term economic benefits from exploitation of ocean and water resources deprive future
generations, diminish the quality of life, disrupt international stability and global
security, and even threaten life itself

NOW, therefore, be it resolved thar

� It is in our interest and that of future generations to address the exploitation of ocean a nd
water resources to prevent further irrevocable damage;

� Ocean and water resources are so important to life that a precautionary approach should be
used in allowing discharge of potentially harmful pollutants and wastm Where there is
reason to believe that aifv" effects of discharges are likely, even in the face of scientific
uncertainty, such discharges should be prohibited;

� Policies must be adopted to stop pollution at its source. with highest priority placed on'
measures that prevent the cmfion and dispersal of environmental contaminantr,
� Ch=jr practices requires strengthening and enforcing environmental laws on all levels.
equity within and between communities, regions and nations and on the
requirment that dun resources be managed in such a way that they may be bequeathed in a
healthy condition;
� Policies must be adopted that ensure future land development in a manner sustainable to the
global water cycle;
� Worldwide efforts should be made to develop and share new practices and technologies that
minimize pollutants resulting from industrial. agricultural, and other human activities;

Polluters should pay for the control of pollution and the damages they cause. But this
principle is not sufficient to protect oceans and freshwater. It must be accompanied by
incentives or fee systems to prevent overuse and exploitation of water resources;
Expand international programs of research and technology development to protect, manage
and restore our marine and freshwater resources. These programs should be internationally
funded and should ensure the active participation by developing countries. The need for
further research should not be used as an excuse to delay protective actions; and
Establish strong international systems for monitoring and enforcement of international
conventions, treaties, and laws and for die protection of ocean and water resources.

AND in furtherance of thew goals, be it resolved that nations join together in international
convention and by individual action in an effort to:

Properly treat and disinfect sewage and sludge before discharge to the water or land or use
for agriculture or other purposes;

Establish policies and programs to:
- minimize the use of toxic substances and the generation of toxic wastes, including bans
on certain chemicals that are highly toxic.
- clean up abandoned hazardous waste sites to prevent contamination of surface and ground
waters; and

- implement the Basel Convention regarding the international transportation and
management of hazardous waste;

Prohibit ocean dumping of harmful or potentially harmful wastes;

Limit urban and agricultural runoff containing harmful substances through land use controls
and agricultural practices that minimize the use of fertilizers and pesticides and control
soil erosion;
Establish policies to avert and respond to oil spills and regulate offshore drilling discharges
by.

increasing penalties mid liability for spills at the national and international levels;
requiring double hulls and bottoms for oil tankers and improving navigation and licensing
requirements;
establishing an international fund for emergency response and dean up of oil spills and
compensation for damages that result From spills to be paid for by a fee on oil from
exporting and consuming countries;
Reduce the use of plastics and plastics and properly of plastics and other debris to prevent
pollution to beaches, oceans and coastal waters and reduce the threat to marine lift;
Prevent acid rain by promoting energy efficiency and conservation and requiring pollution
control technologies on power plants industry and automobiles;

21.
NATIONAL MARINE SANCTUARIES
PROGRAM
TITLE III
1992 Amendments

One Hundred Second Congress of the United State of America

AT THE SECOND SESSION

Begun and held at she City of Washington on Friday, the third day of January,
one thousand nine hundred and ninety-two

An Act
To provide Congressional approval of a Governing International Fishery Agreement,
and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Oceans Act of 1992".

TITLE I-APPROVAL OF GOVERNING INTERNATIONAL
FISHERY AGREEMENT

SEC. 1001. APPROVAL OF AGREEMENT.
Notwithstanding section 203 of the Magnuson Fishery Con-
servation and Management Act (16 U.S.C. 1823). the governing
international fishery agreement between the Government of the
United States of America and the Government of the Republic
of Estonia, as contained in the message to Congress from the
President of the United States dated June 24, 1992, is approved
by the Congress as a governing International fishery agreement
for the purposes of such Act and shall enter into force and effect
with respect to the United States on the date of enactment of
this title.

TITLE II-NATIONAL MARINE SANCTUARIES PROGRAM

SEC. 2001. SHORT TITLE.
This title may be cited as the 'National Marine Sanctuaries
Program Amendments Act of 1992".

Subtitle A-Amendments to Marine Protection, Research,
and Sanctuaries Act of 1972

SEC. 2101. FINDINGS, PURPOSES, AND POLICIES.
(a) FINDINGS.-Section 301(a) of the Marine Protection,
Research, and Sanctuaries Act of 1972 (16 U.S.C. 1431(a) is
amended-
(1) in paragraph (2) by inserting ", and in some cases
international," after' "national";
(2) in paragraph (4)-
(A) by inserting ", research," after "conservation"; and
(B) by striking "and" after the semicolon at the end;
(3) in paragraph (5) by striking the period at the end
and inserting "; and"; and
(4) by adding at the end the following:
"(6) protection of these special areas can contribute to
maintaining a natural assemblage of living resources for future
generations.".

H. R. 5617-2

(b) PURPOSES AND POLICIES.-Section 301(b) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1431(b) is amended to read as follows:
"(b) PURPOSES AND POLICIES-The purposes and policies of
this title are--
"(1) to identify and designate as national marine sanc-
tuaries areas of the marine environment which are of special
national significance;
"(2) to provide authority for comprehensive and coordinated
conservation and management of these marine areas, and
activities affecting them, in a manner which complements exist-
ing regulatory authorities.
"(3) to 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) to enhance public awareness, understanding, apprecia.
tion, and wise use of the marine environment;
"(5) to facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses
of the resources of those marine areas not prohibited pursuant
to other authorities;
"(6) to develop and implement coordinated plans for the
protection and -management of these arm with Appropriate
Federal agencies, State and local governments, Native Amer-
ican tribes and organizations, international organizations, and
other public and private interests concerned with the continuing
health and resilience of these marine areas;
"(7) to create models of, and incentives for, ways to conserve
and manage these areas;
"(8) to cooperate with global programs encouraging con-
servation of marine resources; and
"(9) to maintain, restore, and enhance living resources by
providing places for species that depend upon these marine
areas to survive and propagate.".

SEC. 2102 DEFINITIONS.
(a) MARINE ENVIRONMENT-Section 302(3) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1432(3) is amended by adding 'including the exclusive economic
zone," after 'jurisdiction,".
(b) DAMAGES.--Section 302(6) of the Marine Protection,
Research, and Sanctuaries Act of 1972 (16 U.S.C. 1432(6)) is
amended-
(1) in subparagraph (AXii) by striking 'and" at the end-
(2) in subparagraph (B) by adding 'and" at the end; and
(3) by adding at the end the following-
"(C) the reasonable cost of monitoring appropriate to
the injured, restored, or replaced resources, .
(C) RESPONSE COSTS.-SECTION 302(7) of the Marine Protection,
Research, and Sanctuaries Act of 1972 (16 U.S.C. 1432(7)) is
amended by inserting "or authorized" after "taken".
(d) EXCLUSIVE ECONOMIC ZONE.-Section 302 of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1432)
is amended (1) by striking the period at the end of paragraph
(8) and inserting"; and"; (2) by adding after paragraph (8)
the following:

H. R. 5617-3

"(9) 'exclusive economic zone' means the exclusive economic
zone as defined in the Magnuson Fishery Conservation and
Management Act.".

(e) TECHNICAL CORRECTION.-Section 302 of the Marine Protec-
tion, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1432) is
amended-
(1) in paragraph (1) by striking "304(aX1XE)" and inserting
"304(aX1XCXv)"; and
(2) in paragraph (5) by striking "and" after the semicolon.
SEC. 2103. SANCTUARY DESIGNATION STANDARDS.
(a) STANDARDS.--Section 303(aX2XB) of the Marine Protection,'
Research, and Sanctuaries Act of 1972 (16 U.S.C. 1433(aX2B))
is amended by inserting "or should be supplemented" after "inad-
equate".
(b) FACTORS AND CONSULTATIONS.-
(1) Section 303(bXlXA) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (16 U.S.C. 1433(bX1XA)) is
amended by inserting, "maintenance of critical habitat of endan.
gered species." after assemblages,"
(2) Section 303(bX3) of the Marine Protection, Research,
and Sanctuaries Art of 1972 (16 U.S.C. 1433(b)(3)) is amended-
(A) by inserting governmental," after "other commer-
cial" and inserting governmental," after "any commer-
cial"
(B) by adding at the end the following. "The Secretary,
in consultation with the Secretary of Defense, the Secretary
of Energy, and the Administrator, shall draft a resource
assessment section for the report, including information
on any past, present, or proposed future disposal or dis-
charge of materials in the vicinity of the proposed sanc-
tuary. Public disclosure by the Secretary of such informa-
tion shall be consistent with national security regulations.";
and
(C) by striking "304(aXl)" and inserting "304(aX2)".
SEC. 2104. PROCEDURES FOR DESIGNATION AND IMPLEMENTATION.
(a) SANCTUARY PROPOSAL.-304(a) of the Marine Protec-
tion, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1434(a))
is amended-
(1) by striking "prospectus" whenever it appears and insert-
ing "documents";
(2) in paragraph (1XC) by striking 'a prospectus on the
proposal which shall contain-" and inserting "documents,
including an executive summary, consisting of-"; and
(3) in paragraph (5)-
(A) by striking United States Fishery Conservation
Zone- and inserting "Exclusive Economic Zone"; and
(B) by adding at the end: "The Secretary shall also
cooperate with other appropriate fishery management
authorities with rights or responsibilities within a proposed
sanctuary at the earliest practicable stage in drafting any
sanctuary fishing regulations".
(b) TAKING EFFECT OF DESIGNATIONS.-Section 304(b) of the
Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1434(b)) is amended-
(1) in paragraph (1) by striking the dash after "unless"
and all that follows and inserting ", in the case of a national

H.R. 5617-4
marine sanctuary that is located partially or entirely within
the seaward boundary of any State, the Governor affected cer-
tifies to the Secretary that the designation or any of its terms
is unacceptable, in which case the designation or the unaccept-
able term shall not take effect In the area of the sanctuary
lying within the seaward boundary of the State.";
2) in paragraph (2)-
(A) striking 'paragraph (1) (A) or (B)" and inserting
"paragraph (1)";
(B) by striking "not disapproved under paragraph (1XA)
or"; and
(C)by striking "paragraph (1XB)" and inserting "para-
graph (1)" ; and
(3)by striking paragraph (3) and redesignating paragraph
(4) as paragraph (3).
(c) ACCESS AND VALID RIGHTS.-Section 304(cXl) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1434(cXl) is amended to read as follows:
"(1) Nothing in this title shall be construed as terminating
or granting to the Secretary the right to terminate any valid
lease, permit. license, or right of subsistence use or of access
that is in existence on the date of designation of any national
marine sanctuary.".
(d) INTERAGENCY COOPERATION; REVIEW OF MANAGEMENT
PLAN-Section 304 of the Marine Protection, Research, and Sanc-
tuaries Act of 1972 (16 U.S.C. 1434) is amended by adding at
the end the following new subsections:
"(d) INTERAGENCY COOPERATION.-
"(1) REVIEW OF AGENCY ACTIONS.-
*(A) IN GENERAL.-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 lose of, or injure any sanc-
tuary resource are subject to consultation with the
Secretary.
"(B) AGENCY STATEMENTS REQUIRED-Subject to any
regulations the Secretary may establish each Federal
agency proposing an action described in subparagraph (A)
shall provide the Secretary with a written statement
describing the action and its potential effects on sanctuary
resources at the earliest practicable time, but in no case
later than 45 days before the final approval of the action
unless such Federal agency and the Secretary agree to
a different schedule.
"(2) SECRETARY'S RECOMMENDED ALTERNATIVES.-If the Sec.
retary finds that a Federal agency action is likely to destroy,
cause the loss of, or injure a sanctuary resource, the Secretary
shall (within 45 days of receipt of complete information on
the proposed a ency action) recommend reasonable and prudent
alternatives, which may include conduct of the action elsewhere,
which can be taken by the Federal agency in implementing
the agency action that will protect sanctuary resources.
"(3) RESPONSE TO RECOMMENDATIONS.-The agency head
who receives the Secretary's recommended alternatives under
paragraph (2) shall promptly consult with the Secretary on
the alternatives. If the agency head decides not to follow the

H. R. 5 6 17-5
alternatives, the agency head shall provide the Secretary with
a written statement explaining the reasons for that decision.
"(e) REVIEW OF MANAGEMENT PLANS,-Not more than five years
after the date of designation of any national marine sanctuary,
and thereafter at intervals not exceeding rive years, the Secretary
shall evaluate the substantive progress toward implementing the
management plan and goals for the sanctuary, especially the
effectiveness of site-specific management techniques, and shall
revise the management plan and regulations as necessary to fulfill
the purposes and policies of this title.
SEC. 2105. APPLICATION OF REGULATIONS: INTERNATIONAL
COOPERATION.
(a) E ENFORCEABILITY; INTERNATIONAL COOPERATION .-Section
305 of the Marine Protection, Research, and Sanctuaries Act of
1972 (16 U.S.C. 1435) is amended-
(1) in subsection (a)-
(A) by striking 'The" in the first sentence and inserting
in lieu thereof "The" title and the"; and
(B) by inserting "or be enforced against" immediately
after "apply to"; and
(2) by adding at the end the following new subsection-,
"(c) INTERNATIONAL COOPERATION.-The Secretary, in consulta-
tion with the Secretary of State and other appropriate Federal
agencies, shall cooperate with other governments and international
organizations in furtherance of the purposes and policies of this
title and consistent with applicable regional and mutilateral
arrangements for the protection and management of special marine
areas.".
(b) TECHNICAL AMENDMENT.-The section heading for section
305 of the Marine Protection, Research, and Sanctuaries Act of
1972 (16 U.S.C. 1435) is amended by striking all after "REGULA-
TIONS" and inserting in lieu thereof "; INTERNATIONAL NEGOTIA-
TIONS AND COOPERATION.".
SEC. 2106. PROHIBITED ACTIVITIES.
Section 306 of the Marine Protection, Research, and Sanctuaries
Act of 1972 (16 U.S.C. 1436) is amended to read as follows:,
SEC. 306. PROHIBITED ACTIVITIES.
"It is unlawful to--
"(1) destroy, cause the lose of, or injure any sanctuary
resource managed under law or regulations for that sanctuary.
"(2) possess, sell, deliver, carry, transport, or ship by any
means any sanctuary resource taken in violation of this section;
"(3) interfere with the enforcement of this title; or
"(4) violate any provision of this title or any regulation
or permit issued pursuant to this title.".
SEC. 2107. ENFORCEMENT.
(a) CIVIL PENALTIES.-
(1) Section 307(cXl) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (16 U.S.C. 1437(cXl) is amended
by striking "$50,000" and inserting "$100,000".
(2) Section 307(cX3) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (16 U.S.C. 1437(cX3)) in amended-
(A) by striking "and may be proceeded" and all that
follows through "jurisdiction"; and

H. R. 5617-6
(B) by adding at the end the following sentence: 'Such
penalty shall constitute a maritime lion on the vessel and
may be recovered in an action in rem in the district court
of the United States having jurisdiction over the vessel.".
(b) PROCEEDS FROM CIVIL FORFEITURES.-Section 307(dX1) of
the Marine Protection, Research, and Sanctuaries Act of 1972 (16
U.S.C. 1437(dXl)) is amended by adding the end the following
new sentence, "The proceeds from forfeiture actions under this
subsection shall constitute a separate very in addition to any
amounts recovered as civil penalties under this section or as civil
damages under section 312. None of those proceeds shall be subject
to set-off.".
(C) USE OF RECEIVED AMOUNTS-Section 307(e) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1437(e)) is amended by striking paragraph (1) and inserting the
following:
"(1)EXPENDITURES.-
"(A) Notwithstanding any other law, amounts received
by the United States an civil penalties, forfeitures of prop-
erty, and costs imposed under paragraph (2) shall be
retained by the Secretary in the manner provided for in
section 107(fX1) of the Comprehensive Environmental
Response, Compensation and Liability Act.
"(B) Amounts received under this section for forfeitures
and costs imposed under paragraph (2) shall be used to
pay the reasonable and necessary costs incurred by the
Secretary to provide temporary storage, cars, maintenance,
and disposal of any sanctuary resource or other property
seized in connection with a violation of this title or any
regulation or permit issued under thin title.
"(C) Amounts received under this section as " civil pen-
alties and any amounts remaining after the operation of
subparagraph (B) shall be used, in order of priority, to-
"(i) manage and improve the national marine sanc-
tuary with respect to which the violation occurred that
resulted in the penalty or forfeiture;
"(ii) pay a reward to any person who furnishes
information leading to an assessment of a civil penalty,
or to a forfeiture of property, for a violation of this
title or any regulation or permit issued under this
title; and
"(iii) manage and improve any other national
marine sanctuary.".
(d) CONFORMING AMENDMENT.-312(d) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1443(d)) is amended-
(1) by striking "and civil penalties under section 307";
(2) by striking paragraph and by redesignating para-
graph (4) as paragraph (3).
(e)ENFORCEABILITY.-Section 307 of the Marine Protection,
Research, and Sanctuaries Act of 1972 (16 U.S.C. 1437) is amended
by adding at the end the following now subsection:
"(j) AREA OF APPLICATION AND ENFORCEABILITY.-The area of
application and eNFORCEABILITY of this title includes the territorial
sea of the United States, as described in Presidential Proclamation
5928 of December 27, 1968, which is subject to the sovereignty

H. R. 5617-7

of the United States, and the United States exclusive economic
zone, consistent with international law.".
SEC. 2108. RESEARCH MONITORING, AND EDUCATION.
Section 309 of the Marine Protection, Research and Sanctuaries
Act of 1972 (16 U.S.C. 1440) is amended to read as follows:
"SEC. 309. RESEARCH, MONITORING, AND EDUCATION.
"(a) IN GENERAL.-The secretary shall conduct research, mon-
itoring, evaluation, and education programs all are necessary and
reasonable to carry out the purposes and policies of this title.
"(b) 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, States, local governments,
regional agencies, interstate agencies, or other persons to promote
use of one or more sanctuaries for research, monitoring, and edu-
cation, including coordination with the National Estuarine Research
Reserve System.".
SEC. 2109. COOPERATIVE AGREEMENTS; DONATIONS, AND ACQUISI-
TIONS. -
"Section 311 of the Marine Protection, Research, and Sanc.
tuaries Act of 1972 (16 U.S.C. 1442) is amended to read as follows:
"SEC. 311. COOPERATIVE AGREEMENTS, DONATIONS, AND ACQUISI-
TIONS.
(a) COOPERATIVE AND OTHER AGREEMENTS, GRANTS AND OTHER AGREE-
MENTS.-The Secretary may enter into cooperative agreements,
financial agreements, grants, contracts, or other agreements with
States, local governments, regional agencies, interstate agencies,
or other persons to carry out the purposes and policies of this
title.
"(b) AUTHORIZATION TO SOLICIT DONATIONS-The Secretary
may enter into such agreements with any nonprofit organization
authorizing the organization to solicit private donations to carry
out the purposes and policies of this title.
"(c) DONATIONS. -The Secretary may accept donations of funds,
property, and services for use in designating and administering
national marine sanctuaries under this title. Donations accepted
under this section shall be considered as a gift or bequest to or
for the use of the United States.
"(d)ACQUISITIONS-The Secretary way acquire by purchase,
lease, or exchange, any land, facilities, or other property necessary
and appropriate to carry out the purposes and policies of this
title.".

SEC. 2110. DESTRUCTION OR LOSS OF, OR INJURY TO, SANCTUARY
RESOURCES.
(a) LIABILITY FOR INTEREST.-Section 312(aXI) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1443(aXl)) is amended to read as follows:
"(1)LIABILITY TO UNITED STATES.-Any person who
destroys, causes the lose of, or injures any sanctuary resource
is liable to the United States for an amount equal to the
sum of-

H.R. 5617-8
"(A) the amount of response costs and damages result.
ing from the destruction, loss, or injury; and
"(B) interest on that amount calculated in the in manner
described under section 1005 of the Oil Pollution Act of
1990.".
(b) LIABILITY IN REM-Section 312 (aX2) of the Marine Protec-
tion, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1443(aX2))
Is amended by adding at the end the following: 'The amount of
that liability shall constitute a maritime lien on the vessel and
may be recovered in an action in rem in any district court of
the United States that has jurisdiction over the vessel.".
(c) LIMITS TO LIABILITY.-Section 312(a) of the Marine Protec.
tion, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1443(a))
is amended b adding at the end the following:
"(4)LIMITS TO LIABILITY.-Nothing in sections 4281-4289
of the Revised Statutes of the United States or section 3 of
the Act of February 13, 1893, shall limit the liability of any
person under this title.".
(d) RESPONSE ACTIONS.Section 312(bXl) of the Marine Protec-
tion, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1443(bXl))
is amended by inserting 'or authorize" of "undertake".
(e) USE OF RECOVERED AMOUNTS-Section 312(d) of the Marine
Protection, Research,, and Sanctuaries Act of 1972 (16 U.S.C.
1443(d)) is amended in paragraph (3), as redesignated by this
Act, by inserting "the court decree or settlement agreement and"
after "in accordance with".
SEC. 2111. AUTHORIZATION OF APPROPRIATIONS.
Section 313 of the Marine Protection, Research, and Sanctuaries
Act of 1972 (16 U.S.C. 1444) is amended to read as follows:
"SEC. 313. AUTHORIZATION OF APPROPRIATIONS.
"There are authorized to be appropriated to the Secretary to
carry out this title the following-
"(1) $8,000,000 for fiscal year 1993;
"(2) $12,500.000 for fiscal year 1994;
"(3) $15,000,000 for fiscal year 1995; and
(4) $20,000,000 for fiscal year 1996.".
SEC. 2112. ADVISORY COUNCILS AND SHORT TITLE
The Marine Protection, Research. and Sanctuaries Act of 1972
(16 U.S.C. 1431 et seq.) is amended by adding at the end the
following new sections:
"SEC. 315, ADVISORY COUNCILS.
"(a) ESTABLISHMENT.-The Secretary may establish one or more
advisory councils (in this section referred to as an 'Advisory Council')
to provide assistant to the Secretary regarding the designation
and amangement of national marine sanctuaries. The Advisory

Councils shall be exempt from the Federal Advisory Committee
Act.
"(b)MEMBERSHIP-Members of the Advisory Councils may be
appointed from among-
"(1) persons employed by Federal or State agencies with
expertise management of natural resources-
a(2) members of relevant Regional Fishery Management
Councils established under section 302 of the Magnuson Fishery
Conservation and Management Act; and

H. R. 5617-9
'(3) representatives of local user groups, conservation and
other public interest organizations, scientific organizations, edu.
cational organizations, or others interested in the protection
and multiple use management of sanctuary resources.
"(c) Limms oN MEmBERSHIP.-For sanctuaries' designated after
the date of enactment of the National Marine Sanctuaries Program
Amendments Act of 1992, the membership of Advisory Councils
shall be limited to no more than 15 members.
"(d) STAFFING AND AssISTANCE.-The Secretary may make
available to an Advisory Council any Btaf@ Information, administra-
tive services, or assistance the Secreta7 determines are reasonably
required to enable the Advisory Council to carry out its functions.
"(e) PUBLIC PARTICIPATION ,16ND FRocz=RAL MArrERs.-The
following guidelines apply with respect to the conduct of business
meetings of an Advisory Council:
'(1) Each meeting shall be open to the public, and
interested persons shall be permitted to present oral or written
statement.s on items on the agenda.
"(2) Emergency meetings may be held at the call of the
chairman or presiding officer.
"(3) Timely notice of each meeting, Including the time,
place, and agenda of the meeting, shall be published locally
and in the Federal Register.
'A(4) Minutes of each meeting shall be kept and contain
a summary of the attendees and matters discussed.

"SEC. SIR. SHORTTITLE.
Act'. "This title may be cited as 7he National Marine Sanctuaries

Subtitle U-T@liscellaneous

SEC. 2201. CRAVEYARD OF TILE ATIAN-nC ARTIFACTS.
(a) AcQuISITION OF SPACE.-Ptirsuant to section 314 of the
Marine Prbtection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1445) and consistent with the Cooperative Agreement entered into
in October, 1989, between the National Oceanic and Atmospheric
Administration and the Mariner's Museurn of Newport News, Vir.
ginia, the Secretary of Commerce shall make a grant for the acquisi-
tion of space in Hatteras Village, North Carolina, for-
(1) the display and interpretation of artifacts recovered
from the area of the Atlantic Ocean ac@acent to North Carolina
generally known as the Graveyard of the Atlantic, including
artifacts recovered from the Monitor National Marine Sanc.
tuary; and
(2) administration and operations of the Monitor National
Marine Sanctuary.
(b) AuTHORIZATION.-To carry out the responsibilities of the
Secretary of Commerce under this section ,there are authorized
to be appropriated to the Secretary of Commerce a total of $800,000
for fiscal years 1993 and 1994, to remain available until ex ended.
(C) FEDERAL SHAM,-Not more than two-thirds of K cost
of space acquired under this section may be paid with amounts
provided pursuant to this section.

H. R. 5617-10

SEC. 2202. STELLWAGEN BANK NATIONAL MARINE SANCTUARY.
(a) DESIGNATION.-The area described in subsection (b) is des-
ignated an the Stellwagen Bank National Marine Sanctuary (here-
alter in this section referred to as the Sanctuary,).'
(b) AREA.-The Sanctuary shall consist of all submerged lands
and waters Iincluding living and nonliving marine resources within
those waters, bounded by the area described as Boundary Alter.
native 3 in the Draft Environmental Impact Statement and Manage.
ment Plan for the Proposed Stellwagen Bank National Marine
Sanctuary, published by the Department of Commerce in January
1991, exce t that the western boundary shall be modified as follows:
(1) The southwestern comer of the Sanctuary shall be
located at a point off Provincetown, Massachusetts, at the fol.
lowing coordinates: 42 degrees, 7 minutes, 44.89 seconds (lati-
tude), 70 degrees, 28 minutes, 15.44 second (longitude).
(2) The northwestern comer of the Sanctuary shall be
located at a point off Cape Ann, Massachuettes, at the following
coordinates: 42 degrees, 37 minutes, 53.52 seconds (latitude),
70 degrees, 35 minutes, 52.38 seconds (longitude).
(c) MANAGEMENT.-The Secretary of Commerce shall issue a
management plan for the Sanctuary in accordance with section
304 of the Marine Protection, Research, and Sanctuaries Act of
1972 (16 U.S.C. 1434), as amended by this title.
(d) SAND AND GRAVEL MINING ACTIVITIES PROHIBITED.-Not.
withstanding any other provision of law, exploration for, and mining
of, sand and gravel and other minerals in the Sanctuary is prohib-
ited.
(e) CONSULTATION.-In accordance with the procedures estab-
lished in section 304(e) of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended by this title, the appropriate
Federal agencies shall consult with the Secretary on proposed
agency actions in the vicinity of the Sanctuary that may affect
sanctuary resources.
(f) AUTHORIZATION.-There are authorized to be appropriated
to the Secretary of Commerce for carrying out the purposes of
this section $570,000 for fiscal year 1993 mind $250,000 for fiscal
year 1994.
(g) OFFICE.-The Secretary of Commerce shall consider
establishing a satellite office for the Stellwagen Bank National

Marine Sanctuary in Provincetown, Gloucester, or Hull, Massachu.
setts.
SEC. 2203. MONTEREY BAY NATIONAL MARINE SANCTUARY.
(a) ISSUANCE or DESIGNATION NOTICE.-Notwith standing sec-
tion 304(b) of the Marine Protection, Research, and Sanctuaries
Act of 1972 (16 U.S.C. 1434(b)). the designation of the Monterey
Bay National Marine Sanctuary (hereafter in this section the "Sanc-
tuary"), as described in the notice of designation submitted to

the Cognress an September 15, 1992. shall take effect on September
18,1992.
(b) OIL AND GAS ACTIVITIES PROHIBITED.-Notwithstanding any
other provision of law, no leasing, exploration, development, or
production of oil or gas shall be permitted within the Sanctuary
as provided by section 944.5 of the Final Environmental Impact
Statement and Management Plan for the Monterey Bay National
Marine Sanctuary, published by the Department of Commerce in
June 1992.

H. R. 5617-11

(C) CONSULTATION.-Section 304(e) of the Marine Protection,
Research, and Sanctuaries Act of 1972, as amended by this title,
shall apply to the Sanctuary as designated by the Secretary of
Commerce.
(d) VESSEL Traffic.Withln 18 months after the date of enact-
ment of this title, the Secretary of Commerce and the Secretary
of Transportation, in consultation with the State of California and
with adequate opportunity for public comment, shall report to Con-
gress on measures for regulating vessel traffic in the Sanctuary
if it is determined that such measures are necessary to protect
sanctuary resources.
SEC. 2204. ENHANCING SUPPORT FOR NATION" MARINE SANC-
TUARIES.
(a) IN GENERAL-Beginning on the date of enactment of this
title the Secretary shall conduct a 2-year pilot project to enhance
funding for designation and management of national marine sanc-
tuaries.
(b) PROJECT-The project shall consist of-
(1) the creation, adoption, and publication in the Federa1
Register by the Secretary of a symbol for the national marine
sanctuary program, or for individual national marine sanc.
tuaries;
(2) the solicitation of persons to be designated as official
sponsors of the national marine sanctuary program or of
individual national marine sanctuaries;
(3) the designation of persons by the Secretary as official
sponsors of the national marine sanctuary program or of
in vidual sanctuaries;
(4) the authorization by the Secretary of the use of any
symbol- published under paragraph (1) by official sponsors of
the national marine sanctuary program or of individual national
marine sanctuaries;
(5) the establishment and collection by the Secretary of
fees from official sponsors for the manufacture, reproduction
or use or the symbols published under paragraph (1);
(6) the retention of any fees assessed under paragraph
(5) by the Secretary in an interest-bearing revolving fund; and
(7) the expenditure of any fees and any interest in the
fund established under paragraph (6), without appropriation,
by the Secretary to designate and manage national marine
sanctuaries.
(c) CONTTRAcT AUTHoRITY- Secretary may contract with
any person for the creation of symbols or the solicitation of official
sponsors under subsection (b).
(d) REsTRICTIONs.-The Secretary may restrict the use of the
symbols published under subsection (b), and the designation of
official sponsors of the national marine sanctuary program or of
individual national marine sanctuaries to ensure compatibility with
the goals of the national marine sanctuary program.
(e) PROPERTY OF UNITED STATES.-Any symbol which is adopted
by the Secretary . and published in the Federal Register under
subsection (b) in deemed to be the property of the United States.
(f) PROHIBITED ACTIVITIES-(1) it is unlawful for any person-
(A) designated as an ofFicial sponsor to influence or seek
to influence any decision by the Secretary or any other Federal
official related to the designation or management of a national

NOAA OGC T@."- NOAA 'GCOS UN

H. R. 5617-12
!narine sanctuary, except to the extent that a person who
is not so designated may do so;
(B) to represent himself or herself to be an otTicial sponsor
absent a designation by the Secretary;
(C) to manufacture, reproduce, or use any symbol adopted
by the Secretary absent designation as an official sponsor and
without payment of a fee to the Secretary; and
(D) to violate any regulation promulgated by the Secretary
under this section.
(2) Violation of this subsection shall be considered a violation
or title III of the Marine Protection, Research, and Sanctuaries
Act of 1972 (16 U.S.C. 1431 et set).
(g) REPoRT.-No later than 0 months after the date of enact-
ment of this Act, the Secretary shall submit a report on the pilot
project to Congress regarding the success of the program in provid-
ing additional funds for management and operation of national
marine sanctuaries.
(h) DEFrNrTioNs.-In this section-
(1) the term "national marine sanctuary" or "national
marine sanctuaries" means a national marine sanctuary or
sanctuaries desi ated under title III of the Marine Protection,
Research, and Enctuaries Act of 1972 (16 U.S.C. 1431 et
seq.), or by other law in accordance with title III of the Marine
Protection, Research, and Sanctuaries Act of 1972;
(2) the term "official sponsor" means any person designated
by the Secretary who is authorized to manufacture, reproduce,
or use any syTnbol created, adopted, and published in the Fed-
eral Register under this section for a fee paid to the Secretary;
and
(3) the tenn "Secretary," means the Secretary of Commerce.

SEC. 2205. TECWOCAL CORRECMONS RELA71NG TO COASTAL ZONE
MANAGEMENT ACT OF 1972.
(a) AmE.NDMENT OF COASTAL ZONE MANAGE?JENT ACT OF
1972.-Except as otherwise expressly provided, whenever in this
section an amendment is.expressed in terms of an amendment
to a section or other provision, the reference shall be considered
to be made to a section or other provision of the Coastal Zone
Management Act of 1972 (16 U.S.C. 1451 et seq.).
W TECHNICAL CORRECTIONS.-
(1) The Act is amended by-
(A) striking "coastal State" each place it appears and
inserting "coastal state"-
(B) striking "coastal States" each place it appears and
inserting "coastal states"; and
(C) striking "coastal State's* each place it appears and
inserting "coastal state's".
(2) Section 6203(bXl) of the Coastal Zone Act Reauthoriza-
tion Amendments of 1990 (104 Stat. 1388-301, relating to
section 303(2) -of the Coastal Zone Management Act of 1972)
is amended by striking "as well as the" the first place it appears
and inserting "as well an to".
(3) Section 6204(a-) of the Coastal Zone Act Reauthorization
Amendments of 1990 (104 Stat. 1388-302, relating to section
3040) of the Coastal Zone Management Act of 1972) is
amended-

H.R. 5617-13
(A) in the matter preceding paragraph (1) by sriking
'Ile third sentence of section" and inserting "Section ";
(B) in paragraph (1) by inserting after "period at the
end" the following:" of the third sentence"; and
(C) in paragraph (2) by inserting after "territorial sea.'"
the following: "at the end of the second sentence".
(4) Section 6204(b) of the Coastal Zone Act Reauthorization
Amendments of 1990 (104 Stat. 1388-302) is amended by strik-
ing "following" and inserting "following:".
(5) Section 304(l) (16 &S.C. 1453(l)) is amended in the
second sentence-
(A) by striking 'the outer limit of" the first place it
appears; and
(B) by striking "1705," and inserting "1705),".
(6) Section 304(2) (16 U.S.C. 1453(2)) is amended by atrik.
ing "the term" and inserting "'Me term".
(7) Section 304(9) (16 U.S.C. 1453(9)) is amended to read
as follows:
"(9) The term Fund' means the Coastal Zone Management
Fund established under section 308(b).".
(8) Section 306(b) (16 U.S.C. 1455(b)) is amended by strik.
ing the semicolon at the end and inserting a period.
" (9) Section 6216(a) of the Coastal Zone Act Reauthorization
Amendments of 1990 (104 Stat. 1388-314, relating to section
306A(bXl) of the Coastal Zone Management Act of 1972) is
amended by striking 306A(abXl) and inserting "306A(bXl)".
(10) Section 306A(aXlXB) (16 U.S.C. 1455a(aXlXB)) is
amended by striking "specified" and all that follows through
the end of the sentence and inserting "specified in section
303(2) (A) through (K).".
(11) Section 306A(b) (16 U.S.C. 1455a(b)) is amended-
(A) in paragraph (2) by striking "that are designated"
and all that follows through the end of the paragraph
and inserting "that are designated in the state's manage-
ment program pursuant to section 306(dX2XC) as areas
of particular concern.'; and
(B) in paragraph (3) by-
(i) striking "access of" and inserting "access to";
and
(ii) striking "in accordance with" and all that fol-
Iowa through the end of the paragraph and inserting
"in accordance with the planning process required
under section 306(dX2XG), ".
(12) Section 306A(c) (16 U.S.C. 1455a(c)) is amended in
paragraph (2XC) in the matter following clause (iii) by striking
shall not by," and inserting "shall, not be ".
(13) Section 6208(bX3XB) of the Coastal Zone Act Reauthor-
ization Amendments of 1990 (104 Stat. 1388-308, relating to
section 307(cX3XB) of the Coastal Zone Management Act of
1972) is amended by inserting "with" afer "complies".

(14) Section 307(i) (16 U.S.C., 1456(i)) is amended-
(A) by inserting "(1)" after "(j)";
(B) in paragraph (1) (as designated by subparagraph
(A) of this paragraph) by striking the second sentence;
and
(C) by adding at the end the following:

H. R. 5617-14

"(2XA) The Secretary shall collect such other fees as are
necessary recover the full costs of administering and process-
ing such a peals under subsection (c).
"(B) If the Secretary waives the application fee under para-
graph (1) for an applicant the Secretary shall waive all other

fees under this subsection for the applicant.
"(3) Fees collected under this subsection shall be deposited
into the Coastal Zone Management Fund established under
section 308.".
(15) Section 6209 of the Coastal Zone Act Reauthorization
Amendments of 1990 (104 Stat. 1388-308, relating to section
308 of tho Coastal Zone Management Act of 1972) is amended
in the matter preceding the quoted material by striking "1456"
and inserting '1456a".
(16) Section 308(aXl) (16 U.S.C. 1456a(aX1)) is amended
in the first sentence by striking 'pursuant to this Act" and
inserting "pursuant to this title".
(17) Section 308(bXl) (16 U.S.C. 1456a(bXl)) is amended
by striking "(hereinafter" and all that follows through "Fund')".
(18) Section. 308(bX1) (16 U.S.C. 1456a(bXl)) is amended
by inserting after "subsection (a)" the following: "and fees depos.
ited into the Fund under section 307(iX3)".
(19) The first section 313 (16 U.S.C. 1459) is amended-
(A) in subsection (a) by striking "section 308" and
inserting "section 308, as in efrect before the date of the
enactment of the Coastal Zone Act Reauthorization Amend-
ments of 1990,"; and
(B) in paragraph (1) of subsection (b) by striking "sec.
tion 308(d)" and all that follows through the end of the
paragraph and inserting '"section 308 as in effect before
the date of the enactment of the Coastal Zone Act Reauthor-
ization Amendments of 1990; and".
(20) The second section 313 (16 U.S.C. 1460. relating to
Walter B, Jones excellence in coastal zone management awards)
is amended-
(A) by redesignating that section as section 314;
(B) in subsection (a) by inserting after "under section
308" the following: "and other amounts available to carry
out this title (other than amounts appropriated to carry
out sections 305, 306, 306A, 309, 310. and 315)"; and
(C) in subsection (e) by inserting after "under section
308" the following: "and other amounts available to carry
out this title (other than amounts appropriated to carry
out sections 305, 306, 306A, 309, 3 10, and 3 16)".
(21) Section 315(a) (16 U.S.C. 1461(a)) is amended by strik.
ing "National Estuarine Reserve Research System" and insert.
ing "National Estuarine Research Reserve System".
(22) Section 316(cX4) (16 U.S.C. 1461(cX4)) is amended
by striking "subsection (1) inserting "paragraph (1)".
(23)Section 316(a) (16 U.S.C. 1462(a)) is amended in clause
(5) by striking "subsections (c) and (d) of this section" and
inserting "subsections (c) and (d) of section 312".
(24) Section 6217(iX3) of the Coastal Zone Act Reauthoriza-
tion Amendments of 1990 (104 Stat. 1368-319, relating to
definitions under that Act) is amended-
(A) by striking the comma; and
(B) by inserting "Zone" after "Coastal".

H. R. 5617-15
SEC. 2206. RESEARCH TO IMPROVE MANAGEMENT.
(a) FLORIDA NATIONAL MARINE SANCTUARY.-Section 7(a) of
the Florida Keys National Marine Sanctuary and Protection Act
(16 U.S.C. 1433 note) is amended by striking paragraph (4); by
redesignating paragraphs (5) through (8) as paragraphs (6) through
(9), respectively; and by inserting after paragraph (3) the following
new paragraphs:
"(4) identify priority needs for research and amounts
needed to-
"(A) improve management of the Sanctuary and in
particular, the coral reef ecosystem within the Sanctuary;
and
"(B) identify clearly the cause and effect relationships
between factors threatening the health of the coral reef
ecosystem in the Sanctuary;
"(5) establish a long-term ecological monitoring program
and data base, including methods to disseminate infromation
on the management of the coral reef ecosystem;".
(b) DEADLINES NOT AFFECTED.-The amendments made by sub-
section (a) shall not be construed to modify, by implication or
otherwise, the deadlines established under-
(1) section 7(a) of the Florida Keys National Marine Sanc-
tuary and Protection Act regarding completion of the corm
prehensive management plan and final regulations; or
(2) section 8(a) of that Act regarding development of the
water quality protection program.
SEC. 2207. OLYMPIC COAST NATIONAL MARINE SANCTUARY.
No oil or gas leasing or preleasing activity shall be conducted
within the area designated as the Olympic Coast National Marine
Sanctuary in accordance with Public Law 100-627.
SEC. 2208. PROVASOLI-GUILLARD CENTER FOR CULTURE OF MARINE
PHYTOPLANKTON.
(a) FINDINGS.-The Congress finds the following:
(1) The ocean" cover 70 percent of the surface of the Earth.
(2) The foundation of the food webs and fisheries productiv-
it of the oceans rests with microscopic plants ]gown as
phytoplankton.
(3) Phytoplankton serve as a vital natural resource in the
oceans.
(4) By serving as primary agents in control of the flux

of atmospheric carbon dioxide to the deep ocean, phytoplankton
influence climate and the rate of global warming.
(5) There is limited knowledge of the biology, physiology,
chemistry, and taxonomy of phytoplankton, and it is of vital
interest to this Nation to improve the body of knowledge relat-
ing to phytoplankton to benefit this Nation and other countries.
(6) a Provasoli-Guillard Center for the Culture of Marine
Phytoplankton located in West Boothbay Harbor, Maine, houses
a phytoplankton collection that contains species from each of

the ocean environments of the World, and is recognized as
the largest collection of phytoplankton in the World.
(7) The Provasoli-Guillard Center for the Culture of Marine
Phytoplankton is of vital interest to oceanographers In this
Nation and throughout the World, and provides cultures or
phytoplankton for critical research on global issues.

H. R. 5617-16

(b) DESIGNATION.-In light of the findings under subsection
(a), the Provasoli-Guillard Center for the Culture of Marine
Phytoplankton located in West Boothbay Harbor, Maine, is des-
ignated as a National CentAr and Facility.
SEC. =09. YLORMA KEYS NATIONAL MARINE &XNCTUARY.
(a) ImFLzmrjrrATiom--&ct1on 8 of the Fldrida Keys National
Marine Sanctuary and Protection Act (16 U.S.C. 1433 note) is
amended by adding at the end the followin$ new subsection-
0(d) IMPLEMENTATION.-< 1) The Administrator of the Environ-
mental Protection Agency and the Governor of the State of Florida
shall implement theprograrn required by this section, in cooperation
with the Secretary of Commerce.
"(2XA) The Regional Administrator of the Environmental
Protection Agency shall with the Governor of the State of Florida
establish a Steerinjg Committee to set guidance and policy for the
development and implementation of such program. Membership
shall include representatives of the Environmental Protection
Agency, the National Park Service, the United States Fish and
Wildlife Service, the Army Corps of Engineers, the National Oceanic
and Atmospheric Administration, the Florida Department of
Community Affairs, the Florida Department of Environmental
Regulation, the South Florida Water Management District, and
the Florida Keys A ueduct Authority; three individuals in local
government in the Florida Keys; and three citizens knowledgeable
about such program.
"(13) The Steering Committee shall, on a biennial basis, issue
a report t* Congress that-
"M summarizes the progress of the program;
"(ii) summarizes any modifications to the program and
its recommended actions and plans; and
(iii) incorporates specific recommendations concerning the
im lementation of the pror. am.
(CF) The Administrator of the Environmental Protection Agency
and the Administrator of the National Oceanic and Atmospheric
Administration shall cooperate with the Florida Department of
Environmental Regulation to establish a Technical Advisory
Committee to advise the Steering Committee and to assist in the
design and pn*On'tl*2,ation or programs for scientific research and
monitoring. The Technical Advisory Committee shall be colnposed
of scientists from Federal agencies, State aqencies, academic institu-
tions, private non-profit organizations, and knowledgeable citizens.
"(3)(A) The Regional Administrator of the Environmental
Protection Agency shall apFoint a Florida Keys Liaison Officer.
The Liaison OMcer, who she ,be located within the State of Florida,
shall have the authority and staff to-
"M assist and support the implementation of the program
required by thi section, including administrative and technical
support for th: Steering Committee and Technical Advisory
Committee;
"(ii) assist and support local, State, and Federal agencies
in developing and implementing specific action plans designed
to carry out such program;
'(W) coordinate the actions of the Environmental Protection
Agency with other Federal agencies, including the National
Oceanic and Atmopheric Administration and the National
Park Service, and State and local authorities, in developing

H. R. 5617-17
strategies to maintain, protect, and improve water quality in
the Florida Keys;
"(iv) collect and make available to the public publications,
and other forms of information that the Steering Committee
determines to be appropriate, related to the water quality in

the vicinity of Florida Keys; and
"(v) provide for public review and comment on the program
and implementing actions.
"(4)(A)There are authorized to be a appropriated to the Adminis-
trator of the Environmental Protection Agency $2,000,000 for fiscal
year 1993, $3,000,000 for fiscal year 1994, and $4,000,000 for fiscal
year 1995, for the purpose of carrying out this section.
(B) There are authorized to be appropriated to the Secretary
of Commerce $300,000 for fiscal year 1993, $400,000 for fiscal
year 1994, and $500,000 for fiscal year 1996, for the purpose of
enabling the National Oceanic and Atmospheric Administration
to carry out this section.
"(C) Amounyd appropriated under this paragraph shall remain
available until expended.
"(D) No more than 15 percent of the amount authorized to
be appropriated under subparagraph, (A) for any fiscal tear may
be expended in that fiscal year on administrative expenses." .
(b) TECHNICAL AMENDMENT.-Section 8(c) of the Florida Keys
National Marine Sanctuary and Protection Act (16 U.S.C. 1433
note) is amended by striking "paragraph (1)" and inserting in lieu
thereof "subsection (a)".

Subtitle C-Hawaiian Islands Humpback Whale Sanctuary

SEC. 2301. SHORT TITLE-
This subtitle may be cited as the "Hawaiian Islands National
Marine Sanctuary Act".

SEC. 2302. FINDINGS.
Jhe Congress finds the following:
(1) Many of the diverse. marine resources and ecosystems
within the Western Pacific region are of-national significance
and importance.
(2) There are at present no ocean areas in the Hawaiian
Islands designated as national marine sanctuaries or identified
on the Department of Commerce's Site Evaluation List of sites
to be investigated as potential candidates for designation as
a national marine sanctuary under title III of the Marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C.
1431 et seq.).
(3) The Hawaiian Islands consist of eight major islands
and 124 minor islands, with a total land area of 6,423 square
miles and a general coastline of 750 miles.
(4) The marine environment adjacent to and between the
Hawaiian Islands is a diverse and unique subtropical marine
ecosystem.
(5) The Department of Commerce recently concluded in
its Kahoolawe Island National Marine Sanctuary Feasibility
Study that there is preliminary evidence of biological cultural,
and historical resources adjacent to Kahoolaws Isand to merit
further investigation for national marine sanctuary status.

H. R. 5617-18

(6) The Department of Commerce also concluded in its
Kahoolawe Island National Marine Sanctuary Feasibility Study
that there are additional marine areas within the Hawaiian
archipelago which merit further consideration for national
marine sanctuary status and that the national marine'sanc-
tuary,prograrn could enhance marine resource protection in
Hawaii.
(7) The Hawaiian stock of the endangered humpback whale,
the largest of the three North Pacific stocks, breed and calve
within the waters of the main Hawaiian Islands.
(8) The marine areas surrounding the main Hawaiian
Islands, which are essential breeding, calving, and nursing
areas for the endangered humpback whale, are subject to dam-
age and loss of their ecological integrity from a variety of
disturbances.
(9) The Department of Commerce recently promulgated
a humpback whale recovery plan which sets out a series of
recommended goal& and actions in order to increase the abun-
dance of the endangered humpback whale.
(10) An announcement of certain Hawaiian waters fre-
quented by humpback whales as an active candidate for marine
sanctuary designation was published in the Federal Register
an March 17, 1982 (47 FR 11644).
(11) The existirif State and Federal regulatory and manage-
ment programs app cable to the waters of the main Hawaiian
Islands are inadequate to provide the kind of comprehensive
and coordinated conservation and management of humpback
whales and their habitat that is available under title III of
the Marine Protection, Research, and Sanctuaries Act of 1972
(16 U.S.C. 1431 et @eq.).
(12) Authority is needed for comprehensive and coordinated
conservation and management of humpback whales and their
habitat that will complement existing Federal and State regu-
latory authorities.
(13) There is a need to support, promote, and coordinate
scientific research on, and monitoring ot, that portion of the
marine environment essential to the survival of the humpback
whale.
(14) Public education, awareness, understanding, apprecia-
tion. and wise use of the marine environment are fundamental
to the protection and conservation of the humpback whale.
(16) The designation, as a national marine sanctuary, pf
the areas of the marine environment a4jacent to the main
Hawaiian Islands which are essential to the continued recovery
of the humpback whale is necessary for the preservation and
protection of this important national marine resource.
(16) The marine sanctuary designated for the conservation
and management of humpback whales could be expanded to
include other marine resources of national significance which
are determined to exist within the sanctuary.

SEC. 2303. DEFIRMTIONS.
In this subtitle, the following definitions apply:
(1) The term 'adverse impact" means an impact that
independently or cumulatively damages, diminishes, degrades.
impairs, destroys, or otherwise harms.

H. R. 5617-19
(2) The term "Sanctuary" means the Hawaiian Islands
Humpback Whale National Marine Sanctuary designated under
section 2305.
(3) The term "Secretary' means the Secretary of Commerce.
SEC. 2304. POIXY AND PURPOSE&
(a) POI-1CY.-It is the policy of the United States to protect
and reserve humpback whales and their habitat within the Hawai-
ian ?8lands marine environment.
(b) PupyosEs.-ne purposes of this subtitle are-
(1) to protect humpback whales and their habitat in the
area described in section 2305(b);
(2) to educate and interpret for the public the relationship
of humpback whales to the Hawaiian Islands marine environ-
ment;
(3) to manage such human uses of the Sanctuary consistent
with this subtitle and title III of the Marine Protection,
Research, and Sanctuaries Act of 1972, as amended by this
Act; and
(4) to provide for the identification of marine reSDurces
and ecosystems of national significance for possible inclusion
in the sanctuary designated in section 2305(a).
SEC. 230. DESIGNATION OF SANCTUARY.
(A) DESIGNATION.--Subject to subsection (c), the area described
in subsection (b) i's designated as the Hawaiian Islands HuTpback
Whale National Marine Sanctuary under title III of the marine
Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1451
et se ), as amended by this title.
(1) ARE:A INCLUDED.--41) Subject to subsections (c) and (d),
the area referred to in subsection (a) consists of the submerged
lands and waters off the coast of the Hawaiian Islands seaward
of the up er reaches of the wash of the waves on shore-
R) to the one hundred fathom (one hundred and eighty-
three meter) isobath adjoining the islands of Lanai, Maui, and
Molokai, including Penguin Bank but excluding the area within
3 nautical miles of the upper reaches of the waves on the
shore of Kahoolawe Island;
(B) to the deep water area of Pailolo Channel from Cape
Halaws, Molokai, to Nakalele Point, Maui, and southward;
and
(C) to the one hundred fathom (one hundred and eighty-
three meter) isobath adjoining the Kilauea National Wildlife
Refuge on the Wand of Kauai.
(2XA) On January 1, 1996, the area of the marine environment
within 3 nautical miles of the upper reaches of the wash of the
waves on the shore of Kahoolaws Island is designated a part of
the Sanctuary, unless during the 3-month period immediately
preceding January 1, 1996, the Secretary certifies in writing to
ihe Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Merchant Marine and Fisheries of
the House of Representatives that the area is not suitable for
inclusion in the Sanctuary. If such certification is made, it shall
be accompanied b it written explanation of the Secretarys reason-
ing In au rt of & certification.
WEr a certification of unsuitability is inade under oubpara-
graph (A), the Secretary shall annually make a finding concerning
the suitability of the area for inclusion in the Sanctuary and submit

H. R. 5617-20
to such congressional committees a report on that finding and
the reasons thereof. If the Samtary finds that the area is suitable
for inclusion in the Sanctuary, the area is designated a part of
the Sanctuary on the 30th day after such re rt 1 submitted.
(C) Upon designation of the area under musDplams
graph (A) or
(B), the area shaU-be managed as if it has been designated under
section 2305, and the Secretary shaU-
W publish a notice in the Federal Register announcing
the designation and identilying the am&; and
00 issue such reVulations for the area an are necear
to &TIll the Secretary& responsibilities under this subtitle d
title III of the Marine Protection, Research, and Sanctuaries
Act of 1972 (16 U.S.C. 1431 et
(3) The Secretary shall generally identify and depict the Sanc-
tuary on National Oceanic and Atmospheric Administration charts.
Those charts shall be maintained on file -and kept available for
public examination during regular business hours at the Office
of Ocean and Coastal Resource management of the National Oceanic
and Atmospheric Administration. The Secretary -shall update the
charts to reflect any boundary modification under subsection (d),
and any additional designation under paragraph (2) of this sub.
section.
W Emcr or OwE=ox By Gov%RNoP.--(1) If within 45 days
after the date of the enactment of this title the Governor of Hawaii
certifies to the Secretary that the designation (including the
prospective additional designation under subsection (W) of the
area within 3 nautical miles of Kahoolawe Island) is unacceptable,
the designation shall not take effect in the area of the Sanctuary
lying within the seaward boundary of the State of Hawaii.
(2) If within 46 days after the date of issuance of the comprehen-
sive management plan and inplementing regulations under section
2306 the Governor of Hawaii certifies to the Secretary that the
management plan, any implementing regulation, or any term of
th Ian or regulations is unacceptable, the management plan,
e Fa
regu i tion, or term, respectively, shall not take effect in the area
of the Sanctuary lying within the seaward boundary of the State
of Hawaii.
(3) If the Secretary cormiders that an action taken under para-
graph (1) or (2) will aftect the Sanctus fix a manner that the
goals and objectives of this subtitle canno& fdfilled, the Secretary
may terminate the entire designation under subsection (a). At least
thirty days.prior to such termination, the !Secretary shall submit
written notification of the proposed termination to the Committee
on Commerce, Science, and Wansportation of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives.
(d) BOUNDMY MOVInCATIONS.-No later than the date of issu-
ance of the draft environmental impact statement for the Sanctuary
under section 304(&XlXCXvii) of the Marine Protection, Research,
and Sanctuaries Act of 1972 (16 U.S.C. 1434(aX1XCXviW, the Sec-
retary, in consultation with the Governor of Hawaii, if appropriate,
may make modificatione to the boundaries of the Sanctuary as
necessary to fulfill the purpose of this subtitle. The Secretul shall
submit to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Merchant Marine and Fisheries
of the House of Representatives a written notification of such
modifications.

H. R. 5617-21

SEC. 2306, COMPREHENSIVE MANAGEMENT PLAN.
(a) PREPARATION OF PLAN.-The Secretary, in consultation with
interested persons and appropriate Federal, State, And local govern-
ment authorities, shall develop and issue not later than 18 months
after the date of enactment of this title a comprehensive manage.
ment plan and implementing regulations to achieve the policy and
purposes of this subtitle. In developing the plan and regulations.
the Secretary shall follow the procedures specified in section 303
and 304 of the Marine Protection, Research, and Sanctuaries Act
of 1972 (16 U.S.C. 1433 and 1434), as amended by this title.
Such comprehensive management plan shall-
(1) facilitate all public and private uses of the Sanctuary
(including uses of Hawaiian native& customarily and tradition-
ally exercised for subsistence, cultural, and religious purposes)
consistent with the primary objective of the protection of hump-
back whales and their habitat;
(2) set forth the allocation or Federal and State enforcement
responsibilities, as jointly agreed by the Secretary and the
State of Hawaii;
(3) identify research needs and establish a long-term
ecological monitoring program with respect to humpback whales
and their habitat;
(4) identify alternative sources of funding needed to fully
implement the plan's provisions and supplement appropriations
under section 2307 of this subtitle and section 313 of the
Marine Protection, Research, and Sanctuaries Act of 1972 (16
U.S.C. 1444);
(5) ensure coodination and cooperation between Sanctuary
managers and other Federal, State, and local authorities with
jurisdiction within or adjacent to the Sanctuary; and
(6) promote education among users of the Sanctuary and
the general public about conservation of humpback whales,
their habitat, and other marine resources.
(b) PUBLIC PARTICIPATION.-The Secretary shall provide for
participation by the general public in development of the com-
prehensive management plan or any amendment thereto.
SEC. 2307. AUTHORIZATION OF APPROPRIATIONS.
For carrying out this subtitle, there are authorized to be appro-

priated to the Secretary $500,000 for Fiscal year 1993 and $300,000
for fiscal year 1994. Of the amounts appropriated under this section
for fiscal year 1993-
(1) not less than $50,000 shall be used by the Western
Pacific Regional Team to evaluate potential national marine
sanctuary sites for inclusion an the Department of Commerce's
Site Evaluation List; and
(2) not less than $50,000 shall be used to continue the
investigation of biological, cultural, and historical resources
adjacent to Kahoolawe Island.

TITLE III-MARINE MAMMAL STRANDINGS

SEC. 3001. SHORT TITLE.
This title may be cited as the "Marine Mammal Health and
Stranding Response Act".

0 2 -* ..
Magnuson Fishing Conservation
I and Management Act

01 OF C
0
Magnuson Fishery
ch
Conservation and
""'-ArES Of Mana ement Act

As Amended Through November 28,1990

U.S. DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
National Marine Fisheries Service

mosi@@
Magnuson Fishery
MIRA
Conservation and
NT OV: r-O Management Act

0 0 Qn-:@j
+

ELI/ I

U.S. DEPARTMENT OF COMMERCE
Robert A. Mosbacher, Secretary

National Oceanic and Atmospheric Administration
John A. Knauss, Under Secretary

National Marine Fisheries Service
Dr. William W. Fox, Assistant Administrator

MAGNUSON FISHERY CONSERVATION AND MANAGEMENT ACT

Public Law 94-265

As amended through November 28, 1990

AN ACT

To provide for the conservation and management of the fisheries,
and for other purposes.

TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.
Sec. 3. Definitions.

TITLE I -- UNITED STATES RIGHTS AND AUTHORITY
REGARDING FISH AND FISHERY RESOURCES

Sec. 101. United States sovereign rights to fish and fishery management
authority.
Sec. 102. Exclusion for highly migratory species. [effective until 1/1/92]
Sec. 102. Highly migratory species. [effective 111/921

TITLE II -- FOREIGN FISHING AND INTERNATIONAL FISHERY AGREEMENTS

Sec. 201. Foreign fishing.
Sec. 202. International fishery agreements.
Sec. 203. Congressional oversight of governing international flshery agreements.
Sec. 204. Permits for foreign fishing.
Sec. 205. Import prohibitions.
Sec. 206. Large-scale driftnet fishing.

TITLE III NATIONAL FISHERY MANAGEMENT PROGRAM

Sec. 301. National standards for fishery conservation and
management.
Sec. 302. Regional fishery management councils.
Sec. 303. Contents of fishery management plans.
Sec. 304. Action by Secretary.
Sec. 305. Implementation of fishery management plans.
Sec. 306. State jurisdiction.
Sec. 307. Prohibited acts.
Sec. 308. Civil penalties and permit sanctions.
Sec. 309. Criminal offenses.
Sec. 310. Civil forfeitures.
Sec. 311. Enforcement.
Sec. 313. North Pacific fisheries research plan.

TITLE TV MISCELLANEOUS PROVISIONS

Sec. 406. Authorization of appropriations.

Numbers in boldface indiocate the number of the Public IAw that amended the following
provision. Boldface comments nuu*ed with asterisks were inserted by the editors.

16 U.S.C. 1801

SEC. 2. FINDINGS, PURPOSES, AND POLICY

(a) FINDINGS.--Tlie Congress finds and declares the following:

(1) The fish off the coasts of the United States, the highly migratory species of the high
seas, the species which dwell on or in the Continental Shelf appertaining to the United
States, and the anadromous species which spawn in United States rivers or estuaries,
constitute valuable and renewable natural resources. These fishery resources contribute to
the food supply, economy, and health of the Nation and provide recreational opportunities.

(2) As a consequence of increased fishing pressure and because of the inadequacy of
fishery conservation and management practices and controls (A) certain stocks of such fish
have been overfished to the point where their survival is threatened, and (B) other such
stocks have been so substantially reduced in number that they could become similarly
threatened.

(3) Commercial and recreational fishing constitutes a major source of employment and
contributes significantly to the economy of the Nation. Many coastal areas are dependent
upon fishing and related activities, and their economies have been badly damaged by the
overfishing of fishery resources at an ever-increasing rate over the past decade. The
activities of massive foreign fishing fleets in waters adjacent to such coastal areas have
contributed to such damage, interfered with domestic fishing efforts, and caused destruction
of the fishing gear of United States fishermen.

(4) International fishery agreements have not been effective in preventing or terminating
the overfishing of these valuable fishery resources. Tliere is danger that irreversible effects
from overfishing will take place before an effective international agreement on fishery
management jurisdiction can be negotiated, signed, ratified, and implemented.

(5) Fishery resources are finite but renewable. If placed under sound management
before overfishing has caused irreversible effects, the fisheries can be conserved and
maintained so as to provide optimum yields on a continuing basis.

(6) A national program for the conservation and management of the fishery resources of
the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure
conservation, and to realize the full potential of the Nation's fishery resources.

95-354
(7) A national program for the development of fisheries which are underutilized or not
utilized by the United States fishing industry, including bottom fish off Alaska, is necessary
to assure that our citizens benefit from the employment, food supply, and revenue which
could be generated thereby.

101-627
(8) The collection of reliable data is essential to the effective conservation, management,
and scientific understanding of the fishery resources of the United States.

16 U.S.C. 1801

(b) PURPOSES.--It is therefore declared to be the purposes of the Congress in this Act--

"-659, 101-627
(1) to take immediate action to conserve and manage the fishery resources found off the
coasts of the United States, and the anadromous species and Continental Shelf fishery
resources of the United States, by exercising (A) sovereign rights for the purposes of
exploring, exploiting, conserving, and managing all fish [except highly migratory speciesJ*
within the exclusive economic zone established by Presidential Proclamation 5030, dated
March 10, 1983, and (B) exclusive fishery management authority beyond the exclusive
economic zone over such anadromous species and Continental Shelf fishery resources;

The bracketed phrase is deleted effective 1/V92.

(2) to support and encourage the implementation and enforcement of international
fishery agreements for the conservation and management of highly migratory species, and to
encourage the negotiation and implementation of additional such agreements as necessary;

(3) to promote domestic commercial and recreational fishing under sound conservation
and management principles;

(4) to provide for the preparation and implementation, in accordance with national
standards, of fishery management plans which will achieve and maintain, on a continuing
basis, the optimum yield from each fishery;

101-627
(5) to establish Regional Fishery Management Councils to exercise sound judgment in
the stewardship of fishery resources through the preparation, monitoring, and revision of
such plans under circumstances (A) which will enable the States, the fishing industry,
consumer and environmental organizations, and other interested persons to participate in,
and advise on, the establishment and administration of such plans, and (B) which take into
account the social and economic needs of the States; and

95-354, %-561
(6) to encourage the development by the United States fishing industry of fisheries
which are currently underutilized or not utilized by United States fishermen, including
bottom fish off Alaska, and to that end, to ensure that optimum yield determinations
promote such development.

(1) to maintain without change the existing territorial or other ocean jurisdiction of the
United States for all purposes other than the conservation and management of fishery
resources, as provided for in this Act;

(2) to authorize no impediment to, or interference with, recognized legitimate uses of
the high seas, except as necessary for the conservation and management of fishery
resources, as provided for in this Act;

16 U.S.C. 1801

101-627
(3) to assure that the national fishery conservation and management program utilizes,
and is based upon, the best scientific information available; involves, and is responsive to
the needs of, interested and affected States and citizens; promotes efficiency, draws upon
Federal, State, and academic capabilities in carrying out research, administration,
management, and enforcement; considers the effects of fishing on immature fish and
encourages development of practical measures that avoid unnecessary waste of fish; and is
workable and effective;

(4) to permit foreign fishing consistent with the provisions of this Act;

99-659, 101-627
(5) to support and encourage active United States efforts to obtain internationally
acceptable agreements which provide for effective conservation and management of fishery
resources, and to secure agreements to regulate fishing by vessels or persons beyond the
exclusive economic zones of any nation; and

101-627
(6) to foster and maintain the diversity of fisheries in the United States.

SEC. 3. DEFINITIONS 16 U.S.C. 1902

As used in this Act, unless the context otherwise requires--

(1) The term "anadromous species" means species of fish which spawn in fresh or estuarine
waters of the United States and which migrate to ocean waters.

(2) The term "conservation and management" refers to all of the rules, regulations,
conditions, methods, and other measures (A) which are required to rebuild, restore, or
maintain, and which are useful in rebuilding, restoring, or maintaining, any fishery resource
and the marine environment; and (B) which are designed to assure that--
(i) a supply of food and other products may be taken, and that recreational benefits
may be obtained, on a continuing basis;
(ii) irreversible or long-term adverse effects on fishery resources and the marine
environment are avoided; and
(iii) there will be a multiplicity of options available with respect to future uses of
these resources.

(3) 'Me term "Continental Sheir means the seabed and subsoil of the submarine areas
adjacent to the coast, but outside the area of the territorial sea, of the United States, 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 areas.

16 U.S.C. 1802

99-659
(4) The term "Continental Shelf fishery resources" means the following:

COLENTERATA

Bamboo Coral--Acanella spp.;
Black Coral--Antipathes spp.;
Gold Coral--Callogorgia spp.;
Precious Red Coral--Corallium spp.;
Bamboo Coral--Keratoisis spp.; and
Gold Coral--Parazoanthus spp.

CRUSTACEA

Tanner Crab--Chionoecetes tanneri;
Tanner Crab--Chionoecetes opilio;
Tanner Crab--Chionoecetes angulatus;
Tanner Crab--Chionoecetes bairdi;
King Crab--Paralithodes camtschatica;
King Crab--Paralithodes platypus;
King Crab--Paralithodes brevipes;
Lobster--Homarm americanus;
Dungeness Crab--Cancer magister;
California King Crab--Paralithodes californiensis;
California King Crab--Paralithodes rathbuni;
Golden King Crab--Lithodes aequispinus;
Northern Stone Crab--Lithodes maja;
Stone Crab--Menippe mercenaria; and
Deep-sea Red Crab--Geryon quinquedens.

MOLLUSKS

Red Abalone--Haliotis rufescens;
Pink Abalone--Haliotis coffugata;
Japanese Abalone--Haliotis kamtschalkana;
Queen Conch--Strombus gigas;
Surf Clam--Spisula solidissima; and
Ocean Quahog--Arctica islandica.

SPONGES

Glove Sponge--Spongia cheiris;
Sheepswool Sponge--Hippiospongia lachne;
Grass Sponge--Spongia graminea; and
Yellow Sponge--Spongia barbera.

16 U.S.C. 1802

If the Secretary determines, after consultation with the Secretary of State, that living organisms
of any other sedentary species are, at the harvestable stage, either-
(A) immobile on or under the seabed, or
(B) unable to move except in constant physical contact with the seabed or subsoil,
of the Continental Shelf which appertains to the United States, and publishes notices of
such determination in the Federal Register, such sedentary species shall be considered to be
added to the foregoing list and included in such term for purposes of this Act.

(5) Tle term *Council" means any Regional Fishery Management Council established under
section 302.

W659
(6) The term "exclusive economic zone" means the zone established by Proclamation
Numbered 5030, dated March 10, 1983. For purposes of applying this Act, the inner boundary
of that zone is a line coterminous with the seaward boundary of each of the coastal States.

W659, 101-627
(7) 'Me term "fish" means finfish, mollusks, crustaceans, and all other forms of marine
animal and plant life other than marine mammals[, birds, and highly migratory species] and
birds.*

The underlined phrase replaces the bracketed phrase effective 111/92.

(8) 'Me term "fishery" means--
(A) one or more stocks of fish which can be treated as a unit for purposes of
conservation and management and which are identified on the basis of geographical,
scientific, technical, recreational, and economic characteristics; and
(B) any fishing for such stocks.

(9) 'Me term "fishery resource" means any fishery, any stock of fish, any species of fish, and
any habitat of fish.

(10) The term 'fishing" means--
(A) the catching, taking, or harvesting of fish;
(B) the attempted catching, taking, or harvesting of fish;
(C) any other activity which can reasonably be expected to result in the catching, taking,
or harvesting of fish; or
(D) any operations at sea in support of, or in preparation for, any activity described in
subparagraphs (A) through (C).
Such term does not include any scientific research activity which is conducted by a scientific
research vessel.

(11) The term "fishing vessel" means any vessel, boat, ship, or other craft which is used for,
equipped to be used for, or of a type which is normally used for--
(A) fishing; or
(B) aiding or assisting one or more vessels at sea in the performance of any activity
relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration,
transportation, or processing.

0 5

16 U.S.C. 1902

(12) 'Me term "foreign fishing" means fishing by a vessel other than a vessel of the United
States.

(13) The term "high seas" means all waters beyond the territorial sea of the United States
and beyond any foreign nation's territorial sea, to the extent that such sea is
recognized by the United States.

101-627
(14) The term "highly migratory species" means [species of tuna which, in the course of
their life cycle, spawn and migrate over great distances in waters of the ocean.] tuna sl2ecies,
marlin getrapturus sRR. and Makaira sRp.), oceanic sharks, sailfishes, (IstioRhorus spp.), and
swordfish (Xiphias gladius).*

* The bracketed definition is in effect for section 102 until 1/1/92, and is then deleted; the
underlined definition is In effect for other sections.

(15) 'Me term "international fishery agreement" means any bilateral or multilateral treaty,
convention, or agreement which relates to fishing and to which the United States is a party.

101-627
(16) 'Me term "large-scale driftnet fishing" means a method of fishing in which a gillnet
composed of a panel or panels of webbing, or a series of such gillnets, with a total length of
one and one-half miles or more is placed in the water and allowed to drift with the currents
and winds for the purpose of entangling fish in the webbing.

(17) The term "Marine Fisheries Commission" means the Atlantic States Marine Fisheries
Commission, the Gulf States Marine Fisheries Commission, or the Pacific Marine Fisheries
Commission.

101-627
(18) 'Me term "migratory range" means the maximum area at a given time of the year
within which fish of an anadromous species or stock thereof can be expected to be found, as
determined on the basis of scale pattern analysis, tagging studies, or other reliable scientific
information, except that the term does not include any part of such area which is in the waters
of a foreign nation.

(19) The term "national standards* means the national standards for fishery conservation
and management set forth in section 301.

101-627
(20) 'Me term "observer" means any person required or authorized to be carried on a vessel
for conservation and management purposes by regulations or permits under this Act.

(21) The term "optimum", with respect to the yield from a fishery, means the amount of
fish--
(A) which will provide the greatest overall benefit to the Nation, with particular
reference to food production and recreational opportunities; and
(B) which is prescribed as such on the basis of the maximum sustainable yield from such
fishery, as modified by any relevant economic, social, or ecological factor.

16 U.S.C. 1801

(22) Ile term "person" means any individual (whether or not a citizen or national of the
United States), any corporation, paitnership, association, or other entity (whether or not
organized or existing under the laws of any State), and any Federal, State, local, or foreign
government or any entity of any such government.

(23) The term "Secretary" means the Secretary of Commerce or his designee.

(24) The term "State" means each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and any other
Commonwealth, territory, or possession of the United States.

(25) The term "stock of fish" means a species, subspecies, geographical grouping, or other
category of fish capable of management as a unit.

(26) The term "treaty" means any international fishery agreement which is a treaty within
the meaning of section 2 of article 11 of the Constitution.

101-627
(27) The term "tuna species" means the following:
Albacore Tuna--Tliunnus alalunga;
Bigeye Tuna--Thunnus obesus;
Bluefin Tuna--Tliunnus thynnus;
Skipjack Tuna--Katsuwonus pelamis; and
Yellowfin Tuna--Tliunnus albacares.

(28) The term "United States", when used in a geographical context, means all the States
thereof.

95-354
(29) 'Me term "United States fish processors" means facilities located within the United
States for, and vessels of the United States used or equipped for, the processing of fish for
commercial use or consumption.

95-354
(30) The term "United States harvested fish" means fish caught, taken, or harvested by
vessels of the United States within any fishery for which a fishery management plan prepared
under title III or a preliminary fishery management plan prepared under section 201(h) has
been implemented.

97-453, 100-239
(31) The term "vessel of the United States" means--
(A) any vessel documented under chapter 121 of title 46, United States Code;
(B) any vessel numbered in accordance with chapter 123 of title 46, United States Code,
and measuring less than 5 net tons;
(C) any vessel numbered in accordance with chapter 123 of title 46, United States Code,
and used exclusively for pleasure; or
(D) any vessel not equipped with propulsion machinery of any kind and used exclusively
for pleasure.

0 7

16 U.S.C. 1802

101-627
(32) The term "waters of a foreign nation" means any part of the territorial sea or exclusive
economic zone (or the equivalent) of a foreign nation, to the extent such territorial sea or
exclusive economic zone is recognized by the United States.

TITLE I -- UNITED STATES RIGHTS AND AUTHORITY REGARDING FISH AND
FISHERY RESOURCES

SEC. 101. UNITED STATES SOVEREIGN RIGHTS TO FISH 16 U.S.C. 1811
AND FISHERY MANAGEMENT AUTHORITY

"-659
(a) IN THE EXCLUSIVE ECONOMIC ZONE.--Except as provided in section 102, the
United States claims, and will exercise in the manner provided for in this Act, sovereign rights
and exclusive fishery management authority over all fish, and all Continental Shelf fishery
resources, within the exclusive economic zone.

"-659, 101-627
(b) BEYOND THE EXCLUSIVE ECONOMIC ZONF---The United States claims, and will
exercise in the manner provided for in this Act, exclusive fishery management authority over
the following:

(1) All anadromous species throughout the migratory range of each such species beyond
the exclusive economic zone; except that that management authority does not extend to any
such species during the time they are found within any waters of a foreign nation.

(2) All Continental Shelf fishery resources beyond the exclusive economic zone.

SEC. 102. [EXCLUSION FOR]* HIGHLY MIGRATORY SPECIES 16 U.S.C. 1912

"-659, 101-627
[The sovereign rights and exclusive fishery management authority asserted by the United States
under section 101 over fish do not include, and may not be construed to extend to, highly
migratory species of fish.]*

The United States shall cooperate directly or through approRriate international organizations
with those nations involved in fisheries for highN migatoly species with a view to ensnEw
conservation and promoting the objective of oRtimum utilization of such sMies throughout
their ranae, both within and beyond the exclusive economic zone.*

0 The bracketed material is in effect until 1/1/92, when It Is deleted and the underlined
paragraph takes effecL

TITLE II -- FOREIGN FISHING AND INTERNATIONAL FISHERY 16 U.S.C. 1821
AGREEMENTS

SEC. 201. FOREIGN FISHING

95-354, "-659
(a) IN GENERAL.--After February 28, 1977, no foreign fishing is authorized within the
exclusive economic zone, or for anadromous species or Continental Shelf fishery resources
beyond the exclusive economic zone, unless such foreign fishing--
(1) is authorized under subsection (b) or (c);
(2) is not prohibited by subsection (g); and
(3) is conducted under, and in accordance with, a valid and applicable permit issued
pursuant to section 204.

(b) EXISTING INTERNATIONAL FISHERY AGREEMENTS.--Foreign fishing described in
subsection (a) may be conducted pursuant to an international fishery agreement (subject to the
provisions of section 202(b) or (c)), if such agreement--
(1) was in effect on the date of enactment of this Act; and
(2) has not expired, been renegotiated, or otherwise ceased to be of force and effect
with respect to the United States.

(c) GOVERNING INTERNATIONAL FISHERY AGREEMENTS.--Foreign fishing described
in subsection (a) may be conducted pursuant to an international fishery agreement (other than
a treaty) which meets the requirements of this subsection if such agreement becomes effective
after application of section 203. Any such international fishery agreement shall hereafter in
this Act be referred to as a "governing international fishery agreement". Each governing
international fishery agreement shall acknowledge the exclusive fishery management authority
of the United States, as set forth in this Act. It is the sense of the Congress that each such
agreement shall include a binding commitment, on the part of such foreign nation and its
fishing vessels, to comply with the following terms and conditions:

(1) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant
to such agreement, will abide by all regulations promulgated by the Secretary pursuant to
this Act, including any regulations promulgated to implement any applicable fishery
management plan or any preliminary fishery management plan.

97-453
(2) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant
to such agreement, will abide by the requirement that--
(A) any officer authorized to enforce the provisions of this Act (as provided for in
section 311) be permitted--
(i) to board, and search or inspect, any such vessel at any time,
(ii) to make arrests and seizures provided for in section 311(b) whenever such
officer has reasonable cause to believe, as a result of such a search or inspection,
that any such vessel or any person has committed an act prohibited by section 307,
and
(iii) to examine and make notations on the permit issued pursuant to section
204 for such vessel;
0 9

16 U.S.C. 1821

(B) the permit issued for any such vessel pursuant to section 204 be prominently
displayed in the wheelhouse of such vessel;
(C) transponders, or such other appropriate position-fixing and identification
equipment as the Secretary of the department in which the Coast Guard is operating
determines to be appropriate, be installed and maintained in working order on each
such vessel;
(D) United States observers required under subsection (i) be permitted to be
stationed aboard any such vessel and that all of the costs incurred incident to such
stationing, including the costs of data editing and entry and observer monitoring, be
paid for, in accordance with such subsection, by the owner or operator of the vessel;
(E) any fees required under section 204(b)(10) be paid in advance;
(F) agents be appointed and maintained within the United States who are authorized
to receive and respond to any legal process issued in the United States with respect to
such owner or operator; and
(0) responsibility be assumed, in accordance with any requirements prescribed by the
Secretary, for the reimbursement of United States citizens for any loss of, or damage to,
their fishing vessels, fishing gear, or catch which is caused by any fishing vessel of that
nation;
and will abide by any other monitoring, compliance, or enforcement requirement related to
fishery conservation and management which is included in such agreement.

95-354
(3) The foreign nation and the owners or operators of all of the fishing vessels of such
nation shall not, in any year, harvest an amount of fish which exceeds such nation's
allocation of the total allowable level of foreign fishing, as determined under subsection (e).

97-453
(4) The foreign nation will--
(A) apply, pursuant to section 204, for any required permits;
(B) deliver promptly to the owner or operator of the appropriate fishing vessel any
permit which is issued under that section for such vessel;
(C) abide by, and take appropriate steps under its own laws to assure that all such
owners and operators comply with, section 204(a) and the applicable conditions and
restrictions established under section 204(b)(7); and
(D) take, or refrain from taking, as appropriate, actions of the kind referred to in
subsection (e)(1) in order to receive favorable allocations under such subsection.

96-561, 101-267
(d) TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING.--The total allowable level of
foreign fishing, if any, with respect to any fishery subject to the exclusive fishery management
authority of the United States, shall be that portion of the optimum yield of such fishery
which will not be harvested by vessels of the United States, as determined in accordance with
this Act.

16 U.S.C. 1821

(e) ALLOCATION OF ALLOWABLE LEVEL--

%-61, %-561, 97-453, 97-623, 98-623, "-659
(1) (A) The Secretary of State, in cooperation with the Secretary, may make allocations
to foreign nations from the total allowable level of foreign fishing which is permitted
with respect to each fishery subject to the exclusive fishery management authority of the
United States.

(B) From the determinations made under subparagraph (A), the Secretary of State
shall compute the aggregate of all of the fishery allocations made to each foreign nation.

(C) Ile Secretary of State shall initially release to each foreign nation for harvesting
up to 50 percent of the allocations aggregate computed for such nation under
subparagraph (B), and such release of allocation shall be apportioned by the Secretary
of State, in cooperation with the Secretary, among the individual fishery allocations
determined for that nation under subparagraph (A). The basis on which each
apportionment is made under this subparagraph shall be stated in writing by the
Secretary of State.

(D) After the initial release of fishery allocations under subparagraph (C) to a
foreign nation, any subsequent release of an allocation for any fishery to such nation
shall only be made--
(i) after the lapse of such period of time as may be sufficient for purposes of
making the determination required under clause (ii); and
(ii) if the Secretary of State and the Secretary, after taking into account the size
of the allocation for such fishery and the length and timing of the fishing season,
determine in writing that such nation is complying with the purposes and intent of
this paragraph with respect to such fishery.
If the foreign nation is not determined under clause (ii) to be in such compliance, the
Secretary of State shall reduce, in a manner and quantity he considers to be appropriate
(1) the remainder of such allocation, or (11) if all of such allocation has been released,
the next allocation of such fishery, if any, made to such nation.

(E) The determinations required to be made under subparagraphs (A) and (D)(ii),
and the apportionments required to be made under subparagraph (C), with respect to a
foreign nation shall be based on--
(i) whether, and to what extent, such nation imposes tariff barriers or nontariff
barriers on the importation, or otherwise restricts the market access, of both United
States fish and fishery products, particularly fish and fishery products for which the
foreign nation has requested an allocation;
(ii) whether, and to what extent, such nation is cooperating with the United
States in both the advancement of existing and new opportunities for fisheries
exports from the United States through the purchase of fishery products from United
States processors, and the advancement of fisheries trade through the purchase of
fish and fishery products from United States fishermen, particularly fish and fishery
products for which the foreign nation has requested an allocation;
(iii) whether, and to what extent, such nation and the fishing fleets of such nation
have cooperated with the United States in the enforcement of United States fishing
regulations;

16 U.S.C. 1821

(iv) whether, and to what extent, such nation requires the fish harvested from the
exclusive economic zone for its domestic consumption;
(v) whether, and to what extent, such nation otherwise contributes to, or fosters
the growth of, a sound and economic United States fishing industry, including
minimizing gear conflicts with fishing operations of United States fishermen, and
transferring harvesting or processing technology which will benefit the United States
fishing industry;
(vi) whether, and to what extent, the fishing vessels of such nation have
traditionally engaged in fishing in such fishery-,
(vii) whether, and to what extent, such nation is cooperating with the United
States in, and making substantial contributions to, fishery research and the
identification of fishery resources; and
(viii) such other matters as the Secretary of State, in cooperation with the
Secretary, deems appropriate.

%-61,%-118
(2) (A) For the purposes of this paragraph-
(i) The term "certification" means a certification made by the Secretary that
nationals of a foreign country, directly or indirectly, are conducting fishing operations
or engaging in trade or taking which diminishes the effectiveness of the International
Convention for the Regulation of Whaling. A certification under this section shall
also be deemed a certification for the purposes of section 8(a) of the Fishermen's
Protective Act of 1967 (22 U.S.C. 1978(a)).
(ii) The term "remedial period" means the 365-day period beginning on the date
on which a certification is issued with respect to a foreign country.

(B) If the Secretary issues a certification with respect to any foreign country, then
each allocation under paragraph (1) that--
(i) is in effect for that foreign country on the date of issuance; or
(ii) is not in effect on such date but would, without regard to this paragraph, be
made to the foreign country within the remedial period;
shall be reduced by the Secretary of State, in consultation with the Secretary, by not less
than 50 percent.

(C) The following apply for purposes of administering subparagraph (B) with respect
to any foreign country:
(i) If on the date of certification, the foreign country has harvested a portion, but
not all, of the quantity of fish specified under any allocation, the reduction under
subparagraph (B) for that allocation shall be applied with respect to the quantity not
harvested as of such date.
(ii) If the Secretary notified the Secretary of State that it is not likely that the
certification of the foreign country will be terminated under section 8(d) of the
Fishermen's Protective Act of 1967 before the close of the period for which an
allocation is applicable or before the close of the remedial period (whichever close
first occurs) the Secretary of State, in consultation with the Secretary, shall reallocate
any portion of any reduction made under subparagraph (B) among one or more
foreign countries for which no certification is in effect.

16 U.S.C. 1821

(iii) If the certification is terminated under such section 8(d) during the remedial
period, the Secretary of State shall return to the foreign country that portion of any
allocation reduced under subparagraph (B) that was not reallocated under clause (ii);
unless the harvesting of the fish covered by the allocation is otherwise prohibited
under this Act.
(iv) The Secretary may refund or credit, by reason Of reduction of any allocation
under this paragraph, any fee paid under section 204.

(D) If the certification of a foreign country is not terminated under section 8(d) of
the Fishermen's Protective Act of 1967 before the close of the last day of the remedial
period, the Secretary of State--
(i) with respect to any allocation made to that country and in effect (as reduced
under subparagraph (13)) on such last day, shall rescind, effective on and after the
day after such last day, any unharvested portion of such allocation; and
(ii) may not thereafter make any allocation to that country under paragraph (1)
until the certification is terminated.

95-354, "-386
(f) FOREIGN ALLOCATION REPORT.--The Secretary and the Secretary of State shall
prepare and submit a report to the Congress and the President, not later than July 1 of each
year, setting forth--
(1) a list of species of all allocations made to foreign nations pursuant to subsection (e)
and all permits issued pursuant to section 204(b)(6)(B); and
(2) all tariff and nontariff trade barriers imposed by such nations on the importation of
such species from the United States.
0 95-354
(g) RECIPROCITY.--FoTcign fishing shall not be authorized for the fishing vessels of any
foreign nation unless such nation satisfies the Secretary and the Secretary of State that such
nation extends substantially the same fishing privileges to fishing vessels of the United States,
if any, as the United States extends to foreign fishing vessels.

95-354
(h) PRELIMINARY FISHERY MANAGEMENT PLANS.--The Secretary, when notified by
the Secretary of State that any foreign nation has submitted an application under section
204(b), shall prepare a preliminary fishery management plan for any fishery covered by such
application if the Secretary determines that no fishery management plan for that fishery will be
prepared and implemented, pursuant to title 111, before March 1, 1977. To the extent
practicable, each such plan--

(1) shall contain a preliminary description of the fishery and a preliminary determination
as to--
(A) the optimum yield from such fishery;
(B) when appropriate, the capacity and extent to which United States fish processors
will process that portion of such optimum yield that will be harvested by vessels of the
United States; and
(C) the total allowable level of foreign fishing with respect to such fishery-,

(2) shall require each foreign fishing vessel engaged or wishing to engage in such fishery
to obtain a permit from the Secretary-,

16 U.S.C. 1821

(3) shall require the submission of pertinent data to the Secretary, with respect to such
fishery, as described in section 303(a)(5); and

(4) may, to the extent necessary to prevent irreversible effects from overfishing, with
respect to such fishery, contain conservation and management measures applicable to
foreign fishing which-
(A) are determined to be necessary and appropriate for the conservation and
management of such fishery,
(B) are consistent with the national standards, the
other provisions of this Act, and other applicable law, and
(C) are described in section 303(b)(2), (3), (4), (5), and (7).

Each preliminary fishery management plan shall be in effect with respect to foreign fishing for
which permits have been issued until a fishery management plan is prepared and implemented,
pursuant to title 111, with respect to such fishery. The Secretary may, in accordance with
section 553 of title 5, United States Code, also prepare and promulgate interim regulations
with respect to any such preliminary plan. Such regulations shall be in effect until regulations
implementing the applicable fishery management plan are promulgated pursuant to section
305.

(i) FULL OBSERVER COVERAGE PROGRAM.-

%-561, ".569
(1) (A) Except as provided in paragraph (2), the Secretary shall establish a program
under which a United States observer will be stationed aboard each foreign fishing
vessel while that vessel is engaged in fishing within the exclusive economic zone.
(B) The Secretary shall by regulation prescribe minimum health and safety standards
that shall be maintained aboard each foreign fishing vessel with regard to the facilities
provided for the quartering of, and the carrying out of observer functions by, United
States observers.

"-659
(2) 71c requirement in paragraph (1) that a United States observer be placed aboard
each foreign fishing vessel may be waived by the Secretary if he finds that--
(A) in a situation where a fleet of harvesting vessels transfers its catch taken within
the exclusive economic zone to another vessel, aboard which is a United States observer,
the stationing of United States observers on only a portion of the harvesting vessel fleet
will provide a representative sampling of the by-catch of the fleet that is sufficient for
purposes of determining whether the requirements of the applicable management plans
for the by-catch species are being complied with;
(B) the time during which a foreign fishing vessel will engage in fishing within the
exclusive economic zone will be of such short duration that the placing of a United
States observer aboard the vessel would be impractical; or
(C) for reasons beyond the control of the Secretary, an observer is not available.

14 0

16 U.S.C. 1821
97-453 (3) Observers, while stationed aboard foreign fishing vessels, shall carry out such
scientific, compliance monitoring, and other functions as the Secretary deems necessary or
appropriate to carry out the purposes of this Act; and shall cooperate in carrying out such
other scientific programs relating to the conservation and management of living resources
as the Secretary deems appropriate.

(4) In addition to any fee imposed under section 204(b)(10) of this Act and section
10(e) of the Fishermen's Protective Act of 1967 (22 U.S.C 1980(c)) with respect to foreign
fishing for any year after 1980, the Secretary shall impose, with respect to each foreign
fishing vessel for which a permit is issued under such section 204, a surcharge in an
amount sufficient to cover all the costs of providing a United States observer aboard that
vessel. The failure to pay any surcharge imposed under this paragraph shall be treated by
the Secretary as a failure to pay the permit fee for such vessel under section 204(b)(10).
All surcharges collected by the Secretary under this paragraph shall be deposited in the
Foreign Fishing Observer Fund established by paragraph (5).

(5) There is established in the Treasury of the United States the Foreign Fishing
Observer Fund. The Fund shall be available to the Secretary as a revolving fund for the
purpose of carrying out this subsection. The Fund shall consist of the surcharges deposited
into it as required under paragraph (4). All payments made by the Secretary to carry out
this subsection shall be paid from the Fund, only to the extent and in the amounts
provided for in advance in appropriation Acts. Sums in the Fund which are not currently
needed for the purposes of this subsection shall be kept on deposit or invested in
obligations of, or guaranteed by, the United States.

97-453
(6) If at any time the requirement set forth in paragraph (1) cannot be met because of
insufficient appropriations, the Secretary shall, in implementing a supplementary observer
program:
(A) certify as observers, for the purposes of this subsection, individuals who are
citizens or nationals of the United States and who have the requisite education or
experience to carry out the functions referred to in paragraph (3);
(B) establish standards of conduct for certified observers equivalent to those
applicable to Federal personnel;
(C) establish a reasonable schedule of fees that certified observers or their agents
shall be paid by the owners and operators of foreign fishing vessels for observer services;
and
(D) monitor the performance of observers to ensure that it meets the purposes of
this Act.

16 U.S.C. 1821

97-453, "-659
0) RECREATIONAL FISHING.--Notwithstanding any other provision of this title, foreign
fishing vessels which are not operated for profit may engage in recreational fishing within the
exclusive economic zone and the waters within the boundaries of a State subject to obtaining
such permits, paying such reasonable fees, and complying with such conditions and restrictions
as the Secretary and the Governor of the State (or his designee) shall impose as being
necessary or appropriate to insure that the fishing activity of such foreign vessels within such
zone or waters, respectively, is consistent with all applicable Federal and State laws and any
applicable fishery management plan implemented under section 305. The Secretary shall
consult with the Secretary of State and the Secretary of the Department in which the Coast
Guard is operating in formulating the conditions and restrictions to be applied by the
Secretary under the authority of this subsection.

SEC. 202. INTERNATIONAL FISHERY AGREEMENTS 16 U.S.C. 1822

(a) NEGOTIATIONS.--Tle Secretary of State--

(1) shall renegotiate treaties as provided for in subsection (b);
(2) shall negotiate governing international fishery
agreements described in section 201(c);
(3) may negotiate boundary agreements as provided for in subsection (d);
(4) shall, upon the request of and in cooperation with the Secretary, initiate and
conduct negotiations for the purpose of entering into international fishery agreements--
(A) which allow fishing vessels of the United States equitable access to fish over
which foreign nations assert exclusive fishery management authority, and
(B) which provide for the conservation and management of anadromous species and 0
highly migratory species; and
(5) may enter into such other negotiations, not prohibited by subsection (c), as may be
necessary and appropriate to further the purposes, policy, and provisions of this Act.

"-659
(b) TREATY RENEGOTIATION.--The Secretary of State, in cooperation with the Secretary,
shall initiate, promptly after the date of enactment of this Act, the renegotiation of any treaty
which pertains to fishing within the exclusive economic zone (or within the area that will
constitute such zone after February 28, 1977), or for anadromous species or Continental Shelf
fishery resources beyond such zone or area, and which is in any manner inconsistent with the
purposes, policy, or provisions of this Act, in order to conform such treaty to such purposes,
policy, and provisions. It is the sense of Congress that the United States shall withdraw from
any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a
reasonable period of time after such date of enactment.

"-659
(c) INTERNATIONAL FISHERY AGREEMENTS.--No international fishery agreement
(other than a treaty) which pertains to foreign fishing within the exclusive economic zone (or
within the area that will constitute such zone after February 28, 1977), or for anadromous
species or Continental Shelf fishery resources beyond such zone or area--

16 U.S.C. 1822

(1) which is in effect on June 1, 1976, may thereafter be renewed, extended, or
amended; or
(2) may be entered into after May 31, 1976;
by the United States unless it is in accordance with the provisions of section 201(c).

"-"9
(d) BOUNDARY NEGOTIATIONS.-The Secretary of State, in cooperation with the
Secretary, may initiate and conduct negotiations with any adjacent or opposite foreign nation
to establish the boundaries of the exclusive economic zone of the United States in relation to
any such nation.

101-627
(e) HIGHLY MIGRATORY SPECIES AGREEMENTS.-

(1) EVALUATION.-T'he Secretary of State, in cooperation with the Secretary, shall
evaluate the effectiveness of each existing international fishery agreement which pertains to
fishing for highly migratory species. Such evaluation shall consider whether the agreement
provides for--
(A) the collection and analysis of necessary information for effectively managing the
fishery, including but not limited to information about the number of vessels involved,
the type and quantity of fishing gear used, the species of fish involved and their
location, the catch and bycatch levels in the fishery, and the present and probable future
condition of any stock of fish involved;
(B) the establishment of measures applicable to the fishery which are necessary and
appropriate for the conservation and management of the fishery resource involved;
(C) equitable arrangements which provide fishing vessels of the United States with
(i) access to the highly migratory species that are the subject of the agreement and (ii) a
portion of the allowable catch that reflects the traditional participation by such vessels
in the fishery-,
(D) effective enforcement of conservation and management measures and access
arrangements throughout the area of jurisdiction; and
(E) sufficient and dependable funding to implement the provisions of the agreement,
based on reasonable assessments of the benefits derived by participating nations.

(2) ACCESS NEGOTIATIONS.-The Secretary of State, in cooperation with the
Secretary, shall initiate negotiations with respect to obtaining access for vessels of the
United States fishing for tuna species within the exclusive economic zones of other nations
on reasonable terms and conditions.

(3) REPORTS.-The Secretary of State shall report to the Congress-
(A) within 12 months after the date of enactment of this subsection, on the results
of the evaluation required under paragraph (1), together with recommendations for
addressing any inadequacies identified; and
(B) within six months after such date of enactment, on the results of the access
negotiations required under paragraph (2).

(4) NEGOTIATION.-The Secretary of State, in consultation with the Secretary, shall
undertake such negotiations with respect to international fishery agreements on highly
migratory species as are necessary to correct inadequacies identified as a result of the
evaluation conducted under paragraph (1).

16 U.S.C. 1822

(5) SOUTH PACIFIC TUNA TREATY.--It is the sense of the Congress that the United
States Government shall, at the earliest opportunity, begin negotiations for the purpose of
extending the Treaty on Fisheries Between the Governments of Certain Pacific Island States
and the Government of the United States of America, signed at Port Moresby, Papua New
Guinea, April 2, 1987, and it[s] Annexes, Schedules, and implementing agreements for an
additional term of 10 years on terms and conditions at least as favorable to vessels of the
United States and the United States Government.

"-659
(f) NONRECOGNITION.--It is the sense of the Congress that the United States
Government shall not recognize the claim of any foreign nation to an exclusive economic zone
(or the equivalent) beyond such nation's territorial sea, to the extent that such sea is
recognized by the United States, if such nation--

(1) fails to consider and take into account traditional fishing activity of fishing vessels of
the United States;
(2) fails to recognize and accept that highly migratory species are to be managed by
applicable international fishery agreements, whether or not such nation is a party to any
such agreement; or
(3) imposes on fishing vessels of the United States any conditions or restrictions which
are unrelated to fishery conservation and management.

SEC. 203. CONGRESSIONAL OVERSIGHT OF GOVERNING 16 U.S.C. 1823
INTERNATIONAL FISHERY AGREEMENTS

(a) IN GENERAL--No governing international fishery agreement shall become effective
with respect to the United States before the close of the first 60 calendar days of continuous
session of the Congress after the date on which the President transmits to the House of
Representatives and to the Senate a document setting forth the text of such governing
international fishery agreement. A copy of the document shall be delivered to each House of
Congress on the same day and shall be delivered to the Clerk of the House of Representatives,
if the House is not in session, and to the Secretary of the Senate, if the Senate is not in
session.

(b) REFERRAL TO COMMITTEES.--Any document described in subsection (a) shall be
immediately referred in the House of Representatives to the Committee on Merchant Marine
and Fisheries, and in the Senate to the Committees on Commerce and Foreign Relations.

(c) COMPUTATION OF 60-DAY PERIOD.--For purposes of subsection (a)--
(1) continuity of session is broken only by an adjournment of Congress sine die; and
(2) the days on which either House is not in session because of an adjournment of
more than 3 days to a day certain are excluded in the computation of the 60-day period.

(d) CONGRESSIONAL PROCEDURES.---

(1) RULES OF THE HOUSE OF REPRESENTATIVES AND SENATE.-- The provisions
of this section are enacted by the Congress--

16 U.S.C. 1823

(A) as an exercise of the rulemaking power of the House of Representatives and the
Senate, respectively, and they are deemed a part of the rules of each House,
respectively, but applicable only with respect to the procedure to be followed in that
House in the case of fishery agreement resolutions described in paragraph (2), and they
supersede other rules only to the extent that they are inconsistent therewith; and
(B) with full recognition of the constitutional right of either House to change the
rules (so far as they relate to the procedure of that House) at any time, and in the
same manner and to the same extent as in the case of any other rule of that House.

(2) DEFINITION.--For purposes of this subsection, the term "fishery agreement
resolution" refers to a joint resolution of either House of Congress--
(A) the effect of which is to prohibit the entering into force and effect of any
governing international fishery agreement the text of which is transmitted to the
Congress pursuant to subsection (a); and
(B) which is reported from the Committee on Merchant Marine and Fisheries of
the House of Representatives or the Committee on Commerce or the Committee on
Foreign Relations of the Senate, not later than 45 days after the date on which the
document described in subsection (a) relating to that agreement is transmitted to the
Congress.

(3) PLACEMENT ON CAT.FNDAR.--Any fishery agreement resolution upon being
reported shall immediately be placed on the appropriate calendar.

(4) FLOOR CONSIDERATION IN THE HOUSE...
(A) A motion in the House of Representatives to proceed to the consideration of
any fishery agreement resolution shall be highly privileged and not debatable. An
amendment to the motion shall not be in order, nor shall it be in order to move to
reconsider the vote by which the motion is agreed to or disagreed to.
(B) Debate in the House of Representatives on any fishery agreement resolution
shall be limited to not more than 10 hours, which shall be divided equally between
those favoring and those opposing the resolution. A motion further to limit debate
shall not be debatable. It shall not be in order to move to recommit any fishery
agreement resolution or to move to reconsider the vote by which any fishery agreement
resolution is agreed to or disagreed to.
(C) Motions to postpone, made in the House of Representatives with respect to the
consideration of any fishery agreement resolution, and motions to proceed to the
consideration of other business, shall be decided without debate.
(D) All appeals from the decisions of the Chair relating to the application of the
Rules of the House of Representatives to the procedure relating to any fishery
agreement resolution shall be decided without debate.
(E) Except to the extent specifically provided in the preceding provisions of this
subsection, consideration of any fishery agreement resolution shall be governed by the
Rules of the House of Representatives applicable to other bills and resolutions in
similar circumstances.

(5) FLOOR CONSIDERATION IN THE SENATE.--
(A) A motion in the Senate to proceed to the consideration of any fishery agreement
resolution shall be privileged and not debatable. An amendment to the motion shall
not be in order, nor shall it be in order to move to reconsider the vote by which the
motion is agreed to or disagreed to.
0 19

16 U.S.C. 1823

(B) Debate in the Senate on any fishery agreement resolution and on all debatable
motions and appeals in connection therewith shall be limited to not more than 10
hours. The time shall be equally divided between, and controlled by, the majority leader
and the minority leader or their designees.
(C) Debate in the Senate on any debatable motion or appeal in connection with any
fishery agreement resolution shall be limited to not more than I hour, to be equally
divided between, and controlled by, the mover of the motion or appeal and the manager
of the resolution, except that if the manager of the resolution is in favor of any such
motion or appeal, the time in opposition thereto shall be controlled by the minority
leader or his designee. The majority leader and the minority leader, or either of them,
may allot additional time to any Senator during the consideration of any debatable
motion or appeal, from time under their control with respect to the applicable fishery
agreement resolution.
(D) A motion in the Senate to further limit debate is not debatable. A motion to
recommit any fishery agreement resolution is not in order.

SEC. 204. PERMITS FOR FOREIGN FISHING 16 U.S.C. 1824

"-659
(a) IN GENERAL--After February 28, 1977, no foreign fishing vessel shall engage in
fishing within the exclusive economic zone, or for anadromous species or Continental Shelf
fishery resources beyond such zone, unless such vessel has on board a valid permit issued
under this section for such vessel.

(b) APPLICATIONS AND PERMITS UNDER GOVERNING INTERNATIONAL FISHERY
AGREEMENTS.---

"-659
(1) ELIGIBILITY.--Each foreign nation with which the United States has entered into a
governing international fishery agreement shall submit an application to the Secretary of
State each year for a permit for each of its fishing vessels that wishes to engage in fishing
described in subsection (a). No permit issued under this section may be valid for longer
than a year; and section 558(c) of title 5, United States Code, does not apply to the
renewal of any such permit.

(2) FORMS.--The Secretary, in consultation with the Secretary of State and the
Secretary of the department in which the Coast Guard is operating, shall prescribe the
forms for permit applications submitted under this subsection and for permits issued
pursuant to any such application.

95-354, 97-453, "-659
(3) CONTENTS.--Any application made under this subsection shall specify--
(A) the name and official number or other identification of each fishing vessel for
which a permit is sought, together with the name and address of the owner thereof,
(B) the tonnage, hold capacity, speed, processing equipment, type and quantity of
fishing gear, and such other pertinent information with respect to characteristics of each
such vessel as the Secretary may require;
(C) each fishery in which each such vessel wishes to fish;

16 U.S.C. 1924

(D) the estimated amount of tonnage of fish which will be caught, taken, or
harvested in each such fishery by each such vessel during the time the permit is in force;
(E) the amount or tonnage of United States harvested fish, if any, which each such
vessel proposes to receive at sea from vessels of the United States;
(F) the ocean area in which, and the season or period during which, such fishing will
be conducted; and
(G) all applicable vessel safety standards imposed by the foreign country, and shall
include written certification that the vessel is in compliance with those standards;
and shall include any other pertinent information and material which the Secretary may
require.

95-354, 96-470, 97-453, "-659
(4) TRANSWITAL FOR ACTION.--Upon receipt of any application which complies
with the requirements of paragraph (3), the Secretary of State shall publish a notice of
receipt of the application in the Federal Register. Any such notice shall summarize the
contents of the applications from each nation included therein with respect to the matters
described in paragraph (3). Ile Secretary of State shall promptly transmit--
(A) such application, together with his comments and recommendations thereon, to
the Secretary;
(B) a copy of the application to the Secretary of the department in which the Coast
Guard is operating; and
(C) a copy or a summary of the application to the appropriate Council.

97-453
(5) ACTION BY COUNCIL--After receiving a copy or summary of an application under
paragraph (4)(C), the Council may prepare and submit to the Secretary such written
comments on the application as it deems appropriate. Such comments shall be submitted
within 45 days after the date on which the application is received by the Council and may
include recommendations with respect to approval of the application and, if approval is
recommended, with respect to appropriate conditions and restrictions thereon. Any
interested person may submit comments to such Council with respect to any such
application. The Council shall consider any such comments in formulating its submission
to the Secretary.

95-453, "-659
(6) APPROVAL--
(A) After receipt of any application transmitted under paragraph (4)(A), the
Secretary shall consult with the Secretary of State and, with respect to enforcement, with
the Secretary of the department in which the Coast Guard is operating. Ile Secretary,
after taking into consideration the views and recommendations of such Secretaries, and
any comments submitted by any Council under paragraph (5), may approve, subject to
subparagraph (B), the application, if he determines that the fishing described in the
application will meet the requirements of this Act, or he may disapprove all or any
portion of the application.

16 U.S.C. 1824

(B) (i) In the case of any application which specifies that one or more foreign
fishing vessels propose to receive at sea United States harvested fish from vessels of
the United States, the Secretary may approve the application unless the Secretary
determines, on the basis of the views, recommendations, and comments referred to in
subparagraph (A) and other pertinent information, that United States fish processors
have adequate capacity, and will utilize such capacity, to process all United States
harvested fish from the fishery concerned.
(ii) The amount or tonnage of United States harvested fish which may be received
at sea during any year by foreign fishing vessels under permits approved under this
paragraph may not exceed that portion of the optimum yield of the fishery concerned
which will not be utilized by United States fish processors.
(iii) In deciding whether to approve any application under this subparagraph, the
Secretary may take into account, with respect to the foreign nation concerned, such
other matters as the Secretary deems appropriate.

95-354
(7) ESTABLISHMENT OF CONDITIONS AND RESTRICTIONS.--The Secretary shall
establish conditions and restrictions which shall be included in each permit issued pursuant
to any application approved under paragraph (6) and which must be complied with by the
owner or operator of the fishing vessel for which the permit is issued. Such conditions and
restrictions shall include the following:
(A) All of the requirements of any applicable fishery management plan, or
preliminary fishery management plan, and the regulations promulgated to implement any
such plan.
(B) The requirement that no permit may be used by any vessel other than the fishing
vessel for which it is issued.
(C) The requirements described in section 201(c)(1), (2), and (3).
(D) If the permit is issued other than pursuant to an application approved under
paragraph (6)(B), the restriction that the foreign fishing vessel may not receive at sea
United States harvested fish from vessels of the United States.
(E) If the permit is issued pursuant to an application approved under paragraph
(6)(B), the maximum amount or tonnage of United States harvested fish which may be
received at sea from vessels of the United States.
(F) Any other condition and restriction related to fishery conservation and
management which the Secretary prescribes as necessary and appropriate.

96-470
(8) NOTICE OF APPROVAL.-J'he Secretary shall promptly transmit a copy of each
application approved under paragraph (6) and the conditions and restrictions established
under paragraph (7) to--
(A) the Secretary of State for transmittal to the foreign nation involved;
(B) the Secretary of the department in which the Coast Guard is operating; and
(C) any Council which has authority over any fishery specified in such application.

(9) DISAPPROVAL OF APPLICATIONS.--If the Secretary does not approve any
application submitted by a foreign nation under this subsection, he shall promptly inform
the Secretary of State of the disapproval and his reasons therefore. Ile Secretary of State
shall notify such foreign nation of the disapproval and the reasons therefor. Such foreign
nation, after taking into consideration the reasons for disapproval, may submit a revised
application under this subsection.

16 U.S.C. 1824

%-561, "-272, 101-627
(10) FEES.--
(A) Fees shall be paid to the Secretary by the owner or operator of any foreign
fishing vessel for which a permit has been issued pursuant to this section. The
Secretary, in consultation with the Secretary of State, shall establish a schedule of
reasonable fees that shall apply nondiscriminatorily to each foreign nation.
(B) Amounts collected by the Secretary under this paragraph shall be deposited in
the general fund of the Treasury.

(11) ISSUANCE OF PERMITS.--If a foreign nation notifies the Secretary of State of its
acceptance of the conditions and restrictions established by the Secretary under paragraph
(7), the Secretary of State shall promptly transmit such notification to the Secretary. Upon
payment of the applicable fees established pursuant to paragraph (10), the Secretary shall
thereupon issue to such foreign nation, through the Secretary of State, permits for the
appropriate fishing vessels of that nation. Each permit shall contain a statement of all
conditions and restrictions established under paragraph (7) which apply to the fishing vessel
for which the permit is issued.

(c) REGISTRATION PERMITS.--The Secretary of State, in cooperation with the Secretary,
shall issue annually a registration permit for each fishing vessel of a foreign nation which is a
party to an international fishery agreement under which foreign fishing is authorized by section
201(b) and which wishes to engage in fishing described in subsection (a). Each such permit
shall set forth the terms and conditions contained in the agreement that apply with respect to
such fishing, and shall include the additional requirement that the owner or operator of the
fishing vessel for which the permit is issued shall prominently display such permit in the
wheelhouse of such vessel and show it, upon request, to any officer authorized to enforce the
provisions of this Act (as provided for in section 311). The Secretary of State, after
consultation with the Secretary and the Secretary of the department in which the Coast Guard
is operating, shall prescribe the form and manner in which applications for registration permits
may be made, and the forms of such permits. 'Me Secretary of State may establish, require
the payment of, and collect fees for registration permits; except that the level of such fees shall
not exceed the administrative costs incurred by him in issuing such permits.

SEC. 205. IMPORT PROHIBITIONS 16 U.S.C. 1925

101-627
(a) DETERMINATIONS BY SECRETARY OF STATE.-- If the Secretary of State
determines that--

(1) he has been unable, within a reasonable period of time, to conclude with any foreign
nation an international fishery agreement allowing fishing vessels of the United States
equitable access to fisheries over which that nation asserts exclusive fishery management
authority, including fisheries for tuna sl!ecies.* as recognized by the United States, in
accordance with [traditional] fishing activities of such vessels, if any, and under terms not
more restrictive than those established under sections 201(c) and (d) and 204(b)(7) and
(10), because such nation has (A) refused to commence negotiations, or (B) failed to
negotiate in good faith;

16 U.S.C. 1825

(2) any foreign nation is not allowing fishing vessels of the United States to engage in
fishing for [highly migratory] tuna* species in accordance with an applicable international
fishery agreement, whether or not such nation is a party thereto;

Bracketed phrases are deleted effective 1/l/92; underlined phrases take effect 1/1/92.

(3) any foreign nation is not complying with its obligations under any existing
international fishery agreement concerning fishing by fishing vessels of the United States in
any fishery over which that nation asserts exclusive fishery management authority-, or

(4) any fishing vessel of the United States, while fishing in waters beyond any foreign
nation's territorial sea, to the extent that such sea is recognized by the United States, is
seized by any foreign nation-
(A) in violation of an applicable international fishery agreement;
(B) without authorization under an agreement between the United States and such
nation; or
(C) as a consequence of a claim of jurisdiction which is not recognized by the
United States;
he shall certify such determination to the Secretary of the Treasury.

(b) PROHIBMONS.--Upon receipt of any certification from the Secretary of State under
subsection (a), the Secretary of the Treasury shall immediately take such action as may be
necessary and appropriate to prohibit the importation into the United States-
(1) of all fish and fish products from the fishery involved, if any-, and
(2) upon recommendation of the Secretary of State, such other fish or fish products,
from any fishery of the foreign nation concerned, which the Secretary of State finds to be
appropriate to carry out the purposes of this section.

(c) REMOVAL OF PROHIBMON.--If the Secretary of State finds that the reasons for the
imposition of any import prohibition under this section no longer prevail, the Secretary of
State shall notify the Secretary of the Treasury, who shall promptly remove such import
prohibition.

(d) DEFINMONS.--As used in this section-
(1) The term 'fish" includes any highly migratory species.
(2) The term "fish products" means any article which is produced from or composed of
(in whole or in part) any fish.

16 U.S.C. 1826

101-267
SEC. 206. LARGE-SCALE DRIFTNET FISHING

(a) SHORT TITLE.--This section incorporates and expands upon provisions of the Driftnet
Impact Monitoring, Assessment, and Control Act of 1987 and may be cited as the "Driftnet
ActAmendments of 1990'.

(b) FINDINGS.--The Congress finds that--

(1) the continued widespread use of large-scale driftnets beyond the exclusive economic
zone of any nation is a destructive fishing practice that poses a threat to living marine
resources of the world's oceans, including but not limited to the North and South Pacific
Ocean and the Bering Sea;

(2) the use of large-scale driftnets is expanding into new regions of the world's oceans,
including the Atlantic Ocean and Caribbean Sea;

(3) there is a pressing need for detailed and reliable information on the number of
seabirds, sea turtles, nontarget fish, and marine mammals that become entangled and die in
actively fished large-scale driftnets and in large-scale driftnets that are lost, abandoned, or
discarded;

(4) increased efforts, including reliable observer data and enforcement mechanisms, are
needed to monitor, assess, control, and reduce the adverse impact of large-scale driftnet
fishing on living marine resources;

(5) the nations of the world have agreed in the United Nations, through General
Assembly Resolution Numbered 44-225, approved December 22, 1989, by the General
Assembly, that a moratorium should be imposed by June 30, 1992, on the use of large-scale
driftnets beyond the exclusive economic zone of any nation;

(6) the nations of the South Pacific have agreed to a moratorium on the use of large-
scale dfiftnets in the South Pacific through the Convention for the Prohibition of Fishing
with Long Driftnets in the South Pacific, which was agreed to in Wellington, New Zealand,
on November 29, 1989; and

(7) increasing population pressures and new knowledge of the importance of living
marine resources to the health of the global ecosystem demand that greater responsibility
be exercised by persons fishing or developing new fisheries beyond the exclusive economic
7one of any nation.

(1) implement the moratorium called for by the United Nations General Assembly in
Resolution Numbered 44-225;

(2) support the Tarawa Declaration and the Wellington Convention for the Prohibition
of Fishing with Long Driftnets in the South Pacific; and

16 U.S.C. 1826

(3) secure a permanent ban on the use of destructive fishing practices, and in particular
large-scale driftnets, by persons or vessels fishing beyond the exclusive economic zone of
any nation.

(d) INTERNATIONAL AGREEMENTS.--The Secretary, through the Secretary of State and
the Secretary of the department in which the Coast Guard is operating, shall seek to secure
international agreements to implement immediately the findings, policy, and provisions of this
section, and in particular an international ban on large-scale driftnet fishing. 'Me Secretary,
through the Secretary of State, shall include, in any agreement which addresses the taking of
living marine resources of the United States, provisions to ensure that--

(1) each large-scale driftnet fishing vessel of a foreign nation that is party to the
agreement, including vessels that may operate independently to develop new fishing areas,
which operate beyond the exclusive economic zone of any nation, is included in such
agreement;

(2) each large-scale driftnet fishing vessel of a foreign nation that is party to the
agreement, which operates beyond the exclusive economic zone of any nation, is equipped
with satellite transmitters which provide real-time position information accessible to the
United States;

(3) statistically reliable monitoring by the United States is carried out, through the use
of on-board observers or through dedicated platforms provided by foreign nations that are
parties to the agreement, of all target and nontarget fish species, marine mammals, sea
turtles, and sea birds entangled or killed by large-scale driftnets used by fishing vessels of
foreign nations that are parties to the agreement;

(4) officials of the United States have the right to board and inspect for violations of
the agreement any large-scale driftnet fishing vessels operating under the flag of a foreign
nation that is party to the agreement at any time while such vessel is operating in
designated areas beyond the exclusive economic zone of any nation;

(5) all catch landed or transshipped at.sea by large-scale driftnet fishing vessels of a
foreign nation that is a party to the agreement, and which are operated beyond the
exclusive economic zone of any nation, is reliably monitored and documented;

(6) time and area restrictions are imposed on the use of large-scale driftnets in order to
prevent interception of anadromous species;

(7) all large-scale driftnets used are constructed, insofar as feasible, with biodegradable
materials which break into segments that do not represent a threat to living marine
resources;

(8) all large-scale driftnets are marked at appropriate intervals in a manner that
conclusively identifies the vessel and flag nation responsible for each such driftnet;

. (9) the taking of nontarget fish species, marine mammals, sea turtles, seabirds, and
endangered species or other species protected by international agreements to which the
United States is a party is minimized and does not pose a threat to existing fisheries or the
long-term health of living marine resources; and

16 U.S.C. 1826

(10) definitive steps are agreed upon to ensure that parties to the agreement comply
with the spirit of other international agreements and resolutions concerning the use of
large-scale driftnets beyond the exclusive economic zone of any nation.

(e) REPORT.--Not later than January 1, 1991, and every year thereafter until the purposes
of this section are met, the Secretary, after consultation with the Secretary of State and the
Secretary of the department in which the Coast Guard is operating, shall submit to the
Committee on Commerce, Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives a report--

(1) describing the steps taken to carry out the provisions of this section, particularly
subsection (c);

(2) evaluating the progress of those efforts, the impacts on living marine resources,
including available observer data, and specifying plans for further action;

(3) identifying and evaluating the effectiveness of unilateral measures and multilateral
measures, including sanctions, that are available to encourage nations to agree to and
comply with this section, and recommendations for legislation to authorize any additional
measures that are needed if those are considered ineffective;

(4) identifying, evaluating, and making any recommendations considered necessary to
improve the effectiveness of the law, policy, and procedures governing enforcement of the
exclusive management authority of the United States over anadromous species against
fishing vessels engaged in fishing beyond the exclusive economic zone of any nation;

(5) containing a list and description of any new fisheries developed by nations that
conduct, or authorize their nationals to conduct, large-scale driftnet fishing beyond the
exclusive economic zone of any nation; and

(6) containing a list of the nations that conduct, or authorize their nationals to conduct,
large-scale driftnet fishing beyond the exclusive economic zone of any nation in a manner
that diminishes the effectiveness of or is inconsistent with any international agreement
governing large-scale driftnet fishing to which the United States is a party or otherwise
subscribes.

(f) CERTIFICATION.--If at any time the Secretary, in consultation with the Secretary of
State and the Secretary of the department in which the Coast Guard is operating, identifies
any nation that warrants inclusion in the list described under subsection (e)(6), the Secretary
shall certify that fact to the President. Such certification shall be deemed to be a certification
for the purposes of section 8(a) of the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)).

(g) EFFECT ON SOVEREIGN RIGTITS.--nis section shall not serve or be construed to
expand or diminish the sovereign rights of the United States, as stated by Presidential
Proclamation Numbered 5030, dated March 10, 1983, and reflected in this Act or other
existing law.

(h) DEFINITION.--As used in this section, the term "living marine resources" includes fish,
marine mammals, sea turtles, and seabirds and other waterfowl.

16 U.S.C. 1951

TITLE III -- NATIONAL FISHERY MANAGEMENT PROGRAM

SEC. 301. NATIONAL STANDARDS FOR FISHERY CONSERVATION AND
MANAGEMENT

(a) IN GENERAL--Any fishery management plan prepared, and any regulation promulgated
to implement any such plan, pursuant to this title shall be consistent with the following
national standards for fishery conservation and management:

98-623
(1) Conservation and management measures shall prevent overfishing while achieving, on
a continuing basis, the optimum yield from each fishery for the United States fishing
industry.

(2) Conservation and management measures shall be based upon the best scientific
information available.

(3) To the extent practicable, an individual stock of fish shall be managed as a unit
throughout its range, and interrelated stocks of fish shall be managed as a unit or in close
coordination.

(4) Conservation and management measures shall not discriminate between residents of
different States. If it becomes necessary to allocate or assign fishing privileges among
various United States fishermen, such allocation shall be (A) fair and equitable to all such
fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such
manner that no particular individual, corporation, or other entity acquires an excessive
share of such privileges.

(5) Conservation and management measures shall, where practicable, promote efficiency
in the utilization of fishery resources; except that no such measure shall have economic
allocation as its sole purpose.

(6) Conservation and management measures shall take into account and allow for
variations among, and contingencies in, fisheries, fishery resources, and catches.

(7) Conservation and management measures shall, where practicable, minimize costs and
avoid unnecessary duplication.

97453
(b) GUIDELINES.--- The Secretary shall establish advisory guidelines (which shall not have
the force and effect of law), based on the national standards, to assist in the development of
fishery management plans.

16 U.S.C. 1952

SEC. 302. REGIONAL FISHERY MANAGEMENT COUNCILS

97-453, 101-627
(a) ESTABLISHMENT.--There shall be established, within 120 days after the date of the
enactment of this Act, eight Regional Fishery Management Councils, as follows:

(1) NEW ENGLAND COUNCIL--The New England Fishery Management Council shall
consist of the States of Maine, New Hampshire, Massachusetts, Rhode Island, and
Connecticut and shall have authority over the fisheries in the Atlantic Ocean seaward of
such States (except as provided in section 304(f)(3)). Ile New England Council shall have
17 voting members, including 11 appointed by the Secretary in accordance with subsection
(b)(2) (at least one of whom shall be appointed from each such State).

(2) MID-ATIANTIC COUNCIL--The Mid-Atlantic Fishery Management Council shall
consist of the States of New York, New Jersey, Delaware, Pennsylvania, Maryland, and
Virginia and shall have authority over the fisheries in the Atlantic Ocean seaward of such
States (except as provided in section 304(f)(3)). The Mid-Atlantic Council shall have 19
voting members, including 12 appointed by the Secretary in accordance with subsection
(b)(2) (at least one of whom shall be appointed from each such State).

(3) SOUTH ATLANTIC COUNCIL--The South Atlantic Fishery Management Council
shall consist of the States of North Carolina, South Carolina, Georgia, and Florida and
shall have authority over the fisheries in the Atlantic Ocean seaward of such States (except
as provided in section 304(f)(3)). The South Atlantic Council shall have 13 voting
members, including 8 appointed by the Secretary in accordance with subsection (b)(2) (at
least one of whom shall be appointed from each such State).

(4) CARIBBEAN COUNCIL.--The Caribbean Fishery Management Council shall consist
of the Virgin Islands and the Commonwealth of Puerto Rico and shall have authority over
the fisheries in the Caribbean Sea and Atlantic Ocean seaward of such States (except as
provided in section 304(f)(3)). Ile Caribbean Council shall have 7 voting members,
including 4 appointed by the Secretary in accordance with subsection (b)(2) (at least one of
whom shall be appointed from each such State).

(5) GULF COUNCIL--The Gulf of Mexico Fishery Management Council shall consist of
the States of Texas, Louisiana, Mississippi, Alabama, and Florida and shall have authority
over the fisheries in the Gulf of Mexico seaward of such States (except as provided in
section 304(f)(3)). 'Me Gulf Council shall have 17 voting members, including 11 appointed
by the Secretary in accordance with subsection (b)(2) (at least one of whom shall be
appointed from each such State).

(6) PACIFIC COUNCIL--Ile Pacific Fishery Management Council shall consist of the
States of California, Oregon, Washington, and Idaho and shall have authority over the
fisheries in the Pacific Ocean seaward of such States. The Pacific Council shall have 13
voting members, including 8 appointed by the Secretary in accordance with subsection
(b)(2) (at least one of whom shall be appointed from each such State).

16 U.S.C. 1852

(7) NORTH PACIFIC COUNCIL--The North Pacific Fishery Management Council shall
consist of the States of Alaska, Washington, and Oregon and shall have authority over the
fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska. The North
Pacific Council shall have 11 voting members, including 7 appointed by the Secretary in
accordance with subsection (b)(2) (5 of whom shall be appointed from the State of Alaska
and 2 of whom shall be appointed from the State of Washington).

(8) WESTERN PACIFIC COUNCIL--The Western Pacific Fishery Management Council
shall consist of the States of Hawaii, American Samoa, Guam, and the Northern Mariana
Islands and shall have authority over the fisheries in the Pacific Ocean seaward of such
States and of the Commonwealths, territories, and possessions of the United States in the
Pacific Ocean area. The Western Pacific Council shall have 13 voting members, including 8
appointed by the Secretary in accordance with subsection (b)(2) (at least one of whom shall
be appointed from each of the following States: Hawaii, American Samoa, Guam, and the
Northern Mariana Islands).

Each Council shall reflect the expertise and interest of the several constituent States in the
ocean area over which such Council is granted authority.

97-453, "-659, 101-627
(b) VOTING MEMBERS.--

(1) The voting members of each Council shall be:
(A) 'Me principal State official with marine fishery management responsibility and
expertise in each constituent State, who is designated as such by the Governor of the
State, so long as the official continues to hold such position, or the designee of such
official.
(B) The regional director of the National Marine Fisheries Service for the geographic
area concerned, or his designee, except that if two such directors are within such
geographical area, the Secretary shall designate which of such directors shall be the
voting member.
(C) The members required to be appointed by the Secretary in accordance with
subsection (b)(2).

(2) (A) Ile members of each Council required to be appointed by the Secretary must
be individuals who, by reason of their occupational or other experience, scientific
expertise, or training, are knowledgeable regarding the conservation and management, or
the commercial or recreational harvest, of the fishery resources of the geographical area
concerned. Within nine months after the date of enactment of the Fishery Conservation
Amendments of 1990, the Secretary shall, by regulation, prescribe criteria for
determining whether an individual satisfies the requirements of this subparagraph.

(B) The Secretary, in making appointments under this section, shall, to the extent
practicable, ensure a fair and balanced apportionment, on a rotating or other basis, of
the active participants (or their representatives) in the commercial and recreational
fisheries under the jurisdiction of the Council. On January 31, 1991, and each year
thereafter, the Secretary shall submit to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Merchant Marine and Fisheries of
the House of Representatives a report on the actions taken by the Secretary to ensure
that such fair and balanced apportionment is achieved. The report shall--
30 is

16 U.S.C. 18S2

(i) list the fisheries under the jurisdiction of each Council, outlining for each
fishery the type and quantity of fish harvested, fishing and processing methods
employed, the number of participants, the duration and range of the fishery, and
other distinguishing characteristics;
(ii) assess the membership of each Council in terms of the apportionment of the
active participants in each such fishery-, and
(iii) state the Secretary's plans and schedule for actions to achieve a fair and
balanced apportionment on the Council for the active participants in any such
fishery.

(C) The Secretary shall appoint the members of each Council from a list of
individuals submitted by the Governor of each applicable constituent State. A Governor
may not submit the names of individuals to the Secretary for appointment unless the
Governor has determined that each such individual is qualified under the requirements
of subparagraph (A) and unless the Governor has, to the extent practicable, first
consulted with representatives of the commercial and recreational fishing interests of the
State regarding those individuals. Each such list shall include the names and pertinent
biographical data of not less than three individuals for each applicable vacancy and shall
be accompanied by a statement by the Governor explaining how each such individual
meets the requirements of subparagraph (A). The Secretary shall review each list
submitted by a Governor to ascertain if the individuals on the list are qualified for the
vacancy on the basis of such requirements. If the Secretary determines that any
individual is not qualified, the Secretary shall notify the appropriate Governor of that
determination. The Governor shall then submit a revised list or resubmit the original
list with an additional explanation of the qualifications of the individual in question.
An individual is not eligible for appointment by the Secretary until that individual
complies with the applicable financial disclosure requirements under subsection (k).

(D) Whenever the Secretary makes an appointment to a Council, the Secretary shall
make a public announcement of such appointment not less than 45 days before the first
day on which the individual is to take office as a member of the Council.

(3) Each voting member appointed to a Council by the Secretary in accordance with
subsection (b)(2) shall serve for a term of 3 years; except that the Secretary may designate
a shorter term if necessary to provide for balanced expiration to terms of office. No
member appointed after January 1, 1986, may serve more than three consecutive terms.
Any term completed prior to January 1, 1986, shall not be counted in determining the
number of consecutive terms served by any Council member.

(4) Successors to the voting members of any Council shall be appointed in the same
manner as the original voting members. Any indiNridual appointed to fill a vacancy
occurring prior to the expiration of any term of office shall be appointed for the remainder
of that term.

(5) The Secretary may remove for cause any member of a Council required to be
appointed by the Secretary in accordance with subsection (b)(2) if the Council concerned
first recommends removal by not less than two-thirds of the members who are voting
members. A removal recommendation of a Council must be in writing and accompanied by
a statement of the reasons upon which the recommendation is based.
0 31

16 U.S.C. 1852
(c) NONVOTTNG MEMBERS.-- 0

(1) The nonvoting members of each Council shall be:
(A) The regional or area director of the United States Fish and Wildlife Service for
the geographical area concerned, or his designee.
(B) The commander of the Coast Guard district for the geographical area concerned,
or his designee; except that, if two Coast Guard districts are within such geographical
area, the commander designated for such purpose by the commandant of the Coast
Guard.
(C) The Executive Director of the Marine Fisheries Commission for the geographical
area concerned, if any, or his designee.
(D) One representative of the Department of State designated for such purpose by
the Secretary of State, or his designee.

(2) The Pacific Council shall have one additional nonvoting member who shall be
appointed by, and serve at the pleasure of, the Governor of Alaska.

96-561, 101-627
(d) COMPENSATION AND EXPENSES.--The voting members of each Council, who are
not employed by the Federal Government or any State or local government, shall, until
January 1, 1992, receive compensation at the daily rate for GS-18 of the General Schedule,
and after December 31, 1991, at the daily rate for GS-16 of the General Schedule, when
engaged in the actual performance of duties for such Council. The voting members of each
Council, any nonvoting member described in subsection (c)(1)(C), and the nonvoting member
appointed pursuant to subsection (c)(2) shall be reimbursed for actual expenses incurred in the
performance of such duties, and other nonvoting members and Council staff members may be
reimbursed for actual expenses.

101-627
(e) TRANSACTION OF BUSINESS.--

(1) A majority of the voting members of any Council shall constitute a quorum, but one
or more such members designated by the Council may hold hearings. All decisions of any
Council shall be by majority vote of the voting members present and voting.

(2) The voting members of each Council shall select a Chairman for such Council from
among the voting members.

(3) Each Council shall meet at appropriate times and places in any of the constituent
States of the Council at the call of the Chairman or upon the request of a majority of its
voting members.

(4) If any voting member of a Council disagrees with respect to any matter which is
transmitted to the Secretary by such Council, such member may submit a statement to the
Secretary setting forth the reasons for such disagreement. The regional director of the
National Marine Fisheries Service serving on the Council, or the regional director's
designee, shall submit such a statement, which shall be made available to the public upon
request, if the regional director disagrees with any such matter.

32 0

16 U.S.C. 1852

97-453
(f) STAFF AND ADMINISTRATION.---

(1) Each Council may appoint, and assign duties to, an executive director and such
other full- and part-time administrative employees as the Secretary determines are necessary
to the performance of its functions.

(2) Upon the request of any Council, and after consultation with the Secretary, the head
of any Federal agency is authorized to detail to such Council, on a reimbursable basis, any
of the personnel of such agency, to assist such Council in the performance of its functions
under this Act.

(3) The Secretary shall provide to each Council such administrative and technical
support services as are necessary for the effective functioning of such Council.

(4) The Administrator of General Services shall furnish each Council with such offices,
equipment, supplies, and services as he is authorized to furnish to any other agency or
instrumentality of the United States.

(5) The Secretary and the Secretary of State shall furnish each Council with relevant
information concerning foreign fishing and international fishery agreements.

. (6) Each Council shall dctcrmine its organization, and prescribe its practices and
procedures for carrying out its functions under this Act, in accordance with such uniform
standards as are prescribed by the Secretary. The procedures of a Council, and of its
scientific and statistical committee and advisory panels established under subsection (g),
must be consistent with the procedural guidelines set forth in subsection b](2). Each
Council shall publish and make available to the public a statement of its organization,
practices, and procedures.

(7) The Secretary shall pay--
(A) the compensation and expenses provided for in subsection (d);
(B) appropriate compensation to employees appointed under paragraph (1);
(C) the amounts required for reimbursement of other Federal agencies under
paragraphs (2) and (4);
(D) the actual expenses of the members of the committees and panels established
under subsection (g); and
(E) such other costs as the Secretary determines are necessary to the performance of
the functions of the Councils.

101-627
(g) COMMITTEES AND PANELS.--

(1) Each Council shall establish and maintain, and appoint the members of, a scientific
and statistical committee to assist it in the development, collection, and evaluation of such
statistical, biological, economic, social, and other scientific information as is relevant to
such Council's development and amendment of any fishery management plan.

(2) Each Council shall establish such other advisory panels as are necessary or
appropriate to assist it in carrying out its functions under this Act.

16 U.S.C. 1952

(3) (A) Each Council shall establish and maintain a fishing industry advisory committee
which shall provide information and recommendations on, and assist in the development
of, fishery management plans and amendments to such plans.
(B) Appointments to a committee established under subparagraph (A) shall be made
by each Council in such a manner as to provide fair representation to commercial
fishing interests in the geographical area of authority of the Council.

(4) Decisions and recommendations made by committees and panels established under
this subsection shall be considered to be advisory in nature.

95-354, 97-453, 101-627
(h) FUNCTIONS.--Each Council shall, in accordance with the provisions of this Act--

(1) prepare and submit to the Secretary a fishery management plan with respect to
each fishery (except as provided in section 304(f)(3)) within its geographical area of
authority that requires conservation and management and, from time to time, such
amendments to each such plan as are necessary;

(2) prepare comments on any application for foreign fishing transmitted to it under
section 204(b)(4)(C), and any fishery management plan or amendment transmitted to it
under section 304(c)(2);

(3) conduct public hearings, at appropriate times and in appropriate locations in the
geographical area concerned, so as to allow all interested persons an opportunity to be
heard in the development of fishery management plans and amendments to such plans, and
with respect to the administration and implementation of the provisions of this Act (and
for purposes of this paragraph, the term 'geographical area concerned" may include an area
under the authority of another Council if the fish in the fishery concerned migrate into, or
occur in, that area or if the matters being heard affect fishermen of that area; but not
unless such other Council is first consulted regarding the conduct of such hearings within
its area);

(4) submit to the Secretary such periodic reports as the Council deems appropriate, and
any other relevant report which may be requested by the Secretary;

(5) review on a continuing basis, and revise as appropriate, the assessments and
specifications made pursuant to section 303(a)(3) and (4) with respect to the optimum yield
from, the capacity and extent to which United States fish processors will process United
States harvested fish from, and the total allowable level of foreign fishing in, each fishcry
(except as provided in section 304(f)(3)) within its geographical area of authority-, and

(6) conduct any other activities which are required by, or provided for in, this Act or
which are necessary and appropriate to the foregoing functions.

".659, 101-627
(i) FISHERY HABITAT CONCERNS.--(1) Each Council--
(A) may comment on and make recommendations concerning any activity
undertaken, or proposed to be undertaken, by any State or Federal agency that, in the
view of the Council, may affect the habitat of a fishery resource under its jurisdiction;
and

16 U.S.C. 1852

(B) shall comment on and make recommendations concerning any such activity that,
in the view of the Council, is likely to substantially affect the habitat of an anadromous
fishery resource under its jurisdiction.

(2) Within 45 days after receiving a comment or recommendation under paragraph (1)
from a Council, a Federal agency shall provide a detailed response, in writing, to the
Council regarding the matter. In the case of a comment or recommendation under
paragraph (1)(B), the response shall include a description of measures being considered by
the agency for mitigating or offsetting the impact of the activity on such habitat.

97-453, "-659, 101-627
PROCEDURAL MATTERS.-

(1) The Federal Advisory Committee Act (5 U.S.C. App. 1) shall not apply to the
Councils or to the scientific and statistical committees or advisory panels of the Councils.

(2) The following guidelines apply with respect to the conduct of business at meetings
of a Council, and of the scientific and statistical committee and advisory panels of a
Council:
(A) Unless closed in accordance with paragraph (3), each regular meeting and each
emergency meeting shall be open to the public.
(B) Emergency meetings shall be held at the call of the chairman or equivalent
presiding officer.
(C) Timely public notice of each regular meeting and each emergency meeting,
including the time, place, and agenda of the meeting, shall be published in local
newspapers in the major fishing ports of the Council's region (and in other major
fishing ports having a direct interest in the affected fishery) and such notice may be
given by such other means as will result in wide publicity. Timely notice of each regular
meeting shall also be published in the Federal Register.
(D) Interested persons shall be permitted to present oral or written statements
regarding the matters on the agenda at meetings.
(E) Minutes of each meeting shall be kept and shall contain a record of the persons
present, an accurate description of matters discussed and conclusions reached, and
copies of all statements filed.
(F) Subject to the procedures established by the Council under paragraph (4), and
the guidelines prescribed by the Secretary under section 303(d), relating to
confidentiality, the administrative record, including minutes required under subparagraph
(E), of each meeting, and records or other documents which were made available to or
prepared for or by the Council, committee, or panel incident to the meeting, shall be
available for public inspection and copying at a single location in the offices of the
Council.

(3) (A) Each Council, scientific and statistical committee, and advisory panel--
(i) shall close any meeting, or portion thereof, that concerns matters or
information that bears a national security classification; and
(ii) may close any meeting, or portion thereof, that concerns matters or
information that pertains to national security, employment matters, or briefings on
litigation in which the Council is interested; and

16 U.S.C. 1952

(B) If any meeting or portion is closed, the Council concerned shall notify local
newspapers in the major fishing ports within its region (and in other major, affected
fishing ports), including in that notification the time and place of the meeting. T'his
subparagraph does not require notification regarding any brief closure of a portion of a
meeting in order to discuss employment or other internal administrative matters.
Subparagraphs (D) and (F) of paragraph (2) shall not apply to any meeting or portion
thereof that is so closed.

(4) Each Council shall establish appropriate procedures applicable to it and to its
committee and advisory panels for ensuring confidentiality of the statistics that may be
submitted to it by Federal or State authorities, and may be voluntarily submitted to it by
private persons; including, but not limited to, procedures for the restriction of Council
employee access and the prevention of conflicts of interest; except that such procedures, in
the case of statistics submitted to the Council by a State or by the Secretary under section
303(d), must be consistent with the laws and regulations of that State, or with the
procedures of the Secretary, as the case may be, concerning the confidentiality of the
statistics.

(5) Each Council shall specify those procedures that are necessary or appropriate to
ensure that the committees and advisory panels established under subsection (g) are
involved, on a continuing basis, in the development and amendment of fishery management
plans.

(6) At any time when a Council determines it appropriate to consider new information
from a State or Federal agency or from a Council advisory body, the Council shall give
comparable consideration to new information offered at that time by interested members of
the public. Interested parties shall have a reasonable opportunity to respond to new data
or information before the Council takes final action on conservation and management
measures.

99-659
(k) DISCLOSURE OF FINANCIAL INTEREST.-

(1) For purposes of this subsection, the term "affected individual" means an individual
who--
(A) is nominated by the Governor of a State for appointment as a voting member of
a Council in accordance with subsection (b)(2);
(B) is a voting member of a Council appointed under subsection (b)(2); or
(C) is the executive director of a Council.

(2) Each affected individual must disclose any financial interest held by--
(A) that individual;
(B) the spouse, minor child, or partner of that individual; and
(C) any organization (other than the Council) in which that individual is serving as
an officer, director, trustee, partner, or employee;
in any harvesting, processing, or marketing activity that is being, or will be, undertaken
within any fishery over which the Council concerned has jurisdiction.

16 U.S.C. 1952

(3) The disclosure required under paragraph (2) shall be made--
(A) in the case of an affected individual referred to in paragraph (1)(A), before
appointment by the Secretaty, and
(B) in the case of an affected individual referred to in paragraph (1)(B) or (C),
within 45 days of taking office.

(4) An affected individual referred to in paragraph (1)(B) or (C) must update his or her
disclosure form at any time any such financial interest is acquired, or substantially changed,
by any person referred to in paragraph (2)(A), (B), or (C).

(5) 'Me financial interest disclosures required by this subsection shall--
(A) be made on such forms, in accordance with such procedures, and at such times,
as the Secretary shall by regulation prescribe; and
(B) be kept on file, and made available for public inspection at reasonable hours, at
the Council offices.

(6) The participation by an affected individual referred to in paragraph (1)(B) or (C) in
an action by a Council during any time in which that individual is not in compliance with
the regulations prescribed under paragraph (5) may not be treated as cause for the
invalidation of that action.

(7) Section 208 of title 18, United States Code, does not apply to an affected individual
referred to in paragraph (1)(B) or (C) during any time in which that individual is in
compliance with the regulations prescribed under paragraph (5).

SEC. 303. CONTENTS OF FISHERY MANAGEMENT PLANS 16 U.S.C. 1853

95-354, "-659, 101-627
(a) REQUIRED PROVISIONS.--Any fishery management plan which is prepared by any
Council, or by the Secretary, with respect to any fishery, shall--

(1) contain the conservation and management measures, applicable to foreign fishing
and fishing by vessels of the United States, which are--
(A) necessary and appropriate for the conservation and management of the fishery to
prevent overfishing, and to protect, restore, and promote the long-term health and
stability of the fishery,
(B) described in this subsection or subsection (b), or both; and
(C) consistent with the national standards, the other provisions of this Act,
regulations implementing recommendations by international organizations in which the
United States participates (including but not limited to closed areas, quotas, and size
limits), and any other applicable law-,

(2) contain a description of the fishery, including, but not limited to, the number of
vessels involved, the type and quantity of fishing gear used, the species of fish involved and
their location, the cost likely to be incurred in management, actual and potential revenues
from the fishery, any recreational interest in the fishery, and the nature and extent of
foreign fishing and Indian treaty fishing rights, if any,

16 U.S.C. 1853

(3) assess and specify the present and probable future condition of, and the maximum
sustainable yield and optimum yield from, the fishery, and include a summary of the
information utilized in making such specification;

(4) assess and specify-
(A) the capacity and the extent to which fishing vessels of the United States, on an
annual basis, will harvest the optimum yield specified under paragraph (3),
(B) the portion of such optimum yield which, on an annual basis, will not be
harvested by fishing vessels of the United States and can be made available for foreign
fishing, and
(C) the capacity and extent to which United States fish processors, on an annual
basis, will process that portion of such optimum yield that will be harvested by fishing
vessels of the United States;

(5) specify the pertinent data which shall be submitted to the Secretary with respect to
the fishery, including, but not limited to, information regarding the type and quantity of
fishing gear used, catch by species in numbers of fish or weight thereof, areas in which
fishing was engaged in, time of fishing, number of hauls, and the estimated processing
capacity of, and the actual processing capacity utilized by, United States fish processors;

(6) consider and provide for temporary adjustments, after consultation with the Coast
Guard and persons utilizing the fishery, regarding access to the fishery for vessels otherwise
prevented from harvesting because of weather or other ocean conditions affecting the safe
conduct of the fishery; except that the adjustment shall not adversely affect conservation
efforts in other fisheries or discriminate among participants in the affected fishery;

(7) include readily available information regarding the significance of habitat to the
fishery and assessment as to the effects which changes to that habitat may have upon the
fishery;

(8) in the case of a fishery management plan that, after January 1, 1991, is submitted to
the Secretary for review under section 304(a) (including any plan for which an amendment
is submitted to the Secretary for such review) or is prepared by the Secretary, assess and
specify the nature and extent of scientific data which is needed for effective implementation
of the plan; and

(9) include a fishery impact statement for the plan or amendment (in the case of a plan
or amendment thereto submitted to or prepared by the Secretary after October 1, 1990)
which shall assess, specify, and describe the likely effects, if any, of the conservation and
management measures on--
(A) participants in the fisheries affected by the plan or amendment; and
(B) participants in the fisheries conducted in adjacent areas under the authority of
another Council, after consultation with such Council and representatives of those
participants.

16 U.S.C. 1953

97-453, "-659, 101-627
(b) DISCRMONARY PROVISIONS.--Any fishery management plan which is prepared by
any Council, or by the Secretary, with respect to any fishery, may--

(1) require a permit to be obtained from, and fees to be paid to, the Secretary, with
respect to--
(A) any fishing vessel of the United States fishing, or wishing to fish, in the exclusive
economic zone or for anadromous species or Continental Shelf fishery resources beyond
such zone;
(B) the operator of any such vessel; or
(C) any United States fish processor who first receives fish that are subject to the
plan;

(2) designate zones where, and periods when, fishing shall be limited, or shall not be
permitted, or shall be permitted only by specified types of fishing vessels or with specified
types and quantities of fishing gear;

(3) establish specified limitations on the catch of fish (based on area, species, size,
number, weight, sex, incidental catch, total biomass, or other factors), which are necessary
and appropriate for the conservation and management of the fishery;

(4) prohibit, limit, condition, or require the use of specified types and quantities of
fishing gear, fishing vessels, or equipment for such vessels, including devices which may be
required to facilitate enforcement of the provisions of this Act;

(5) incorporate (consistent with the national standards, the other provisions of this Act,
and any other applicable law) the relevant fishery conservation and management measures
of the coastal States nearest to the fishery;

(6) establish a system for limiting access to the fishery in order to achieve optimum
yield if, in developing such system, the Council and the Secretary take into account--
(A) present participation in the fishery,
(B) historical fishing practices in, and dependence on, the fishery,
(C) the economics of the fishery,
(D) the capability of fishing vessels used in the fishery to engage in other fisheries,
(E) the cultural and social framework relevant to the fishery, and
(F) any other relevant considerations;

(7) require fish processors who first receive fish that are subject to the plan to submit
data (other than economic data) which are necessary for the conservation and management
of the fishery;

(8) require that observers be carried on board a vessel of the United States engaged in
fishing for species that are subject to the plan, for the purpose of collecting data necessary
for the conservation and management of the fishery, except that such a vessel shall not be
required to carry an observer on board if the facilities of the vessel for the quartering of an
observer, or for carrying out observer functions, are so inadequate or unsafe that the health
or safety of the observer or the safe operation of the vessel would be jeopardized;

16 U.S.C. 1853

(9) assess and specify the effect which the conservation and management measures of
the plan will have on the stocks of naturally spawning anadromous fish in the region; and

(10) prescribe such other measures, requirements, or conditions and restrictions as are
determined to be necessary and appropriate for the conservation and management of the
fishery.

97-453
(c) PROPOSED REGUIATIONS.--Tlie proposed regulations which the Council deems
necessary or appropriate for purposes of carrying out a plan or amendment to a plan shall be
submitted to the Secretary simultaneously with the plan or amendment for action by the
Secretary under sections 304 and 305.

"-659, 101-627
(d) CONFIDENTIALITY OF STATISTICS.--Any statistic submitted to the Secretary by any
person in compliance with any requirement under subsections (a) and (b) shall be
confidential and shall not be disclosed; except--
(1) to Federal employees and Council employees who are responsible for management
plan development and monitoring;
(2) to State employees pursuant to an agreement with the Secretary that prevents public
disclosure of the identity or business of any person; or
(3) when required by court order.

T1ke Secretary shall, by regulation, prescribe such procedures as may be necessary to preserve
such confidentiality, except that the Secretary may release or make public any such statistics in
any aggregate or summary form which does not directly or indirectly disclose the identity or
business of any person who submits such statistics. Nothing in this subsection shall be
interpreted or construed to prevent the use for conservation and management purposes by the
Secretary, or with the app
.Foval of the Secretary, the Council, of any statistic submitted in
compliance with a requirement under subsection (a) or (b).

97-453
(e) DATA COLLECTION PROGRAMS.--If a Council determines that additional
information and data (other than information and data that would disclose proprietary Or
confidential commercial or financial information regarding fishing operations or fish processing
operations) would be beneficial for the purposes of--
(1) determining whether a fishery management plan is needed for a fishery; or
(2) preparing a fishery management plan;
the Council may request that the Secretary implement a data collection program for the fishery
which would provide the types of information and data (other than information and data that
would disclose proprietary or confidential commercial or financial information regarding fishing
operations or fish processing operations) specified by the Council. The Secretary shall approve
such a data collection program if he determines that the need is justified, and shall promulgate
regulations to implement the program within 60 days after such determination is made. If the
Secretary determines that the need for a data collection program is not justified, he shall
inform the Council of the reasons for such determination in writing. The determinations of
the Secretary under this subsection regarding a Council request shall be made within a
reasonable period of time after he receives that request.

16 U.S.C. 1853

101-627
(f) RESTRICTION ON USE OF CERTAIN DATA.--The Secretary shall promulgate
regulations to restrict the use, in civil enforcement or criminal proceedings under this Act, the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.), or the Endangered Species
Act (16 U.S.C. 1531 et seq.), of information collected by voluntary fishery data collectors,
including sea samplers, while aboard any vessel for conservation and management purposes if
the presence of such a fishery data collector aboard is not required by any of such Acts or
regulations thereunder.

SEC. 304. ACTION BY THE SECRETARY 16 U.S.C. 1854

97-453, "-659
(a) ACTION BY THE SECRETARY AFTER RECEIPT OF PLAN.-

(1) After the Secretary receives a fishery management plan, or amendment to a plan,
which was prepared by a Council, the Secretary shall--
(A) immediately make a preliminary evaluation of the management plan or
amendment for purposes of deciding if it is consistent with the national standards and
sufficient in scope and substance to warrant review under this subsection and--
(i) if that decision is affirmative, implement subparagraphs (B), (C), and (D) with
respect to the plan or amendment, or
(ii) if that decision is negative-
(I) disapprove the plan or amendment, and
(H) notify the Council, in writing, of the disapproval and of those matters
specified in subsection (b)(2)(A), (B) and (C) as they relate to the plan or
amendment;
(B) immediately commcnce a review of the management plan or amendment to
determine whether it is consistent with the national standards, the other provisions of
this Act, and any other applicable law;
(C) immediately publish in the Federal Register a notice stating that the plan or
amendment is available and that written data, views, or comments of interested persons
on the plan or amendment may be submitted to the Secretary during the 60-day period
beginning on the receipt date; and
(D) by the 15th day after the receipt date--
(i) make such changes in the proposed regulations submitted for the plan or
amendment under section 303(c) as may be necessary for the implementation of the
plan, and
(ii) publish such proposed regulations, including any changes made thereto under
clause (i), in the Federal Register together with an explanation of those changes
which are substantive.

(2) In undertaking the review required under paragraph (1)(B), the Secretary shall--
(A) take into account the data, views, and comments received from interested
persons;
(B) consult with the Secretary of State with respect to foreign fishing; and
(C) consult with the Secretary of the department in which the Coast Guard is
operating with respect to enforcement at sea and to fishery access adjustments referred
to in section 303(a)(6).

16 U.S.C. 1954

(3) (A) 'The Secretary shall take action under this section on any fishery management
plan or amendment to a plan which the Council characterizes as being a final plan or
amendment.
(B) For purposes of this section, the term "receipt date" means the 5th day after the
day on which a Council transmits to the Secretary a fishery management plan, or an
amendment to a plan, that it characterizes as a final plan or amendment.

97-453, "-659
(b) REVIEW BY THE SECRETARY.-

(1) A plan or amendment shall take effect and be implemented in accordance with
section 305(a) if--
(A) the Secretary does not notify the Council in writing of--
(i) his disapproval under subsection (a)(I)(A)(ii), or
(ii) his disapproval, or partial disapproval, under paragraph (2), of the plan or
amendment before the close of the 95th day after the receipt date; or
(B) at any time subsequent to the 60th day after the receipt date and before such
95th day, the Secretary notifies the Council in writing that he does not intend to
disapprove, or partially disapprove, the plan or amendment.

(2) If after review under subsection (a) the Secretary determines that the plan or
amendment is not consistent with the criteria set forth in paragraph (1)(B) of that
subsection, the Secretary shall notify the Council in writing of his disapproval or partial
disapproval of the plan or amendment. Such notice shall specify-
(A) the applicable law with which the plan or amendment is inconsistent;
(B) the nature of such inconsistencies; and
(C) recommendations concerning the actions that could be taken by the Council to
conform such plan or amendment to the requirements of applicable law.

(3) (A) If the Secretary disapproves a proposed plan or amendment under subsection
(a)(1)(A)(ii), or disap-proves, or partially disapproves, a proposed plan or amendment
under paragraph (2), the Council may submit a revised plan or amendment,
accompanied by appropriately revised proposed regulations, to the Secretary.

(B) After the Secretary receives a revised plan or amendment under subparagraph
(A) or (C)(ii), the Secretary shall immediately-
(i) commence a review of the plan or amendment to determine whether it
complies with the criteria set forth in subsection (a)(1)(B);
(ii) publish in the Federal Register a notice stating that the revised plan or
amendment is available and that written data, views, or comments of interested
persons on the plan or amendment may be submitted to the Secretary during the
30-day period beginning on the date (hereinafter in this paragraph referred to as the
"revised receipt date") the plan or amendment was submitted to the Secretary under
subparagraph (A) or (C)(ii); and
(iii) review the revised proposed regulations, if any, submitted by the Council and
make such changes to them as may be necessary for the implementation of the plan,
and thereafter publish such revised proposed regulations (as so changed) in the
Federal Register together with an explanation of each of such changes that is
substantive.

16 U.S.C. 1954

(C) (i) Before the close of the 60th day after the revised receipt date, the Secretary,
after taking into account any data, views, or comments received under subparagraph
(B)(ii), shall complete the review required under subparagraph (B)(i) and determine
whether the plan Or amendment complies with the criteria set forth in subsection
(a)(1)(B). If the Secretary determines that a plan or amendment is not in
compliance with such criteria, he shall immediately notify the Council of his
disapproval of the plan or amendment.
(ii) After notifying a Council of disapproval under clause (i), the Secretary shall
promptly provide to the Council a written statement of the reasons on which the
disapproval was based and advise the Council that it may submit a further revised
plan or amendment, together with appropriately revised proposed regulations, for
review and determination under this paragraph.

(D) A revised plan or amendment shall take effect and be implemented in
accordance with section 305(a) if the Secretary does not notify the Council, in writing,
by the close of the 60th day after the revised receipt date of his disapproval of the plan
or amendment.

97-453, "-659
(c) PREPARATION BY THE SECRETARY.-

(1) The Secretary may prepare a fishery management plan, with respect to any fishery,
or any amendment to any such plan, in accordance with the national standards, the other
provisions of this Act, and any other applicable law, if--
(A) the appropriate Council fails to develop and submit to the Secretary, after a
reasonable period of time, a fishery management plan for such fishery, or any necessary
0 amendment to such a plan, if such fishery requires conservation and management; or
(B) the Secretary disapproves or partially disapproves any such plan or amendment,
or disapproves a revised plan or amendment, and the Council involved fails to submit a
revised or further revised plan or amendment, as the case may be.
In preparing any such plan or amendment, the Secretary shall consult with the Secretary of
State with respect to foreign fishing and with the Secretary of the department in which the
Coast Guard is operating with respect to enforcement at sea. The Secretary shall also
prepare such proposed regulations as he deems necessary or appropriate to carry out each
plan or amendment prepared by him under this paragraph.

(2) (A) Whenever, under paragraph (1), the Secretary prepares a fishery management
plan or amendment, the Secretary shall immediately-
(i) submit such plan or amendment, and proposed regulations to implement such
plan or amendment, to the appropriate Council for consideration and comment;
(ii) publish in the Federal Register a notice stating that the plan or amendment
is available and that written data, views, or comments of interested persons on the
plan or amendment may be submitted to the Secretary during the 60-day period
beginning on the date the plan or amendment was submitted under clause (i); and
(iii) by the 15th day after the date of submission under clause (i), submit for
publication in the Federal Register the proposed regulations to implement the plan
or amendment.

16 U.S.C. 1954

(B) The appropriate Council must submit its comments and recommendations, if any,
regarding the plan or amendment to the Secretary before the close of the 60-day period
referred to in subparagraph (A)(ii). After the close of such 60-day period, the .
Secretary, after taking into account any such comments and recommendations, as well as
any views, data, or comments submitted under subparagraph (A)(ii), may implement
such plan or amendment under section 305(a).

(3) Notwithstanding paragraph (1), the Secretary may not include in any fishery
management plan, or any amendment to any such plan, prepared by him, a provision
establishing a limited access system described in section 303(b)(6), unless such system is
first approved by a majority of the voting members, present and voting, of each appropriate
Council.

97-453
(d) ESTABLISHMENT OF FEES.-The Secretary shall by regulation establish the level of
any fees which are authorized to be charged pursuant to section 303(b)(1). The Secretary may
enter into a cooperative agreement with the States concerned under which the States
administer the permit system and the agreement may provide that all or part of the fees
collected under the system shall accrue to the States. The level of fees charged under this
subsection shall not exceed the administrative costs incurred in issuing the permits.

99-659, 101-627
(e) FISHERIES RESEARCH.--

(1) Within one year after the date of enactment of the Fishery Conservation
Amendments of 1990, and at least every three years thereafter, the Secretary shall develop
and publish in the Federal Register a strategic plan for fisheries research for the five years
immediately following such publication. The plan shall--
(A) identify and describe a comprehensive program with a limited number of priority
objectives for research in each of the areas specified in paragraph (2);
(B) indicate the goals and timetables for the program described in subparagraph (A);
and
(C) provide a role for affected commercial fishermen in such research, including
involvement in field testing.

(2) The areas of research referred to in paragraph (1) are as follows:
(A) Research to support fishery conservation and management, including research on
the economics of fisheries and biological research concerning the interdependence of
fisheries or stocks of fish, the impact of pollution on fish populations, the impact of
wetland and estuarine degradation, and other matters bearing upon the abundance and
availability of fish.
(B) Conservation engineering research, including the study of fish behavior and the
development and testing of new gear technology and fishing techniques to minimize the
harvest of nontarget species and promote efficient harvest of target species.
(C) Information management research, including the development of a fishery
information base and an information management system that will permit the full use of
data in the support of effective fishery conservation and management.

16 U.S.C. 1854
41 (3) In developing the plan required under paragraph (1), the Secretary shall consult with
relevant Federal agencies, scientific and technical experts, and other interested persons,
public and private, and shall publish a proposed plan in the Federal Register for the
purpose of receiving public comment on the plan. The Secretary shall ensure that affected
commercial fishermen are actively involved in the development of the portion of the plan
pertaining to conservation engineering research. Upon final publication in the Federal
Register, the plan shall be submitted by the Secretary to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on Merchant Marine and
Fisheries of the House of Representatives.

101-627
(f) FISHERIES UNDER AUTHORITY OF MORE THAN ONE COUNCII---

(1) Except as provided in paragraph (3), if any fishery extends beyond the geographical
area of authority of any one Council, the Secretary may--
(A) designate which Council shall prepare the fishery management plan for such
fishery and any amendment to such plan; or
(B) may require that the plan and amendment be prepared jointly by the Councils
concerned.
No jointly prepared plan or amendment may be submitted to the Secretary unless it is
approved by a majority of the voting members, present and voting, of each Council
concerned.

(2) Ile Secretary shall establish the boundaries between the geographical areas of
authority of adjacent Councils.

(3) (A) The Secretary shall have authority over any highly migratory species fishery that
is within the geographical area of authority of more than one of the following Councils:
New England Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council, and
Caribbean Council.

(B) In accordance with the provisions of this Act and any other applicable.law, the
Secretary shall--
(i) identify research and information priorities, including observer requirements
and necessary data collection and analysis for the conservation and management of
highly migratory species;
(ii) prepare and amend fishery management plans with respect to highly migratory
species fisheries to which this paragraph applies; and
(iii) diligently pursue, through international entities (such as the International
Commission for the Conservation of Atlantic Tunas), international fishery
management measures with respect to fishing for highly migratory species.

(C) In preparing or amending any fishery management plan under this paragraph, the
Secretary shall--
(i) conduct public hearings, at appropriate times and in appropriate locations in
the geographical areas concerned, so as to allow interested persons an opportunity to
be heard in the preparation and amendment of the plan;
(ii) consult with and consider the comments and views of commissioners and
advisory groups appointed under Acts implementing relevant international fishery
agreements pertaining to highly migratory species;

16 U.S.C. 1954

(iii) consult with and consider the comments and views of affected Councils;
(iv) evaluate the likely effects, if any, of conservation and management measures
on participants in the fisheries affected by the plan and minimize, to the extent
practicable, any disadvantage to United States fishermen in relation to foreign
competitors; and
(v) review, on a continuing basis (and promptly whenever a recommendation
pertaining to fishing for highly migratory species has been made under a relevant
international fishery agreement), and revise as appropriate, the conservation and
management measures included in the plan.

(D) Conservation and management measures contained in any fishery management
plan under this paragraph shall--
(i) take into consideration traditional fishing patterns of fishing vessels of the
United States and the operating requirements of the fisheries;
(ii) be fair and equitable in allocating fishing privileges among United States
fishermen and not have economic allocation as the sole purpose; and
(iii) promote international conservation.

(E) With respect to a highly migratory species for which the United States is
authorized to harvest an allocation or quota under a relevant international fishery
agreement, the Secretary shall provide fishing vessels of the United States with a
reasonable opportunity to harvest such allocation or quota.

(F) In implementing the provisions of this paragraph, the Secretary shall consult
with--
(i) the Secretary of State;
(ii) commissioners and advisory groups appointed under Acts implementing
relevant international fishery agreements pertaining to highly migratory species; and
(iii) appropriate Councils.

101-627
(g) INCIDENTAL HARVEST RESEARCH.-
(1) Within 9 months after the date of enactment of the Fishery Conservation
Amendments of 1990, the Secretary shall, after consultation with the Gulf of Mexico
Fishery Management Council and South Atlantic Fishery Management Council, establish by
regulation a 3-year program to assess the impact on fishery resources of incidental harvest
by the shrimp trawl fishery within the authority of such Councils.

(2) Ile program established pursuant to paragraph (1) shall provide for the
identification of stocks of fish which are subject to significant incidental harvest in the
course of normal shrimp trawl fishing activity.

(3) For stocks of fish identified pursuant to paragraph (2), with priority given to stocks
which (based upon the best available scientific information) are considered to be overfished,
the Secretary shall conduct-
(A) a program to collect and evaluate data on the nature and extent (including the
spatial and temporal distribution) of incidental mortality of such stocks as a direct result
of shrimp trawl fishing activities;

16 U.S.C. 1854

(B) an assessment of the status and condition of such stocks, includin g collection of
information which would allow the -estimation of life history parameters with sufficient
accuracy and precision to support sound scientific evaluation of the effects of various
management alternatives on the status of such stocks; and
(C) a program of data collection and evaluation for such stocks on the magnitude
and distribution of fishing mortality and fishing effort by sources of fishing mortality
other than shrimp trawl fishing activity.

(4) The Secretary shall, in cooperation with affected interests, commence a program to
design, and evaluate the efficacy of, technological devices and other changes in fishing
technology for the reduction of incidental mortality of nontarget fishery resources in the
course of shrimp trawl fishing activity. Such program shall take into account local
conditions and include evaluation of any reduction in incidental mortality, as well as any
reduction or increase in the retention of shrimp in the course of normal fishing activity.

(5) The Secretary shall, upon completion of the programs required by this subsection,
submit a detailed report on the results of such programs to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on Merchant Marine and
Fisheries of the House of Representatives.

(6) (A) Except as provided in this paragraph, the Secretary may not implement any
measures under this Act to reduce incidental mortality of nontarget fishery resources in
the course of shrimp trawl fishing which would restrict the period during which shrimp
are harvested or would require the use of any technological device or other change in
fishing technology.
(B) The prohibition contained in subparagraph (A) shall cease on January 1, 1994.
(C) This paragraph does not apply to any law or regulation in effect on the date of
enactment of this paragraph, nor does it limit in any way the Secretary's authority to
take action, including any limitation on entry permitted by this Act, for the conservation
and management of the shrimp fishery resource.

101-627
Note: Notwithstanding the amendments made by subsections (a) and (g) [of section 108 of
Pub. L 101-627], any fishery management plan or amendment which-
(1) addresses a highly migratory species fishery to which section 304(f)(3) of the Magnuson
Fishery Conservation and Management Act (as amended by this Act 1101-6271) applies,
(2) was prepared by one or more Regional Fishery Management Councils, and
(3) was In force and effect on January 1, 1990,
shall remain in force and effect until superseded by a fishery management plan prepared by
the Secretary, and regulations Implementing that plan.

101-627
(d) ATLANTIC SEA SCALLOP FISHERY MANAGEMENT PLAN.-

(1) The New England Fishery Management Council may submit to the Secretary of
Commerce an amendment to the Atlantic Sea Scallop Fishery Management Plan. Any
amendment submitted under this section shall--
(A) contain measures providing for the conservation and management of Atlantic sea
scallops, that are not based primarily on the scallop meat count but which may include
controls on scallop harvesting effort; and

16 U.S.C. 1854

(B) consider the views of fishermen and fish processors involved in the Atlantic sea
scallop fishery.

(2) If no amendment is submitted under paragraph (1) before one year after the date of
enactment of this Act, the Secretary of Commerce is encouraged to prepare the amendment
described in paragraph (1) under section 304 of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1854).

SEC. 305. IMPLEMENTATION OF FISHERY MANAGEMENT PLANS 16 U.S.C. 1855

97-453, 101-627
(a) IMPLEMENTATION.--Ile Secretary shall promulgate each regulation that is necessary
to carry out a plan or amendment--
(1) within 110 days after the plan or amendment was received by him for action under
section 304(a), if such plan or amendment takes effect under section 304(b)(1);
(2) within 75 days after a revised plan or amendment was received by him under section
304(b), if such plan or amendment takes effect under paragraph (3)(D) of such section; or
(3) within such time as he deems appropriate in the case of a plan or amendment
prepared by him under section 304(c) or (f)(3).

101-627
(b) JUDICIAL REVIEW.--

(1) Regulations promulgated by the Secretary under this Act and actions described in
paragraph (2) shall be subject to judicial review to the extent authorized by, and in
accordance with, chapter 7 of title 5, United States Code, if a petition for such review is
filed within 30 days after the date on which the regulations are promulgated or the action
is published in the Federal Register, as applicable; except that--
(A) section 705 of such title is not applicable, and
(B) the appropriate court shall only set aside any such regulation or action on a
ground specified in section 706(2)(A), (B), (C), or (D) of such title.

(2) The actions referred to in paragraph (1) are actions that are taken by the Secretary
under regulations which implement a fishery management plan, including but not limited to
actions that establish the date of closure of a fishery to commercial or recreational fishing.

(3) (A) Notwithstanding any other provision of law, the Secretary shall file a response
to any petition filed in accordance with paragraph (1), not later than 45 days after the
date the Secretary is served with that petition, except that the appropriate court may
extend the period for filing such a response upon a showing by the Secretary of good
cause for that extension.
(B) A response of the Secretary under this paragraph shall include a copy of the
administrative record for the regulations that are the subject of the petition.

(4) Upon a motion by the person who files a petition under this subsection, the
appropriate court shall assign the matter for hearing at the earliest possible date and shall
expedite the matter in every possible way.

16 U.S.C. 1855

97-453, 101-627
(c) EMERGENCY ACTIONS.--

(1) If the Secretary finds that an emergency exists involving any fishery, he may
promulgate emergency regulations necessary to address the emergency, without regard to
whether a fishery management plan exists for such fishery.

(2) If a Council finds that an emergency exists involving any fishery within its
jurisdiction, whether or not a fishery management plan exists for such fishery--
(A) the Secretary shall Promulgate emergency regulations under paragraph (1) to
address the emergency if the Council, by unanimous vote of the members who are
voting members, requests the taking of such actions; and
(B) the Secretary may promulgate emergency regulations under paragraph (1) to
address the emergency if the Council, by less than a unanimous vote, requests the taking
of such action.

(3) Any emergency regulation which changes any existing fishery management plan or
amendment shall be treated as an amendment to such plan for the period in which such
regulation is in effect. Any emergency regulation promulgated under this subsection--
(A) shall be published in the Federal Register together with the reasons therefor;
(B) shall remain in effect for not more than 90 days after the date of such
publication, except that any such regulation may, by agreement of the Secretary and the
Council, be promulgated for one additional period of not more than 90 days; and
(C) may be terminated by the Secretary at an earlier date by publication in the
Federal Register of a notice of termination, except for emergency regulations
promulgated under paragraph (2) in which case such early termination may be made
only upon the agreement of the Secretary and the Council concerned.

101-627
(d) RESPONSIBILITY OF THE SECRETARY.--The Secretary shall have general
responsibility to carry out any fishery management plan or amendment approved or prepared
by him, in accordance with the provisions of this Act. The Secretary may promulgate such
regulations, in accordance with section 553 of title 5, United States Code, as may be necessary
to discharge such responsibility or to carry out any other provision of this Act.

97-453, 101-627
(e) EFFECT OF CERTAIN LAWS ON CERTAIN TIME REQUIREMENTS.--Tbe
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), and Executive Order Numbered 12291, dated February 17, 1981, shall
be complied with within the time limitations specified in subsection [a] or section 304(a) and
(b) as they apply to the functions of the Secretary urider such provisions.

16 U.S.C. 1856

SEC. 306. STATE JURISDICTION

97-453, 98-623
(a) IN GENERAL.--

(1) Except as provided in subsection (b), nothing in this Act shall be construed as
extending or diminishing the jurisdiction or authority of any State within its boundaries.

(2) For the purposes of this Act, except as provided in subsection (b), the jurisdiction
and authority of a State shall extend
(A) to any pocket of waters that is adjacent to the State and totally enclosed by lines
delimiting the territorial sea of the United States pursuant to the Geneva Convention
on the Territorial Sea and Contiguous Zone or any successor convention to which the
United States is a party;
(B) with respect to the body of water commonly known as Nantucket Sound, to the
pocket of water west of the seventieth meridian west of Greenwich; and
(C) to the waters of southeastern Alaska (for the purpose of regulating fishing for
other than any species of crab) that are--
(i) north of the line representing the international boundary at Dixon Entrance
and the westward extension of that line; east of 138 degrees west longitude; and not
more than three nautical miles seaward from the coast, from the lines extending from
headland to headland across all bays, inlets, straits, passes, sounds, and entrances, and
from any island or group of islands, including the islands of the Alexander
Archipelago (except Forrester Island); or
(ii) between the islands referred to in clause (i) (except Forrester Island) and the
mainland.

(3) Except as otherwise provided by paragraph (2), a State may not directly or indirectly
regulate any fishing vessel outside its boundaries, unless the vessel is registered under the
law of that State.

"-659
(b) EXCEPTION.-

(1) If the Secretary finds, after notice and an opportunity for a hearing in accordance
with section 554 of title 5, United States Code, that--
(A) the fishing in a fishery, which is covered by a fishery management plan
implemented under this Act, is engaged in predominately within the exclusive economic
zone and beyond such zone; and
(B) any State has taken any action, or omitted to take any action, the results of
which will substantially and adversely affect the carrying out of such fishery management
plan;
the Secretary shall promptly notify such State and the appropriate Council of such finding
and of his intention to regulate the applicable fishery within the boundaries of such State
(other than its internal waters), pursuant to such fishery management plan and the
regulations promulgated to implement such plan.

16 U.S.C. 1956

(2) If the Secretary, pursuant to this subsection, assumes responsibility for the regulation
of any fishery, the State involved may at any time thereafter apply to the Secretary for
reinstatement of its authority over such fishery. If the Secretary finds that the reasons for
which he assumed such regulation no longer prevail, he shall promptly terminate such
regulation.

97-191, 101-627
(c) EXCEPTION REGARDING FOREIGN FISH PROCESSING IN INTERNAL
WATERS.-

(1) A foreign fishing vessel may engage in fish processing within the internal waters of a
State if, and only if--
(A) the vessel is qualified for purposes of this paragraph pursuant to paragraph
(4)(C); and
(B) the owner or operator of the vessel applies to the Governor of the State for, and
(subject to paragraph (2)) is granted, permission for the vessel to engage in such
processing and the application specifies the species to be processed.

(2) The Governor of a State may not grant permission for a foreign fishing vessel to
engage in fish processing under paragraph (I)--
(A) for a fishery which occurs in the waters of more than one State or in the
exclusive economic zone, except after-
(i) consulting with the appropriate Council and Marine Fisheries Commission,
and
(ii) considering any comments received from the Governor of any other State
where the fishery occurs; and
(B) if the Governor determines that fish processors within the State have adequate
capacity, and will utilize such capacity, to process all of the United States harvested fish
from the fishery concerned that are landed in the State.

(3) Nothing in this subsection may be construed as relieving a foreign fishing vessel
from the duty to comply with all applicable Federal and State laws while operating within
the internal waters of a State incident to permission obtained under paragraph (1)(B).

(4) For purposes of this subsection-
(A) The term "fish processing" includes, in addition to processing, the performance of
any other activity relating to fishing, including, but not limited to, preparation, supply,
storage, refrigeration, or transportation.
(B) The phrase "internal waters of a State" means all waters within the boundaries of
a State except those seaward of the baseline from which the territorial sea is measured.
(C) A foreign fishing vessel shall be treated as qualified for purposes of paragraph
(1) if the foreign nation under which it is flagged will be a party to (i) a governing
international fishery agreement or (ii) a treaty described in section 201(b) of this Act
(16 U.S.C. 1821(b)) during the time the vessel will engage in the fish processing for
which permission is sought under paragraph (1)(B).

16 U.S.C. 1856

"-509
Note: For purposes of processing pink salmon within the internal waters of the State of
Alaska, the geographic area bounded on the north by a parallel of latitude of 64 degrees, 23
minutes, on the south by a parallel of latitude of 63 degrees, 51 minutes, on the east by the
baseline from which the territorial sea Is measured, and on the west by the outer limit of the
territorial sea, shall be considered to be internal waters of the State of Alaska for the
purposes of Section 306(c)(4)(B) of the Fishery Conservation and Management Act (16 U.S.C.
1856(c)(4)(B)) until September 30, 1"3.

SEC. 307. PROHIBITED ACTS 16 U.S.C. 1857

It is unlawful--

"-659, 101-224, 101-627
(1) for any person-

(A) to violate any provision of this Act or any regulation or permit issued pursuant to
this Act;

(B) to use any fishing vessel to engage in fishing after the revocation, or during the
period of suspension, of an applicable permit issued pursuant to this Act;

(C) to violate any provision of, or regulation under, an applicable governing
international fishery agreement entered into pursuant to section 201(c);

(D) to refuse to permit any officer authorized to enforce the provisions of this Act (as
provided for in section 311) to board a fishing vessel subject to such person's control for
the purposes of conducting any search or inspection in connection with the enforcement of
this Act or any regulation, permit, or agreement referred to in subparagraph (A) or (C);

(E) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such
authorized officer in the conduct of any search or inspection described in subparagraph
(D);

(F) to resist a lawful arrest for any act prohibited by this section;

(G) to ship, transport, offer for sale, sell, purchase, import, export, or have custody,
control, or possession of, any fish taken or retained in violation of this Act or any
regulation, permit, or agreement referred to in subparagraph (A) or (C);

(H) to interfere with, delay, or prevent, by any means, the apprehension or arrest of
another person, knowing that such other person has committed any act prohibited by this
section;

16 U.S.C. 1957

(1) to knowingly and willfully submit to a Council, the Secretary, or the Governor of a
State false information (including, but not limited to, false information regarding the
capacity and extent to which a United States fish processor, on an annual basis, will process
a portion of the optimum yield of a fishery that will be harvested by fishing vessels of the
United States) regarding any matter that the Council, Secretary, or Governor is considering
in the course of carrying out this Act;

(J) to ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce,
any whole live lobster of the species Homarus americanus, that--
(i) is smaller than the minimum possession size in effect at the time under the
American Lobster Fishery Management Plan, as implemented by regulations published
in part 649 of title 50, Code of Federal Regulations, or any successor to that plan,
implemented under this title;
(ii) is bearing eggs attached to its abdominal appendages; or
(iii) bears evidence of the forcible removal of extruded eggs from its abdominal
appendages;

(K) to knowingly steal, or without authorization, to remove, damage, or tamper with--
(i) fishing gear owned by another person, which is located in the exclusive economic
zone, or
(ii) fish contained in such fishing gear, or to attempt to do so;

(L) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any observer
on a vessel under this Act;

(M) to engage in large-scale driftnet fishing that is subject to the jurisdiction of the
United States, including use of a fishing vessel of the United States to engage in such
fishing beyond the exclusive economic zone of any nation; or

(N) to strip pollock of its roe and discard the flesh of the pollock.

97-191, 97-453
(2) for any vessel other than a vessel of the United States, and for the owner or operator
of any vessel other than a vessel of the United States, to engage--

(A) in fishing within the boundaries of any State, except recreational fishing permitted
under section 2010);

(B) in fishing, except recreational fishing permitted under section 2010), within the
exclusive economic zone, or for any anadromous species or Continental Shelf fishery
resources beyond such zone, unless such fishing is authorized by, and conducted in
accordance with, a valid and applicable permit issued pursuant to section 204(b) or (c); or

(C) except as permitted under section 306(c), in fish processing (as defined in paragraph
(4)(A) of such section) within the internal waters of a State (as defined in paragraph (4)(B)
of such section);

0 53

16 U.S.C. 1857

95-354,101-627
(3) for any vessel of the United States, and for the owner or operator of any vessel of the
United States, to transfer directly or indirectly, or attempt to so transfer, any United States
harvested fish to any foreign fishing vessel, while such foreign vessel is within the exclusive
economic zone, unless the foreign fishing vessel has been issued a permit under section 204
which authorizes the receipt by such vessel of United States harvested fish of the species
concerned;

100-629
(4) for any fishing vessel other than a vessel of the United States to operate, and for the
owner or operator of a fishing vessel other than a vessel of the United States to operate such
vessel, in the exclusive economic zone, if--
(A) all fishing gear on the vessel is not stored below deck or in an area where it is not
normally used, and not readily available, for fishing; or
(B) all fishing gear on the vessel which is not so stored is not secured and covered so as to
render it unusable for fishing;
unless such vessel is authorized to engage in fishing in the area in which the vessel is
operating; and

101-627
(5) for any vessel of the United States, and for the owner or operator of any vessel of the
United States, to engage in fishing in the waters of a foreign nation in a manner that violates
an international fishery agreement between that nation and the United States that has been
subject to Congressional oversight in the manner described in section 203, or any regulations
issued to implement such an agreement; except that the binding provisions of such agreement
and implementing regulations shall have been published in the Federal Register prior to such
violation.

SEC. 309. CIVIL PENALTIES AND PERMIT SANCTIONS 16 U.S.C. 1858

101-627
(a) ASSESSMENT OF PENALTY.--Any person who is found by the Secretary, after notice
and an opportunity for a hearing in accordance with section 554 of title 5, United States Code,
to have committed an act prohibited by section 307 shall be liable to the United States for a
civil penalty. 'Me amount of the civil penalty shall not exceed $100,000 for each violation.
Each day of a continuing violation shall constitute a separate offense. The amount of such
civil penalty shall be assessed by the Secretary, or his designee, by written notice. In
determining the amount of such penalty, the Secretary shall take into account the nature,
circumstances, extent, and gravity of the prohibited acts committed and, with respect to the
violator, the degree of culpability, any history of prior offenses, ability to pay, and such other
matters as justice may require.

16 U.S.C. 1858

"-659
(b) REVIEW OF CIVIL PENALTY.--Any person against whom a civil penalty is assessed
under subsection (a) may obtain review thereof in the United States district court for the
appropriate district by filing a complaint in such court within 30 days from the date of such
order and by simultaneously serving a copy of such complaint by certified mail on the
Secretary, the Attorney General and the appropriate United States Attorney. The Secretary
shall promptly file in such court a certified copy of the record upon which such violation was
found or such penalty imposed, as provided in section 2112 of title 28, United States Code.
'Me findings and order of the Secretary shall be set aside by such court if they are not found to
be supported by substantial evidence, as provided in section 706(2) of title 5, United States
Code.

(c) ACTION UPON FAILURE TO PAY ASSESSMENT.--If any person fails to pay an
assessment of a civil penalty after it has become a final and unappealable order, or after the
appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer
the matter to the Attorney General of the United States, who shall recover the amount
assessed in any appropriate district court of the United States. In such action, the validity and
appropriateness of the final order imposing the civil penalty shall not be subject to review.

"-659
(d) IN REM JURISDICTION.--A fishing vessel (including its fishing gear, furniture,
appurtenances, stores, and cargo) used in the commission of an act prohibited by section 307
shall be liable in rem for any civil penalty assessed for such violation under section 308 and
may be proceeded against in any district court of the United States having jurisdiction thereof.
Such penalty shall constitute a maritime lien on such vessel which may be recovered in an
action in rem in the district court of the United States having jurisdiction over the vessel.

"-659
(e) COMPROMISE OR OTHER ACTION BY SECRETARY.--Ile Secretary may
compromise, modify, or remit, with or without conditions, any civil penalty which is subject to
imposition or which has been imposed under this section.

97-453, "-659
(1) SUBPOENAS.--For the purposes of conducting any hearing under this section, the
Secretary may issue subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents, and may administer oaths. Witnesses
summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of
the United States. In case of contempt or refusal to obey a subpoena served upon any person
pursuant to this subsection, the district court of the United States for any district in which such
person is found, resides, or transacts business, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an order requiring such person to appear
and give testimony before the Secretary or to appear and produce documents before the
Secretary, or both, and any failure to obey such order of the court may be punished by such
court as a contempt thereof.

16 U.S.C. 1959
101-627 is
(g) PERMIT SANCMONS.--

(1) In any case in which (A) a vessel has been used in the commission of an act
prohibited under section 307, (B) the owner or operator of a vessel or any other person who
has been issued or has applied for a permit under this Act has acted in violation of section
307, or (C) any civil penalty or criminal fine imposed on a vessel or owner or operator of a
vessel or any other person who has been issued or has applied for a permit under any fishery
resource law statute enforced by the Secretary has not been paid and is overdue, the
Secretary may--
(i) revoke any permit issued with respect to such vessel or person, with or
without prejudice to the issuance of subsequent permits;
(ii) suspend such permit for a period of time considered by the Secretary to be
appropriate,
(iii) deny such permit; or
(iv) impose additional conditions and restrictions on any permit issued to or
applied for by such vessel or person under this Act and, with respect to foreign fishing
vessels, on the approved application of the foreign nation involved and on any permit
issued under that application.

(2) In imposing a sanction under this subsection, the Secretary shall take into
account--
(A) the nature, circumstances, extent, and gravity of the prohibited acts for which
the sanction is imposed; and
(B) with respect to the violator, the degree of culpability, any history of prior
offenses, and such other matters as justice may require.

(3) Transfer of ownership of a vessel, by sale or otherwise, shall not extinguish any
permit sanction that is in effect or is pending at the time of transfer of ownership. Before
executing the transfer of ownership of a vessel, by sale or otherwise, the owner shall disclose
in writing to the prospective transferee the existence of any permit sanction that will be in
effect or pending with respect to the vessel at the time of the transfer.

(4) In the case of any permit that is suspended under this subsection for nonpayment
of a civil penalty or criminal fine, the Secretary shall reinstate the permit upon payment of
the penalty or fine and interest thereon at the prevailing rate.

(5) No sanctions shall be imposed under this subsection unless there has been prior
opportunity for a hearing on the facts underlying the violation for which the sanction is
imposed, either in conjunction with a civil penalty proceeding under this section or
otherwise.

SEC. 309. CRIMINAL OFFENSES 16 U.S.C. 1859

"-"9, 100-66, 101-627
(a) OFFENSES.--A person is guilty of an offense if he commits any act prohibited by--
(1) section 307(l)(D), (E), (F), (H), (1), or (L); or
(2) section 307(2).

16 U.S.C. 1859

97-453, 101-627
(b) PUNISHMENT.--Any offense described in subsection (a)(1) is punishable by a fine of
not more than $100,000, or imprisonment for not more than 6 months, or both; except that if
in the commission of any such offense the person uses a dangerous weapon, engages in conduct
that causes bodily injury to any observer described in section 307(l)(L) or any officer
authorized to enforce the provisions of this Act (as provided for in section 311), or places any
such observer or officer in fear of imminent bodily injury, the offense is punishable by a fine of
not more than $200,000, or imprisonment for not more than 10 years, or both. Any offense
described in subsection (a)(2) is punishable by a fine of not more than $200,000.

SEC. 310. CIVIL FORFEITURES 16 U.S.C. 1860

97-453
(a) IN GENERAL--Any fishing vessel (including its fishing gear, furniture, appurtenances,
stores, and cargo) used, and any fish (or the fair market value thereof) taken or retained, in
any manner, in connection with or as a result of the commission of any act prohibited by
section 307 (other than any act for which the issuance of a citation under section 311(c) is
sufficient sanction) shall be subject to forfeiture to the United States. All or part of such
vessel may, and all such fish (or the fair market value thereof) shall, be forfeited to the United
States pursuant to a civil proceeding under this section.

(b) JURISDICTION OF DISTRICT COURTS.--Any district court of the United States which
has jurisdiction under section 311(d) shall have jurisdiction, upon application by the Attorney
General on behalf of the United States, to order any forfeiture authorized under subsection (a)
and any action provided for under subsection (d).

"-659
(c) JUDGMENT.--If a judgment is entered for the United States in a civil forfeiture
proceeding under this section, the Attorney General may seize any property or other interest
declared forfeited to the United States, which has not previously been seized pursuant to this
Act or for which security has not previously been obtained under subsection (d). Ile
provisions of the customs laws relating to--
(1) the seizure, forfeiture, and condemnation of property for violation of the customs
law-,
(2) the disposition of such property or the proceeds from the sale thereof; and
(3) the remission or mitigation of any such forfeiture; shall apply to seizures and
forfeitures incurred, or alleged to have been incurred, under the provisions of this Act,
unless such provisions are inconsistent with the purposes, policy, and provisions of this Act.

16 U.S.C. 1860

"-659
(d) PROCEDURE.-

(1) Any officer authorized to serve any process in rem which is issued by a court having
jurisdiction under section 311(d) shall--
(A) stay the execution of such process; or
(B) discharge any fish seized pursuant to such process; upon the receipt of a satisfactory
bond or other security from any person claiming such property. Such bond or other
security shall be conditioned upon such person (i) delivering such property to the
appropriate court upon order thereof, without any impairment of its value, or (ii) paying
the monetary value of such property pursuant to an order of such court. Judgment shall
be recoverable on such bond or other security against both the principal and any sureties
in the event that any condition thereof is breached, as determined by such court. Nothing
in this paragraph may be construed to require the Secretary, except in the Secretary's
discretion or pursuant to the order of a court under section 311 (d), to release on bond any
seized fish or other property or the proceeds from the sale thereof.

(2) Any fish seized pursuant to this Act may be sold, subject to the approval and direction
of the appropriate court, for not less than the fair market value thereof. The proceeds of
any such sale shall be deposited with such court pending the disposition of the matter
involved.

101-627
(e) REBUTTABLE PRESUMPTION.-
(1) For purposes of this section, it shall be a rebuttable presumption that all fish found on
board a fishing vessel which is seized in connection with an act prohibited by section 307
were taken and retained in violation of this Act.
(2) For purposes of this Act, it shall be a rebuttable presumption that any fish of a species
which spawns in fresh or estuarine waters and migrates to ocean waters that is found on
board a vessel is of United States origin if the vessel is within the migratory range of the
species during that part of the year to which the migratory range applies.

SEC. 311. ENFORCEMENT 16 U.S.C. 1861

%470,97453
(a) RESPONSIBILrff.--Tlie provisions of this Act shall be enforced by the Secretary and
the Secretary of the department in which the Coast Guard is operating. Such Secretaries may,
by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment
(including aircraft and vessels), and facilities of any other Federal agency, including all
elements of the Department of Defense, and of any State agency, in the performance of such
duties.

16 U.S.C. 1861

97453
(b) POWERS OF AUTHORIZED OFFICERS.--

(1) Any officer who is authorized (by the Secretary, the Secretary of the department in
which the Coast Guard is operating, or the head of any Federal or State agency which has
entered into an agreement with such Secretaries under subsection (a)) to enforce the
provisions of this Act may--
(A) with or without a warrant or other process--
(i) arrest any person, if he has reasonable cause to believe that such person has
committed an act prohibited by section 307;
(ii) board, and search or inspect, any fishing vessel which is subject to the provisions
of this Act;
(iii) seize any fishing vessel (together with its fishing gear, furniture, appurtenances,
stores, and cargo) used or employed in, or with respect to which it reasonably appears
that such vessel was used or employed in, the violation of any provision of this Act;
(iv) seize any fish (wherever found) taken or retained in violation of any provision of
this Act; and
(v) seize any other evidence related to any violation of any provision of this Act;
(B) execute any warrant or other process issued by any court of competent jurisdiction;
and
(C) exercise any other lawful authority.

(2) Subject to the direction of the Secretary, a person charged with law enforcement
responsibilities by the Secretary who is performing a duty related to enforcement of a law
regarding fisheries or other marine resources may make an arrest without a warrant for an
offense against the United States committed in his presence, or for a felony cognizable under
the laws of the United States, if he has reasonable grounds to believe that the person to be
arrested has committed or is committing a felony. 'Me arrest authority described in the
preceding sentence may be conferred upon an officer or employee of a State agency, subject
to such conditions and restrictions as are set forth by agreement between the State agency,
the Secretary, and, with respect to enforcement operations within the exclusive economic
zone, the Secretary of the department in which the Coast Guard is operating.

(c) ISSUANCE OF CITATIONS.--If any officer authorized to enforce the provisions of this
Act (as provided for in this section) finds that a fishing vessel is operating or has been
operated in violation of any provision of this Act, such officer may, in accordance with
regulations issued jointly by the Secretary and the Secretary of the department in which the
Coast Guard is operating, issue a citation to the owner or operator of such vessel in lieu of
proceeding under subsection (b). If a permit has been issued pursuant to this Act for such
vessel, such officer shall note the issuance of any citation under this subsection, including the
date thereof and the reason therefor, on the permit. Ile Secretary shall maintain a record of
all citations issued pursuant to this subsection.

16 U.S.C. 1861

(d) JURISDICTION OF COURTS.--The district courts of the United States shall have
exclusive jurisdiction over any case or controversy arising under the provisions of this Act. In
the case of Guam, and any Commonwealth, territory, or possession of the United States in the
Pacific Ocean, the appropriate court is the United States District Court for the District of
Guam, except that in the case of American Samoa, the appropriate court is the United States
District Court for the District of Hawaii. Any such court may, at any time--
(1) enter restraining orders or prohibitions;
(2) issue warrants, process in rem, or other process;
(3) prescribe and accept satisfactory bonds or other security; and
(4) take such other actions as are in the interest of justice.

"-659, 101-627
(e) PAYMENT OF STORAGE, CARE, AND OTHER COSTS.--

(1) Notwithstanding any other provision of law, the Secretary or the Secretary of the
Treasury may pay from sums received as fines, penalties, and forfeitures of property for
violations of any provisions of this Act or of any other fishery resource law enforced by the
Secretary, including the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.)--
(A) the reasonable and necessary costs incurred in providing temporary storage, care,
and maintenance of seized fish or other property pending disposition of any civil or
criminal proceeding alleging a violation of any provision of this Act or any other fishery
resource law enforced by the Secretary with respect to that fish or other property;
(B) a reward to any person who furnishes information which leads to an arrest,
conviction, civil penalty assessment, or forfeiture of property for any violation of any
provision of this Act or any other fishery resource law enforced by the Secretary;
(C) any expenses directly related to investigations and civil or criminal enforcement
proceedings, including any necessary expenses for equipment, training, travel, witnesses,
and contracting services directly related to such investigations or proceedings;
.(D) any valid liens or mortgages against any property that has been forfeited;
(E) claims of parties in interest to property disposed of under section 612(b) of the
Tariff Act of 1930 (19 U.S.C. 1612(b)) or under other provisions of the customs laws, as
made applicable by section 310(c) of this Act to seizures made by the Secretary under this
Act, in amounts determined by the Secretary to be applicable to such claims at the time of
seizure; and
(F) reimbursement to any Federal or State agency, including the Coast Guard, for
services performed, or personnel, equipment, or facilities utilized, under any agreement
with the Secretary entered into pursuant to subsection (a), or any similar agreement
authorized by law.

(2) Any person assessed a civil penalty for, or convicted of, any violation of this Act shall
be liable for the cost incurred in storage, care, and maintenance of any fish or other property
seized in connection with the violation.

16 U.S.C. 1861

"-659
(f) DEFINITIONS.--For purposes of this section--

(1) The term "provisions of this Act" includes (A) any regulation or permit issued
pursuant to this Act, and (B) any provision of, or regulation issued pursuant to, any
international fishery agreement under which foreign fishing is authorized by section 201(b)
or (c), with respect to fishing subject to the exclusive fishery management authority of the
United States.

(2) Ile term `violation of any provision of this Act" includes (A) the commission of any
act prohibited by section 307, and (B) the violation of any regulation, permit, or agreement
referred to in paragraph (1).

101-627
SEC. 313. NORTH PACIFIC FISHERIES RESEARCH PLAN 16 U.S.C. 1862

(a) IN GENERAL--The North Pacific Fishery Management Council may prepare, in
consultation with the Secretary, a fisheries research plan for all fisheries under the Council's
jurisdiction except salmon fisheries which--

(1) requires that observers be stationed on fishing vessels engaged in the catching, taking,
or harvesting of fish and on United States fish processors fishing for or processing species
under the jurisdiction of the Council, including the Northern Pacific halibut fishery, for the
purpose of collecting data necessary for the conservation, management, and scientific
understanding of any fisheries under the Council's jurisdiction; and

(2) establishes a system of fees to pay for the costs of implementing the plan.

(b) STANDARDS.--(l) Any plan or plan amendment prepared under this section shall be
reasonably calculated to--
(A) gather reliable data, by stationing observers on all or a statistically reliable sample
of the fishing vessels and United States fish processors included in the plan, necessary for
the conservation, management, and scientific understanding of the fisheries covered by the
plan;
(B) be fair and equitable to all vessels and processors;
(C) be consistent with applicable provisions of law; and
(D) take into consideration the operating requirements of the fisheries and the safety of
observers and fishermen.

(2) Any system of fees established under this section shall--
(A) provide that the total amount of fees collected under this section not exceed the
combined cost of (i) stationing observers on board fishing vessels and United States fish
processors, (ii) the actual cost of inputting collected data, and (iii) assessments necessary
for a risk-sharing pool implemented under subsection (e) of this section, less any amount
received for such purpose from another source or from an existing surplus in the North
Pacific Fishery Observer Fund established in subsection (d) of this section;
(B) be fair and equitable to all participants in the fisheries under the jurisdiction of the
Council, including the Northern Pacific halibut fishery-,

16 U.S.C. 1862

(C) provide that fees collected not be used to pay any costs of administrative overhead
or other costs not directly incurred in carrying out the plan;
(D) not be used to offset amounts authorized under other provisions of law;
(E) be expressed as a percentage, not to exceed one percentum, of the value of fish and
shellfish harvested under the jurisdiction of the Council, including the Northern Pacific
halibut fishery,
(F) be assessed against all fishing vessels and United States fish processors, including
those not required to carry an observer under the plan, participating in fisheries under the
jurisdiction of the Council, including the Northern Pacific halibut fishery;
(G) provide that fees collected will be deposited in the North Pacific Fishery Observer
Fund established under subsection (d) of this section;
(H) provide that fees collected will only be used for implementing the plan established
under this section; and
(1) meet the requirements of section 9701(b) of title 31, United States Code.

(c) ACTION BY SECRETARY.--(l) Within 60 days after receiving a plan or plan amendment
from the North Pacific Council under this section, the Secretary shall review such plan or
plan amendment and either (A) remand such plan or plan amendment to the Council with
comments if it does not meet the requirements of this section, or (B) publish in the Federal
Register proposed regulations for implementing such plan or plan amendment.

(2) During the 60-day public comment period, the Secretary shall conduct a public hearing
in each State represented on the Council for the purpose of receiving public comments on
the proposed regulations.

(3) Within 45 days of the close of the public comment period, the Secretary, in
consultation with the Council, shall analyze the public comment received and publish final
regulations for implementing such plan.

(4) If the Secretary remands a plan or plan amendment to the Council for failure to meet
the requirements of this section, the Council may resubmit such plan or plan amendment at
any time after taking action the Council believes will address the defects identified by the
Secretary. Any plan or plan amendment resubmitted to the Secretary will be treated as an
original plan submitted to the Secretary under paragraph (1) of this subsection.

(d) FISHERY OBSERVER FUND.--There is established in the Treasury a North Pacific
Fishery Observer Fund. 'Me Fund shall be available, without appropriation or fiscal year
limitation, only to the Secretary for the purpose of carrying out the provisions of this section,
subject to the restrictions in subsection (b)(2) of this section. The Fund shall consist of all
monies deposited into it in accordance with this section. Sums in the Fund that are not
currently needed for the purposes of this section sball be kept on deposit or invested in
obligations of, or guaranteed by, the United States.

(e) SPECIAL PROVISIONS REGARDING OBSERVERS.--(I) Ile Secretary shall review--
(A) the feasibility of establishing a risk sharing pool through a reasonable fee, subject
to the limitations of subsection (b)(2)(E) of his section, to provide coverage for vessels
and owners against liability from civil suits by observers, and
(B) the availability of comprehensive commercial insurance for vessel and owner liability
against civil suits by observers.

16 U.S.C. 1862

(2) If the Secretary determines that a risk sharing pool is feasible, the Secretary shall
establish such a pool, subject to the provisions of subsection (b)(2) of this section, unless the
Secretary determines that--
(A) comprehensive commercial insurance is available for all fishing vessels and United
States fish processors required to have observers under the provisions of this section, and
(B) such comprehensive commercial insurance will provide a greater measure of
coverage at a lower cost to each participant.

TITLE TV -- MISCELLANEOUS PROVISIONS 16 U.S.C. 1882

95-354, 97-61, 97-453, "-659, 101-627
SEC. 406. AUTHORIZATION OF APPROPRIATIONS.-There are authorized to be
appropriated to the Secretary, for purposes of carrying out the provisions of this Act, not to
exceed the following sums:

(1) $5,000,000 for the fiscal year ending June 30, 1976.

(2) $5,000,000 for the transitional fiscal quarter ending September 30, 1976.

(3) $25,000,000 for the fiscal year ending September 30, 1977.

(4) $30,000,000 for the fiscal year ending September 30, 1978.

(5) $30,000,000 for the fiscal year ending September 30, 1979.

(6) $33,000,000 for the fiscal year ending September 30, 1980.

(7) W,000,000 for the fiscal year ending September 30, 1981.

(8) $47,000,000 for the fiscal year ending September 30, 1982.

(9) $59,000,000 for the fiscal year ending September 30, 1983.

(10) W,000,000 for the fiscal year ending September 30, 1984.

(11) $69,000,000 for the fiscal year ending September 30, 1985.

(12) $69,000,000 for the fiscal year ending September 30, 1986.

(13) $70,800,000 for the fiscal year ending September 30, 1987.

(14) $72,900,000 for the fiscal year ending September 30, 1988.

(15) $75,000,000 for the fiscal year ending September 30, 1989.

(16) $77,200,000 for the fiscal year ending September 30, 1990.

16 U.S.C. 1882
(17) $94,000,000 for the fiscal year ending September 30, 1991, of which $6,500,000 shall be 0
used for enforcement and $5,000,000 shall be used to increase research and assessment efforts.

(18) $98,000,000 for the fiscal year ending September 30, 1992.

(19) $102,000,000 for the fiscal year ending September 30, 1993.

64 0

1:1
I'l- 11,
23.
Endangered Species Act

ENDANGERED SPECIES ACT OF 1973

As Amended Through 1988

An Act to provide for the conservation of endangered and threatened species
of fish, wildlife, and plants, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United
States of America assembled, That:

This Act may be cited as the "Endangered Species Act of 1973".

Table of Contents

Sec. 2. Findings, purposes, and policy ..........................................: .....................................2
Sec. 3. Def initions .................................................................................................. :**-*-****---4
Sec. 4. Determination of endangered species and threatened species ................8
Sec. 5. Land acquisition .......................................................................................................... 19
Sec. 6. Cooperation with the States ................................................................................... 20
Sec. 7. Interagency cooperation .......................................................................................... 27
Sec. 8. International cooperation ....................................................................................... 40
Sec. 8 A. Convention implementation ................................................................................... 42
Sec. 9. Prohibited acts ............................................................................................................. 44
Sec. 10. Exceptions ...................................................................................................................... 49
Sec. 11. Penalties and enforcement ..................................................................................... 60
Sec. 12. Endangered plants ...................................................................................................... 67
Sec. 13. Conforming amendments ........................................................................................ 67
Sec. 14. Repealer ......................................... 69
Sec. 15. Authorization of appropriations ......................................................................... 69
Sec. 16. Effective date ............................................................................................................... 70
Sec. 17. Marine Mammal Protection Act of 1972 .......................................................... 70
Sec. 18. Annual cost analysis by the Fish and Wildlife Service ............................ 70
Provision of Public Law 100-478 which did not amend the Endangered
Species Act but is relevant to the National Marine Fisheries
Service -- Sea Turtle Conservation ..................................................................... 71

(PL 93-205, December 28, 1973; amended by PL 94-325, June 30, 1976; PL 94-
359, July 12, 1976; PL 95-212, December 19, 1977; PL 95-632, November 10,
1978; PL 96-159, December 28, 1979; PL 97-304, October 13, 1982; PL 99-659,
November 14, 1986; PL 100-478, October 7, 1988)

This copy of the Endangered Species Act is provided for information only.
Before relying on any portion of the Act as it appears here, reference should be
made to the official report o f the Act in the United States Code.

Page 2 Sec. 2. Findings, purposes, and policy

FINDINGS, PURPOSES, AND POLICY

Sec. 2. (a) Findings - The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of
economic growth and development untempered by adequate
concern and conservation;

(2) other species of fish, wildlife, and plants have been so
depleted in numbers that they are in danger of or threatened
with extinction;

(3) these species of fish, wildlife, and plants are of esthetic,
ecological, educational, historical, recreational, and scientific
value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in
the international community to conserve to the extent
practicable the Various species of fish or wildlife and plants
facing extinction, pursuant to -

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

(D) the International Convention for the Northwest
Atlantic Fisheries;

(E) the International Convention for the High Seas
Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in Endangered
Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties, through
Federal financial assistance and a system of incentives, to
develop and maintain conservation programs which meet
national and international standards is a key to meeting the
Nation's international commitments and to better safeguarding,
for the benefit of all citizens, the Nation's heritage in fish,
wildlife, and plants.

Endangered Species Act of 1973

Sec. -2. Findings, purposes, and policy Page 3

(b) Purgoses - The purposes of this Act are to provide a means
whereby the ecosystems upon which endangered species are threatened
species depend may be conserved, to provide a program for the
conservation of such endangered species and threatened species, and
to take such steps as may be appropriate to achieve the purposes of
the treaties and conventions set forth in subsection (a) of this section.

(1) It is further declared to be the policy of Congress that all
Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall utilize
their authorities in furtherance of the purposes of the Act.

(2) It is further declared to be the policy of Congress that
Federal agencies shall cooperate with State and local agencies
to resolve water resource issues in concert with conservation of
endangered species.

Endangered Species Act of 1973

Page 4 Sec. 3. Definitions

DEFINITIONS

Sec. 3. For purposes of this Act -

(1) The term "alternative courses of action" means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.

(2) The term "commercial activity" means all activities of
industry and trade, including, but not limited to, the buying or
selling of commodities and activities conducted for the purpose
of facilitating such buying and selling: Provided, however,
That it does not include exhibition of commodities by museums
or similar cultural or historic organizations.

(3) The terms "conserve," "Conserving," and "conservation" mean
to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species
to the point at which the measures provided pursuant to this
Act are no longer necessary. Such methods and procedures
include, but are not limited to, all activities associated with
scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and in the
extraordinary case where population pressures within a given
ecosystem cannot be otherwise relieved, may include regulated
taking.

(4) The term "Convention" means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.

(5)(A) The term "critical habitat" for a threatened or
endangered species means-

(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this Act,
on which are found those physical or biological features
(1) essential to the conservation of the species and (II)
which may require special management considerations
or protection; and

Endangered Species Act of 1973

Sec. 3. Definitions Page 5

(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of the Act,
upon a determination by the Secretary that such areas
arc essential for the conservation of the species.

(B) Critical habitat may be established for those species
now listed as threatened or endangered species for which
no critical habitat has heretofore been established as set
forth in subparagraph (A) of this paragraph.

(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened
or endangered species.

(6) The term "endangered species" means any species which is
in danger of extinction throughout all or a significant portion
of its range other than a species of the Class Insecta
determined by the Secretary to constitute a pest whose
protection under the provisions of this Act would present an
overwhelming and overriding risk to man.

(7) The term "Federal agency" means any department, agency,
or instrumentality of the United States.

(8) The term "fish or wildlife" means any member of the animal
kingdom, including without limitation any mammal, fish, bird
(including any migratory, nonmigratory, or endangered bird
for which protection is also afforded by treaty or other
international agreement), amphibian, reptile, mollusk,
crustacean, arthropod, or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.

(9) The term "foreign commerce" includes among other things,
any transaction-

(A) between persons within one foreign country;

(B) between persons in two or more foreign countries;

(D) between persons within the United States, where the
fish and wildlife in question are moving in any country or
countries outside the United States.

Endangered Species Act of 1973

Page 6 Sec. 3. Definitions

(10) The term "import" means to land on, bring into, or
introduce into, or attempt to land on, bring into, or introduce
into, any place subject to the jurisdiction of the United States,
whether or not such landing, bringing, or introduction
constitutes an importation within the meaning of the customs
laws of the United States.

(11) The term "permit or license applicant" means, when used
with respect to an action of a Federal agency for which
exemption is sought under section 7 of this Act, any person
whose application to such agency for a permit or license has
been denied primarily because of the application of section
7(a) of this Act to such agency action.

(12) The term "person" means an individual, corporation,
partnership, trust, association, or any other private entity; or
any officer, employee, agent, department, or instrumentality of
the Federal Government, of any State, municipality, or
political subdivision of a State, or of any foreign government;
any State, municipality, or political subdivision of a State; or
any other entity subject to the jurisdiction of the United
States.

(13) The term "plant" means any member of the plant kingdom,
including seeds, roots and other parts thereof.

(14) The term "Secretary" means, except as otherwise herein
provided, the Secretary of the Interior or the Secretary of
Commerce as program responsibilities are vested pursuant to
the provisions of Reorganization Plan Numbered 4 of 1970;
except that with respect to the enforcement of the provisions
of this Act and the Convention which pertain to the
importation or exportation of terrestrial plants, the term also
means the Secretary of Agriculture.

(15) The term "species" includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.

(16) The term "State" means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, Guam, and the Trust
Territory of the Pacific Islands.

Endangered Species Act of 1973

Sec. 3. Definitions Page 7

(17) The term "State agency" means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.

(18) The term "take" means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.

(19) The term "threatened species" means any species which is
likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.

(20) The term "United States", when used in a geographical
context includes all States.

Endangered Specie s Act of 1973

Page 8 Sec. 4. Determination of Endangered Species and Threatened Species

DETERMINATION OF ENDANGERED SPECIES
AND THREATENED SPECIES

Sec. 4. (a) Generally -

(1) The Secretary shall by regulation promulgated in
accordance with subsection (b) of this section determine
whether any species is an endangered species or a threatened
species because of any of the following factors:

(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific,
or educational purposes;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its
continued existence.

(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--

(A) in any case in which the Secretary of Commerce
determines that such species should-

(i) be listed as an endangered species or a threatened
species, or

(ii) be changed in status from a threatened species to an
endangered species,

he shall so inform the Secretary of the Interior, who shall
list such species in accordance with this section;

(B) in any case in which the Secretary of Commerce
determines that such species should-

(i) be removed from any list published pursuant to
subsection (c) of this section, or

(ii) be changed in status from an endangered species to
a threatened species,

he shall recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if he concurs in
the recommendation, shall implement such action; and

Endangered Species Act of 1973

Sec. 4. Determination of -Endangered Species and Threatened Species Page 9

(C) the Secretary of the Interior may not list or remove
from any list any such species, and may not change the
status of any such species which are listed, without a prior
favorable determination made pursuant to this section by
the Secretary of Commerce.

(3) The Secretary, by regulation promulgated in accordance
with subsection (b) of this section and to the maximum extent
prudent and determinable-

(A) shall, concurrently with making a determination under
paragraph (1) that a species is an endangered species or a
threatened species, designate any habitat of such species
which is then considered to be critical habitat; and

(B) may, from time-to-time thereafter as appropriate,
revise such designation.

(b) Basis for determinations. -

(1)(A) The Secretary shall make determinations required by
subsection (a)(1) of this section solely on the basis of the
best scientific and commercial data available to him after
conducting a review of the status of the species and after
taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of
a State or foreign nation, to protect such species, whether
by predator control, protection of habitat and food supply,
or other conservation practices, within any area under its
jurisdiction, or on the high seas.

(B) In carrying out this section, the Secretary shall give
consideration to species which have been--

(i) designated as requiring protection from unrestricted
commerce by any foreign nation, or pursuant to any
international agreement; or

(ii) identified as in danger of extinction, or likely to
become so within the foreseeable future, by any State
agency or by any agency of a foreign nation that is
responsible for the conservation of fish or wildlife or
plants.

(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) of this section on the
basis of the best scientific data available and after taking into
consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat.
The Secretary may exclude any area from critical habitat if he

Endangered Species Act of 1973

Page 10 Sec. 4. Determination of Endangered Species and Threatened Species

determines that the benefits of such exclusion outweigh the
benefits of specifying such area as pa-rt of the critical habitat,
unless he determines, bascd-on the best scientific and
commercial data available, that the failure to designate such
area as critical habitat will result in the extinction of the
species concerned.

(3)(A) To the maximum extent practicable, within 90 days
af ter receiving the petition of an interested person under
section 553(e) of Title 5, United States Code, to add a
species to, or to remove a species from, either of the lists
published under subsection (c) of this section, the
Secretary shall make a finding as to whether the petition
presents substantial scientific or commercial information
indicating that the petitioned action may be warranted. If
such a petition is found to present such information, the
Secretary shall promptly commence a review of the status
of the species concerned. The Secretary shall promptly
publish each finding made under this subparagraph in the
Federal Register.

(B) Within 12 months after receiving a petition that is
found under subparagraph (A) to present substantial
information indicating that the petitioned action may be
warranted, the Secretary shall make one of the following
f indings:

(i) The petitioned action is not warranted, in which case
the Secretary shall promptly publish such finding in the
Federal Register.

(ii) The petitioned action is warranted, in which case
the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a
proposed regulation to implement such action in
accordance with paragraph (5).

(iii) The petitioned action is warranted, but that--

(I) the immediate proposal and timely promulgation
of a final regulation implementing the petitioned
action in accordance with paragraphs (5) and (6 is
precluded by pending proposals to determine
whether any species is an endangered species or a
threatened species, and

(11) expeditious progress is being made to add
qualified species to either of the lists published
under subsection (c) of this section and to remove
from such lists species for which the protections of
this Act are no longer necessary,

Endangered Species Act of 1973

Sec. 4. Determination of Endangered Species and Threatened Species Page I I

in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.

(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition
that is resubmitted to the Secretary under subparagraph
(A) on the date of such finding and that presents
substantial scientific or commercial information that
the petitioned action may be warranted.

(ii) Any negative finding described in subparagraph (A)
and any finding described in subparagraph (B)(i) or (iii)
shall be subject to judicial review.

(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect.to
which a finding is made under subparagraph (B)(iii)
and shall make prompt use of the authority under
paragraph 7 to prevent a significant risk to the well
being of any such species.

(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person
under section 5.53(e) of Title 5, to revise a critical
habitat designation, the Secretary shall make a finding
as to whether the petition presents substantial scientific
information indicating that the revision may be
warranted. The Secretary shall promptly publish such
finding in the Federal Register.

(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial
information indicating that the requested revision may
be warranted, the Secretary shall determine how he
intends to proceed with the requested revision, and shall
promptly publish notice of such intention in the Federal
Register.

(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of Title 5, United
States Code, (relating to rulcmaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.

(5) With respect to any regulation proposed by the Secretary to
implement a determination, designation, or revision referred to
in subsection (a)(1) or (3) of this section, the Secretary shall--

Endangered Species Act of 1973

Page 12 Sec. 4. Determination of Endangered Species and Threatened Species

(A) not less than 90 days before the effective date of the
regulation--

(i) publish a general notice and the complete text of the
proposed regulation in the Federal Register, and

(ii) give actual notice of the proposed regulation
(including the complete text of the regulation) to the
State agency in each State in which the species is
believed to occur, and to each county or equivalent
jurisdiction in which the species is believed to occur,
and invite the cmmment of such agency, and each such
jurisdiction, thereon;

(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed regulation
to each foreign.nation in which the species is believed to
occur or whose citizens harvest the species on the high
seas, and invite the comment of such nation thercon;

(D) publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the
United States in which the species is believed to occur;
and

M promptly hold one public hearing on the proposed
regulation if any person files a request for such a hearing
within 45 days after the date of publication of general
notice.

(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with
paragraph (5)(A)(i) regarding a proposed regulation, the
Secretary shall publish in the Federal Register--

(i) if a determination as to whether a species is an
endangered species or a threatened species, or a revision
of critical habitat, is involved, either--

(I) a final regulation to implement such
determination,

(11) a final regulation to implement such revision or
a finding that such revision should not be made,

(III) notice that such one-year period is being
extended under subparagraph (13)(i), or

Endangered Species Act of 1973

See. 4. Determination of Endangered Species and Threatened Species Page 13

(IV) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together
with the finding on which such withdrawal is
based; or

(ii) subject to subparagraph (C), if a designation of
critical habitat is involved, either--

(I) a final regulation to implement such. designation,
or

(II) notice that such one-year period is being
extended under such subparagraph.

(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there
is substantial disagreement regarding the sufficiency or
accuracy of the available data relevant to the
determination or revision concerned, the Secretary may
extend the one-year period specified in subparagraph
(A) for not more than six months for purposes of
soliciting additional data.

(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within
such one-year period (or longer period if extension
under clause (i) applies) because the Secretary finds
that there is not sufficient evidence to justify the
action proposed by the regulation, the Secretary shall
immediately withdraw the regulation. The finding on
which a withdrawal is based shall be subject to judicial
review. The Secretary may not propose a regulation that
has previously been withdrawn under this clause unless
he determines that sufficient new information is
available to warrant such proposal.

(iii) If the one-year period specified in subparagraph
(A) is extended under clause (i) with respect to a
proposed regulation, then before the close of such
extended period the Secretary shall publish in the
Federal Register either a final regulation to implement
the determination or revision concerned, a finding that
the revision should not be made, or a notice of
withdrawal of the regulation under clause (ii), together
with the finding on which the withdrawal is based.

(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be
published concurrently with the final regulation
implementing the determination that such species is

Endangered Species Act of 1973

Page 14 Sec. 4. Determination of Endangered Species and Threatened Species

endangered or threatened, unless the Secretary deems
that--

(i) it is essential to the conservation of such species that
the regulation implementing such determination be
promptly published; or

(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year the
Secretary must publish a final regulation, based on such
data as may be available at that time, designating, to
the maximum extent prudent, such habitat.

(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of Title 5 shall apply to any regulation issued by
the Secretary in regard to any emergency posing a significant
risk to the well-being of any species of fish or wildlife or
plants, but only if--

(A) at the time of publication of the regulation in the
Federal Register the Secretary publishes therein detailed
reasons why such regulation is necessary; and

(B) in the case such regulation applies to resident species
of fish or wildlife, or plants, the Secretary gives actual
notice of such regulation to the State agency in each State
in which such species is believed to occur.

Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and effect
at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulcmaking
procedures which would apply to such regulation without
regard to this paragraph are complied with. If at any time
after issuing an emergency regulation the Secretary determines,
on the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.

(8) The publication in the Federal Register of any proposed or
final regulation which is necessary or appropriate to carry out
the purposes of this Act shall include a summary by the
Secretary of the data on which such regulation is based and
shall show the relationship of such data to such regulation;
and if such regulation designates or revises critical habitat,

Endangered Species Act of 1973

Sec. 4. Determination of Endangered Species and Threatened Species Page 15

such summary shall, to the maximum extent practicable, also
include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the
Secretary, if undertaken may adversely modify such habitat, or
may be affected by such designation.

(1) The Secretary of the Interior shall publish in the Federal
Register a list of all species determined by him or the
Secretary of Commerce to be endangered species and a list of
all species determined by him or the Secretary of Commerce to
be threatened species. Each list shall refer to the species
contained therein by scientific and common name or names, if
any, specify with respect to each such species over what
portion of its range it is endangered or threatened, and specify
any critical habitat within such range. The Secretary shall
from time to time revise each list published under the
authority of this subsection to reflect recent determinations,
designations, and revisions made in accordance with
subsections (a) and (b) of this section.

(2) The Secretary shall-

(A) conduct, at least once every five years, a review of all
species included in a list which is published pursuant to
paragraph (1) and which is in effect at the time of such
review; and

(B) determine on the basis of such review whether any
such species should-

(i) be removed from such list;

(ii) be changed in status from an endangered species to
a threatened species; or

(iii) be changed in status from a threatened species to
an endangered species.

Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsections (a) and (b) of
this section.

(d) Protective regulations.- When6,er any species is listed as a
threatened species pursuant to subsection (c) of this section, the
Secretary shall issue such regulations as he deems necessary and
advisable to provide for the conservation of such species. The
Secretary may by regulation prohibit with respect to any threatened
species any act prohibited under section 9(a)(1) of this Act, in the case
of fish or wildlife, or section 9(a)(2) of this Act, in the case of plants,

Endangered Species Act of 1973

Page 16 Sec. 4. Determination of Endangered Species and Threatened Species

with respect to endangered species; except that with respect to the
taking of resident species of fish or wildlife, such regulations shall
apply in any State which has entered into a cooperative agreement
pursuant to section 6(c) of this Act only to the extent that such
regulations have also been adopted by such State.

(e) Similarity of armearance cases - The Secretary may, by regulation
of commerce or taking, and to the extent he deems advisable, treat
any species as an endangered species or threatened species even
though it is not listed pursuant to this section if he finds that--

(1) such species so closely resembles in appearance, at the point
in question, a species which has been listed pursuant to such
section that enforcement personnel would have substantial
difficulty in attempting to differentiate between the listed and
unlisted species;

(2) the effect of this substantial difficulty is an additional
threat to an endangered or threatened species; and

(3) such treatment of an unlisted species will substantially
facilitate the enforcement and further the policy of this Act.

(f) Recovery plans -

(1) The Secretary shall develop and implement plans
(hercinaf ter in this subsection referred to as "recovery plans")
for the conservation and survival of endangered species and
threatened species listed pursuant to this section, unless he
finds that such a plan will not promote the conservation of the
species. The Secretary, in developing and implementing
recovery plans, shall, to the maximum extent practicable--

(A) give priority to those endangered species or threatened
species, without regard to taxonomic classification, that
are most likely to benefit from such plans, particularly
those species that are, or may be, in conflict with
construction or other development projects or other forms
of economic activity; -

(B) incorporate in each plan--

(i) a description of such site-specific management
actions as may be necessary to achieve the plan's goal
for the conservation and survival of the species,

(ii) objective, measurable criteria which, when met,
would result in a determination, in accordance with the
provisions of this section, that the species be removed
from the list; and

Endangered Species Act of 1973

Sec. 4. Determination of- Endangered Species and Threatened Species Page 17

(iii) estimates of the time required and the cost to carry
out those measures needed to achieve the plan's goal and
to achieve intermediate steps toward that goal.

(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions, and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to the Federal Advisory Committee Act.

(3) The Secretary shall report every two years to the Committee
on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to this
section and on the status of all species for which such plans
have been developed.

(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an
opportunity for public review and comment on such plan. The
Secretary shall consider all information presented during the
public comment period prior to approval of the plan.

(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph
(4).

(g) Monitoring.-

(1) The Secretary shall implement a system in cooperation with
the States to monitor effectively for not less than five years
the status of all species which have recovered to the point at
which the measures provided pursuant to this Act are no longer
necessary and which, in accordance with the provisions of this
section, have been removed from either of the lists published
under subsection (c) of this section.

(2) The Secretary shall make prompt use of the authority under
paragraph 7 of subsection (b) of this section to prevent a
significant risk to the well being of any such recovered species.

(h) Agency guidelines.- publication in Federal Register; scope;
proposals and amendments; notice and opportunity for comments -
The Secretary shall establish, and publish in the Federal Register,
agency guidelines to insure that the purposes of this section are
achieved efficiently and effectively. Such guidelines shall include,
but are not limited to--

Endangered Species Act of 1 973

Page 18 Sec. 4. Determination of Endangered Species and Threatened Species

(1) procedures for recording the receipt and the disposition of
petitions submitted under subsection (b)(3) of this section;

(2) criteria for making the findings required under such
subsection with respect to petitions;

(3) a ranking system to assist in the identification of species
that should receive priority review under subsection (a)(1) of
this section; and

(4) a system for developing and implementing, on a priority
basis, recovery plans under subsection (f) of this section.

The Secretary shall provide to the public notice of, and opportunity to
submit written comments on, any guideline (including any amendment
thereto) proposed to be established under this subsection.

(i) Submission to State agency of Justification for regulations
inconsistent with State agency's comments or t)etition.- If, in the case
of any regulation proposed by the Secretary under the authority of
this section, a State agency to which notice thereof was given in
accordance with subsection (b)(5)(A)(ii) of this section files comments
disagreeing with all or part of the proposed regulation, and the
Secretary issues a final regulation which is in conflict with such
comments, or if the Secretary fails to adopt a regulation pursuant to
an action petitioned by a State agency under subsection (b)(3) of this
section, the Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent with the
agency's comments or petition.

Endangered Species Act of 1973

Sec. 5. Land Acquisition Page 19

LAND ACQUISITION

Sec. 5. (a) Imr)lementation of conservation program: authorization of
Secretary and Secretary of Agriculture.- The Secretary, and the
Secretary of Agriculture with respect to the National Forest System,
shall establish and implement a program to conserve fish, wildlife,
and plants, including those which are listed as endangered species or
threatened species pursuant to section 4 of this Act. To carry out such
a program, the appropriate Secretary-

(1) shall utilize the land acquisition and other authority under
the Fish and Wildlife Act of 1956, as amended (16 U.S.C. 742a
et seq.), the Fish and Wildlife Coordination Act, as amended
(16 U.S.C. 661 et seq.), and the Migratory Bird Conservation
Act (16 U.S.C. 715 ct seq.), as appropriate; and

(2) is authorized to acquire by purchase, donation, or
otherwise, lands, waters, or interest therein, and such authority
shall be in addition to any other land acquisition authority
vested in him.

(b) Availability of funds for acguisition of lands. waters. etc. - Funds
made available pursuant to the Land and Water Conservation Fund
Act of 1965, as amended (16 U.S.C. 4601-4 et seq.), may be used for the
purpose of acquiring lands, waters, or interests therein under
subsection (a) of this section.

Endangered Species Act of 1973

Page 20 Sec. 6. Cooperation with States

COOPERATION WITH STATES

Sec. 6. (a) Generally - In carrying out the program authorized by this Act, the
Secretary shall cooperate to the maximum extent practicable with the
States. Such cooperation shall include consultation with the States
concerned before acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or threatened
species.

(b) Manapement agreements.- The Secretary may enter into agreements
with any State for the administration and management of any area
established for the conservation of endangered species or threatened
species. Any revenues derived from the administration of such areas
under these agreements shall be subject to the provisions of section
401 of the Act of June 15, 1935 (49 Stat. 383; 16 U.S.C. 715s).

(1) In furtherance of the purposes of this Act, the Secretary is
authorized to enter into a cooperative agreement in accordance
with this section with any State which establishes and
maintains an adequate and active program for the conservation
of endangered species and threatened species. Within one
hundred and twenty days after the Secretary receives a
certified copy of such a proposed State program, he shall make
a determination whether such program is in accordance with
this Act. Unless he determines, pursuant to this paragraph,
that the State program is not in accordance with this Act, he
shall enter into a cooperative agreement with the State for the
purpose of assisting in implementation of the State program.
In order for a State program to be deemed an adequate and
active program for the conservation of endangered species and
threatened species, the Secretary must find, and annually
thereafter reconfirm such finding, that under the State
program-

(A) authority resides in the State agency to conserve
resident species of fish or wildlife determined by the State
agency or the Secretary to be endangered or threatened;

(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of fish or
wildlife in the State which are deemed by the Secretary to
be endangered or threatened, and has furnished a copy of
such plan and program together with all pertinent details,
information, and data requested to the Secretary;

Endangered Species Act of 1973

Sec. 6. 'Cooperation with States Page 21

(C) the State agency is authorized to conduct investigations
to determine the status and requirements for survival of
resident species of fish and wildlife;

(D) the State agency is authorized to establish programs,
including the acquisition of land or aquatic habitat or
interests therein, for the conservation of resident
endangered or threatened species of fish or wildlife; and

(E) provision is made for public participation in
designating resident species of fish or wildlife as
endangered or threatened; or that under the State
program-

(i) the requirements set forth in subparagraphs (C), (D),
and (E) of this paragraph are complied with, and

(ii) plans arc included under which immediate attention
will be given to those resident species of fish and
wildlife which arc determined by the Secretary or the
State agency to be endangered or threatened and which
the Secretary and the State agency agree are most
urgently in need of conservation programs; except that
a cooperative agreement entered into with a State whose
program is deemed adequate and active pursuant to
clause (i) and this clause shall not af f ect the
applicability of prohibitions set forth in or authorized
pursuant to section 4(d) of this Act or section 9(a)(1) of
this Act with respect to the taking of any resident
endangered or threatened species.

(2) In furtherance of the purposes of this Act the Secretary is
authorized to enter into a cooperative agreement in accordance
with this section with any State which establishes and
maintains an adequate and active program for the conservation
of endangered species and threatened species of plants. Within
one hundred and twenty days after the Secretary receives a
certified copy of such a proposed State program, he shall make
a determination whether such program is in accordance with
this Act. Unless he determines, pursuant to this paragraph,
that the State program is not in accordance with this Act, he
shall enter into a cooperative agreement with the State for the
purpose of assisting in implementation of the State program.
In order for a State program to be deemed an adequate and
active program for the conservation of endangered species of
plants and threatened species of plants, the Secretary must
find, and annually thereafter reconfirm such finding, that
under the State program-

Endangered Species Act of 1973

Page 22 Sec. 6. Cooperation with States

(A) authority resides in the State agency to conserve
resident species of plants determined by the State agency
or the Secretary to be endangered or threatened;

(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of plants in the
State which are deemed by the Secretary to be endangered
or threatened, and has furnished a copy of such plan and
program together with all pertinent details, information,
and data requested to the Secretary;

(C) the State agency is authorized to conduct investigations
to determine the status and requirements for survival of
resident species of plants; and

(D) provision is made for public participation in
designating resident species of plants as endangered or
threatened; or that under the State program-

(i) the requirements set forth in subparagraphs (C)
and (D) of this paragraph arc complied with, and

(ii) plans are included under which immediate attention
will be given to those resident species of plants which
are determined by the Secretary or the State agency to
be endangered or threatened and which the Secretary
and the State agency agree are most urgently in need of
conservation programs; except that a cooperative
agreement entered into with a State whose program is
deemed adequate and active pursuant to clause (i) and
this clause shall not affect the applicability of
prohibitions set forth in or authorized pursuant to
section 4(d) or section 9(a)(1) of this Act with respect to
the taking of any resident endangered or threatened
species.

(d) Allocation of funds.-

(1) The Secretary is authorized to provide financial assistance
to any State, through its respective State agency, which has
entered into a cooperative agreement pursuant to subsection (c)
of this section to assist in development of programs for the
conservation of endangered and threatened species or to assist
in monitoring the status of candidate species pursuant to
subparagraph (C) of section 4(b)(3) of this Act and recovered
species pursuant to section 4(g) of this Act. The Secretary shall
allocate each annual appropriation made in accordance with
the provisions of subsection (i) of this section to such States
based on consideration of--

Endangered Species Act of 1973

Sec. 6. Cooperation with States Page 23

(A) the international commitments of the United States to
protect endangered species or threatened species;

(B) the readiness of a State to proceed with a conservation
program consistent with the objectives and purposes of this
Act;

(D) the potential for restoring endangered species and
threatened species within a State;

(E) the relative urgency to initiate a program to restore
and protect an endangered species or threatened species in
terms of survival of the species;

(F) the importance of monitoring the status of candidate
species within a State to prevent a significant risk to the
well being of any such species; and

(G) the importance of monitoring the status of recovered
species within a State to assure that such species do not
return to the point at which the measures provided
pursuant to this Act are again necessary.

So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for
obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to be made
available to that State until the close of the succeeding fiscal
year. Any amount allocated to any State which is unobligated
at the end of the period during which it is available for
expenditure is authorized to be made available for expenditure
by the Secretary in conducting programs under this section.

(2) Such cooperative agreements shall provide for

(A) the actions to be taken by the Secretary and the States;

(B) the benefits that are expected to be derived in
connection with the conservation of endangered or
threatened species;

(D) the share of such costs to be borne by the Federal
Government and by the States; except that-

Endangered Species Act of 1973

Page 24 Sec. 6. Cooperation with States

(i) the Federal share of such program costs shall not
exceed 75 percent of the estimated program cost stated
in the agreement; and .

(ii) the Federal share may be increased to 90 percent
whenever two or more States having a common interest
in one or more endangered or threatened species, the
conservation of which may be enhanced by cooperation
of such States, enter jointly into an agreement with the
Secretary.

The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the Secretary, be in the
form of money or real property, the value of which will be
determined by the Secretary, whose decision shall be final.

(e) Review of State programs.- Any action taken by the Secretary
under this section shall be subject to his periodic review at no greater
than annual intervals.

(f) Conflicts between Federal and State laws.- Any State law or
regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in, endangered
species or threatened species is void to the extent that it may
effectively

(1) permit what is prohibited by this Act or by any regulation
which implements this Act, or

(2) prohibit what is authorized pursuant to an exemption or
permit provided for in this Act or in any regulation which
implements this Act. This Act shall not otherwise be construed
to void any State law or regulation which is intended to
conserve migratory, resident, or introduced fish or wildlife, or
to permit or prohibit sale of such fish or wildlife. Any State
law or regulation respecting the taking of an endangered
species or threatened species may be more restrictive than the
exemptions or permits provided for in this Act or in any
regulation which implements this Act but not less restrictive
than the prohibitions so defined.

(g) Transition.-

(1) For purposes of this subsection, the term "establishment
period" means, with respect to any State, the period beginning
on December 28, 1973, and ending on whichever of the
following dates first occurs:

Endangered Species Act of 1973

Sec. 6. Cooperation with States Page 25

(A) the date of the close of the 120-day period following
the adjournment of the first regular session of the
legislature of such State which commences after December
28, 1973, or

(B) the date of the close of the 15-month period following
December 28, 1973.

(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State-

(A) which is then a party to a cooperative agreement with
the Secretary pursuant to subsection (c) of this section
(except to the extent that the taking of any such species is
contrary to the law of such State); or *

(B) except for any time within the establishment period
when-

(i) the Secretary applies such prohibition to such species
at the request of the State, or

(ii) the Secretary applies such prohibition after he
finds, and publishes his finding, that an emergency
exists posing a significant risk to the well-being of such
species and that the prohibition must be applied to
protect such species. The Secretary's finding and
publication may be made without regard to the public
hearing or comment provisions of section 553 of title 5,
United States Code, or any other provision of this Act;
but such prohibition shall expire 90 days after the date
of its imposition unless the Secretary further extends
such prohibition by publishing notice and a statement
of justification of such extension.

(h) Regulations.- The Secretary is authorized to promulgate such
regulations as may be appropriate to carry out the provisions of this
section relating to financial assistance to States.

(i) At)prot)ria t ions.-

(1) To carry out the provisions of this section for fiscal years
after September 30, 1988, there shall be deposited into a special
fund known as the cooperative endangered species
conservation fund, to be administered by the Secretary, an
amount equal to 5 percent of the combined amounts covered
each fiscal year into the Federal aid to wildlife restoration

Endangered Species Act of 1973

Page 26 Sec. 6. Cooperation with States

fund under section 3 of the Act of September 2, 1937 (16 U.S.C.
669b), and paid, transferred, or otherwise credited each fiscal
year to the Sport Fishing Restoration Account established
under 1016 of the Act of July 18, 1984.

(2) Amounts deposited into the special fund are authorized to
be appropriated annually and allocated in accordance with
subsection (d) of this section.

Endangered Species Act of 1973

Sec, 7. Interagency Cooperation Page 27

INTERAGENCY COOPERATION

Sec. 7. (a) Federal agency actions and consultatigns.-

(1) The Secretary shall review other programs administered by
him and utilize such programs in furtherance of the purposes
of this Act. All other Federal agencies shall, in consultation
with and with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this Act by
carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 4 of
this Act.

(2) Each Federal agency shall, in consultation with and with
the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency (hereinafter
in this section referred to as an "agency action") is not likely to
jeopardize the continued existence of any endangered species
or threatened species or result in the destruction or adverse
modification of habitat of such species which is determined by
the Secretary, after consultation as appropriate with affected
States, to be critical, unless such agency has been granted an
exemption for such action by the Committee pursuant to
subsection (h) of this section. In fulfilling the requirements of
this paragraph each agency shall use the best scientific and
commercial data available.

(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any
prospective agency action at the request of, and in cooperation
with, the prospective permit or license applicant if the
applicant has reason to believe that an endangered species or a
threatened species may be present in the area affected by his
project and that implementation of such action will likely
affect such species.

(4) Each Federal agency shall confer with the Secretary on any
agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under section 4
of this Act or result in the destruction or adverse modification
of critical habitat proposed to be designated for such species.
This paragraph does not require a limitation on the
comm itment of resources as described in subsection (d) of this
section.

(b) Opinion of Secretary.-

(1)(A) Consultation under subsection (a)(2) of this section with
respect to any agency action shall be concluded within the
90-day period beginning on the date on which initiated or,

Endangered Species Act of 1973

Page 28 Sec. 7. Interagency Cooperation

subject to subparagraph (B), within such other period of
time as is mutually agreeable to the Secretary and the
Federal agency.

(B) In the case of an agency action involving a permit or
license applicant, the Secretary and the Federal agency
may not mutually agree to conclude consultation within a
period exceeding 90 days unless the Sccretary, before the
close of the 90th day referred to in subparagraph (A)--

(i) if the consultation period proposed to be agreed to
will end before the 150th day after the date on which
consultation was initiated, submits to the applicant a
written statement setting forth--

(1) the reasons why a longer period is required,

(II) the information that is required to complete the
consultation, and

(111) the estimated date on which consultation will
be completed; or

(ii) if the consultation period proposed to be agreed to
will end 150 or more days after the date on which
consultation was initiated, obtains the consent of the
applicant to such period.

The Secretary and the Federal agency may mutually agree to
extend a consultation period established under the preceding
sentence if the Secretary, before the close of such period,
obtains the consent of the applicant to the extension.

(2) Consultation under subsection (a)(3) of this section shall be
concluded within such period as is agreeable to the Secretary,
the Federal agency, and the applicant concerned.

(3)(A) Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a) of this section, the
Secretary shall provide to the Federal agency and the
applicant, if any, a written statement setting forth the
Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency
action affects the species or its critical habitat. If
jeopardy or adverse modification is found, the Secretary
shall suggest those reasonable and prudent alternatives
which he believes would not violate subsection (a)(2) of
this section and can be taken by the Federal agency or
applicant in implementing the agency action.

Endangered Species Act of 1973

Sec.-7. Interagency Cooperation Page 29

(B) Consultation under subsection (a)(3) of this section,
and an opinion issued by the Secretary incident to such
consultation, regarding an agency action shall be treated
respectively as a consultation under subsection (a)(2) of
this section, and as an opinion issued after consultation
under such subsection, regarding that action if the
Secretary reviews the action before it is commenced by the
Federal agency and finds, and notifies such agency, that
no significant changes have been made with respect to the
action and that no significant change has occurred
regarding the information used during the initial
consultation.

(4) If after consultation under subsection (a)(2) of this section,
the Secretary concludes that--

(A) the agency action will not violate such subsection, or
offers reasonable and prudent alternatives which the
Secretary believes would not violate such subsection;

(B) the taking of an endangered species or a threatened
species incidental to the agency action will not violate
such subsection; and

(C) if an endangered species or threatened species of a
marine mammal is involved, the taking is authorized
pursuant to section 1371(a)(5) of title 16, United States
Code;

the Secretary shall Provide the Federal agency and the
applicant concerned, if any, with a written statement that--

(i) specifies the impact of such incidental taking on the
species,

(ii) specifics those reasonable and prudent measures that
the Secretary considers necessary or appropriate to
minimize such impact,

(iii) in the case of marine mammals, specifies those
measures that are necessary to comply with section
1371(a)(5) of title 16, United States Code, with regard to
such taking, and

(iv) sets forth the terms and conditions (including, but
not limited to, reporting requirements) that must be
complied with by the Federal agency or applicant (if
any), or both, to implement the measures specified
under clauses (ii) and (iii).

Endangered Species Act of 1 973

Page 30 S-ec. 7. Interagency Cooperation

(1) To facilitate compliance with the requirements of
subsection (a)(2) of this section, each Federal agency shall,
with respect to any agency action of such agency for which no
contract for construction has been entered into and for which
no construction has begun on November 10, 1978, request of
the Secretary information whether any species which is listed
or proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best
scientific and commercial data available, that such species may
be present, such agency shall conduct a biological assessment
for the purpose of identifying any endangered species or
threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days
after the date on which initiated (or within such other period
as is mutually agreed to by the Secretary and such agency,
except that if a permit or license applicant is involved, the
180-day period may not be extended unless such agency
provides the applicant, before the close of such period, with a
written statement setting forth the estimated length of the
proposed extension and the reasons therefor) and, before an@
contract for construction is entered into and before
construction is begun with respect to such action. Such
assessment may be undertaken as part of a Federal agency's
compliance with the requirements of section 102 of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332).

(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such
action. Any such biological assessment must, however, be
conducted in cooperation with the Secretary and under the
supervision of the appropriate Federal agency.

(d) Limitation on commitment of resources.- After initiation of
consultation required under subsection (a)(2) of this section, the
Federal agency and the permit or license applicant shall not make any
irreversible or irretrievable commitment of resources with respect to
the agency action which has the effect of foreclosing the formulation
or implementation of any reasonatle and prudent alternative
measures which would not violate subsection (a)(2) of this section.

(e) Endangered Svecies Committee.-

(1) There is established a committee to be known as the
Endangered Species Committee (hereinafter in this section
referred to as the "Committee").

Endangered Species Act of 1973

Sec.- 7. Interagency Cooperation Page 31

(2) The Committee shall review any application submitted to it
pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
section for the action set forth in such application.

(3) The Committee shall be composed of seven members as
f ollows:

(A) The Secretary of Agriculture.

(B) The Secretary of the Army.

(D) The Administrator of the Environmental Protection
Agency.

(E) The Secretary of the Interior.

(F) The Administrator of the National Oceanic and
Atmospheric Administration.

(G) The President, after consideration of any
recommendations received pursuant to subsection (g)(2)(B)
of this section shall appoint one individual from each
affected State, as determined by the Secretary, to be a
member of the Committee for the consideration of the
application for exemption for an agency action with
respect to which such recommendations are made, not later
than 30 days after an application is submitted pursuant to
this section.

(4)(A) Members of the Committee shall receive no additional
pay on account of their service on the Committee.

(B) While away from their homes or regular places of
business in the performance of services for the Committee,
members of the Committee shall be allowed travel
expenses, including per them in lieu of subsistence, in the
same manner as persons employed intermittently in the
Government service are allowed expenses under section
5703 of title 5, United States Code.

(5)(A) Five members of the Committee or their representatives
shall constitute a quorum for the transaction of any
function of the Committee, except that, in no case shall
any representative be considered in determining the
existence of a quorum for the transaction of any function
of the Committee if that function involves a vote by the
Committee on any matter before the Committee.

0 Endangered Species Act of 1973

Page 32 Sec. 7. Interagency Cooperation

(B) The Secretary of the Interior shall be the Chairman of
the Committee.

(D) All meetings and records of the Committee shall be
open to the public.

(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Committee to assist it in
carrying out its duties under this section.

(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at
such times and places, take such testimony, and receive
such evidence, as the Committee deems advisable.

(B) When so authorized by the Committee, any member or
agent of the Committee may take any action which the
Committee is authorized to take by this paragraph.

(C) Subject to the Privacy Act (5 U.S.C. 552a), the
Committee may secure directly from any Federal agency
information necessary to enable it to carry out its duties
under this section. Upon request of the Chairman of the
Committee, the head of such Federal agency shall furnish
such information to the Committee.

(D) The Committee may use the United States mails in the
same manner and upon the same conditions as a Federal
agency.

(E) The Administrator of General Services shall provide to
the Committee on a reimbursable basis such administrative
support services as the Committee may request.

(8) In carrying out its duties under this section, the Committee
may promulgate and amend such rules, regulations, and
procedures, and issue and amend such orders as it deems
necessary.

(9) For the purpose of obtaining information necessary for the
consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents.

Endangered Species Act of 1973

Sec. @. Interagency Cooperation Page 33

(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf of
any member.

(f) Promulgation of regulations.- form and contents of exemption
application - Not later than 90 days after November 10, 1978, the
Secretary shall promulgate regulations which set forth the form and
manner in which applications for exemption shall be submitted to the
Secretary and the information to be contained in such applications.
Such regulations shall require that information submitted in an
application by the head of any Federal agency with respect to any
agency action include, but not be limited to-

(1) a description of the consultation process carried out
pursuant to subsection (a)(2) of this section between the head
of the Federal agency and the Secretary; and

(2) a statement describing why such action cannot be altered or
modified to conform with the requirements of subsection (a)(2)
of this section.

(g) Anglication for exemt)tion - report to the Committee.-

(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2) of this section, the Secretary's opinion under
subsection (b) of this section indicates that the agency action
would violate subsection (a)(2) of this section. An application
for an exemption shall be considered initially by the Secretary
in the manner provided for in this subsection, and shall be
considered by the Committee for a final determination under
subsection (h) of this section after a report is made pursuant to
paragraph (5). The applicant for an exemption shall be
referred to as the "exemption applicant" in this section.

(2)(A) An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under
subsection (f) of this section, not later than 90 days after
the completion of the consultation process; except that, in
the case of any agency action involving a permit or license
applicant, such application shall be submitted not later
than 90 days after the'date on which the Federal agency
Foncerned takes final agency action with respect to the
issuance of the permit or license. For purposes of the
preceding sentence, the term "final agency action means (i)
a disposition by an agency with respect to the issuance of a
permit or license that is subject to administrative review,
whether or not such disposition is subject to judicial

Endangered Species Act of 1973

Page 34 Sec. 7. Interagency Cooperation

review; or (ii) if administrative review is sought with
respect to such disposition, the decision resulting after
such review. Such application shall set forth the reasons
why the exemption applicant considers that the agency
action meets the requirements for an exemption under this
subsection.

(B) Upon receipt of an application for exemption for an
agency action under paragraph (1), the Secretary shall
promptly (i) notify the Governor of each affected State, if
any, as determined by the Secretary, and request the
Governors so notified to recommend individuals to be
appointed to the Endangered Species Committee for
consideration of such application; and (ii) publish notice
of receipt of the application in the Federal Register,
including a summary of the information contained in the
application and a description of the agency action with
respect to which the application for exemption has been
f iled.

(3) The Secretary shall within 20 days after the receipt of an
application for exemption, or within such other period of time
as is mutually agreeable to the exemption applicant and the
Secretary--

(A) determine that the Federal agency concerned and the
exemption applicant have--

(i) carried out the consultation responsibilities described
in subsection (a) of this section in good faith and made
a reasonable and responsible effort to develop and
fairly consider modifications or reasonable and prudent
alternatives to the proposed agency action which would
not violate subsection (a)(2) of this section;

(ii) conducted any biological assessment required by
subsection (c) of this section; and

(iii) to the extent determinable within the time provided
herein, rcf rained from making any irreversible or
irretrievable commitment of resources prohibited by
subsection (d) of this section; or

(B) deny the application for exemption because the Federal
agency concerned or the exemption applicant have not met
the requirements set forth in subparagraph (A)(i), (ii), and
(iii).

The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of
Title 5, United States Code.

Endangered Species Act of 1973

Sec-. 7. Interagency Cooperation Page 35

(4) If the Secretary determines that the Federal agency
concerned and the exemption applicant have met the
requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he
shall, in consultation with the Members of the Committee, hold
a hearing on the application for exemption in accordance with
sections 554, 555, and 556 (other than subsection (b)(1) and (2)
thereof) of title 5, United States Code, and prepare the report
to be submitted pursuant to paragraph (5).

(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is
mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit to the Committee a report
discussing-

(A) the availability of reasonable and prudent alternatives
to the agency action, and the nature and extent of the
benefits of the agency action and of alternative courses of
action consistent with conserving the species or the critical
habitat;

(B) a summary of the evidence concerning whether or not
the agency action is in the public interest and is of
national or regional significance;

(D) whether the Federal agency concerned and the
exemption applicant refrained from making any
irreversible or irretrievable commitment of resources
prohibited by subsection (d) of this section.

(6) To the extent practicable within the time required for
action under subqection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5.

(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Secretary to assist him
in carrying out his duties under this section.

(8) All meetings and records resulting from activities pursuant
to this subsection shall be open to the public.

Endangered Species Act of 1 973

Page 36 Sec. 7. Interagency Cooperation

(h) Grant of exemr)tion.-

(1) The Committee shall make a final determination whether or
not to grant an exemption within 30 days after receiving the
report of the Secretary pursuant to subsection (g)(5) of this
section. The Committee shall grant an exemption from the
requirements of subsection (a)(2) of this section for an agency
action if, by a vote of not less than five of its members voting
in person-

(A) it determines on the record, based on the report of the
Secretary, the record of the hearing held under subsection
(g)(4) of this section and on such other testimony or
evidence as it may receive, that-

(i) there are no reasonable and prudent alternatives to
the agency action;

(ii) the benefits of such action clearly outweigh the
benefits of alternative courses of action consistent with
conserving the species or its critical habitat, and such
action is in the public interest;

(iii) the action is of regional or national significance;
and

.(iv) neither the Federal agency concerned nor the
Fxemption applicant made any irreversible or
irretrievable commitment of resources prohibited by
subsection (d) of this section; and

(B) it establishes such reasonable mitigation and
enhancement measures, including, but not limited to, live
propagation, transplantation, and habitat acquisition and
improvement, as arc necessary and appropriate to minimize
the adverse effects of the agency action upon the
endangered species, threatened species, or critical habitat
concerned.

Any final determination by the Committee under this
subsection shall be considered final agency action for purposes
of chapter 7 of title 5, United States Code.

(2)(A) Except as provided in subparagraph (B), an exemption
for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all
endangered or threatened species for the purposes of
completing such agency action-

(i) regardless whether the species was identified in the
biological assessment; and

Endangered Species Act of 1973

See-. 7. Interagency Cooperation Page 37

(ii) only if a biological assessment has been conducted
under subsection (c) of this section with respect to such
agency action.

(B) An exemption shall be permanent under subparagraph
(A) unless-

(i) the Secretary finds, based on the best scientific and
commercial data available, that such exemption would
result in the extinction of a species that was not the
subject of consultation under subsection (a)(2) of this
section or was not identified in any biological
assessment conducted under subsection (c) of this
section, and

(ii) the Committee determines within 60 days after the
date of the Secretary's finding that the exemption
should not be permanent.

If the Secretary makes a finding described in clause (i),
the Committee shall meet with respect to the matter within
30 days after the date of the finding.

(i) Review by Secretary of State.- violation of international treaty or
other international obligation of United States - Notwithstanding any
other provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the Secretary
of State, after a review of the proposed agency action and its
potential implications, and after hearing, certifies, in writing, to the
Committee within 60 days of any application made under this section
that the granting of any such exemption and the carrying out of such
action would be in violation of an international treaty obligation or
other international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy thereof in
the Federal Register.

(j) Exemt)tion for national security reasons.- Notwithstanding any
other provision of this Act, the Committee shall grant an exemption
for any agency action if the Secretary of Defense finds that such
exemption is necessary for reasons of national security.

M Exemt)tion decision not considered maior federal action -
environmental imt)act statement.- An exemption decision by the
Committee under this section shall not be a major Federal action for
purposes of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.): Provided, That an environmental impact statement
which discusses the impacts upon endangered species or threatened
species or their critical habitats shall have been previously prepared
with respect to any agency action exempted by such order.

Enda ngered Species Act of 1973

Page 38 Sec. 7. Interagency Cooperation

(1) Committee order granting excmt)tion: cost of mitigation and
enhancement measures* -report by apr)licant to Council on
Environmental Ouality -

(1) If the Committee determines under subsection (h) of this
section that an exemption should be granted with respect to
any agency action, the Committee shall issue an order granting
the exemption and specifying the mitigation and enhancement
measures established pursuant to subsection (h) of this section
which shall be carried out and paid for by the exemption -
applicant in implementing the agency action. All necessary
mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded
concurrently with all other project features.

(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action.
Notwithstanding the prcccdilg qentence the costs of such
measures shall not be treated as project costs for the purpose of
computing benefit-cost or other ratios for the proposed action.
Any applicant may request the Secretary to carry out such
mitigation and enhancement measures. The costs incurred by
the Secretary in carrying out any such measures shall be paid
by the applicant receiving the exemption. No later than one
year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental
Quality a report describing its compliance with the mitigation
and enhancement measures prescribed by this section. Such a
report shall be submitted annually until all such mitigation
and enhancement measures have been completed. Notice of the
public availability of such reports shall be published in the
Federal Register by the Council on Environmental Quality.

(m) Notice reguirgment for citizen suits not applicable.- The 60-day
notice requirement of section I l(g) of this Act shall not apply with
respect to review or any final determination of the Committee under
subsection (h) of this section granting an exemption from the
requirements of subsection (a)(2) of this section.
(n) Judicial review.- Any person, as defined by section 3(13) of this
Act, may obtain judicial review, under chapter 7 of title 5, of any.
decision of the Endangered Species Committee under subsection (h) of
this section in the United States Court of Appeals for (1) any circuit
wherein the agency action concerned will be, or is being, carried out,
or (2) in any case in which the agency action will be, or is being,
carried out outside of any circuit, the District of Columbia, by filing
in such court within 90 days after the date of issuance of the
decision, a written petition for peview. A copy of such petition shall
be transmitted by the clerk of the court to the Committee and the
Committee shall file in the court the record in the proceeding, as

Endangered Species Act of 1973

Scc: 7. Interagency Cooperation Page 39

provided in section 2112 of title 28. Attorneys designated by the
Endangered Species Committee may appear for, and represent the
Committee in any action for review under this subsection.

(o) Exemption as t)rovid ing-Cxcet)t ion on taking-of endangergd
. - Notwithstanding sections 4(d) and 9(a)(1)(B) and (C) of this
Act, sections 1371 and 1372 of title 16, United States Code: or any
regulation promulgated to implement any such section--

(]) any action for which an exemption is granted under
subsection (h) of this section shall not be considered to be a
taking of any endangered species or threatened species with
respect to any activity which is necessary to carry out such
action; and

(2) any taking that is in compliance with the terms and
conditions specified in a written statement provided under
subsection (b)(4)(iv) of this section shall not be considered to
be a prohibited taking of the species concerned.

(p) Excmr)tions in Presidentially declared disaster areas.- In any area
which has been declared by the President to be a major disaster area
under the Disaster Relief and Emergency Assistance Act (42 U.S.C.A.
�5121 et scq.), the President is authorized to make the determinations
required by subsections (g) and (h) of this section for any project for
the repair or replacement of a public facility substantially as it
existed prior to the disaster under section 405 or 406 of the Disaster
Relief and Emergency Assistance Act (42 U.S.C.A. �� 5171 or 5172),
and which the President determines (1) is necessary to prevent the
recurrence of such a natural disaster and to reduce the potential loss
of human life, and (2) to involve an emergency situation which does
not allow the ordinary procedures of this section to be followed.
Notwithstanding any other j)rovision of this section, the Committee
shall accept the determinations of the President under this subsection.

Endangered Species Act of 1973

Sec.-8. International Cooperation Page 40

INTERNATIONAL COOPERATION

Sec. 8. (a) Financial assistance.- As a demonstration of the commitment of
the United States to the worldwide protection of endangered species
and threatened species, the President may, subject to the provisions of
section 1306 of title 31, use foreign currencies accruing to the United
States Government under the Agricultural Trade Development and
Assistance Act of 1954 (7 U.S.C. 1691 ct scq.) or any other law to
provide to any foreign country (with its consent) assistance in the
development and management of programs in that country which the
Secretary determines to be necessary or useful for the conservation of
any endangered species or threatened species listed by the Secretary
pursuant to section 4 of this Act. The President shall provide
assistance (which includes, but is not limited to, the acquisition, by
lease or otherwise, of lands, waters, or interests therein) to foreign
countries under this section under such terms and conditions as he
deems appropriate. Whenever foreign currencies are available for the
provision of assistance under this section, such currencies shall be
used in preference to funds appropriated under the authority of
section 15 of this Act.

M Encourapcmcnt of foreign proprams.- In order to carry out further
the provisions of this' Act, the Secretary, through the Secretary of
State, shall encourage-

(1) foreign countries to provide for the conservation of fish or
wildlife and plants including endangered species and
threatened species listed pursuant to section 4 of this Act;

(2) the entering into of bilateral or multilateral agreements
with foreign countries to provide for such conservation; and

(3) foreign persons who directly or indirectly take fish or
wildlife or plants in foreign countries or on the high seas for
importation into the United States for commercial or other
purposes to develop and carry out with such assistance as he
may provide, conservation practices designed to enhance such
fish or wildlife or plants and their habitat.

(1) assign or otherwise make available any officer or employee
of his department for the purpose of cooperating with foreign
countries and international organizations in developing
personnel resources and programs which promote the
conservation of fish or wildlife or plants; and

Endangered Species Act of 1973

Sec. 8. International Cooperation Page 41

(2) conduct or provide financial assistance for the educational
training of foreign personnel, in this country or abroad, in
fish, wildlife, or plant management, research and law
enforcement and to render professional assistance abroad in
such matters.

(d) Investigations - Af ter consultation with the Secretary of State and
the Secretary of the Treasury, as appropriate, the Secretary may
conduct or cause to be conducted such law enforcement investigations
and research abroad as he deems necessary to carry out the purposes
of this Act.

Endangered Species Act of 1973

Page 42 Sec. 8A. Convention Implementation

CONVENTION IMPLEMENTATION

Sec. 8A. (a) Management Authority and Scientific Authority.- The Secretary
of the Interior (hereinafter in this section referred to as the
"Secretary") is designated as the Management Authority and the
Scientific Authority for purposes of the Convention and the
respective functions of each such Authority shall be carried out
through the United States Fish and Wildlife Service.

(b) Management Authority functions.- The Secretary shall do all
things necessary and appropriate to carry out the functions of the
Management Authority under the Convention.

(1) The Secretary shall do all things necessary and appropriate
to carry out the functions of the Scientific Authority under
the Convention.

(2) The Secretary shall base the determinations and advice
given by him under Article IV of the Convention with respect
to wildlife upon the best available biological information
derived from professionally accepted wildlife management
practices; but is not required to make, or require any State to
make, estimates of population size in making such
determinations or giving such advice.

(d) Reservations by the United States under Convention - If the
United States votes against including any species in Appendix I or 11
of the Convention and does not enter a reservation pursuant to
paragraph (3) of Article XV of the Convention with respect to that
species, the Secretary of State, before the 90th day after the last day
on which such a reservation could be entered, shall submit to the
Committee on Merchant Marine and Fisheries of the House of
Representatives, and to the Committee on the Environment and Public
Works of the Senate, a written report setting forth the reasons why
such a reservation was not entered.

(e) Wildlife Preservation in Western Hemisphere -

(1) The Secretary of the Interior (hereinafter in this subsection
referred to as the "Secretary"), in cooperation with the
Secretary of State, shall act on behalf of, and represent, the
United States in all regards as required by the Convention on
Nature Protection and Wildlife Preservation in the Western
Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this
subsection referred to as the "Western Convention"). In the
discharge of these responsibilities, the Secretary and the
Secretary of State shall consult with the Secretary of
Agriculture, the Secretary of Commerce, and the heads of other

Endangered Species Act of 1973

Sec. 8k Convention Implementation Page 43

agencies with respect to matters relating to or affecting their
areas of responsibility.

(2) The Secretary and the Secretary of State shall, in
cooperation with the contracting parties to the Western
Convention and, to the extent feasible and appropriate, with
the participation of State agencies, take such steps as arc
necessary to implement the Western Convention. Such steps
shall include, but not be limited to--

(A) cooperation with contracting parties and international
organizations for the purpose of developing personnel
resources and programs that will facilitate implementation
of the Western Convention;

(B) identification of those species of birds that migrate
between the United States and other contracting parties,
and the habitats upon which those species depend, and the
implementation of cooperative measures. to ensure that
such species will not become endangered or threatened;
and

(C) identification of measures that are necessary and
appropriate to implement those provisions of the Western
Convention which address the protection of wild plants.

(3) No later than September 30, 1985, the Secretary and the
Secretary of State shall submit a report to Congress describing
those steps taken in accordance with the requirements of this
subsection and identifying the principal remaining actions yet
necessary for comprehensive and effective implementation of
the Western Convention.

(4) The provisions of this subsection shall not be construed as
affecting the authority, jurisdiction, or responsibility of the
several States to manage, control, or regulate resident fish or
wildlife under State law or regulations.

Endangered Species Act of 1973

Page 44 Sec. 9. Prohibited Acts

PROHIBITED ACTS

Sec. 9. (a) Generally.-

(1) Except as provided in sections 6(g)(2) and 10 of this Act,
with respect to any endangered species of fish or wildlife
listed pursuant to section 4 of this Act it is unlawful for any
person subject to the jurisdiction of the United States to-

(A) import any such species into, or export any such
species from the United States;

(B) take any such species within the United States or the
territorial sea of the United States;

(D) possess, sell, deliver, carry, transport, or ship, by any
means whatsoever, any such species taken in violation of
subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in interstate
or foreign commerce, by any means whatsoever and in the
course of a commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign commerce
any such species; or

(G) violate any regulation pertaining to such species or to
any threatened species of fish or wildlife listed pursuant
to section 4 of this Act and promulgated by the Secretary
pursuant to authority provided by this Act.

(2) Except as provided in sections 6(g)(2) and 10 of this Act,
with respect to any endangered species of plants listed
pursuant to section 4 of this Act, it is unlawful for any person
subject to the jurisdiction of the United States to--

(A) import any such species into, or export any such
species from, the United States;

(B) remove and reduce to possession any such species from
areas under Federal jurisdiction; maliciously damage or
destroy any such species on any such area; or remove, cut,
dig up, or damage or destroy any such species on any other
area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal
trespass law;

Endangered Species Act of 1973

Sec. 9. Prohibited Acts Page 45

(C) deliver, receive, carry, transport, or ship in interstate
or foreign commerce, by any means whatsoever and in the
course of a commercial activity, any such species;

(D) sell or offer for sale in interstate or foreign commerce
any such species; or

(E) violate any regulation pertaining to such species or to
any threatened species of plants listed pursuant to section
4 of this Act and promulgated by the Secretary pursuant to
authority provided by this Act.

(b) SL)ccics held in captivity or controlled cnvironmcni.-

(1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of this
section shall not apply to any fish or wildlife which was held
in captivity or in a controlled environment on (A) December
28, 1973, or (B) the date of the publication in the Federal
Register of a final regulation adding such fish or wildlife
species to any list published pursuant to subsection (c) of
section 4 of this Act: Provided, That such holding and any
subsequent holding or use of the fish or wildlife was not in the
course of a commercial activity. With respect to any act
prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section
which occurs after a period of 180 days from (i) December 28,
1973, or (ii) the date of publication in the Federal Register of
a final regulation adding such fish or wildlife species to any
list published pursuant to subsection (c) of section 4 of this
Act, there shall be a rebuttable presumption that the fish or
wildlife involved in such act is not entitled to the exemption
contained in this subsection.

(2)(A) The provisions of subsection (a)(1) of this section shall
not apply to--

(i) any raptor legally held in captivity or in a controlled
environment on November 10, 1978; or

(ii) any progeny of any raptor described in clause (i);
until such time as any such raptor or progeny is
intentionally returned to a wild state.

(B) Any person holding any raptor or progeny described in
subparagraph (A) must be able to demonstrate that the
raptor or progeny does, in fact, qualify under the
provisions of this paragraph, and shall maintain and
submit to the Secretary, on request, such inventories,
documentation, and records as the Secretary may by
regulation require as being reasonably appropriate to carry
out the purposes of this paragraph. Such requirements

Endangered Species Act of 1973

Page 46 See. 9. Prohibited Acts

shall not unnecessarily duplicate the requirements of other
rules and regulations promulgated by the Secretary.

(1) It is unlawful for any person subject to the jurisdiction of
the United States to engage in any trade in any specimens
contrary to the provisions of the Convention, or to possess any
specimens traded contrary to the provisions of the Convention,
including the definitions of terms in article I thereof.

(2) Any importation into the United States of fish or wildlife
shall, if -

(A) such fish or wildlife is not an endangered species
listed pursuant to section 4 of this Act but is listed in
Appendix 11 to the Convention,

(B) the taking and exportation of such fish or wildlife is
not contrary to the provisions of the Convention and all
other applicable requirements of the Convention have been
satisf icd,

(D) such importation is not made in the course of a
commercial activity,

be presumed to be an importation not in violation of any
provision of this Act or any regulation issued pursuant to this
Act.

(d) Imoorts and exports.-

(1) In general - It is unlawful for any person, without first
having obtained permission from the Secretary, to engage in
business-

(A) as an importer or exporter of fish or wildlife (other
than shellfish and fishery products which (i) are not listed
pursuant to section 4 of this Act as endangered species or
threatened species, and (ii) are imported for purposes of
human oi- animal consumption or taken in waters under
the jurisdiction of the United States or on the high seas
for recreational purposes) or plants; or

(B) as an importer or exporter of any amount of raw or
worked African elephant ivory.

Endangered Species Act of 1973

Stc. 9. Prohibited Acts Page 47

(2) Requirements - Any person required to obtain permission
under paragraph (1) of this subsection shall--

(A) keep such records as will fully and correctly disclose
each importation or exportation of fish, wildlife, plants, or
African elephant ivory made by him and the subsequent
disposition made by him with respect to such fish,
wildlife, plants, or ivory;

(B) at all reasonable times upon notice by a duly
authorized representative of the Secretary, afford such
representative access to his place of business, an
opportunity to examine his inventory of imported fish,
wildlife, plants, or African elephant ivory and the records
required to be kept under subparagraph (A) of this
paragraph, and to copy such records; and

(3) Regulations - The Secretary shall prescribe such regulations
as are necessary and appropriate to carry out the purposes of
this subsection.

(4) Restriction on consideration of value or a-mount of African
elephant ivory imported or exported - In granting permission
under this subsection for importation or exportation of
African elephant ivory, the Secretary shall not vary the
requirements for obtaining such permission on the basis of the
value or amount of ivory imported or exported under such
permission.

(e) Regorts.- It is unlawful for any person importing or exporting
fish or wildlife (other than shellfish and fishery products which (1)
are not listed pursuant to section 4 of this Act as endangered or
threatened species, and (2) are imported for purposes of human or
animal consumption or taken in waters under the jurisdiction of the
United States or on the high seas for recreational purposes) or plants
to fail to file any declaration or report as the Secretary deems
necessary to facilitate enforcement of this Act or to meet the
obligations of the Convention.

(f) Designation of gorts.-

(1) It is unlawful for any person subject to the jurisdiction of
the United States to import into or export from the United
States any fish or wildlife (other than shellfish and fishery
products which (A) are not listed pursuant to section 4 of this
Act as endangered species or threatened species, and (B) arc
imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or
on the high seas for recreational purposes) or plants, except at

Endangered Species Act of 1973

Page 48 Sec. 9. Prohibited Acts

a port or ports designated by the Secretary of the Interior. For
the purpose of facilitating enforcement of this Act and
reducing the costs thereof, the.Sccretary of the Interior, with
approval of the Secretary of the Treasury and after notice and
opportunity for public hearing, may, by regulation, designate
ports and change such designations. The Secretary of the
Interior, under such terms and conditions as he may prescribe,
may permit the importation or exportation at nondesignated
ports in the interest of the health or safety of the fish or
wildlife or plants, or for other reasons, if, in his discretion, he
deems it appropriate and consistent with the purpose of this
subsection.

(2) Any port designated by the Secretary of the Interior under
the authority of section 668cc-4(d) of title 16, United States
Code, shall, if such designation is in effect on December 27,
1973, be deemed to be a port designated by the Secretary under
paragraph (1) of this subsection until such time as the
Secretary otherwise provides.

(g) Violations - It is unlawful for any person subject to the
jurisdiction of the United States to attempt to commit, solicit another
to commit, or cause to be committed, any offense defined in this
section.

Endangered Species Act of 1973

Sec. 10. Exceptions Page 49

EXCEPTIONS

Sec. 10. (a) Permits.-

(1) The Secretary may permit, under such terms and conditions
as he shall prescribe-

(A) any act otherwise prohibited by section 9 of this Act
for scientific purposes or to enhance the propagation or
survival of the affected species, including, but not limited
to, acts necessary for the establishment and maintenance
of experimental populations pursuant to subsection (j) of
this section; or

(B) any taking otherwise prohibited by section 9(a)(1)(B) of
this Act if such taking is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activity.

(2)(A) No permit may be issued by the
Secretary authorizing any taking referred to in paragraph
(1)(B) unless the applicant therefor submits to the
Secretary a conservation plan that specifies-

(i) the impact which will likely result from such taking;

GO what steps the applicant will take to minimize and
mitigate such impacts, and the funding that will be
available to implement such steps;

(iii) what alternative actions to such taking the
applicant considered and the reasons why such
alternatives are not being utilized; and

(iv) such other measures that the Secretary may require
as being necessary or appropriate for purposes of the
plan.

(B) If the Secretary finds, after opportunity for public
comment, with respect to a permit application and the
related conservation plan that--

(i) the taking will be incidental;

00 the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of such
taking;

Gii) the applicant will ensure that adequate funding for
the plan will be provided;

Endangered Species Act of 1973

Page 50 Sec. 10. Exceptions

(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the species in
the wild; and

(v) the measures, if any, required under subparagraph
(A)(iv) will be met;

and he has received such other assurances as he may
require that the plan will be implemented, the Secretary
shall issue the permit. The permit shall contain such terms
and conditions as the Secretary deems necessary or
appropriate to carry out the purposes of this paragraph,
including, but not limited to, such reporting requirements
as the Secretary deems necessary for determining whether
such terms and conditions are being complied with.

(C) The Secretary shall revoke a permit issued under this
paragraph if he finds that the permittee is not complying
with the terms and conditions of the permit.

(b) Hardshin exemmions.-

(1) If any person enters into a contract with respect to a species
of fish or wildlife or plant before the date of the publication
in the Federal Register of notice of consideration of that
species as an endangered species and the subsequent listing of
that species as an endangered species pursuant to section 4 of
this Act will cause undue economic hardship to such person
under the contract, the Secretary, in order to minimize such
hardship, may exempt such person from the application of
section 9(a) of this Act to the extent the Secretary deems
appropriate if such person applies to him for such exemption
and includes with such application such information as the
Secretary may require to prove such hardship; except that (A)
no such exemption shall be for a duration of more than one
year from the date of publication in the Federal Register of
notice of consideration of the species concerned, or shall apply
to a quantity of fish or wildlife or plants in excess of that
specified by the Secretary; (B) the one-year period for those
species of fish or wildlife listed by the Secretary as endangered
prior to December 28, 1973, shall expire in accordance with the
terms of section 668cc-3 of title 16, United States Code; and (C)
no such exemption may be granted for the importation or
exportation of a specimen listed in Appendix I of the
Convention which is to be used in a commercial activity.

(2) As used in this subsection, the term "undue economic
hardship" shall include, but not be limited to:

(A) substantial economic loss resulting from inability
caused by this Act to perform contracts with respect to

Endangered Species Act of 1973

Sec. 10. Exceptions Page 51

species of fish and wildlife entered into prior to the date
of publication in the Federal Register of a notice of
consideration of such species as an endangered species;

(B) substantial economic loss to persons who, for the year
prior to the notice of consideration of such species as an
endangered species, derived a substantial portion of their
income from the lawful taking of any listed species, which
taking would be made unlawful under this Act; or

(C) curtailment of subsistence taking made unlawful under
this Act by persons (i) not reasonably able to secure other
sources of subsistence; and (ii) dependent to a substantial
extent upon hunting and fishing for subsistence; and (iii)
who must engage in such curtailed taking for subsistence
purposes.

(3) The Secretary may make further requirements for a
showing of undue economic hardship as he deems fit.
Exceptions granted under this section may be limited by the
Secretary in his discretion as to time, area, or other factor of
applicability.

(c) Notice and review.- The Secretary shall publish notice in the
Federal Register of each application for an exemption or permit
which is made under this section. Each notice shall invite the
submission from interested parties, within thirty days after the date
of the notice, of written data, views, or arguments with respect to the
application; except that such thirty-day period may be waived by the
Secretary in an emergency situation where the health or life of an
endangered animal is threatened and no reasonable alternative is
available to the applicant, but notice of any such waiver shall be
published by the Secretary in the Federal Register within ten days
following the issuance of the exemption or permit. Information
received by the Secretary as a part of any application shall be
available to the public as a matter of public record at every stage of
the proceeding.

(d) Permit and exemption policy - The Secretary may grant exceptions
under subsections (a)(1)(A) and (b) of this section only if he finds and
publishes his finding in the Federal Register that (1) such exceptions
were applied for in good faith, (2) if granted and exercised will not
operate to the disadvantage of such endangered species, and (3) will
be consistent with the purposes and policy set forth in section 2 of
this Act.

(e) Alaskan natives. -

(1) Except as provided in paragraph (4) of this subsection the
provisions of this Act shall not apply with respect to the taking
of any endangered species or threatened species, or the

Endangered Species Act of 1973

Page 52 Sec. 10. Exceptions

importation of any such species taken pursuant to this section,
by--

(A) any Indian, Aleut, or Eskimo who is an Alaskan Native
who resides in Alaska; or

(B) any non-native permanent resident of an Alaskan
native village;

if such taking is primarily for subsistence purposes.
Non-ediblc byproducts of species taken pursuant to this section
may be sold in interstate commerce when made into authentic
native articles of handicrafts and clothing; except that the
provisions of this subsection shall not apply to any non-native
resident of an Alaskan native village found by the Secretary to
be not primarily dependent upon the taking of fish and
wildlife for consumption or for the creation and sale of
authentic native articles of handicrafts and clothing.

(2) Any taking under this subsection may not be accomplished
in a wasteful manner.

(3) As used in this subsection--

(i) The term "subsistence" includes selling any edible
portion of fish or wildlife in native villages and towns
in Alaska for native consumption within native villages
or towns; and

(ii) The term "authentic native articles of handicrafts
and clothing" means items composed wholly or in some
significant respect of natural materials, and which are
produced, decorated, or fashioned in the exercise of
traditional native handicrafts without the use of
pantographs, multiple carvers, or other mass copying
devices. Traditional native handicrafts include, but are
not limited to, weaving, carving, stitching, sewing,
lacing, beading, drawing, and painting.

(4) Notwithstanding the provisions of paragraph (1) of this
subsection, whenever the Secretary determines that any species
of fish or wildlife which is subject to taking under the
provisions of this subsection is an endangered species or
threatened species, and that such taking materially and
negatively affects the threatened or endangered species, he
may prescribe regulations upon the taking of such species by
any such Indian, Aleut, Eskimo, or non-Native Alaskan
resident of an Alaskan native village. Such regulations may be
established with reference to species, geographical description
of the area included, the season for taking, or any other
factors related to the reason for establishing such regulations

Endangered Species Act of 1973

Sec. 10. Exceptions Page 53

and consistent with the policy of this Act. Such regulations
shall be prescribed after a notice and hearings in the affected
judicial districts of Alaska and as otherwise required by
section 1373 of title 16, United States Code, and shall be
removed as soon as the Secretary determines that the need for
their impositions has disappeared.

(f) Prc-Act endangered species varts exemL)tion4 application and
certification& regulatiow validity of sales contract: separability of
movisions: renewal of excmr)tion% cxr)iration of renewal
certif ication.-

(1) As used in this subsection--

(A) The term "pre-Act endangered species part" means--

(i) any sperm whale oil, including derivatives thereof,
which was lawfully held within the United States on
December 28, 1973, in the course of a commercial
activity; or

(ii) any finished scrimshaw product, if such product or
the raw material for such product was lawfully held
within the United States on December.28, 1973, in the
course of a commercial activity.

(B) The term "scrimshaw product" means any art form
which involves the substantial etching or engraving of
designs upon, or the substantial carving of figures,
patterns, or designs from, any bone or tooth of any marine
mammal of the order Cetacea. For purposes of this
subsection, polishing or the adding of minor superficial
markings does not constitute substantial etching,
engraving, or carving.

(2) The Secretary, pursuant to the provisions of this subsection,
may exempt, if such exemption is not in violation of the
Convention, any pre-Act endangered species part from one or
more of the following prohibitions:

(A) The prohibition on exportation from the United States
set forth in section 9(a)(1)(A) of this Act.

(B) Any prohibition set forth in section 9(a)(1)(E) or (F) of
this Act.

(3) Any person seeking an exemption described in paragraph
(2) of this subsection shall make application therefor to the
Secretary in such form and manner as be shall prescribe, but
no such application may be considered by the Secretary unless
the application--

0 Endangered Species Act of 1973

Page 54 Sec. 10. Exceptions

(A) is received by the Secretary before the close of the
one-year period beginning on the date on which
regulations promulgated by' the Secretary to carry out this
subsection first take effect;

(B) contains a complete and detailed inventory of all
pre-Act endangered species parts for which the applicant
seeks exemption;

(C) is accompanied by such documentation as the Secretary
may required to prove that any endangered species part or
product claimed by the applicant to be a prc-Act
endangered species part is in fact such a part; and

(D) contains such other information as the Secretary deems
necessary and appropriate to carry out the purposes of this
subsection.

(4) If the Secretary approves any application for exemption
made under this subsection, he shall issue to the applicant a
certificate of exemption which shall specify--

(A) any prohibition in section 9(a) of this Act which is
exempted;

(B) the pre-Act endangered species parts to which the
exemption applies;

(C) the period of time during which the exemption is in
effect, but no exemption made under this subsection shall
have force and effect after the close of the three-year
period beginning on the date of issuance of the certificate
unless such exemption is renewed under paragraph (8);
and

(D) any term or condition prescribed pursuant to
paragraph (5)(A) or (B), or both, which the Secretary deems
necessary or appropriate.

(5) The Secretary shall prescribe such regulations as he deems
necessary and appropriate to carry out the purposes of this
subsection. Such regulations may set forth--

(A) terms and conditions which may be imposed on
applicants for exemptions under this subsection (including,
but not limited to, requirements that applicants register
inventories, keep complete sales records, permit duly
authorized agents of the Secretary to inspect such
inventories and records, and periodically file appropriate
reports with the Secretary); and

Endangered Species Act of 1973

Sec. 10. Exceptions Page 55

(B) terms and conditions which may be imposed on any
subsequent purchaser of any prc-Act endangered species
part covered by an exemption granted under this
subsection;

to insure that any such part so exempted is adequately
accounted for and not disposed of contrary to the provisions of
this Act. No regulation prescribed by the Secretary to carry
out the purposes of this subsection shall be subject to section
4(f)(2)(A)(i) of this Act.

(6)(A) Any contract for the sale of pre-Act endangered species
parts which is entered into by the Administrator of
General Services prior to the effective date of this
subsection and pursuant to the notice published in the
Federal Register on January 9, 1973, shall not be rendered
invalid by virtue of the fact that fulfillment of such
contract may be prohibited under section 9(a)(1)(F) of this
Act.

(B) In the event that this paragraph is held invalid, the
validity of the remainder of this Act, including the
remainder of this subsection, shall not be affected.

(7) Nothing in this subsection shall be construed to--

(A) exonerate any person from any act committed in
violation of paragraphs (1)(A), (1)(E), or (1)(F) of section
9(a) of this Act prior to July 12, 1976; or

(B) immunize any person from prosecution for any such
act.

(8)(A)(i) Any valid certificate of exemption which was
renewed after October 13, 1982, and was in effect on
March 31, 1988, shall be deemed to be renewed for a
six-month period beginning on October 7, 1988. Any
person holding such a certificate may apply to the
Secretary for one additional renewal of such certificate
for a period not to exceed 5 years beginning on October
7, 1988.

(NOTE - So in original. No. cl. (ii) has been enacted.)

(B) If the Secretary approves any application for renewal
of an exemption under this paragraph, he shall issue to the
applicant a certificate of renewal of such exemption which
shall provide that all terms, conditions, prohibitions, and
other regulations made applicable by the previous

Endangered Species Act of 1973

Page 56 Sec. 10. Exceptions

certificate shall remain in effect during the period of the
renewal.

(C) No exemption or renewal of such exemption made
under this subsection shall have force and effect after the
expiration date of the certificate of renewal of such
exemption issued under this paragraph.

(D) No person may, after January 31, 1984, sell or offer
for sale in interstate or foreign commerce, any pre-Act
finished scrimshaw product unless such person holds a
valid certificate of exemption issued by the Secretary
under this subsection, and unless such product or the raw
material for such product was held by such person on
October 13, 1982.

(9) Repealed. Pub.L. 100-478, Title I, � 10 11 (d), Oct. 7, 1988,
102 Stat. 2314

(g) Burden of 1)roof.- In connection with any action alleging a
violation of section 9 of this Act, any person claiming the benefit of
any exemption or permit under this Act shall have the burden of
proving that the exemption or permit is applicable, has been granted,
and was valid and in force at the time of the alleged violation.

(h) Certain antigue articles - importation - gort designation
armlication for return of articles.-

(1) Sections 4(d) and 9(a) and (c) of this Act do not apply to
any article which--

(A) is not less than 100 years of age

(B) is composed in whole or in part of any endangered
species or threatened species listed under section 4 of this
Act;

(D). is entered at a port designated under paragraph (3).

(2) Any person who wishcs to import an article under the
exception provided by this subsection shall submit to the
customs officer concerned at the time of entry of the article
such documentation as-the Secretary of the Treasury, after
consultation with the Secretary of the Interior, shall by
regulation require as being necessary to establish that the
article meets the requirements set forth in paragraph (1)(A),
(B), a n d (C).

Endangered Species Act of 1973

Sec. 10. Exceptions Page 57

(3) The Secretary of the Treasury, after consultation with the
Secretary of the Interior, shall designate one port within each
customs region at which articles described in paragraph (1)(A),
(B), and (C) must be entered into the customs territory of the
United States.

(4) Any person who imported, after December 27, 1973, and on
or before November 10, 1978, any article described in
paragraph (1) which--

(A) was not repaired or modified after the date of
importation with any part of any endangered species or
threatened species listed under section 4 of this Act;

(B) was forfeited to the United States before November 10,
1978, or is subject to forfeiture to the United States on
such date of enactment, pursuant to the assessment of a
civil penalty under section I I of this Act; and

(C) is in the custody of the United States on November 10,
1978; may, before the close of the one-year period
beginning on November 10, 1978, make application to the
Secretary for return of the article. Application shall be
made in such form and manner, and contain such
documentation, as the Secretary prescribes. If on the basis
of any such application which is timely filed, the
Secretary is satisfied that the requirements of this
paragraph are met with respect to the article concerned,
the Secretary shall return the article to the applicant and
the importation of such article shall, on and after the date
of return, be deemed to be a lawful importation under this
Act.

(i) Noncommercial transshipments.- Any importation into the United
States of fish or wildlife shall, if--

(1) such fish or wildlife was lawfully taken and exported from
the country of origin and country of reexport, if any;

(2) such fish or wildlife is in transit or transshipment through
any place subject to the jurisdiction of the United States en
route to a country where such fish or wildlife may be lawfully
imported and received;

(3) the exporter or owner Of such fish or wildlife gave explicit
instructions not to ship such fish or wildlife through any place
subject to the jurisdiction of the United States, or did all that
could have reasonably been done to prevent transshipment, and
the circumstances leading to the transshipment were beyond
the exporter's or owner's control;

Endangered Species Act of 1973

Page 58 Sec. 10. Exceptions

(4) the applicable requirements of the Convention have been
satisfied; and

(5) such importation is not made in the course of a commercial
activity,

be an importation not in violation of any provision of this Act or any
regulation issued pursuant to this Act while such fish or wildlife
remains in the control of the United States Customs Service.

(j) Experimental nopulations.-

(1) For purposes of this subsection, the term "experimental
population" means any population (including any offspring
arising solely therefrom) authorized by the Secretary for
release under paragraph (2), but only when, and at such times
as, the population is wholly separate geographically from
nonexperimental populations of the same species.

(2)(A) The Secretary may authorize the release (and the related
transportation) of any population (including eggs,
propagules, or individuals) of an endangered species or a
threatened species outside the current range of such
species if the Secretary determines that such release will
further the conservation of such species.

(B) Before authorizing the release of any population under
subparagraph (A), the Secretary shall by regulation
identify the population and determine, on the basis of the
best available information, whether or not such population
is essential to the continued existence of an endangered
species or a threatened species.

(C) For the purposes of this Act, each member of an
experimental population shall be treated as a threatened
species; except that--

(i) solely for purposcs of section 7 of this Act (other
than subsection (a)(1) thereof), an experimental
population determined under subparagraph (B) to be not
essential to the continued existence of a species shall be
treated, except when it occurs in an area within the -
National Wildlife Refuge System or the National Park
System, as a species proposed to be listed under section
4 of this Act; and

(ii) critical habitat shall not be designated under this
Act for any experimental population determined under
subparagraph (B) to be not essential to the continued
existence of a species.

Endangered Species Act of 1973

Sec. 10. Exceptions Page 59

(3) The Secretary, with respect to populations of endangered
species or threatened species that the Secretary authorized,
before October 13, 1982, for release in geographical areas
separate from the other populations of such species, shall
determine by regulation which of such populations are an
experimental population for the purposes of this subsection
and whether or not each is essential to the continued existence
of an endangered species or a threatened species.

Endangered Species Act of 1 973

Page 60 See. 11. Penalties and Enforcement

PENALTIES AND ENFORCEMENT

Sec. 11. (a) Civil genalties.-

(1) Any person who knowingly violates, and any person
engaged in business as an importer or exporter of fish,
wildlife, or plants who violates, any provision of this Act, or
any provision of any permit or certificate issued hereunder, or
of any regulation issued in order to implement subsection
(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (13), (C), or (D), (c),
(d) (other than regulation relating to recordkeeping or f iling of
reports), (f) or (g) of section 9 of this Act, may be assessed a
civil penalty by the Secretary of not more than $25,000 for
each violation. Any person who knowingly violates, and any
person engaged in business as an importer or exporter of fish,
wildlife, or plants who violates, any provision of any other
regulation issued under this Act may be assessed a civil penalty
by the Secretary of not more than $12,000 for each such
violation. Any person who otherwise violates any provision of
this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of
not more than $500 for each such violation. No penalty may
be assessed under this subsection unless such person is given
notice and opportunity for a hearing with respect to such
violation. Each violation shall be a separate offense. Any
such civil penalty may be remitted or mitigated by the
Secretary. Upon any failure to pay a penalty assessed under
this subsection, the Secretary may request the Attorney
General to institute a civil action in a district court of the
United States for any district in which such person is found,
resides, or transacts business to collcct the penalty and such
court shall have jurisdiction to hear and decide any such
action. The court shall hear such action on the record made
before the Secretary and shall sustain his action if it is
supported by substantial evidence on the record considered as a
whole.

(2) Hearings held during proceedings for the assessment of
civil penalties authorized by paragraph (1) of this subsection
shall be conducted in accordance with section 554 of Title 5,
United States Code. The Secretary may issue subpoenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and administer oaths.
Witnesses summoned shall be paid the same fees and mileage
that are paid to witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpena served upon
any person pursuant to this paragraph, the district court of the
United States for any district in which such person is found or
resides or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction

Endangered Species Act of 1973

Sec. I L. Penalties and Enforcement Page 61

to issue an order requiring such person to appear and give
testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to
obey such order of the court may be punished by such court as
a contempt thereof.

(3) Notwithstanding any other provision of this Act, no civil
penalty shall be imposed if it can be shown by a preponderance
of the evidence that the defendant committed an act based on
a good faith belief that he was acting to protect himself or
herself, a member of his or her family, or any other individual
from bodily harm, from any endangered or threatened species.

(b) Criminal violations -

(1) Any person who knowingly violates any provision of this
Act, of any permit or certificate issued hereunder, or of any
regulation issued in order to implement subsection (a)(1)(A),
(B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D), (c), (d) (other
than a regulation relating to rccordkccping, or filing of
reports), (f), or (g) of section 9 of this Act shall, upon
conviction, be fined not more than $50,000 or imprisoned for
not more than one year, or both. Any person who knowingly
violates any provision of any other regulation issued under this
Act shall, upon conviction, be fined not more than $25,000 or
imprisoned for not more than six months, or both.

(2) The head of any Federal agency which has issued a lease,
license, permit, or other agreement authorizing a person to
import or export fish, wildlife, or plants, or to operate a
quarantine station for imported wildlife, or authorizing the
use of Federal lands, including grazing of domestic livestock,
to any person who is convicted of a criminal violation of this
Act or any regulation, permit, or certificate issued hereunder
may immediately modify, suspend, or revoke each lease,
license, permit, or other agreement. The Secretary shall also
suspend for a period of up to one year, or cancel, any Federal
hunting or fishing permits or stamps issued to any person who
is convicted of a criminal violation of any provision of this
Act or any regulation, permit or certificate issued hereunder.
The United States shall not be liable for the payments of any
compensation, reimbursement, or damages in connection with
the modification, suspension, or revocation of any leases,
licenses, permits, stamps, or other agreements pursuant to this
section.

(3) Notwithstanding any other provision of this Act, it shall be
a defense to prosecution under this subsection if the defendant
committed the offense based on a good faith belief that he was
acting to protect himself or herself, a member of his or her

Endangered Species Act of 1973

Page 62 Scc- 11. Penalties and Enf orccmcnt

family, or any other individual, from bodily harm from any
endangered or threatened species.

(c) District court Jurisdiction.- The several district courts of the
United States, including the courts enumerated in section 460 of Title
28 shall have jurisdiction over any actions arising under this Act. For
the purpose of this Act, American Samoa shall be included within the
judicial district of the District Court of the United States for the
District of Hawaii.

(d) Rewards and certain incidental exr)cnses- The Secretary or the
Secretary of the Treasury shall pay, from sums received as penalties,
fines, or forfeitures of property for any violation of this Act or any
regulation issued hereunder (1) a reward to any person who furnishes
information which leads to an arrest, a criminal conviction, civil
penalty assessment, or forfeiture of property for any violation of this
Act or any regulation issued hereunder, and (2) the reasonable and
necessary costs incurred by any person in providing temporary care
for any fish, wildlife, or plant pending the disposition of any civil or
criminal proceeding alleging a violation of this Act with respect to
that fish, wildlife, or plant. The amount of the reward, if any, is to
be designated by the Secretary or the Secretary of the Treasury, as
appropriate. Any officer or employee of the United States or any
State or local government who furnishes information or renders
service in the performance of his official duties is ineligible for
payment under this subsection. Whenever the balance of sums
received under this section and section 6(d) of the Act of November
16, 1981 (16 U.S.C. 3375(d)), as penalties or fines, or from forfeitures
of property, exceed $500,000, the Secretary of the Treasury shall
deposit an amount equal to such excess balance in the cooperative
endangered species conservation fund established under section 6(i) of
this Act.

(e) Enforcement.-

(1) The provisions of this Act and any regulations or permits
issued pursuant thereto shall be enforced by the Secretary, the
Secretary of the Treasury, or the Secretary of the Department
in which the Coast Guard is operating, or all such Secretaries.
.Each such Secretary may utilize by agreement, with or without
reimbursement, the personnel, services, and facilities of any
other Federal agency or any State agency for purposes of
enforcing this Act.

(2) The judges of the district courts of the United States and
the United States magistrates may, within their respective
jurisdictions, upon proper oath or affirmation showing
probable cause, issue such warrants or other process as may be
required for enforcement of this Act and any regulation issued
thereunder.

Endangered Species Act of 1973

Sec. I I.- Penalties and Enforcement Page 63

(3) Any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the
Coast Guard is operating, to enforce this Act may detain for
inspection and inspect any package, crate, or other container,
including its contents, and all accompanying documents, upon
importation or exportation. Such person may make arrests
without a warrant for any violation of this Act if he has
reasonable grounds to believe that the person to be arrested is
committing the violation in his presence or view, and may
execute and serve any arrest warrant, search warrant, or other
warrant or civil or criminal process issued by any officer or
court of competent jurisdiction for enforcement of this Act.
Such person so authorized may search and seize, with or
without a warrant, as authorized by law. Any fish, wildlife,
property, or item so seized shall be held by any person
authorized by the Secretary, the Secretary of the Treasury, or
the Secretary of the Department in which the Coast Guard is
operating pending disposition of civil or criminal proceedings,
or the institution of an action in rem for forfeiture of such
fish, wildlife, property, or item pursuant to paragraph (4) of
this subsection; except that the Secretary may, in lieu of
holding such fish, wildlife, property, or item, permit the owner
or consignee to post a bond or other surety satisfactory to the
Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to
any such property, it shall be disposed of (other than by sale to
the general public) by the Secretary in such a manner,
consistent with the purposes of this Act, as the Secretary shall
by regulation prescribe.

(4)(A) All fish or wildlife or plants taken, possessed, sold,
purchased, offered for sale or purchase, transported,
delivered, received, carried, shipped, exported, or imported
contrary to the provisions of this Act, any regulation made
pursuant thereto, or any permit or certificate issued
hereunder shall be subject to forfeiture to the United
States.

(B) All guns, traps, nets, and other equipment, vessels,
vehicles, aircraft, and other means of transportation used
to aid the taking, possessing, selling, purchasing, offering
for sale or purchase, transporting, delivering, receiving,
carrying, shipping, exporting, or importing of any fish or
wildlife or plants in violation of this Act, any regulation
made pursuant thereto; or any permit or certificate issued
thereunder shall be subject to forfeiture to the United
States upon conviction of a criminal violation pursuant to
subsection (b)(1) of this section.

(5) All provisions of law relating to the seizure, forfeiture, and
condemnation of a vessel for violation of the customs laws, the

Endangered Species Act of 1973

Page 64 See. 11. Penalties and Enf orccmcnt

disposition of such vessel or the proceeds from the sale thereof,
and the remission or mitigation of such forfeiture, shall apply
to the seizures and forfeitures incurred, or alleged to have
been incurred, under the provisions of this Act, insofar as such
provisions of law are applicable and not inconsistent with the
provisions of this Act, except that all powers, rights, and
duties conferred or imposed by the customs laws upon any
officer or employee of the Treasury Department shall, for the
purposes of this Act, be exercised or performed by the
Secretary or by such persons as he may designate.

(6) The Attorney General of the United States may seek to
enjoin any person who is alleged to be in violation of any
provision of this Act or regulation issued under authority
thereof.

(f) Regulations.- The Secretary, the Secretary of the Treasury, and the
Secretary of the Department in which the Coast Guard is operating,
are authorized to promulgate such regulations as may be appropriate
to enforce this Act, and charge reasonable fees for expenses to the
Government connected with permits or certificates authorized by this
Act including processing applications and reasonable inspections, and
with the transfer, board, handling, or storage of fish or wildlife or
plants and evidentiary items seized and forfeited under this Act. All
such fees collected pursuant to this subsection shall be deposited in
the Treasury to the credit of the appropriation which is current and
chargeable for the cost of furnishing the services. Appropriated
funds may be expended pending reimbursement from parties in
interest.

(g) Citizen suits.-

(1) Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf--

(A) to enjoin any person, including the United States and
any other governmental instrumentality or agency (to the
extent permitted by the eleventh amendment to the
Constitution), who is ailegcd to be in violation of any
provision of this Act or regulation issued under the
authority thereof; or

(B) to compel the Secretary to apply, pursuant to section
6(g)(2)(B)(ii) of this Act, the prohibitions set forth in or
authorized pursuant to section 4(d) or 9(a)(1)(B) of this Act
with respect to the taking of any resident endangered
species or threatened species within any State; or

(C) against the Secretary where there is alleged a failure
of the Secretary to perform any act or duty under section
4 of this Act which is not discretionary with the Secretary.

Endangered Species Act of 1973

Sec. 11. Penalties and Enf orcemcnt Page 65

The district courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties, to
enforce any such provision or regulation, or to order the
Secretary to perform such act or duty, as the case may be. In
any civil suit commenced under subparagraph (B) the district
court shall compel the Secretary to apply the prohibition
sought if the court finds that the allegation that an emergency
exists is supported by substantial evidence.

(2)(A) No action may be commenced under subparagraph (])(A)
of this section--

(i) prior to sixty days after written notice of the
violation has been given to the Secretary, and to any
alleged violator of any such provision or regulation;

(ii) if the Secretary has commenced action to impose a
penalty pursuant to subsection (a) of this section; or

(iii) if the United States has commenced and is
diligently prosecuting a*criminal action in a court of
the United States or a State to redress a violation of any
such provision or regulation.

(B) No action may be commenced under subparagraph
(1)(B) of this section--

(i) prior to sixty days after written notice has been
given to the Secretary setting forth the reasons why an
emergency is thought to exist with respect to an
endangered species or a threatened species in the State
concerned; or

(ii) if the Secretary has commenced and is diligently
prosecuting action under section 6(g)(2)(B)(ii) of this
Act to determine whether any such emergency exists.

(C) No action may be commenced under subparagraph
(1)(C) of this section prior to sixty days after written
notice has been given to the Secretary; except that such
action may be brought immediately after such notification
in the case of an action under this section respecting an
emergency posing a significant risk to the well-being of
any species of fish or wildlife or plants.

(3)(A) Any suit under this subsection may be brought in the
judicial district in which the violation occurs.

(B) In any such suit under this subsection in which the
United States is not a party, the Attorney General, at the

Endangered Species Act of 1 973

Page 66 Scc, 11. Penalties and Enforcement

request of the Secretary, may intervene on behalf of the
United States as a matter of right.

(4) The court, in issuing any final order in any suit brought
pursuant to paragraph (1) of this subsection, may award costs
of litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such award
is appropriate.

(5) The injunctive relief provided by this subsection shall not
restrict any right which any person (or class or persons) may
have under any statute or common law to seek enforcement of
any standard or limitation or to seek any other relief
(including relief against the Secretary or a State agency).

(h) Coordination with other laws.- The Secretary of Agriculture and
the Secretary shall provide for appropriate coordination of the
administration of this Act with the administration of the animal
quarantine laws (21 U.S.C. 101-105, 111-135b, and 612-614) and section
306 of the Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or
any amendment made by this Act shall be construed as superseding or
limiting in any manner the functions of the Secretary of Agriculture
under any other law relating to prohibited or restricted importations
or possession of animals and other articles and no proceeding or
determination under this Act shall preclude any proceeding or be
considered determinative of any issue of fact or law in any
proceeding under any Act administered by the Secretary of
Agriculture. Nothing in this Act shall be construed as superseding or
limiting in any manner the functions and responsibilities of the
Secretary of the Treasury under the Tariff Act of 1930 (19 U.S.C. �
1202 et seq.), including, without limitation, section 527 of that Act (19
U.S.C. 1527), relating to the importation of wildlife taken, killed,
possessed, or exported to the United States in violation of the laws or
regulations of a foreign country.

Endangered Species Act of 1973

Sec. 12. Endangered Plants Page 67
Sec. 13. Conforming Amendments

ENDANGERED PLANTS

Sec. 12. The Secretary of the Smithsonian Institution, in conjunction with
other affected agencies, is authorized and directed to review (1) species of
plants which are now or may become endangered or threatened and (2)
methods of adequately conserving such species, and to report to Congress,
within one year after December 28, 1973, the results of such review
including recommendations for new legislation or the amendment of existing
legislation.

CONFORMING AMENDMENTS

Sec. 13. (a) Subsection 4(c) of the Act of October 15, 1966 (80 Stat. 928, 16
U.S.C. 668dd(c)), is further amended by revising the second sentence
thereof to read as follows: "With the exception of endangered species
and threatened species listed by the Secretary pursuant to section 4 of
the Endangered Species Act of 1973 in States wherein a cooperative
agreement does not exist pursuant to section 6(c) of-that Act, nothing
in this Act shall be construed to authorize the Secretary to control or
regulate hunting or fishing of resident fish and wildlife on lands not
within the system."

(b) Subsection 10(a) of the Migratory Bird Conservation Act (45 Stat.
1224, 16 U.S.C. 715i(a) and subsection 401(a) of the Act of June 15,
1935 (49 Stat. 383, 16 U.S.C. 715s(a)), are each amended by striking out
"threatened with extinction" and inserting in lieu thereof the
following: "listed pursuant to section 4 of the Endangered Species Act
of 1973 as endangered species or threatened species,".

(c) Section 7(a)(1) of the Land and Water Conservation Fund Act of
1965 (16 U.S.C. 4601-9(a)(1)) is amended by striking out:

"Threatened Svecics. - For any national area which may be
authorized for the preservation of species of fish or wildlife
that are threatened with extinction."

and inserting in lieu thereof the following:

"Endanp,ercd Sr)ecies and Threatened Species. - For lands,
waters, or interests therein, the acquisition of which is
authorized under section 5(a) of the Endangered Species Act of
1973, needed for the purpose of conserving endangered or
threatened species of fish or wildlife or plants."

(d) The first sentence of section 2 of the Act of September 28, 1962, as
amended (76 Stat. 653, 16 U.S.C. 460k-1), is amended to read as
follows:

"The Secretary is authorized to acquire areas of land, or
interests therein, which are suitable for-

Endangered Species Act of 1973

Page 68 Sec. 12. Endangered Plants
Sec. 13. Conforming Amendments

"(1) incidental fish and wildlife-oriented recreational
development,

"(2) the protection of natural resources,

"(3) the conservation of endangered species or threatened
species listed by the Secretary pursuant to section 4 of the
Endangered Species Act of 1973, or

"(4) carrying out two or more of the purposes set forth in
paragraphs (1) through (3) of this section, and are adjacent to,
or within, the said conservation areas, except that the
acquisition of any land or interest therein pursuant to this
section shall be accomplished only with such funds as may be
appropriated therefor by the Congress or donated for such
purposes, but such property shall not be acquired with funds
obtained from the sale of Federal migratory bird hunting
stamps."

(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407)
is amended -

(1) by striking out "Endangered Species Conservation Act of
1969" in section 3(l)(B) thereof and inserting in lieu thereof
the following: "Endangered Species Act of 1973%

(2) by striking out "pursuant to the Endangered Species Act of
1969" in section 101(a)(3)(B) thereof and inserting in lieu
thereof the following: "or threatened species pursuant to the
Endangered Species Act of 197Y.-

(3) by striking out "endangered under the Endangered Species
Act of 1969" in section 102(b)(3) thereof and inserting in lieu
thereof the following: "an endangered species or threatened
species pursuant to the Endangered Species Act of 1973"; and

(4) by striking out "of the Interior such revisions of the
Endangered Species List, authorized by the Endangered Species
Conservation Act of 1969," in section 202(a)(6) thereof and
inserting thereof the following: "such revisions of the
endangered species list and threatened species list published
pursuant to section 4(c)(1) of the Endangered Species Act of
1973".

(f) Section 2(l) of the Federal Environmental Pesticide Control Act of
1972 (Public Law 92-516) is amended by striking out the words "by the
Secretary of the Interior under Public Law 91-135" and inserting in
lieu thereof the words "or threatened by the Secretary pursuant to the
Endangered Species Act of 1973".

Endangered Species Act of 1973

Sec. 14. Repealer Page 69
Sec. '15'. Authorization of Appropriations

REPEALER

Sec. 14. The Endangered Species Conservation Act of 1969 (sections I through
3 of the Act of October 15, 1966, and sections I through 6 of the Act of
December 5, 1969; 16 U.S.C. 668aa-668cc-6), is repealed.

AUTHORIZATION OF APPROPRIATIONS

Sec. 15. (a) In general - Except as provided in subsections (b), (c), and (d) of
this section, there are authorized to be appropriated-

(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000
for fiscal year 1989, $38,000,000 for fiscal year 1990,
$39,500,000 for fiscal year 1991, and $41,500,000 for fiscal
year 1992 to enable the Department of the Interior to carry out
such functions and responsibilities as it may have been given
under this Act;

(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 for
each of fiscal years 1989 and 1990, and $6,750,000 for each of
fiscal years 1991 and 1992 to enable the Department of
Commerce to carry out such functions and responsibilities as it
may have been given under this Act; and

(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for
each of fiscal years 1989 and 1990, and $2,600,000 for each of
fiscal years 1991 and 1992, to enable the Department of
Agriculture to carry out its functions and responsibilities with
respect to the enforcement of this Act and the Convention
which pertain to the importation or exportation of plants.

(b) Exemptions from Act.- There are authorized to be appropriated to
the Secretary to assist him and the Endangered Species Committee in
carrying out their functions under sections 7(c), (g), and (h) of this
Act not to exceed $600,000 for each of fiscal years 1988, 1989, 1990,
1991, and 1992.

(c) Convention imylementation.- There are authorized to be
appropriated to the Department of the Interior for purposes of
carrying out section 8a(e) of this Act not to exceed $400,000 for each
of fiscal years 1988, 1989, and 1990, and $500,000 for each of fiscal
years 1991 and 1992, and such sums shall remain available until
expended.

Endangered Species Act of 1973

Page 70 Sec. 16. Effective Date
Sec. 17. Construction with Marine Mammal Protection Act of 1972
Sec. 18. Annual Cost Analysis by the Fish and Wildlife Service

EFFECTIVE DATE

Sec. 16. This Act shall take effect on the date of its enactment.

CONSTRUCTION WITH MARINE MAMMAL PROTECTION ACT OF 1972

Sec. 17. Except as otherwise provided in this Act, no provision of this Act
shall take precedence over any more restrictive conflicting provision of the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 ct seq.).

ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

Sec. 18. On or before January 15, 1990, and each January 15 thereafter, the
Secretary of the Interior, acting through the Fish and Wildlife Service, shall
submit to the Congress an annual report covering the preceding fiscal year
which shall contain-

(1) an accounting on a species by species basis of all reasonably
identifiable Federal expenditures made primarily for the
conservation of endangered or threatened species pursuant to
this Act; and

(2) an accounting on a species by species basis of all reasonably
identifiable expenditures m- ade primarily for the conservation
of endangered or threatened species pursuant to this Act by
States receiving grants under section 6 of this Act.

Endangered Species Act of 1973

Sea Turtle Conservation Page 71

Provision of Public Law 100-478 which did not amend the
Endangered Species Act but is relevant to the
National Marine Fisheries Service

SEA TURTLE CONSERVATION

(a) Delay of Rcgulations.--Thc Secretary of Commerce shall delay the
effective date of regulations promulgated on June 29, 1987, relating to
sea turtle conservation, until May 1, 1990, in inshore areas, and until
May 1, 1989, in offshore areas, with the exception that regulations
already in effect in the Canaveral area of Florida shall remain in
effect. The regulations for the inshore area shall go into effect
beginning May 1, 1990, unless the Secretary determines that other
conservation measures are proving equally effective in reducing sea
turtle mortality by shrimp trawling. If the Secretary makes such a
determination, the Secretary shall modify the regulations accordingly.

(b) Study

(1) In izencral.--The Secretary of Commerce shall co ntract for
an independent review of scientific information pertaining to
the conservation of each of the relevant species of sea turtles
to be conducted by the National Academy of Sciences with
such individuals not employed by Federal or State government
other than employees of State universities and having
0 scientific expertise and special knowledge of sea turtles and
activities that may affect adversely sea turtles.

(2) Purt)oses of review.--The purposes of such independent
review are--

(i) to further long-term conservation of each of the
relevant species of sea turtles which occur in the waters
of the United States;

(ii) to further knowledge of activities performed in the
waters and on the shores of the United States, Mexico
and other nations which adversely affect each of the
relevant species of sea turtles,

(iii) to determine the relative impact which each of the
activities found to be having an adverse effect on each
of the relevant species of turtles has upon the status of
each such species;

(iv) to assist in identifying appropriate conservation
and recovery measures to address each of the activities
which affect adversely each of the relevant species of
sea turtles;

Endangered Species Act of 1973

Page 72 Sea Turtle Conservation

(v) to assist in identifying appropriate reproductive
measures which will aid in the conservation of each of
the relevant species of sea turtles;

(vi) in particular to assist in determining whether more
or less stringent measures to reduce the drowning of sea
turtles in shrimp nets arc necessary and advisable to
provide for the conservation of each of the relevant
species of sea turtles and whether such measures should
be applicable to inshore and offshore areas as well as to
various geographical locations; and

(vii) to furnish information and other forms of
assistance to the Secretary for his use in reviewing the
status of each of the relevant species of sea turtles and
in carrying out other responsibilities contained under
this Act and law.

(3) Scooe of rcview.--Thc terms and outlines of such
independent review shall be determined by a panel to be
appointed by the President of the National Academy of
Sciences, except that such review shall include, at a minimum,
the following information:

(i) estimates of the status, size, age structure and, where
possible, sex structure of each of the relevant species of
sea turtles;

(ii) the distribution and concentration, in terms of United
States geographic zones, of each of the relevant species of
sea turtles;

(iii) the distribution and concentration of each of the
relevant species of sea turtles, in the waters of the United
States, Mexico and other nations during the developmental,
migratory and reproductive phases of their lives;

(iv) identification of all causes of mortality, in the waters
and on the shores of the United States, Mexico and other
nations for each of the relevant species of sea turtles;

(v) estimates of the magnitude and significance of each of
the identified causes of turtle mortality;

(vi) estimates of the magnitude and significance of present
or needed hcad-start or other programs designed to
increase the production and population size of each of the
relevant species of sea turtles;

Endangered Species Act of 1973

Sea Turtle Conservation Page 73

(vii) description of the measures taken by Mexico and
other nations to conserve each of the relevant species of
sea turtles in their waters and on their shores, along with a
description of the efforts to enforce these measures and an
assessment of the success of these measures;

(viii) the identification of nesting and/or reproductive
locations for each of the relevant species of sea turtles in
the waters and on the shores of the United States, Mexico
and other nations and measures that should beundertaken
at each location as welfas a description of worldwide
efforts to protect such species of turtles.

(4) Cornifletion and submission of review.--Such independent
review shall be completed after an opportunity is provided for
individuals with scientific and special knowledge of sea turtles
and activities that may affect adversely sea turtles to present
relevant information to the panel. It shall then be submitted
by the Secretary, together with recommendations by the
Secretary in connection therewith, to the Committee on
Environment and Public Works of the United States Senate and
the Committee on Merchant Marine and Fisheries of the
United States House of Representatives on or before April 1,
1989. In the event the independent review cannot be completed
by April 1, 1989, then the panel shall give priority to
completing the independent review as it applies to the Kemp's
ridley sea turtle and submitting the same to the Secretary by
that date, or as expeditiously as possible, and thereafter shall
complete as expeditiously as possible the remaining work of
the independent review.

(5) Review of status.--Aftcr receipt of any portion of the
independent eview from the panel, the Secretary shall review
the status of each of the relevant species of sea turtles.

(6) Recommendations of secretary.--The Secretary, after receipt
of any portion of the independent review from the panel, shall
consider, along with the requirements of existing law, the
following before making recommendations:

(i) reports from the panel conducting the independent
review;

(ii) written views and information of interested parties;

(iii) the review of the status of each of the relevant
species of sea turtles;

(iv) the relationship of any more or less stringent
measures to reduce the drowning of each of the relevant

Endangered Species Act of 1973

Page 74 Sea Turtle Conservation

species of sea turtles in shrimp nets to the overall
conservation plan for each such species;

(v) whether increased reproductive or other efforts in
behalf of each of the relevant species of sea turtles
would make no longer necessary and advisable present
or proposed conservation regulations regarding
shrimping nets;

(vi) whether certain geographical areas such as, but- not
limited to, inshore areas and offshore areas, should have
more stringent, less stringent or different measures
imposed upon them in order to reduce the drowning of
each of the relevant species of sea turtles in shrimp
nets;

(vii) other reliable information regarding the
relationship between each of the relevant species of sea
turtles and shrimp fishing and other activities in the
waters of the United States, Mexico and other nations
of the world; and

(viii) the need for improved cooperation among
departments, agencies and entities of Federal and State
government, the need for improved cooperation with
other nations and the need for treaties or international
agreements on a bilateral or multilateral basis.

(7) Modification of rcpulations.--For good cause, the Secretary
may modify the regulations promulgated on June 29, 1987,
relating to sea turtle conservation, in whole or part, as the
Secretary deems advisable.

(8) Secretary and edLicational cfforts.--The Secretary shall
undertake an educational effort among shrimp fishermen,
either directly or by contract with competent persons or
entities, to instruct fishermen in the usage of the turtle
excluder device or any other device which might be imposed
upon such fishermen;

(9) Sea turtle goordiLiation --In order to coordinate the
protection, conservation, reproductive, educational and
recovery efforts with respect to each of the relevant species of
sea turtles in accordance with existing law, the National
Marine Fisheries Service shall designate an individual as Sea
Turtle Coordinator to establish and carry out an effective,
long-term sea turtle recovery program.

(10) Purpose of this sect ion.--Sect ion 8 is intended to assist the
Secretary in making recommendations and in carrying out his
duties under law, including the Endangered Species Act (16

Endangered Species Act of 1973

- 'Sea Turtle Conservation Page 75

U.S.C. 1531 et seq.), and nothing herein affects, modifies or
alters the Secretary's powers or responsibilities to review,
determine or redetermine, at any time, his obligations under
law.

(11) Def initions.-For the purposes of this section, the terms:

(i) "relevant species of sea turtles" means the Kemp's
ridley sea turtle, United States breeding populations of
the loggerhead, the leatherback, and the green sea
turtle, and other significant breeding populations of the
loggerhead, the leatherback and the green sea turtle;

(ii) "status" means whether a given species of turtle is
endangered, threatened or recovered;

(iii) "size" means the size of a given species of sea turtle;
and

(iv) "age and sex structure" shall be considered to mean
the distribution of juveniles, subadults and adults
within a given species or population of sea turtles, and
males and females within a given species or population
of sea turtles.

(c) Authorization of Avt)rol)riations.--Thcre arc authorized to be
appropriated to the Department of Commerce $1,500,000 through
fiscal year 1989 to carry out this section.

Endangered Species Act of 1973

24.
Marine Mammal Protection- Act

0
Marine Mammal Protection Act of 1972

As Amended Through 1988

Marine Mammal Protection Act of 1972

As Amended Through 1988

An Act to protect marine mammals; to establish a Marine Mam-
mal Conunission; and for other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America assembled, That:

This Act,,%kitb the following table of contents, may be cited as the
"Marine Mammal Protection Act of 1972".

This copy of the Marine Mammal Protection Act is provided for
information only. Before relying on any portion of the Act as it
appears here, reference should be made to the official report of
the Act in the United States Code.

TABLE OF CONTENTS

Sec. 2. Findings and declaration of policy. I
Sec. 3. Definitions. 2
Sec. 4. Effective date. 5

Title I - Conservation and Protection of Marine Mammals

Sec. 101. Moratorium and exceptions. 6
Sec. 102. Prohibitions. 13
Sec. 103. Regulations on taking of marine mammals. 16
Sec. 104. Permits. 18
Sec. 105. Penalties. 28
Sec. 106. Vessel fine, cargo forfeiture, and rewards. 29
Sec. 107. Enforcement. 30
Sec. 108. International program. 32
Sec. 109. Federal cooperation with States. 35
Sec. 110. Marine mammal research grants. 44
Sec. 111. Commercial fisheries gear development. 46
Sec. 112. Regulations and administration. 47
Sec. 113. App. to other treaties and conventions. 48
Sec. 114. Interim exemption for commercial fisheries. 49
Sec. 115. Status review; conservation plans. 62
Sec. 116. Authorization of appropriations. 65

Title H - Marine Mammal Commission

Sec. 201. Establishment of Commission. 66
Sec. 202. Duties of Commission. 67
Sec. 203. Committee of Scientific Advisors. 69
Sec. 204. Commission reports. 70
Sec. 205. Coordination with other Federal agencies. 70
Sec. 206. Administration of Commission. 70
Sec. 207. Authorization of appropriations. 71

Study on Mortality of Atlantic Dolphin. 72

LThe Act (PL 92-522), ap roved October 21 1972, has been amended also bv PL 93-205 (the
Endangered Species Actf December 28 103- PL 94-265 (the Magnuson Fisherics Conser-
vation and Management Act), April 13,1976- @L 95-136, October 18, 1977- PL 95-316, Julv
10, 1978; PL 97-58, October 9, 1981; PL 07-389 @the Fisheries Amen&@ents of 19821,
December 29,1982; PL98-364, July 17,1984; PL99-6 9,Novembcr 14,1986; and PL 100-711,
November 23,1988.)

FINDINGS AND DECLARATION OF POLICY

See. 2. The Congress finds that -

(1) certain species and population stocks of marine mammals are,
or may be, in danger of extinction or depletion as a result of man's
activities;

(2) such species and population stocks should not be permitted
to diminish beyond the point at which they cease to be a sig-
nificant functioning element in the ecosystem of which they are a
part, and, consistent with this major objective, they should not be
permitted to diminish below their optimum sustainable popula-
tion. Further measures should be inunediately taken to replenish
any species or population stock which has already diminished
below that population. In particular, efforts should be made to
protect the rookeries, mating grounds, and areas of similar sig-
nificance for each species of marine mammal from the adverse
effect of man's actions;

(3) there is inadequate knowledge of the ecology and population
dynamics of such marine mammals and of the factors which bear
upon their ability to reproduce themselves successfully;

(4) negotiations should be undertaken immediately to encourage
the development of international arrangements for research on,
and conservation of, all marine mammals;

(5) marine mammals and marine mammal products either

(A) move in interstate commerce, or

(B) affect the balance of marine ecosystems in a manner which
is important to other animals and animal products which move
in interstate commerce,

and that the protection and conservation of marine mammals is
therefore necessary to insure the continuing availability of those
products which move in interstate commerce; and

(6) marine mammals have proven themselves to be resources of
great international significance, esthetic and recreational as well
as economic, and it is the sense of the Congress that they should
be protected and encouraged to develop to the greatest extent

Marine Mammal Protection Act

DEFINITIONS

feasible commensurate with sound policies of resource manage-
ment and that the primary objective of their management should
be to maintain-the health and stability of the marine ecosystem.
Whenever consistent with this primary objective, it should be the
goal to obtain an optimum sustainable population keeping in
mind the carrying capacity of the habitat.

(Pub. L. 92-522, 2, Oct. 21,1972,86 Stat. 1027; as amended Pub. L 97-58, 1(b)(1), Oct.
9,1981,95 Stat. 979. Codified at 16 U.S.C. 1361.)

(Short Title of 1988 Amendments. Pub.L. 100-711, 1, Nov. 2, 1988, 102 Stat. 4755,
provided: "That this Act may be cited as the'Marine Mammal Protection Act Amend-
ments of 1988'.")

DEFINMONS

See. 3. For the purposes of this Act -

(1) The term "depletion" or "depleted" means any case in which

(A) the Secretary, after consultation with the Marine Mammal
Commission and the Committee of Scientific Advisors on
Marine Mammals established under title II of this Act, deter-
mines that a species or population stock is below its optimum
sustainable population;

(B) a State, to which authority for the conservation and
management of a species or population stock is transferred
under section 109 of this title, determines that such species or
stock is below its optimum sustainable population; or

(C) a species or population stock is listed as an endangered
species or a threatened species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).

(2)The terms "conservation" and "management" mean the collec-
tion and application of biological information for the purposes of
increasing and maintaining the number of animals within species
and populations of marine mammals at their optimum sus-
tainable population. Such terms include the entire scope of
activities that constitute a modern scientific resource program,
including, but not limited to, research, census, law enforcement,
and habitat acquisition and improvement. Also included within
these terms, when and where appropriate, is the periodic or total
protection of species or populations as well as regulated taking.

Marine Mammal Protection Act
2

DEFINITIONS

(3) Ile term "district court of the United States" includes the
District Court of Guam, District Court of the Virgin Islands,
District Court of Puerto Rico, District Court of the Canal Zone,
and, in the case of American Samoa and the Trust Territory of
the Pacific Islands, the District Court of the United States for the
District of Hawaii.

(4) The term "humane" in the context of the taking of a marine
mammal means that method of taking which involves the least
possible degree of pain and suffering practicable to the mammal
involved.

(5) The term "marine mammal" means any mammal which -

(A) is morphologically adapted to the marine environment
(including sea otters and members of the orders Sirenia, Pin-
nipedia and Cetacea), or

(B) primarily inhabits the marine environment (such as the
polar bear); and, for the purposes of this Act, includes any part
of any such marine marnmal, including its raw, dressed, or dyed
fur or skin.

(6) The term "marine mammal product" means any item of
merchandise which consists, or is composed in whole or in part,
of any marine mammal.

(7) The term "moratorium" means a complete cessation of the
taking of marine mammals and a complete ban on the importa-
tion into the United States of marine mammals and marine
mammal products, except as provided in this Act.

(8) The term "optimum sustainable population" means, with
respect to any population stock, the number of animals which will
result in the maximum productivity of the population or the
species, keeping in mind the carrying capacity of the habitat and
the health of the ecosystem of which they form a constituent
element.

(9) The term "person" includes -

(A) any private person or entity, and

Marine Mammal Protection Act
3

DEFINITIONS

(B) any officer, employee, agent, department, or instrumen-
tality of the Federal Government, of any State or political
subdivision thereof, or of any foreign government.

(10) The term "population stock" or "stock" means a group of
marine mammals of the same species or smaller taxa in a common
spatial arrangement, that interbreed when mature.

(11) The term "Secretary'means -

(A) the Secretary of the department in which the National
Oceanic and Atmospheric Administration is operating, as to
all responsibility, authority, funding, and duties under this Act
with respect to members of the order Cetacea and members,
other than walruses, of the order Pinnipedia, and

(B) the Secretary of the Interior as to all responsibility,
authority, funding, and duties under this Act with respect to all
other marine mammals covered by this Act.

(12) The term "take" means to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal.

(13) The term "United States" includes the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands of the United States, American Samoa, Guam, and
Northern Mariana Islands.

(14) The term "waters under the jurisdiction of the United
States" means -

(A) the territorial sea of the United States, and

(B) the waters included within a zone, contiguous to the ter-
ritorial sea of the United States, of which the inner boundary
is a line coterminous with the seaward boundary of each
coastal State, and the outer boundary is a line drawn in such a
manner that each point on it is 200 nautical miles from the
baseline from which the territorial sea is measured.

(Pub. L. 92-522, 3, Oct. 21,1972,86 Stat. 1028; Pub. L. 93-205, 13(e)(1), Dec. 28,1973,
87 Stat. 903; Pub. L. 94-265, title IV, 404(a), Apr. 13, 1976, 90 Stat. 360; Pub. L. 97-58,
1(a), (b)(2), Oct. 9,1981,95 Stat. 979. Codified at 16 U.S.C. 1362.)

Marine Mammal Protection Act
4

EFFECTIVE DATE

Sec 4. The provisions of the Act shall take effect upon the expiration of
the sixty-day period following the date of its enactment.

(Pub. L. 92-522, 4, Oct. 21,1972,86 Stat. 1029. Codified in a note to 16 U.S.C. 1361. The
original date of enactment of the 1972 Act was Oct. 21, 1972.)

Marine Mammal Protection Act
5

MORATORIUM AND EXCEPTIONS

TITLE I - CONSERVATION AND PROTECTION OF
MARINENLAMMALS

MORATORIUM AND EXCEPTIONS

Sec. 101. (a) Impositione exceptions - There shall be a moratorium on
the taking and importation of marine mammals and marine mammal
products, commencing on the effective date of this Act, during which
time no permit may be issued for the taking of any marine mammal and
no marine manunal or marine mammal product may be imported into
the United States except in the following cases:

(1) Consistent with the provisions of section 104 of this title,
permits may be issued by the Secretary for taking and importation
for purposes of scientific research, public display, or enhancing
the survival or recovery of a species or stock if -

(A) the taking proposed in the application for any such permit,
or

(B) the importation proposed to be made,

is first reviewed by the Marine Mammal Commission and the
Conunittee of Scientific Advisors on Marine Mammals estab-
lished under title II of this Act. T"he Commission and Committee
shall recommend any proposed taking or importation which is
consistent with the purposes and policies of section 2 of this title.
The Secretary shall, if he grants approval for importation, issue
to the importer concerned a certificate to that effect which shall
be in such form as the Secretary of the Treasury prescribes and
such importation may be made upon presentation of the certifi-
cate to the customs officer concerned.

(2) Marine mammals may be taken incidentally in the course of
commercial fishing operations and permits may be issued there-
for under section 104 of this title subject to regulations prescribed
by the Secretary in accordance with section 103 of this title. In
any event it shall be the immediate goal that the incidental kill or
incidental serious injury of marine mammals permitted in the

Marine Mammal Protection Act
6

MORATORIUM AND EXCEPTIONS

course of commercial fishing operations be reduced to insig-
nificant levels approaching a zero mortality and serious injury
rate; provided that this goal shall be satisfied in the case of the
incidental taking of marine mammals in the course of purse seine
fishing for yellowfin tuna by a continuation of the application of
the best marine mammal safety techniques and equipment that
are economically and technologically practicable. The Secretary
of the Treasury shall ban the importation of commercial fish or
products from fish which have been caught with commercial
fishing technology which results in the incidental kill or incidental
serious injury of ocean mammals in excess of United States
standards. For purposes of applying the preceding sentence, the
Secretary -

(A) shall insist on reasonable proof from the government of
any nation from which fish or fish products will be exported to
the United States of the effects on ocean mammals of the
commercial fishing technology in use for such fish or fish
products exported from such nation to the United States;

(B) in the case of yellowfin tuna harvested with purse seines in
the eastern tropical Pacific Ocean, and products therefrom, to
be exported to the United States, shall require that the govern-
ment of the exporting nation provide documentary evidence
tba-, -

(i) the government of the harvesting nation has
adopted a regulatory program governing the inciden-
tal taking of marine mammals in the course of such
harvesting that is comparable to that of the United
States; and

(ii) the average rate of that incidental taking by the
vessels of the harvesting nation is comparable to the
average rate of incidental taking of marine mammals
by United States vessels in the course of such harvest-
ing,

except that the Secretary shall not find that the regulatory
program, or the average rate of incidental taking by vessels, of
a harvesting nation is comparable to that of the United States
for purposes of clause (i) or (ii) of this paragraph unless -

(1) the regulatory program of the harvesting
nation includes, by no later than the begin-
0 ning of the 1990 fishing season, such

Marine Mammal Protection Act
7

MORATORIUM AND EXCEPTIONS

prohibitions against encircling pure schools
of species of marine mammals, conducting
sundown sets, and other activities as are
made applicable to United States vessels;

(H) the average rate of the incidental taking
by vessels of the harvesting nation is no
more than 2.0 times that of United States
vessels during the same period by the end
of the 1989 fishing season and no more than
1.25 tirries that of United States vessels
during the same period by the end of the
1990 fishing season and thereafter;

(111) the total number of eastern spinner
dolphin (Stenella longirostris) incidentally
taken by vessels of the harvesting nation
during the 1989 and subsequent fishing
seasons does not exceed 15 percent of the
total number of all marine mammals in-
cidentally taken by such vessels in such year
and the total number of coastal spotted
dolphin (Stenella attenuata) incidentally
taken by such vessels in such seasons does
not exceed 2 percent of the total number of
all marine mammals incidentally taken by
such vessels in such year;

(IV) the rate of incidental taking of marine
mammals by the vessels of the harvesting
nation during the 1989 and subsequent fish-
ing seasons is monitored by the porpoise
mortality observer program of the Inter-
American Tropical Tuna Commission or an
equivalent international program in which
the United States participates and is based
upon observer coverage that is equal to that
achieved for United States vessels during
the same period, except that the Secretary
may approve an alternative observer pro-
gram if the Secretary determines, no less
than sixty days after publication in the
Federal Register of the Secretary's
proposal and reasons therefor, that such an
alternative observer program will provide
sufficiently reliable documentary evidence

Marine Manurial Protection Act
8

MORATORIUM AND EXCEPTIONS

of the average rate of incidental taking by a
harvesting nation; and

(V) the harvesting nation complies with all
reasonable requests by the Secretary for
cooperation in carrying out the scientific
research program required by section
104(h)(3) of this title;

(C) shall require the government of any intermediary nation
from which yellowfin tuna or tuna products will be exported to
the United States to certify and provide reasonable proof that
it has acted to prohibit the importation of such tuna and tuna
products from any nation from which direct export to the
United States of such tuna and tuna products is banned under
this section within sixty days folloAing the effective date of
such ban on importation to the United States; and

(D) shall, six months after importation of yellowfin tuna or
tuna products has been banned under this section, certify such
fact to the President, which certification shall be deemed to be
a certification for the purposes of section 8(a) of the
Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as
long as such ban is in effect.

(3)(A) The Secretary, on the basis of the best scientific evidence
available and in consultation with the Marine Mammal Com-
mission, is authorized and directed, from time to time, having
due regard to the distribution, abundance, breeding habits,
and times and lines of migratory movements of such marine
mammals, to determine when, to what extent, if at all, and by
what means, it is compatible with this Act to waive the require-
ments of this section so as to allow taking, or importing of any
marine mammal, or any marine mammal product, and to adopt
suitable regulations, issue permits, and make determinations
in accordance with sections 102, 103, 104, and 111 of this title
permitting and governing such taking and importing, in ac-
cordance with such determinations: Provided, however, TIIat
the Secretary, in making such determinations must be assured
that the taking of such marine mammal is in accord with sound
principles of resource protection and conservation as provided
in the purposes and policies of this Act: Provided, further,
however, That no marine mammal or no marine mammal
product may be imported into the United States unless the
Secretary certifies that the program for taking marine mam-
mals in the country of origin is consistent with the provisions

Marine Mammal Protection Act
9

MORATORIUM AND EXCEPTIONS

and policies of this Act. Products of nations not so certified
may not be imported into the United States for any purpose,
including processing for exportation.

(B) Except for scientific research purposes or enhancing the
survival or recovery of a species or stock as provided for in
paragraph (1) of this subsection, during the moratorium no
permit may be issued for the taking of any marine mammal
which has been designated by the Secretary as depleted, and
no importation may be made of any such mammal.

(4)(A) During any period of five consecutive years, the Secretary
shall allow the incidental, but not the intentional, taking, by
citizens of the United States while engaging in commercial
fishing operations, of small numbers of marine mammals of a
species or population stock that is not depleted if the
Secretary, after notice and opportunity for public comment -

(i) finds that the total of such taking during such five-
year period will have a negligible impact on such
species or stock; and

(ii) provides guidelines pertaining to the estab-
lishment of a cooperative system among the fishermen
involved for the monitoring of such taking.

(B) The Secretary shall withdraw, or suspend for a time cer-
tain, the permission to take marine mammals under sub-
paragraph (A) if the Secretary finds, after notice and
opportunity for public comment, that -

(i) the taking allowed under subparagraph (A) is
having more than a negligible impact on the species or
stock concerned; or

(ii) the policies, purposes and goals of this Act would
be better served through the application of this title
without regard to this subsection.

Sections 103 and 104 of this title shall not apply to the taking of
marine mammals under the authority of this paragraph.

(5)(A) Upon request therefor by citizens of the United States who
engage in a specified activity (other than commercial fishing)
within a specified geographical region, the Secretary shall
allow, during periods of not more than five consecutive years

Marine Mammal Protection Act
10

MORATORIUM AND EXCEPTIONS

each, the incidental, but not intentional, taking by citizens
while engaging in that activity within that region of small
numbers of marine mammals of a species or population stock
if the Secretary, after notice (in the Federal Register and in
newspapers of general circulation, and through appropriate
electronic media, in the coastal areas that may be affected by
such activity) and opportunity for public comment -

(i) finds that the total of such taking during each
five-year (or less) period concerned will have a negli-
gible impact on such species or stock and will not have
an unmitigable adverse impact on the availability of
such species or stock for taking for subsistence uses
pursuant to subsection (b) of this section or section
109(f) of this title or, in the case of a cooperative
agreement under both this Act and the Whaling Con-
vention Act of 1949 (16 U.S.C. 916 et seq.), pursuant
to section 112(c) of this title; and

(ii) prescribes regulations setting forth -

(I) permissible methods of taking pursuant
to such activity, and other means of effect-
ing the least practicable adverse impact on
such species or stock and its habitat, paying
particular attention to rookeries, mating
grounds, and area of similar significance,
and on the availability of such species or
stock for subsistence uses; and

(11) requirements pertaining to the
monitoring and reporting of such taking.

(B) Ile Secretary shall withdraw, or suspend for a time certain
(either on an individual or class basis, as appropriate) the
permission to take marine mammals under subparagraph (A)
pursuant to a specified activity within a specified geographical
region if the Secretary finds, after notice and opportunity for
public comment (as required under subparagraph (A) unless
subparagraph (C)(i) applies), that -

(i) the regulations prescribed under subparagraph (A)
regarding methods of taking, monitoring, or reporting
are not being substantially complied with by a person
0 engaging in such activity; or

Marine Mammal Protection Act
11

MORATORIUM AND EXCEPTIONS

(ii) the taking allowed under subparagraph (A) pur-
suant to one or more activities within one or more
regions is having, or may have, more than a negligible
impact on the species or stock concerned.

(C)(i) The requirement for notice and opportunity for public
comment in subparagraph (B) shall not apply in the
case of a suspension of permission to take if the
Secretary determines that an emergency exists which
poses a significant risk to the well-being of the species
or stock concerned.

(ii) Sections 103 and 104 of this title shall not apply to
the taking of marine mammals under the authority of
this paragraph.

(b) Exemptions for Alaskan natives - Except as provided in section 109
of this title, the provisions of this Act shall not apply with respect to the
taking of any marine mammal by any Indian, Aleut, or Eskimo who
resides in Alaska and who dwells on the coast of the North Pacific Ocean
or the Arctic Ocean if such taking -

(1) is for subsistence purposes; or

(2) is done for purposes of creating and selling authentic native
articles of handicrafts and clothing: Provided, That only authentic
native articles of handicrafts and clothing may be sold in interstate
commerce: And provided further, That any edible portion of
marine mammals may be sold in native villages and towns in
Alaska Or for native consumption. For the purposes of this
subsection, the term "authentic native articles of handicrafts and
clothing" means items composed wholly or in some significant
respect of natural materials, and which are produced, decorated,
or fashioned in the exercise of traditional native handicrafts
without the use of pantographs, multiple carvers, or other mass
copying devices. Traditional native handicrafts include, but are
not limited to weaving, carving, stitching, sewing, lacing, beading,
drawing and painting; and

(3) in each case, is not accomplished in a wasteful manner.

Notwithstanding the preceding provisions of this subsection, when,
under this Act, the Secretary determines any species or stock of marine
mammal subject to taking by Indians, Aleuts, or Eskimos to be depleted,
be may prescribe regulations upon the taking of such marine mammals
by any Indian, Aleut, or Eskimo described in this subsection. Such

Marine Marnmad Protection Act
12

PROHIBITIONS

regulations may be established with reference to species or stocks,
geographical description of the area included, the season for taking, or
any other factors relAted to the reason for establishing such regulations
and consistent with the purposes of this Act. Such regulations shall be
prescribed after notice and hearing required by section 103 of this title
and shall be removed as soon as the Secretary determines that the need
for their imposition has disappeared.

(c) Hardship exemption - In order to minimize undue economic hardship
to persons subject to this Act, other than those engaged in commercial
fishing operations referred to in subsection (a)(2) of this section, the
Secretary, upon any such person filing an application with him and upon
filing such information as the Secretary may require showing, to his
satisfaction, such hardship, may exempt such person or class of persons
from provisions of this Act for no more than one year from October 21,
1972, as he determines to be appropriate.

(Pub. L. 92-522, title 1, 101, Oct. 21,1972,86 Stat. 1029; Pub. L. 93-205, 13(e)(2), Dec.
28,1973,87 Stat. 903; As amended Pub. L. 97-58, 2, Oct. 9,1981,95 Stat. 979; As amended
Pub. L. 98-364, title 1, 101, July 17, 1984,98 Stat. 440; As amended Pub.L. 99-659, Title
IV, 411(a), Nov. 14,1986, 100 Stat. 3741; Pub.L. 100-711, 4(a), 5(c), (e)(1), Nov. 23,
198.8, 102 Stat. 4765, 4766, 4769, 4771. Codified at 16 U.S.C. 1371.)

(1988 Amendment. Subsec. (a)(1). Pub.L. 100-711, 5(c), substituted "Consistentwith
the provisions of section 104 of this title, permits" for "Permits", "research, public" for
?research and for public", and added ", or enhancing the survival or recovery of a species
or stock" following "public display".

Subsec. (a)(2). Pub.L. 100-711, 4(a), in subpar. (A) struck out "and" following "the
United States;', and in subpar. (B) added provisions which related to firidingby Secretary
that regulatory program, or average rate of incidental taking by vessels, of harvesting
nation is comparable to that of United States, and added subpars. (C) and (D).

Subsec. (a)(3)(B). Pub.L. 100-711, 5(e)(1), added"or enhancing the survival or recovery
of a species or stock" following "scientific research purposes".)

PROHMMONS

Sec. 102. (a) Taking - Except as provided in sections 101, 103, 104, 109,
111, 113, and 114 of this title, it is unlawful -

(1) for any person subject to the jurisdiction of the United States
or any vessel or other conveyance subject to the jurisdiction of the
United States to take any marine mammal on the high seas;

(2) except as expressly provided for by an international treaty,
convention, or agreement to which the United States is a party

Marine Mammal Protection Act
13

PROHIBITIONS

and which was entered into before the effective date of this title
or by any statute implementing any such treaty, convention, or
agreement -

(A) for any person or vessel or other conveyance to take any
marine mammal in waters or on lands under the jurisdiction
of the United States; or

(B) for any person to use any poM harbor, or other place under
the jurisdiction of the United States for any purpose in any way
connected with the taking or importation of marine mammals
or marine mammal products; and

(3) for any person, with respect to any marine mammal taken in
violation of this title to possess that mammal or any product from
that mammal;

(4) for any person to transport, purchase, sell, or offer to purchase
or sell any marine mammal or marine mammal product; and

(5) for any person to use, in a commercial fishery, any means or
methods of fishing in contravention of any regulations or limita-
tions, issued by the Secretary for that fishery to achieve the
purposes of this Act.

(b) Importation of pregnant or nursing mammalso del2letgd s.
stock: inhumane ta" - Except pursuant to a permit for scientific
research, or for enhancing the survival or recovery of a species or stock,
issued under section 104(c) of this title, it is unlawful to import into the
United States any marine mammal if such mammal was -

(1) pregnant at the time of taking;

(2) nursing at the time of taking, or less than eight months old,
whichever occurs later;

(3) taken from a species or population stock which the Secretary
has, by regulation published in the Federal Register, designated
as a depleted species or stock; or

(4) taken in a manner deemed inhumane by the Secretary.

Notwithstanding the provisions of paragraphs (1) and (2), the Secretary
may issue a permit for the importation of a marine mammal, if the
Secretary determines that such importation is necessary for the protec-
tion or welfare of the animal.

Marine Mammal Protection Act
14

PROHIBITIONS

(1) Any marine mammal which was -

(A) taken in violation of this title; or

(B) taken in another country in violation of the law of that
country.

(2) Any marine mammal product if -

(A) the importation into the United States of the marine
mammal from which such product is made is unlawful under
paragraph (1) of this subsection; or

(B) the sale in commerce of such product in the country of
origin of the product is illegal;

(3) Any fish, whether fresh, frozen, or otherwise prepared, if such
fish was caught in a manner which the Secretary has proscribed
for persons subject to the jurisdiction of the United States,
whether or not any marine mammals were in fact taken incident
to the catching of the fish.

(d) Nonapplicability of prohibitions - Subsections (b) and (c) of this
section shall not apply -

(1) in the case of marine mammals or marine mammal products,
as the case may be, to which subsection (b)(3) of this section
applies, to such items imported into the United States before the
date on which the Secretary publishes notice in the Federal
Register of his proposed rulemaking with respect to the designa-
tion of the species or stock concerned as depleted; or

(2) in the case of marine mammals or marine mammal products
to which subsection (c)(1)(B) or (c)(2)(B) of this section applies,
to articles imported into the United States before the effective
date of the foreign law making the taking or sale, as the case may
be, of such marine marrunals or marine mammal products unlaw-
ful.

(e) Retroactive effect - This Act shall not apply with respect to any
marine mammal taken before the effective date of this Act, or to any

Marine Mammal Protection Act
15

REGULATIONS ON TAKING OF MARINE MAMMALS

marine mammal product consisting of, or composed in whole or in part
of, any marine mammal taken before such date.

(f) Commercial taking of WhAes - It is unlawful for any person or vessel
or other conveyance to take any species of whale incident to commercial
whaling in waters subject to the jurisdiction of the United States.

(Pub. L. 92-522, title 1, 102, Oct. 21, 1972, 86 Stat. 1032; Pub. L. 93-205, 13(e)(3), Dec.
28,1973,87 Stat. 903; Flub. L. 95-136, 4, Oct. 18,1977,91 Stat. 1167; Pub. L. 97-58, 3(a),
Oct. 9,1981,95 Stat. 981; Pub.L. 100-711, 2(b), 5(b), (e)(2), Nov. 23,1988,102 Stat. 4763,
4769,4771. Codified at 16 U.S.C. 1372.)

(1988 Amendment. Subsec. (a). Pub.L. 100-711, 2(b), substituted '113, and 114' for
Vand 113".

Subsec. (b). Pub.L. 100-711, 5(b), added provisions which authorized Secretary to issue
permit for importation of marine mammal. Pub.L. 100-711, 5(e)(2), substituted "re-
search, or for enhancing the survival or recovery of a species or stock," for "research".)

REGUIATIONS ON TAKING OF MARINE MAMAIALS

Sec. 103. (a) Necessil3! and approl2riatel3ess - The Secretary, on the basis
of the best scientific evidence available and in consultation with the
Marine Mammal Commission, shall prescribe such regulations with
respect to the taking and importing of animals from each species of
marine mammal (including regulations on the taking and importing of
individuals within population stocks) as he deems necessary and ap-
propriate to insure that such taking will not be to the disadvantage of
those species and population stocks and will be consistent with the
purposes and policies set forth in section 2 of this title.

(b) Factors considered in prescribing regulationS - In prescribing such
regulations, the Secretary shall give full consideration to all factors which
may affect the extent to which such animals may be taken or imported,
including but not limited to the effect of such regulations on -

(1) existing and future levels of marine mammal species and
population stocks;

(2) existing international treaty and agreement obligations of the
United States;

(3) the marine ecosystem and related environmental considera-
tions;

Marine Mammal Protection Act
16

REGULATIONS ON TAKING OF MARINE MAMMALS

(4) the conservation, development, and utilization of fishery
resources; and

(5) the economic and technological feasibility of implementation.

(c) Allowable restrictions -The regulations prescribed under subsection
(a) of this section for any species or population stock of marine mammal
may include, but are not limited to, restrictions with respect to -

(1) the number of animals which may be taken or imported in any
calendar year pursuant to permits issued under section 104 of this
title;

(2) the age, size, or sex (or any combination of the foregoing) of
animals which may be taken or imported, whether or not a quota
prescribed under paragraph (1) of this subsection applies with
respect to such animals;

(3) the season or other period of time within which animals may
be taken or imported;

(4) the manner and locations in which animals may be taken or
imported; and

(5) fishing techniques which have been found to cause undue
fatalities to any species of marine mammal in a fishery.

(d) Procedure - Regulations prescribed to carry out this section with
respect to any species or stock of marine marnmals must be made on the
record after opportunity for an agency hearing on both the Secretary's
determination to waive the moratorium pursuant to section
101(a)(3)(A) of this title and on such regulations, except that, in addition
to any other requirements, imposed by law with respect to agency
rulemaking, the Secretary shall publish and make available to the public
either before or concurrent with the Publication of notice in the Federal
Register of his intention to prescribe regulations under this section -

(1) a statement of the estimated existing levels of the species and
population stocks of the marine mammal concerned;

(2) a statement of the expected impact of the proposed regula-
tions on the optimum sustainable population of such species or
population stock;

(3) a statement describing the evidence before the Secretary upon
which he proposes to base such regulations; and

Marine Mammal Protection Act
17

PERMITS

(4) any studies made by or for the Secretary or any recommenda-
tions made by pr for the Secretary or the Marine Mammal Com-
mission which relate to the establishment of such regulations.

(e) Periodic review - Any regulation prescribed pursuant to this section
shall be periodically reviewed, and may be modified from time to time
in such manner as the Secretary deems consistent with and necessary to
carry out the purposes of this Act.

(f) Report to Congress - Within six months after the effective date of this
Act and every twelve months thereafter, the Secretary shall report to the
public through publication in the Federal Register and to the Congress
on the current status of all marine mammal species and population stocks
subject to the provisions of this Act. His report shall describe those
actions taken and those measures believed necessary, including where
appropriate, the issuance of permits pursuant to this title to assure the
well-being of such marine mammals.

(Pub. L. 92-522, title 1, 103, Oct. 21, 1972,86 Stat. 1033. Codified at 16 U.S.C. 1373.)

PEFJYUTS

See. 104. (a) Issuance - The Secretary may issue permits which authorize
the taking or importation of any marine mammal.

(b) Requisite prQvisions - Any perrait issued under this section shall -

(1) be consistent with any applicable regulation established by the
Secretary under section 103 of this title, and

(2) specify -

(A) the number and kind of animals which are authorized to
be taken or imported,

(B) the location and manner (which manner must be deter-
mined by the Secretary to be humane) in which they may be
taken, or from which they may be imported,

(D) any other terms or conditions w*hich the Secretary deems
appropriate.

Marine Mammal Protection Act
18

PERMITS

In any case in whicIf an application for a permit cites as a reason for the
proposed taking the overpopulation of a particular species or population
stock, the Secretary shall first consider whether or not it would be more
desirable to transplant a number of animals (but not to exceed the
number requested for taking in the application) of that species or stock
to a location not then inhabited by such species or stock but previously
inhabited by such species or stock.

(1) Any permit issued by the Secretary which authorizes the
taking or importation of a marine mammal for purposes of scien-
tific research, public display, or enhancing the survival or
recovery of a species or stock shall specify, in addition to the
conditions required by subsection (b) of this section, the methods
of capture, supervision, care, and transportation which must be
observed pursuant to and after such taking or importation. Any
person authorized to take or import a marine mammal for pur-
poses of scientific research, public display, or enhancing the
survival or recovery of a species or stock shall furnish to the
Secretary a report on all activities carried out by him pursuant to
that authority.

(2) A permit may be issued for public display purposes only to an
applicant which offers a program for education or conservation
purposes that, based on professionally recognized standards of
the public display community, is acceptable to the Secretary and
which submits with the permit application information indicating
that the applicant's facilities are open to the public on a regularly
scheduled basis and that access to the facilities is not limited or
restricted other than by the charging of an adm@ission fee.

(3) A permit may be issued for scientific research purposes only
to an applicant which submits with its permit application infor-
mation indicating that the taking is required to further a bona fide
scientific purpose and does not involve unnecessary duplication
of research. No permit issued for purposes of scientific research
shall authorize the killing of a marine mammal unless the ap-
plicant demonstrates that a nonlethal method for carrying out the
research is not feasible. 'ne Secretary shall not issue a permit for
research which involves the lethal taking of a marine mammal
from a species or stock designated as depleted, unless the
Secretary determines that the results of such research will directly
benefit that species or stock, or that such research fulfills a
critically important research need.

Marine Mammal Protection Act
19

PERMITS

(4)(A) A permit may be issued for enhancing the survival or
recovery of a species or stock only with respect to a species or
stock for which the Secretary, after consultation with the
Marine Mammal Commission and after notice and oppor-
tunity for public comment, has first determined that

(i) taking or importation is likely to contribute sig-
nificantly to maintaining or increasing distribution or
numbers necessary to ensure the survival or recovery
of the species or stock; and

(ii) taking or importation is consistent

(1) with any conservation plan adopted by
the Secretary under section 115(b) of this
title or any recovery plan developed under
section 4(f) of the Endangered Species Act
of 1973 (16 U.S.C. 1533(f)) for the species
or stock, or

(11) if there is no conservation or recovery
plan in place, with the Secretary's evalua-
tion of the actions required to enhance the
survival or recovery of the species or stock
in light of the factors that would be ad-
dressed in a conservation plan or a recovery
plan.

(B) A permit issued in accordance with this paragraph may
allow the captive maintenance of a marine mammal from a
depleted species or stock only if the Secretary -

(i) determines that captive maintenance is likely to
contribute to the survival or recovery of the species or
stock by maintaining a viable gene pool, increasing
productivity, providing biological information, or es-
tablishing animal reserves;

(ii) determines that the expected benefit to the af-
fected species or stock outweighs the expected benefit
of alternatives which do not require removal of
animals from the wild; and

(iii) requires that the marine mammal or its progeny
be returned to the natural habitat of the species or

Marine Mammal Protection Act
20

PERMITS

stock as soon as feasible, consistent with the objectives
of any applicable conservation plan or recovery plan,
or of any evaluation by the Secretary under sub-
paragraph (A).

Ile Secretary may allow the public display of such a marine
mammal only if the Secretary determines that such display is
incidental to the authorized maintenance and will not interfere
with the attainment of the survival or recovery objectives.

(d) Application procedures- notice; he ' __ . _Y -

(1) The Secretary shall prescribe such procedures as are neces-
sary to carry out this section, including the form and manner in
which application for permits may be made.

(2) Tle Secretary shall publish notice in the Federal Register of
each application made for a permit under this section. Such
notice shall invite the submission from interested parties, within
thirty days after the date of the notice, of written data or views,
with respect to the taking or importation proposed in such ap-
plication.

(3) The applicant for any permit under this section must
demonstrate to the Secretary that the taking or importation of any
marine mammal under such permit will be consistent with the
purposes of this Act and the applicable regulations established
under section 103 of this title.

(4) If within thirty days after the date of publication of notice
pursuant to paragraph (2) of this subsection with respect to any
application for a permit any interested party or parties request a
hearing in connection there%kith, the Secretary may, within sixty
days following such date of publication, afford to such party or
parties an opportunity for such a hearing.

(5) As soon as practicable (but not later than thirty days) after the
close of the hearing or, if no hearing is held, after the last day on
which data, or views, may be submitted pursuant to paragraph (2)
of this subsection, the Secretary shall

(A) issue a permit containing such term and conditions as he
deems appropriate, or

(B) shall deny issuance of a permit. Notice of the decision of
0 the Secretary to issue or to deny any permit under this para-

Marine Mammal Protection Act
21

PERMITS

graph must be published in the Federal Register within ten
days after the date of issuance or denial.

(6) Any applicant for a permit, or any party opposed to such
permit, may obtain judicial review of the terms and conditions of
any pern-Lit issued by the Secretary under this section or of his
refusal to issue such a permit. Such review, which shall be pur-
suant to chapter 7 of title 5, United States Code, may be initiated
by filing a petition for review in the United States district court
for the district wherein the applicant for a permit resides, or has
his principal place of business, or in the United States District
Cour-t for the District of Columbia, within sixty days after the date
on which such permit is issued or denied.

(e) Modificatio IL and revocation -

(1) The Secretary may modify, suspend, or revoke in whole or in
part any permit issued by him under this section -

(A) in order to make any such permit consistent with any
change made after the date of issuance of such permit with
respect to any applicable regulation prescribed under section
103 of this title, or

(B) in any case in which a violation of the terms and conditions
of the permit is found.

(2) Whenever the Secretary shall propose any modification,
suspension, or revocation of a permit under this subsection, the
permittee shall be afforded opportunity, after due notice, for a
bearing by the Secretary with respect to such proposed modifica-
tion, suspension, or revocation. Such proposed action by the
Secretary shall not take effect until a decision is issued by him
after such hearing. Any action taken by the Secretary after such
a hearing is subject to judicial review on the same basis as is any
action taken by him with respect to a permit application under
paragraph (5) of subsection (d) of this section.

(3) Notice of the modification, suspension, or revocation of any
permit by the Secretary shall be published in the Federal Register
within ten days from the date of the Secretary's decision.

(f) Possession of permit by i-;-;uee or his agent - Any permit issued under
this section must be in the possession of the person to whom it is issued
(or an agent of such person) during -

Marine Mammal Protection Act
22

PERMITS

(1) the time of the authorized or taking importation;

(2) the period of any transit of such person or agent which is
incident to such taking or importation; and

(3) any other time while any marine mammal taken or imported
under such permit is in the possession of such person or agent.

A duplicate copy of the issued permit must be physically attached to the
container, package, enclosure, or other means of containment, in which
the marine mammal is placed for purposes of storage, transit, super-
vision, or care.

(g) E= - The Secretary shall establish and charge a reasonable fee for
permits issued under this section.

(h) General permits -

(1) Consistent with the regulations prescribed pursuant to section
103 of this title and to the requirements of section 101 of this title,
the Secretary may issue general permits for the taking of such
marine mammals, together with regulations to cover the use of
such general permits.

(2)(A) Subject to subparagraph (B), the general permit issued
under paragraph (1) on December 1, 1980 to the American
Tunaboat Association is extended to authorize and govern the
taking of marine mammals incidental to commercial purse
seine fishing for yellowfin tuna during each year after Decem-
ber 31, 1984.

(B) The extension granted under subparagraph (A) is subject
to the following conditions:

(i) The extension shall cease to have force and effect
at the time the general permit is surrendered or ter-
minated.

(ii) The permittee and certificate holders shall use the
best marine mammal safety techniques and equipment
that are economically and technologically practicable.

(iii) During the period of the extension, the terms and
conditions of the general permit that are in effect on
the date of the enactment of this paragraph shall apply,
exceptthat-

Marinc Mammal Protection Act
23

PERMITS

(1) the Secretary may make such adjust-
ments as may be appropriate to those terms
and conditions that pertain to fishing gear
and fishing practice requirements and to
permit administration;

(11) any such term and condition may be
amended or terminated if the amendment
or termination is based on the best scientific
information available, including that ob-
tained under the monitoring program re-
quired under paragraph (3)(A); and

(III) during each year of the extension, not
to exceed 250 coastal spotted dolphin
(Stenella attenuata) and not to exceed
2,750 eastern spinner dolphin (Stenella
longirostris) may be incidentally taken
under the general permit, and no accidental
taking of either species is authorized at any
time when incidental taking of that species
is permitted.

(iv) The Secretary shall, by January 1, 1989, prescribe
regulations to ensure that the backdown procedure
during sets of the purse seine net on marine mammals
is completed and rolling of the net to sack up has begun
no later than thirty niinutes after sundown. 'ne
Secretary may waive or otherwise modify such regula-
tions for -

(I) a designated certificate holder on an
observed trip if the Secretary determines,
based on observer reports, that such restric-
tion is not necessary because the certificate
holder has consistently utilized fishing
techniques and equipment so as to result in
an incidental marine mammal mortality
rate during sundown sets that is no higher
than the average such rate for the fleet
during daylight sets; or

(II) all certificate holders on observed trips
if the Secretary determines that such
restriction is not necessary because all cer-
is

Marine Manurial Protection Act
24

PERMITS

tificate holders have developed and are
utilizing fishing techniques and equipment
that assure that the incidental marine mam-
mal mortality rate during sundown sets will
be no higher than such rate during daylight
sets.

(v) The Secretary may authorize, after public notice
and opportunity for comment, designated certificate
holders to conduct experimental fishing operations on
observed trips, under such terms and conditions as the
Secretary may prescribe, for the purpose of testing
proposed improvements in fishing techniques and
equipment that may reduce the incidental mortality of
marine mammals in the course of commercial yellow-
fin tuna fishing operations, and the Secretary may
waive such terms and conditions of the general permit
and this section, other than the quotas on incidental
taking of marine mammals and the prohibition against
encircling pure schools of certain species of marine
mammals, as the Secretary determines to be necessary
and appropriate for the conduct of such experimental
fishing.

(vi) The Secretary, after public notice and opportunity
for comment and consultation with the skippers'panel
of experts established pursuant to the general permit,
shall develop and implement by not later than the
beginning of the 1990 fishing season a system of per-
formance standards to maintain the diligence and
proficiency of certificate holders in the use of the best
marine mammal safety techniques and equipment that
are economically and technologically practicable. The
system shall include such arrangements as are neces-
sary for the identification of certificate holders whose
incidental marine mammal mortality rate is consis-
tently and substantially higher than the average rate of
the fleet, and for the supplemental training and obser-
vation of such certificate holders, and provisions for
suspension or revocation of certificates of inclusion of
those certificate holders whose unacceptably high rate
of incidental taking reflects a lack of diligence or
proficiency in the use of the best marine mammal
safety techniques and equipment.

Marine Mammal Protection Act
25

PERMITS

(vii) It shall be unlawful to use any explosive devices
other than class C explosive pest control devices in the
course of commercial yellowfin tuna fishing subject to
thi general permit. Ile Secretary shall prescribe
regulations, effective April 1, 1990, to prohibit or
restrict the use of class C explosive pest control devices
in the course of commercial yellowfin tuna fishing
unless the Secretary determines, based on a study
which the Secretary shall undertake, that the use of
such devices does not result in physical impairment or
increased mortality of marine mammals.

(viii) During the 1989 and subsequent fishing seasons,
each certificated vessel shall carry on every fishing trip
subject to this subsection an official observer certified
by the Secretary or by the Inter-American Tropical
Tuna Commission for the purpose of conducting re-
search and observing fishing operations unless, for
reasons beyond the control of the Secretary, an ob-
server is not available for such purpose. The Secretary
may waive this requirement after the 1991 fishing
season and establish a less extensive observer program
if the Secretary, after notice and opportunity for com-
ment, determines that such an alternative program will
provide sufficiently reliable information.

(ix) The Secretary shall annually convene meetings
with representatives of conservation and environmen-
tal organizations, the commercial tuna fishing in-
dustry, and other interested persons for the purpose of
discussing the results of efforts to reduce the incidental
mortality and serious injury of marine mammals under
this subsection as well as throughout the international
fleet as a whole and developing plans for such efforts
during the next year. On or before April 1, 1992, the
Secretary shall submit to the Committee on Com-
merce, Science, and Transportation of the Senate and
the Committee on Merchant Marine and Fisheries of
the House of Representatives a comprehensive report
on the results of such efforts. The report shall discuss
the results of the scientific research programs, perfor-
mance standards, observer program, prohibition on
sundown sets, development of alternative fishing tech-
niques, and other efforts required by this section, and
shall include recommendations for such action as the
Secretary considers necessary and desirable to reduce

Marine Mammal Protection Act
26

PERMITS

further the total mortality and serious injury of marine
mammals in the course of commercial yellowfin tuna
fishing throughout the international fleet.

(C) The quota on the incidental taking of coastal spotted
dolphin and eastern spinner dolphin under paragraph
(2)(B)(iii)(111) shall be treated -

(i) as within, and not in addition to, the overall annual
quota under the general permit on the incidental
taking of marine mammals; and

(ii) for purposes of paragraph (2)(B)(iii)(11), as a term
of the general permit in effect on July 17, 1984.

(3)(A) The Secretary shall, commencing on January 1, 1985,
undertake a scientific research program to monitor for at least
five consecutive years, and periodically as necessary there-
after, the indices of abundance and trends of marine man-unal
population stocks which are incidentally taken in the course of
commercial purse seine fishing for yellowfin tuna in the east-
ern tropical Pacific Ocean.

(B) If the Secretary determines, on the basis of the best scien-
tific information available (including that obtained under the
monitoring program), that the incidental taking of marine
mammals permitted under the general permit referred to in
paragraph (2) is having a significant adverse effect on a marine
mammal population stock, the Secretary shall take such action
as is necessary, after notice and an opportunity for an agency
hearing on the record, to modify the applicable incidental take
quotas or requirements for gear and fishing practices (or both
such quotas and requirements) for such fishing so as to ensure
that the marine mammal population stock is not significantly
adversely affected by the incidental taking.

(C) For each year after 1984, the Secretary shall include in his
annual report to the public and the Congress under section
103(f) of this title a discussion of the proposed activities to be
conducted each year as part of the monitoring program re-
quired by subparagraph (A).

(D) Tlere are authorized to be appropriated to the Depart-
ment of Commerce for purposes of carrying out the monitor-
ing program required under this paragraph not to exceed

Marine Mammal Protection Act
27

PENALTIES

$4,000,000 for the period beginning October 1, 1984, and
ending September 30, 1988.

(Pub. L. 92-522, title 1, 104, Oct. 21, 1972, 86 Stat. 1034; As amended Pub. L. 98-364,
title 1, 102, July 17,1984,98 Stat. 440; Pub.L. 100-711, 4(d), 5(d), Nov. 23,1998,102 Stat.
4767,4769. Codified at 16 U.S.C. 1374.)

(1988 Amendment. Subsec. (c). Pub.L. 100-711, 5(d), substituted "(1) Any permit" for
"Any permit", 'scientific research, public display, or enhancing the survival or recovery
of a species or stock" for'display or scientific research"in two instances, and added pars.
(2) to (4).

Subse.c. (h)(2)(B). Pub.L. 100-711, 4(d), added cls. (iv) to (ix).)

PENALTEES

Sec. 105. (a)(1) Any person who violates any provision of this title or of
any permit or regulation issued thereunder may be assessed a civil
penalty by the Secretary of not more than $10,000 for each such
violation. No penalty shall be assessed unless such person is given
notice and opportunity for a hearing with respect to such viola-
tion. Each unlawful taking or importation shall be a separate
offense. Any such civil penalty may be remitted or mitigated by
the Secretary for good cause shown. Upon any failure to pay a
penalty assessed under this subsection, the Secretary may request
the Attorney General to institute a civil action in a district court
of the United States for any district in which such person is found,
resides, or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action.

(2) In any case involving an alleged unlawful importation of a
marine mammal or marine mammal product, if such importation
is made by an individual for his own personal or family use (which
does not include importation as an accommodation to others or
for sale or other commercial use), the Secretary may, in lieu of
instituting a proceeding under paragraph (1), allow the individual
to abandon the marnmal or product, under procedures to be
prescribed by the Secretary, to the enforcement officer at the port
of entry.

(b) Any person who knowingly violates any provision of this title or of
any permit or regulation issued thereunder shall, upon conviction, be
fined not more than $20,000 for each such violation, or imprisoned for
not more than one year, or both.

Marine Mammal Protection Act
28

SEIZURE AND FORFEITURE OF CARGO

(Pub. L. 92-522, title 1, 105, Oct. 21,1972,86 Stat. 1036; as amend,.- 3 Pub. L. 97-58, 3(b),
Oct. 9,1981,95 Stat. 982. Codified at 16 U.S.C. 1375.)

SEIZURE AND FORFEITURE OF CARGO

Sec. 106. (a) Application of consistent provisions - Any vessel or other
conveyance subject to the jurisdiction of the United States that is
employed in any manner in the unlawful taking of any marine mammal
shall have its entire cargo op the monetary value thereof subject to
seizure and forfeiture. All provisions of law relating to the seizure,
judicial forfeiture, and condemnation of cargo for violation of the cus-
toms laws, the disposition of such cargo, and the proceeds from the sale
thereof, and the remission or mitigation of any such forfeiture, shall apply
with respect to the cargo of any vessel or other conveyance seized in
connection with the unlawful taking of a marine mammal insofar as such
provisions of law are applicable and not inconsistent with the provisions
of this title.

(b) Penalties - Any vessel subject to the jurisdiction of the United States
that is employed in any manner in the unlawful taking of any marine
mammal shall be liable for a civil penalty of not more than $25,000. Such
penalty shall be assessed by the district court of the United States having
jurisdiction over the vessel. Clearance of a vessel against which a penalty
has been assessed, from a port of the United States, may be withheld
until such penalty is paid, or until a bond or otherwise satisfactory surety
is posted. Such penalty shall constitute a maritime lien on such vessel
which may be recovered by action in rem in the district court of the
United States having jurisdiction over the vessel.

(c) Reward for information leading to conviction - Upon the recommen-
dation of the Secretary, the Secretary of the Treasury is authorized to
pay an amount equal to one-half of the fine incurred but not to exceed
$2,500 to any person who furnishes information which leads to a convic-
tion for a violation of this title. Any officer or employee of the United
States or of any State or local government who furnishes information or
renders service in the performance of his official duties shall not be
eligible for payment under this section.

(Pub. L. 92-522, title 1, 106, Oct. 211, 1972, 86 Stat. 1036. Codified at 16 U.S.C. 1376.)

Marine Mammal Protection Act
29

ENFORCEMENT

Sec. 107. (a) Utilization of personnel - Except as otherwise provided in
this title, the Secretary shall enforce the provisions of this title. The
Secretary may utilize, by agreement, the personnel, services, and
facilities of any other Federal agency for purposes of enforcing this title.

(b) State officers and employees The Secretary may also designate
officers and employees of any State or of any possession of the United
States to enforce the provisions of this title. When so designated, such
officers and employees are authorized to function as Federal law enfor-
cement agents for these purposes, but they shall not be held and con-
sidered as employees of the United States for the purposes of any laws
administered by the Director of the Office of Personnel Management.

(c) Warrants and other proc?.ss for enforeemeni - The judges of the
district courts of the United States and the United States magistrates
may, within their respective jurisdictions, upon proper oath or affirma-
tion showing probable cause, issue such warrants or other process,
including warrants or other process issued in admiralty proceedings in
United States district courts, as may be required for enforcement of this
title and any regulations issued thereunder.

(d) Execution of processe arrest* search: seizure - Any person
authorized by the Secretary to enforce this title may execute any warrant
or process issued by any officer or court of competent jurisdiction for the
enforcement of this title. Such a person so authorized may, in addition
to any other authority conferred by law -

(1) with or without warrant or other process, arrest any person
conu-nitting in his presence or view a violation of this title or the
regulations issued thereunder;

(2) with a warrant or other process, or without a warrant if he has
reasonable cause to believe that a vessel or other conveyance
subject to the jurisdiction of the United States or any person on
board is in violation of any provision of this title or the regulations
issued thereunder, search sucti vessel or conveyance and arrest
such person;

(3) seize the cargo of any vessel or other conveyance subject to
the jurisdiction of the United States used or employed contrary
to the provisions of this title or the regulations issued hereunder
or which reasonably appears to have been so used or employed;
and

Marine Mammal Protection Act
30

ENFORCEMENT

(4) seize, whenever and wherever found, all marine mammals and
marine mammals products taken or retained in violation of this
title or the regulations issued thereunder and shall dispose of
them, in accordance with regulations prescribed by the Secretary.

(e) Disposition of seized cargo---

(1) Whenever any cargo or marine mammal or marine mammal
product is seized pursuant to this section, the Secretary shall
expedite any proceedings commenced under section 105(a) or (b)
of this title. AJI marine mammals or marine mammal products or
other cargo so seized shaU be held by any person authorized by
the Secretary pending disposition of such proceedings. The
owner or consignee of any such marine mammal or marine mam-
mal product or other cargo so seized shall, as soon as practicable
following such seizure, be notified of that fact in accordance with
regulations established by the Secretary.

(2) The Secretary may, with respect to any proceeding under
section 105(a) or (b) of this title, in lieu of holding any marine
mammal or marine mammal product or other cargo, permit the
person concerned to post bond or other surety satisfactory to the
Secretary pending the disposition of such proceeding.

(3)(A) Upon the assessment of a penalty pursuant to section
105(a) of this title, all marine mammals and marine mammal
products or other cargo seized in connection therewith may be
proceeded against in any court of competent jurisdiction and
forfeited to the Secretary for disposition by him in such man-
ner as be deems appropriate.

(B) Upon conviction for violation of section 105(b) of this title,
all marine mammals and marine mammal products seized in
connection therewith shall be forfeited to the Secretary for
disposition by him in such manner as he deems appropriate.
Any other property or item so seized may, at the discretion of
the court, be forfeited to the United States or otherwise dis-
posed of.

(4) If with respect to any marine mammal or marine mammal
product or other cargo so seized -

(A) a civil penalty is assessed under section 105(a) of this title
and no judicial action is commenced to obtain the forfeiture
of such mammal or product within thirty days after such assess-
ment, such marine mammal or marine mammal product or

Marine Mammal Protection Act
31

INTERNATIONAL PROGRAM

other cargo shall be immediately returned to the owner or the
consignee; or

(B) no conviction results from an alleged violation of section
105(b) of this title, such marine manunal or marine manunal
product or other cargo shall immediately be returned to the
owner or consignee if the Secretary does not, with thirty days
after the final disposition of the case involving such alleged
violation, commence proceedings for the assessment of a civil
penalty under section 105(a) of this title.

(Note: The term *with thirty days' is as in original. Probably should be "within".)

(Pub. L. 92-522, title 1, 107, Oct. 21, 1972, 86 Stat. 1037; 1978 Reorg. Plan No. 2, 102,
eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783. Codified at 16 U.S.C. 1377.)

INnRNATIONAL PROGRAM

See. 108. (a) Duties of Secretary - The Secretary, through the Secretary
of State, shall

(1) initiate negotiations as soon as possible for the development
of bilateral or multilateral agreements with other nations for the
protection and conservation of all marine mammals covered by
this Act;

(2) initiate -

(A) negotiations as soon as possible with all foreign govern-
ments, which are engaged in, or which have persons or com-
panies engaged in, commercial fishing operations which are
found by the Secretary to be unduly harmful to any species or
population stock of marine mammal, for the purpose of enter-
ing into bilateral and multilateral treaties with such countries
to protect marine mammals, with the Secretary of State to
prepare a draft agenda relating to this matter for discussion at
appropriate international meetings and forums; and

(B) discussions with foreign governments whose vessels har-
vest yellowfin tuna with purse seines in the eastern tropical
Pacific Ocean, for the purpose of concluding, through the
Inter-American Tropical Tuna Commission or such other
bilateral or multilateral institutions as may be appropriate,
international arrangements for the conservation of marine

Marine Mammal Protection Act
32

INTERNATIONAL PROGRAM

mammals taken incidentally in the course of harvesting such
tuna, whiclLshould include provisions for

(i) cooperative research into alternative methods of
locating and catching yellowfin tuna which do not
involve the taking of marine marnmals,

(H) cooperative research on the status of affected
marine mammal population stocks,

(iii) reliable monitoring of the number, rate, and
species of marine mammals taken by vessels of har-
vesting nations,

(iv) limitations on incidental take levels based upon
the best scientific information available, and

(v) the use of the best marine mammal safety techni-
ques and equipment that are economically and tech-
nologically practicable to reduce the incidental kill
and serious injury of marine mammals to insignificant
levels approaching a zero mortality and serious injury
rate;

(3) encourage such other agreements to promote the purposes of
this Act urith other nations for the protection of specific ocean
and land regions which are of special significance to the health
and stability of marine mammals;

(4) initiate the amendment of any existing international treaty for
the protection and conservation of any species of marine marnmal
to which the United States is a party in order to make such treaty
consistent with the purposes and policies of this Act;

(5) seek the convening of an international ministerial meeting on
marine mammals before July 1, 1973, for the purposes of

(A) the negotiation of a binding international convention for
the protection and conservation of all marine mammals, and

(B) the implementation of paragraph (3) of this section; and

(6) provide to the Congress by not later than one year after
October 21, 1972, a full report on the results of his efforts under
this section.

Marine Mammal Protection Act
33

INTERNATIONAL PROGRAM

(b) Consultations and studi ig North Pacific fur seall

(1) In additiori to the foregoing, the Secretary shall -

(A) in consultation with the Marine Mammal Commission
established by section 201 of this Act, undertake a study of the
North Pacific fur seals to determine whether herds of such
seals subject to the jurisdiction of the United States are
presently at their optimum sustainable population and what
population trends are evident; and

(B) in consultation with the Secretary of State, promptly un-
dertake a comprehensive study of the provisions of this Act, as
they relate to North Pacific fur seals, and the provisions of the
North Pacific Fur Seal Convention signed on February 9,1957,
as extended (hereafter referred to in this subsection as the
"Convention"), to determine what modifications, if any, should
be made to the provisions of the Convention, or of this Act, or
both, to make the Convention and this Act consistent with each
other.

The Secretary shall complete the studies required under this paragraph
not later than one year after October 21, 1972, and shall immediately
provide copies thereof to Congress.

(2) If the Secretary finds -

(A) as a result of the study required under paragraph (1)(A)
of this subsection, that the North Pacific fur seal herds are
below their optimum sustainable population and are not
trending upward toward such level, or have reached their
optimum sustainable population but are commencing a
downward trend, and believes the herds to be in danger of
depletion; or

(B) as a result of the study required under paragraph (1)(B) of
this subsection, that modifications of the Convention are
desirable to make it and this Act consistent;

he shall, through the Secretary of State, immediately initiate
negotiations to modify the Convention so as to

(i) reduce or halt the taking of seals to the extent
required to assure that such herds attain and remain at
their optimum sustainable population, or

Marine Mammal Protection Act
34

TRANSFER OF MANAGEMENT AUTHORITY

(ii) make the Convention and this Act consistent; or
both, as the case may be. If negotiations to so modify
is th@ Convention are unsuccessful, the Secretary shall,
through the Secretary of State, take such steps as may
be necessary to continue the existing Convention
beyond its present termination date so as to continue
to protect and conserve the North Pacific fur seals and
to prevent a return to pelagic sealing.

(c) Description of annual results of discussionse proposals for further
action - The Secretary shaU include a description of the annual results of
discussions initiated and conducted pursuant to subsection (a)(2)(B) of
this section, as well as any proposals for further action to achieve the
purposes of that subsection, in the report required under section 103(f)
of this title.

(Pub. L. 92-522, title 1, 108, Oct. 21, 1972, 86 Stat. 1038; As amended Pub.L. 100-711,
4(b), (c), Nov. 23,1988,102 Stat. 4766,4767. Codified at 16 U.S.C. 1378.)

(1988 Amendment. Subsec. (a)(2). Pub.L. 100-711, 4(b), redesignated provisions
which related to negotiations with all foreign governments engaged in commercial fishing
operations found to be to any species of marine mammal as subpar. (A) and, as so
redesignated, added "or population stock" following "to any species", substituted "mam-
mals, with the" for "mammals. The", "State to prepare" for "State shall", and added "and"
following "meetings and forums;", and added subpar. (B)

Subsec. (c). Pub.L. 100-711, 4(c), added subsec. (c).)

TRANSFER OF MANAGEMENT AUTHORM

Sec. 109. (a) State enforcement of State laws or regulations prohibited
without transfer to State of management authority by Secretary - No
State may enforce, or attempt to enforce, any State law or regulation
relating to the taking of any species (which term for purposes of this
section includes any population stock) of marine mammal within the
State unless the Secretary has transfer-red authority for the conservation
and management of that species (hereinafter referred to in this section
as "management authority") to the State under subsection (b)(1) of this
section.

(b) Finding prerequisite to transfer of authorily; State program; im-
plementation -

(1) Subject to paragraph (2) and subsection (f) of this section, the
Secretary shall transfer management authority for a species of

Marine Mammal Protection Act
35

TRANSFER OF MANAGEMENT AUTHORITY

marine mammal to a State if the Secretary finds, after notice and
opportunity for public comment, that the State has developed and
will implement-a program for the conservation and management
of the species that -

(A) is consistent with the purposes, policies, and goals of this
Act and with international treaty obligations;

(B) requires that all taking of the species be humane;

(i) the State has determined, under a process consis-
tent with the standards set forth in subsection (c) of
this section -

(1) that the species is at its optimum sus-
tainable population (hereinafter in this sec-
tion referred to as "OSP"), and

(11) the maximum number of animals of
that species that may be taken without
reducing the species below its OSP, and

(ii) the determination required under clause (i) is final
and implemented under State law, and, if a coopera-
tive allocation agreement for the species is required
under subsection (d)(1) of this section, such an agree-
ment is implemented;

(D) does not permit the taking of a number of animals of the
species that exceeds the maximum number determined pur-
suant to subparagraph (Qi)(H), and, in the case of taking for
subsistence uses (as defined in subsection (f)(2) of this sec-
tion), does not perrriit the taking of a number of animals that
would be inconsistent with the maintenance of the species at
its OSP;

(E) does not permit the taking of the species for scientific
research, public display, or enhancing the survival or recovery
of a species or stock, except for taking for such purposes that
is undertaken by, or on behalf of, the State;

(F) provides procedures for acquiring data, and evaluating
such data and other new evidence, relating to the OSP of the
species, and the maximum take that would maintain the

Marine Mammal Protection Act
36

TRANSFER OF MANAGEMENT AUTHORITY

species at that level, and, if required on the basis of such
evaluation,'for amending determinations under subparagraph
(c)(i);

(G) provides procedures for the resolution of differences be-
tween the State and the Secretary that might arise during the
development of a cooperative allocation agreement under
subsection (d)(1) of this section; and

(H) provides for the submission of an annual report to the
Secretary regarding the administration of the program during
the reporting period.

(2) During the period between the transfer of management
authority for a species to a State under paragraph (1) and the time
at which the implementation requirements under paragraph
(1)(C)(ii) are complied with -

(A) the State program shall not apply with respect to the taking
of the species within the State for any purpose, or under any
condition, provided for under section 101 of this title; and

(B) the Secretary shall continue to regulate, under this title all
takings of the species within the State.

(3) After the determination required under paragraph (1)(C)(i)
regarding a species is final and implemented under State law and
after a cooperative allocation agreement described in subsection
(d)(1) of this section, if required, is implemented for such species

(A) such determination shall be treated, for purposes of apply-
ing this title beyond the territory of the State, as a determina-
tion made in accordance with section 103 of this title and as an
applicable waiver under section 101(a)(3) of this title;

(B) the Secretary shall regulate, without regard to this section
other than the allocations specified under such an agreement,
the taking of the species

(i) incidentally in the course of commercial fishing
operations (whether provided for under section
101(a)(2) or (4) of this title), or in the course of other
specified activities provided for under section
101(a)(5) of this title in the zone described in section
3(14)(B) of this title, and

Marine Mammal Protection Act
37

TRANSFER OF MANAGEMENT AUTHORITY

(ii) for scientific research, public display, or enhancing
the -survival or recovery of a species or stock (other
than by, or on behalf of, the State), except that any
taking authorized under a permit issued pursuant to
section 101(a)(1) of this title after October 9, 1981
allowing the removal of live animals from habitat
within the State shall not be effective if the State
agency disapproves, on or before the date of issuance
of the permit, such taking as being inconsistent with
the State program; and

(c) Standards with which State process must compiy-- The State process
required under subsection (b)(1)(C) of this section must comply with the
following standards:

(1) The State agency with management authority for the species
(hereinafter in this section referred to as the "State agency") must
make an initial determination regarding the factors described in
clause (i) of that subsection. The State agency must identify, and
make available to the public under reasonable circumstances, the
documentation supporting such initial determination. Unless
request for a hearing under paragraph (2) regarding the initial
determination is timely made, the initial determination shall be
treated as final under State law.

(2) The State agency shall provide opportunity, at the request of
any interested party, for a hearing with respect to the initial
determination made by it under paragraph (1) at which interested
parties may -

(A) present oral and written evidence in support of or against
such determination; and

(B) cross-examine persons presenting evidence at the hearing.

The State agency must give public notice of the bearing and make
available to the public within a reasonable time before commenc-
ing the hearing a list of the witnesses for the State and a general
description of the documentation and other evidence that will be
relied upon by such witnesses.

(3) The State agency, solely on the basis of the record developed
at a hearing held pursuant to paragraph (2), must make a decision

Marine Mammal Protection Act
38

TRANSFER OF MANAGEMENT AUTHORITY

regarding its initial determination under paragraph (1) and shall
include with the record a statement of the findings and con-
clusions, and the reason or basis therefor, on all material issues.

(4) Opportunity for judicial review of the decision made by the
State agency on the record under paragraph (3), under scope of
review equivalent to that provided for in section 706(2)(A)
through (E) of Title 5, United States Code, must be available
under State law. Ile Secretary may not initiate judicial review of
any such decision.

(d) Cooperative allocation agreements

(1) If the range of a species with respect to which a determination
under paragraph (1)(C)(i) of subsection (b) of this section is
made extends beyond the territorial waters of the State, the State
agency and the Secretary (who shall first coordinate with the
Marine Manunal Commission and the appropriate Regional
Fishery Management Council established under section 302 of
the Act of April 13, 1976 (16 U.S.C. 1852)) shall enter into a
cooperative allocation agreement providing procedures for al-
locating, on a timely basis, such of the number of animals, as
determined under paragraph (1)(C)(i)(11) of subsection (b) of
this section, as may be appropriate with priority of allocation
being given firstly to taking for subsistence uses in the case of the
State of Alaska, and secondly to taking for purposes provided for
under section 101(a) of subsection (b) this title within the zone
described in section 3(14)(B) of this Act.

(2) If the State agency requests the Secretary to regulate the
taking of a species to which paragraph (1) applies within the zone
described in section 3(14)(B) of this title for subsistence uses or
for hunting, or both, in a manner consistent with the regulation
by the State agency of such taking within the State, the Secretary
shall adopt, and enforce within such zone, such of the State
agency's regulatory provisions as the Secretary considers to be
consistent with his administration of section 101(a) of this title
within such zone. The Secretary shall adopt such provisions
through the issuance of regulations under section 553 of Title 5,
United States Code, and with respect to such issuance the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.), Executive Order Num-
bered 12291, dated February 17, 1981, and the thirty-day notice
requirement in subsection (d) of such section 553 shall not apply.
For purposes of sections 105, 106, and 107 of this title, such
regulations shall be treated as having been issued under this title.

Marine Mammal Protection Act
39

TRANSFER OF MANAGEMENT AUTHORITY

(e) Rtvocation of transfer of management authodt@L_

(1) Subject to paragraph (2), the Secretary shall revoke, after
opportunity for a bearing, any transfer of management authority
made to a State under subsection (b)(1) of this section if the
Secretary finds that the State program for the conservation and
management of the species concerned is not being implemented,
or is being implemented in a manner inconsistent with the
provisions of this section or the provisions of the program. The
Secretary shall also establish a procedure for the voluntary return
by a State to the Secretary of species management authority that
was previously transferred to the State under subsection (b)(1) of
this section.

(2)(A) The Secretary may not revoke a transfer of management
authority under paragraph (1) unless -

(i) the Secretary provides to the State a written notice
of intent to revoke together with a statement, in detail,
of those actions, or failures to act, on which such intent
is based; and

(ii) during the ninety-day period after the date of the
notice of intent to revoke -

(I) the Secretary provides opportunity for
consultation between him and the State
concerning such State actions or failures to
act and the remedial measures that should
be taken by the State, and

(11) the State does not take such remedial
measures as are necessary, in the judgment
of the Secretary, to bring its conservation
and management program, or the ad-
ministration or enforcement of the pro-
gram, inio compliance with the provisions
of this section.

(B) When a revocation by the Secretary of a transfer of
management authority to a State becomes final, or the State
voluntarily returns management authority to the Secretary, the
Secretary shall regulate the taking, and provide for the conser-
vation and management, of the species within the State in
accordance with the provisions of this Act (and in the case of

Marine Mammal Protection Act
40

TRANSFER OF MANAGEMENT AUTHORITY

Alaskan Natives, section 101(b) of this title and subsection (i)
of this section shall apply upon such revocation or return of
management authority).

(f) Transfer of management authority to State of Alaska

(1) Tle Secretary may not transfer management authority to the
State of Alaska under subsection (b)(1) of this section for any
species of marine mammal unless -

(A) the State has adopted and will implement a statute and
regulations that insure that the taking of the species for sub-
sistence uses -

(i) is accomplished in a nonwasteful manner,

(ii) will be the priority consumptive use of the species,
and

(iii) if required to be restricted, such restriction will be
based upon -

(I) the customary and direct dependence
upon the species as the mainstay of
livelihood,

(II) local residency, and

(111) the availability of alternative resour-
ces; and

(B) the State has adopted a statute or regulation that requires
that any consumptive use of marine mammal species, other
than for subsistence uses, will be authorized during a
regulatory year only if the appropriate agency first makes
findings, based on an administrative record before it, that -

(i) such use will have no significant adverse impact
upon subsistence uses of the species, and

(ii) the regulation of such use, including, but not
limited to, licensing of marine mammal hunting guides
and the assignment of guiding areas, will, to the maxi-
mum extent practicable, provide econon-& oppor-
tunities for the residents of the rural coastal villages of
Alaska who engage in subsistence uses of that species.

Marine Mammal Protection Act
41

TRANSFER OF MANAGEMENT AUTHORITY

(2) For purposes of paragraph (1), the term "subsistence uses"
means the customary and traditional uses by rural Alaska resi-
dents of marine mammals for direct personal or family consump-
tion as food, shelter, fuel, clothing, tools, or transportation; for
the making and selling of handicraft articles out of nonedible
byproducts of marine mammals taken for personal or family
consumption; and for barter, or sharing for personal or family
consumption. As used in this paragraph-

(A) The term "family" means all persons related by blood,
marriage, or adoption, or any person living within a household
on a permanent basis.

(B) The term "barter" means the exchange of marine marrunals
or their parts, taken for subsistence uses -

(i) for other wildlife or fish or their parts, or

(ii) for other food or for nonedible items other than
money if the exchange is of a limited and noncommer-
cial nature.

(g) Environmental impact statement not reQuired - Neither the transfer
of management authority to a State under subsection (b)(1) of this
section, nor the revocation or voluntary return of such authority under
subsection (e) of this section, shall be deemed to be an action for which
an environmental impact statement is required under section 102 of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332).

(h) Taking of imals as part of official duties -

(1) Nothing in this title shall prevent a Federal, State, or local
government official or employee or a person designated under
section 112(c) of this title from taking, in the course of his or her
duties as an official, employee, or designee, a marine mammal in
a humane manner (including euthanasia) if such taking is for

(A) the protection or welfare of the mammal,

(B) the protection of the public health and welfare, or

(2) Nothing in this title shall prevent the Secretary or a person
designated under section 112(c) of this title from importing a

Marine Mammal Protection Act
42

TRANSFER OF MANAGEMENT AUTHORITY

marine mammal into the United States if such importation is
necessary to render medical treatment that is not otherwise avail-
able.

(3) In any case in which it is feasible to return to its natural habitat
a marine mammal taken or imported under circumstances
described in this subsection, steps to achieve that result shall be
taken.

(i) Regulatio takin,g of marine mammals by Alaskan natives
- The Secretary may (after providing notice thereof in the Federal
Register and in newspapers of general circulation, and through ap-
propriate electronic media, in the affected area and providing oppor-
tunity for a bearing thereon in such area) prescribe regulations requiring
the marking, tagging, and reporting of artimals taken pursuant to section
101(b) of this title.

6) Grants to develop or administcr State conservation and management
programs - The Secretary may make grants to States to assist them-

(1) in developing programs, to be submitted for approval under
subsection (b) of this section, for the conservation and manage-
ment of species of marine mammals; and

(2) in administering such programs if management authority for
such species is transferred to the State under such subsection.

Grants made under this subsection may not exceed 50 per centurn of the
costs of developing a State program before Secretarial approval, or of
administering the program thereafter.

(k) Delegation of administration and enforcement to States - The
secretary is authorized and directed to enter into cooperative arrange-
ments with the appropriate officials of any State for the delegation to
such State of the administration and enforcement of this title: Provided,
That any such arrangement shall contain such provisions as the Secretary
deems appropriate to insure that the purposes and policies of this Act
will be carried out.

(1) Authorization of appropriations

(1) There are authorized to be appropriated to the Department
of the Interior, for the purposes of carrying out this section, not
to exceed $400,000 for each of the fiscal years ending September
0 30, 1979, September 30, 1980, and September 30, 198 1.

Marine Mammal Protection Act
43

MARINE MAMMAL RESEARCH GRANTS

(2) There are authorized to be appropriated to the Department
of Commerce, for the purposes of carrying out this section, not to
exceed $225,000 for each of the fiscal years ending September 30,
1979, September 30, 1980, and September 30, 198 1.

(Pub. L. 92-522, title 1, 109, Oct. 21,1972,86 Stat. 1040; as amended Pub. L. 95-316, 1,
Ady 10, 1978,92 Stat. 380; Pub. L. 97-86, 4(a), Oct. 9,1981,95 Stat. 982; Pub.L. 100-711,
5(a), (e)(3), Nov. 23,1988,102 Stat. 4769,4771. Codified at 16 U.S.C. 1379.)

(1988 Amendment. Subsec. (b)(1)(E). Pub.L. 100-711, 5(e)(3)(A), substituted "re-
search, public display, or enhancing the survival or recovery of a species or stock" for
"research and public display purposesw.

Subsec. (b)(3)(B)(ii). Pub.L. 100-711, 5(e)(3)(B), substituted 'research, public display,
or enhancing the survival or recovery of a species or stock" for "research or public display
purposes".

Subsec. (h). Pub.L. 100-711, 5(a), designated provisions which related to taking of
marine marnmal as part of official duties as par. (1) and, as so designated, substituted
"his or her duties" for "his dutiee, redesignated former pars. (1) to (3) as subpars. (A)
to (C), respectively, added pars. (2) and (3), and struck out pro%isions which related to
return of marnmad to its natural habitat.)

MARINE MAAVqAL RESEARCH GRANTS

Sec. 110. (a) Authorization* r@search concerning yelloNNfin tuna* annual
rQ20rt

(1) Tle Secretary is authorized to make grants, or to provide
financial assistance in such other form as he deems appropriate,
to any Federal or State agency, public or private institution, or
other person for the purpose of assisting such agency, institution,
or person to undertake research in subjects which are relevant to
the protection and conservation of marine mammals. In carrying
out this subsection, the Secretary shall under-take a program of,
and shall provide financial assistance for, research into new
methods of locating and catching yellowfin tuna without the
incidental taking of marine mammals. The Secretary shall include
a description of the annual results of research carried out under
this section in the report required under section 103(f) of this
title.

(2) For purposes of identifying appropriate research into promis-
ing new methods of locating and catching yellowfin tuna without
the incidental taking of marine mammals, the Secretary shall
contract for an independent review of information pertaining to

Marine Mammal Protection Act
44

MARINE MAMMAL RESEARCH GRANTS

-such potential alternative methods to be conducted by the Na-
tional Academy of Sciences with individuals having scientific,
technical, or other expertise that may be relevant to the identifica-
tion of promising alternative fishing techniques. The Secretary
shall request that the independent review be submitted to the
Secretary on or before September 8, 1989, and the Secretary shall
submit the report of the independent review, together with a
proposed plan for research, development, and implementation of
alterriative fishing techniques, to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives
on or before December 5, 1989.

(b) Terms and conditions - Any grant or other financial assistance
provided by the Secretary pursuant to this section shall be subject to such
terms and conditions as the Secretary deems necessary to protect the
interests of the United States and shall be made after review by the
Marine Mammal Commission.

(c) Authorization of a1212ropri at ions - There are authorized to be ap-
propriated, for the purposes of carrying out this section, not to exceed
the following sums for the following fiscal years:

(1) $2,500,000 for each of the fiscal years ending June 30, 1973,
June 30,1974, June 30,1975, September 30,1976, and September
30, 1977, of which one-third of the sum appropriated for any such
fiscal year shall be available to the Secretary of the Interior and
two-thirds of any such sum shall be available to the Secretary of
Commerce.

(2) $1,200,000, all of which shall be available to the Secretary of
the Interior, for the fiscal year ending September 30, 1978.

(3) $200,000, all of which shall be available to the Secretary of
Commerce, for the fiscal year ending September 30, 1978.

(4)(A) $1,300,000 which shall be available to the Secretary of the
Interior for the fiscal year ending September 30, 1979.

(B) $2,700,000 which shall be available to the Secretary of
Commerce for the fiscal year ending September 30, 1979.

(5)(A) S 1,500,000 which shall be available to the Secretary of the
Interior for the fiscal year ending September 30, 1980.

Marine Mammal Protection Act
45

COMMERCIAL FISHERIES GEAR DEVELOPMENT

(B) $2,700,000 which shall be available to the Secretary of
Commerce@ for the fiscal year ending September 30, 1980.

(6)(A) $2,100,000 which shall be available to the Secretary of the
Interior for the fiscal year ending September 30, 1981.

(B) $2,700,000 which shall be available to the Secretary of
Commerce for the fiscal year ending September 30, 1981.

(Pub. L. 92-522, title 1, 110, Oct. 21,1972,86 Stat. 1041; as amended Pub. L. 95-136, 1,
Oct. 18, 1977, 91 Stat. 1167; Pub. L. 95-316, 2, July 10, 1978, 92 Stat. 380; Pub.L. 97-58,
5, Oct. 9,1981,95 Stat. 986; Pub.L. 100-711, 4(e), Nov. 23,1988,102 Stat. 4768. Codiffied
at 16 U.S.C. UK)

(1988 Amendment. Subsec. (a), Pub.L. 100-711, 4(e), substituted "(I) The Secretary"
for "The Secretary", and added par. (2).

Subsec. (a). Pub.L 100-711, 6(l), added provisions which authorized appropriations
for fiscal years 1989, 19%, 1991, 1992, and 1993.)

COMMERCIAL FISHERIES GEAR DEVELOPMENT

Sec. I 11. (a) Research and development programe report to Congress:
authorization of appropriations - The Secretary of the department in
which the National Oceanic and Atmospheric Administration is operat-
ing (hereafter referred to in this section as the "Secretary") is hereby
authorized and directed to immediately undertake a program of research
and development for the purpose of devising improved fishing methods
and gear so as to reduce to the maximum extent practicable the incidental
taking of marine mammals in connection with commercial fishing. At
the end of the full twenty-four calendar month period following October
21, 1972, the Secretary shall deliver his report in writing to the Congress
with respect to the results of such research and development. For the
purposes of this section, there is hereby authorized to be appropriated
the sum of $1,000,000 for the fiscal year ending June 30, 1973, and the
same amount for the next fiscal year. Funds appropriated for this section
shall remain available until expended.

(b) Reduction of level of taking of ma als incidental to com-
mercial fishing operations - The Secretary, after consultation with the
Marine Mammal Commission, is authorized and directed to issue, as
soon as practicable, such regulations, covering the twenty-four-month
period referred to in section 101(a)(2) of this title, as he deems necessary
or advisable, to reduce to the lowest practicable level the taking of
marine mammals incidental to commercial fishing operations. Such

Marinc Mammal Protection Act
46

REGULATIONS AND ADKIINISTRATION

regulations shall be adopted pursuant to section 553 of title 5, United
States Code. In issuing such regulations, the Secretary shall take into
account the results of any scientific research under subsection (a) of this
section and, in each case, shall provide a reasonable time not exceeding
four months for the persons affected to implement such regulations.

(c) Reduction of level of taking of marinC marrim,91S in tuna fishely
Additionally, the Secretary and Secretary of State are directed to com-
mence negotiations within the Inter-American Tropical Tuna Commis-
sion in order to effect essential compliance with the regulatory provisions
of this Act so as to reduce to the maximum extent feasible the incidental
taldng of marine mammals by vessels involved in the tuna fishery. The
Secretary and Secretary of State are further directed to request the
Director of Investigations of the Inter-American Tropical Tuna Com-
mission to make recommendations to all member nations of the Com-
mission as soon as is practicable as to the utilization of methods and gear
devised under subsection (a) of this section.

(d) Research and observation - Furthermore, after timely notice and
during the period of research provided in this section, duly authorized
agents of the Secretary are hereby empowered to board and to accom-
pany any commercial fishing vessel documented under the laws of the
United States, there being space available, on a regular fishing trip for
the purpose of conducting research or observing operations in regard to
the development of improved fishing methods and gear as authorized by
this section. Such research and observation shall be carried out in such
manner as to minimize interference with fishing operations. The
Secretary shall provide for the cost of quartering and maintaining such
agents. No master, operator, or owner of such a vessel shall impair or in
any way interfere with the research or observation being carried out by
agents of the Secretary pursuant to this section.

(Pub. L. 92-522, title 1, 111, Oct. 21,1972,86 Stat. 1041. Codified at 16 U.S.C. lul.)

REGUIAMNS AND ADMMgMT10N

Sec. 112. (a). Consultation with Federal ngencier, - Ile Secretary, in
consultation with any other Federal agency to the extent that such agency
may be affected, shall prescribe such regulations as are necessary and
appropriate to carry out the purposes of this title.

(b) Cooperation by Fedcral agencies - Each Federal agency is authorized
and directed to cooperate with the Secretary, in such manner as may be
mutually agreeable, in carrying out the purposes of this title.

Marine Mammal Protection Act
47

APPUCATION TO OTHER TREATIES AND CONVENTIONS; REPEAL

(c) Contracts. leases, and coQ_ erative a-greements -ne Secretary may
enter into such contracts, leases, cooperative agreements, or other trans-
actions as may be necessary to carry out the purposes of this title and on
such terms as he deems appropriate with any Federal or State agency,
public or private institution, or other person.

(d) Annual reviewe suspension of program - The Secretary shall review
annually the operation of each program in which the United States
participates involving the taking of marine mammals on land. If at any
time the Secretary finds that any such program cannot be administered
on lands owned by the United States or in which the United States has
an interest in a manner consistent with the purposes of policies of this
Act, he shall suspend the operation of that program and shall include in
the annual report to the public and the Congress required under section
103(f) of this title his reasons for such suspension, together with recom-
mendations for such legislation as he deems necessary and appropriate
to resolve the problem.

(Pub. L. 92-522, title 1, 112, Oct. 21, 1972, 86 Stat. 1042; as amended Pub. L. 95-136, 1,
Oct. 18,1977,91 Stat. 1167; Pub. L. 95-316, 2, July 10, 1978,92 Stat. 380; Pub. L. 96470,
title 11, 201(e), Oct. 19, 1980, 94 Stat. 2241. Codified at 16 U.S.C. 1382.)

APPLICATION TO OTHER TREATIES AND
CONVENTIONS; REPEAL

Sec. 113. (a) The provisions of this title shall be deemed to be in addition
to and not in contravention of the provisions of any existing international
treaty, convention, or agreement, or any statute implementing the same,
which may otherwise apply to the taking of marine mammals. Upon a
finding by the Secretary that the provisions of any international treaty,
convention, or agreement, or any statute implementing the same has
been made applicable to persons subject to the provisions of this title in
order to effect essential compliance with the regulatory provisions of this
Act so as to reduce to the lowest practicable level the taking of marine
mammals incidental to commercial fishing operations, section 105 of tbis
title may not apply to such persons.

(b) The proviso to the Act entitled "An Act to repeal certain laws
providing for the protection of sea lions in Alaska water", approved June
16, 1934 (16 U.S.C. 659), is repealed.

(Pub. L. 92-522, title 1, 113, Oct. 21, 1972, 86 Stat. 1042. Subsection (a) codified at 16
U.S.C. 1383, and subsection (b) codified at 16 U.S.C. 659.)

Marine Marnmad Protection Act
48

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

MIRIM EXEMP111ON FOR CONMERCIAL FISHERIES

Sec. 114. (a) Effective and termination dates of prcernl2tive
law governing incidental taking of marine ma mals in course of com-
merdal yello@rfin tuna fishing __

(1) During the period beginning on November 23, 1988, and
ending October 1, 1993, except as provided in paragraph (2), the
provisions of this section, rather than sections 101, 103, and 104
of this title, shall govern the incidental taking of marine mammals
in the course of commercial fishing operations by persons using
vessels of the United States and vessels which have valid fishing
permits issued by the Secretary in accordance with section 204(b)
of the Magnuson Fishery Conservation and Management Act (16
U.S.C. 1824(b)). In any event it shall be the immediate goal that
the incidental kill or serious injury of marine mammals permitted
in the course of commercial fishing operations be reduced to
insignificant levels approaching a zero mortality and serious in-
jury rate.

(2) The provisions of this section other than subsection (e)(6)(A)
of this section shall not govern the incidental taking of marine
mammals in the course of commercial yellowfin tuna fishing
subject to section 104(h)(2) of this title.

(b) Proposed and final list of fisheries taking marine mammals* publi-
cation in Federal Register@ grant of exemption: conditions: susl2ensiOn
of grant of exemptior@ admiriistration of e@e . ' risionse fees -

(1) The Secretary shall, after consultation with the Marine Mam-
mal Commission -

(A) publish in the Federal Register, for public comment, not
later than sixty days after November 23, 1988, a proposed list
of those fisheries, along with a statement of the marine mam-
mals and the approximate number of vessels or persons in-
volved in each such fishery, that have -

(i) frequent incidental taking of marine mammals;

(ii) occasional incidental taking of marine mammals;
or

Marine Mammal Protection Act
49

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(iii) a remote likelihood of or no known incidental
taking of marine mammals;

(B) publish in the Federal Register not later than one hundred
and twenty days after November 23, 1988, a :final list of the
fisheries and other information required by paragraph (A),
together with a summary of the provisions of this section and
information sufficient to advise vessel owners on how to obtain
an exemption and otherwise comply with the requirements of
this section; and

(C) at least once each year thereafter, and at such other times
as the Secretary considers appropriate, reexamine, based on
information gathered from the program established under
subsections (c), (d), (e), and (f) of this section, and other
relevant sources and after notice and opportunity for public
comment, the classification of fisheries and other determina-
tions required under subparagraph (A) and publish in the
Federal Register any necessary changes.

(2)(A) An exemption shall be granted by the Secretary in accord-
ance with this section for a vessel engaged in a fishery iden-
tified under paragraph (1)(A)(i) or (ii), upon receipt by the
Secretary of a completed registration form providing the name
of the vessel owner, the name and description of the vessel, the
fisheries in which it will be engaged, and such other informa-
tion as the Secretary considers necessary. A decal or other
physical evidence that the exemption is current and valid shall
be issued by the Secretary at the time an exemption is granted,
and so long as the exemption remains current and valid, shall
be reissued annually thereafter.

(B) No exemption may be granted under this section to the
owner of a vessel unless such vessel -

(i) is a vessel of the United States; or

(ii) has a valid fishing permit issued by the Secretary
in accordance with section 204(b) of the Magnuson
Fishery Conservation and Management Act (16
U.S.C. 1824(b)).

(C) Notwithstanding any other provision of this title, exemp-
tions granted under this section shall authorize the incidental
taking of marine mammals, other than California sea otters,
from any species or stock, including a population stock desig-

Marine Mammal Protection Act
50

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

nated as depleted, but shall not authorize the intentional lethal
taking of any Steller sea lion, any cetacean, or any marine
mammals from a population stock designated as depleted.

(3)(A) Beginning two hundred and forty days after November 23,
1988, each owner of a vessel engaged in any fishery identified
under paragraph (1)(A)(i) or (H) shall, in order to engage
lawfully in that fishery -

(i) have registered with the Secretary in order to obtain
for each such vessel owned an exemption for the pur-
pose of incidentally taking marine marnmals in accord-
ance with this section;

(ii) ensure that a decal or such other physical evidence
of a current and valid exemption as the Secretary may
require is displayed on or is in the possession of the
master of each such vessel; and

(iii) report as required by subsection (c) of this section.

(B) Any owner of a vessel receiving an exemption under this
section for any fishery identified under paragraph (1)(A)(i)
shall, as a condition of that exemption, take on board a natural
resource observer if requested to do so by the Secretary.

(i) fails to obtain from the Secretary an exemption
under this section;

(ii) fails to maintain a current and valid exemption; or

(iii) fails to ensure that a decal or other physical
evidence of such exemption issued by the Secretary is
displayed on or is in possession of the master of the
vessel,

and the master of any such vessel engaged in such fishery, shall
be deemed to have violated this title, and shall be subject to
the penalties of this title except in the case of unknowing
violations before January 1, 1990.

(D) If the owner of a vessel has obtained and maintains a
current and valid exemption from the Secretary under this

Marine Mammal Protection Act
C1

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

section and meets the requirements set forth in this section,
the owner of such vessel, and the master and crew members of
the vessel, ghall not be subject to the penalties set forth in this
title for the incidental taking of marine mammals while such
vessel is engaged in a fishery to which the exemption applies.

(E) Each owner of a vessel engaged in any fishery not iden-
tified in paragraph (1)(A)(i) or (H), and the master and crew
members of such a vessel, shall not be subject to the penalties
set forth in this title for the incidental taking of marine mam-
mals if such owner reports to the Secretary, in such form and
manner as the Secretary may require, instances of lethal in-
cidental taking in the course of that fishery.

(4) The Secretary shall suspend or revoke an exemption granted
under this section and shall not issue a decal or other physical
evidence of the exemption for any vessel until the owner of such
vessel complies with the reporting requirements under subsec-
tion (c) of this section and such requirements to take on board a
natural resource observer under paragraph (3)(B) as are ap-
plicable to such vessel.

(5)(A) The Secretary shall develop, in consultation with the
appropriate States, Regional Fishery Management Councils,
and other interested parties, the means by which the granting
and administration of exemptions under this section shall be
integrated and coordinated, to the maximum extent prac-
ticable, with existing fishery licenses, registrations, and related
programs.

(B) The Secretary shall utilize newspapers of general circula-
tion, fishery trade associations, electronic media, and other
means of advising commercial fishermen of the provisions of
this section and the means by which they can comply with its
requirements.

(C) Ile Secretary is authorized to charge a fee for the granting
of an exemption under this subsection. Ile level of fees
charged under this subparagraph shall not exceed the ad-
ministrative costs incurred in granting an exemption. Fees
collected under this subparagraph shall be available to the
Under Secretary of Commerce for Oceans and Atmosphere
for expenses incurred in the granting and administration of
exemptions under this section.

Marine Mammal Protection Act
52

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(c) Compilation of information by vessel owners; contents - The owner
of each vessel holding an exemption granted under subsection (b) of this
section shall regularly compile information which shall be used in a
report to be submitted to the Secretary at the close of the fishing season
or annually, as the Secretary may prescribe. Such report shall be sub-
mitted in such form as the Secretary may require and shall include the
Mowing:

(1) the type of fishery engaged in by the owner's vessel;

(2) the date and approximate time of any incidental taking of a
marine mammal, together with the area in which the incidental
taking occurred, the fishing gear used at the time of the incidental
taking, and the species of fish involved; and

(3) for each incidental taking, the number and species of marine
mammals involved, whether the marine mammals were deterred
from gear or catch, incidentally injured, incidentally killed, or
lethally removed to protect gear, catch, or human life.

If there was no incidental taking of marine mammals during the reporting
period, a report stating that fact shall be filed with the Secretary.

(d) Program for enhancement and verification of information received
from vessel ownerse confidentiality of information -

(1) The Secretary shall establish a program to enhance the qualify
of and verify information received from reports submitted by
owners of vessels who have been granted an exemption under
subsection (b) of this section. 'ne program shall include, but not
be limited to -

(A) education efforts regarding the information that must be
subm@itted;

(B) interviews with fishermen; and

(C) other such information gathering and verification ac-
tivities that will enable the Secretary to determine reliably the
nature, type, and extent of the incidental taking of marine
mammals that occurs in a fishery.

Except to the extent authorized by the provisions of subsection (e) of this
section, the program shall not include placement of observers aboard
exempted vessels.

Marine Mammal Protection Act
53

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(2) Information obtained under this subsection shall be subject
to the confidentiality provisions of subsection 0) of this section.

(e) Observers on bo ard exempted yessels* confidentiality of informa-
tion@ authorization of appropriations -

(1) For each fishery identified under subsection (b)(1)(A)(i) of
this section, the Secretary shall, after consultation with the ap-
propriate Regional Fishery Management Councils, other Federal
and State agencies, and other interested parties, and subject to
paragraph (6), place observers on board exempted vessels so as
to monitor not less than 20 percent nor more than 35 percent of
the fishing operations by vessels in the fishery to obtain statisti-
cally reliable information on the species and number of marine
mammals incidentally taken in the fishery. If the Secretary deter-
mines that fewer than 20 percent of the fishing operations by
vessels in the fishery will be monitored during the course of the
fishing season, the Secretary shall implement the alternative
observation program described in subsection (f) of this section to
the extent necessary to supplement the observer program
described in this subsection.

(2) When determining the distribution of observers among
fisheries and between vessels in a particular fishery, the Secretary
shall be guided by the following standards:

(A) the requirement to obtain the best scientific information
available;

(B) the requirement that assignment of observers is fair and
equitable among fisheries and among vessels in a fishery;

(C) consistent with paragraph (1), the requirement that no
individual person or vessel, or group of persons or vessels, be
subject to excessive or overly burdensome observer coverage;
and

(D) where practicable, the need to minimize costs and avoid
duplication.

(3) If the Secretary finds that, for reasons beyond his or her
control, the Secretary cannot assign observers to all the fisheries
identified under subsection (b)(1)(A)(i) of this section at the
level of observer coverage set forth in paragraph (1), the
Secretary shall allocate available observers among such fisheries,
consistent with paragraph (2), according to the following priority:

Marine Mammal Protection Act
54

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(A) those fisheries that incidentally take marine mammals
40 from any population stock designated as depleted;

(B) those fisheries that incidentally take marine mammals
from population stocks that the Secretary believes are declin-
ing;

(C) those fisheries other than those described in sub-
paragraphs (A) and (B) in which the greatest incidental take
of marine mammals occur; and

(D) any other fishery identified under subsection (b)(1)(A)(i)
of this section.

The Secretary may, with the consent of the vessel owner, station
an observer on board a vessel engaged in a fishery not identified
under subsection (b)(1)(A)(i) of this section.

(4) Information gathered by observers shall be subject to the
provisions of subsection 6) of this section. Consistent with the
requirements of paragraph (1), the Secretary shall, if requested
by the Appropriate Regional Fishery Management Council, or in
the case of a State fishery, the State, require observers to collect
additional information, including but not limited to the quan-
tities, species, and physical condition of target and non-target
fishery resources and, if requested by the Secretary of the Inte-
rior, seabirds.

(5) Notwithstanding the provisions of paragraph (4), the
Secretary may decline to require observers to collect information
described in such paragraph, if the Secretary finds in writing,
following public notice and opportunity for comment, that such
information will not contribute to the protection of marine mam-
mals or the understanding of the marine ecosystem, including
fishery resources and seabirds.

(6) The Secretary shall not be required to place an observer on a
vessel in a fishery if the Secretary finds that -

(A) in a situation where harvesting vessels are delivering fish
to a processing vessel and the catch is not taken on board the
harvesting vessel, statistically reliable information can be ob-
tained from an observer on board the processing vessel to
0 which the fish are delivered;

Marine Marnmal Protection Act
55

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(B) the facilities of a vessel for the quartering of an observer,
or for carrying out observer functions, are so inadequate or
unsafe that the health or safety of the observer or the safe
operation of the vessel would be jeopardized; or

(7)(A) An observer on a vessel (or the observer's personal rep-
resentative) under the requirements of this section or section
104 of this title that is M, disabled, injured, or killed from
service as an observer on that vessel may not bring a civil action
under any law of the United States for that illness, disability,
injury, or death against the vessel or vessel owner, except that
a civil action may be brought against the vessel owner for the
owner's willful misconduct.

(B) This paragraph does not apply if the observer is engaged
by the owner, master, or individual in charge of a vessel to
perform any duties in service to the vessel.

(8) There are authorized to be appropriated to the Department
of Commerce for the purposes of carrying out this subsection not
to exceed $2,700,000 for fiscal year 1989 and not to exceed
$8,000,000 for each of the fiscal years 1990, 1991, 1992, and 1993.

(f) Alternative observation program -

(1) The Secretary shall establish an alternative observation pro-
gram to provide statistically reliable information on the species
and number of marine mammals incidentally taken in those
fisheries identified pursuant to subsection (b)(1)(A)(i) of this
section for which the required level of observer coverage has not
been met or for any other fisheries about which such reliable
information is not otherwise available. The alternative program
shall include, but not be limited to, direct observation of fishing
activities from vessels, airplanes, or points on shore.

(2) Individuals engaged in the alternative observation program
shall collect scientific information on the fisheries subject to
observation, consistent with the requirements of paragraph (1)
and subsection (e)(4) and (5) of this section. AJI information
collected shall be subject to the provisions of subsection 0) of this
section.

Marine Mammal Protection Act
56

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(g) Review of information and!t-valuation of effects of incidental taking
on population stocks of marine marnmalso promul,gation of em - -
re6lations to mitfgate immCdiate and Icts; Actioa-M
7
miligair. non-immedi@ate impacts -

(1) The Secretary shall review information regarding the inciden-
tal taking of marine mammals and evaluate the effects of such
incidental taking on the affected population stocks of marine
mammals.

(2) If the Secretary finds, based on the information received from
the programs established under subsections (c), (d), (e), and (f)
of this section, that the incidental taking of marine mammals in a
fishery is having an immediate and significant adverse impact on
a marine mammal population stock or, in the case of Steller sea
lions and North Pacific fur seals, that more than 1,350 and 50,
respectively, will be incidentally killed during a calendar year, the
Secretary shall consult with appropriate Regional Fishery
Management Councils and State fishery managers and prescribe
emergency regulations to prevent to the maximum extent prac-
ticable any further taking. Any emergency regulations prescribed
under this paragraph

(A) shall, to the maximum extent practicable, avoid interfering
with existing State or regional fishery management plans;

(B) shall be published in the Federal Register together with
the reasons therefor;

(C) shall remain in effect for not more than one hundred and
eighty days or until the end of the fishing season, whichever is
earlier; and

(D) may be terminated by the Secretary at an earlier date by
publication in the Federal Register of a notice of termination
if the Secretary determines the reasons for the emergency
regulations no longer exist.

In prescribing emergency regulations under this paragraph, the
Secretary shall take into account the economics of the fishery
concerned and the availability of existing technology to prevent
or minimize incidental taking of marine mammals.

(3) If the Secretary finds, based on information received from the
programs established under subsections (c), (d), (e), and (f) of
this section, that incidental taking of marine mammals in a fishery

Marine Mammal Protection Act
57

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

is not having an immediate and significant adverse impact on a
marine mammal population stock but that it will likely have a
significant adverse impact over a period of time longer than one
year, the Secretary shall request the appropriate Regional
Fishery Management Council or State JLo initiate, recommend, or
take such action within its authority as it considers necessary to
mitigate the adverse impacts, including adjustments to require-
ments on fishing times or areas or the imposition of restrictions
on the use of vessels or gear.

(4) Ile Secretary shall impose appropriate conditions and
restrictions on an exemption granted under subsection (b) of this
section if -

(A) a Regional Fishery Management Council or State does not
act in a reasonable period of time on a request made by the
Secretary under paragraph (3); or

(B) if the Secretary determines after notice and opportunity
for public comment that the purposes of this section would be
better served by such action.

(h) Information and man2gement -,yqtem for processing and 2nalyzing
reports and iaf.Qrmation: @cctssihjiijy to 12uhiic - The Secretary shall
design and implement an information management system capable of
processing and analyzing reports received from the programs established
under subsections (c), (d), (e), and (f) of this section, and other relevant
sources, including Federal and State enforcement authorities, marine
mammal stranding networks, and the marine mammal researchers. The
information shall be made accessible to the public on a continuing basis,
but in any case no later than six months after it is received, subject to the
provisions of subsection 6) of this section.

(i) Utilization of services of State and Federal d private
entities - When carrying out the Secretary's responsibilities under sub-
sections (b), (d), (e), (f), and (h) of this section, the Secretary shall, to
the maximum extent practicable, utilize the services and programs of
State agencies, Federal agencies (including programs established by
Regional Fishery Management Councils), marine fisheries commissions,
universities, and private entities, on a reimbursable basis or otherwise.
The Secretary is authorized to enter into contracts and agreements to
carry out his or her responsibilities and shall establish appropriate
guidelines to ensure that other programs used or contracted for will meet
the same standards as a program established by the Secretary. A person
contracting with the Secretary to provide observer services under sub-
section (e) of this section must provide evidence of financial respon-

Marine Mammal Protection Act
58

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

sibility in an amount and form prescribed by the Secretary to compensate
employees (or their 'survivors) adequately for any illness, disability,
injury, or death from service on a vessel.

0) Confidentiality of informationo exceptions -

(1) Any information collected under subsection (c), (d), (e), (f),
or (h) of this section shall be confidential and shall not be dis-
closed except -

(A) to Federal employees whose duties require access to such
information;

(B) to State employees pursuant to an agreement with the
Secretary that prevents public disclosure of the identity or
business of any person;

(D) in the case of scientific information involving fisheries, to
employees of Regional Fishery Management Councils who are
responsible for fishery management plan development and
monitoring.

(2) The Secretary shall prescribe such procedures as may be
necessary to preserve such confidentiality, except that the
Secretary shall release or make public any such information in
aggregate, summary, or other form which does not directly or
indirectly disclose the identity or business of any person.

(k) Regulations - The Secretary, in consultation with any other Federal
agency to the extent that such agency may be affected, shall prescribe
such regulations as necessary and appropriate to carry out the purposes
of this section.

(1) Suggcsted r rning incidental taking of marine mammals
folloyAng termination of interim exemptions -

(1) The Chairman of the Marine Mammal Commission shall,
after consultation with interested parties and not later than
February 1, 1990, transmit to the Secretary and make available to
the public recommended guidelines to govern the incidental
taking of marine mammals in the course of commercial fishing
operations, other than those subject to section 104(h)(2) of this
title, after October 1, 1993. Such guidelines shall be developed

Marine Mammal Protection Act
59

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

by the Commission and its Committee of Scientific Advisers on
Marine Mammals and shall -

(A) be designed to provide a scientific rationale and basis for
determining bow many marine mammals may be incidentally
taken under a regime to be adopted to govern such taking after
October 1, 1993;

(B) be based on sound principles of wildlife management, and
be consistent with and in furtherance of the purposes and
policies set forth in this Act; and

(C) to the maximum extent practicable, include as factors to
be considered and utilized in determining permissible levels
of such taking -

(i) the status and trends of the affected marine mam-
mal population stocks;

(ii) the abundance and annual net recruitment of such
stocks;

(iii) the level of confidence in the knowledge of the
affected stocks; and

(iv) the extent to which incidental taking will likely
cause or contribute to their decline or prevent their
recovery to optimum sustainable population levels.

(2) The Secretary shall advise the Chairman of the Commission
in writing if the Secretary determines that any additional infor-
mation or explanation of the Chairman's recommendations is
needed, and the Chairman shall respond in writing to any such
request by the Secretary.

(3) On or before February 1, 1991, the Secretary, after consult-
ation with the Marine Mammal Commission, Regional Fishery
Management Councils, and other interested governmental and
nongovernmental organizations, shall publish in the Federal
Register, for public comment, the suggested regime that the
Secretary considers should, if authorized by enactment of any
additional legislation, govern incidental taking of marine mam-
mals, other than those subject to section 104(h)(2) of this title,
after October 1, 1993. The suggested regime shall include -

Marine Mammal Protection Act
60

INTERIM EXEMPTION FOR COMMERCIAL FISHERIES

(A) the scientific guidelines to be used in determining permis-
sible levels of incidental taking;

(B) a description of the arrangements for consultation and
cooperation with other Federal agencies, the appropriate
Regional Fishery Management CouncUs and States, the com-
mercial fishing industry, and conservation organizations; and

(4) On or before January 1, 1992, the Secretary, after consultation
with the Marine Mammal Commission, and consideration of
public comment, shall transmit to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives
recommendations pertaining to the incidental taking of marine
mammals, other than those subject to section 104(h)(2) of this
title, after October 1, 1993. The recommendations shall include

(A) the suggested regime developed under paragraph (3) of
this subsection as modified after comment and consultations;

(B) a proposed schedule for implementing the suggested
regime; and

(C) such recommendations for additional legislation as the
Secretary considers necessary or desirable to implement the
suggested regime.

(m) Consultation with Secretary of Interior - The Secretary shall consult
with the Secretary of the Interior prior to taking actions or making
determinations under this section that affect or relate to species or
population stocks of marine inammals for which the Secretary of the
Interior is responsible under this Act.

(n) Owner of fixed commercial fishing gear deemed owner of vessel
engaged in fishery in which gg-ar deployed - For the purposes of this
section, the owner of fixed or other commercial fishing gear that is
deployed with or without the use of a vessel shall be deemed to be an
owner of a vessel engaged in the fishery in which that gear is deployed.

(o) Definitions - As used in this section -

Marine Mammal Protection Act
61

STATUS REVIEW; CONSERVATION PLANS

(1) the term "fishery" has the same meaning as it does in section
3(8) of the Magnuson Fishery Conservation and Management
Act (16 U.S.C. 1802(8)).

(2) the term "Secretary" means the Secretary of Commerce.

(3) the term "vessel engaged in a fishery" means a fishing vessel
as defined in section 2101(11a) of Title 46, United States Code,
or a fish processing vessel as defined in section 2101(11b) of that
title, which is engaged in fishery.

(4) the term "vessel of the United States has the same meaning
as it does in section 3(27) of the Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1802(27)).

(Pub.L. 92-522, Title 1, 114, as added Pub.L. 100-711, 2(a)(2), Nov. 23, 1988, 102 Stat.
4755. Codified at 16 U.S.C. 1383a.)

STATUS REVIEW; CONSERVATION PLANS

Sec. 115. (a) Determinations by rule* notice and hearing: findings: final
rule on statu-; of species or stoQk involved -

(1) In any action by the Secretary to determine if a species or stock
should be designated as depleted, or should no longer be desig-
nated as depleted, regardless of whether such action is taken on
the initiative of the Secretary or in response to a petition for a
status review, the Secretary shall only make such a determination
by issuance of a rule, after notice and opportunity for public
comment and after a call for information in accordance with
paragraph (2).

(2) The Secretary shall make any determination described in
paragraph (1) solely on the basis of the best scientific information
available. Prior to the issuance of a proposed rule concerning any
such determination, the Secretary shall publish in the Federal
Register a call to assist the Secretary in obtaining scientific infor-
mation from individuals and organizations concerned with the
conservation of marine mammals, from persons in any industry
which might be affected by the determination, and from academic
institutions. In addition, the Secretary shall utilize, to the extent
the Secretary determines to be feasible, informal working groups
of interested parties and other methods to gather the necessary
information.

Marine Mammal Protection Act
62

STATUS RE\nEW; CONSERVATION PLANS

(3)(A) If the Secretary receives a petition for a status review as
described in paragraph (1), the Secretary shall publish a notice
in the Federal Register that such a petition has been received
and is available for public review.

(B) Within sixty days after receipt of the petition, the Secretary
shall publish a finding in the Federal Register as to whether
the petition presents substantial information indicating that
the petitioned action may be warranted.

(C) If the Secretary makes a positive finding under sub-
paragraph (B), the Secretary shall include in the Federal
Register notice, a finding that -

(i) a review of the status of the species or stock will be
commenced promptly; or

(ii) a prompt review of the petition is precluded by
other pending status determination petitions and that
expeditious progress is being made to process pending
status determination petitions under this title.

In no case after making a finding under this subparagraph shall
the Secretary delay commencing a review of the status of a
species or stock for more than one hundred and twenty days
after receipt of the petition.

(D) No later than two hundred and ten days after the receipt
of the petition, the Secretary shall publish in the Federal
Register a proposed rule as to the status of the species or stock,
along with the reasons underlying the proposed status deter-
mination. Persons shall have at least sixty days to submit
comments on such a proposed rule.

(E) Not later than ninety days after the close of the comment
period on a proposed rule issued under subparagraph (D), the
Secretary shall issue a final rule on the status of the species or
stock involved, along with the reasons for the status determina-
tion. If the Secretary finds with respect to such a proposed rule
that there is substantial disagreement regarding the sufficiency
or accuracy of the available information relevant to a status
determination, the Secretary may delay the issuance of a final
rule for a period of not more than six months for purposes of
soliciting additional information.

Marine Mammal Protection Act
63

STATUS REVIEW; CONSERVATION PLANS

(F) Notwithstanding subparagraphs (D) and (E) of this para-
graph and section 553 of title 5, United States Code, the
Secretary may issue a final rule as to the status of a species or
stock any time sixty or more days after a positive finding under
subparagraph (B) if the Secretary determines there is substan-
tial information available to warrant such final status deter-
mination and further delay would pose a significant risk to the
well-being of any species or stock. Along with the final rule,
the Secretary shall publish in the Federal Register detailed
reasons for the expedited determination.

(b) Conservation 121anso preparation and implementation -

(1) The Secretary shall prepare conservation plans -

(A) By December 31, 1989, for North Pacific fur seals;

(B) by December 31, 1990, for Steller sea lions; and

(C) as soon as possible, for any species or stock designated as
depleted under this title, except that a conservation plan need
not be prepared if the Secretary determines that it will not
promote the conservation of the species or stock.

(2) Each plan shall have the purpose of conserving and restoring
the species or stock to its optimum sustainable population. The
Secretary shall model such plans on recovery plans required
under section 4(f) of the Endangered Species Act of 1973 (16
U.S.C. 1533(f)).

(3) The Secretary shall act expeditiously to implement each con-
servation plan prepared under paragraph (1). Each year, the
Secretary shall specify in the annual report prepared under sec-
tion 103(f) of this title what measures have been taken to prepare
and implement such plans.

(Pub.L. 92-522, Title 1, 115, as added Pub.L. 100-711, 3, Nov. 23, 1988, 102 Stat. 4763.
Codiried at 16 U.S.C. 1M3b.)

Marine Mammal Protection Act
64

AUTHORIZATION OF APPROPRIATIONS

AUTHORIZAnON OF APPROPRIAUONS

Sec. 116. (a) Department of Commerce - There are authorized to be
appropriated to the Department of Commerce, for purposes of carrying
out such functions and responsibilities as it may have been given under
this title (other than section 104(h)(3) of this title), $7,223,000 for fiscal
year 1982, $8,000,000 for fiscal year 1983, and $8,800,000 for each of
fiscal years 1984, 1985, 1986, 1987, and 1988. There are authorized to be
appropriated to the Department of Commerce, for purposes of carrying
out such functions and responsibilities as it may have been given under
this title (other than section I 14(e)(8) of this title), S 12,250,000 for fiscal
year 1989, $12,740,000 for fiscal year 1990, $13,250,000 for fiscal year
1991, $13,780,000 for fiscal year 1992, and $14,331,000 for fiscal year
1993.

(b) Department of Interior -There are authorized to be appropriated to
the Department of the Interior, for purposes of carrying out such func-
tions and responsibilities as it may have been given under this title,
$1,600,000 for fiscal year 1982, $1,760,000 for fiscal year 1983, $2,000,000
for fiscal year 1984, $2,500,000 for fiscal year 1985, $3,000,000 for each
of fiscal years 1986, 1987, 1988, and 1989, $3,120,000 for fiscal year 1990,
$3,240,000 for fiscal year 1991, $3,370,000 for fiscal year 1992, and
$3,500,000 for fiscal year 1993.

(Pub. L. 92-522, title 1, 114, Oct. 21,1972,86 Slat. 10-43; as amended Pub. L. 95-06, 2,
Oct. 18,1977,91 Slat. 1167; Pub. L. 95-316, 3, July 10, 1978,92 Slat. 380; Pub. L. 97-58,
7(a), (b), Oct. 9,1981,95 Slat. 987; Pub. L. 98-364, title 1, 104(l),(2), July 17,1984,98
Slat. 442; Pub.L. 100-711, 6(l), (2), Nov. 23, 1988, 102 Slat. 4771. Codified at 14 U.S.C.
1394.)

(Subsec. (b). Pub.L. 100-711, 6(2), struck out "and" following "fiscal year 1985,", and
substituted'1988, and 1989, S3,120,000 for fiscal year 1990,S3,240,000 for fiscal year 1991,
S3,370,000 for fiscal year 1992, and $3,5W,000 for fiscal year 1993" for "and 1988".)

(Prior Provisions. A prior section 116, Pub.L. 92-522, Title 1, 116, formerly 114, Oct.
21,1972,86 Slat. 1043; Pub.L. 95-136, 2, Oct, 18,1977,91 Slat. 1167; Pub.L. 95-316, 3,
July 10, 1978,92 Slat. 380, renumbered Pub.L. 1,30-711, 2(a)(1), Nov. 23,1988,102 Slat.
4755, authorized appropriations for the Department of Commerce and for the Depart-
ment of the Interior to carry out such functions and responsibilities as they might have
been given under this title through the fiscal year ending Sept. 30, 1981.)

Marine Mammal Protection Act
65

ESTABLISHMENT OF COMMISSION

TITLE H - MARINE MAMMAL COMMISSION

ESTABLISHMENT OF COMMSSION

Sec. 201. (a) Desi2nation - T'here is hereby established the Marine
Mammal Commission (hereafter refer-red to in this title as the "Commis-
sion").

(b) M!@mbership and term of office -

(1) Effective September 1, 1982, the Commission shall be com-
posed of three members who shall be appointed by the President,
by and with the advice and consent of the Senate. The President
shall make his selection from a list of individuals knowledgeable
in the fields of marine ecology and resource management, and
who are not in a position to profit from the taking of marine
mammals. Such list shall be submitted to him by the Chairman
of the Council on Environmental Quality and unanimously
agreed to by that Chairman, the Secretary of the Smithsonian
Institution, the Director of the National Science Foundation and
the Chairman of the National Academy of Sciences. No member
of the Commission may, during his period of service on the
Commission, hold any other position as an officer or employee of
the United States except as a retired officer or retired civilian
employee of the United States.

(2) The term of office for each member shall be three years;
except that of the members initially appointed to the Commis-
sion, the term of one member shall be for one year, the term of
one member shall be for two years, and the term of one member
shall be for three years. No member is eligible for reappoint-
ment; except that any member appointed to fill a vacancy occur-
ring before the expiration of the term for which his predecessor
was appointed (A) shall be appointed for the remainder of such
term, and (B) is eligible for reappointment for one full term. A
member may serve after the expiration of his term until his
successor has taken office.

Marine Mammal Protection Act
66

DLMES OF COMMISSION

(c) Chairman - The President shall designate a Chairman of the Com-
mission (hereafter referred to in this title as the "Chairman") from among
its members.

(d) Compensationo reimbursement for travel expenses - Members of the
Commission shall each be compensated at a rate equal to the daily
equivalent of the rate for GS-18 of the General Schedule under section
5332 of title 5, United States Code, for each day such member is engaged
in the actual performance of duties vested in the Commission. Each
member shall be reimbursed for travel expenses, including per them in
lieu of subsistence, as authorized by section 5703 of title 5, United States
Code, for persons in Government service employed intermittently.

(e) Executive Director - The Conunission shall have an Executive Direc-
tor, who shall be appointed (without regard to the provisions of title 5
governing appointments in the competitive service) by the Chairman
with the approval of the Commission and shall be paid at a rate not in
excess of the rate for GS-18 of the General Schedule under section 5332
of title 5, United States Code. 'ne Executive Director shall have such
duties as the Chairman may assign.

(Pub. L. 92-522, title 11, 201, Oct. 21,1972, 86 Stat. 1043; As amended Pub. L. 97-389,
Title Il, 202, Dec. 29, 1982, 96 Stat. 1951; Pub. L. 98-36.4, title I, 103(a), July 17, 1984,
98 Stat. 441. Codified at 16 U.S.C. 1401.)

DUTIES OF CONBUSSION

Sec. 202.(a) Reports and recommendations - The Commission shall -

(1) undertake a review and study of the activities of the United
States pursuant to existing laws and international conventions
relating to marine mammals, including, but not limited to, the
International Convention for the Regulation of Whaling, the
Whaling Convention Act of 1949 (16 U.S.C. 916 et seq.), the
Interim Convention on the Conservation of North Pacific Fur
Seals, and the Fur Seal Act of 1966 (16 U.S.C. 1151 et seq.);

(2) conduct a continuing review of the condition of the stocks of
marine mammals, of methods for their protection and conserva-
tion, of humane means of taldng marine mammals, of research
programs conducted or proposed to be conducted under the
authority of this Act, and of all applications for permits for
scientific research, public display, or enhancing the survival or
recovery of a species or stock;

Marine Mammal Protection Act
67

DLMES OF COMMISSION

(3) undertake or cause to be undertaken such other studies as it
deems necessary or desirable in connection with its assigned
duties as to the protection and conservation of marine mammals;

(4) recommend to the Secretary and to other Federal officials
such steps as it deems necessary or desirable for the protection
and conservation of marine mammals;

(5) recommend to the Secretary of State appropriate policies
regarding existing international arrangements for the protection
and conservation of marine mammals, and suggest appropriate
international arrangements for the protection and conservation
of marine mammals;

(6) recommend to the Secretary such revisions of the endangered
species list and threatened species list published pursuant to
section 4(c)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1533(c)(1)), as may be appropriate with regard to marine mam-
mals; and

(7) recommend to the Secretary, other appropriate Federal offi-
cials, and Congress such additional measures as it deems neces-
sary or desirable to further the policies of this Act, including
provisions for the protection of the Indians, Eskimos, and Ajeuts
whose livelihood may be adversely affected by actions taken
pursuant to this Act.

Consultiltion with SecretaUe reports to Secretary before publication.
Tle Commission shall consult with the Secretary at such intervals as it
or he may deem desirable, and shall provide each annual report required
under section 204 of this title, before submission to Congress, to the
Secretary for comment.

(c) Availability of reports for public in-_;pectinn - The reports and recom-
mendations which the Commission makes shall be matters of public
record and shall be available to the public at all reasonable times. All
other activities of the Commission shall be matters of public record and
available to the public in accordance with the provisions of section 552
of title 5, United States Code.

(d) Recommendations: e=lanation for non-adoption - Any recommen-
dations made by the Commission to the Secretary and other Federal
officials shall be responded to by those individuals within one hundred
and twenty days after receipt thereof. Any recommendations which are
not followed or adopted shall be referred to the Commission together

Marine Mammal Protection Act
68

COMMITTEE OF SCIENTIFIC ADVISORS ON MARINE MAMMALS

with a detailed explanation of the reasons why those recommendations
were not followed or adopted.

(Pub. L. 92-522, title H, 202, Oct. 21, 1972, 86 Stat. 1044; Pub. L. 93-205, 13(e)(4), Dec.
28, 1973, 87 Stat. 903; Pub. L. 97-58, 6(l), Oct. 9, 1981, 95 Stat. 987; Pub.L. 100-711,
5(e)(4), Nov. 23,1988,102 Stat. 4771. Codified at 16 U.S.C. 1402.)

(1988 Amendment. Subsec. (a)(2). Pub.L. 100-711, 5(e)(4), added ", public display, or
enhancing the survival or recovery of a species or stock" following "for scientific re-
search".)

COMT@HTTEE OF SCIENTIFIC ADVISORS ON MARINE
MAMMALS

Sec. 203. (a) Establishment: membeLihip - The Commission shall estab-
lish, within ninety days after its establishment, a Committee of Scientific
Advisors on Marine Mammals (hereafter referred to in this title as the
"Committee"). Such Committee shall consist of nine scientists
knowledgeable in marine ecology and marine mammal affairs appointed
by the Chairman after consultation with the Chairman of the Council on
Environmental Quality, the Secretary of the Smithsonian Institution, the
Director of the National Science Foundation, and the Chairman of the
National Academy of Sciences.

(b) Compensation; reimbursement for travel expenses - Except for
United States Government employees, members of the Committee shall
each be compensated at a rate equal to the daily equivalent of the rate
for GS-18 of the General Schedule under section 5332 of title 5, United
States Code, for each day such member is engaged in the actual perfor-
mance of duties vested in the Committee. Each member shall be reim-
bursed for travel expenses, including per them in lieu of subsistence, as
authorized by section 5703 of title 5, United States Code, for persons in
Goverrunent service employed intermittently.

(c) Consultation with Co i i n studies and recommendations*
explanation for non-adoption - The Commission shall consult with the
Committee on all studies and recommendations which it may propose to
make or has made, on research programs conducted or proposed to be
conducted under the authority of this Act, and on all applications for
permits for scientific research. Any recommendations made by the
Committee or any of its members which are not adopted by the Com-
mission shall be transmitted by the Com-mission to the appropriate

Marine Mammal Protection Act
69

ADMINISTRATION

Federal agency and to the appropriate committees of Congress with a
detailed explanation of the Commission's reasons for not accepting such
recommendations.

(Pub. L. 92-522, title 11, 203, Oct. 21, 1972,86 Stat. 1044. Codified at 16 U.S.C. 1403.)

REPORTS

Sec. 204. The Commission shall transmit to Congress, by January 31 of
each year, a report which shall include -

(1) a description of the activities and accomplishments of the
Commission during the immediately preceding year; and

(2) all the findings and recommendations made by and to the
Commission pursuant to section 202 of this title together with the
responses made to these recommendations.

(Pub. L. 92-522, title Il, 204, Oct. 21, 1972, 86 Stat. 1045. Codiried at 16 U.S.C. 14N.)

COORDE14ATION'"T]rH OTHER FEDERAL AGENCIES

See. 205. The Commission shall have access to all studies and data
compiled by Federal agencies regarding marine mammals. With the
consent of the appropriate Secretary or Agency head, the Commission
may also utilize the facilities or services of any Federal agency and shall
take every feasible step to avoid duplication of research and to carry out
the purposes of this Act.

(Pub. L. 92-522, title 11, 205, Oct. 21, 1972, 86 Stat. 1045. Codified at 16 U.S.C. 1405.)

ADMINISTRATION

See. 206. The Commission, in carrying out its responsibilities under this
title, may -

(1) employ and fix the compensation of such personnel;

Marine Mammal Protection Act
70

AUTHORIZATION OF APPROPRIATIONS

(2) acquire, furnish, and equip such office space;

(3) enter into such contracts or agreements with, or provide such
grants to, other organizations, both public and private;

(4) procure the services of such experts or consultants or an
organization thereof as is authorized under section 3109 of title
5, United States Code (but at rates for individuals not to exceed
$ 100 per diem); and

(5) incur such necessary expenses and exercise such other powers,
as are consistent with and reasonably required to perform its
functions under this title; except that no fewer than 11 employees
must be employed under paragraph (1) at any time. Financial and
administrative services (including those related to budgeting,
accounting, financial reporting, personnel, and procurement)
shall be provided the Commission by the General Services Ad-
ministration, for which payment shall be made in advance, or by
reimbursement from funds of the Comn-dssion in such amounts
as may be agreed upon by the Chairman and the Administrator
of General services.

(Pub. L. 92-522, title Il, 206, Oct. 21, 1972, 86 Stat. 1045; As amended Pub. L. 97-58,
6(2), Oct. 9,1981,95 Stat.987; Pub. L. 98-364, title 1, 103(b), July 17,1984,98 Stat. 442.
Codified at 16 U.S.C. 1406.)

AUTHORIZATION OF APPROPRIATIONS

Sec. 207. There are authorized to be appropriated to the Marine Mam-
mal Comn-dssion, for purposes of carrying out this title, $672,000 for
fiscal year 1982, $1,000,000 for fiscal year 1983, $1,100,000 for each of
fiscal years 1984, 1985, 1986, 1987, 1988, and 1989, $1,140,000 for fiscal
year 1990, $1,190,000 for fiscal year 1991, $1,230,000 for fiscal year 1992,
and $1,280,000 for fiscal year 1993.

(Pub. L. 92-522, title 11, 207, Oct. 21, 1972, 86 Stat. 1046; As amended Pub. L. 95-136,
3, Oct. 18,1977,91 Stat. 1167; Pub. L. 95-316, 4, July 10, 1978,92 Stat. 381; Pub. L. 97-58,
7(c), Oct. 9,1981,95 Stat. 987; Pub. L. 98-364, title 1, 104(3), July 17,1984,98 Stat. 442;
Pub.L. 100-711, 6(3), Nov. 23,1988,102 Stat. 4771. Codified at 16 U.S.C. 1407.)

(1988 Amendment. Pub.L. 100-711, 6(3), struck out "and" following "fiscal year 1983,',
and substituted "1988, and 1989, S1,140,000 for fiscal year 1990, $1,190,000 for fiscal year
1991, $1,230,000 for fiscal year 1992, and S1,280,000 for fiscal year 1993' for "and
1988".The following section 7, of Pub. L. IOD-711, approved November 23,1988, has not
40 been codified.)

Marine Mammal Protection Act
71

Notes

Study on Mortality of Atlantic Dolphin.

Section 7 of Pub. L. 100-711, Nov. 23, 1988, 102 Stat. 477 1, provided
that:

(a) The Secretary of Commerce shall conduct a study regarding the east
coast epidemic during 1987 and 1988 which has caused substantial
mortality within the North Atlantic coastal population of Atlantic bot-
tle-nosed dolphin. The study shall examine -

(1) the cause or causes of the epidemic;

(2) the effect of the epiden-dc on coastal and offshore populations
of Atlantic bottle-nosed dolphin;

(3) the extent to which pollution may have contributed to the
epidemic;

(4) whether other species and populations of marine mammals
were affected by those factors which contributed to the epidemic;
and

(5) any other matters pertaining to the causes and effects of the
epiden-dc.

(b) On or before January 1, 1989, the Secretary shall submit to the
Committee on Commerce, Science, and Transportation of the Senate
and the Committee on Merchant Marine and Fisheries of the House of
Representatives a plan for conducting the study required in subsection
(a).

Marine Mammal Protection Act
72

40 25.
Memorandum prepared by GCOS
summarizing the 1992
amendments to MPRSA Title III

21, , I,

Reauthorization/Amendment of Title III of the MPRS

On November 4, 1992, President Bush signed into law H.R. 5617,
the Oceans Act of 1992, title II of which reauthorizes and amends
title III (national marine sanctuaries) of the Marine Protection,
Research, and Sanctuaries Act (MPRSA). The major provisions of
title II of the bill are outlined below, with emphasis on new
requirements for the sanctuaries program. The section numbers
refer to title III of the MPRSA, as it would be amended by this
legislation.

SUBTITLE A -- AMENDMENTS TO MARINE PROTECTION,, RESEARCH,, AND
SANCTUARIES ACT OF 1972

See. 301. Findings, Purposes, and Policies. (Note: many of the
changes to this section are an outgrowth of the "Potter Report.")

* Amends the finding that certain areas of the marine
environment possess conservation, recreational, ecological,
historical, research, educational or esthetic qualities that give
them special national significance to add "and in some cases,
international" significance.

0 Adds a finding that "protection of these special areas can
contribute to maintaining a natural assemblage of living
resources for future generations."

0 Clarifies that one of the purposes/policies of the Act is to
provide authority for comprehensive and coordinated conservation
and management (in a manner that complements existing regulatory
authorities) of not only these marine areas but also "activities
affecting them."

* Emphasizes support, promotion and coordination of long-term
monitoring and research as a purpose/policy of the Act.

* Adds a purpose/policy to "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 theses marine areas."

0 Adds a purpose/policy to "create models of, and incentives
for, ways to conserve and manage these areas."

0 Adds a purpose/policy to "cooperate with global programs
encouraging conservation of marine resources."

* Adds a purpose/policy to "maintain, restore, and enhance
living resources by providing-places for species that depend upon
these marine areas to survive and propagate."

Sec. 302. Definitions.

. Clarifies that "marine environment" includes the exclusive
economic zone.

0 Specifies that "damages" include "the reasonable cost of
monitoring appropriate to the injured, restored, or replaced
resources."

* Clarifies that "response costs" include the costs of actions
the Secretary of Commerce authorizes others, e.g., other
agencies, to take.

See. 303. Sanctuary Designation Standards.

9 Specifies that, in order to designate a sanctuary, the
Secretary need only find that existing State and Federal
authorities "should be supplemented," not that existing
authorities are inadequate.

0 Specifies that the Secretary is to consider maintenance of
critical habitat of endangered species as a factor in determining
if an area meets the sanctuary designation standards.

* Requires that the resource assessment report section of the
environmental impact statement for a proposed sanctuary include
information on governmental uses of the area and on any "past,
present, or proposed future disposal or discharge of materials in
the vicinity of the proposed sanctuary." The Secretary is to
consult with the Secretary of Defense, the Secretary of Energy
and the Administrator of EPA in preparing the discharge/disposal
section.

Sec. 304. Procedures for Designation and Implementation.

0 Eliminates the requirement of preparation of a prospectus for
Congress for each proposed designation.

0 Requires that the Secretary cooperate with not only the
appropriate Regional Fishery Management Council, but also other
appropriate fishery management authorities in drafting fishing
regulations for a proposed sanctuary.

0 Eliminates the subsection providing for a Congressional
resolution of disapproval for proposed sanctuary designations.
(Note: the House committee report states that this provision has
never been used and the committee "believes that disapproval of,
or amendments to, sanctuary designations can be addressed through
traditional legislative procedures.")
l
Requires that Federal agencies proposing actions (including
icenses, leases and permits) internal or external to a sanctuary

that are likely to inj ure sanctuary resources consult with the
Secretary. "Subject to any regulations the Secretary may
establish," each such agency must provide a written statement
describing the action and its potential effects on sanctuary
resources. If the Secretary finds the action is likely to injure
sanctuary resources, she must recommend alternatives that will
protect them. If the other agency decides not to follow the
alternatives, the head of that agency must provide the Secretary
with a written statement explaining the reasons for that
decision.

0 Requires that the Secretary review sanctuary management plans
and their implementation every five years.

Sec. 305. Application of Regulations; International Cooperation.

& Requires that the Secretary cooperate with foreign countries
and international organizations in furtherance of the Act.

Sec. 306. Prohibited Activitiese

* Explicitly provides that it is unlawful to injure any
sanctuary resource managed under law or regulations for that
sanctuary.

Sec. 307. Enforcement.

� Increases the maximum civil penalty from $50,000 to $100,000.

� Makes various technical improvements relating to enforcement
(e.g., regarding maritime liens, separate recoveries).

0 Improves existing statutory language regarding how amounts
received as civil penalties, forfeiture proceeds and costs may be
used.

0 Clarifies that the "area of application and enforceability" of
the Act includes the territorial sea and the exclusive economic
zone.

Sece 311. Cooperative Agreements, Donations, and Acquisitions.

* Authorizes the Secretary to enter into any kind of agreement,
including financial aid, with any entity or individual to carry
out the purposes and policies of the Act.

0 Clarifies that donations to the sanctuary program "shall be
considered as a gift or bequest to or for the use of the United
States."

Authorizes the Secret ary to acquire land, facilities and other
property as necessary and appropriate to carry out the purposes
and policies of the Act.

See. 312. Destruction or Loss of, or Injury to, Sanctuary
Resources.

0 Provides that persons liable for sanctuary resource injury aret
liable for interest accrued as well.

Sec. 313. Authorization of Appropriations.

0 $8M for 193, $12.5M for 194, $15M for 195 and $20M for 196.

Sec. 315. Advisory Councils.

0 Authorizes the Secretary to establish sanctuary advisory
councils. The councils are exempt from the Federal Advisory
Committee Act, although subject to some requirements comparable
to some provisions of that act.

SUBTITLE B -- MISCELLANEOUS

1) Mandates grant for acquisition of space in Hatteras Village,
North Carolina, for display and interpretation of "Graveyard of
the Atlantic" artifacts and administration and operations of the
Monitor National Marine Sanctuary. Authorizes appropriations to
the Secretary of $800,000 for 193 and 194 to carry out
responsibilities under this section.

2) Designates Stellwagen Bank National Marine Sanctuary,
modifying western boundary somewhat from the draft environmental
impact statement/management plan and prohibiting sand and gravel
mining activities. Authorizes appropriations to the Secretary of
$570,000 for 193 and $250,000 for 194 to carry out
responsibilities under this section. Directs the Secretary to
consider establishing a satellite office for the sanctuary in
Provincetown, Gloucester or Hull, Massachusetts.

3) Designates Monterey Bay National Marine Sanctuary, effective
September 18, 1992. Prohibits oil or gas activities in the
sanctuary. Requires a vessel traffic regulation study within 18
months.

4) "Enhancing support for sanctuaries." Requires the Secretary
to conduct a 2-year pilot project to create a "symbol" for the
sanctuary program or for individual sanctuaries, to designate
official sponsors, to collect fees from the sponsors for
manufacture, reproduction or use of the symbols, and, within 30
months, provide a report to Congress on the success of the
project in raising funds.

5) Makes technical corrections to Coastal Zone Management Act
unrelated to sanctuaries.

6) Requires research to improve management of Florida Keys
National Marine Sanctuary, in particular the coral reef ecosystem
-- amends Florida Keys National Marine Sanctuary and Protection
Act.

7) Prohibits oil or gas leasing or pre-leasing activity in the
Olympic Coast National Marine Sanctuary (silent on issue of
boundary of the sanctuary).

8) Designates Provasoli-Guillard Center for Culture of Marine
Phytoplankton as a "National Center and Facility" -- unrelated to
sanctuaries.

9) Amends Florida Keys National Marine Sanctuary and Protection
Act to direct EPA to establish a steering committee regarding
water quality and to implement a water quality program;
authorizes appropriations to the Administrator of EPA of $2M for
193, $3M for 194 and $4M for 195 to carry out responsibilities
under this section; authorizes appropriations to the Secretary of
$300,000 for 193, $400,000 for 194 and $500,000 for 195 to carry
out responsibilities under this section.

SUBTITLE C -- HAWAII ISLANDS HUMPBACK WHALE SANCTUARY

Designates Hawaiian Islands Humpback Whale National Marine
Sanctuary, primarily to protect humpback whales and their
habitat. Requires the Secretary to issue a sanctuary management
plan and regulations within 18 months.

0 26.
Summary of relevant Federal
authorities (from appendix C of
Monterey Bay NMS FEIS/MP)

III. Federal Authorities

Like State authorities, Federal programs vary greatly in
approach and scope, ranging from fairly broad-based legislation for
resource conservation and environmental protection (e.g., The
National Environmental Policy Act and Magnuson Fishery Conservation
and Management Act) to regulation of specific activities and
resources.

A. Magnuson Fishery Conservation and Management Act (MFCMA)
(16 USC � 1801 _et sect.)

The MFCMA provides for the conservation and management of all
fishery resources between 3 and 200 nm (5.6 and 370 km) offshore.
The National Marine Fisheries Service (NMFS), NOAA, Department of
Commerce is charged with establishing guidelines for and approving
fishery management plans (FMPs) prepared by regional fishery
management councils for selected fisheries. These plans determine
the levels of commercial and sport fishing consistent with
achieving and maintaining the optimum yield of each fishery. The
waters of the study area are within the jurisdiction of the Pacific
Fishery management Council (PFMC).

In addition to non-benthic fishery resources located outside
state waters, benthic continental shelf fishery resources located
outside state waters, such as abalone, lobster, crabs, sea urchins,
and corals, are also subject to management under the MFCMA. Within
Federal waters the MFCMA is enforced by the U.S. Coast Guard (USCG)
and NMFS. The Act empowers the Secretary of Commerce to enter into
agreements with any State agency for enforcement purposes in State
waters. Such an agreement exists between the CDFG and NMFS whereby
both parties have been deputized to enforce each other's laws. As
a result, PFMC fishery plan enforcement personnel can now enforce
State law within 3 nm (5.6 km) and State officers can enforce
Federal laws between 3 and 200 nm (5.6 and 370 km).

B. Endangered SRecies Act (ESA) (16 USC ��1531 et. seg.)

The Federal Endangered Species program provides protection for
listed species of animals and plants in both State waters and the
waters beyond. The U.S. Fish and Wildlife Service (FWS) and NMFS
determine which species need protection and maintain a list of
endangered and threatened species. One of the most significant
protections provided by the Endangered Species Act is the
prohibition on taking. The term "take" is defined broadly to mean
"harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or attempt to engage in any such conduct" (16 USC
�1532(19)). The FWS regulations define the term "harm" to mean an
act which actually kills or injures wildlife, including significant
habitat modification*or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding or sheltering. The

C-12

regulations define the term "harass" to mean "an intentional or
negligent act or omission @ihich creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not
limited to, breeding, feeding or sheltering" (50 CFR 17.3).

The Endangered Species Act also provides for the indirect
protection of endangered species and their habitats by establishing
a consultation process designed to insure that projects authorized,
funded or carried out by Federal agencies are not likely to
jeopardize the continued existence of endangered or threatened
species, or "result in the destruction or adverse modification of
habitat of such species which is determined ... to be critical" (16
USC �1536). Critical habitat areas for endangered species are
designated by the FWS and NMFS. The 1978 amendments to the Act
establish a Cabinet level committee authorized to exempt Federal
agencies (through an elaborate review process) from compliance with
their responsibilities with regard to the jeopardy standard and
critical habitat.

Several species of marine mammals found in the study area are
listed as endangered or threatened species. These include: 1) sea
otter, 2) grey whale, 3) fin whale, and 4) humpback whale. The
blue whale, sei whale, and sperm whale, which have occasionally
been sighted in the study area are also listed as endangered or
threatened species.

Species of birds listed as endangered or threatened found in
the study area include: 1) California brown pelican, 2) California
clapper rail, 3) California least tern, 4) Southern bald eagle, and
5) American peregrine falcon, and 6) short tailed albatross.

C. Marine Mammal Protection Act (MMPA) (16 USC �1361 et sea.)

The MMPA provides protection to marine mammals in both State
waters and the waters beyond. It is designed to protect all
species of marine mammals. While MMPA allows states to petition
for the return of management responsibility over harvest of marine
mammals, California has done so only with regard to the sea otter
and that petition was later withdrawn.

As specified in the MMPA, the Department of Interior, U.S.
Fish and Wildlife Service .(FWS), is responsible for the management
of polar bears, walrus (a pinniped), northern and southern sea
otters, three species of manatees, and dugong; and Department of
Commerce, National Marine Fisheries Service (NMFS), is responsible
for all other marine mammals. The Marine Mammal Commission advises
these implementing agencies and sponsors relevant scientific
research. The primary management features of the Act include: 1)
a moratorium on "taking" of marine mammals; 2) the development of a
management approach designed to achieve an "optimum sustainable
population" (OSP) for all species or population stocks of marine

C-13

mammals; and 3) protection of populations determined to be
"depleted".

MMPA defines "take" broadly to include "harass, hunt, capture,
or kill, or attempt to harass, hunt, capture, or kill any marine
mammal" (16 USC �1362(12)). The term "harass" has been interpreted
to encompass acts unintentionally adversely affecting marine
mammals, such as operation of motor boats in waters in which these
animals are found. The MMPA allows certain exceptions to the
moratorium. First, the Secretary may issue permits for public
display or scientific research. Second, the Secretary may grant
exemptions for takes of small numbers of marine mammals incidental
to other lawful activities. Third, the Secretary may make a
special waiver of the moratorium on taking for particular species
or populations of marine mammals provided that the species or
population being considered is at or above its determined optimum
sustainable population. No such waiver, however, has been granted
concerning any marine mammal found in the area under consideration.

Marine mammal species whose population is determined to be
depleted receive additional protection. Under only limited .
circumstances may permits be issued for the taking of any marine
mammal determined to be depleted, including but not limited to
scientific research and enhancing the survival or recovery of a
species or stock of depleted species. Four species of marine
mammals sighted within the study area (the fin whale, the southern
population of sea otter, the humpback whale, and the grey whale),
and three species or populations which are possible transients (the
blue whale, the sperm whale, and the sei whale), are treated as
"depleted" based on their listing as endangered or threatened
species under the Endangered Species Act.

The 1988 amendments to the MMPA added requirements that
observers be carried aboard commercial fishing vessels to determine
levels of incidental take of marine mammals. Commercial fishing
activities are divided into categories on the basis of gear-type
and associated levels of potential incidental take of marine
mammals. For example, Category 1 vessels such as gillnetters may
have to carry an observer if requested by NMFS and the Secretary of
Commerce may place observers on vessels in Categories 2 and 3 with
the consent of the vessel owner. This observer program has been in
operation since early 1990 and although the authority for its
management is with the NMFS the day-to-day operational management
may be delegated to state and local authorities.

D. Migratory Bird Treaty Act (MBTA) (16 USC �703 &t p9g.)
The essential provision of the Migratory Bird Treaty Act,
which implements conventions with Great Britain, Mexico, the USSR
and Japan makes it unlawful except as permitted by regulations "to
pursue, hunt, take, capture, kill... any migratory bird, any part,
nest or egg" or any product of any such bird protected by the

C-14

Convention (16 USC �703). The Secretary of the Interior is charged
with determining when, and to what extent, if at all, and by what
means to permit these activities. Each treaty establishes a
"closed season" during which no hunting is permitted. A
distinction is made between game and nongame birds. The closed
season for migratory birds other than game birds is year-round. of
the birds found in the study area only certain species of ducks,
geese, coots, gallinules and doves are considered game birds. As
specifically permitted by the Act the California Department of Fis],'1
and Game has supplemented this authority with its own regulations
(see Fish and Game Code DiSCUSSiont above).

E. Clean Water Act (CWA) (33 USC �1251 et 'sea.)

It is the goal of the CWA to restore and maintain the
chemical, physical, and biological integrity of the nation's
waters. To varying degrees, navigable waters of the United States,
the contiguous zone, and the oceans beyond are subject to
requirements of the CWA.

The CWA's chief mechanism for preventing and reducing water
pollution is the National Pollutant Discharge Elimination System
(NPDES), administered by the Environmental Protection Agency (EPA).
Under the NPDES program, a permit is required for the discharge of
any pollutant from a point source into the navigable waters of the
United States, the waters of the contiguous zone, or ocean waters.
Within California state waters, EPA has delegated NPDES permitting
authority to the state government.

Since oil and gas development pursuant to Federal lease sales
occur beyond State waters, an NPDES permit from EPA is required for
discharges associated with this activity. EPA generally grants
NPDES permits for offshore oil and gas developments based on
published effluent guidelines (40 CFR Part 435). Other conditions
beyond these guidelines may, however, be imposed by the Regional
Administrator on a case-by-case basis.

The CWA prohibits the discharge of oil or hazardous substances
in quantities that may be harmful to the public health or Welfare
or the environment, including but not limited to fish, shellfish,
wildlife, and public and private property, shorelines and beaches
into or upon the navigable waters of the U.S., adjoining
shorelines, or into or upon the waters of the contiguous zone, or
in connection with activities under the Outer Continental Shelf
Lands Act or the Deepwater Port Act of 1974, or which may affect
natural resources belonging to, appertaining to, or under the
exclusive management authority of the U.S., except, in the case-of
such discharges into or upon the waters of the contiguous zone or
which may affect the above-mentioned natural resources, where
permitted under the Protocol of 1978 Relating to the International
Convention for the Prevention of Pollution from Ships.

C-15

When harmful discharges do take place, the National
Contingency Plan (NCP) for the removal of oil and hazardous
substance dischargep (40 CFR Part 300), which is designed to
minimize the impacts on marine resources, takes effect. The USCG,
in cooperation with EPA, administers the NCP. The'NCP establishes
the organizational framework whereby oil and hazardous substance
spills are to be cleaned up. To carry out the NCP, regional plans
have been established; the USCG has issued such a plan for Federal
Region IX which encompasses the study area. Under the plan, Coast
Guard personnel are to investigate all reported offshore spills,
notify the party responsible (if known) of its obligation to clean
up the spill, and supervise the clean-up operation. The Coast
Guard retains final authority over the procedures and equipment
used in the cleanup. If the party responsible for the spill does
not promptly begin cleanup operations, the Coast Guard may hire
private organizations.

The CWA also requires that publicly owned sewage treatment
works meet effluent limitations based on effluent reductions
attainable through the application of secondary treatment by July
1, 1977 [33 USC �1311(b)(1)). EPA does have the authority,
however, to waive the July 1, 1977 deadline.for secondary treatment
for discharges into marine waters under certain circumstances (33
USC �1311(h)). Due to the unusual depth of marine waters off the
California coast, some municipal sewage treatment works in
California discharging into marine waters have requested waivers
from secondary treatment requirements (43 F.R. 17484 (4/25/78)).
Several communities are currently discharging wastes into marine
waters in the study area (see Part II, Section 2).

Permits from the Army Corps of Engineers, (COE) which are
based on EPA guidelines, are required prior to the discharge of
dredged or fill materials into navigable waters that lie inside the
baseline from which the territorial sea (defined to be three
nautical miles of shore) is measured and fill materials into the
territorial sea (33 USC � 1344; 40 CFR 230.2).

Finally, the CWA requires vessels to comply with marine
sanitation regulations issued by EPA and enforced by the USCG (33
USC � 1322).

F. Rivers and Harbors Act (33 USC �� 401 et sea.)

Section 10 (33 USC 403) prohibits the unauthorized obstruction
of navigable waters of the United States. The construction of any
structure or any excavation or fill activity in the navigable
waters of the U.S. is prohibited without a permit from the COE.
Section 13 (33 U.S.C..407) prohibits the discharge of refuse into
navigable waters of the U.S., but has been largely superseded by
the CWA, discussed above.

C-16

G. Ports and Waterways Safety Act (PWSA) (33 USC �� 1231 -et.
secr.)

The Ports and Waterways Safety Act (PWSA), as amended by the
Port and Tanker Safety Act of 1978 ( and the Oil 'Pollution Act of
1990), is designed to promote navigation and vessel safety and the
protection of the marine environment. The PWSA applies both in
state waters and the waters beyond out to 200 nautical miles.

The PWSA authorizes the U.S. Coast Guard to construct,
operate, maintain, improve or expand vessel traffic services and
control vessel traffic in ports, harbors, and other waters subject
to congested vessel traffic. The Oil Pollution Act of 1990 amends
the PWSA to mandate that the USCG "require appropriate vessels
which operate in the area of a vessel traffic service to utilize or
comply with that service-it

The absence of a major harbor in Monterey Bay and the
resulting relatively low level of vessel traffic into and out of
the Bay has precluded the need for a vessel traffic separation
scheme (VTSS) or other formal regulatory mechanisms for ensuring
vessel safety.

The U.S. Coast Guard provides two sets of customary vessel
traffic lanes on navigational charts for vessels traversing the
West coast. One set of customary traffic lanes is an extension of'
the Southern VTSS for San Francisco Bay and is intended for vessels
traveling north and southbound along the coast. The other is
intended primarily for east-bound traffic heading to and from ports
further south in California. Adherence to these lanes is strictly
voluntary. The lanes merely serve as navigational aids, indicating
to mariners who are unfamiliar with the area that vessel traffic
historically has followed those patterns, and that the lanes have
been found to be safe.

In addition to vessel traffic control, the U.S. Coast Guard
regulates other navigational and shipping activities. It has
promulgated numerous regulations relating to vessel design,
construction, and operation designed to minimize the likelihood of
an accident and reduce vessel source pollution.

The 1978 amendments of the PWSA establish a comprehensive
program for regulating the design, construction, operation,
equipping, and banning 6f all tankers using U.S. ports to transfer
oil and hazardous materials. These requirements are, for the most
part, in agreement with protocols (passed in 1978) to the
International Convention-for the Prevention of Pollution from
Ships, 1973, and the International Convention on Safety of Life at
Sea, 1974.

The U.S. Coast Guard is also vested with the primary
responsibility for maintaining boater safety, including the tasks

C-17

of conducting routine vessel inspections and coordinating rescue
operations.

H. Act to Pre@rent Pollution from Ships (APPS) (33 USC �� 19oi
et seg.)

The International Convention for the Prevention of Pollution
of the Sea by Oil, 1954, and the oil Pollution Act of 1961 have
been superseded by the International Convention for the Prevention
of Pollution from Ships, 1973, as modified by the 1978 Protocol
relating thereto (MARPOL 73/78) and implemented by the Act to
Prevent Pollution from Ships, 1980, as amended in 1982, 1987
(APPS). APPS, in implementing Annex I of MARPOL 73/78, regulates
the discharge of oil and oily mixtures from seagoing ships,
including oil tankers. APPS, in implementing Annex II of MARPOL
73/78, regulates the discharge of noxious liquid substances from
seagoing ships. Enforcement of the Act is the responsibility of
the USCG.

When more than 12 nautical miles from the nearest land, any
discharge of oil or oily mixtures into the sea from a ship subject
to APPS other than an oil tanker or from machinery space bilges of
an oil tanker subject to APPS is prohibited except when: 1) the oil
or oily mixture does not originate from cargo pump room bilges; 2)
the oil or oily mixture is not mixed with oil cargo residues; 3)
the ship is not within a Special Area (the study area is not a
Special Area for purposes of APPS); 4) the ship is proceeding en
route; 5) the oil content of the effluent without dilution is less
than 100 parts per million (ppm); and 6) the ship has in operation
oily-water separating equipment, a bilge monitor, bilge alarm or
combination thereof. 33 CFR 151.10(a).

The restrictions on discharges 12 nautical miles or less from
the nearest land are more stringent. When within 12 nautical miles
of the nearest land, any discharge of oil or oily mixtures into the
sea from a ship other than an oil tanker or from machinery space
bilges of an oil tanker is prohibited except when: 1) the oil or
oily mixture does not originate from cargo pump room bilges; 2) the
oil or oily mixture is not mixed with oil cargo residues; 3) the
oil content of the effluent without dilution does not exceed 15
ppm; 4) the ship has in operation oily-water separating equipment,
a bilge monitor, bilge alarm, or combination thereof; and 5) the
oily-water separating equipment is equipped with a 15 ppm bilge
alarm. NOTE: In the navigable waters of the U.S., the CWA, section
311(b)(3) and 40 CFR 110 govern all discharges of oil and oily
mixtures. 33 CFR 151.10(b).

A tank vessel subject to APPS may not discharge an oily
mixture into the sea from a cargo tank, slop tank or cargo pump
bilge unless the vessel: 1) is more than 50 nautical miles from the
nearest land; 2) is proceeding en route; 3) is discharging at an
instantaneous rate of oil content not exceeding 60 liters per

C-18

nautical mile; 4) is an existing vessel and the total quantity of
oil discharged into the seadoes not exceed 1/15000 of the total
quantity of the cargo that the discharge formed a part (1/30000 for
new vessels); 5) discharges, with certain exceptions, through the
above waterline discharge point; 6) has in operation a cargo
monitor and control system that is designed for use with the oily
mixture being discharged; and 7) is outside the Special Areas.
33 CFR 157.37.

APPS is amended by the Marine Plastic Pollution Research and
Control Act of 1987 (MPPRCA), which implements Annex V of MARPOL
73/78 in the U.S. The MPPRCA and implementing regulations at 33
CFR 151.51 to 151.77 apply to U.S. Ships (except warships and ships
owned or operated by the U.-S.) everywhere, including recreational
vessels, and to other ships subject to MARPOL 73/78 while in the
navigable waters or the Exclusive Economic Zone of the U.S. They
prohibit the discharge of plastic or garbage mixed with plastic
into any waters and the discharge of dunnage, lining and packing
materials that float within 25 nautical miles of the nearest land.
Other unground garbage may be discharged beyond 12 nautical miles
from the nearest land. other garbage ground to less than one inch
may be discharged beyond three nautical miles of the nearest land.
Fixed and floating platforms and associated vessels are subject to
more stringent restrictions. "Garbage" is defined as all kinds of
victual, domestic and operational waste, excluding fresh fish and
parts thereof, generated during the normal operations of the ship
and liable to be disposed of continuously or periodically except
dishwater, graywater and certain substances. 33 CFR 151.05.

I. Oil Pollution Act of 1990 (OPA) (P.L. 101-380, 33 USC 2701
it &qa-)

The Oil Pollution Act of.1990 (OPA) creates a comprehensive
prevention, response, liability, and compensation regime for
dealing with vessel and facility-caused oil pollution. The OPA
provides for environmental safeguards in oil transportation greater
than those existing before its passage by: setting new standards
for vessel construction, crew licensing, and manning; providing for
better contingency planning; enhancing Federal response capability;
broadening.enforcement authority; increasing penalties; and
authorizing multi-agency research and development. A one billion
dollar trust fund is available to cover clean-up costs and damages
not compensated by the spiller.

Title I creates a liability and compensation regime for vessel
and facility-source oil pollution. Any party responsible for the
discharge, or the substantial threat of discharge, of oil into
navigable waters or adjoining shorelines or the Exclusive Economic
Zone is liable for the removal costs and damages, including
assessment costs; for injury, destruction, loss or loss of use of
natural resources, injury to, or economic losses resulting from
destruction of real or personal property; subsistence use of
C-19 .10

natural resources, net lost government revenues, lost profits or
impairment of earning capacity; and net costs of providing
increased or additional public services during or after removal
activities. NOAA has the responsibility of promulgating damage
assessment regulations and following the regulations will create a
rebuttable presumption in favor of a given assessment. Sums
recovered by a trustee for natural resource damages will be
retained in a revolving trust account to reimburse or pay costs
incurred by the trustee with respect to those resources.

Title II makes numerous amendments to conform other Federal
statutes, particularly section 311 of the Clean Water Act, to the
provisions of the Oil Pollution Act.

Title III encourages the establishment of an international
inventory of spill removal equipment and personnel.

Title IV is divided.into three subtitles: A) Prevention;
B) Removal; and C) Penalties and Miscellaneous. Subtitle A gives
added responsibility to the Coast Guard regarding merchant marine
personnel, including the review of alcohol and drug abuse and
review of criminal records prior to issuance and renewal of
documentation. It also amends the Ports and Waterways Safety Act
to: require the Coast Guard to "require appropriate vessels which
operate in an area of a vessel traffic service to utilize or comply
with that service." and 2) authorize the construction, improvement
and expansion of vessel traffic services.

Further, Subtitle A establishes double hull requirements for
tank vessels. Most tank vessels over 5,000 gross tons will be
required to have double hulls by 2010, while vessels under 5,000
gross tons will be required to have a double hull or double
containment systems by 2015. All newly constructed tankers must
contain a double hull (or double containment system if under 5,000
gross tons), while existing vessels are phased out over a period of
years.

Subtitle B amends subsection 311(c) of the Clean Water Act,
requiring the Federal Government to ensure effective and immediate
removal of a discharge, and mitigation or prevention of a
substantial threat of a discharqe, of oil or a hazardous substance
into or on the navigable waters, on the adjoining shorelines, into
or on the waters of the Exclusive Economic Zone, or that may affect
natural resources belonging to, appertaining to, or under the
exclusive management authority of the U.S. It also requires a
revision and republication of the National Contingency Plan within
one year which will include, among other things, a Fish and
Wildlife response plan developed in consultation with NOAA and U.S.
Fish and Wildlife Service. Nothing in Subtitle B preempts the
rights of States to require stricter standards for removal actions.

C-20

Subtitle C alters and increases civil and administrative
penalties for illegal discharges and violations of regulations
promulgated under the Clean Water Act.

Title VII authorizes an oil pollution research and technology
development program, including the establishment.of an interagency
coordinating committee that is chaired by Department of
Transportation and composed of representatives from the Departments
of Energy, the Interior, Transportation, Commerce (including NOAA),
and Defense, Environmental Protection Agency, Federal Emergency
Management Agency, National Aeronautics and Space Administration,
as well as such other Federal agencies as the President may
designate.

Title IX amends the Oil Spill Liability Trust Fund and
increases from $5oo million to $1 billion the amount that can be
spent on any single oil Spill incident, of which no more than $500
million may be spent on natural resource damage, assessments and
claims.

J. Federal Aviation Act (49 USC ��1301 et. sea.)

The Federal Aviation Act gives the Secretary of Transportation
broad powers to promote air commerce and to regulate the use of
navigable airspace to ensure aircraft safety and efficient use of
such airspace. In furtherance of this mandate, the Federal
Aviation Administration, within the Department of Transportation
publishes aeronautical charts which provide a variety of 0
information to pilots, including the location of sensitive areas
which should be avoided.

K. Clean Air Act (CAA) (42 USC �7401 et sea.)

The Clean Air Act (CAA) sets general guidelines and minimal
air quality standards on a nationwide basis in order to protect and
enhance the quality of the Nation's air resources. States are
responsible for developing comprehensive plans for all regions
within their boundaries. Thus, as noted above, discharges of air
pollutants over California state waters are subject to the control
of the California Air Resources Board.

Per the CAA Amendments of 1990,, section 328(a)(1) of the CAA
provides that the Administrator of the EPA, following consultation
with the Secretary of the Interior and the Commandant of the United
States Coast Guard, "by rule, shall establish requirements to
control air pollution from OCS sources located offshore of the
States along the Pacific...-Coast ... to attain and maintain Federal
and State ambient air quality standards and to comply with part C
of title I .... New OCS sources shall comply with such requirements
on the date of promulgation."

C-21

L. Outer Continental Shelf Lands Act OCSLA (43 USC �1331 et
ea.)
The Outer Coniinental Shelf Lands Act, (OCSLA) as amended in
1978 and 1985, establishes Federal jurisdiction over the mineral
resources of the Outer Continental Shelf (OCS) beyond 3 nm (5.6 km)
and gives the Secretary of Interior primary responsibility for
managing OCS mineral exploration and development. The Secretary's
responsibility has been delegated to the Minerals Management
Service (MMS).

In unique or special areas, MMS may impose special lease
stipulations designed to protect specific geological and biological
phenomena. These stipulations may vary among lease sale tracts and
sales.

MMS is also cha rged with supervising OCS operations, including
approval of exploration and development and production plans and
applications for pipeline rights of way on the OCS. Lessees are
required to include, in exploration and development and production
plans, specific-information concerning emissions and their
potential impacts on coastal areas. Such authority includes the
enforcement of regulations made pursuant to the OCSLA (30 CFR Parts
250 and 256) and the enforcement of stipulations applicable to
particular leases.

In addition to DOI, both the Army Corps of Engineers (COE) and
the U.S. Coast Guard (USCG) have responsibility over OCS mineral
development to the extent that such development affects navigation.
(43 USC 1333) COE is responsible for ensuring, through a.permit
system, that OCS structures, including pipelines, platforms, drill
ships, and semi-submersibles, do not obstruct navigation. USCG
ensures that structures on the OCS are properly marked and that
safe working conditions are maintained onboard.

M. -Title I of the Marine Protection, Research, and
ganctuaries Agt (MPRSA) (33 USC ��1401 et seg.).

Title I of the Marine Protection, Research, and Sanctuaries
Act (MPRSA), also known as the Ocean Dumping Act, prohibits: 1) any
person from transporting, without a permit, from the U.S. any
material for the purpose of dumping it into ocean waters (defined
to mean those waters of the open seas lying seaward of the baseline
from which the territorial sea is measured) and 2) in the case of a
vessel or aircraft registered in the U.S. or flying the U.S. flag
or in the case of a U.S. agency, any person from transporting,
without a permit, from any location any material for the purpose of
dumping it into ocean'waters. Title I also prohibits any person
from dumping, without a permit, into the "territorial sea," or the
contiguous zone extending 12 nautical miles seaward from the
baseline of the territorial sea to the extent that it may affect
the territorial sea or the territory of the U.S., any material

C-22

transported from a location outside of the U.S. EPA regulates,
through the issuance of permits, the transportation, for the
purpose of dumping, and the dumping of all materials except
dredged material; COE, the transportation, for the purpose of
dumping, of dredged material. The COE permits are subject to EPA
review and approval.. Title I also makes it unlawful after December
31; 1991, for any person to dump into ocean waters, or to transport
for the purposes of dumping into ocean waters, sewage sludge or
industrial waste.

N. National Historic Preservation Act (NHPA) (16 USC �� 470
et se-q.)

The National Historic Preservation Act authorizes the
Secretary of the Interior to maintain a National Register of
"districts, sites, buildings, structures, and objects significant
in American history., architecture, archeology, and culture". Sites
have been listed on the National Register which include or are
composed entirely of ocean waters and submerged lands within state
waters or on the Outer Continental Shelf.

Any federal agency conducting, licensing, or assisting an
undertaking which may affect a property listed or eligible for
listing on the National Register must prior to the action take into
account the effect of the undertaking on the property and provide
the Advisory Council on Historic Preservation a reasonable
opportunity to comment on the proposed action (16 USC �470f). The
basic criterion applied by the Council is whether the undertaking
will change the quality of the site's historic, architectural,
archeological., or cultural character (36 CFR Part 800).

0. Comprehensive Environmental Response, Compensgtion, and
Liability Act- (CERCLA) (42 USC �� 9601 et sea.)

The comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), whose principal purpose is the cleanup of
hazardous waste sites, consists of four fundamental elements.
First, it creates an information-gathering and evaluation system to
help Federal and state governments categorize hazardous waste sites
and prioritize responses. Second, CERCLA provides Federal
authority to respond to releases of hazardous substances. Response
actions are carried out pursuant to the National Contingency Plan
(NCP). Third, CERCLA establishes a Hazardous Substance Trust Fund
to pay for removal and remedial actions and related costs.
Finally, CERCLA makes persons responsible for hazardous substance
releases liable for costs of removal or remedial action incurred by,
the Federal or state government; other necessary costs of response
incurred by others; damages for injury, destruction or loss of
natural resources; and costs of any health assessment or health
effects study carried out pursuant to the Act.

C-23

IV. Additional SRecial Areas/Acrencies
A. Los-Padres National Forest
The United States ForestService is responsible for the
management of the Los Padres National Forest. The Forest parallels.
the coast from Mount Carmel (near Point Sur) in the north to the
Monterey County-San Luis Obispo County boundary in the south. The
Forest includes two coastal areas, one encompassing Cooper Point
and Pfeiffer Point at the northern boundary of the Forest and the
other extending from the Lucia vicinity (near Lopez Point) to the
Monterey County-San Luis Obispo County boundary.

For management purposes, the Forest is divided into several
planning units. Both coastal areas of the Forest are included
within the Big Sur Coastal Planning Unit. The unit as a whole is
52 sm (83 km) long and varies from 3 to 9 sm (4.8 to 14.4 km) in
width. Both coastal areas also fall within the boundaries of the
California Sea Otter Game Refuge. Adjoining the Planning Unit are
four State Parks, including the Julia Pfeiffer Burns State Park
which is operated in conjunction with the adjacent under-water
park, and two ASBSs at Julia Pfeiffer Burns Underwater Park and.the
ocean area surrounding the mouth of Salmon Creek (see above).

Management policies for the Big-Sur Coastal Planning Unit are
described in a recently issued Land Management Plan. The Forest
Service worked closely with many governmental agencies in the
formulation of the plan, including, in particular, the CDFG, which
manage areas directly adjacent to the unit. It is the intent of
the plan that all management policies be implemented in harmony
with affected agencies.

Specific management policies of the plan which are relevant to
the proposed marine sanctuary include ensuring the protection of
the Salmon Creek and Julia Pfeiffer Burns Underwater Park ASBSs
prior to proceeding with any resource development, maintaining a
high level of water quantity and quality, and ensuring that the
management of the Planning Unit is consistent with the California
Coastal Plan for the Monterey Coast.

C-24

tr-

I
27. T
CEQ NEPA regulations
40 C.F.R. Parts 1500 - 1508

IF,-- -: I

CEQ NEPA REGULATIONS 51

Council on Environmental Quality
NEPA Regulations
40 C.F.R. Pts. 1500-1508
PART 1500--PURPOSE, POLICY, AND (b) Implement procedures to make will result in action affecting the envi-
MANDATE the NEPA process more useful to deci- ronment), or takes action that will
sionmakers and the public; to reduce result in irreparable injury. Further-
Sec. paperwork and the accumulation of more, it is the Council's intentiori that
15oo.1 Purpose- extraneous background data; and to any trivial violation of these regula-
15oo.2 Policy. emphasize real environmental issues tions not give rise to any independent
1500.3 Mandate.
1500.4 Reducing paperwork. and alternatives. Environmental cause of action.
1500.5 Reducing delay. impact statements shall be concise. � 1500.4 Reducing paperwork.
1500.6 Agency authority. clear, and to the point, and shall be
supported by evidence that agencies Agencies shall reduce excessive pa-
AuTmoitrTy: NEPA. the Environmental it by:
Quality Improvement Act of 1970 as have made the necessary environmen- perwor
amended (42 U.S.C. 4371 et seq.), see. 369 of tal analyses. (a) Reducing the length of environ-
the Clean Air Act. an amended (42 U.S.C. (c) Integrate the requirements of mental impact statements
76oo) and E.O. 11514. Mar. 5. 1970, 'is NEPA with other planning and envi- (i 1502.2(c)), by means such as setting
amended by E.O. 11991. May 24.1977). ronmental review procedures required appropriate page limits
SouRcz: 43 FR 55990. Nov. 28, 1978, unless by law or by agency practice so that (11 1501.7(b)(1) and 1502.7).
otherwise noted. all such procedures run concurrently (b) Preparing analytic rather than
rather than consecutively. encyclopedic environmental impact
1500.1 Purpose- (d) Encourage and facilitate public statements (� 1502.2(a)).
(a) The National Environmental involvement in decisions which affect (c) Discussing only briefly issues
policy Act (NEPA) is our basic nation- the quality of the human environ- other than significant ones
&I charter for protection of the envi- ment. (I 1502.2(b)).
ronment. It establishes policy. sets (e) Use the NEPA process to identify (d) Writing environmental impact
goals (section 101). and provides and assess the reasonable alternatives statements in plain language
means (section 102) for carrying out to proposed actions that will avoid or (11502.8).
the Policy. Section 102(2) contains minimize adverse effects of these ac. (e) Following a clear format for envi-
-action-forcing" provisions to make tions upon the quality of the human ronmental impact statements
sure that federal agencies act accord- environment. (1 1502.10).
ing to the letter and spirit of the Act. (f) Use all practicable means, con- (f) Emphasizing the portions of the
The regulations that follow implement sistent with the requirements of the environmental impact statement that
section 102(2). Their purpose is to tell Act and other essential considerations are useful to decisionmakers and the
federal agencies what they must do to of national policy, to restore and t - public (44 1502.14 and 1502.15) and re-
comply with the procedures and hance the quality of the human eii.i. ducing emphasis on background mate-
achieve the goals of the Act. The ronment and avoid or minimize any rial (� 1502.16).
President, the federal agencies, and possible adverse effects of their ac- (g) Using the scoping process, not
the courts share responsibility for en- tions upon the quality of the human only to identify significant environ-
forcing the Act so as to achieve the environment. mental issues deserving of study, but
substantive requirements of section also to deemphasize insignificant
101. � 1500.3 Mandate. issues. narrowing the scope of the en-
(b) NITA procedures must insure vironmental impact statement process
that environmental information is Parts 1500 through 1508 of this title accordingly (11501.7).
available to public officials and citi- provide regulations applicable to and (h) Summarizing the environmental
zens before decisions are made and binding on all Federal agencies for im- impact statement (1 1502.12) and cir-
before actions are taken. The informa- plementing the procedural provisions culating the summary instead of the
tion must'be of high quality. Accurate of the National Environmental Policy entire environmental impact state-
scientific analysis, expert agency com- Act of 1969. as amended (Pub. L. 91- ment if the latter is unusually long
ments, and public scrutiny ate essen- 190. 42 U.S.C. 4321 et seq.) (NEPA or (11502.19).
tial to implementing NEPA. Most im- the Act) except where compliance (I) Using program, policy, or plan en-
portant, NEPA documents must con- would be inconsistent with other stat- vironmental impact statements and
centrate on the Issues that are truly utory requirements. These regulations tiering from statements of broad scope
significant to the action in question. are issued pursuant to NEPA. the En- to those of narrower scope. to elimi-
rather than amassing needless detail. vironmental Quality Improvement Act nate repetitive discussions of the same
(c) Ultimately. of course. it is not of 1970. as amended (42 U.S.C. 4371 et issues (I J 1502.4 and 1502.20).
better documents but better decisions seq.) section 309 of the Clean Air Act. (J) Incorporating by reference
that count. NEPA's purpose is not to as amended (42 U.S.C. 7609) and Exec- (11502.21).
generate paperwork-even excellent uUve Order 11514, Protection and En. (k) Integrating NEPA requirements
PaPerwork-but to foster excellent hancement of Environmental Quality with other environmental review and
action. The NEPA process is intended (March 5. 1970, as amended by Execu. consultation requirements (� 1502.25).
to help public officials make decisions tive Order 11991. May 24, 1977). These (1) Requiring comments to be as spe-
that are based on understanding of en- regulations. unlike the predecessor cific as possible (� 1503.3).
vironmental consequences, and take guidelines. are not confined to sec. (m) Attaching and circulating only
actions that protect. restore. and en- 102(2)(C) (environmental impact state- changes to the draft environmental
hance the environment. These regula- ments). The regulations apply to the impact statement, rather than rewrit-
tiOns Provide the direction to achieve whole of section 102(2). The provisions ing and circulating the entire state-
this Purpose. of the Act and of these regulations ment when changes are minor
1 V%0.2 Policy. must be read together as a whole in (I 1503.4(c)).
order to comply with the spirit and (n) Eliminating duplication with
Federal agencies shall to the fullest letter of the law. It is the Council's in- State and local procedures. by provid-
extent Possible: tention that judicial review of agency ing for Joint preparation (� 1506.2),
(a) Interpret and administer the compliance with these regulations not and with other Federal procedures, by
Policies. regulations. and public laws occur before an agency has filed the providing that an agency may adopt
Of the United States in accordance final environmental impact statement. appropriate environmental documents
With the Policies set forth in the Act or has made a final finding of no sig- prepared by another agency (� 1506-3).
and in these regulations. nificant impact (when such a finding (o) Combining environmental docu-

52 NEPA DESK1300K

ments with other documents missions in the light of the Act's na- and values in adequate detail @;o they
(11506.4). tional environmental objectives. Agen- can be compared to economic and
(p) Using categorical exclusions to cies shall review their policies, proce- technical analyses. Environmental
define categories of actions which do dures. and regulations accordingly and documents and appropriate analyses
not individually or cumulatively have revise them as necessary to insure full shall be circulated and reviewed at the
a significant effect on the human envi- compliance with the purposes and pro- same time as other planning docu-
ronment and which are therefore visions of the Act. The phrase "to the ments.
exempt from requirements to prepare fullest extent possible" in section 102 (c) Study. develop, and describe ap-
an environmental impact statement means that each agency of the Federal propriate alternatives to recorninencled
(11508.4). Government shall comply with that courses of action in any proposal
(q) Using a finding of no significant section unless existing law applicable which involves unresolved conflicts
impact when an action not otherwise to the agency's operations expressly concerning alternative uses of avail-
excluded will not have a significant prohibits or makes compliance impos- able resources as provided by section
effect on the human environment and sible. 102(2)(E) of the Act.
Is therefore exempt from require- (d) Provide for cases where actions
ments to prepare an environmental PART 1501-NEPA AND AGENCY are planned by private applicants or
Impact statement (11508.13). PLANNING other non-Pecleral entities before Ped-
(43 FR 55990, Nov. 29. 1978; 44 FR 873, Jan. Sec. eral involvement so that:
3.19791 (1) Policies or designated staff are
1501.1 Purpose. available to advise potential applicants
150.5 Reducing delay. 1501.2 Apply NEPA early in the process. of studies or other information fore-
1501.3 When to prepare an environmental seeably required for later Federal
Agencies shall reduce delay by: assessment. action.
(a) Integrating the NEPA process 1501.4 Whether to prepare an environmen- (2) The Federal agency consults
into early planning (11501.2). tal impact statement. early with appropriate State wid local
(b) Emphasizing interagency coop. 1501.5 Lead agencies. agencies and Indian tribes and with in-
eriation before the environmental 1501-6 Cooperating agencies. terested private persons and organiza-
impact statement Is prepared. rather 1501.7 Scoping. tions when its own involvement is rea-
than submission of adversary com- 1501.8 Time limits. sonably foreseeable.
ments on a completed document AUTHORiTy: NEPA. the Environmental (3) The Federal agency commences
(11501.6). Quality Improvement Act of 1970. as its NEPA process at the earliest possi-
(c) Insuring the swift and fair reso- amended (42 U.S.C@ 4371 et seq.). sec. 309 of ble time.
lution of lead agency disputes the Clean Air Act. as amended (42 U.S.C.
(11501.5). 7609, and E.O. 11514 (Mar. 5. 1970. as 9 1501.3 When to prepare an environmen-
(d) Using the scoping process for an amended by E.O. 11991. May 24.1977). tal assessment.
early. identification of what are and Sotritmr 43 FR 55992, Nov. 29, 1978. unless (a) Agencies shall prepare an envi-
what are not the real issues (11501.7). otherwise noted. ronmental assessment (11508.9) when
(e) Establishing appropriate time necessary under the procedures adopt-
limits for the environmental impact � 1501.1 Purpose. ed by individual agencies to supple-
statement process (11 1501.7(b)(2) and The purposes of this part include: ment these regulations as desczibed in
1501.8). (a) Integrating the NEPA process j 1507.3. An assessment is not neces-
M Preparing environmental impact into early planning to insure appropri- sary if the agency has decided to pre-
statements early in the process ate consideration of NEPA's policies pare an environmental impact. state-
(11502.5). and to eliminate delay. ment.
(g) Integrating NEPA requirements (b) Emphasizing cooperative consul- (b) Agencies May Prepare wi envi-
with other environmental review and tation among agencies before the envi- ronmental assessment on any action at
consultation requirements (11502.25). ronmental impact statement is pre- any time in order to assist agency
(h) Eliminating duplication with pared rather than submission of ad- planning and decisionmaking.
State and local procedures by provid. versary comments on a completed doc- -4
ing for joint preparation (� 1506.2) and ument. �1501.4 Whether to prepare an onviron-
with other Federal procedures by pro- (c) Providing for the swift and fair mental impact statement.
viding that an agency may adopt ap- resolution of lead agency disputes. In determining whether to prepare
propriate environmental documents (d) Identifying at an early stage the an environmental impact statement
prepared by another agency (11506.3). significant environmental issues de- the Federal agency shall:
(1) Combining environmental docu- serving of study and deemphasizing in- (a) Determine under its procedures
ments with other documents significant Issues, narrowing the scope supplementing these regulations (de-
(11506.4). of the environmental impact state- scribed in j 1507.3) whether the pro-
(J) Using accelerated procedures for ment accordingly. posal is one which:
proposals for legislation (11506.8). (e) Providing a mechanism for put-
(k) Using categorical exclusions to ting appropriate time limits on the en-
define categories of actions which do mental impact statement, or
(1) Normally requires an environ-
not individually or cumulatively have vironmental impact statement process. (2) Normally does not require either
a significant effect on the human envi- � 1501.2 Apply NEPA early in the process. an environmental impact statement or
rorunent (11508.4) and which are Agencies shall integrate the NEPA an environmental assessment (categor-
therefore exempt from requirements process with other planning at the ical exclusion).
to prepare an environmental impact earliest possible time to insure that (b) If the proposed action is not cov-
statemenL planning and decisions reflect environ- ered by paragraph (a) of this section,
(1) Using a finding of no significant mental values, to avoid delays later in prepare an environmental assessment
impact when an action not otherwise the process, and to head off potential (� 1508.9). The agency shall involve en-
excluded will not have a significant conflicts. Each agency shall: vironmental agencies. applicants. and
effect on the human environment (a) Comply with the mandate of sec- the public. to the extent practicable,
(11508.13) and is therefore exempt tion 102(2)(A) to "utilize a systematic, in preparing assessments required by
from requirements to prepare an envi- interdisciplinary approach which will I 1508-9(a)(1). .1
ronmental impact statement. insure the integrated use of the natu- (c) Based on the environmental as-
I 15NAL. Agency authority. ral and social sciences and the environ- sessment make its determination
mental design arts in planning and in whether to prepare an environmental
Each agency shall Interpret the pro- clecisionmaking which may have an impact statement.
visions of the Act as a supplement to impact on man's environment." as (d) Commence the scoping process
its existing authority and as a man- specified by j 1507.2. (11501.7), If the agency will prepare
date to view traditional policies and (b) Identify environmental effects an environmental impact statement.

CEQ NEPA REGULATIONS 53
i:Pe,paI.e agoinding of no signifi- paragraph (c) of this section has not agencies shall include such funding re-
(e) c 8.13). if the agency resulted within 45 days in a lead quirements in their budget requests.
cant
mines on the basis of the envi- agency designation. any of the agen- (c) A cooperating agency may in re-
deter ment not to prepare a cies or persons concerned may file a sponse to a lead agency's request for
ronmental assess reqliest with the Council asking it to assistance in preparing the environ-
,ta,te en - shall make the find- determine which Federal agency shall mental impact statement (described in
(1) e a enc ant impact available be the lead agency. paragraph (b)(3). (4). or (5) of this sec-
of 110 signific tion) reply that other program com-
in I e f te public &a specified in A copy of the request shall be trans- mitments preclude any involvement or
to mitted to each potential lead agency. the degree of involvement requested in
115 - - m1ted circumstances. The request shall consist of:
It 2) in cert nIJ may cover in its pro- (1) A precise description of the the action that is the subject of the
which t e Lgenc environmental impact statement. A
cedures under 11507.3, the agency nature and extent of the proposed copy of this reply shall be submitted
Shoji make the finding of no signifi- action. to the Council.
rit impact available for public review (2) A detailed statement of why each
ca cluding State and reawide clear- potential lead agency should or should � 1501.7 Scoping.
dr,houses) for 30 days before the not be the lead agency under the crite-
ini There shall be an early and open
agency makes its final determination ria specified in paragraph (c) of this process for determining the scope of
ether to prepare an environmental section.
wh issues to be addressed and for identify-
impact Statement and before the (f) A response may be filed by any ing the significant issues related to a
action may begin. The circumstances potential lead agency concerned proposed action. This Process shall be
are: within 20 days after a request is filed termed scoping. As soon as practicable
(I) The proposed action is. or Is close- with the Council. The Council shall after its decision to prepare an envi-
ly similar to. one which normally re- determine as soon as possible'but not ronmental impact statement and
later than 20 days after receiving the
quires the preparation of an environ-
impact statement under the request and all responses to it which before the scoping process the lead
mental a adopted by the agency pur- Federal agency shall be the lead agency shall publish a notice of intent
procedure ( 1508.22) in the FEDERAL REGISTER
suant to 11507.3. or agency and which other Federal agen- �
(ii) The nature of the proposed cies shall be cooperating agencies. except as provided in � 1507.3(e).
ion is one without precedent. (a) As part of the scoping process
act (43 FR 55992. Nov. 29, 1978; 44 FR 873, Jan. the lead agency shall:
1501.5 Lead agencies- 3,19791 (1) Invite the participation of affect-
4,1A_le&d_Sg6ncy shall supervise the � 1501.6 Cooperating agencies. ed Federal. State, and local agencies.
preparation of an environmental any affected Indian tribe, the propo-
impact statement if more than one The purpose of this section is to em- nent of the action. and other interest-
Federal agency either: phasize agency cooperation early in ed persons (including those who might
(1) proposes or is involved in the the NEPA process. Upon request of not be In accord with the action on en-
same action; or the lead agency, any other Federal vironmental grounds), unless there is a
(2) Is involved in a group of actions agency which has jurisdiction by law limited exception under � 1507.3(c). An
directly related to each other because shall be a cooperating agency. In addi- agency may give notice in accordance
of their functional interdependence or tion any other Federal agency which with � 1506.6.
geographical proximity. has special expertise with respect to (2) Determine the scope (� 1508.25)
any environmental issue. which should and the significant issues to be ana-
(b) Federal. State. or local agencies, be addressed in the statement may be lyzed in depth in the environmental
1 including at least one Federal agency, a cooperating agency upon request of
may act as Joint lead agencies to pre- the lead agency. An agency may re- impact statement.
pare an environmental impact state- quest the lead agency to designate it a @3) Identify and eliminate from de-
ment (� 1506-2). cooperating agency. tailed study the issues which are not
(c) if an action falls within the pro- (a) The lead agency shall: significant or which have been covered
visions of paragraph (a) of this section (1) Request the participation of each by prior environmental review
the potential lead agencies shall deter- cooperating agency in the NEPA proc- (11506.3). narrowing the discussion of
mine by letter or memorandum which ess at the earliest possible time. these issues in the statement to a brief
agency shall be the lead agency and (2) Use the environmental analysis presentation of why they will not have
which shall be cooperating agencies. and proposals of cooperating agencies a significant effect on the human envi-
The agencies shall resolve the lead with jurisdiction by law or special ex- ronment or providing a reference to
agency question so as not to cause pertise, to the maximum extent possi- their coverage elsewhere.
delay. If there is disagreement among ble consistent with its responsibility as (4) Allocate assignments for prepara-
the agencies. the following factors lead agency. tion of the environmental impact
(which are listed in order of descend- (3) Meet with a cooperating agency statement among the lead and cooper-
ing importance) shall determine lead at the latter's request. ating agencies. with the lead agency
agency designation: (b) Each cooperating agency shall: retaining responsibility for the state-
(1) Magnitude of agency's involve- (1) Participate in the NEPA process ment.
ment. at the earliest possible time. (5) Indicate any public environmen-
(2) Project approval/disapproval au- (2) Participate In the scoping process tal assessments and other environmen-
thority. (described below in 11501.7). tal impact statements which are being
(3) Expertise concerning the fiction's (3) Assume on request of the lead or will be prepared that are related to
environ-iental effects. agency responsibility for developing but are not part of the scope of the
(4) L iration of agency's involve- information and preparing environ- impact statement under consideration.
ment. mental analyses including portions of (6) Identify other environmental
(5) Sequence of agency's involve- the environmental impact statement review and consultation requirements
ment. concerning which the cooperating so the lead and cooperating agencies
(d) Any Federal agency, or any State agency has special expertise. may prepare other required analyses
or local agency or private person sub- (4) Make available staff support at and studies concurrently with. and in-
stantially affected by the absence of the lead agency's request to enhance tegrated with. the environmental
lead agency designation. may make a the latter's ihterdisciplinary capabil- impact statement as provided in
Ad writt request to the potential lead itY. � 1502.25.
hL agencies that a lead agency be desig- (5) Normally use its own funds. The (7) Indicate the relationship between
IM pr nated. lead agency shall, to the extent avail- the timing of the preparation of envi-
(e) If Federal agencies are unable to able funds permit. fund those major ronmental analyses and the agency's
agree on which agency will be the lead nctivities or analyses it requests from tentative planning and decisionmaking
agency or if the procedure described in cooperating agencies. Potential lead schedule.

54 NEPA DESKBOOK

(b) As part of the scoping process (vii) Decision on the action based in Federal officials in conjunction with
the lead agency may: part on the environmental impact other relevant material to plan actions
(1) Set page limits on environmental statement. and make decisions.
documents (11502-7). (3) Designate a person (such as the
(2) Set time limits (111501.8). project manager or a person in the � 1502.2 Imp'ementation.
(3) Adopt procedures under 11507.3 agency's office with NEPA responsibil- To achieve the purposes sel. forth in
to combine its environmental awess- ities) to expedite the NEPA process. � 1502.1 agencies shall prepare envi-
ment process with its scoping process. (c) State or local agencies or mem- ronmental impact statements in the
(4) Hold an early scoping meeting or bers of the public may request a Fed- following manner:
meetings which may be integrated eral Agency to set time limits. (a) Environmental impact state-
with any other early planning meeting ments shall be analytic rat.rier than
the agency has. Such a scoping meet- PART 1502-ENVIRONMENTAL encyclopedic.
ing will often be appropriate when the IMPACT STATEMENT (b) Impacts shall be discussed in pro-
impacts of a particular action are con- Portion to their significance. There
fined to specific sites. Sec. shall be only brief discussion of other
(c) An agency shall revise the deter- 1502.1 Purpose. than significant issues. As in a finding
minations made under paragraphs (a) 1502.2 Implementation. of no significant impact, there should
and (b) of this section if substantial 1502.3 Statutory requirements for state- be only enough discussion to show
ments. why more study is not warranted.
changes are made later in the pro- 1502.4 Major Federal actions requiring the (c) Environmental impact state-
posed action. or If significant new cir- preparation of environmental impact ments shall be kept concise and shall
cumstances or information arise which statements.
bear on the proposal or its impacts. 1502.5 Timing. be no longer than absolutely necessary
1502.6 Interdisciplinary preparation. to comply with NEPA and with these
11501.8 Inme limits. 1502.7 Page limits. regulations. Length should vary first
1502.8 Writing. with potential environmental prob-
Although the Council has decided 1502.9 Draft, final, and supplemental state- lems and then with project Si2e.
that prescribed universal time limits ments. (d) Environmental impact state-
for the entire NEPA process are too 1502.10 Recommended format. ments shall state how alterna*.ives con-
inflexible, Federal agencies are en- 1502.11 Cover sheet. sidered in it and decisions based on it
couraged to set time limits appropriate 1502.12 Summary. will or will not achieve the require-
to individual actions (consistent with 1502.13 Purpose and need.
the time Intervals required by 1502.14 Alternatives including the pro- ments of sections 101 and 1021 1) of the
f 1506.10). When multiple agencies are posed action. Act and other environmental laws and
involved the reference to agency below 1502.15 Affected environment. policies.
1502.16 Environmental consequences. (e) The range of alternatives dis-
means lead agency. 1502.17 List of preparers. cussed in environmental impact state-
(a) The agency shall set time limits 1502.18 Appendix. ments shall encompass those to be
if an applicant for the proposed action 1502.19 Circulation of the environmental considered by the ultimate. agency
requests them: Provided, That the impact statement. decisionmaker.
limits are consistent with the purposes 1502.20 Tiering.
of NEPA and other essential consider- 1502.21 Incorporation by reference. (f) Agencies shall not commit re-
ations of national policy. 1502.22 Incomplete or unavailable informa- sources prejudicing selection of alter-
(b) The agency may: tion. natives before making a final decision
(1) Consider the following factors in 1502.23 Cost-benefit analysis. (11506.1). 0
1502.24 Methodology and scientific accura- (g) Environmental impact state-
determining time limits: cy. ments shall serve as,the means of as-
(1) Potential for environmental 1502.25 Environmental review and consul- sessing the environmental impact of
harm. tation requirements. proposed agency actions, rather than
(h) Size of the proposed action. AVTHORITY: NEPA. the Environmental justifying decisions already made.
(III) State of the art of analytic tech- Quality Improvement Act of 1970. as
niques. amended (42 U.S.C. 4371 ef seq.). sec. 309 of
the Clean Air Act. as amended (42 U.S.C, � 1502.3 Statutory requirements for state-
dv) Degree of public need for the 7609). and E.O. 11514 (Mar. 5. 1970. as ments.
proposed action. including the conse- amended by E.O. 11991, May 24. 1977). As required by sec. 102(2)(C) of
quences of delay.
(v) Number of Persons and agencies SouRct: 43 FR 55994. Nov. 29. 1978. unless NEPA environmental impact state-
affected. otherwise noted. ments (11508.11) are to be included in
every recommendation or repcrt.
(VI) Degree to which relevant infor- � 1502.1 Purpose. On proposals (� 1508.23).
.mation is known and if not known the
time required for obtaining it. The primary purpose of an environ- For legislation and (I 1508.1'r).
(vii) Degree to which the action is mental impact statement is to serve as Other major Federal actions
controversial. an action-forcing device to insure that (11508.18).
the policies and goals defined in the Significantly (111508.27).
(viii) Other time limits imposed on Act are infused into the ongoing pro- Affecting M 1508.3. 1508.8).
the agency by law, regulations, or ex- grams and actions of the Federal Gov-
ecutive order. ernment. It shall provide full and fair The quality of the human environ-
(2) Set overall time limits or. ment (� 1508.14).
for each constituent part of t limits discussion of significant environmen-
he NEPA tal impacts and shall inform decision- � 1502.4 Major Federal actions requiring
process. which may include: makers and the public of the reasona- the preparation of environmental
(I) Decision on whether to prepare ble alternatives which would avoid or
an environmental impact statement (if minimize adverse impacts or enhance impact statements.
not already decided). the quality of the human environ- (a) Agencies shall make sure the pro-
(ii) Determination of the scope of ment. Agencies shall focus on signifi. posal which is the subject of an envi-
the environmental impact statement. cant environmental issues and alterna- ronmental impact statement ic; proper-
(III) Preparation of the draft envi- tives and shall reduce paperwork and ly defined. Agencies shall use the cri-
ronmental impact statement. the aceumulation of extraneous back- teria for scope (11508.25) to determine
(iv) Review of any comments on the ground data. Statements shall be con- which proposal(s) shall be thlE subject
draft environmental impact statement cise, clear, and to the point, and shall of a particular statement. Proposals or
from the public and agencies. be supported by evidence that the parts of proposals which are related to
(v) Preparation of tht! final environ. agency has made the necessary envi- each other closely enough to be, In
mental impact statement. ronmental analyses. An environmental effect. a single course of action shall
(vi) Review of any comments on the impact statement is more than a dis- be evaluated in a single impact state-
final environmental impact statement. closure document. It shall be used by ment.

CEQ NEPA REGULATIONS 55

Environmental impact state- mally precede the final staff recom- any responsible opposing view which
prepared. and are some- mendation and that Portion of the was not adequately discussed in the
ments may be for broad Federal ac. public hearing related to the impact draft statement and shall indicate the
required. the adoption of new study. In appropriate circumstances agency's response to the issues raised.
tions such as
agency program or regulations Ahe statement may follow preliminary (c) Agencies:
(1 08,18). Agencies shall prepare hearings designed to gather informa. (1) Shall prepare supplements to
tgternents on broad actions so that tion for use in the statements. either draft or final environmental
they are relevant to Policy and are (d) For informal rulemaking the impact statements if:
timed to coincide with meaningful draft environmental impact statement (I) The agency makes substantial
points in agency planning and deci- shall normally accompany the pro- changes in the proposed action that
posed rule. are relevant to environmental con-
sio sk - reparing statements on cerns; or
(c) When P (including proposals by � 1502.6 Interdisciplinary preparation. (ii) There are significant new cir.
broad actio ency), agencies ma
more th one y Environmental impact statements curnstances or information relevant to
useful to evaluate the
find It one of the following shall be prepared using an inter-disci- environmental concerns and bearing
(s) in
pro plinary approach which will insure the on the proposed action or its impacts.
ways: ly, including actions integrated use of the natural and (2) May also prepare supplements
(1) ()eographical social sciences and the environmental when the agency determines that the
occurring in the same general location.
such as body of water. region, or met- design arts (section 102(2)(A) of the purposes of the Act will be furthered
ropolit&n area. Act). The disciplines of the preparers by doing so.
(2) GenericallY. including actions shall be appropriate to the scope and (3) Shall adopt procedures for Intro.
which have relevant similarities, such issues identified in the scoping process ducing a supplement into its formal
as common timing, impacts, alterna- (J 1501.7). administrative record. if such a record
t1ves. methods Of implementation. exists.
media. or subject matter. � 1502.7 Page limits. (4) Shall prepare. circulate, and file
(3) By stage of technological devel- The text of final environmental a supplement to a statement in the
opment including federal or federally impact statements (e.g.. paral
nt or dem- graphs same fashion (exclusive of scoping) as
swisted research, developme raft and final statement unless al-
onstration programs for new technol- (d) through (g) of 1 1502.10) shall nor- a d
@g.ies wh if applied, could signifi- mally be less than 150 pages and for ternative procedures are approved by
tly Lf ich, the quality of the human proposals of unusual scope or com- the Council.
iroruf ec an 300
ent. Statements shall be pre- plexity shall normally be less th � 1502.10 Recommended format.
pared on such programs and shall be pages. Agencies shall use a format for envi-
available before the program has 11.502.9 Writing. ronmental impact statements which
reached a stage of investment or com-
mitment to implementation likely to Environmental impact statements will encourage good analysis and clear
determine subsequent development or shall be written in plain language and presentation of the alternatives in-
restrict later alternatives. may use appropriate graphics so that cluding the proposed action. The fol.
(d) Agencies shall as appropriate decisionmakers and the public can lowing standard format for environ-
employ scoping (11501.7). tiering readily understand them. Agencies mental impact statements should be
(11502.20). and other methods listed should employ writers of clear prose followed unless the agency determines
in 111500.4 and 1500.5 to relate broad or editors to write, review. or edit that there is a compelling reason to do
and narrow actions and to avoid dupli- statements, which will be based upon otherwise:
cation and delay. the analysis and supporting data from (a) Cover sheet.
the natural and social sciences and the (b) Summary.
11502.5 'noting. environmental design arts. (c) Table of contents.
An agency shall commence prepara- � 1502.-9 Draft, final. and supplemental (d) Purpose of and need for action.
tion of an environmental Impact state- statements. (e) Alternatives including proposed
ment as close as possible to the time action (sections 102(2)(C)(iii) and
the agency is developing or is present- Except for proposals for legislation 102(2)(E) of the Act).
ed with a proposal (11508.23) so that as provided in 11506.8 environmental
preparation can be completed in time impact statements shall be prepared in (f ) Affected environment.
for the final statement to be included two stages and may be supplemented. (g) Environmental consequences (es-
in any recommendation or report on (a) Draft environmental impact pecially sections 102(2)(C)(i), 01), dv).
the proposal. The 3taternent shall be statements shall be prepared in ac- and (v) of the Act).
prepared early enough so that it can cordance with the scope decided upon (h) List of preparers.
serve practically as an important con- in the scoping process. The lead (I) List of Agencies. Organizations.
tribution to the decisionmaking proc- agency shall work with the cooperat- and persons to whom copies of the
ess and will not be used to rationalize Ing agencies and shall obtain com- statement are sent.
or justify decisions already made ments as required in Part 1503 of this (j) Index.
M 1500.2(c), 1501.2. and 1502.2). For chapter. The draft statement must (k) Appendices (if any).
instance: fulfill and satisfy to the fullest extent
(a) For projects directly undertaken possible the requirements established If a different format is used. it shall
by Federal agencies the environmental for final statements in section include paragraphs (a). (b), (c), (h), (I).
impact statement shall be prepared at 102(2)(C) of the Act. If a draft state. and (j), of this section and shall in-
the feasibility analysis (go-no go) stage ment is so inadequate as to preclude clude the substance of paragraphs (d).
and may be supplemented at a later meaningful analysis, the agency shall (e). (f). (g). and (k) of this section, as
stage if necessary. prepare and circulate a revised draft further described in �J 1502.11
of the appropriate portion. The through 1502.18, in any appropriate
(b) For applications to the agency agency shall make every effort to dis- format.
appropriate environmental assess- close and discuss at appropriate points
ments or statements shall be com- in the draft statement all major points J 1502.1 t Cover sheet.
menced no later than immediately of view on the environmental impacts The cover sheet shall not exceed one
after the application is received. Fed- of the alternatives including the pro. page. It shall Include:
eral agencies are encouraged to begin posed action. (a) A list of the responsible agencies
preparation of such assessments or (b) Final environmental impact including the lead agency and any co-
statements earlier, preferably jointly statements shall respond to comments operating agencies.
with applicable State or local agencies. as required in Part 1503 of this chap- (b) The title of the proposed action
(c) For adjudication. the final envi- ter. The agency shall discuss at appro- that is the subject of the statement
ronmental impact statement shall nor- priate points in the final statement (and if appropriate the titles of related

56 NEPA DESKBOOK

cooperating agency actions). together measures not already included in the (43 FR 55994. Nov. 29, 1978: 44 FIR 873. Jan.
with the State(s) and countydes) (or proposed action or alternatives. 3.19791
other Jurisdiction if applicable) where
the action Is located. � 1502.15 Affected environment. 1502.17 List of preparers.
(c) The name, address, and tele- The erivironmental -impact state- The environmental impact stati@.
phone number of the person at the ment shall succinctly describe the en. ment shall list the names, together
agency who can supply further infor- vironment of the area(s) to be affected with their qualifications (expertisi!,
mation. or created by the alternatives under experience. professional disciplines),
(d) A designation of the statement as consideration. The descriptions shall of the persons who were primarily ri!-
a draft. final, or draft or final supple- be no longer than is necessary to un- sponsible for preparing the environ-
ment. derstand the effects of the alterna- mental impact statement or significant
(e) A one paragraph abstract of the tives. Data and analyses in a state- background papers, including basic
statement. ment shall be commensurate with the components of the statement
(f) The date by which comments importance of the impact, with less" (JI 1502.6 and 1502.8). Where possible
must be received (computed in coop- important material summarized. con- the persons who are responsible for a
eration with EPA under 11506.10). solidated. or simply referenced. Agen. particular analysis. including analyses
The information required by this sec- cies shall avoid useless bulk in state. in background papers. shall be idenii-
tion may be entered on Standard ments and shall concentrate effort fied- Normally the list will not exceed
Form 424 (in items 4, 6. 7, 10, and 18). and attention on important issues. two pages.
Verbose descriptions of the affected � 1502.18 Appendix.
� 1502.12 Summary. environment are themselves no meas-
ure of the adequacy of an environmen- If an agency prepares an appendix
Each environmental impact state- tal impact statement. to an environmental impact statement
ment shall contain a summary which the appendix shall:
adequately and accurately summarizes � 1502.1i Environmental consequences. (a) Consist of material prepared in
the statement. The summary shall connection with an environmental
stress the major conclusions, areas of This section forms the scientific and impact statement (as distinct from rria-
controversy (including issues raised by analytic basis for the comparisons terial which is not so prepared a:,id
agencies and the public). and the under 11502.14. It shall consolidate which is incorporated by reference
issues to be resolved (including the the discussions of those elements re-
choice among alternatives). The surn- quired by sections 102(2)(C)(t). (it). (@ 1502.21)).
(iv). and (v) of NEPA which are within (b) Normally consist of material
mary will normally not exceed 15 which substantiates any analysis fun-
pages. the scope of the statement and as
much of section 102(2)(C)(iii) as is nec- darnental to the impact statement.
6 1502.13 Purpose and need. essary to support the comparisons. (c) Normally be analytic and rele-
The discussion will Include the envi- vant to the decision to be made.
The statement shall brieny specify ronmental impacts of the alternatives (d) Be circulated with the environ-
the underlying purpose and need to including the proposed action, any ad- mental impact statement or be readily
which the agency is responding in pro- verse environmental effects which available on request.
posing the alternatives including the cannot be avoided should the proposal
proposed action. be implemented. the relationship be- � 1502.19 Circulation of the environmerital
tween short-term uses of man's envi- impact statement.
� 1502.14 Alternatives including the pro- ronment and the maintenance and en- Agencies shall circulate the entire
posed action. hLricement of long-term productivity, draft and final environmental impact
This section is the heart of the envi- and any irreversible or irretrievable statements except for certain appendi-
ronmental impact statement. Based on commitments of resources which ces as provided in � 1502.18(d) and un-
the information and analysis present- would be involved in the proposal changed statements as provided in
ed in the sections on the Affected En- should it be implemented. This section � 1503.4(c). However. if the statement
vironment Q 1502.15) and the Environ- should not duplicate discussions in is unusually long. the agency may eir-
mental Consequences (11502.16). it 11502.14- It shall include discussions culate the summary instead. except
should present the environmental im- of: that the entire statement shall be fur-
Pacts of the proposal and the alterna- (a) Direct effects and their signifi- nished to:
tives in comparative form, thus sharp- cance (11508.8). (a) Any Federal agency which has
1Y defining the issues and providing a (b) Indirect effects and their signifi- jurisdiction by law or special expertise
clear basis for choice among options cance (11508.8). with respect to any environmental
by the decisionmaker and the public. (c) Possible conflicts between the impact involved and any appropriate
In this section agencies shall: proposed action and the objectives of Federal. State or local agency author-
(a) Rigorously explore and objective- Federal, regional, State, and local (and ized to develop and enforce environ-
lY evaluate all reasonable alternatives, in the case of a reservation, Indian mental standards.
and for alternatives which were elimi- tribe) land use plans. policies and con- (b) The applicant, if any.
nated from detailed study, briefly dis- trots for the area concerned. (See (c) Any person. organization, or
Cuss the reasons for their having been I 1506.2(d).) agency requesting the entire environ-
eliminated. (d) The environmental effects of at- mental impact statement.
(b) Devote substantial treatment to ter9natives including the proposed (d) In the case of a final environ-
each alternative considered in detail action. The comparisons under
including the proposed action so th 11502.14 will be based on this discus- mental impact statement any person,
at sion. organization. or agency which subrnit-
reviewers may evaluate their compara- (e) Energy requirements and conser- ted substantive comments on the
tive merits.
(c) Include reasonable alternativ vation potential of various alternatives draft.
es and mitigation measures. If the agency circulates the summary
not within the jurisdiction of the lead (f) Natural or depletable resource re- and thereafter receives a timely re-
agency.
(d) Include the alternative of no quirements and conservation potential quest for the entire statement and for
action, of various alternatives and mitigation additional time to comment, the time
(e) Identify the agency's preferred measures. for that requestor only shall be ex-
alternative or alternatives. if one or (g) Urban quality. historic and cut- tended by at least 15 days beyond the
more exists. in the draft statement tural resources, and the design of the minimum period.
built environment, including the reuse
and identify such alternative in the and conservation potential of various
final statement unless another law alternatives and mitigation measures. 4 1502.20 Tiering.
prohibits the expression of such a
Preference. (h) Means to mitigate adverse envi- Agencies are encouraged to tier their
ronmental impacts (if not fully cov- environmental impact statement-; to
(f) include appropriate mitigation ered under � 1502.14(f)). eliminate repetitive discussions of the

CEQ NEPA REGULATIONS 57

same issues and to focus on the actual ment, and (4) the agency's evaluation Species Act of 1973 (16 U.S.C. 1531 et
issues ripe for decision at each level of of such impacts based upon theoreti seq.), and other environmental review
environmental review (1 1508.28). cal approaches or research methods laws and executive orders.
Whenever a broad environmental generally accepted in he scientific (b) The draft environmental impact
impact statement has been prepared -rommunity. For the purposes of this statement shall list all Federal per-
(such as a program or policy state- section, "reasonably foreseeable" in- mits. licenses, and other entitlements
ment) and a subsequent statement or cludes impacts which have catastroph- which must be obtained in implement-
environmental assessment is then pre. ic consequences, even if their probabil- ing the proposal. If it is uncertain
pared on an action included within the ity of occurrence is low, provided that whether a Federal permit. license, or
entire program or policy (such as a the analysis of the impacts is support- other entitlement is necessary, the
site specific action) the subsequent ed by credible scientific evidence, is draft environmental impact statement
statement or environmental assess- not based on pure conjecture. and is shall so indicate.
ment need only summarize the issues within the rule of reason.
discussed in the broader statement (c) The amended regulation will be PART 1503-COMMENTING
and incorporate discussions from the applicable to all environmental impact
broader statement by reference and statements for which a Notice of
es; specific Intent (40 CFR 1508.22) is published S'
,hall concentrate on the issu in the FEDERAL REGISTEft on or after 1503.1 Inviting comments.
to the subsequent action. The subse- May 27, 1986. For environmental 1503.2 Duty to comment.
quent document shall state where the impact statements in progress, agen- 1503.3 Specificity of comments.
earlier document is available. Tiering cies may choose to comply with the re- 1503.4 Response to comments.
may also be appropriate for different quirements of either the original or AUTHORITY: NEPA. the Environmental
stages of actions. (Section 1508.28). amended regulation. Quality Improvement Act of 1970, as
amended (42 U.S.C. 4371 et seq.). sec. 309 of
� 1502.21 incorporation by reference. (51 FR 15625. Apr. 25.19863 the Clean Air Act, as amended (42 U.S.C.
7609). and E.O. 11514 (Mar. 5. 1970. as
Agencies shall incorporate material � 1502.23 Cost-benerit analysis. amended by E.O. 11991, May 24. 1977).
into an environmental impact state- If a cost-benefit analysis relevant to SOURcE: 43 FR 55997. Nov. 29, 1978. unless
ment by reference when the effect will the choice among environmentally dif- otherwise noted.
be to cut down on bulk without imped-
ing agency and public review of the ferent alternatives is being considered
action. The incorporated material for the proposed action. it shall be in. � 1503.1 Inviting comments.
corporated by reference or appended (a) After preparing a draft environ-
shall be cited In the statement and its to the statement as an aid in evaluat- mental impact statement and before
content briefly described. No material ing the environmental consequences. preparing a final environmental
may be incorporated by reference To assess the adequacy of compliance impact statement the agency shall:
unless it is reasonably available for in- with section 102(2)(B) of the Act the (1) Obtain the comments of any Fed-
spection by potentially interested per- statement shall, when a cost-benefit eral agency which has jurisdiction by
sons within the time allowed for com- analysis is prepared. discuss the rela- law or special expertise with respect to
ment. Material based on proprietary tionship between that analysis and any environmental impact involved or
data which is Itself not available for any analyses of unquantified environ- which is authorized to develop and en-
review and comment shall not be in- mental impacts. values. and amenities. force environmental standards.
corporated by reference. For purposes of complying wi.th the (2) Request the comments of:
� 1502.22 Incomplete or unavailable infor- Act. the weighing of the merits and (I) Appropriate State and local agen-
mation. drawbacks of the various alternatives cies which are-authorized to develop
need not be displayed in a monetary
When an agency is evaluating rea- cost-benefit analysis and should not be and enforce environmental standards.
sonably foreseeable significant adverse when there are important qualitative 0D Indian tribes, when the effects
effects on the human environment in considerations. In any event. an envi. may be on a reservation: and
an environmental impact statement ronmental impact statement should at (III) Any agency which has requested
and there is incomplete or unavailable least indicate those considerations, in. that it receive statements on actions of
information. the agency shall always cluding factors not related to environ- the kind proposed.
make clear that such information is mental quality, which are likely to be Office of Management and Budget
lacking. relevant and important to a decision. Circular A-95 (Revised). through its
(a) If the incomplete information � 1502.24 Methodology and scientific accu- system of clearinghouses. provides a
relevant to reasonably foreseeable sig- means of securing the views of State
nificant adverse impacts is essential to racy. and local environmental agencies. The
a reasoned choice among alternatives Agencies shall insure the profession- clearinghouses may be used, by
and the overall costs of obtaining it al integrity, including scientific integ- mutual agreement of the lead agency
are not exorbitant. the agency shall rity, of the discussions and analyses in and the clearinghouse. for securing
include the information in the envi- environmental impact statements. State and local reviews of the draft en-
ronmental impact statement. They shall identify any methodologies vironmental impact statements.
(b) If the information relevant to used and shall make explicit reference (3) Request comments from the ap-
reasonably foreseeable significant ad. by footnote to the scientific and other plicant, if any.
verse impacts cannot be obtained be. sources relied upon for conclusions in (4) Request comments from the
cause the overall costs of obtaining it the statement. An agency may place public. affirmatively soliciting com-
are exorbitant or the means to obtain ctiscussion of methodology in an ap- ments from those persons or organiza-
it are not known. the agency shall in. pendix. tions who may be interested or affect-
clude within the environmental ed.
impact statement: � 1502.25 Envininmental review and con- (b) An agency may request com-
(1) A statement that such informa- sultation requirements. ments on a final environmental impact
tion is incomplete or unavailable: (2) a (a) To the fullest extent possible, statement before the decision is finally
statement of the relevance of the in- agencies shall prepare draft environ- made. In any case other agencies or
complete or unavailable information mental impact statements concurrent- persons may make comments before
to evaluating reasonably foreseeable ly with and integrated with environ- the final decision unless a different
significant adverse impacts on the mental impact analyses and related time is provided under 1 1506.10.
human environment: (3) a summary of surveys and studies required by the
existing credible scientific evidence Fish and Wildlife Coordination Act (16 111503.2 Duty to comment.
which is relevant to evaluating the U.S.C. 661 et seq.). the National His- Federal agencies with jurisdiction by
reasonably foreseeable significant ad- toric Preservation Act of 1966 (16 law or special expertise with respect to
verse impacts on the human environ- U.S.C. 470 et seq.), the Endangered any environmental impact involved

58 NEPA DESKBOOK

and agencies which are authorized to should be attached to the final state- cil, an agency should weigh. potential
develop and enforce environmental ment whether or not the Comment is adverse environmental impacts. con-
standards shall comment on state- thought to merit individual discussion sidering:
merits within their jurisdiction, exper. by the agency in the text of the state- (a) Possible violation of national en-
tire, or authority. Agencies shall com- ment. . ' vironmental standards or policies.
merit within the time period specified (c) If changes in response to com- (b) Severity.
for comment in 11506.10. A Federal ments are minor and are confined to (c) Geographical scope.
agency may reply that it has no com- the responses described in paragraphs (d) Duration.
ment. If a cooperating agency is satis- (a)(4) and (5) of this section. agencies (e) Importance as precedents.
fied that its views are adequately re- may write them on errata sheets and (f) Availability of environmentally
nected in the environmental impact attach them to the statement instead preferable alternatives.
statement, It should reply that it has of rewriting the draft statement. In
no comment. such cases only the comments. the reT � 1504.3 Procedure for referrals and re-
sponses, and the changes and not the sponse.
11503.3 Specificity of comments. final statement. need be circulated (a) A Federal agency making the re-
(a) Comments on an environmental (11502.19). The entire document with ferral to the Council shall:
impact statement or on a proposed a new cover sheet shall be filed as the (1) Advise the lead agency at the
action shall be as specific as possible final statement (11306.9).
and may address either the adequacy earliest possible time that it intends to
of the statement or the merits of the PART 1504-PREDECISION REFER- refer a matter to the Council unless a
alternatives discussed or both. RALS TO THE COUNCIL OF PRO- satisfactory agreement is reached.
(b) When a commenting agency criti- (2) Include such advice in the refer-
eth- POSED FEDERAL ACTIONS DETER- ring agency's comments on the draft
cizes a lead agency's predictive in MINED TO BE ENVIRONMENTALLY environmental impact statement,
odology, the commenting agency UNSATISFACTORY except when the statement does not
should describe the alternative meth-
odology which it prefers and why. contain adequate information to
See. permit an assessment of the matter's
(c) A cooperating agency shall speci- 1504.1 Purpose. environmental acceptability.
fy in its comments whether it needs 1504.2 Criteria for referral.
additional Information to fulfill other 1504.3 Procedure for referrals and re- (3) identify any essential informa-
applicable environmental reviews or sponse. tion that is lacking and request that it
consultation requirements and what be made available at the earliest possi-
AuTHoRiTy: NEPA. the Environmental ble time.
Information it needs. In Particular. it Quality Improvement Act of 1970, as
shall specify any additional informa- amended (42 U.S.C. 4371 et seq.), see. 309 of (4) Send copies of such advice to the
tion it needs to comment adequately the Clean Air Act, as amended (42 U.S.C. Council.
on the draft statement's analysis of 7609). and E.O. 11514 (Mar. 5. 1970. as (b) The referring agency shall deliv-
significant site-specific effects associ- amended by E-0- 11991. May 24. 1977). er its referral to the Council not later
ated with the granting or approving SOURCE: 43 FR 55998, Nov. 29. 1978, unless than twentY-five (25) days after the
by that cooperating agency of neces- otherwise noted. final environmental impact staterrient
sary Federal permits, licenses, or enti- has been made available to the Envi-
tlements. � 1504.1 Purpose. ronmental Protection Agency. com-
(d) When a cooperating agency with (a) This part establishes procedures menting agencies, and the public.
jurisdiction by law objects to or ex- for referring to the Council Federal Except when an extension of this
Presses reservations about the propos- interagency disagreements concerning period has been granted by the lead
al on grounds of environmental im- proposed major Federal actions that agency, the Council will not accept a
pacts. the agency expressing the objec. might cause unsatisfactory environ- referral after that date.
tiOn or reservation shall specify the mental effects. It provides means for (c) The referral shall consist of:
mitigation measures it considers neces- early resolution of such disagree- (1) A copy of the letter signed by the
sary to allow the agency to grant or ments. head of the referring agency and deliv-
approve applicable permit. license. or (b) Under section 309 of the Clean ered to the lead agency Informing the
related requirements or concurrences. Air Act (42 U.S.C. 7609). the Adminis. lead agency of the referral and the
trator of the Environmental Protec- reasons for It, and requesting that no
� 1503.4 Response to comments. tion Agency is directed to review and action be taken to implement Ahe
. comment publicly on the environmen- matter until the Council acts upon the
(a) An agency preparing a final en " tal impacts of Federal activities. in- referral. The letter shall include a
ronmental impact statement shall cluding actions for which environmen- copy of the statement referred Lo in
assess and consider comments both in- tal impact statements are prepared. if (c)(2) of this section.
dividually and collectively, and shall after this review the Administrator de- (2) A statement supported by factual
respond by one or more of the means toermines that the matter is -unsatis- evidence leading to the concLision
listed below. stating its response in the factory from the standpoint of public that the matter is unsatisfactory from
final statement. Possible responses are health or welfare or environmental the standpoint of public health or wel-
to: quality." section 309 direcLs that the fare or environmental quality. The
(1) Modify alternatives including the matter be referred to the Council statement shall:
proposed action. (hereafter "environmental referrals"). (I) Identify any material facts in
(2) Develop and evaluate alterna. (c) Under section 102(2)(C) of the controversy and incorporate (by refer-
tives not previously given serious con- Act other Federal agencies may make ence if appropriate) agreed upon facts,
sideration by the agency. similar reviews of environmental (ii) Identify any existing environ-
(3) Supplement, improve, or modify impact statements. including judg- mental requirements or policies which
its analyses. ments on the acceptability of antici- would be violated by the matter.
(4) Make factual corrections. pated environmental impacts. These 0ii) Present the reasons why the re-
(5) Explain why the Comments do reviews must be made available to the ferring agency believes the matter is
not warrant further agency response, President. the Council and the public. environmentally unsatisfactory,
citing the sources, authorities. or rea- Ov) Contain a finding by the agency
sons which support the agency's posi- 6 1504.2 Criteria for referral. whether the issue raised is of naLional
tion and, if appropriate. indicate those Environmental- referrals should be importance because of the threat to
circumstances which would trigger inade to the Council only after con- national environmental resources or
agency reappraisal or further re. certed. timely (as early as possible in policies or for some other reason.
sponse. the process). but unsuccessful at- (v) Review the steps taken by the re-
(b) All substantive comments re- tempts to resolve differences with the ferring agency to bring its concerns to
ceived on the draft statement (or surn- lead agency. In determining what erwi- the attention of the lead agency at the
maries thereof where the response has ronmentai objections to the matter earliest possible time, and
been exceptionally voluminous). are appropriate to refer to the Coun- (vi) Give the referring agency s rec-

CEQ NEPA REGULATIONS 59
omm,ndations as to what mitigation PART 1505-NEPA AND AGENCY agency may discuss preferences among
alternative. f@rther study, or other DECISIONMAKING alternatives based on relevant factors
course of action (including abandon- including economic and technical con-
ment Of the matter) are necessary to Sec. siderations and agency statutory mis-
remedy the situation. 1505.1 Agency decisionmaking procedures. sions. An agency shall identify and dis-
(d) Not later than twenty-five (25) i505.2 Record of decision in cases requiring cuss all such factors including any es-
after the referral to the Council environmental impact statements. sential considerations of national
days may deliver a response 1505.3 Implementing the decision. policy which were balanced by the
the lead agency
to the Council. and the referring AUTHORITY: NEPA. the Environmental agency in making its decision and
agency. If the lead agency requests Quality Improvement Act of 1970, as state how those considerations entered
more time and gives assurance that amended (42 U.S.C. 4371 et seq.). see. 309 of into its decision.
the matter will not 90 forward in the the Clean Air Act. as amended (42 U.S.C. (c) State whether all practicable
interim. the council may grant an eX- 7609). and E.O. 11514 (Mar. 5. 1970 ' as means to avoid or minimize environ-
terigion. The response shall: amended by E.O. 11991, May 24. 1977). mental harm from the alternative se-
(1) Address fully the issues raised In SouRcE: 43 FR 55999, Nov. 29, 1978. unless lected have been adopted. and if not,
the referral. by evidence. otherwise noted. why they were not. A monitoring and
(2) Be supported response � 1505.1 Agency decisionmaking proce- enforcement program shall be adopted
(3) Give the lead agency's and summarized where applicable for
's recommenda- dures. any mitigation.
to the referring agency Agencies shall adopt procedures
tions. rsons (including the (1 1507.3) to ensure that decisions are
(e) Interested pe views in � 1505.3 Implementing the decision.
applicant) may deliver their made in accordance with the policies
writing to the Council. Views in SUP- and purposes of the Act. Such proce- Agencies may provide for monitoring
port Of the referral should be deliv- dures shall include but not be limited to assure that their decisions are car-
ered not later than the referral. Views to: ried out and should do so in important
in support of the response shall be de- (a) Implementing procedures under cases. Mitigation (I 1505.2(c)) and
livered not later than the response. section 102(2) to achieve the require- other conditions established in the en-
later than twentY-five (25) ments of sections 101 and 102(l). vironmental impact statement or
(f) Not (b) Designating the major decision during its review and committed as
days after receipt of both the referral
and any response or upon being in- points for the agency's principal pro- part of the decision shall be imple-
formed that there will be no response grains likely to have a significant merited by the lead agency or other
d agency agrees to a effect on the human environment and opriate consenting agency. The
(unless the lea corre. appr
longer time), the Council may take assuring that the NEPA process lead agency shall:
one or more of the following actions: sponds with them. (a) Include appropriate conditions in
(1) Conclude that the process of re- (c) Requiring that relevant environ- grants. permits or other approvals.
ferral and response has successfully mental documents. comments and re-
resolved the problem. sponses be part of the record iii formal (b) Condition funding of actions on
(2) initiate discussions with the rulemaking or adjudicatory proceed- mitigation.
agencies with the objective of media- ings. (c) Upon request. inform cooperating
tion with referring and lead agencies. (d) Requiring that relevant environ- or commenting agencies on progress in
(3) Hold public meetings or hearings mental documents, comments. and re- carrying out mitigation measures
to obtain additional views and infor. sponses accompany the proposal which they have proposed and which
mation. through existing agency review proc- were adopted by the agency making
(4) Determine that the issue is not esses so that agency officials use the the decision.
one of national importance and re- statement in making decisions. (d) Upon request, make available to
quest the referring and lead agencies (e) Requiring that the alternatives the public the results of relevant mon-
to pursue their decision process. considered by the decisionmaker are itoring.
(5) Determine that the issue should encompassed by the range of alterna-
be further negotiated by the referring tives discussed in the relevant environ-
and lead agencies and is not appropri- mental documents and that the deci- PART 1506-OTHER REQUIREMENTS
ate for Council consideration until one sionmaker consider the alternatives OF NEPA
or more heads of agencies report to described in the environmental impact
the Council that the agencies' dis- statement. If another decision docu- sec.
agreements are irreconcilable. ment accompanies the relevant envi- 1506.1 Limitations on actions during NEPA
(6) Publish its findings and recom- ronmental documents to the decision- process.
mendations (including where appropri- maker. agencies are encouraged to 1506.2 Elimination of duplication with
ate a finding that the submitted evi- make available to the public before State and local procedures.
dence does not support the position of the decision is made any part of that 1506-3 Adoption.
an agency). document *that relates to the compari- 1506.4 Combining documents.
(7) When appropriate. submit the re- son of alternatives. 1506.5 Agency responsibility.
1506.6 Public Involvement.
ferral and the response together with 6 1505.2 Record of decision in cases re- 1506.7 Purther guidance.
the Council*s recommendation to the quiring environmental impact state- 1506.8 Proposals for legislation.
President for action. ments. 1506.9 F41ing requirements.
(g) The Council shall take no longer 1506.10 Timing of agency action.
than 60 days to complete the actions At the time of its decision (11506.10) 1506.11 Emergencies.
sPecified in paragraph (f)(2). (3). or (5) or, if appropriate, its recommendation 1506.12 Effective date.
of this section. to-Congress, each agency shall prepare AUTHORITY: NEPA. the Environmental
(h) When the referral involves an & concise public record of decision. Quality Improvement Act of 1970. as
action required by statute to be deter- The record. which may be integrated amended (42 U.S.C. 4371 ei sev, sec. 309 of
mined on the record after opportunity into any other record prepared by the the Clean Air Act. as amended (42 U.S.C.
for agency hearing. the referral shall agency, including that required by 709), and E.O. 11514 (Mar. 5. 1970. as
be conducted in a manner consistent OME Circular A-95 (Revised). part 1. amended by E.O. 11991. May 24.1977).
with 5 U.S.C. 557(d) (Administrative sections 6(c) and (d). and Part 11. sec- SOUR= 43 FR 56000. Nov. 29. 1978, unless
Procedure Act). tion 5(b)(4), shall: otherwise noted.
'43 FR 55998, Nov. 29. 1978: 44 FR 873. Jan. (a) State what the decision was. on actions during
3.19791 (b) Identify all alternatives consid- 111506.1 Limitations
ered by the agency in reaching its de- NEPA process.
cision. specifying the alternative or al- (a) Until an agency issues a record of
ternatives which were considered to be decision as provided in 11505.2 (except
environmentally preferable. An as provided in paragraph (c) of this

60 NEPA DESKBOOK

section). no action concerning the pro@ -doing so by some other law. Except for ly evaluate the information submitted
posal shall be taken which would: cases covered by paragraph (a) of this and shall be responsible for its accura-
(1) Have an adverse environmental section, such cooperation shall to the cy. If the agency chooses to use the in-
impact; or fullest extent possible include joint en- formation submitted by the applicant
(2) Limit the choice of reasonable a]. vironmenLal impact statements. In in the environmental impact state-
ternatives. such cases one or more Federal agen- ment, either directly or by reference.
(b) If any agency is considering an cies and one or more State or local then the names of the persons respon-
application from a non-Federal entity. agencies shall be Joint lead agencies. sible for the independent evaluation
and is aware that the applicant is Where State laws or local ordinances shall be included in the list of prepar-
about to take an action within the have environmental impact statement ers (1 1502.17). It is the intent of this
agency's jurisdiction that would meet requirements in addition to but not in paragraph that acceptable work not C)e
either of the criteria in paragraph (a) conflict with those in NEPA. Federal redone, but that it be verified by the
of this section. then the agency shall agencies shall cooperate in fulfilling agency.
promptly notify the applicant that the these requirements as well as those of (b) Environmental assessments. If
agency will take appropriate action to Federal laws so that one document an agency permits an applicant to p:-e-
.insure that the objectives and proce- will comply with all applicable laws. pare an environmental assessment, the
dures of NEPA are achieved. (d) To better integrate environmen- agency, besides fulfilling the require-
(c) While work on a required pro- tal impact statements into State or ments of paragraph (a) of this section,
gram environmental impact statement shall make its own evaluation of the
is In progress and the action is not cov- local planning processes. statements environmental issues and take respon-
ered by an existing program state- shall discuss any inconsistency of a sibility for the scope and content of
ment, agencies shall not undertake in proposed action with any approved the environmental assessment.
the interim any major Federal action State or local plan and laws (whether (c) Environmental impact stcte-
covered by the program which may or not federally sanctioned). Where an ments. Except as provided in �� 1506.2
significantly affect the quality of the inconsistency exists. the statement and 1506.3 any environmental impact
human environment unless such should describe the extent to which statement prepared pursuant to -.he
action: the agency would reconcile its pro- requirements of NEPA shall be pre-
(1) Is justified independently of the. posed action with the plan or law. pared directly by or by a contractor se-
program: 111506.3 Adoption. lected by the lead agency or where ap-
(2) Is itself accompanied by an ade- propriate under I 1501.6(b), a cooper-
quate environmental impact state- (a) An agency may adopt a Federal ating agency. It is the intent of these
ment: and draft or final environmental impact regulations that the contractor be
(3) Will not prejudice the ultimate statement or portion thereof provided chosen solely by the lead agency, or by
decision on the program. Interim that the statement or portion thereof the lead agency in cooperation with
action prejudices the ultimate decision meets the standards for an adequate cooperating agencies, or where appro-
on the program when.it tends to deter- statement under these regulations. priate by a cooperating agency to
mine subsequent development or limit (b) If the actions covered by the avoid any conflict of interest. Contrac-
alternatives. original environmental impact state- tors shall execute a disclosure state-
(d) This section does not preclude ment and the proposed action are sub- ment prepared by the lead agency. or
development by applicants of plans or stantially the same, the agency adopt- where appropriate the cooperating
designs or performance of other work ing another agency's statement is not agency, specifying that they have no
necessary to support an application required to recirculate it except as a financial or other interest in the out-
for Federal, State or local permits or final statement. Otherwise the adopt. come of the project. If the clocurrient
assistance. Nothing in this section ing agency shall treat the statement as is prepared by contract, the responsi-
shall preclude Rural Electrification a draft and recirculate it (except as ble Federal official shall furnish gruid-
Administration approval of minimal provided in paragraph (c) of this sec. ance and participate in the prepara-
expenditures not affecting the envi. tion). tion and shall independently evaluate
ronment (e.g. long leadtime equipment (c) A cooperating agency may adopt the statement prior to Its approval and
and purchase options) made by non- without recirculating the environmen- take responsibility for its scope and
governmental entities seeking loan tal impact statement of a lead agency contents. Nothing in this section LS in-
guarantees from the Administration. when. after an independent review Of tended to prohibit any agency from re-
questing any person to submit infor-
� 1506.2 Elimination of duplicatiof@@ith the statement, the cooperating agency
State and local procedureq. concludes that its comments and sug- mation to It or to prohibit any person
gestions have been satisfied. from submitting information to anY
(a) Agencies authorized by law to co- (d) When an agency adopts a state- agency.
operate with State agencies of state- ment which is not final within the
wide jurisdiction pursuant to section agency that prepared it. or when the 0 1506-6 Public involvement.
102(2)(D) of the Act may do so. action it assesses is the subject of a re- Agencies shall:
(b) Agencies shall cooperate with ferral under Part 1504, or when the (a) Make diligent efforts to irvolve
State and local agencies to the fullest
extent possible to reduce duplication statement's adequacy is the subject of the public in preparing and imple,
between NEPA and State and local re- a Judicial action which is not final, the menting their NEPA procedures.
quirements. unless the agencies are agency shall so specify. (b) Provide public notice of NTPA-
specifically barred from doing so by 9 150.4 Combining documents. related hearings. public meetings. and
some other law. Except for cases cov- the availability of environmental doctJ'
ered by paragraph (a) of this section. Any environmental document in ments so as to inform those PersOffi
I compliance with NEPA may be com- and agencies who may be interested Or
such cooperation shall to the fullest A
extent Possible include: bined with any other agency docu- affected. t,
(1) Joint planning processes. ment to reduce duplication and paper- (1) In all cases the agency shall mail r,*
(2) Joint environmental research work. notice to those who have requeated it
and studies. on an individual action. P,
(3) Joint Public hearings (except � I SM$ Agency responsibility. (2) In the case of an action with ef, a@
where otherwise Provided by statute). (a) I ,nformation. If an agency re- fects of national concern notice shii'll e(
(4) Joint environmental assessments. quires an ligimt to submit environ- include publication in the F.CDCRAL
(c) Agencies shall cooperate with mental information for possible use by REGisTEit and notice by mail to riat' nf
State and local agencies to the fullest the agency in preparing an environ- al organizations reasona ly exP t ,
extent Possible to reduce duplication mental impact statement. then the to be interested in the matter ar.d 1118)
between NEPA and comparable State agency should assist the applicant by include listing in the 102 onijor A@ 40
and local requirements. unless the outlining the types of information re- agency engaged in rule akini; Ms@
agencies are specifically barred from quired. The agency shall independent- provide notice by mail to nation Or'

CEQ NEPA REGULATIONS 61
anizations who have requested that � 1.506.7 Further guidance. by the General Services Administra.
9 ly be provided. Agencies
notice regular The Council may provide further tion, a draft statement shall accompa-
0.11 maintain a list of such organiza- guidance concerning NEPA and its ny the Prospectus or the 11(b) Report
procedures including: of Building Project Surveys to the
tions. e of an action with ef-. (a) A handbook which the Council Congress. and a final statement shall
(3) in the Cas
is primarily of local concern the may supplement from time to time, be completed before site acquisition.
ay include: which shall in plain language provide (iv) The agency decides to prepare
notice draft and final statements.
(i) otice to State and areawide guidance and instructions concerning
clearinghouses pursuant to OMB Cir- the application of NEPA and these (c) Comments on the legislative
-95 ( evised). regulations. statement shall be given to the lead
c0lar Indian tribes when ef- (b) Publication of the Council's agency which shall forward them
(ii) otice to
f
ts y cur on reservations. Memoranda to Heads of Agencies. along with its own responses to the
dii) Following the affected State's (c) In conjunction with the Environ- Congressional committees with juris-
public notice procedures for compara- mental Protection Agency and the diction.
publication of the 102 Monitor, notice � 1506.9 Filing requirements.
ble actions' of:
(iv) publication in local newspapers
in papers of general circulation (1) Research activities; Environmental impact statements
(2) Meetings and conferences related together with comments and responses
rather than legal papers). to NEPA: and shall be filed with the Environmental
(v) Notice through other local (3) Successful and innovative proce- Protection Agency. attention Office of
media. entially intere ted dures used by agencies to implement Federal Activities (A-104). 401 M
(vi) Notice to Pot s NEPA. Street SW.. Washington, DC 20460.
community organizations including Statements shall be filed with EPA no
Mail business associations. � 1506.8 Proposals for legislation, earlier than they are also transmitted
(Vii) Publication in newsletters that (a) The NEPA process for proposals to commenting agencies and' made
may be expected to reach potentially for legislation (11508.17) significantly available to the public. EPA shall de-
interested persons. fecting the quality of the human en- liver one copy of each statement to
(viii) Direct mailing to owners and af the Council, which shall satisfy the re-
occupants of nearby or affected prop- vironment shall be integrated with the quirement of availability to the Presi-
legislative process of the Congress. A
ertY. legislative environmental impact state- dent. EPA may issue guidelines to
(ix) posting of notice on and off site ment is the detailed statement re- agencies to implement its responsibil-
in the area where the action is to be quired by law to be included in a rec- ities under this section and 11506.10.
ocaled, ommendation or report on a legislative
(c) Hold or sponsor public hearings proposal to Congress. A legislative en- � 1506.10 Timing of agency action.
or public meetings whenever appropri- vironmental impact statement shall be (a) The Environmental Protection
ate or in accordance with statutory re- considered part of the formal trans- Agency shall publish a notice in the
quirements applicable to the agency. mittal of a legislative proposal to Con- FEDERAL REGISTER each week of the en.
Criteria shall include whether there is: gress; however, it may be transmitted vironmental impact statements filed
(1) Substantial environmental con- to Congress up to 30 days later in during the preceding week. The mini-
troversy concerning the proposed order to allow time for completion of mum time periods set forth in this sec-
action or substantial interest in hold- an accurate statement which can serve tion shall be calculated from the date
ing the hearing. as the basis for public and Congres- of publication of this notice.
(2) A request for a hearing by an- sional debate. The statement must be (b) No decision on the proposed
other agency with jurisdiction over available in time for Congressional action shall be made or recorded
the action supported by reasons why a hearings and deliberations. under 11505.2 by a Federal agency
hearing will be helpful. If a draft envi- (b) Preparation of a legislative envi- until the later of the following dates:
ronmental impact statement is to be ronmental impact statement shall con- (1) Ninety (90) days after publica-
considered at a public hearing. the form to the requirements of these reg- tion of the notice described above in
agency should make the statement ulations except as follows: paragraph (a) of this section for a
available to the public at least 15 days (1) There need not be a scoping proc. draft environmental impact statement.
in advance (unless the purpose of the ess. (2) Thirty (30) days after publication
hearing is to provide information for (2) The legislative statement shall be of the notice described above in para-
the draft environmental impact state- prepared in the same manner as a graph (a) of this section for a final en-
ment). draft statement. but shall be consid- vironmental impact statement.
(d) Solicit appropriate information ered the "detailed statement" required An exception to the rules on timing
from the public. by statute; Provided, That when any may be made in the case of an agency
(e) Explain in its procedures where of the following conditions exist both
onmental decision which is subject to a formal
interested persons can get information the draft and final envir internal appeal. Some agencies have a
or status reports on environmental impact statement on the legislative formally established appeal process
impact statements and other elements proposal shall be prepared and circu- which allows other agencies or the
of the NEPA process. lated as provided by 111503.1 and public to take appeals on a decision
M Make environmental impact 1506-10- and make their views known, after
statements. the comments received. 0) A Congressional Committee with publication of the final environmental
and any underlying documents avail- Jurisdiction over the proposal has a impact statement. In such cases,
able to the public pursuant to the pro- rule requiring both draft and final en- where a real opportunity exists to
visions of the Freedom of Information vironmental impact statements. alter the decision, the decision may be
Act (5 U.S,C. 552). without regard to (ii) The proposal results from a made and recorded at the same time
the exclusion for interagency memo- study process required by statute the environmental impact statement is
randa where such memoranda trans- (such as those required by the Wild published. This means that the period
mit comments of Federal agencies on and Scenic Rivers Act (16 U.S.C. 1271 for appeal of the decision and the 30-
the environmental impact of the pro- et seq.) and the Wilderness Act (16 day period prescribed in Paragraph
Posed action. Materials to be made U.S.C. 1131 et seq.)). (b)(2) of this section may run concur-
available to the public shall be provid- (iii) Legislative approval is sought rently. In such cases the environmen-
ed to the public without charge to the for Federal or federally assisted con- tal impact statement shall explain the
extent practicable. or at a fee which is struction or other projects which the timing and the public's right of
not more than the actual costs of re- agency recommends be located at spe- appeal. An agency engaged in rule-
Producing copies required to be sent to cific geographic locations. For propos- making under the Administrative Pro-
other Federal agencies, including the als requiring an environmental impact cedure Act or other statute for the
Council. statement for the acquisition of space purpose of protecting the public

62 NEPA DESKBOOK

health or safety. may waive the time Council's guidelines published in the (e) Comply with the requirements of
period in paragraph (b)(2) of this Sec- FEDERAL REGISTER of August 1. 1973, section 102(2)(H) that the agency initi-
tion and publish a decision on the shall continue to be applicable. In ate and utilize ecological information
final rule simultaneously with publica- cases where these regulations are ap- in the planning and development of
tion of the notice of the availability of plicable the guidelines are superseded. resource-oriented projects.
the final environmental impact state- However, nothing shall prevent an (f) Fulfill the requirements of sec-
ment as described in paragraph (a) of agency from proceeding under these tions 102(2)(F), 102(2)(G). and
this section. regulations at an earlier time. 102(2)(1). of the Act and of Executive
(c) If the final environmental impact (b) NZPA shall continue to be appli- Order 11514, Protection and Enhance.
statement is filed within ninety (90) cable to actions begun before January ment of Environmental Quality. See.
days after a draft environmental 1. 1970, to the fullest extent possible. 2.
impact statement is filed with the En-
vironmental Protection Agency, the PART 1507-AGENCY COMPLIANCE 4 1101.3 Agency procedures.
minimum thirty (30) day period and (a) Not later than eight months
the minimum ninety (90) day period Sec. after publication of these regulations
may run concurrently. However, sub- 1507 1 Compliance. as finally adopted in the FEDERAL REG-
ject to paragraph (d) of this section 1507*.2 Agency capability to comply. ISTER, or five months after the estab-
agencies shall allow not less than 45 1507.3 Agency procedures. lishment of an agency, whichever shall
days for comments on draft state- AUTHoniTy: NEPA, the Environmental come later. each agency shall as neces-
ments. Quality Improvement Act of 1970, as sary adopt procedures to supplement
(d) The lead agency may extend pre- amended (42 U.B.C. 4371 et seq.). sec. 309 of these regulations. When the agency is
scribed periods. The Environmental the Clean Air Act. as amended (42 U.S.C. a department, major subunits are en-
Protection Agency may upon a show- 7609). and E.O. 11514 (Mar. 5. 1970. as couraged (with the consent of the de-
ing by the lead agency of compelling amended by E.O.. 11991. May 24. 1977). partment) to adopt their own proce-
reasons of national policy reduce the SOURcz: 43 FR 56002. Nov. 29, 1918. unless dures. Such procedures shall not para-
prescribed periods and may upon a otherwise noted. phrase these regulations. They shall
showing by any other Federal agency confine themselves to implementing
of compelling reasons of national 9 1507.1 Compliance. procedures. Each agency shall consult
policy also extend prescribed periods, All agencies of the Federal Govern- with the Council while developing its
but only after consultation with the ment shall comply with these regula- procedures and before publishing
lead agency. (Also see J 1507.3(d).) tions. It is the intent of these regula- them in the FEDERAL REGISTER for
Failure to file timely comments shall tions to allow each agency flexibility comment. Agencies with similar pro-
not be a sufficient reason for extend- in adapting its implementing proce- grams should consult with each other
ing a period. If the lead agency does dures authorized by 11507.3 to the re- and the Council to coordinate their
not concur with the extension of time, quirements of other applicable laws. procedures, especially for programs re-
EPA may not extend it for more than questing similar information from ap-
30 days. When the Environmental Pro- � 1507.2 Agency capability to comply. plicants. The procedures sh*Lll be
tection Agency reduces or extends any Each agency shall be capable (in adopted only after an opportunity for
period of time it shall notify the Coun, terms of personnel and other re- public review and after review ay the
cil. sources) of complying with the re- Council for conformity with the Act
143 FR 56000, Nov. 29. 1978: 44 FIR 874. Jan. quirements enumerated below. Such and these regulations. The Council
3.19791 compliance may include use of other's shall complete its review within 30
resources, but the using agency shall days. Once in effect they shall tie filed
111506.11 Emergencies. itself have sufficient capability to with the Council and made readily
Where emergency circumstances evaluate what others do for it. Agen- available to the public. Agencies are
make it necessary to take an action cies shall: encouraged to publish explanatory
with significant environmental impact (a) Fulfill the requirements of sec- guidance for these regulations and
without observing the provisions of tion 102(2)(A) of the Act to utilize a their own procedures. Agencies shall
these regulations. the Federal agency systematic. interdisciplinary approach continue to review their policies and
taking the action should consult with which will insure the integrated use of procedures and in consultation with
the Council about alternative arrange. the natural and social sciences and the the Council to revise them as neces-
ments. Agencies and the Council will environmental design arts in planning sary to ensure full compliance with
limit such arrangements to actions and in decisionmaking which may the purposes and provisions of the
necessary to control the immediate im- have an impact on the human environ- Act.
Pacts of the emergency. Other actions ment. Agencies shall designate a (b) Agency procedures shall complY
remain subject to NEPA review. person to be responsible for overall with these regulations except where
0eview of agency NEPA compliance. compliance would be inconsistent with
� 15N.12 Effective date. (b) Identify methods and procedures statutory requirements and shall in-
The effective date of these regula- required by section 102(2)(B) to insure clude:
tiOns is July 30. 1979. except that for that presently unquantified environ- (1) Those procedures required bY
agencies that administer programs pental amenities and values may be 11 1501.2(d), 1502.9(c)(3). 1505.1.
that qualify under section 102(2)(D) of given appropriate consideration. 1506.6(e). and 1508.4.
the Act or under section 104(h) of the (c) Prepare adequate environmental (2) Specific criteria for and identifi-
Housing and Community Development impact statements pursuant to section cation of those typical chusses Of
Act of 1974 an additional four months 102(2)(C) and comment on statements action:
shall be allowed for the State or local in the areas where the agency has Ju- (i) Which normally do require envi-
agencies to adopt their implementing risdiction by law or special expertise ronmental impact statements.
Procedures. or is authorized to develop and enforce 0i) Which normally do not require
(a) These regulations shall apply to environmental standards. either an environmental impact state,
the fullest extent practicable to ongo- (d) Study, develop. and describe al- ment or an environmental a&sessirnerit
ing activities and environmental docu- ternatives to recommended courses of (categorical exclusions (� 1508.4)).
ments begun before the effective date. action in any proposal which involves (iii) Which normally require env"
These regulations do not apply to an unresolved cofiflicts concerning alter- ronmental assessments but not riece"
environmental impact statement or native uses of available resources. This sarily environmental impact state.
supplement if the draft statement was requirement of section 102(2)(E) ex- ments.
filed before the effective date of these tends to all such proposals, not just (c) Agency procedures may include
regulations. No completed environ- the more limited scope of section specific criteria for providing IiM04
, need be redone by 102(2)(C)(iii) where the discussion of exceptions to the provisions of the,e
mental documents 0
remons of theise regulations. Until alternatives is confined to impact regulations for classified proposs's
these regulations are applicable. the statements. They are proposed actions which sre

CEQ NEPA REGULATIONS 63

y authorized under criteria U.S.C. 4321. et 3eq.) which is also re- duced changes in the pattern of land
specific&" use, Population density or growth rate.
established by an Executive Order or ferred to as "NEPA."
,tute to be kept secret in the inter- and related effects on air and water
Sts of national defense or foreign � 1508.3 Affecting. and other natural systems, including
est and are in fact properly classi- . "'Affecting" means will or may have ecosystems.
policy uch Executive Order an effect on. Effects and impacts as used In these
,d pursuant to s
fie nmental assessments regulations are synonymous. Effects
or statute. Enviro 111508.4 Categorical exclusion.
and environmental impact statements includes ecological (such as the effects
which address classified proposals may "Categorical exclusion- means a cat- on natural resources and on the com-
be safeguarded and restricted from egory of actions which do not individ- ponents, structures, and functioning
Public dissemination in accordance ually or cumulatively have a signifi- of affected ecosystems), aesthetic, his.
,ith agencies'own regulations applica- cant effect on the human environment toric. cultural. economic. social, or
, to classified information. These and which have bern found to have no health, whether direct. indirect, or cu-
ble such effect in procedures adop@ted by a mulative. Effects may also include
document' may be organized so that
classified portions can be included as Federal agency in implementation of those resulting from actions which
anilexes. in order that the unclassified these regulations (11507.3) and for may have both beneficial and detri.
portions can be made available to the which. therefore, neither an environ- mental effects. even If on balance the
public. mental assessment nor an envirorunen- agency believes that the effect will be
W Agency procedures may provide
r periods of time other than those tal impact statement is required. An beneficial.
fol 06.10 when necessary agency may decide In Its procedures or 9 1508.9 Environmental assessment.
presented in � 15
comply with other specific statuto- otherwise. to prepare environmental
to assessments for the reasons stated in -Environmental assessment":
rY requirements.
(e) Agency procedures may provide 11508.9 even though It is not required (a) Means a concise public document
that where there is a lengthy period to do so. Any procedures under this for which a Federal agency is responsi-
between the agency's decision to pre- section shall provide for extraordinary ble that serves to:
nvironmental impact state. circumstances in which a normally ex- (1) Briefly provide sufficient evi-
pare an e
nt and the time of actual Prepara- cluded action may have a significant dence and analysis for determining
me whether to prepare an environmental
tion. the notice of intent required by environmental effect. impact statement or a finding of no
11501.7 may be published at a reason- � 150&5 Cooperating agency. significant impact.
able time in advance of preparation of ans any (2) Aid an agency's compliance with
the draft statement. "Cooperating agency" me the Act when no environmental
Federal agency other than a lead impact statement is necessary.
PART 1508-TERMINOLOGY AND agency which has jurisdiction by law (3) Facilitate preparation of a state-
INDEX or special expertise with respect to ment when one is necessary.
any environmental impact involved in (b) Shall include brief discussions of
sec. a proposal (or a reasonable alterna- the need for the proposal. of alterna-
1508.1 Terminology. tive) for legislation or other major tives as required by section 102(2)(E).
1508.2 Act. Federal action significantly affecting of the environmental impacts of the
1508.3 Affecting. the quality of the human environ- proposed action and alternatives. and
1508.4 categorical exclusion. ment. The selection and responsibil- a listing of agencies and persons con-
1508.5 Cooperating agency. ities of a cooperating agency are de- suited.
1508.6 Council. scribed in 11501.6. A State or local
1508.7 Cumulative impact. � 1508.10 Environmental document.
1508.8 Effects. agency of similar qualifications or,
1508.9 Environmental assessment. when the effects are on a reservation, -Environmental document" includes
1508-lo Environmental document. an Indian Tribe, may by agreement the documents specified in 11508.9
1508.11 Environmental impact Statement. with the lead agency become a cooper- (environmental assessment), 11508-11
1508.12 Federalagency. ating agency. (environmental impact statement),
1508.13 Finding of no significant impact. 11508.13 (finding of no significant
1508-14 Human environment. I epoR.6 Council. impact). and J 1508.22 (notice of
1508.15 Jurisdiction by law. intent).
t508-16 Loead agency. -Council" means the Council on En-
1508.17 1,egislation. vironmental Quality established by 1 IN8.11 Environmental Impact state-
1508.18 Major Federal action. Title 11 of the Act. ment.
1508.19 Matter. -Environmental impact statement"
1508.20 Mitigation. 1.508.7 Cumulative Impact.
1508.21 NEPA process. means a detailed written statement as
1508.22 Notice of intent. ---Cumulative impact" is the impact required by section 102(2)(C) of the
150813 Proposal. on the environment which results Act.
1508.24 Referring agency. from the incremental impact of the
1508.25 Scope. action when added to other past. 6 1508.12 Federal agency.
1505.26 Special expertise. present. and reasonably foreseeable -Federal agency" means all agencies
1508-27 Significantly. future actions regardless of what of the Federal Government. it does
1508.28 Tiering. agency (FederW or non-Federal) or not mean the Congress. the Judiciary.
AuTHoItITY: NEPA. the Environmental person undertakes such other actions. or the President. Including the per-
Quality Improvement Act of 1910. as Cumulative impacts can result from formance of staff functions for the
amended (42 U.S.C. 4371 et seq.). sec. 309 of individually minor but collectively sig- President in his Executive Office. It
the Clean Air Act, as amended (42 U.S.C. nificant actions taking place over a also includes for purposes of these reg-
7609). and E.O. .11514 (Mar. 5. 1970* as period of time. uiations states and units of general
amended by E.O. 11991. May 24. 1977). local government and Indian tribes as-
SGURcr 43 FR 56003. Nov. 29. 1978. unless o [email protected] Effects. suming NEPA responsibilities under
othervitse noted. "Effects" include: section 104(h) of the Housing and
1508.1 Terminology. (a) Direct effects. which are caused Community Development Act of 1974.
The terminology of this part shall by the action and occur at the same 11501.13 Flinding of no significant impact
time and place.
be uniform throughout the Federal (b) Indirect effects. which are caused -Finding of no significant impact"
Government. by the action and are later in time or mewis a document by & Federal
twther removed in distance, but am agency briefly presenting the reasons
11%8.2 Act. still reasonably foreseeable. Indirect why an action. not otherwise excluded
"Act" means the National Environ. effects may include growth inducing (I IN8.4). will not have a significant
mental Policy Act. as amended (42 effects and other effects related to in- effect on the human environment and

64 NEPA DESKBOOK

for which an environmental impact vised agency rules, regulations. plans. � 1508.21 NEPA process.
statement therefore will not be pre- policies, or procedures; and legislative "NEPA process" means all measures
pared. It shall include the environ- proposals (�� 1506.8. 1508.17). Actions
mental assessment or a summary of it do not include funding assistance necessary for compliance with thE re-
and shall note any other environmen- solely in the form of general revenue quirements of section 2 and Title I of
tal -documents related to it sharing funds, distributed under the NEPA,
(I 1501.7(a)(5)). If the assessment is in- State and Local Fiscal Assistance Act � 1508.22 Notice of intent.
cluded, the finding need not repeat of 1972, 31 U.S.C. 1221 et seq., with no
any of the discussion In the assess- Federal agency control over the subse- "Notice of intent" means a notice
ment but may incorporate It by refer- quent use of such funds. Actions do that an environmental impact s@ate-
ence. not include bringing Judicial or admin- ment will be prepared and considered.
istrative civil or criminal enforcement The notice shall briefly:
9 1508.14 Human environment. actions. (a) Describe the proposed actior and
"Human environment" shall be in- (b) Federal actions tend to fall possible alternatives.
terpreted comprehensively to include within one of the following categories: (b) Describe the agency's proposed
the natural and Physical environment (1) Adoption of official policy, such scoping process including whether,
and the relationship of people with as rules, regulations. and interpreta- when. and where any scoping meeting
that environment. (See the definition tions adopted pursuant to the Admin- will be held.
of "effects" (11508.8).) This means istrative Procedure Act. 5 U.S.C. 551 et (c) State the name and address of a
that economic or social effects are not seq.; treaties and international conven- person within the agency who can
intended by themselves to require tions or agreements*. formal docu- answer
preparation of an environ men ts establishing an agency's policies questions about the proposed
mental action and the environmental ir,-ipact
impact statement. When an environ- which will result in or substantially statement.
mental impact statement is prepared alter agency Programs.
and economic or social and natural or (2) Adoption of formal plans. such as 0 INK.23 Pn*mal.
physical environmental effects are official documents prepared or ap-
interrelated. then the environmental proved by federal agencies which "Proposal" exists at that stoge in
impact statement will discuss all of guide or prescribe alternative uses of the development of an action wt,en in
these effects on the human environ- Federal resources, upon which future agency subject to the Act has It goal
ment. agency actions will be based. and is actively preparing to make a de-
(3) Adoption of programs, such as a cision on one or more alternative
� 1508.15 Jurisdiction by law. group of concerted actions to imple- means of accomplishing that 90LI and
ment a specific policy or plan: system. the effects can be meaningfully evalu-
"Jurisdiction by law" means agency atic and connected agency decisions al- ated. Preparation of an environmental
authority to approve. veto, or finance locating agency resources to imple- impact statement on a proposal:;hould
all or part of the proposal. ment a specific statutory program or be timed (11502.5) so that the final
9 1508.16 Lead agency. executive directive. statement may be completed in time
(4) Approval of specific projects, for the statement to be Included in
"Lead agency" means the agency or such as construction or management any recommendation or report on the
agencies preparing or having taken activities located in a defined geo- proposal. A proposal may exist in fact
primary responsibility for preparing graphic area. Projects include actions as well as by agency declaration that
the environmental impact statement. approved by permit or other regula- one exists.
1508.17 fAcislation. tory decision as well as federal and 11508.24 Referring agency.
federally assisted activities.
"Legislation" includes a bill or legis- "Referring agency" means the feder-
lative proposal to Congress developed 9 1508.19 Matter. al agency which has referred any
by or with the significant cooperation "Matter" includes for purposes of matter to the Council after a determi-
and support of a Federal agency, but Part 1504: nation that the matter is unsatisfac-
does not include requests for appro- (a) With respect to the Environmen- tory from the standpoint of public
priations. The test for significant co- tal Protection Agency. any proposed health or welfare or environmental
operation is whether the proposal is in legislation. project. action or regula- quality.
fact predominantly that of the agency
rather than another source. Drafting tion as those terms are used in section 6 1508.25 Scope.
does not by itself constitute significant 309(a) of the Clean Air Act (42 U.S.C. Scope consists of the range of ac-
cooperation. Proposals for legislation 7609). tions. alternatives. and impacts to be
include requests for ratification of (b) With respect to all other agen- considered in an environmental impact
treaties. Only the agency which has cies, any proposed major federal statement. The scope of an individual
primary responsibility for the subject action to which section 102(2)(C) of statement may depend on its relation-
matter involved will prepare a legisla- NEPA applies. ships to other statements (111502.20
tive environmental impact statement. and 1508.28). To determine the scoPe
� 1508.20 Mitigation. of environmental impact statements.
9 1508.18 Major Federal action. agencies shall consider 3 types of ac*
"Mitigation" includes: tions. 3 types of alternatives, and 3
"Major Federal action" includes ac- (a) Avoiding the impact altogether types of impacts. They include:
tions with effects that may be major by not taking a certain action or parts (a) Actions (other than unconnected
and which are potentially subject to of an action. single actions) which may be:
Federal control and responsibility.
Major reinforces but does not have a . (b) Minimizing impacts by limiting (1) Connected actions. which means
meaning independent of significantly the degree or magnitude of the action that they are closely related and
(11508.27). Actions include the cir- and its implementation. therefore should be discussed in the
cUmstance where the responsible offi- (C) Rectifying the impact by repair- same impact statement. Actions
cials fail to act and that failure to act ing, rehabilitating. or restoring the af- connected If they:
is reviewable by courts or administra- fected environment. (I) Automatically trigger other
tions which may require environmeo,
tive tribunals under the Administra- (d) Reducing or eliminating the tal impact statements.
tive Procedure Act or other applicable impact over time by preservation and
law as agency action. 0i) Cannot or will not proceed unless
(a) Actions include new and continu. maintenance operations during the other actions are taken previously Or
ing activities. including projects and life of the action. simultaneously.
programs entirely or partly financed, (e) Compensating for the impact by (III) Are interdependent pa,rts Of
amisted, conducted, regulated, or ap- replacing or providing substitute re- larger action and depend on the larger
vroved by tederai agencies-. new or re- sources or environments. action for their Justification.

CEQ NEPA REGULATIONS 65

(2) Cumulative actions, which wen
viewed with other proposed actions
have cumulatively significant impacts
and should therefore be discussed in
the same impact statement.
(3) Similar actions, which when
viewed with other reasonably forseea-
ble or proposed agency actions, have
similarities that provid a basis for
evaluating their environmental conse-
quencies togehter, such as common
timing or geography. An agency may
wish to analyze these actions in the
same impact statement. It should do
so when the best way to assess ade-
quately the combined impacts of simi-
lar actions or reasonable alternatives
to such actions is to treat them in a
single impact statement.
(b) Alternatives, which include: (1)
No action alternative.
(2) Other reasonable courses of ac-
tions.
(3) Mitigation measures (not in the
proposed action).
(c) Impacts, which may be: (1)
Direct: (2) indirect; (3) cumulative.

1508.26 Special expertise.

"Special expertise" means statutory
responsibility, agency mission, or re-
lated program experience.

1508.27 Significantly.

"Significantly" as used in NEPA re-
quires considerations of both context
and intensity:
(a) COntext. This means that the sig-
nificance of an action must be ana-
lyzed in several contexts such as socie-
ty as a whole (human. national), the
affected region, the affected interests,
and the locality. Significance varies
with the setting of the proposed
action. For instance, in the case of a
site-specific action, significance would
usually depend upon the effects in the
locale rathen than in the world as a
whole. both short- and long-term ef-
fects are relevant.
(b) Intensity. This refers to the se-
verity of impact. Responsible officials
must bear in mind that more than one
agency may make decisions about par-
tial aspects of a major action. The fol-
lowing should be considered in evalu-
ating intensidty:
(1) Impacts that may be both benefi-
cial and adverse. A significant effect
may exist even if the Federal agency
believes that on balance the effect will
be beneficial.
(2) The degree to which the pro0
posed action affects public health or
safety.
(3) Unique characteristics of the geo0
graphic area such as proximity to his-
toric or cultural resources, park lands,
prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical
areas.
(4) The degree to which the effects
on the quality of the human environ-
ment are likely to be highly controver-
sial.
(5) The degree to which the possible
effects on the human environment are
highly uncertain or involve unique or
unknown risks.

(6) The degree to which the action
may establish a precedent for future
actions with significant effects or rep-
resents a decision in principle about a
future consideration.
(7) Whether the action is related to
other actions with individually insig-
nificant but cumulatively significant
impacts. Significance exists if it is rea-
sonable to anticipate a cumulatively
significant impact on the environment.
Significance cannot be avoided by
terming an action temporary or by
breaking it down into small compo-
nent parts.
(8) The degree to which the action
may adversely affect districts, sites,
hgihtways, structures, or objects listed
in or eligible for listing in the National
Register of Historic Places or may
cause loss or destruction of significant
scientific, cultural, or historical re-
sources.
(9) The degree to which the action
may adversely affect an endangered or
threatened species or its habitat that
has been determined to be critical
under the Endangered Species Act of
1973.
(10) Whether the action threatens a
violation of Federal, State, or local law
or requirements imposed for the pro-
tection of the environment.

[43 FR 56003, Nov. 29, 1978; 44 FR 874. Jan.
3, 2979]

1508.28 Tiering.
"Tiering" refers to the coverage of
general matters in broader environ-
mental impact statements (such as na-
tional program or policy statements)
with subsequent narrower statements
or environmental analyses (such as re-
gional or basinwide program state-
ments or ultimately site-specific state-
ments) incorporating by reference the
general discussions and concentrating
soley on the issues specific to the
statement subsequently prepared.
Tiering is appropriate when the se-
quence of statements or analyses is:
(a) From a program, plan, or policy
environmental impact statement to a
program, plan, or policy statement or
analysis of lesser scope or to a site-spe-
cfic statement or analysis.
(b) From an environmental impact
statement on a specific action at an
early stage (such as need and site se-
lection) to a supplement (which is pre-
ferred) or a subsequent statement or
analysis at a later state (such as envi-
ronmental mitigation). Tiering in such
cases is appropriate when it helps the
lead agency to focus on the issues
which are ripe for decision and ex-
clude from consideration issues al-
ready decided or not yet ripe.

Index to Parts 1500 Through 1508

Act 1508.2
Action 1508.18, 1508.25
Action- orcing 1500.1. 1502.1
Adoption 1500.4 ( ). 1500 5(h).
Affected Environment 1502 10(1), 1592.15.
Aflecting 1502.3, 150 3
Agency Authority 1500 6
Agency capability 1501 2 ( ) 1507 2
agency Compliance 1507 1
Agency Procedures 1505 1 1507.3
Agency Responsibility 1506.5

Alternatives 1501 2(c). 1502.2
1502.10(e) 1502 14
1505 1(e) 1505 2
1507 2(d). 1508 25(b)
Appendices 1502.10(k). 1502.18
1502.24
Applicant 1501.2(d)(1). 1501.4(b)
1503.1(a)(3). 1502.19(b)
1506.1(d)
1506.5(b)
Apply NEPA Early in the 1501.2
PRocess
Categorical Exclusion 1500.4(p). 1500.5(k).
1501.4(a). 1507.3(b).
1506.4
Circulating of Environmental 1502.19. 1506.3
Impact Statement

Classified Information 1507.3(c)
Clean Air Act 1504.1 1508.19(a)
Combining Documents 1500.4(o). 1500.5(i) 1506.4
Commenting 1502.19. 1593.1, 1503.2,
1503.3 1503.4, 1506. (f).
Consultation Requirements 1500.4(k). 1500. (g).
1501 7(a)(6). 1502.25
Context 1506.27(a)
Cooperating Agency 1500.5(b), 1501.1(b)
1501.6 1503.1(a)(1),
1503.2, 1503.3., 1506.3(c),
1506.5(a), 1506.5,
Cost-Benefit 1502.23
Council on environmental 1500.3 1501.5(e), 1501.5(f),
1501. (c), 1502.9(c)(4)
1504.1 1504.2 1504.3
1506. (f), 1506.11,
1507.3, 150 150 .24
Cover Sheet 1502.10(a), 1502.11
Cumulative Impact 1506.7, 1508.25(a)
1508.25(c).
Decisionmaking 1505.1, 1506.1.
Decision points 1505.1(b)
Dependent 1506.25(a)
Draft Environmental Impact 1502.9(a)
Statement
Early Application of NEPA 1501.2
Economic Effects 150 .
Effective 1506.12
Effects 1502.16
Emergencies 1506.11
Endangered Species Act 1502.16,
Energy 1502.16(e)
Environmental Assessment 1501.3, 1501.4(b) 1501.4(c)
1501.7(b)(3), 1506.2(b)(4)
1506.5(b) 1506.4, 1506.9,
1508.10, 1058.13
Environmental Conse- 1502.10(g), 1502.16
quences.
Environmental Consultation 1500.4(k) 1500.5(g)
Requirements 1501.7(a)(6). 1502.25
1503.3(c)
Environmental Documents 1508.10
Environmental Impact State- 1500.4 1501.4(c) 1501.7
ment 1501.3 1502.1 1502.2
1502.3 1502.4 1502.5.
1502.6 1502.7 1502.8
1502.9 1502.10 1502.11
1502.12 1502.13 1502.14
1502.15 1502.16 1502.17
1502.18 1502.19 1502.20
1502.21 1502.22 1502.23
1502.24 1502.25
1506.2(b)(4) 1506.3
1506.8 1508.11
Environmental Protection 1502.11(f) 1504.1 1504.3
Agency 1506.7(c) 1506.9 1506.10
1508.19(a)
Environmental Review Re- 1500.4(k) 1500.5(g)
quirements 1501.7(a)(6) 1502.25
1503.3(c)
Expediter 1501.8(b)(2)
Federal Agency 1508.12
Filing 1506.9
Final Environmental Impact 1502.9(b) 1053.1 1503.4(b)
Statement
Finding of No Significant 1500.3 1500.4( ) 1500.5(1)
impact 1501.4(e) 1506.13
Fish and Wildlife Coordina- 1502.25
tion Act
Formal for Environmental 1502.10
Impact Statement
Freedom of Information Act 1506.6(f)
Further Guidance 1506.7
Generic 1502.4(c)(2)
General Services Administra- 1506.8(b)(5)
tion
Geographic 1502.4(c)(1)
Graphics 1502.8
Handbook 1506.7(a)
Housing and Community De- 1506.12, 1508.12
velopment Act
Human Environment 1502.3 1502.22 1508.14

66 NEPA DESKBOOK

N me 150 6, 1 W6.25(c). MorAtoring - .. I .. 1 1505 2(c). 1505 3 Scientific Accuracy 1502 24
I "far win 1505.3. National Historic Preselvabon 1502.25 Scope 1502 4(a), 15029(a).
VMS or Lkangasill W, 1502.22. Act 150825
lot bon. National Register of H.stor, 1508 271b)(8) SCOD-rig 1500 4(b). 1501 '(dy
wroorpolartion by Reference i5W,4W, 1502.21. Cal P%ces 1 1501 4(d). 1501 7@
kwen .. . . ........... 1502. IOW Natural or Depletable Re. 150216(t) ; 1502 918). 15,06 b(a)
am Tribes .............. ...... . 1501 21102). isoll(SHI). source Requirements Significantly 502 3. 1506 27
15M.15(c). 15W.I(SX2)(i). Need lot Action ... 1502 10(d), 1502 13 Similar 50825 is
ISMAOX3M. IWO.S. NEPA Process . ... - IW6 21 Small Busiriests Associations I5W6jb)(3)(vl)
ISM.12. Non@Fqdlersl Sponsor...... 1501.2(d). Social Effects ... .. 15080
bdomi Y f5w.27(b?. Notice of intent. ISOIJ, 1507 3119). 1508.22 Special Expemise . IS0826
WAsridaciplirwy, Preparation ISMS. 15M.17. OMB Circular A-95... 1503-114)(2)(m), I SOS 2. Specificity of Comments 15004(l) *15033
interim Actions .... ................. I"GA. 1506 6(b)(V-) State and Areswids Cleanng. 1504(e)(2). 150:1.1(s)(2M.).
jow" LOW Agar . ..................... igoi,5MI, 15M.2. W2 Monitor IWGfAb)(2). 1506.7(c) houses 1506 6(b)(3)(0
Judaclei Riflims ............. ... ISWZ Ongoing Activities - IW6.112, State and Loc t500 41n), ISM 5(h).
Amedcallon by Low .................. 1506,15. Page Limits 1500.411a), 15011-711b). iSO27, 1501 2(d)(2). ISO I S(b).
Lead Agency .... .............. ......... ISIX11-511c), 1501 1110. 1501 S. PIWV" I Sw Sia). 15011 2(b), 1501 Sid). 1501 7(a)(1).
1501.6. IWI.7. 1501.8. 1502 4;&). 1 SOS 1 8 1501 e(c), M2.16(c),
I W4.3. I SM.2(bX4). Pollicy. - ... .... ...... .. 1500.2. 1502 4(b). 1503 tla)12). t 506.21b).
15015.8118), 1506.10(0). 1508 194a) 1 SM.45(b)(3). IWOS,
1508.16. Program Environmental 1500,4() 5024. IW220, 1508 12. IW8 '11
LOVisiallim ............. 15W 50) ,1502.3, ISMA. impact Statement 1508,1,8. State and Local Fiscal AS. 1508 Is(&)
1 .17. 15M. 1 b(a). Program ... ...... ..... I W2.4, I WS. I 8(b) sistonce Act.
Prole"s ISMAG. Summary 1500 4(h). 1502 10(b).
Limitation on Action Du 1506.1. Proporml .......... ... 1502.4. 1502.5. 1506 fi. 1502 12
NEPA Proceft.
Lim Of Proomwa 1502.10(h). 1502.17. 1506.23, Suppliaments to Envworwnen' 1502 9(c)
Local or Stale 1500 4(n). 1500 5(h). Proposed Action I W2 I Ole). 150214. tal impact Statemamis
1501 2(d)(2). 1501 5jo. ISM.2it). Tatife of Contents... . - . , I . 11 502 10(c)
P Health 6-4 Wellare 15041 Technological Development 502 41(c)(3).
ISO I Sid). 1501 7(a)(i).
tSOI 81C). 1502 t6(c). Pubbe Involirement .......... 1501,4(o). 1503, 1 (a)(3). Terminology .... .... ... 15081
1503 1 (a)(2). 1506 2(b). I WG 6. Toning 1500,110). 1502A(d). 150220.
15M 6lb)(3). 1508 5. Purpose, 15001, ISOI I . 1502.1. ISM.28
15041. Tom Limits 15MS(S). 150 1. 1 (a),
MatOr Federal Action 1508 12. 1508 18 Purpose of Act- VW2.10(d). IS02.13 1501 7(b)(2). 15018
IS023. 1508 18 Record ol Decision 1505 2@ 1506 1 . ...... .. 1502 4. 1 W2 5. 1506 10
Mandate ISM 3 Referrals 1504 1, 15042. 15043. T(eatiliss- . .... .. .... 150817
Matter 1504 1. 9 1504 2. 15043. 1506 3(d) When to Prepare an Environ- IS013.
7508 Referring Agency
504 1. 1504 2. 1504 3
150224 Response to Comments 15034 Wild and
Methodology 's, =
Mitigation 502 14(h). 1502 16(h). Rural Electrification Adminis 1506 1 (d) Wilderrosal Act 506.13(b)j.)
1503 3(d). 1505 2(c). nation Writing ... .... ..... ... 502
1505 3. 1508,20

28*
Environmental Review
ProceduresNOAA Administrative
Order 216-6

0#01 0-
UNITEO STATES OEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Office of the Chief Scientist
"'14T111 40 00 Wasn.ngr on. 0 r- 20230
November 4, 1991

OCRM REC'D 11/6/91

CC: COXE/LAWLESS/UPAVITCH
0ZTURGUT

mEmRANDUM FOR: Distribution BURGESS
LLIN
David Cotting am
FROM: h
Director, Ecology and Conservation Office

SUBJECT: Revised NOAA Environmental Review Procedures
NAO 216-6 -

Attached is the revised NOAA environmental review procedures.
NOAA recently reorganized its entire administrative order series.
Accordingly, what had been NDK-02-10 has now become NOAA 216-6.
Substantively, they are the same. In Section 2 Background, you
will notice this revision includes "notable changes" and
"procedural improvements." All of this was in the 1984 version,
so don't worry. We added the Purpose and changed the name of
this office. We will publish this revision in the Federal
Register in the near future.

Please call me if you have any questions or need additional
copies.

Attachment

Distribution:
GC - T. Campbell. F/SER - A. Kemmerer
GCF- M. Hayes F/NWR - R. Schmitten
GCOS- M. Jackson F/SWR - C. Fullerton
GCAK - L. Lindeman F/AKR - S. Pennoyer
GCNE - J. MacDonald F/PR - N. Foster
GCNW - E. Cooney F/CM - R. Schaefer
GCSE - J. Petrick, Jr. F/CM2 - J. Clem
GCSW - M. Hochman N/ORM - T. Coxe
F/NER R. Roo - CMDR W. Harrigan

JAN

mOAA FORM 56-S TRANSMMrAL 84

NatIOV161 OceanIC and HOAA
Abrsoevlmlc Adminiftafte Administratt" Order_ 2 16 - 6
NOAA DATE OF ISSUANCE EFFECTNE DATE
ADMINISTRATIVE
ORDER SERIES August 6, 1991 June 21, 1991
SUSJECT

ENVIRONMENTAL REVIEW PROCEDURES

SECTION 1. PURPOSE.

This Order revises the National Oceanic and Atmospheric
Administration.(NOAA) environmental review policies and
procedures. (See 45 fH 49312, dated July 24, 1980.) The
revisions will improve efficiency, reduce administrative
redundanciest continue the agency objectives of sound resource
management, and maintain informed public involvement in'Federal
decision-making. This Order incorporates all requirements of the
National Environmental Policy Act (NEPA) regulations issued by
the Council on Environmental Quality (CEQ) (See 43 ER 55978,
dated November 24l 1978), and by the Department of Commerce (DOC)
in its NEPA directive, Department Administrative order (DAO)
216-6, Implementing the National Environmental Policy Act, dated
March 11, 1983. This order also.reiterates provisions in the'
previous version of NOAA Directives Manual (NDM) 02-10,
Environmental Review Procedures, dated July 23, 1984, with
respect to the environment outside the United States pursuant to
Executive Order No. 12114 on Environmental Effects Abroad of
Major Federal Actions (See 44 fa 1957, dated January 4, 1979), as
implemented by the DOC in DAO 216-12, Environmental Effects
Abroad of Major Federal Actions, dated March 11, 1983.

SECTION 2. BACKGROUND,

.01 Proposed changes are administrative and procedural
improvements intended to add efficiency to NOAA's KEPA compliance
efforts. These improvements stem from a better understanding of
agency roles and responsibilities under NEPA. Shifts in agency
direction, including now programs, also prompted this review.

.02 Notable changes in this revision include:

a. a detailed list of definitionst explanations, and acronyms
with special emphasis on the use of categorical exclusions;
b. a description of the general environmental analysis process;
c. separate discussions on KEPA procedures for each category of
NOAA activity; (6-9-t management plans, amendments, projects,
regulations, emergency regulations, ate.)
d. discussions of procedural requirements for environmental
assessments and environmental impact statements; and
e. special guidance for determining "significancet" including
Icriteria applicable to fishery management plan actions.

NAD 216-6 2 2.03
.03 The appendices, which were included in earlier versions of
NDM 02-10, have been deleted to avoid confusion resulting from
changes in agency programd and procedures.

SECTION 3.---REFERENCES.
.01 National Environmental Policy Act (NEPA) of 1969, 42 U.S.C.
4321 et sect.

.02 CEQ Regulations for Implementing the Procedural Provisions
of the National Environmental Policy Act, 40 CFR Parts 1500 to
1508, dated November 24, 1978, cited herein by CFR Part'number
only, e.g., CEQ sec. 1500.

.03 Executive Order (EO) No. 12114, Environmental Effects Abroad
of Major Federal Actions, 44 a 1957, dated January 4, 1979.
.04 Executive Order (EO) No. 12291, Federal Regulation, 46 FR
13193, dated February 17, 1981.

.05 NOAA Administrator's Letter No. 17, Environmental Impact
Statements, dated April 3, 1978.

06 Department Administrative Order (DAO) 216-6, Implementing
@he National Environmental Policy Act, dated March 11, 1983.

.07 Department Administrative Order (DAO) 216-12, Environmental
Effects Abroad of Major Federal Actions, dated March 11, 1983.
SECUON 4. DEFINITIONS.

01 Most of the terminology listed in sec. 4. and S. of this
Order are derived from regulations and directives listed in sec.
3. of this Order, particularly the CEQ KEPA regulations. (See
sec. 3.02 of this Order.) The CEQ regulations should be
consulted for more comprehensive explanations. Cross references
to relevant CEQ sections are provided after each definition,
where appropriate.

a. Amendment. A change to either a project or management plan.
Each amendment should be accompanied by a brief statement or
supported by a notation in the files that a categorical exclusion
applies or by further environmental analysis by either an
Environmental Assessment (EA) . Environmental Impact Statement
(EIS), or Supplemental Environmental Impact Statement (SEIS).
b. ARRlicant. Any party who may propose to NOAA an action that
should be accompanied by an environmental analysis. Depending on
the program, the applicant could be an individual,, private
organization, Statep territoryl governmental body* or foreign
nation. (See sec. 6.01b.4. of this order.)
c. categorical Exclusion (CEI Decisions granted to certain
types of actions which individually or cumulatively, do not have
the potential to pose significant threats to the human,
environment and are therefore exempted from both further analysis
and requirements to prepare environmental documents (CEQ sec.

4. 0 Ic 3 NAO 216-6
1508.4). The main text of this diriective presents specific
actions and general categories of other actions found to warrant
a CE. The responsible program manager prepares a memorandum or
notation for the file of each decision to use a CE. (See sec.
4.00p. of this Order.) A notation refers to a brief comment or
mark in the NEPA records of a NOAA office. Periodic copies of
such records and notations must be sent to the Ecology and
Conservation Office, Office of the Chief Scientist (EC). If a
memorandum is prepared, a copy must be sent to EC, in the absence
of a memorandum, the RPM must notify the EC regarding the
action. The RPM and EC can require an EA or EIS for an action
normally covered by a CE if the proposed action could result in
any significant impacts as described in sec. 4.00q., sec. 6.10,
and sec. 6.11 of this Order. When appropriate, the RPM should
consult with States while planning actions that may be worthy of
a CE and notify such States of actions which receive a 'CE, as
described in sec. 6.02b.3. and sec. 6.02c.3. of this Order.

d. controversial, Refers to a substantial dispute which may
concern the nature, size, or environmental effects, but not the
propriety of a proposed action. (See NOAA General Counsel
opinion No. 101, dated March 8, 1983.)

e. EC. This'office is responsible for ensuring NEPA compliance
for NOAA under this Order and for DOC under DAO 216-6 and DAO
216-12. EC must give final clearance authority to all NEPA
documents prior to public availability by signing the appropriate
transmittal letters. 'EC also provides general guidance on
preparation of environmental documents, approves criteria to
determine the appropriate document to be prepared, works with
Line offices to establish categorical exclusions, establishes
and/or approves criteria to define "significant," is available
for consultations as requested, coordinates NOAA comments on EISs
prepared by other Federal agencies, makes predecision referrals
to CEQ, and monitors Doc activities for NEPA compliance.

f. Environmental AnalYsis Process, The systematic analysis and
evaluation applied to all proposed NOAA actions not covered by a
categorical exclusion. This analysis could result in the
preparation of one or more of the environmental documents listed
in sec. 4.00h. of this order.

g. Environmental Assessment (EA1. A document prepared by a
Federal agency which presents a brief analysis of the
environmental impacts of the proposed action and its
alternatives, including sufficient evidence to determine that
either:
1. an environmental impact statement is required; or
2. a finding of no significant impact should be declared (CEQ
sec. 1508-9).
h. Environmental Document, An environmental assessment# finding
of no signif icant impact, draft environmental impact statementr
supplement to a draft environmental impact statement, final

NAO 216-6 4 4. 0 1h
environmental impact statement, supplement to a final
environmental impact statement, or a record of decision
(CEO sec. 1508.10).
i. Environmental Imnact Statement (EIS). A detailed written.
report which describes a proposed action, the need for the
action, alternatives considered, the affected environment, the
environmental consequences of the proposed action, and other
reasonable alternatives. An EIS is prepared in two 'stages, a
draft and a final; either stage may be supplemented (CEO sec.
1508.11).

j. Finding of No Siernif icant Impact (FONSI) . A document which
declares that an action will not significantly affect the human
environment. A FONSI is supported by an environmental assessment
(CEO sec. 1508.13).

k. Maior Federal Action. An activity, such as a project or
program, which may be fully or partially funded, regulated,
conducted, or approved by NOAA. "Major" reinforces but does not
have a meaning independent of "Significant" as defined in sea.
4.00q. and sec. 6.10c. of this order. Such major actions require
preparation of an environmental document unless covered by a
categorical exclusion (CEO sec. 1508.18). CEO's definition of
"scope" (CEO sec. 1508.25) should be used-to assist
determinations of the type of document needed for NEPA
compliance.

1. Managemen& Plan, A program or policy statement that
describes a resource, the need for management, alternative
management strategies, possible consequences of such
alternatives, and selects recommended management measures.
Included, for example, are fishery, sanctuary, and State coastal
management plans. Such plans may incorporate an environmental
document into a single consolidated package..

m. Notice of Intent, A short Federal Register announcement of
agency plans to prepare an environmental impact statement or to
hold a scoping meeting. The notice may be published separately
or combined with other announcements (CEQ sec. 1508.22).

n. Project. A grant, loanj loan guarantee, land acquisition,
construction, license, permit, modific&tion, regulationj or
research program for which NOAA is involved in the review,
approval, implementationj or other administrative action. -

o. Record of Decision (ROD). A concise statement for the public
record of the decision on the proposed-action,-the alternatives
considered, the environmentally preferable alternative(s), and
whether all practicable means to avoid or minimize environmental
harm have been adopted (CEQ s0c- 150S.2). (See see. 6.08c. of
this order.)
p- Responsible Pr2gram ManaOVX (RPM), The person with primary
responsibility to determine the need for and ensure preparation
of any environmental document. The RPM could be the director of

4.01p. 5 NAD 216-6
a MOAA office, the NEPA compliance coordinator of a Line Office
(LO), or a program director in an LO. The RPM shall be
designated by the Assistant Administrator responsible for the
proposed action.
q. significant. A measure of the intensity and the context of
effects of a major Federal action on, or the importance of that
action to, the human environment (CEQ sec. 1508.14).
"Significant" is a function of the short-term, long-term, and
cumulative impacts of the action on that environment.
significance is determined according to the general guidance in
sec. 6.10 of this Order unless specific criteria (e.g., sec. 6.11
of this order) are developed by a RPM. Determinations of
non-significance will be made by the RPM but reviewed by EC prior
to clearance. All specific criteria for "significant" must be
approved by EC and published in the Federal Register as
amendments to subpara. 13c of NDM 02-10 (CEO sec. 1508.27).

r. Supplemental Environmental Impact Statement (SEIS). An
environmental document prepared to amend an earlier EIS when
significant change is proposed beyond the scope of analysis in
the original EIS or when significant new circumstances or
information arise which could affect the proposed action (CEO
sec. 1502.9). SEISS may be necessary when significant changes
are proposed to an action after a final EIS has been released td
the public.

SECTION 5. ACRONYMS,

The following acronyms are used in this order:

APA - Administrative Procedure Act
CE - categorical Exclusion
CEQ - Council on Environmental Quality
CFR - code of Federal Regulations
czmA - coastal Zone Management Act
DAO - Department Administrative order
DOC - U.S. Department of Commerce
DSM - Deep Seabed Mining
KA - Environmental Assessment
EC - Ecology and Conservation Office, Office Of
the Chief Scientist
EIS - Environmental Impact Statement
EO - Executive order
EPA - U.S. Environmental Protection Agency
ESA - Endangered Species Act
FMP - Fishery Management Plan
FONSI - Finding of No Significant Impact
FR - Federal Register
FwCA - Fish and Wildlife Coordination Act
LO - NOAA Line Office (National Mari-no Fisheries service;
National ocean Service; National Weather service; .
National Environmental Satellite, Data and Information
Service; office of oceanic and Atmospheric Research)
mFcmA - Magnuson Fishery Conservation and Management Act
(Magnuson Act)
MMPA - Marine Mammal Protection Act

NAO 216-6 6 5-
MPRSA - marine Protection, Research, and Sanctuaries Act
NDM - NOAA Directives Manual
NEPA - National Environmental Policy Act
NOAA - National Oceanic and Atmospheric Administration
OCRK - office of ocean and Coastal Resource Management,
National Ocean Service, NOAA
OGC - office of General Counsel, NOAA
OTEC - ocean Thermal Energy conversion
ROD - Record of Decision
RPM - Responsible Program Manager
SEIS - Supplemental Environmental Impact Statement

SECTION 6. POLICY/RESPONSIBILITIES/PROCEDURES-.-

.01 Applying the Environmental Analysis Process;
a. General. Environmental analysis is the process undertaken by
the responsible program manager (RPM) to identify the scope of
issues related to the proposed action and to determine the
necessary steps for NEPA compliance (CEQ sec. 1500.2). Such an
analysis should be undertaken for any major Federal action
proposed to be implemented in the United States or by United
States citizens outside U.S. jurisdiction.

b. The Process,

1. The environmental analysis process includes all of the
actions required by CEQ parts 1502 and 1503 to comply with NEPA.
(See Exhibit 1 to this Order.) T he series of actions are:

(a) defining the proposed action;

(b) comparing the action and potential environmental
consequences to this directive for guidance on the proper type of
NEPA document;

(d) preparing a finding of no significant impactor FONSI (which
ends the NEpA compliance process for nonsignificant actions) or
initiating planning for an environmental impact statement (EIS)
based on the EA;

(e) publishing a notice of intent to prepare an EIS and a notice,
of intent to scope key issues in the EIS;

(f) preparing the draft EIS;
(g) distributing the draft EIS.for public comment;
(h). holding a public hearing(s) on the proposed EIS;
(i) incorporating public comments and responses into a final
EIS;
(J) publishing and distributing the final EIS for public
comment; and

6.01b.1.(k) 7 NAO 216-6
(k) releasing a record of decision summarizing the proposed
action.

2. This analysis is to be coordinated by the RPM and initiated
as early as possible in the planning process, regardless of
whether the RPM anticipates the need for an EA or EIS. In the
case of uncertainty regarding preparation of the proper
environmental documents, early consultation with EC will assist
the RPM in determining the best means for NEPA compliance.
Consultation with EC during the early stages of document
preparation should ease review and clearance at later stages of
the decision-making process.

3. NEPA compliance may involve preparation of one or more
environmental documents. The RPM should consult sec. 6.01b.7.,
sec. 6.0lb.8., and sec. 6.Olb.9. of this Order regarding scoping
and document distribution.

4. In those cases where actions are planned by Federal or
non-Federal agency applicants defined in sec. 4.00b. of this
order prior to NOAA involvement, the NEPA coordinator for the
appropriate program will, upon request, supply potential
applicants with guidance on the scope, timing,*and content of any
required environmental analysis. Possible programs and actions,.
plus the NOAA contact for further NEPA guidance, are listed in
Exhibit 2 to this order.

5. RPMs should consult this directive when their involvement in
an action proposed by State or local agencies or Indian tr 'ibes is
reasonably foreseeable and could be a major Federal action.

6. RPMs should also consult with EC and this directive before
communicating with other Federal agencies regarding whether and
to what extent NOAA Will become involved in developing proposals
for such agenciese or in the preparation of environmental
analyses or documents initiated by such agencies.
7. When a proposed action involves several organizational units
in NOAA, the RPMS should determine which manager should take the
lead role in environmental analyses and the responsibility for
preparation of any environmental document.
8. Where disagreements arise regarding NOAA's NEPA procedures
for any action, EC will make the final decision. A complete
statement of EC authorities and functions are presented in sec.
4.00e. of this order.'. All of those EC roles may be used to
support NOAA's environmental analysese
c. Terminatina the Erocess. NOAA may stop the environmental
analysis process at any stage if program goals shift, support for
a proposed action diminishes@fl the original analysis becomes
outdated, or other special circumstances prevail. if a draft EIS
has already been filed with EPA, the RPN must notify the
Director, EC of any contemplated termination of the environmental
analysis prior to completion of the final EIS. If the EIS will
environmental analysis process is terminated, the final
not be prepared. After RPM approval and EC notification* the

NAO 216-6 8 6.01c
termination must be announced in the Federal Register. Such
terminations must be explained in writing by the RPM through EC
to EPA so that EPA may withdraw the draft EIS and close its
file on the action. In addition, for supplemental documents
only, EC must notify CEQ if the process stops after issuance of a
draft supplemental EIS but before issuance of the final.
.02 Type of Environmental Documents Needed to Satisfy NEPA.
The*procedures for complying.with domestic laws, regulations,
executive orders, and administrative orders differ depending on
whether the proposed action is a management plan, an amendment to.
a plan, a research project or regulation, or an emergency
regulation. See sec. 6.03 of this Order for guidance on NEPA
compliance for international treaties, commissions, and compacts.

a. Manactement Plans. Management plans require either an EA or
EIS; a CE does not apply to management plans unless an EA or EIS
has already been prepared on the proposed action.

1. Reggires an EA but not necessarily an EIS. All management
plans require an EA unless the RPM decides to proceed directly
with an EIS. Plans that are significant based on sec. 4.00q. of
this Order, general criteria in sec. 6.10 of this Order, and any
specific criteria in sec. 6.11 of this order will require an EIS.

2. Recruires an EIS. RPMs who determine that a proposed major
action is significant may choose between options specified in
sec. 6.02a.2.(a) and sec. 6.02a.2.(b) of this Order.

(a) Separate EIS and Management Elan. With this approach, the
zIS is prepared as a separate document and is not incorporated
into the related management plan. Cross references between the
EIS and management.plan are encouraged to minimize redundancies
between texts. The EIS must comply fully with the CEQ NEPA
regulations, including requirements for contents and
administrative procedures. The plan and EIS may be printed
under the same cover.

(b) Consolidated Eis and management Plan, EIS contents may be
combined with the contents of related management plans to yield a
single "consolidated" document. These documents must still
satisfy the CEQ regulations and all requirements for plan and EIS
contents and administrative procedures but need not be prepared
according to the CEQ recommended outline for EISs. The
consolidated document must contain a detailed table of
contents identifying required- sections of the EIS. EC must clear
the NEPA aspects of each consolidated document since the document
serves as an EIS as wall as a management plan. similarly,, all
consolidated documents must be filed at EPA and follow the normal
administrative procedureS for any Eis,, including public review.
3. Catea rigal Exclusion, No management plan may receive a
categorical OXClusiont i-e-P all plans must be accompanied by an
EA or EIS. Howevere regulations to implement a plan,"whare such
regulations are addressed in the plan and related NEPA documents,
are categoricallY excluded from further NEPA documentation. (See

6.02.a.3. 9 NAO 216-6
sec. 6.02c.3.(f).) Management plans that address an action
covered by a previou.4 EIS or EA and that do not expand the
original proposal can receive a CE if the alternatives and their
impacts have not changed.

4. other NEPA Approaches.

(a) Cooperative Document Preparation,
(i) NOAA programs should cooperate with State and local agencies
to the fullest extent possible to reduce duplication in
document preparation. Such cooperation will include, where
possible, joint planning, joint environmental research, joint
public hearings, and joint environmental documents (CEQ sec.
1506. 2 (b) ) . NOAA should work with the appropriate state or local
agencies as joint lead agency in fulfilling the intent of NEPA.

(ii) Like documents prepared solely by a NOAA office, jointly
prepared documents must discuss any inconsistencies of a proposed
action with any approved State or local plan or law (CEO sec.
1506.2(d)).

(b) Adoption of Other Federal Documents,

(i) NOAA programs may adopt an EA, draft EIS, or final EIS or
portion thereof prepared by another Federal agency if the
language satisfies the standards of the CEO regulations and this
Order.

(ii) When adopting an entire EIS without change, the RPM should
recirculate the document as a final EIS. However, if the
actions covered by the document are changed in a potentially
significant mannerl the document should be circulated as a draft
and final (CEO sec. 1506.3).
(iii) NOAA programs cannot adopt f inal decisions presented in
documents prepared by other agencies. RPM9 should prepare a
new FONSI if adopting an EA, a new ROD, or an EIS.
b. Amendments to MaWWement Plans-and Regulatory Revisions@ An
F-A or supplemental EIS may be necessary when an amendment is
proposed or when additional relevant information affecting the
analysis becomes available. All amendments, except those
receiving a CE, require an EA or EIS. Revisions of regulations
may require an EA or EIS if such revisions are not addressed in a
management plan amendt iment or related NEPA document. If the RPM
has doubt concerning significance# an EA will be used to
determine whether a FONSI* sEIS. or an EIS is appropriate.
criteria included in sec, 6.10 and sec. 6.11 of this Order may
aid in determining the significance of amendments* EC is
available for consultation an these determinations.
1. Reauires an rA but Not NegessarilY an ETS.
(a) Amendments determined not to merit a CE require an FA unless
the RPM decides to proceed directly with an EIS. If the EA
reveals that no new significant impacts will result from the

NAD 216-6 10 6.02b.l.(a)
amendment, the RPM may prepare a FONSIj integrate it with the EA,
and follow the procedures set forth in sec. 6.05 of this Order.
If the EA reveals significant impacts that may or will differ in
context or intensity from those described in the previously
p*ublished EA or EIS on the action being amended, preparation of a
SEIS or new EIS will be required.

(b) Examples of actions requiring at least an EA are amendments
to coastal management and fishery management plans where such
amendments could result in impacts which differ significantly in
content or intensity from those described in a previously
published F-A or EIS.

(c) when circumstances change or information becomes available
bearing on the impacts of an action addressed in a previously
published EA or final EIS, the circumstances or information will
be reviewed by the RPM to determine whether a new EA, EIS, or
supplemental EIS should be prepared, even if no amendment to a
plan is contemplated.

2. Requires a New EIS or Supplemental EIS (SEIS) . Amendments
which do not result in a FONSI, as determined on a case-by-case
basis according to sec. 6.02b.l. of this Order or that may be
reasonably expected to result in new and significant impacts,
require preparation of either a new EIS or SEIS based on the
extent of new impacts. The guidelines for determining the need
for a new EIS or SEIS are the same as for an initial EIS. (See
sec. 4.00q., sec. 6.10, and sec. 6.11 of this Order.) Direct,
indirect, and cumulative effects of related actions (CEO sec.
1508.8) must be considered.

3. Categorical Exclusion.

(a) Amendments falling within the range or scope of alternatives
addressed in a previous EA or EIS do not require preparation of
an additional environmental document if the initial analysis is
determined by the RPM to be valid and complete. similarly,
amendments falling within one of the general categories described
in sec. 6.02b. 3. (b) of this order may also receive a CE. If a CE
is determined to be appropriate, a memorandum or notation must be
prepared for the files with a copy to EC. (see sec. 4.00c. of
this Order.)
(b) Examples of CEs for amendments include, but are not limited
to, the following:
(i) Routine administrative actions, ongoing or recurring
actions with limited potential for effect on the human
environment, such as:
(aa) reallocations of yield within the scope of a previously
published FMP or fishery regulation, and
(bb) combining management units in related FMP-

6. 0 2b. 3. (b) (ii) UkO 216-6

(i i) Actions of limited size or macinitude-. Actions which do not
result in a significant change in the original environmental
action such as:

(aa) minor technical additions, corrections, or changes to a
management plan or regulation, and
(bb) extension of the period of effectiveness of a management
plan or regulation.

(iii) other actions within the-scope of Section 6.02b.3.(a) of
this Order.

4. Other NEPA Approaches, LOfs may cooperate with state or
local agencies on a joint environmental document, (See sec.
6.02a.4.(a) of this Order.) or adopt a document prepared by
Another Federal agency. (See sec. 6.02a.4.(b) of this order.)

c. Proiects and Other Actions, NOAA: is involved in some actions
generally categorized as projects, including: funding and budget
decisions, preproposal actions, regulations, research programs,,
and actions on permits and licenses. Requirements for
environmental analysis for these and similar activities are
described below.

1. Beguires an Z& but not necessarily an EIS,,

(a) Projects that may have significant impacts are subject to an
EA unless the RPM determines that an EIS will be prepared.
If an EA is prepared, it will determine if significant impacts
may occur. The general criteria in sec. 6.10 of this Order may
aid RPM decisions on significance.

(b) The decision of whether to prepare an EIS hinges on the
specific proposed action, the guidance in sec. 6.10 and see. 6.11
of this Order and CEO sec. 1501.4.

(c) The followinq types of actions fall within this category.
(i) Financial assistance awards for land acquisition or
construction, such as those administered under the Coastal Energy
Impact Program (CEIP), where such actions may result in
significant impacts.
(ii) Promulgation of regulations, policies, or criteria for
entire programsj, Joe., not single actions addressed in sec.
6. 02c. 3. (f ) of this Oz;der but program-wido actions or procedures
with a potential effect on the human environment. Includes,, but
is not limited to, regulations for hational marine and estuarine
sanctuaries, fishery manaqementp deep seabed miningo ocean
thermal energy conversiont and coastal management.
(iii) Acquisitiont construction, or modification of now
facilities budgeted by NOAA or major relocations of NOAA
personnel undertaken for programmatic reasons.

6. 0 2c. 1 (c) Uv) 12 NAD 216-6
(iv) Other actions, including research, that may have
significant environmental,impacts. (See DAO 216-6.)
(v) Proposals for legisl ation, as defined in CEQ sec. 1508.17.
2. Requires an EIS. An EIS is required for major Federal
projects or actions determined by the RPM to be significant.
(See sec. 4.00q., sec. 6.10, and 6.11 of this order.) The RPM
may proceed directly to an EIS without preparing an EA. These
projects or actions include the following:

(a) Major new projects or programmatic actions that.may
significantly affect the environment.

(b) Actions required by-law to be subject to an EIS, such as an
application for any license for ownership, construction, and
operation of an Ocean Thermal Energy Conversion facility or for a
Deep Seabed Mining license or permit.

(i) Research is to be conducted in the natural environment on a
scale at which substantial air masses are manipulated (e.g.,
extensive cloud-seeding experiments), substantial amounts of
mineral resources are disturbed (e.g., experiments to improve
ocean sand mining technology), substantial volumes of water are
moved'(e.g., artificial upwelling studies), or substantial
amounts of wildlife habitats are disturbed.

(ii) Either the conduct or the reasonably foreseeable
consequences of a research activity would have a significant
impact on the quality of the human environment. (See DAO 216-6.)

Research that is intended to form a major basis for
development of future projects (e.g., Project Stormfury cloud-
seeding) which would be considered major actions significantly
affecting the environment under this Order. (See DAO 216-6.)
(iv) Research that involves the use of highly toxic agents,
pathogens, or non-native species in open systems.
(d) Federal plans, studies, or reports prepared by NOAA that
could determine the nature of future major actions to be
undertaken by NOAA or other Federal agencies that would.
significantly affect the quality of the human environment.
(e) Proposals for legislation, as defined in CEO sec.
1508. 17, which require the preparation of a legislative EIS in
accordance with CEQ or DAO 216-6.
3. categorical Exclusions, The following categories of projects
or other actions do not normally have the potential for a
significant effect on the human environment and are therefore
exempt from the preparation of either an EA or an EIS. (See sec-
4.00c. of this order.) When several similar actions, each worthy

NAO 216-6 13 6.02c. 3.
of a CE, are anticipa.ted, a generic memorandum to the file may be
submitted instead of a separate memorandum for each action.
(a) Research*- Programs or projects of limited size and
magnitude or with only short-term effects on the environment.
Examples include natural resource inventories and environmental
monitoring programs conducted with a variety of gear (satellite
sensors, fish nets, etc.) in water, air, or land environs. Such
projects may be conducted in a wide geographic area without need
for an environmental document provided related environmental
consequences are limited or short-term.
(b) Financial and Planning Grants. Financial support services,
such as a Saltonstall-Kennedy grant, fishery loan or grant
disbursement under the Fishermen's Contingency Fund or Fishing
Vessel and Gear compensation Fund, or a grant under the Coastal
Zone Management Act where no environmental consequences are
anticipated beyond those already analyzed in establishing such
programs, laws, or regulations. If no initial analysis was
prepared, this section would not require preparation of a
retroactive environmental document. New financial support
services and programs should undergo an environmental analysis at
the time of conception to determine if a CE could apply to
subsequent actions.

(c) Minor Planning Activities, Projects where the proposal is
for-an impact amelioration action such as planting dune grass or
for minor project changes, restoration or rehabilitation
projects, or improvements such as adding picnic facilities to a
coastal recreation area unless such projects in conjunction with
other related actions may result in a cumulative impact (CEQ sec.
1508.7).

(d) Pre-Rroposal Actions, Actions before a proposal exists do
not require any NEPA analysis. A "proposal" exists at that stage
in the development of an action when an agency subject to NEPA
has a goal and begins its decision-making process, including
consideration of environmental impacts, toward realization of
that goal (CEQ sec. 1508.23).
(e) pr2grammatic Functions, The following NOAA programmatic
functions with no potential for significant environmental impacts
are generally exempt from the environmental documentation
requirements of NEPA: routine' experimental procedures; program
plans and budgets; mapping, charting, and surveying services,
ship support; fisheries financial support services; basic
research or research grants except as' provided in sec. 6.02c.3.
of this Order; enforcement operations, basic environmental
servicest such as weather observations# co=unicationst analysest
and predictions; environmental satellite services; environmental
data and information services; air quality observations and
analysis; support of international global atmospheric and Great
Lakes research programs; executive direction; administrative
services; and administrative support of the National Advisory
Committee on oceans and Atmosphere and other advisory bodi6s-

6.02c.3.(f) 14 NAO 216-6
(f) Regulations Implementing Proiects or Plans. When an E.A or
EIS has been or will be prepared for sPe@c_ific projects or plans
serving as the basis for the following activities, implementation
of regulations within the scope of the plan and related NEPA
documents will receive a categorical exclusion. Examples
include: coastal zone management programs;'national estuarine or
marine sanctuaries; fishery management plans; and regulations and
waivers issued under sec. 101 (a) (2) , and 101 (a) (3) Of the MMPA.
(g) Permits. Permits for scientific research and public
display under the ESA and MMPA and grants under the MMPA.
(h) Listing actions under sec. 4(a) of the ESA. Listing,
delisting, and reclassifying species and designating critical
habitat.

(i) other categories of actions which would not have significant
environmentdl impacts, including routine operations, routine
maintenance, actions with short-term effects, or actions of
limited size or magnitude.

d. Emergency Actions.

1. Emergency actions are promulgated:

(a) to implement management plans or amendments to plans;

(b) to establish or implement projects, e.g., coastal energy
impact programs; or

These emergency actions are subject to the same NEPA requirements
as nonemergency plans, projects, and actions. Emergency actions
are subject to the environmental analysis process outlined in
sec. 6.01 of this Order, to the requirements and guidance of sec.
6.02 of this Order concerning the type of environmental documents
needed to satisfy NEPA, and to the requirements for public
involvement and scoping set forth in sec. 6.04 of this Order.
Despite the emergency nature of a proposed action, RPMS must
maintain contact with state government agencies to ensure that
all State concerns are addressed within the time constraints of
the emergency action. if time constraints limit compliance with
any aspect of the environmental analysis process, the RPM Should
contact EC to determine alternative approaches, as discussed in
sec. 6.02d.3. of this Order.

2. The RPM should determine whether an EA or an EIS will be
prepared for emergency actions. The emergency action may be
categorically excluded if the RPM determines that it satisfies
the threshold criteria for ocontroversialow "major," and
"significant" that apply to "non-remergency" actions. (See sec.
4.00d., sec. 4.00k., and 4.00q. of this Order.) In the event of
uncertainty regarding the necessary environmental document for an

NAO 216-6 15 6-02d. 2
emergency action or whether a CE is appropriate, the RPM should
consult with EC as early as possible regarding the appropriate
course of action.

3. Those emergency actions which are determined by the RPM to
receive a CE or require an EA leading to a FONSI will not be
delayed by any time constraints or requirements established by
NEPA or this directive. If the RPM determines that the emergency
action requires preparation of an EIS, the RPM should determine
whether the requirements associated with EIS preparation, filing,
and public review would delay implementation of the emergency
action and endanger achievement of the objectives of the
action. If preparation of the EIS would not delay the emergency
action sufficiently to prevent attaining the objectives, an EIS
must be prepared and associated procedures satisfied before the
emergency action becomes effective. If the RPM determines that
time or other restrictions may limit attaining the objectives of
the emergency action, the RPM should ask EC to consult CEO about
alternative arrangements.

4. Alternative arrangements must satisfy the CEO guidance on
emergencies (CEQ sec. 1506.11). Possible arrangements include
shortened public review periods, review periods held concurrently
with effective emergency regulations but completed before final.
regulations are implemented, or EC staff assistance in preparing
necessary documents. These arrangements are limited to actions
necessary to control the immediate impacts of the emergency.
other actions remain subject to NEPA requirements and review.

.03 Environmental Analysis of proposals with Po&ential
International Implications.

a. General. This section applies to NOAA activitiesp or impacts
thereof, which occur outside the territory of the United States,
or which may affect resources not subject to the management
authority of the United States, as addressed by Executive order
(EO) No. 12114 and DAO 216-12. Specificallyp except as provided
in sec. 6.03b. of this Orderp these provisions should be followed
for these categories of NOAA actions:
1. Major Federal actions significantly affecting the environment
of the global commons outside the exclusive jurisdiction of any
nation, e.g.# the oceans# the atmospherer the deep seabed, or
Antarctica.
2. Major Federal actions significantly affecting the
environment of a foreign nation not participating with the United
states and not otherwise involved in the actiono
3. All other major Federal actions siqnifiCantlY affecting the
environment of a foreign nationp including, but not limited to,
those that provide to that nation:
(a) a product and/or a principal product,'amissiont or effluent
which is prohibited or strictly regulated by Federal law in the
United States because its toxic effects on the environment create
a serious public health risk, or

6.03.a.3.(d) 16 NA0 216-6
(b) a physical project which in the United States is prohibited
or strictly regulated by Federal law to protect the environment
against radioactive substances.

4. Major Federal actions outside the United States, its
territories, and possessions which significantly affect natural
or ecological resources of global importance designated for
protection by the President under the provisions'of EO No. 12114,
or, in the Case of resources protected by international agreement
binding on the United States, by the Secretary of State. For
marine resources, "outside the United States" is defined as
outside the 200-mile fishery conservation zone or 200-mile
exclusive economic zone.

b. Constraints.

1. Environmental documents on actions subject to this section
should be as complete and detailed as possible under the
circumstances. However, in analyzing activities or impacts which
occur outside the United States, it may on occasion be necessary
to,limit the circulation, timing, review period, or detail of an
EA or EIS for one or more of the following reasons:

(a) Diplomatic considerations;

(b) National security considerations;

(d) Commercial confidentiality; and

(e) The extent of NOAA's role in the proposed activity.

2. When full compliance with this Order is not possible,
consideration may be given to the preparation of:

(a) bilateral or multilateral environmental studies, relevant or
related to the proposed actions, by the United States and one or
more foreign nations, or by an international body or organization
in which the United States is a member or participant, and

(b) concise reviews of the environmental issues involved,
including EAs# summary environmental analyses, or other
appropriate documents.
(3) Rpms, in consultation with EC and the NOAA General Counsel
(GC) , will decide whether an EA or EIS should be prepared on an
action under this section.
C. S2ecial Efforts, certain activities having environmental
impacts outside the United states require special efforts because
of their international environmental significance. These include
activities mentioned in sec. 6.03a of this order and those which:
1..threaten natural or ecological resources of global -importance
or which threaten the survival of any species;

NAO 216-6 17 6. 0 3c. 2.
2. may have a significant impact an any historic, cultural, or
national heritage or.iesource of global importance, or
3. involve environmental obligations set forth in an
international treaty, convention, or agreement to which the
United states is a party.

d. Consultation. In preparing an environmental document for an
activity which may affect another country or which is undertaken
in cooperation with another country and will have environmental
effects abroad, the RPM should consult with EC both in the early
stages of document preparation (in order to determine the scope
and nature of the environmental issues involved) and in
connection with the results and,significance of such documents,
except when the factors listed in sec. 6.03b.l.(a), sec. -
6.03b.l.(b), or sec. 6.03b.l.(d) of this Order would indicate
otherwise. EC and the NOAA office of General Counsel (GC) will
consult, as appropriatet with other offices in the DOC, CEO, and
Department of State when the proposed action or its environmental
consequences are likely to involve substantial policy
considerations. When consulting with foreign officials, every
effort must be made to take into account foreign sensitivities
and to understand that one of NOW's objectives in preparing
environmental documents in cases involving ef facts abroad is to
provide environmental information to foreign decision-makers, as*
well as to responsible NOAA officials* Finallyp NOAA's efforts
in preparing these environmental documents will be directed, in
part, toward strengthening the ability of other countries to
carry out their own analyses of the likely environmental effects
of proposed actions.

.04 Public involvement and Scovinct.

a. General. RPMS must make every effort to involve the public
early in the development of a proposed action and to ensure that
public concerns are adequately considered in the decision-making
process. Public involvement may be solicited through
participation in adviSOrY cjrOuPs,, invitation to meetings and
hearingst solicitation of comments on draft and final 'documents,
and regular contacts as appropriate. interested persons may
obtain information and status reports on EAs, EISsp and other
elements of the environmental review process from the RPM or EC_
RpMs will be guided by CEQ sec. 1-506.6 and by NDM 21-25, Release
of mission Information and Responses to Freedom of Information
Act Requests, dated March 30t 1983, in providing adequate public
involvement in the environmental review process. NOAA offices
should use State "single points of contact" to ensure that all
appropriate State government agencies are given the Opportunity
to participate in th6 decision-maXinq process. This applies to
early planning and comments on environmental documents.
b. scovina-, ScoPinq is man early and open process for
issues to be addressed and for
determining the scope Of proposed action*
identifying the significant issues related ito a ic participation
(CEO Sec. 1501.7). The fullest practicable Publ
and interagency consultation will be Bought to ensure the early
identification Of significant environmental issues related to a

6-04.b 18
W 216-6
proposed action. Usually scoping is conducted shortly after a
decision is made to prepare an EIS. However, scoping may be used
during the F-A process to help determine the need-for an EIS.
Scoping and public involvement may be satisfied by many
mechanisms, including planning meetings, public hearings, and
requests for comment on discussion papers and other versions of
decision and background documents.

C. Notice of Intent.

1. Scoping officially begins with publication'.in the federal
Registe of a "notice of intent" to prepare an EIS (CEQ sec.
1501.7) but may in practice begin in the early stages of program
development. The notice should be published as soon as
practicable after the need for an EIS has been determined. The
notice must include (CEQ sec. 1508-22):

(a) the proposed action and possible alternatives;
(b) NOAAts proposed scoping process including any meetings to be
held; and

2. When there is likely to be a lengthy period between the
decision to prepare an EIS and actual preparation of the draft
EIS, publication of the notice of intent may be delayed until a
reasonable time in advance of preparation of that draft EIS.

3. If a RPM decides not to pursue a proposed action after a
notice of intent has been published, a second notice should be
published to inform the public of the change.

4. The notice of intent may be combined with similar notices
required for preparation of other documents. This will minimize
redundancy while still notifying the public of prospective
actions.

d. Scoving Process. As part of the scoping processip the actions
described in CEQ sec. 1501.7(a) must be fulfilled, when
appropriate; CEQ sec. 1501-7(b) is not mandatory. If the
proposed action has already been subject to a lengthy development
process which has included early and meaningful opportunity for
public participationt those prior activities can be substituted
for this requirement. scoping meetings should inform interested
parties of the proposed. 'action, alternatives, and solicit '
comments on that action4 Written and verbal comments must be
accepted during the waiting period after publication of the
notice of intent and must be considered in the environmental
analysis process. The SCOPing process will include, where
relevant, consideration of the impact of the proposed action on:
floodplains and wetlands, as described in NDM 02-12, Floodplain
Management and Protection of Wetlands, dated November 10t 1979,
sites included in the National Trails and Nationwide Inventory of
Rivers, as required by Presidential Directive, dated August 2,
1979, sites nominated or designated by the AdvisorY Council on

NAO 216-6 19 6.04.d
Historic Preservation, as required by 36 CFR Part 800; the
National Marine Fish 'eries service's habitat conservation policy
(48 FR 53142); and other appropriate laws and policies.
.05 Environmental Assessment.CEA) Preparation-and Approval.

a. Purpose.

1. The purpose of an EA is to determine whether significant
environmental impacts could result from a proposed action. If
the action is determined not to be significant, the EA and
resulting FONSI will be the final environmental documents
required by NEPA. If the EA reveals that significant
environmental impacts may be reasonably expected to occur, then
an EIS must be prepared. The contents of an EA are discussed in
CEQ sec. 1508.9.

2. The EA serves to:

(a) briefly provide sufficient evidence and analysis for
determining whether to prepare an EIS or a FONSI, and

(b) facilitate preparation of the EIS.

The EA must include brief discussions of the need for the action,
alternatives as required by sec. 102 (2) (a) of NEPA, environmental
impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted.

3. The environmental analysis in the EA provides the basis for
determining whether or not the proposed action is significant.
Therefore, the EA must address those factors outlined in sec.
6.10 and sec. 6.11 of this Order. Additionally,, an EA must
analyze the proposed action with respect to the laws and policies
listed in sec. 6.04d. of this Order.

b. Review and Clearance,

I. An EA leading to a PONSI must be submitted by the RPM to EC
for NoAA review and clearance prior to public availability. The
FONSI, which must be attached to or incorporated into the EA#
notifies reviewers that the environmental impacts* of the proposed
action have been determined by the RPM to be nonsignificant for
NEPA purposes. For NOAA review and clearance, the RPM must
submit to EC for signature one copy of the EA and the original
letter to reviewers.-: Details on the format and content of the
letter are included in sec,. 6.13 of this Order.-
2. EAs should be submitted to EC at least three days prior to
the requested clearance date, less time may be sufficient when EC
has reviewed early Versions of the EA. After NOAA clearance by
EC, the RPM may publish a 'notice of availability in the Federal
Register for those riks with national implications or of broad
interest to the Public- similarly, when Elks address unusual or
new actions, the R3?M may, at his or her discretion,, provide up to
thirty (30) days public review. The RPM may consult with EC to
arrange alternative procedures for providing public involvement,

6. 0 5b. 2. 20 NAO 216-6
including various combinations of notices and mailings (CEQ sec.
1506.6). In certain circumstances, EC, in consultation with the
RPM, may require that the'proposed action not be taken until
thirty (3o) days after the notice of availability has been
published. These circumstances include those where significant
reservations based on environmental concerns have been expressed
by consulting agencies or the public.
c. Significant Action. Where the proposed action is found to be
potentially significant, the RPM may proceed directly with
preparation of an EIS without submitting the EA for NOAA
approval. Early review of draft discussion papers by EC may help
to avoid future problems and to expedite subsequent review of the
EIS. (See sec. 6.06 of this order.)

.06 Environmental Impact Statement (EIS) Preiparation and
Approval.

a. Pur-pose. Should a determination be made by the RPM that
significant environmental impacts could result from a proposed
action, an EIS will be prepared in accordance with CEQ sec.
1502.10-1502.18. The EIS cover must clearly state whether it is
a separate EIS or an EIS consolidated with a management plan, and
whether the document supplements an earlier EIS. ' For general
guidance on EIS procedures, refer to CEQ see. 1502. Note that
NOAA (Administrator's Letter No. 17) and CEQ (CEQ sec.
1502.14(e)) policy requires identification of the preferred
alternative(s) in the draft EIS whenever such preferences exist
and in the final EIS unless another law prohibits the
expression of such a preference. When preferred alternatives do
not exist, the document must provide a range of preferences or
other indication of alternatives most likely to be selected. In
that way, the public can focus their effort in the most effective
manner.

b. Review and Clearance.

1. A preliminary version of the EIS, modified as necessary by
the RPM in response to comments received from EC and other
appropriate NOAA offices, constitutes the draft or final EIS.
one copy of the EIS and two letters, one filing the document with
the Environmental Protection Agency (EPA) and one transmitting it,
to all other reviewers, must be prepared by the RPM for the
signature of the Chief, EC. Copies of letter formats are
attached at the end of this order. (See Exhibits A# 8, C, and D
to this order.) After these letters are signed by the Chief, EC,
the originating RPM will take all further actions, including
filing the document at EPA and distributing it to interested
parties.
2. The deadline for EC receipt of draft and final ElSs submitted
for clearance is five days prior to filing at EPA; less time may
be sufficient. in those cases where EC has reviewed earlier
versions. The deadline for filing at EPA is 3:00 p.m. each
Friday for publication of a "notice of availability" in the
Federal R2crister the following Friday. Five (5) copies of draft
and final EISs, are required by EPA headquarters at filing unless

NAO 216-6 21 6;06b.2.
the proposed action affects more than one EPA reg ion or the
document is a programmatic EIS (an EIS on an entire program,
e.g., deep seabed mining or the "next radar" system called
NEXRAD, that could af f ect a large part of the nation) , in which
case more copies are required. Specific guidance on the number
of copies needed for filing is available from EC upon request.
An equivalent number of any source documents, 'appendices, or
other supporting analyses must also be submitted to EPA at
filing. (NOTE: Copies submitted to EPA at the time of filing
fulfill the NEPA filing requirements and that additional copies
should be sent to EPA headquarters and regional offices for
actual review and comment.) All EIS copies submitted to EPA must
be identical in form and content to the copies distributed or
made available to the publicand other interested parties.

3. once filed by NOAA, EPA will prepare a "notice of
availability" that will be published in the E2deral Register, as
noted above. All public review and "cooling off" periods begin
the day of publication of that notice'. No review period should
end on a weekend or holiday.

4. Concurrent to filing with EPA, copies of each draft EIS and
general transmittal letter must be sent to all Federal, State,
and local government agencies, public groups, and individuals who
may have an interest in the proposed action. Copies of each
final EIS must be sent to parties who commented on the draft,
individuals or groups specifically requesting a copy, and others
as determined by the RPM. Source documents, appendices, and
other supporting information should be circulated to the public
when the RPM determines that reviewers would benefit from the
additional information. The EIS and related documents must be
made available for public inspection at locations deemed
appropriate by the RPM,, such as the public libraries and State
"single points of contact" designated under EO 12373 or the A-95
clearing-house mechanism established by the Office of Management
and Budget (41 FR 2052).
S. The public comment period on draft EISs should be at least
forty-five (45) days unless a specific exemption is granted by
EPA through EC for another time period. Final EISs must include
comments received during the public review period of the draft
EIS and respond in an appropriate manner, as described in CEQ
sec. 1503.4. The "Cooling off" period on final ElSe is thirty
(30) days, unless an exemption is granted by EPA through EC.
6. A supplemental EIS (SEIS) may be required in certain cases
under CEQ sec - 1502 4 9 (c) (1) and (2) . SEISs must be preparedt
circulated, and filed as prescribed by CEQ sec. 1302.9 (c) (4) and
in accordance with sec. 6.06 of this Order. Public comment
periods for draft and final SEISS are the same as for original
EISs. Requests for special exemption* from the comment period
must be granted by CEO through EC. if an SEIS is prepared, it
must be introduced into any administrative record on the-proposed
action and distributed as described above for initial EISS. The
transmittal letters to EPA and the public must state the title
and publication date of the initial document to which the SEIS
relates.

6.06b.7. 22 NAO 216-6
7. In certain cases, usually characterized by pending
emergencies, negative socio-economic impacts, or threats to human
health and safety, the RPM may request EC assistance in
shortening the review and "cooling off" periods for initial Or
SEISs.

.07 Comments on Other Agencies' EISs. NEPA requires that EISs
be submitted for review to any Federal agency which has
jurisdiction by law or special expertise over the resources
potentially affected. The Chief, EC, coordinates DOC review and
comments on.other agencies EISs and forwards all comments to the
originating agencies. When comments are requested, copies of the*
incoming EIS and a letter noting the deadline for receipt of
comments will be sent by EC to appropriate DOC elements.
Guidance in the preparation of these comments is available in CEQ
sec. 1503.3, NOAA Administrator's Letter No. 17, and from EC.

.08 Integration of NEPA and Executive Order (EQ) 12114 into the
NOAA Decision-Making Process.

a. Inclusion of Environmental Documents in the Decision-Making
Process. Environmental documents prepared in accordance with
this directive must accompany any other decision documents in the
NOAA decision-making process. The alternatives and proposed
action identified in all such documents must correspond. Any
environmental document prepared on a proposal will be part of the
administrative record of any decision, rulemaking, or
adjudicatory proceedings held on that proposal.

b. Preparation of Environmental Documents for NOAA Rroarams.,
Environmental documents should be prepared at the earliest .
practicable time so that the environmental review process will
run concurrently with and be integrated into NOAA decision-
making.

C. Record ot Decision. The final EIS, final regulations, or a
separate Federal Register notice must clearly present KOAA's
preferred alternative(s), environmentally preferable
alternative(s), and any monitoring or enforcement programs in a
record of decision (ROD) for public review and comment. The ROD
must contain the elements listed in CEQ sec. 1505.2.

.09 Referrals to CEO of Environmentally Unsatisfactory Actions.
RPMs will notify EC of actions by other Federal agencies believed
to be environmentally unsatisfactory, i.e., worthy of a
"referral," under CEQ sec. 1504.3. The Chief, EC, will recommend
referrals to the Under. Secretary and Administrator of NOAA. EC
will work closely with the RPMs to prepare the letters and
support materials required in the referral process.
10 Guidancq_ f or Def inina sianiticanrWAJ6
a. As required by NEPA sec. 102 (2) (c) and CEQ sec. 1502.3, EISS
must be prepared for every recommendation or report on proposals
for legislation and other "major Federal actions" significantly
affecting the quality of the human environment. Federal

NAD 216-6 23 1 6. 10a.
management plans, plan amendments, actions, or projects which
will or may cause a *ignificant impact on the human environment
require preparation of an EIS.
b. "Major Federal action" includes actions with effects that
may be major and which are potentially subject to Federal control
and responsibility. "Major" reinforces but does not have a
meaning independent of "significant." "Actions" include: new and
continuing activities, including Projects and programs entirely
or partly financede assistedf conducted, regulated, or approved
by Federal agencies; new or revised agency rules, regulations,
plans, policies, or procedures., and legislative proposals.
Refer to CEO see. 1508-18 for additional guidance.

c. "Significant" requires consideration of both context and
intensity. context means that significance of an action must be
analyzed with respect to society as a whole, the affected region
and interests, and the locality. Both short- and lonq-term
effects are relevant. Intensity refers to the severity of the
impact. The following factors should be considered in evaluating
intensity (CEO sec. 1508.27):

1. Impacts may be both beneficial and adverse.

2. Degree to which public health or safety is affected.

3. Unique characteristics of the geographic area.

4. Degree to which effects are.likely to be highly
controversial.

s. Degree to which effects are highly uncertain or involve
unique or unknown risks.

6. Degree to which the action establishes a precedent for future
actions with significant effects or represents a decision in
principle about a future consideration.
7. Individually insignificant but c umulatively significant
impacts.
a". Degree to which the action adversely affects entities listed
in or eligible for listing in the NatioDal Rgaist2r 09 Historic
Places, or may cause loss or destruction of significant
scientific, culturale or historic resources-
9. Degree to which endangered or threatened species, or their
habitat, are adversely affected.
10. Whether a violation of Federal, State, or local law for
environmental protection is threatenede
d. "Affecting" means will c r may have an affect (CEQ see-,
1508.3). "Effects" include direct, indireett or cumulative
effects of an ecological# aosthaticp historic, culturalf
economic, social# or health nature (CEO sec- 1508-8)'

6. iOe. 24 KkO 216-6
e. "Legislation" includes a bill or legislative proposal to
Congress developed by or with the significant cooperation and
support of a Federal agency, but does not include requests for
appropriations (CEQ sec.- 1508.17). The NEPA process for
proposals for legi-slation significantly affecting the quality of
,the human environment shall be integrated with the legislative
process of the Congress (CEQ sec. 1506.8).
f. "Human envirorment" includes the relationship of people with
the natural and physical environment. Although economic or.
social effects often result from a proposed action, such issues
are not intended by themselves to require preparation of an-EIS.
Each EIS must discuss interrelated economic, social, and natural
or physical environmental effects (CEQ sec. 1508.14).

.11 Specific Guidance for Fishery Management Plans and
Amendments. The following specific guidance expands, but does
not replace, the general language in sec. 6.10 of this Order. An.
EIS must be prepared for a FMP or amendment when the RPM
determines that significant beneficial or adverse impacts may be
reasonably expected to occur. When adverse impacts are possible,
the following five criteria should aid the RPM in determining the
appropriate course of action. If none of these criteria may be
reasonably expected to occur, the RPM should prepare an
environmental assessment (EA) or determine, in accordance with
sec. 4.00b., sec. 6.02a.3., sec. 6.02b.3. and sec. 6.02d.2. of*
this Order, the applicability of a CE from further NEPA
documentation. NEPA document preparers should also consult 48 FR
7402 (50 CFR 602) for guidance on the seven national standards
that serve as principles for approval of all FMPs and amendments
The five criteria follow:

a. The proposed action may be reasonably expected to jeopardize
the long-term productive capability of any stocks that may be
affected by the action.
b. The proposed action may be reasonably expected to allow
substantial damage to the ocean and coastal"habitats.
c. The proposed action may be reasonably expected to have a
substantial adverse impact on public health or safety.
d. The proposed action may be reasonably expected to affect
adversely an endangered or threatened species or a marine . mammal
population.
e. The *proposed action may be reasonably expected to result in
cumulative adverse effects that could have a substantial effect
on the target resource Species or any related stocks that may be
affected by the action. Two other factors to be considered in
any determination of significance are controversy and
socio-economic effects. Although no action should be deemed to
be significant based solely on its controversial naturer this
aspect should be used in weighing the decision on the proper type
of analysis needed to ensure full compliance with KEPA..
Socio-economic factors related to users or the resource should
also be considered in determining controversy and significance.

NAO 216-6 25 6. 11e.

The RPM should rely on sec. 6.10c. of this Order for further
factors involved in determining when an action may be
Itsignificant.11 @ 1

.12 Criteria for Other NOAA Actions. (RESERVED)

.13 Guidance on Transmittal Letters for F-As and EISs.

a. All letters- must be prepared on "Office of the Administrator"
letterhead.

b. Letters will be dated after being signed by the Director, Ec.
c. Fill in all appropriate blanks in the sample letter
formats.

d. In the first sentence of Exhibit B to this order, the first
parenthetical note relates to the discussion in sec. 6.06b.2. of
this Order that noted the EPA need for more than five copies of
certain EISs, especially programmatic EISs and EISs on actions
that may affect more than one EPA regional office.

e. Note in sec. 6.06b.2 of this Order that EAs need not be
transmitted to EPA. Also, EAs on controversial actions or
national issues should be distributed to the public.

f. Examples of transmittal letters are attached at the end of
this order as Exhibits A, B, C, and D to this Order.

SECTION 7. EFFECT ON OTHER ISSUANCES.

This Order supersedes NOAA Directives Manual (NDM) 02-10,
Environmental Review Procedures, dated July 23, 1984. This Order
replaces NDM 02-10, only because the administrative order and
directives series has changed. The wording of this Order is
technically the same as NDM 02-10, with the exception of
differences in formatting between the two series.

Acting Director, office of Administration

Attachment

office of Primary Interest:
Chief Scientist
Ecology and Conservation office (CSEC)

EXHIBIT I

THE NEPA PROCESS

When the need for an EIS has.not, When the ne ed for an EIS
been determined: has been determined:

Environmental assessment Notice of Intent to
Prepare EI

Finding Notice Of Intent Scoping
of No to prepare EIS
Significant
Impact Scoping--] Environmental
(optional)
Assessment

Draft E Draft EIS

Final EIS al EIS

Record of Record of
Decision Decision

Implementation
Implementation

EXHIBIT 2

NOAA CONTACTS FOR COMMON ACTIONS SUBJECT TO NEPA

Program Agplicant NOAA Contact
Coastal Zone Management Coastal States, Territories National Ocean Service,
Programs (Sec. 306, CZMA) and Commonwealths Office of Ocean and
Coastal Resource
Management (OCRM), NEPA
Compliance Coordinator:
Cz
National Marine States, private individuals National Ocean service,
Sanctuaries (Title III, and organizations OCRM, NEPA Compliance
MPRSA) Coordinator: SRD
Estuarine Sanctuaries and States National Ocean Service,
Beach Access Acquisition OCRM, NEPA Compliance
(Sec. 315, CZMA) Coordinator: SRD

Coastal Energy Impact Coastal States and local National Ocean Service,
Program governments OCRM, NEPA Compliance
(Sec. 308, CZMA) Coordinator: CZ

Fishery Management Plans Regional Fishery Management National Marine
(Sec. 305, MFCKA) Councils or National.Marine Fisheries service
Fisheries Service Headquarters,
NEPA Coordinator

Regulations, Permits and Private parties, scientific National Marine
waivers under the MMPA institutions, and foreign Fisheries Service,
(Secs. 101(a)(2), 101(a) nations office of-Protected
(3), and 104, MMPA] Species and Habitat
conservation

Deep Seabed Mining Private industry National Ocean Servicer
Licenses and Permits OCRM, NEPA compliance
(DSM) coordinator: OME

Ocean Thermal Energy Private industry National Ocean Servicep
conversion Licenses OCRM, NEPA compliance
(OTEC) coordinator: OME.

EXHIBIT A

EIS TRANSMITTAL LETTER

Dear Reviewer:

In accordance with provisions of the National Environmental
Policy Act of 1969, we enclose for your review our (DRAFT/FINAL)
environmental impact statement on- (TITLE OF PROJECT).

P A R A G R A P H A B S T R A C T

Any written comments or questions you may have should be
submitted to the responsible official identified below by (DUE
DATE FOR,COMMENTS). Also, one copy of your comments should be
sent to me in Room 6222, CS/EC, U.S. Department of Commerce,
Washington, D.C. 20230.

RESPONSIBLE PERSON

Name.
Address

Telephone Number

Thank you.

sincerely,

(INSERT NAME)

Director
Ecology and Conservation
Office

Enclosure

EXHIBIT B

DRAFT EIS/FINAL EIS TRANSMITTAL TO EPA

(INSERT NAME)

Management Information Unit
c/o, Director, Office of Federal Activities (A-104)
U. S. Environmental Protection Agency

Waterside Mall, Room 2119

401 M Street, SW

Washington, D.C. 20460

Dear (INSERT NAME):

Enclosed for your consideration are five (VERIFY NUMBER WITH EC)
(APPROPRIATE DOCUMENTSF i.e., DRAFT EIS OR FINAL EIS) on (TITLE
OF PROJECT).

ADDITIONAL PARAGRAPH(S) OR INFORMATION AS NECESSARY

If you have any questions about the enclosed statement, contact
either the official responsible for this program (NAME OF
ASSISTANT ADMINISTRATOR and TELEPHONE NUMBER) or me at 377-5181.

Concurrent with this transmittal to EPA, copies of the -(DRAFT
EIS/FINAL EIS) are being mailed to Federal agencies and other
interested parties.

sincerely,

(INSERT NAME)

Director
Ecology and Conservation
Office

Enclosures

EXHIBIT C

FIN DING OF NO SIGNIFICANT IMPACT

TRANSMITTAL LETTER TO INTERESTED PARTIES

To All Interested Government Agencies and Public Groups:

Under the National Environmental Policy Act, an environmental
review has been performed on the following action.

TITLE:

LOCATION:

SUMMARY:

RESPONSIBLE OFFICIAL: (Assistant Administrator Level with
Address and Telephone Number)

The environmental review process led us to conclude that this
action will not have a significant effect on the human
environment. Thereforer an environmental impact statement will
not be prepared.' A copy of the finding of no significant impact
including the supporting environmental assessment is enclosed for
your information'* Please submit any written comments to the
responsible official named above by (DUE DATE FOR COMMENTS).
Also, please send one copy of your comments to me in Room 6222,
CS/EC, U.S. Department of Commerce, Washington, D.C. 20230.

sincerely,

(INSERT NAME)

Director
Ecology and Conservation
Office

Enclosure

EXHIBIT D

FONSr TRANSMITTAL MEMO
(FROM EC TO APPROPRIATE ASSISTANT ADMINISTRATOR)

TO: (INSERT NAME)

FROM: (INSERT NAME)

SUBJECT: Finding of No Significant Impact on (TITLE)

On the basis of the information presented in the subject
environmental assessment, I concur in your determination that the
proposed action will not have a significant effect on the human
environment in accordance with the Council on Environmental
Quality's regulations implementing the National Environmental
Policy Act. Therefore, a finding of no significant impact is
appropriate.

Enclosures

I
29.
Forty Most Asked Questions
Concerning CEQ's NEPA Procedures
46 F.R. 48026

~~@ ~~~~~--Y~ ~marcr~ 19~~ Ku~e~ ari~ Re~g~~i~~~~~~W
COUNCIL ON ENVIRONMENTAL These meetings also Provided N~EPA 17. Disclosure Statement ~~o Av~~~~1
QUALITY liaisons and other participants with an C~~~f~liCt of Interest
40 C~F~A Parts ~1~500, 1~50~1, 15~02~, I~qM Opportunity to ask questions about IIL Uncertainties About Indirect
1~0qW~.~qI~8qN~qS~, ISO~q1~q1, 1~q507, and ISM NEPA and the practical application of Effects of A Proposal
the N~qEPA re~qg ~l~u~llatio~r~qm A number of ~q1~q9. Mitigation Measures
Forty Most Asked ~0qau~e~s~qoo~qm these questions were answered by C~qEQ ~q2~q&~-~-W~o~qW~-~qC~v~a~e~-~qA~r~t~&~qi~qr~qm~-
CEO's ~8qW"~a ~m~qW representatives At the regional ~qm~ee~t~qi
Ent ronm~ental P~2q"c~qy A~et R~i~s~qqu~qi~s~qU~i~on~s ~n~qgs~. 2~q1. Combining Environmental and
In response to the many requests from Planning Documents
~0qM~a ~C~qh I-,. low. ~t~qh~e agencies and other par~qt~c~qip~a~nt~L ~qZ~4qL State and Federal Agencies as
A~0~1~11~1~qX~V: Council on Environmental CEQ has compiled forty of ~th~e most Joint Lead Agencies
Quality. Executive Office of t~qh~e important or most frequently asked 23. ~qC~or~i~4qf~4qf~4qi~cts of Federal Proposal With
~q;~q@~v~s~id~snt. questions and their answers and Land U~s~e Plans. on Policies and
~'~%c~I~X~qf~qt Information Only: Publication of reduced them to w~r~qi~qd~n~2q& The answers Controls
~2qM~e~qm~o~qm~n~l~qium to Agencies Containing w~e~r~v prepared by the General Counsel 24. Environmental Impact Statements
Answers to 40 Most Asked Questions on of CEQ in consultation with the Office on Policies. Plans or Programs
~qN~6qUA Regulations. of Federal Activities of EPA. Thaw 2~q5. Appendices and Incorporation by
~answ~em of course. do not impose any Refers=
~qv~j~qu~qu~A~#rv~* The Council on additional requirements beyond those of 2~1~qL Index and Keyword Index In Else
Environmental Quality. as part of its t~q' 1~11~1. This document 2~q7~. List of Preparers
oversight of implementation of the d now guidance under 2~qL Advance or Xerox Copies of EIS
National Environmental Policy Act. hold 'the ~@N~qEPA ~r~6q"~4qW~st~qi~O~u~L but rather makes ~6qa~-~qg.,~qV~on~G4~X~qj~a~6qZ~o~qM~4qM~q0nts
meetings in the ton Federal regions with generally available ~qt~o ~C~O~qM~ern~ed ~q30~. Adoption of Else ~'~-~q-
Federal. State. and local officials to agencies and private indiv~qidu~al~a~l the 3~q1. Application of R~e~qsul~ations to
discuss administration of the answers which CE~4qQ has already liven Independent Regulatory Agencies
implementing regulations~. The forty at the IM regional ~i~n~q"~qd~0qw ~q7~8qu ~ 3~q2~. Supplements To Old E~4qM
most asked questions were compiled in answers also ~qm~I~ql~ql~ec~qt the advice which ~q3~4q& Referrals
a memorandum to agencies for t~qh~e t~qh~e C~0~G~n~4qW ~q1~1~1111~2 liven over ~t~qh~e past t~qw~o ~q@~qL 34~6qL~8qA~@~c~q9~2q&~qt of Decision
information of r~el~e~v~ent officials. ~qi~i~i YOM t~o aid Its-) staff and ~q3~8qL Time Required f~q-~d~-~r~-~8qN~qm NEPA
~o~e do ~eff~qi~ci~e~n~qdy to respond to public consultants in tb~air day-to-day process
inquiries this memorandum is reprinted ~4~q9~4q0~qic~atio~n of N~qEPA and the regulations. 3~8qL ~qE~a~v~2qf~2qtnm~ental Assessments ~q(~qEA~q)
In this Wow of the Federal Register. ~0qC~qE~4qQ has ~&~4qW received numerous 37~. Findings of No S~4qW~qAca~nt Impact
~P~qM ~P~qw~rI~qCI~R ~o~qw~qa~qm~q"~T~qm ~C~O~N~T~0q"~I~r ~qInq~u~tn~es ~2qM~2qP~r~4qd~f~t~qg t~qh~e ~$~q=Pi~f~t~ql Process. (~qFONS~qT)
N-~qW~qh~o~qla~s C- Y~O~O~qL C~e~n~er~al C~k~lurts~el. C~qE~4qQ hopes to issue written guidance on ~q3~qL Public Availability of EAs v~.
~sco~qp~qi~ng later thin you on th~e basis of its F~4qO~6qNSI~S
C~ou~n~8qd~' on E~nv~qi~l~l~qm~n~i~enta~ql Quality. ~-~2qu special ~s~qtu~i~qt~qy of ~s~c~o~qp~qi~n~2q& which is
Jackson Piece NW, Wa~s~qhu~igto~n. D.C. nesting c~om~qpl~at~qi~c~i~a. 3~q9. Mitigation Measures Imposed in
~8qW~8qM ~8q=~-3~q0~q5~-~qS~2qM ~8qC ~qY~e~A~qL ~qEAs and FONSIs
~4qM~orci~l IL ~qU~qM 40~. Propriety of Issuing EA When
~2qGh~qw~i~qm~qi C~o~m~m~ud Mitigation Reduces Impacts
~8qM~em~a~ir~e~a~qd~qh~om for ~qF~ed~qwal ~4q4~2qVA 131111~q6~0~11~1 Questions a~nd Answers A~6qW~qmt ~t~qh~e
~qL~qm~s~o~ns. Federal~. Sta~ql~s, ~a~nd ~qI~oc~s~qil
o~qd~0qki~a~l~qls and ~6qO~qd~qw Persons Involved in ~qL Range af ~6qA~qb~arna~qt~qiv~e~g NE~qPA Regulations ~q(~qim~q)
do ~8qN~qIE~qPA P~t ~q2- Alternatives ~qC~q)~a~t~i~qdd~e the Capability Is. Q~. What is meant by -range of
of Ap~qp~ql~qI~ca~n~t or ~qj~qu~8qb~qdk~1~qi~o~n of Agency alternatives~" as referred to in Sec.
S~ub~qw~c~t Questions and Answers About I N~o~-A~ct~qi~o~n Alternative ~q1~4qW~q5~.~q1~q(~s~q)~q? I
the ~0qWA X~a~qVu~qL~a~t~qi~on~s 4~. A~qg~e~n~L~2qys~qP~r~efi~qm Alternative A. The phrase -r~a~n~6qp of alternatives-
D~~ar~2qm ~qIv~n~@ and ~6q" ~a~lf IM :be ~qS. ~qP~4qM~q2~q9~8q9~0qd~4qA~c~qd~o~q&~r~-~qP~qm~0qk~8qv~0q" refers to the alternatives discussed in
Council as ~qE~a~v~i~r~o~n~s~a~i~ntal Quality. with Alt~er~nati~qw ~e~nv~qiro~r~tm~e~ntal documents. It includes"
~qd~qw assistance and coop@. of EPA's~8qr Preferable reasonable alternatives. which must be
MS C~A~ard~qi~nat~ors ~qk~o~n~a ~t~qh~e ton EPA ~0qC~qt~e~r~n~0qi~n~q-~qi~qi~-~q- rigorously explored and ob~qi~ect~qiv~e~qly
r~e~qg~i~qm~s~. Said one-day ~i~r~qm~qb~"~6qW with T. D~qiff~er~v~ac~s Between~ Sections of E~qL~qS ~evalu~at~e~l~qL as well as those other
fi~e~qd~e~r~a~qL stele and local ~o~qf~6qk~qu~qLs in the on Al~qt~i~m~a~i~st~qi~v~e~n ~e~nd E~n~v~ir~c~i~am~ent~ai alternatives~. w~-~0qN~i~qi~2qN ~q-a~r~qv eliminated from
ten EPA ~r~4qq~qw~r~qA~ql ~g~0qf~0qt~qw~s a~r~o~l~l~i~nd the ~qc~qm~s~e~qq~u~e~n~c~e~s d~o~-t~&~q-~qi~q-~q1~*~-~qd-~qs~q1~-ud~qy with a brief discussion of
co~iun~tr~qy~. ~qh~a ~6~0~qd~4~b~o~n. on ~qJ~6qW~qr to. I~4qm & E~ar~qiT Appl~qic~0qa~ql~qm ~o~q(~2qN~qE~qPA the reasons for eliminating them
CE~0qQ c~o~n~qd~i~ec~i~e~qd a I - meet* for ~t~qh~e I- App~qU~q=~0qM W~qb~e ~8qN~e~s~qd~a other Section 1502.14. A d~ec~qis~qionm~ak~er must
~4qW~a~s~ql~u~n~qc D.C. ~qN~0qVA ~qd~e~as~c~i~t~i~s and Permits not consider alt~ema~tiv~e~s beyond th~e~i
per~i~lo~n~s ~i~n~% ~civ~ed a do ~q!~q~4qWA ~q;~r~qm~qf~qts. ~q1~q0~-~qa~6q6 ta~i~qd~n~2q" on Action During 3~q0~. mop of alternatives discussed in the
A~4 these ~qm~qa~L~qo~8qp ~qC~qZ~0qQ ~qd~qi~s~c~o~n~s~e~qd [a) the ~L~qmy~q,~4q@~qi relevant environmental documents.
~n ~d~qi ~qDreft Elsa
r~qu~al~t~s ~o~if its I= ism ~q1~q1 an Ar~d- by an ~2qMor~s~ov~or. ~qi ~0qd~qicisio~nm~a~qk~er must in fact.
~,iv~e A~qpp ii ES Fit
i~q.
can
save u~nc~e t~qh~e ~qI~2qW~qF 3~2qL ~4qW~qS ~e~6qf~6qf~ec. consider a~ql~ql the ~alt~em~ativ~e~s discussed in
~qd~a~l~i~e ~qvf the NEP~8qA ~t~e~2qo~qd~e~8qd~o~qf~qt ~q(b~q) a~ql~q"~icy 17. EfT~qect~qiv~qe ~6qa~qn~0qa ~8qm~0qw ~0qw~qo~8qm~qg~q,~q,~q,~q,~q,y an EIS. Section
c~qompl~qia~4qm~qe with d~4qw ~2qA~qec~qo~qr~0qd of Decision of the R~qo~2qgu~0ql~qa~2qf~2qt~qn~qe~qs 1b~q. Q~q. How many alternatives have to
~q-~qe~8qq~q%~qa~qr~qe~4qm~qe~qn~qt~qs to Section ~ql~04qu~8qs of ~qt~8qh~qe ~0q1~4q3~q- use of ~2qs~qc~qo~8qv~4qa~qn~2qs ~0qB~qa~24qb~8qn Nodes of be discussed when there is an infinite
NE~2qPA ~6qm~04qT~q.~2q9~q4~qL~qm~qm~0qm &ad ~8qfc) C~6qE~40qqs Intent to P.~qe~q,~0q-~q- ~16qM number of possible alternatives?
~8qpr~qa~qi~4qmn~qer~4qy ~2qf~qin~6qdr~qep an how ~qi~6qbe ~0qw~qa~4qpin~2qg ~q'~6qL~qe~q'~q.4. Rights and ~2qR~qe~qs~2qp~qo~qss~8qi~0qh~8qi~8qi~0qi~6qi~0qI~2qi~qe~qs of
~8qp~4qm~qc~qes~qs is ~qa~qv~6qm~0qw~2ql~q- ~6qP~qar~qt~0qm~8qP~qa~qn~qt~qs at the" ad and C~qo~08qq~qr~qr~qa~qti~qn~6qg~08qA~16qp~qr~qe~qc~8qi~8qn ~qR~qe~qf~qa~qm~q"c~qas ~qU~qf~qf~qe~qw~0qo~qm~qw ~qT~qh~qe ~qd~8qw~qa~8qw~qn~qt are to the
r~qr~qa~qe~qu~qn~08qp ~qr~qe~q-~0qm~qv~qed c~q;~04qm~qv~qe~qs of m~qa~qi~qe~qr~0qial~qs 1~4q5. Comr~qi~8qmot~4qi~qa~8qg R~qe~qsp~ql~qa~qu~ql~0qabiliti~qe~qs of C~qau~qn~qc~qo~q4 an E~qnv~qi~qe~qe~qtu~qr~qt~qa~qn~qt~qa~qi Quality ~qa R~qe~8qpl~qa~qt~qio~qn~qs For
p~2qm~0qp~qa~2qmd by ~6qC~6qE~32qQ ~qf~qt~ql~qi~qn~qi~6qm~qar~8qm~q-r~qi~8qg its EPA ~qI~qm~qp~ql~qe~qf~qf~ql~qe~qm~ql~qi~qt~qs rill ~qP~ql~qo~4qu Ural ~6qf~6qt~qV~qi~qs~ql~qo~qn~qe of the
~qov~qer~qs~16qV~q& and fi~qn~4qd~qn~qi~8qg~qs. I& Tl~qt~0qi~0qrd ~qs~qt~qo ~2qf~2qt~q- National ~q9~qn~qv~qir~qo~qn~qt~qP~qw~qn~qi~qs~q4 ~ql~ql~qt~qi~ql~qc~qy Act. 4~q0 C~qF~qR P~ql~qA~qrts
C~4qm~qu~qs~qc

his ~0qC~8q&~20qA was resci~qr~qi~28qded
April 2~2q5, ~2q19~2q86.
(~6q5~6q1 Fed. ~20qR~qe~36qq. ~6q1~6q3625 (1986))

Federal Register Vol. 46. 40. 55 / qMdv March Z3. IqNI I Rules and Regulations Istqa
A. For some proposals there may exist There sire two distinct interpretation$ of 4&. Q. What is the "agency's prefe!"red
a very large or even an infinite number "no action" that must be consqidqerqiqiqL alternatqive-?
of possible reasonable alternatives. For depending on the nature of the proposal A. The -agency's preferred
example. a proposal tqq designate being evaluated. The first situation alternative" is the alternative which the
wilderness areas within a National might involve an action such as agency believes would fulfill its
Forest could be said to involve an updating a land management plan wq%llre statutory mission and responsibilities.
infinite number of alternatives from 0 to ongoing programs Uiuitqiated under giving coneration to.econor tic.
100 percent of the forest. When there are existing legislation and regulations will environmental. technical and c.ther
potentially a very large number of continue. even as now plans are facto-rip.-T-hqi concept of the *'aqgt ncy'@'
alternatives. only a reasonable number developed. In these cases-no action" in preferred alternative" is different from
of examples. covering the qfuqU spectrum ..no change" from current management the "environmentally preferable
of alternatives. must bea'aqlyzed and direction or level of management alternative.- although in some ceses One
compared , the EqIS, An appropriate intensity. To construct an alternative alternative may be both. See Question q6
series of alternatives might include that is based on no management at aqll below. It is identified so that aqger-cies
dedicating 0. 10. 30. 50. 70. 90. or 14qW would be a useless academic exercise. and the public can understand the qlcad
f h Forest to wilderness. Therefore. the "no action- alternative agency's orientation.
qZhCtqn:qaqnsqtiteutes a reasonable range of may be thought of in terms of continuing 4b. Q. Does the "preferred
alternatives depends on the nature of with the present course of action until alternative" have to be identified in the
the proposal and the facts in each case. that action is changed. Consequently, Draft 0qES and the Final 6qES or just ir the
Z. Q. If an EIS is prepared in projected impacts of alternative Final EISq?
connection with an application for a management schemes would be A. Section 1502.14(eq) requires the
permit or other federal approval. must compared in the EIS to those impacts section of the qES on alternatives to
the EIS rigorously analyze and discuss projected for the existing plan. qIn this "Identify the agency's preferred
alternatives that are outside the case, alternatives would include alternative if one or more exists. in @he
capability of the applicant or can it be management plans of both greater and draft statement. and identify such
limited to reasonable alternatives that lesser intensity. especially greater and aqltqoqwtive in the final statement
can be carried out by the applicant? lesser levels of resource development This means that if the agency has a
A. Section 150q2.14 requires the EIS to The second interpretation of -no preferred alterntiv* at the Draft EqIqS
examine all reasonable alternatives to action" is illustrated in instances step. that alternative must be labeled
the proposal. In determining the scope o involving federal decisions an proposals or ident0qMeqd as such in the Draft E0qM. If
onsqidered. the
emphasis is on what is "reasonable'. for projects. "No action" in such cases the responsible federal official in fact
rather than on whether the proponent or would mean the proposed activity qhas no preferred alternative at the Draft
applicant likes or is itself capable of would not take place. and the resulting 0q0q5 stage. a preferred alternative need
cywqg out a particular alternative. environmental effects bum taking no so be identified there. By the time the
Reasonable alternatives include those action would be compared *nLh tqhe Final 6qEqS is filed. Section qIqS8qMq14(e)
that are practical or feasible from the effects of permitting the proposed presumes the existence of a prferri?d
technical and economic standpoint and activity or an alternative activity to go aqltsrina%q@vs and requires its
sig common sense. rather than simply forward. identfication in the Final EIS "unqicis
desirable from the standpoint of the Where a choice of "no action" by the another law prohibits the expression of
applicant. agency would result in predictable such a preference."
actions by others. tqhis consequence of 4c. Q. Who recommends or
zh Q. 4qMqms the US analyze
alternatives outside the jurisdiction or I the "no action" alternative should be determines the "preferred alternative?*'
pabiq;qj.,y of the agency or beyond wqha 11q; included in the analysis. For example. if A. The lead agency's official with qLne
Congress has authorized? denial of permission to build a railroad -espq=0qbility for preparmg the qEIS and
A. An alternative that is outside the to a facility would lead to construction assurqmg its adequacy is responsible! for
legal jurisdiction of the lead agency of a mad and qmresqd qmck trqffqir- the dentqifymg the agency's preferred
us qaiqll be aqmqlqyzed in the EIS if it is EIS should analyze this consequence of alqtpqMtqivq(&q1 The NEPA regulations do
reasonable. A potential conflict with tqhe "no action- qlqteqmaqdve. am dictate which o4qf4qf4qi8qdaql in an aqgef ICY
local qw f0qWarsqA law does not necessarily In light of the above. it is difficult to shall be res nsqible for preparation of
render an alternative unreasonable. qUlqink of a situation where it would not EqLqSL but agencies can identify this
lthiqgh socqh conflicts must qbe be appropriate to address a "no action" official in their implementing
cqdqneqd. Section 1q50q6.q2q(qd). altairriatqiv. AccordiniqqqlqX. !#a rqMqlatioqns procedures. pursuant to Section 15q07-3.
Alternatives that am outside the scope mquqire -the. q4@-qjctqjon qEqm though the agency's prefem-4q4
of what CqAegress has approved or all tiv even if the agency is under a a4q0qmatqive is identified by the EIS
funded must q" be evaluated in the EIS courLorder or qle2qVsqlative command to preqprer q=tqhsqf6qlliv the statement must
f they are resissqb0qk because the EIS CL _4qT4qNs nq@4q@sis prviqdgis a be objectively qpqnpilred and not slante
may serve as d4qw bqeqsis for modifying the _qBaqcq@2q@2qqqirKqinaqblqing decision m4kqerqs to to support the 0qdqvoqi0qiqi:00q4 of the agency s
Congress qor0qAqJ approval or funding in- compare the magnitude of preferred alternative over the other
iqiqght of 8qN12qXPA's 2qgqiqoqalqs and policies. eqnviqrorqaqnentqal effects of the action reasonable and feasible alternatives.
Section 0qI4qS4qM0qI8qJqO4qL Ialternatives. It is also an example of it 6q356q; Q. to the "proposed action- the- -0qe
3. qQq. W0qliqaqt does the 'no action' reasonable alternative outside the qsqa8qm t0qhqin6qq as the q"pqrqe0q(e8qf8qfqe44qdq-q-
aqhernqatqivqe qiqnqic6qiqo6qdqs8q? qI0qf an agency is 4qijurisdiction of the agency which must be a2qf2qt0qerqvqaqt4qivqe"?
under a cqowrqt order or legislative analyzed. Section 16qo12qa0qiq42q(c6q)q, See A. The -proposed action- may be. 6qbu-
corniqaqrd to act. must the EIS address Question 2 above. Inclusion of such an iqs not nqeqwqssqarilyq. the agency's
the -no s8qluqn4q=qf4qivqe? analysis in the EISq-is nqecsqiqssqary to q- -preferred qa6qltqerqrqiat8qiqveq."The qprqo8qpqoq3ed
A. Section q108q=0q14q4d8q) requires the inform the Con6qg8qMqSL the public. and the action may be a proposal in its initial
alternatives qa8qu0qtysqsqs qiqn the E0qIS to President as intended by N4qEPA. Section form befcrqe undergoing analysis in the
**qinq!udqe the qa2qfqtemaqtqive of no action." 12q512qW.8qI(a). E6qL0qS pqiqoqcqaqss. If the proposed action is

Federal Rq*str / Vol. 46. No. 55 / Monday. March Z3 1981 / Rules and Regulations

internally generd.such as preparing a preferable alemives by providing private applicants or non-Federal
land management plan. the proposed their views in comments on the Draft entities and are. at Some Stage. 3ubqiect
action might end up as the agency's EIS. Through the identification of the to federal approval of permits. loans.
preferred alternative. On the other hand environmentally preferable alternative. loan guarantees. insurance or other
the proposed action qmay be panting ar- the decisionmakr is clearly faced with actions. What must and can agencies do
application to a non-federal entity for a a choice between that alternative and to apply NEqPA early in these cases?
per-nit. The agency may or may not have others. and must consider whether the A. Section 15qM.2(d) requires federal
a "preferred alternatve- at the Draft EIS decision accords with the agencies to take steps toward ensuring
stage (see Question 4 above). qIn that Congressionally declared policies of the that private paqMss and state and local
case the agency may decide at the Final Act. entities initiate environmental studies as
EIS stage. on the basis of the Draft qEq3S 5b. Q. Who recommends or soon as federal involvement in their
and q@e public and agency comments. determines what is nvtromtally proposals can be foreseen. This section
that an alternative other than the preferable? is intended to ensure that environmental
proposed action is the agency's A. The agency EIS staff is encouraged factors am considered at an early stage
..preferred alternative." to make recommendations of the in the planning process and to avoid the
5b. Q. Is the analysis of the "proposed environmentally preferable situation where the applicant for a
action" in an EqIS to be treated lqternativtq(s) during EIS preparation. In federal permit or approval has
differently from the analysis of any event the lead agency official completed planning and eliminated all
alternatives? responsible for the EIS is encouraged to alternatives to the proposed action by
A. The degree of analysis devoted te identify the environmentally preferable the time the EIS process commences or
each alternative in the qM-tstq-o'q6q@ alternative() in the EIS. In aqll caseL before the EIS process has been
substantially similar to that devoted to cornmenton from other agencies and the
completed.
the proposed action." Section 158q&14 is public am also ncouraqSed to address Through early consultation. business
titled "Alternatives iqfcludinqg the this question. qThe agency must identify applicants and approving agencies qmay
proposed action- to reflect such the environmentally preferable gain better appreciation of each other's
comparable treatment Section alternative in the ROD.
q1q5q=14q(qb) specifically requires 7. Q. What is the difference btwoqi.'@ needs and tooter a dcqisqionmakinqg
-substqwtia1troatmaiat- in ths US of the sections in process which avoid& later unexpected
each alternative 4q0q4qhu4qf4qt the propo&3qd and "environmental consequences-? confrontations.
action. This rqgq@qlqtqiqio does not dicta to How do you avoid duplicating the Federal agencies are required by
an oniount of information to be discussion of alternatives in preparing Section qI8qM7.3(b) to develop procedures
provdo6q& but rtbw. proscrqi4qUs a level the two sections? to carry out Section 8qM8quq(qd). The
o(wqment w may n turn require 0qkqTqbqa alt4qmtivl 2ctn is the procedures should include an "outreach
MY amouqm of qinqfrmqiffon. to heart of the EqIqS This section rigorously 10qwom". such as a means for
asibqin & qmvqiirwer to evaluate and qsqix-qpqro2q@aiid objectively evaluates an prospective applicants to conduct pro-
coqwq!wre aqltraqtvqm rosoinabqle alternatives including th application consultations with the lead
as, 4qq. what is q1w meaning of the term proposed action Section q258q=q14- it a and cooperating agencies. Applicants
lnvouqdFe-OTq&4qf4qt qPrfq"'aqbqb should include relevant 2qa8qm2qgqrisonx an na0qm to find out. in advance of project
aqlqtqmvi' as iseqd in the rqgulatiars ovirooma tal and other pounds. The planning what environmental studies or
with rqes oq-Records of Decqisqiu? "qNvqiooqmentql, consequences" section other information will be required. and
qF2qWW-tl dWLqWqU 1VqU11tiont' used in of the EIS disco 6qf6qt seq@ciflc what mitigation requirements are likely.
uqn p4q&aqie? environmental impacts or effects of each in connecton with the later federal
A. S4q&-on 18q=q2(bql requires that in of qth0qAA16qWn0q&8qfqt6qn including the NEqPA process. Agencies should
cases wqbqm an ES bs been pnrqpa,.qd. qp actqlqiqm Section q158q=q18q& In designate staff to advise potential
qdi Record 0qd qDecqnia (ROD) must ordar to evoid duplication between applicants of the agency's NEqPA
6qJonqtqy ad aql0q"tsers that were owe two scqdos. most of t2qum information requirements and should
consqderci. . - speqofying tqhe alternatives' section should be devoted publicize their pr-apqplqication
sqiturq"t-.0 or sqtuqfqfqlqaqdves which won to describing and . the procedures and information
caqmered to be onv9noentally alternatives. q0=0qm6qra qno requirements in newsletters or other
qPraqferaqbe.- The qmtrocinntaLlqy taql qitpect of qdqi0,04 modqla wied by potential applicants.
qprferqbqie q4q1qW0qUqUqW ti-4qS8qKIqIq[qCqmaqtqiv 4qiqtrriative should be limited to a Complementing Section 158qM.Zq(d),
tqfist WLqd pronwqfqt qd asqimaql, oacqne descrqiptqt" mammary of such Section 1q34qN.q5q(ql requires agencies to
eovqioq"t&ql_q?aLwqy qn qw0qorsed in qipec0q" in a cosapasotive form, assist applicants by ouqdininj the types
qN2qWA's qScq@ qiBqE qUqi0qOqii4qaj. this qiqnq@ludiql 6qdqmu at taqbLes. thus sharply of information requited in those cases
mearts the alternative q*8qd4qf4qtqus0q@qth qdqaqf8qt0qM the issons and providing_ a clear where the agency requires the applicant
leas( damage to qb -and basis for among oq9tion Section to submit environmental data for
physical evwnqme - a am means the IqSqOL14. ThqIL-qa8q=qwgnqttaql possible us by the agency in preparing
iterntive with 6qW0qN I qmi2qiqq on s4qF__4qJ an EIS.
as VONCIS section should be
preserves. and ouqbseqan qb8qWq-oir- devoted largely to a sciontqific analysis Section 1q54qW.q3q(b) allows agencies to
c16qWqtum0qL and natural tqVqBqMqCq*L at the 6qdqhqi0qa qsqoqid 08qW6qdqbqv6qm -eqnqvqoqoqmqa6qptal authorize preparation of environmental
The Causal rqeqcqo0qgqniqxqes 0q*qa8qt the qo20qf0qfqectqs, of the proposed 0qac8qoqon and-of assessments by applicantsq. Thus. the
idenefication at qi8qhqs eqirv4qiqrqorqimeqn2qia2qlly each oq(q,to be a6qltqormqet8qivqeqsqe-24qW6qbqraqi8qr0qlhqe procedures should also include a means
8qprqeferqa2qb4qa alte:nqa2qdqve 00q%qaqy involve qaqna2qlqy04qf04qt b2qi0qt0q4qoqr the concise for anticipating and utilizing applicants*
qd0qif6qfqic16qWqt 0qiuqd12qWeqnts. 2qpa8qy4qf4qicqulqa2qty when -cqamqp0qmqaqciqs q= the q"a36qM08qf8qf08qf08qtqf4qivqasq" environmental studies or "early
-v4qw eqfqfry0qmquqmentqs,q11 qv16q" must be q4q0cquqoquq; 8q-, corporate environmental aqssqessments-
qbqa0qfanqced against 6qitiqi2qiqd40q4rq- 20qne public 4, Q. Section 12q308qM.28q4dq) of the NEPA to fulfill some of qthqe federal agency's
and 4q=er agencies revqiqe a Draft regulations R12qRuqirqeqs qa6qgeqnqcqiqsqiqs to provide NEPA obligations. However. in such
2qEIS cam &sets-, the lead agency to for the earl* a2qp2qpqi16qkqation of NEPA to cases the agency must still evaluate
develop and determine qnqviqzoantqen4qwqily cams where qoqcqtqi8ql4qaqw am planned by independently the environmental issues

I Mnly, March qM IqWI Rules and Regulation IqM@

and ake responsibility for the direct and indirect effects of the are fulfilled. Section iqWq&I(b). These
environmental assessment. proposal and any misted actions. The steps could include "eking injunctive
These provisions are intended to agency should inform the applicant that measures under NEPA. or the use of
encourage and enable private and other action on its application may be delayed sanctions available under either the
non-federal entities to build unless it'submits all other federal aqgiqmcy*s permitting authority or statutet
environmental considerations into their applications (where feasible to do so). setting forth the apncy's statutory
own planning processes in a waqy that to that all the relevant agencies can mission. For example. the agency might
facilitates the application of NEPA and work together on the scoqpinqg process advise an applicant that if it takes such
avoids delay. and preparation aq( the EIS. action the agency will not process its
9 Q To what extent must an agency 10a. Q. What actions by agencies application.
inquire into whether an applicant for a and/or applicants an allowed during 12s. Q. What actions are subject to
federal permit. funding or other approval EIS preparation and during the 30-day 'the Council's now regulations. and what
of a proposal will also need approvaqt nod after 2qpblication of &6qXuuqd actions are qgranqdqfatherd under tqhe old
6qqq;8q;qT " guidelines?
from another agency for the same
proposal or some other related aspect of q1. A. No federal decision on the A. The effective date of the Council's
it? proposed acqtql,4q= shall be made or regulations was July 30.q127q2 (except (01'
A. Agencies must integrate the NEqPA recorded until at least 3o days after the certain HUD programs under the
process into other planning at the qpu-qbqlqicati -on by EPA q( notice that the
earliest possible time to insure that Housing and. Community Development
q@Psticttlar ES has been filed with EPA. Act. 42 U.S.C. q5304(h). and certain state
planning and decisions reflect Sections qI4qM5.q2 and qI8qMqI8qM Section highway programs that quality under
environmental values. to avoid delays 1q36q0.q2 requires this decision to be stated Section q1q=2)q(6qD) of NEPA for which the
later in the process. and to head off in a public Record of qDecqiiqaL reqfulatins became effective on
potential conflicts. Specifically. the 6qUn6qW th agency issues its Record of
agency must "provide for cases where Decision. no action by an agency or an November 30, qI6qVq9). All the provisions
acto s are planned by . . . applicants... applicant of the regulations are binding as of that
8qZqkcsqmqf0qt-the Proqpq-2qW shall date, including those covering
so that designated staff are available to be taken which would have an adverse deqdsqiamakinq& public participation.
advise potential applicants of studies or 'environmental impact air qlqitit the choice referrals. limitations on actions. EIS
other information that will foreseably of reasonable alternatives. Section supplements. etc. For example. a Record
be required for the later federal action: qIqS4qMq46q4 But this does not preclude
the agency shall consult with the Praqill4qmutrqy Pqisamqinqg or design work of Decision would be prepared even for
applicant if the agency foresees its own which is needed to supptt an decisions where the draft EIS was filed
involvement in the proposal. and it shall qpqpqlibo2qdn for permits or assistance. before July 30. I8qVqII.
insure that the NEPA process Section 0qL8qM4qLIq(qdq@ But in dterminins whether at not the
commences at the earliest possible time. WIqM dw impact statement in now regulations apqily to the preparation
Section 1q301.2q1d). (So* Question L) qoestlai is a qPro6qram EqM no major of a particular anvirnqmequqd docuqmr,t
The regulations emphasize agency action qaqnowninqg the prop= may be the relevant factor is the date of 8qMins of
cooperation early in the NqUA process. taken the draft of that document. Thus. the
_q111ificantly aff0qm the
Section 15qM.q6. Section 1q54qM.7 on quality of qdw qblimen avwoqmnqL now regulations do not require the
scog * also provides that qlql a4qfqfe0qwed unless qdqw parti rv4q&qfqtqwg of an EIS or supplement if the
cuiaractinisqtutqiqfied draft 0qMqS or supplement was filed before
Federal agencies are to be invited to the pqMqVqWq= Is )ulqy 3qM qi2qrqg. However. a supplement
pc:pate in scoping the environmental acoiqgmaind by its awn adequate
issues and to identify the various euvqirqmqms4qW iqmqipact statement and prepared after the effective date of the
environmental review and consultation will aM pnoqo2qkqlioce the ultimate decision regulations for an EIS issued in qfWal
qre before die effective date of the
ients that may apply to the on the pnqWam. qSectqiqm 4qL8qmqiq(cq).
prsed action. Further. Section 1& 4q4 Do thew limitations on action I'qMisqion would be controlled by the
52 3(bq; requires that the draft qM list q(qdsc4qAnd in Questqlan qU2qM) apply to regulations.
ail the federal permits. licenses and SttS Or 11014qW 420q=49 that have Even though agencies are not reqqirt-d
q0r entitlements that art needed to sitau0qmoqf2qt d0qWepted repon2qebility for to apply the r0qWqlations to an EIS of
mIeet the proposal. qP qP 216- Cqd eirvqirqwnental - .q-Iras other doqoqmet tot which the qdiraft we a
T@ese Provisions create an a4qf4qfumativ required by N4qEPA. for soqmpqle. =der filed prior to J4qWY q30. I8qM. the
obligation on federal agencies to inquire tqhe H0qM 6qU4q& Grant ? regulations acouriqlql agencies to follow
efl. and to the -nximurn degree A. Ya qdimse qhmiqtatins do apply, the regulations "to the fullest extent
possible. to ascertain whether an qW my variation qfmqa their practicable." Le. if it is feasible to do io.
ppfiarf is or will be seeking other AD federal 6qqe6qdss. in qpreqp8qMqS the final document. Section
fecel assistance or approval. at q1q1. qq Mat actions meet a lead qI2qUqM.q1q211a).
whether he aqppqlieqnqt to waiting until a qwacqy Ube q&uqmqa the NqIPA process jib. 4qQ. Are projects authorized by
prpos has ben substantially wrqim it qUncomes aware qtat a non- Congress before the effective date of the
developed before requesting federal aid qfirderqw aqnq&q=- is about to falls an Council's regulations grandfthered?
of pmaqlq. action qwdlqie qdw aqlncy's jurisdiction A. No. The date of Compressional
Thus. a fqedqe4qmql qe20qpwy qrqw0qA8qiviqnqg a that q. " - have an adverse authorization for a project is cat
request far approval or assistance qnqi2qmill 16qW2qgqiqect or lqbqa2qf2qt the choice determine tive qa4q( whether the Council's
should determine whether the applicant of , q. alternatives (qa0qg. rqe6qlqlulatioqnqs or former Guidelines a6qPqIP6qlqY
has 6qMeqd separate requests !or federal qprqo8qmqm00q"mill2qy commit Romp or other to the particular proposalq. No
approval or assistance with other rqasoqu8qmqiqnqs qi - dqe the i0qpql time Of the qI6qm8qm2qip6qletqs projects or proposals of ally
federal agencies. Other federal q42qgqenc8qi0qn pqropqo4qmqa4qM kind an 6qgrqand8qfa4qthqerqed in whole or in
that are 2qhqiqs8qiy to became involved A. 0q?4q%4q& 4qSqo4qdwqalql qs2qgqaqncq.12q7 am04qe notify the part. Only certain qenvqiqrqOqrImqeqntqal
should then be contacted. arqiqod the NEPA qa6qpqpi6qk4q- 2q10qhqaqn 6q*2q* qa2qlql2qi8qvqiqcyqa0qlqlqil take qdqaqc8qmoqn0qts. 4qfw which the qd2qmqtt was
Process coordinatedq- to insure an early q.0 qa24q08qmlqaqs8qeqvqe An" 6q* 12qWqourqe that issued before the effective date Of 0qt0qhqe
and comprehensive anqaqsyqs8qis of the the ob2qlqaqi00qmqeqmqiqs qa4qmd 0qp a of NEPA regulations are 0qgrqaqndfa0qthorqad and

Federal Rooster / Vol 4q& No. 55 / Monday, March z3 12pp Rules and Regulations
subject to the Council's former determine by letter by memorandum with its own responsibilities as lead
or I
Guidelines. which agencies will Undertake agency. Section 1q38qM8qAaqK6qU
qtq7x- Q. Can a violation of the cooperating responsibilities. To the If the load agency loaves out a
revilations give rise to a cause oil extent possible at this stage significant ism or i6qporq" the advice
ectqion? responsibilities for specific qissuqn and expertise d the cooperating agency.
A. While a trqiv8qW violation of the should be sasi
qgao0q& q74qU allocation Of the EIS may be found later to be
regulations would not give rim to an responsibilities will be completed during Inadequate. Similarly. whom
q@ndepondant cause of actiaL such a Section 2q=6qAa6qW Cooper tqinqg agencies have their own
,taus& of action would arias qboqm a reqd0q" agencies most assuqms decisions to make and they intend to
(substantial violation of tqhe rqjulaqdoqw. dqitqy for qtqhe development of adopt the environmental impact
Section q1q308q" and tqhe prepared= Of statement and bass their decisions on it.
4qm Q. Can the scoqpinqg process be qUqd analyses at the request of am document should include all of the
used in connection with preparation of agency. Section qI6qWqLqGq(qbqX3q@ information necessary for the decisions
-m environmental *q"*q"qm@nqL qLe, partial agencies an nowq7qirsqd by the mope tqiqg agencies. Otherwise
before both the decision to proceed with ',bqyS md-nqi2qWqi8qAqtoqdevotes
an gqis and publication of a notice oql' resources that were norme.11y primarily they my be q&wcaqd to duplicate the E4qM
intent? 'qPsed to critique at comment an the Draft process by issuing a new. more complete
A. yoq& Scoqpqing can be a usoqfqw tool E0qS after Its qproparatqiqm such issirbor in 0qMS or Supplemental E4qM even though
for discovering alternatives to a NqXP2qA p y at tqhe the orqiqg8qmal EIS could have suqMcd if it
had ben proprfy done at the outset.
qpfgqpo_q"qL at significant impacts that may qpqlaqs and Draft E4qS prqparatqim
have be= overlooks& In cam when stages. If a cooperating agency qI2q%m both load and cooperating
-n gniqlron"ental osessqmet to being determines that Its nqwqwqw limitations agan2qde have a stake in producing a
prepared to help an agency decide q; -1 - I any qbrvqlveme. of qdso qdoqpq" qdctsmnt of q@ood quality. Cooperating
Whether to prepare an qE4qM useful of Involvement q(amount Of work) - agencies also have a duty to participate
qhqdarqmatio might result from early requested by the Wed aqgancqy. it must so 2qWqy in the scoqpqinqs process to atimure
pgrqdqaqpaqtion by other agencies and the In the land agency qin writing and tqhat the appropriate ranqgs of Issues is
qpql0qf0qt in a scoqpqi6qf6qt qP R F. submit a copy of 4qWe correspondence to determined early In the EqLqS process.
The re0qpqaadons state that the scopinqg tqhe Council. Seedoit I6qoqL4qqcq@ Because the E4q3 is not the Record of
- in to be preceded by a Notice aqi In other warts. to p a qt8qW Decision. but instead constitutes the
qbqWq=1 4qp4qK4qM to prepare an EqIS. But that qqPqWY qMHt decide early if and agaqipz;, on vqdiich to
in 0q* tqbg miri"qmn requqirgaqnt Is abit to qdavqte my of its meowca be" a do"= dqLeitqgroeqments about
0qsqmaqhqm my be initiated serqfqier. an 100q" to a particular proqposaL For this reason --concqh8qo-qc2qm; qUo 8qrqN drawn qfqimqm tqhe E0qS
0qWt0q6; is appropriate public notice said tqhe regulation states that an agency may need not qiziqlsibqiqt agencies from Waging a
don vaqil4qmqle the f8q*qY to a fqwqfl4qm qfiqW P R M P a tics that faint qdocuqmmqt. at adopting anotqbw,
q'6q64qW so 6q=t the public nd relevant "other proqgrqm comqmtments preclude
aqgaticy's qE8qM if tqhe analysis in adequate.
can late 6q1q5scqdvoqlqy- afy qinvqlvenqwaqt or the 4qd6qwq" of Thus. it each agency has its oqwn
. that qia jam before Involvement requested in the *Won that -praqftmed aqltornatqtwo.- both can be
s nqt and to aid of Its , is the subject of the savqiqmaqmenqts.1 and in the E0qM SI-ii, qy. a
* for the Impact statement 0qMqAtpqhasqio adde4qa I _ agency with jurisdiction by
pu4qW0qkatkqa qT4qU raqgulatqiqm Was to the -a0q@" Law may determine in its own q90q0 that
ql the 0qH4qOL gnqjs2q6 do qm Has public rather than to the qE8qM to cqialqi6qk that the alternative A is the sayqmuqmentAqllY
and= stated qd&arqtqy that this possibiLlqity t a( ad phases preferable action. even though the lead
wao unqdw consiqderatIqM dod 1q110 Not 8q=qf2q@0qb2ql4q=4qZocul justqdqmqfqt Eqlqs agency has decided in its separate ROO
q=2q*rqUsqlqy provides that - 0 1 PrIPAqNqUqM 0qrqW 011111AS that the Agency that Aqlqtemative B is environmentally
Commas0q" on qdqw WxqqqW at alternatives has deteruumad that it cannot be preferable.
ead impacts will sedq! be coqnstqioreqd. bavolveqd in the Later stages of 4qES 1q4c. Q. What an the specific
q14a. 4q% What are 0q*1 1101PICtqiv I f v is w qa0qW cossqmanqi. a weqD as responsibilities of federal and state
:8qW8qf8qt ead ragponsuqbqdi4qbqu of Ised and A--n I - - on the proposed action. cooperating agencies to review dre4qf4qt
cappqwqwqYmg a2qpaces? What letters and Par 8q" qMM Cooperating agencies Ems?
mum be qpeqpero0qC with 6qbo4qudqicqoao by law (than wqhicir A. Cooperating agencies qJLs- agencies
A. After a Insid 4q1Wcy 110 been Ism qparmittqinqg or other approval withq)unsdicqioe by law or special
des0qp8qasid q(Ser- 6q=6q4 d4qW ASSCqY has ouqdqwriy) cannot apt out entirely q1' tqhe a) and agencies that an
an responsibility to qWq&2q* 00 1 1 tim daqty to cooperal an the E4qM Us also exqprtis
Am other 0qhqdu6qW s6qoncies that have question I& qm0qWqinqg spa2qdqa by to the authorized to develop or enforce
qhqooqdqkqmqase by qlaw qW IPM8qW 411qPUrtiMS responstbility of EPA. onqyucamenqtal standards. must comment
q= my 4q"Wqiqs won Got should 14b. Q. How we qdqispates resolved on environmental impact statements
be aqddsqmseeqd a t2qW2q= Wise PreqParv0q& between lead qa0qW cooperating agencies within their qjurLsdiction. expertise or
Wqtstre aqppi " qP , - - Via Wed lqeffiqX3 concamuq# the scope and level of detail suqtqbc6qMtY- qS4qWq19q" I2qM-8q1 q2q3q08qLq31 4qU a
0qdqwAW sank 6q&* qmaqperqdim of state l2qk a( analysis and the quality of data in cooperating agency qi saqfqisqfqieqd that its
qjqeqcqa6ql agencies of sander 6q*q028q00q10q1ca0qbqonqs. impact statementsq? v8qiqa8q" am qa0qiqo2qqua00qU8qly reflected in the
qV12qaqsqsi 2qd8qw qPqrqo2qp4qm6qW my qafiqect aqn 2qbq-20q44q0 A. Such dis2qpqaqi2qn am resolved by the aqtiqv2qiroqamqentqal impact qsqta0qte6qm2q"8qL it
Nqgqgqatqiql The 8q"8qP 08qm 0qdqiqsqsqe24qw qcqanqo24qw0q, 2qgqs qmqeqs themselves. A 4qk4qw36qAq-16qqpqnqe _q. of qAhqo20qWd simply q0q01q0qM8qMqI accordinglyq-
_4qy
q,6qm20q& do 6qhqad8qmq, tr6q*qw. ism& 24qrqhqe cqowqsqe. has 20q*qa qo0ql4qtimqaqtqe responsibility Conversely. if A@ cooperating agency
form qR 8qP qN don qs0qhqoqe20qw at for the qa00qf0qt32qW6quq- of an 0qE0qJ24q& But it is dqa0qtqerm2qiqnqeqe that a draft 4qE0q10q3 is
to qa4qw0qf0qiqe6qs 6qpqo0qw6qdWo me a the N0qE0qPA qiqd to quqs-qe-24qaq-4qAqvqirqoqnmeqaqu4qd iqnqco2qm6qpqiqttqe. inadequate or inaccurate. of
qP8qMqOqN4q& analysis and recommendations of it has other qzo2qm8qmqotqiqtqs. it should
A0q61qor 0qd2qiqsqc4quqsiqsqaqsqs u20qf20qt the candidate promptly make such COMMq0q1q100qM
8qM2q4 a12qpqa0qcAqL the Wed agency conforming to the requirements Of
and the qcqoo2qpqaqm8qm12qv agencies am to maximum qexqiqe2qw qpqoqwb16qW qcqonqsiqsqseqnt spqeci0qfqi04qdty in qsqeoctiqoqn q14q34q004q"

Federal Register / Vol. 46. No. S3 / Monday. March 23 1961 / Rules and Regulations

14d. Q. How is the lead agency to found it helpful in expediting identity or plans of future' landowners is
treat the comments of another agency compliance with NEPA. unknown?
with jurisdiction by law or special If a federal agency uses "third party A. The EIS must identity all the
expertise which has failed or refused to contracting" the applicant may indirect effects that are known. and
cooperate or participate in scoping or undertake the necessary paperwork for make a good faith effort to explain the
EIS preparation? the solicitation of a field of candidates effects that are not known but are
A. A lead agency has the under the agency's direction. so long as reasonably foreseable." Section
responsibility to respond to all the agency complies with Section 1508.8(b). In the example. if there is total
substantive commennts raising significant 1506.5(c). Federal procurement uncertainty about the identity of future
issues regarding a draft EIS. Section requirements do not apply to the agency land owners at the nature of future land
1503.4 However. coopering agencies because it incurs no obligations or costs uses. then of course. the agency is rot
are generally under an obligation to under the contract nor does the agency required to engage in speculation Ol'
raise issues or otherwise participate in procurs anything under the contract 'contemplation about their future plans.
the EIS process during scoping and EIS 17a. Q. If an EIS is prepared with the But. in the ordinary course of business.
preparation it they reasonably can do assistance of a consulting firm the firm people do make judgments based upon
so. In practical terms. if a cooperating must execute a disclosure statement. reasonably foreseeable occurrence It agency fails to cooperate at the outset. What criteria must the am follow in wig often be possible to consider the
such as during scoping. it will rind that determining whether it has any likely purchasers and the development
its comments at a later stage will not be "financial or other interest in the trends in that Area or similar areas in
as persuasive to the lead agency. outcome of the Project" which would recent years: or the likelihood that 1 he
15. Q Are EPA's responsibilities to cause a conflict of interest? land will be used for an energy project.
review and comment on the A. Section 1506.5(c). which specifies shopping center. subdivision. farm or
environmental effects of agency that a consulting firm preparing an EIS factory. The agency has the
proposals under Section 309 of the Clean must execute a disclosure statement. responsibility to make an informed
An Act independent of its responsibility does not define "financial or other Judgment. and to estimate future impacts
as a cooperating agency? interest in the outcome of the project.- an that basis. especially if trends are
A. Yes. EPA has an obligation under The Council interprets this term broadly ascertainable or potential purchasers
Section 309 of the Clean Air Act to to cover any known benefits other the" have made themselves known. The
review and comment in writing on the general enhancement of professional Agency cannot ignore these uncertain.
environmental impact of any matter
relating to the authority of the reputation. This includes any financial but probable. effects of its decision.
Administrator contained in proposed benefit such as a promise of future . Q. What is the scope of
legislation. federal construction Projects. construction or design work on the mitition mossureit that must be
other federal actions requiring ElS. and Prolect, as well as indirect benefits the iscousare
new regulation. 42 U.S.C. Sec. 78W9. consultant is war of (e.qg.. if the project A. The mitigation measures discussed
This obligation is independent of its role would aid proposals sponsored by the in an 0qES must cover the ran$* Of
as a cooperating agency under the firm's other clients). For example. impacts of the proposal. The measures
NqTPA regulations. completion of a highway project may must includa such things as design
ia. Q. What is meart by the term encourage construction of a sqhaqpqptnq$ alternatives that would decrease
third party contracts" in'connection center or industrial park from which the pollution ainissions. construction
with the preparation of an qEqIqSq? Sec consultant stands to berieqfqlL qIf a illpft% 92thtiC intrusion- as qWeU "S
Section 1506.5(cq). When can "third party consulting firm is aware that it has such relocation assistance. possible land use
contracts- be used? an interest in the decision an the controls that could be enacted. and
A. As used by EPA and other proposal. it should be disqualified from othar possible efforts. Mitigation
ng the EIS. to preserve the measures must be considered even
agencies. the tern "third party contract" Pf"qPan
refers to the preparation of EqlSs by objectivity and integrity of the NqIEPA impacts that by themselves would no'
contractors paia by the applicant. In the pmcess. be onsideed-sqiqgnificant." Once tq@,-
case of ar. EIS for a qNatIq6qhqr2qp-Tlutqjon When a consulting firm has beta proposal itq"If is considered as a whoie
Discharge Elimination System q(NqP0qDES) involved in developing initial data and to have significant effects. aqlql of its
pet. the applicant. &were in the sarqiqy plans for the project. but does not have specific effects on the environment
planning stages of the proposed project any qInancqial or other interest in the q(qwqbolqhigg, of not -significant") must qI)e
of the need for an EIS. contracts directly outcome oqf the decision. it need not be considered. and mitigation measures
wth a consulting firm for its dqisqqua4qMeqd 4qbom preparing the EqLqS. must be developed where it is feasible
preparation See 40 qC-F.R. 8-qO8qWqS). The However. a disclosure statement in the to do so. Sections 1q52q=14q(qn. 18q=q1q6q(hq).
"third par*.qy*' is EPA which. under qdqmqft EIS should clearly state the scope 8qUqD8qL14-
Section 150qM.5q(c). must q"qI*ct the and extent of the firm's prior lob. 4qQ. How shou;d an qEqLS treat the
consulting firm. even though the involvement to expose Any potential subject of available mitigation qmea!iures applicant pays for the cost of preparing conflicts of interest that may exist. that am (I I outside the jurisdiction oqi -q.r a
qSe EqIS. The consulting firm is 0q17bq. Q. If the firm in fact has no load of cooperating Agencies. or 2q(4q2q1
responsible to EPA for preparing an EIS promise of future work or other interest 8qw24qA0qkqely to be adopted or enforced by
dia, meets the requirements a( the in the outcome qo0qf the proposal. may the the responsible agency?
NEPA regulations and EPAq'sq.4qNEPA &A later bid in competition with others A. All relevantq. reasonable m8qitigiqe t: :It
prqwedurqesq. It is in the qap4qpiiqcqaqnqtq*qs for future work On the project it the 8qm8q"uq=qs that could improve the 2qprqiq)qjiq::t
interest that the 6qEIS comply with the proposed action is approved? are to be identifiedq. even if they are
law so that EPA car take prompt action A. Y8qm outside the qiqu0qnscLicqt0qiqon, of the toad
on hqe NP20qOES per-nit application. The I4qlL Q. How should wqmqertqa2qin0qtiqes about agency or the coop triqttiqn2qg agencies. and
of
third party contract" method under indirect effects of sq'0qpropoqsal be thus would not be committed as part
qZPAs NEPA procedures is purely qadqdqrqeqsqsqeqc4qi. for example. in cases of the RON of the" agencies. Sections
voluntary. though most applicants have disposal of federal lands. when the 12qL6qW16qL8qIqG2q(h2qlq. 4qi6q52qc2q&6qAc6qlq. This will serve to

Federal RgqWr / Vol. 4a. No. 55 / Monday, March 23. 1981 Rules and Regulations

alert agencies or officials who can agencies to consider those documents are appropriately cross-
c
implement these extra measures. and tcnu@;l nsquc when acting rfrd. The proposed plan is useful
0
will encourage !hern to do so. Because a of sc' tific uncertainties for EIS readers as an example. to show
the qEqIS is the most comprehensive qgapqa0qls2qlvai6qM'qIen information. Th how one choice of management options
environmental document. it is an ideal -snalqys is formulated an the b is of transqistas into effects on natural
vehicle in which to lay out not only the evaqilabqi ' OrMatqiCEL Using sonable resources. This procedure permits
full range of environmental impacts but proqinctio f the worst pa qhis initiation of the q90-day public review of
also the full spectrunt of appropriate consoquen of a pro, action. proposed forest plans. which is required
mitigation. For examp if there scientific by the National Porest Management Act.
However. to ensure that uncertaintyan aps' theavadqbqin All the aqltsmaqtives am discussed in
environmental effects oqf a proposed information cc tqhe numbers of the Eq1q8. which can be read as an
action am fairly asseised. the qjuvo8qwqle Ash that . d be entrained in independent document. qThe details of
probabqdqity of the mqitqiqSatqion Mansur" a cooling Water , the responsible the management plan are not repeated
being implemented must also be agency must q-106q"o a consider the in the ElS. and vice voqna. This is a
discuss*& Thus the EIS and the Record possibilqi the loan o a commercial sonable fanctqional separation of the
It 416q7 1
of Decision should indicate the or sPkOrqt 2q=tqaq@ the EIS contains information
likelihood that such measures will be In ad on to an anitlysqis a low relevant to dis CqhOqiC among
adopted or enforced by the responsible probe iqtyq/catastrophic impa event. alternatives: the plan is a detailed
agencies. Sections qIqSqO8qLqIqOq(qh). 1q30q5.4q1 qLqf tqhe ont case analysis should description oqf proposed management
there is a history of nonenforcement of We a spectrum of events of hi or ac8qf8qtqdos suitable for use by the land
opposition to such measures. the EqIS bability but lose deft lip i-of Managers. This procedure provides for
and Record of Decision should 'q-0qE 4qQ. Whom an q9q1q5 or an qEA Is concurrent compliance with the public
acknowledge such Opposition Or combined with together project plann' review requirements of both NEPA and
qdonenforceme0qn If the necessary docuqiyq-qt q(sometimes called the National Fairest Management Act.
mitigation measures will not be ready "qpiqg0qD1q"ckqinq#4qJ to what dog" may the Under-soqme circumstances. a project
for a Ionqg period of time. this fact. Of 0qCS or q9A rater to and rely upcqm POqPqM Or ant plan 2q&qi0qW be
course. should also qbe recognized. q- information in the qproqinct document to qtcaq"qt 'qth-qthe E8qM and the one
and* NZPA's requirements? t labs a both "0qE0qV and
qysqis be included in an JEW A. q3@cqdqm 2qL5q02M of the regulations
lf than are gaps in relevant requires tqhat draft EqlSs be prepared
-tainqty conqoqwqm28qfqt qW0qO integrated with @2qW8qmqiqy-q"aaonable whom the
tina or
ng to an agency's ev ustqi of anvqircqmiqmantaql analyses and related documents are short. or whom the EIS
an s q0
a,
qpsq". -erse server and sqb0qAes required by other ytqiq:4q@ the stions for clear.
1qi cant 0qW% impacts on the t federal sqlatuqlqm In addition. Section 8q7aonqmaql I 0qMSe satisfy the
h environment. an agency uqireqments to roqject report.
make at that such informatic is 0qL8qU8qL4 aqdoqws any environmental q2qL Q. May state and federal agencies
lacking gr that the uncertainty istZ. docuumnsqt prepared in complianca with $aqm as joint lead agencies? if so. how
An aqganity must inqwcqiu4qWde a caw 6qN4qVA to be combined with any other
. * as 3 of the sea 6qn dociamenqt to reduce dupil, do they resolve law. policy and resource
analysis qdq( the Pot@n0qW qLqmqPs cation conflicts under NEPA and the relevant
proposal sqlad an tiqm othe and PaqvierworlL However. these
state environmental policy act? How do
r qi6qi2q@qbqdity their provqisqkqma were am intended to
qqroqbaqbqilityq@. nqf relevant autqhrqiqm the preparation of a short
occqwvq= dq1a) t they resolve differences in perspective
to adverse in8qVacts is qdaql to asoqmmqorqy or oaqdqkw E4qM attached to a where. for example. national and local
reasoned chooqke among troatives aqAd detailed project n6qWrqt or land use plan needs may differ?
tqhe ovmll cos2qb of oqbtaq*k0qf0qt the comumni8qmqg qdqw required envqironmenuqd A. Under Section 158qM.q5(b), federal.
information are 8q"arbi4qon. or q(b) the aqmpod qdqfqtL 4qb Mich circuqmstanc4qm tqhe state or local agncqiqm as Ions as they
Information I adverse impacts qm4qWqw qva0qWd be" to refer constantly to include at least one federal agency. may
is important dald the do qde4qf4qt4qW 8qwqo to undqmqtand the act as joint lead agencies to prepare an
means to it not know d qintpects and alqlematqives qE0qM Section 130q0.2 also strongly urges
NqEPA rwqm t . It impeqa qwq6quqh 0q&A0qWd qbeve bqm found in the ES state and local agencies and the
satessents. at a qmqo6qAquum. contain AWL relevant federal agencies to cooperate
Lnqformaqbqw to &I puqbqi6qk and TIM 0qE4qs q=4q0 qA4qw on its own as an My with each other. This should cover
Cqaqgress to aqlql Mqmqlqy0q*2qW qa0qnoqwnt which qf8qwq;y informs joint research and studiss. planning
arrvqironmentaql of agency qdoqdsqiqmaqkers sad the public of the activitiqm public hearings.
ection.0qraqm eoq(qdqwjv8q@ - e0qf0qfecqu of the proposal environmental assessments and the
qgvermaci 9 qAnoqu qi i I - and tow of *A reasonable alternatives. preparation of joint EqlSs under NEPA
obligations is' to 4qMqM4qO q" 4qN110q" qSwqbqmsIqO8qLqL qBuL an long as th EIS is and the relevant "little NEPA" state
extent possq*e 1q%e siqpe4qM8qfqt of c0qkqdqy 0qWatiqfqissf and is self-supporting, qIWL so that one document will satisfy
consequences that fq1fss it cm be qpqhrqkaqfqiy in0qduded in or both qIaWL
qwqiecqy qdeqasmns. =*a of their avAcqb6qW is, qOw project report at land The regulations also recognize that
2qpoqo8qmna2qljq48qmqoeqsqqu4qencqeqs 6qWqr eqsqe qpqb8qw said may an qaqtta4qdqiqed report certain inconsistencies may exist
d6qF
qv qd qnmqeqoqL qIqr huqlmqaqn n qiqsqi0qdnqa8qical backup. between the proposed federal action
4qaq3bq. Qq. What is the 0qT8qsm2qa Survive qsaqv8qirqonmqeqsi0qtqa4ql impact and any approved state at local plan or
want came qaqaa6qbq-qsqts4q! iqtqaqloqoqmqeqtqs for forest management plow law. The joint document should discuss
formulated mid wqf8qwt12qE96qt to be wqi bandied 8qiqs 0qdqds manner. The 4qE20qM the extent to which the federal agency
Analysis4q? the 8qqp-6q)q's preferred would reconcile its proposed action with
#- The purpose of the axqiqs0ql8qyqs0qiqs 0 qa8qf8qtqerqaqfqfqi8qdwqeq. is developed in detail such plan or taw. Section qL2qSqO32q"d). (Set
carry out NqEPAq's qmqaqndqa6qw for 8qfu8qll08q@l qaqn the I qP 2qp management plan. The Question 28q3).
disclosure to the pqu4qi0qgqic of the 52qW qC24qW1tqL0q120qW I 4qP 8qpqo - plan accompanies the Because then may bqe differences in
consequences oq( agency 4- E20qS 2qdwqaqn48qo 4qt6qhe qeqv4qiqew processq. and the perspective as wall as conflicts among
qpe
qy
qi

C
qf0q"
q"qM -q@
nqis
on
ticqy
a

t
U

;680q@
qy2qi'
If
;84qnf

case
,all qi4q@
qiqm f the
t
qtqyqW
raqlq"0
qtqlql to a
rnatqives

q,2q701%q"
obtain
q1q1 0 4qA0q1,

Federal Register ! Vol. 48. No. 55 / Monday. March Z3. 1qM / Rules and Regulations
federal. state and local goals for initiation of a planning process. or a as a valuable and necessary analysis; of
resources management. the Council has formally adopted policy statement of the the affected environment and the
advised participating agencies to adopt local. I or state executive branch. potential cumulative impacts of the
a flexible. cooperative approach. The even-l=not yet been formally reasonably foreseeable actions under
joint EIS should reflect all of their adopted by the local. regional or state that program or within that geographical
interests and missions. clearly identified legislative body. area.
as such. The final document would then q23c. Q. What options are available for 24c. Q. What is the function of tiering
indicate how state and local interests the decqisionmaker when conflicts with in Such cam?
have been accommodated. or would Such Plans Or Pq61icqies aqm identified? A. Tiering is a qprocedqism which
identify conflicts in goals (e.g.. how a 8q& After identifying any potential land allows an agency to avoid duplication of
hydroelectric project. which might use conflicts. the decqisqiarimaker must paperwork through the incorporatqior, by
induce second home development. weigh the significance of the conqfqlqi0qm reference of the general discussions and
would require new land use controls). among all the other environmental and
The EIS must contain a complete noq"sivqirortmental factors that must be relevant specific discussions from Sri
discussion of scope and purpose of the considered in reaching a rational and environmental impact statement of
proposal. alternatives. and impacts so broader scope into One of lesser Scope
balanced decision. Unless Precluded by or vice veres. In the example ve
that the discussion is adequate to meet other low from causing or contributing gqi n
the needs of local. state and federal to anqy inconsistency with the land use Question qZ4b. this would mean that an
decisionmaqkrs. plans. policies or controls. the overview 0qCqS would be prepared for all
Z3. 4qQ. How should an agency handle de2qdsqioqmaqker retains the authority to Of the energy activities reasonably
potential conflicts between a proposal So forward with the proposal. dqm2qMqit foreseeable in a particular geographic
,a area or resulting from a particular
and the objectives of Federal. state or the potential conflict. In the Record Of development program. This impact
local land use plans. policies and Decision. the de8qdsionmaker must statement would be followed by site-
controls for the area concerned? Sea explain what the decision W44 qhoqw it specific or project-specifqic qEqISs. The
Sec. 15q0qLqIqBq(c). was made, and what mitigation
A. The agency should first inquire of measures am being imposed to loam daring process would make each EqIqS of
other agencies wether that am any adverse environmental impacts of the greater use and meaning to the public as
potential conflicts If them would be Proposal. among the other requirements the plan or program develops. without
immediate conqfqiqlicts. or if conflicts could of Section 1q30q5.8q1 This provision would duplication of the analysis prepared for
&rise in the fqurare wqhas the plans are require the de4qdsqionmaker to explain qdqw previous impact statement.
finished (set 0qQuessbon qZqXqbq) below). the any decision to override land use pqians. jqiq@ q2q5a. 2qQ. 2qW-q@qqqqq!0qL6qAqAqPqPqMqp4qdqJ6q" Use
appendices instead of qingqhL
EIS must acknowledge and describe tqhe policies or controls for the area. qdqLnqg
extent of those q-fhq- If them are any 244. Q. When am EISs required an I of an E
S-q7
possibilities of resaqttrinqg qdw conflicts. policies. plans or programs? 6q& body of the 0q&q5 sqhq_o_u0qTqd8qTqw it
these should be c2sqlaiinaid as well. The A. An EIS must be prepared if an eqazdact statement of aqlql the information
EIS should also evsJlaste dae Seriousness agency proposes to implement 4 gpe2qdqfqic q= qarvqirassmentaql impacts and
of the impact of qdqw ;sroqposal an the land policy. to adopt a plan for a group of sqhernaqdves that the decisionmaker @iLnd
use plans and poilqicqies and whether. or related actions. or to implement a qdqw pablqic need. in order to make tqhs
how much. the proposal qw4qM impair the $Pacific statutory program of executive decision and to ascertain that every
fVtnqM Of 4qWAqd q@ Control direclqivis. Section 1q3qOqLqI2q& In addition, qt factor has been examinecL
mechanisms for 0q*e arms. Comniants the adoption of official policy in the The J8qUqS most explain or si-qmarize
from 0qf0qtsaqls of dies e6qf6qfac2ed am should form of rules. regulations and . ,, 1. as of research and
b solicited early mad sqhoialid be interpretations pursuant to the modeling, kind the results of qmisearcqh
carefully acknowqiatqged avid cowered in Aqdmatqistrative Procedure AcqL qtqneqded. t1saqt may have been conducted to
the ES. conventions. or other formal documwqmts aqnilqyze impacts and alternatives.
23b. Q. Wqbat 4 -land qww establishing governmental or agency qIqmaqg8qf8qt tscqhqwcal discussions of
pJ or *icy" q1w qpiaqpcnes of that policy which will substantially altar modeling methodology. baseline stucqhes.
isum? sqeency qprooriams. could qmqquuv an E0qM or odair wqa0q& are best reserved for the
A. The term '"Itioqd vass qVqiens." qisqcqludes Seca= 1q3qO4qLqIL In ad cas&L the policy, -qmianqdqix In other words. if only
of qtonstaqliqlqy 6q1 1 qdocuqmants or pn2q*raqm must have the potential taicqknica8qf8qt trained individuals an likely
f land an pleanqig Sensing and qroq"ilqi6qvqiqfqicantly a4qf4qfaing the quality of to qwqderstand a particular discussion
related nrguqlatory qmqqatumements. EAcal the qbaman envirorment in Omer to qtqhsas it sqbould So in the appendix. and a
general Pieria am qiscqinclaiqd even qdsouqgqh requqin an qEI4q& It should be noted that a qPqblis q111212qF3114111 summary Of the 4281q3flqis
they am ouqbqjeqw qW 0q6q=2qp proposal -my exist in fact as wall so by ad coo0qdasqions of that technical
Proposed Plans 6qdundid aqless be Sqlncy declaration that one exists." . should go in the text of tqbe
addressed d they qhaiiin bases Jorqualqlqy qScqdo ISO . 0qU4qL q4
isqd by the 2qVvraninqt q34qb 8qQ. When is an arts-wide or qrqm final on temnt must also contain
body in a q-n162q=qM=0qW am be* Overview EqIqS appropriate? qdw a6qpiacqy's responses to comments on
actively puqrp0qmd by qa4qlqkqna2qlqs of the A. T0qhqe preparation of an area-wide or 20q6qe qdrqoL0qfqt E6qI20qS The" responses will to
juisdqictqi8qmqs. 0qStqaqi2qgad 6qj0qi8qms. 4qhic0qh qsouqiqst overview E6qIS may be paqiqrtqiculqaqirly uqsqe(4qW pqr8qiqsqawqf0ql8qy in tobe form of changes 8qiqn die
go through phases at I II - such when 912qW20qWw actions. viewed with other qdqec8qoqneqnqt 2qt00qw8qA but specific answers to
as the Water 6qR8q@q@ 4qC8qAqmqo4qaqs Laval qrqesqsqoqno4qb0qfy foreseeable or proposed each qs8qiqpqs2qi0qf0qicaqiqnt comment should also be
A. qZ a ad C pqlqaqrquqstiqtqa2qg process s0qavqiqsqid aim Agency actionsq. haqrqs common timing or 8qi4qsqsqiqdqu4qded. T4qb4qw4qn specific: qraspo0qq24qf24qfs_0q1qa4qY
be nc0qlqi6qdq*d even qt8qiqtqoqss44q*qi 16qf16qt4qy an geography. For example. when a variety 4q1q0q01 36qWqaciqeqd in qaqsqsa12qppqendiqxq. If the
qincoqm8qp6qieqtqs. Of sqnq*qr20qV projects may be located in a o8qn48qiqs6qi0q-qm2qiq-qt6qiq-4qwqo qeqs6qpqeciqT6qi0ql8ql0qivqo4qlqumqiqno0qwqlq.
The tam q-pqoi0qLiqc8qiqes- iqnqiqt:4qhqiqidqsqe formally sqoqtt0ql8qit watershed. qiqo6q@ whom a smog of q;q98qmqmqaj2qiqmqs of the comments and
adopted staqtqerqsqesqsqiqs of land am policy as now qmqaqily tqechnolog2qi4qn may be win qtiqa28qmcqe. (See Question 8q28q9
embodied 08qW laws or qro6qgulqa0qt2qiqonqsqa. It also 0qdqevqe0qlcqipe4qd 4qdqwqaugqb federal - ding the
0q_q14q0 q, 111q1q1 0qtqhqe lqavqa0ql of doted reqquirqe2qc for
qincli.,dqeqs proposals for acqti6qm such as the oqvwv6qiqew qar q42qm.w8qi8qde 2qE8qI8qS would serve qr2qu16qposqsqeqes to commients.q)

law Federal Resister Vol. 46. No. 55 / Monday. March Z3, 1981 Rules and Regulations
23b. qQ. How does an appendix differ th: most significant aspects of an Els form to cut down on length. A line or
from q=poraion by reference? th a future researcher would need;- two for each person's qualifications
A. If at all possible. the i2qn* Of PrOqPOSGqL type Of impacts. type of should be sufficient.
aqpqps rnponies the CS. whereas environment. qgeo6qp phical area. 8qX 0. May an agency file xoqmx copies
the material which is incorporated by 'sampling or modelling methodologies of an EIS with EPA pending the
reference does not accompany the EqlS. use& This technique permits tqhe completion of printing the document?
Thus the appendix should contain compilation of EIS data banks. by A. Xerox copies of Pn EIS may be filed
information that reviewers will be likely facqilqltatqinqS quick and inexpensive with EPA prior to printing only if the
to want to examine. The appendix aces" to stored qmaterqtaqis. While a xqmx copies are simultaneously made
sho6qWd include material that pertains to keyword index to not required by the available to other agencies and the
preparation of a particular MS. Research regulations. it co0qWd be a usaftil addition public. Section 1q38qW9 of the regulations.
papers directly relevant to the proposal. for several reason& Firot. it can be which governs EIS filing. specifically
lists of affected speciqm discussion of useful as a quick index for reviewers of rimqpqdres Federal agencies to file EqlSo
the methodology of models used in the the M4q& helping to focus on areas of with EPA no earlier than the CS is
analysis of impacts. extremely detailed interest. Second. if an agency keeps a distributed to the public. However. this
responses to commentL or other Hering of the keyword indexes of the section does not prohibit xroxqinqg as a
information. would be placed in the EIS it produces. the EIS preqparqm farm of reproduction and distribution.
4q9qP42qdqix. themselves will have quick access to 6qW4q%q= an agency chooses xeroxinqg as
The appendix must be complete and q0-ita research data and methodologies the reproduction method. the EIS must
available at the time the 4qMqS is filed. to aid their faun MS work. Third. a be dam and legible to permit @a" of
qFww c6qqqjq= of the appendix must be sent keyword Index will be needed to make reading and ultimate microqfqichinqg of the
to ZPA wqdqb five capoiss of the EIS for an. 4qCqS available to fu8qNqn researchers MS. Wqbars color graphs an important
qS4qk6q% 8qV the appendix is too b4qWky to be 0qE4qS dote banks that are being to the qE8qM they should be reproduced
c6qkuqln4qw4q& it instead must be placed qin = 11q10q@tqlon of vqw2q* an Ind= and circulated with the xeroxeqd copy.
essiieqw2qh accessible locations or now when t1w document is produced q2k Q. What response must an aqtency
4q&recqdy to commentors up, a wig save a later effort when the data
provide to-* comment an a draft EIS
reqqnqwqL Nit is not circulated with the banks WIqMAMUqM opqm tional. which states that the 0qWo methodology
EIL do qPqasqtqice of Availability published . Va. 4qq 0q9 a considtant is used in is inadequate qor inadequately
by EPA gogiot so sqfqtuL giving a telephone preparing an MB. qwist the list of explainedq? qFoqRt example, what level of
qomber to enable qPotq=t0qW coniqmefttOn qPrOqPqWIqn ldq=tqifqY members Of the detail must an agency inchide in its
is or request copies aq( the cqasa0qWqting firm as well as the agency
I m2qpqdqy- N4qVA staff wqho were primarqdy qpanqn to a simple qpa0q"CqA4qM comment
I dot is not directly related to responsible? q-qki- such am aqllaqgaqd8qw
2qp2qqmradqws of 4q*@ 0qMS should be A. Section 8qL8qW8qL8qV requirgs A. Appropriate responses to
. P I - 'by re0qf0qtreqwq& This wo4qWd qWqiqmtiqficat2qWo at the noq@ and inments are dumbed in Section
umqbods 3qdqw EqISqL research papers in q4naqlifqicaqdows of persons who won 13q0qL4. NqaqM4qwqny the rquqpqpri4q"0q&sqhouqld 6q6-1,
to q01111qmqi lqiqkertilr. technical primary respoom8q" for preparing the qN*Wt in chanqms in 0qf0qf0qie-tex-t of tq-h*Eql4q&
qSockqgroqa4qW popes ar other ma qlefqfal US or siqgqaqficust becql2qWound qppqm IqM% 4q26q@q1-qjqjqparsqte @now ;8q@Q8q@
qdw ogosiost with Acqbqmcaql training iqwqJudinqg bask components of the back- of the document. qauqL@
coodd no in evaluate the analysis of the out-i This moms that members of 7qw2qT CqY Must I what-2qWrosponqsqe
cy qM0q"q' I
Tqbqm mom be made available. a conqsiltqinqg 4q&q= preparing material that qwao@ an a Aqlqiqpqpcqxqsecqiqdes at qno
ju
su8qfi tqivqi rqiq"onse to a coqmqmeqiqit to
aa6qw by qoquqg the literature. ftiqmqishing is to become part a( the EqIS must be tantivqi 4qZqpo,@q@
n0cqu$aqr
c4qqq@ to cqmaraqi locations. or sending identified. The US should identify the" - y. it must explain briefly why.
=8q*qW d 11q1 10 cnimentors upon individuals eet though the consultant's -A0qiaqgeny is nq6i-uqidaqi-aii qbqUqlifqfan
contribution my have been m6qWqifid by to issue a lengthy reiteration of,its
Care moo be tqhqm M aqlql cases te dqw agency. methodology for any portion oqf an EIS if
qdinostqmAnaql =="rated by 0qM 8q4 qSqb*4qWqd r6qoncqy staff involved the only comment addressing the
. scid the occasional oqpqpefidqix in qmvqwwqinqg ggiqd O6q&2qW0qW the E4qS aim be methodology is a simple complaint that
the does q=ot accoinqpany the 0qM4q& am in a8qW4qWad in the be at pqnparoqn? the EqIS methodology is inadequate. But
8q%q= airatqie0qWe for tqhe full A. Aqaqmocy pqwq=q=4qW who woqt basic aqlloncies must respond to commea0qm
2qPqAM0qk coqmqmqmt penoqd. qPonasi0q" aq(qdqo 0q0q5 or significant however brief. which are specific in
2&L 8qQ. Now detailed qa0qw an 8qW cqgrmoqd q; j must. o(course. be 0qW2qar-C-S"4qTqEUq-8q6 of age q3q3q2-6qmoqlogy
irides he 2q=ftqfqted. Tqbw 0q00q5 should also list the For example. if a cofq:qm4q%q: 0q@ouqo an an EIS
A. The IDS qizidex sqhdd hors a qI*6qW q1
t6qan4--ql liM whravqieqweqdor said that an agency's air quality
of qdoqwql SU0qTIWqM to qfoq@ an are" of 6q"ted On sqwtaiqmqm 6qAqispersion analysis or methodology was
the EqS of --#souqbqla I to any 8qVc Q. qHqoqw ---A inform tic sqh0qWd jinadoquate. and the agency had
reader. It cannot be rstrqicnd to the be included an each person listed? included a discussion of that analysis in
most qmparan qwqpq" On tqh other A. The qUso of pqmoparers should the US little if anything need be added
has& it q=ad not qidqm2q* every isormaqlqly mat - I two Pagesq. qiin response to such a comment.
qcqoqnqcqeqiqvqa6qd2qlqe term or phrase in thqe E0qlS. If Therefore. qa12qpqso0qm must determine !However if thqe commqentqor said that the
an 12qWrqicy believes that the reader is which individuals bad primary dispqerqsiqo8q@ analysis was inadequate
0qm0qwqonqabiy likely to be interested in a q-qaqspoqnsqi0qtqiqt6qlitqy qoqad need not identify because of its use of a certain
topic. it should be in6qdu6qdqedq. individuals qwqwqb Iqftqnoqo involvement. The computational technique. or that a
24q9b. 40qQ Is a keyword index required? iist of prparqeqss should include a very spqorqsion analysis was inadequately
CC
A. No. A keyword index is a qreld4qf4qively brief idenqt0qiqf2qi - qaq(the individuals xplainqed because computational
short list qe0q(qdqeqKriptqivqe terms that involved. their qqquqa16qUcaqtionqs (qexqp00qw8qisqe. techniques were not included or
0
identifies the key concepts or subject professional 2qdqiqoc0qip2ql0qineqs) and the specific refqerqencqe20qt then the agency would have
'I
areas in a document. For qexaqm0q;6qlqe it portion of-the EIS for which they are to respond q;n a substantive and
m
cqouqi4qd qcqoqnq3quqsqt of 4q24q0 terms which describe rqespqoqnsqib8ql0q& Thu may be done in tabular qsqan0qin8qg2qful way to such a comment.

Federal Register Vol. 48. No. 55 / Monday, March 23. IqM / Rules and Reglatom 18q65
If a number of cm fqale ,
Zen" qy @j_ alternatives that were discussed in the preparing an adequate EIS that
qy rou t
qge - 0 tF
or very similar. a ncies ma r u qiqiq;8qFqp4qUlqfqfqoqhteqr-i0qtsqtqr qwqjqU not be consqklers, all alternatives.
comments and prepare a sqingi r needed. 'For example. a cq6qm0q&*qnqTqd-r aqn a 3q1qL Q. When s_q5qgoperatqinqg agency
forecqh group. Comments may bqle draft EIS to designate a wilderness arit 8qf8qf8qitqh qjurisdiq;qgq9n by law intends to aqdaqPt
y within a National Forest might
a ri e-ciqa 11 a liesid agency's 2q05q-qrid it is not
Imm qfri if they are ep
qw . The comments or- reasonably identify a specific tract of satisfied with the adequacy of the
summaries must be 4-tqia-cqh-qid to the EIS the forest. and urge that it be considered document. may the cooperating agency
regardless of whether the agency for designation. If the draft EIS adopt only the part of the EIS with
b4liv s they merit individual considered desqigqhatqion of a range of which it is satisfied? If so. would a
P
discussion in the body of the final EqIqS. alternative tracts which encompassed cooperating agency with jurisdiction by
Z9b Q. How qfqt2qM2qW8qW-x6qpq=0qrre%,pvqhqd forest area of similar quality and law have to prepare a separate EIS or
to a comment on a draft EIS that raises a qqual
have to be prepared. The agency could disagreement with the lead agency?
ItitY. no Supplemental MS would 0qMS supplement covering the areas of
considered I t e draqLEqISq? fulfill its obligation by addressing that P- Generally a cooperating agency
A. This question might arise in several specific alternative in the final EqIS. may adopt a load agency's EIS without
possible situations. First. a commeqtqdrq-
on a draft EIS may indicate that there Is As another example. an ES on an recirculating it if it concludes that its
a possible alternative which. in the urban housing project may analyze the NEPAqmquirements and its comments
gency*s view. is not a reasonable alternatives of constructing LOW. 4.q0q0q0 and suggestions have been satisfied.
alternative. Section 1502.14(aq). If that is of q68q= ui4qf4qt. A commentor on the draft Seqdion 138qMq11(s). (c). If necessary. a
the case. the agency must explain why ES might a" the consideration of - m qp @rating agency may adopt only a
the comment does not warrant further . constructing q3.qO8qW units utilizing a portion of the lead a8encys EIS and
agency response. citing authorities or different configuration of buqildin6qp. This may reject that part of the 6qOS with
reasons that support the agency's alternative is within the spectrum of which it disagrees. stating publicly wqEqy
position and. if appropriate. indicate alternatives aqlqmady cons0qal0qmi4qt-and. it did aq& Section I2qW4q&3(a).
those circumstances which would trigger qfqfmtqieqfiqirqi@ could be. aqd8qAqm A coopqwatitiql agency with
agency reappraisal or further response. qfqin&qI VS. 4qiq!q@ Iiiirqfaqidqicqtioin by law (a.#.. an agency with
Section 1q5q03.4q(a). For example. a A fourth qpoqssibqfqlity is that a qinideqpeoqdenqt Ito responsibilities with
commntor on a draft EIS on a coal fired coqmmentor points out an sitipqoatqivp an
power plant may suggest the alternative which is PA a variation of the qproqpos0qw '-d-ta legal obligation to compile
of using synthetic fuel. The agency may or of any qfteqmtqjvo discussed in the wqfqtqhq@ NqZPA. qT0q=fore. if the cooqpers tq'nqg
reject the alternative with a brief draft impact statement. and is a apacq) determines that the EIS is wrong
discussion (with autqhontiesqi of the ressionabqle alternative that warrants or qhumqfeqquate, it must prepare a
unavailability of synthetic fuel within qm 4n agency response, In such a Case, suppqleimenqt to the 0qMS. replacing or
the time frame necessary to meet the tqhe epoxy must issue a supplement to adding my needed information. and
need and purpose of the proposed the draft MS tbat-discusqm this now qm4qw circulaits the supplement as a qdr1ift
facility. aqfqternistive. For example. a commentor for qpeqblqic: snid agency review and
A second possibility is that an agency on a draft qEIS an a nuclear power plant Cq@L A final supplemental EqIS
may receive a comment indicating that 0 qmqn6q&t iniqgqgeqn that a reasonable qwvild be sqqtqw before the agency
particular alternative. while reasonable. - covqild t4qWqw wqoqm The adopted portions
should be modified somewhat. for aqfqtarnaqdve for meeting the proqje4qded of qdqw lead agency EIS should be
wed q(qw powl. would be through peak cirqmist with the supplement. Section
example. to achieve ceqnsin mitigation qtqmqd management and energy
benefits. or for other reasons. If the q1q3q08qWq(qbq@ A colop rating aqlency with
modification is reasonable. the agency CqMqWVatiOG qPrO6qVIRqMA. If the qPOTOUtting linquqdqiciiqjoin qbq7 law will have to prepare
should include a discussion of it in the agency qMs 0qWqled to consider that its own Xacord oqf Decision for its acic n
final EIS. For example. a commentor an OPPmeqh u the Driaqft 0qES, and the in W it aqmt explain how it reachec
a draft q93S on a proposal for a pumped approach cannot be dismissed by the its conchisqions. Each agency should
storage powes facility might suggest that 6qwqmqi as iscreasonabqle. a supplement qmqp6qWqm qbcrw and wqhy its conclusions
the applicant's proposed alternative to 6q60 Devitt 0qM4q& which discusses tqhat differ. irf that is the case. from those of
should qbe enhanced by the addition of aqlqborsiatqiqm --at be prepared. (4qV other species which issued their
ctn reasonable mitigation mass necasisery. din same supplement should qRacorde of Decision earlier.
iqWdiqg the purchase and selasqide2qM Alm discuss substaintial changes in the An a2qpocy that did not qwoperate in
wtqWf presqme to substitute for the qP OP me 'i sctqlio or significant now 0qpqwwation of an 4qES may also adopt an
tract to be destroyed by the project. The cwcqwamtaqmqn or information. as 4qES or portion thereof. But this would
modified alternative including the by Section q1q32qM9q(c)(1) of the arm only in ran instances. because an
additional auti6qptqion aqwasures should 3111qW. UUU&.) s6qpsLcqy aqdoqp6qf6qtqg an 6qES for use in its
be discussed by tqhe a0qpsixy in the final 8qN the new alternative was not raised oq" qdeqmsion normally would have been
EIS. 6qy the coomqmenfor during scoping. but a - 9 rlq; rati6qf6qt agency. If the proposed
A third slightly 8qd4q94qf4qaqmqeqn0qt possibility is have bqe8qm cqommqenqtoqrs mqa2qy find action for which the 20qES was prqeParqec8q! is
that a cqorqtqimqeqnqt an a drqa4qh ES will rw00qw /that t6qbqay am qu16qq2qwqrqsquqasivqe in their substantially t4qhqe same as the proposed
an aferqnqst3qvqo which in a minor qe20qf20qfqa00qf00qt tqo have their suggested action of the adapting agency. the EIS
variation of me of qt6q1w qa4qltqernqaqt0qiv8q" qa0qlqt4q"2qU0qtiqvqe analyzed in detail by the may be qa0qdqo2qptqa0qd as long as it is
qdzqw2ssqed in the *aft 0qE20qM but this agency. 0q1 0qloqo4qnqvqeqs if the new altqemativqe recirculated as a final EIS and the
V&na t2aqlq" was q.q1q0q1 given any is discovered or developed later, and it agency announces what it is doing. This
consideration by qt2qhqa qa08qWqeyq. In such a cook no reasonably have been raised would be fqolJqowqed by the 30q-4qday review
case. :qhq* agency should develop and durm2qg the 0qux40q" process. than the period qeqnd 8qiqsiqsuqaqncqe of a Record or
e4qJZate the new aqlqlqe4qmqat0qiveq. if it is qa6qr8qoqc8qy quqni6qm address it in a Decision by t4qh adapting agency. If this
reasonale. in the 6qrmqa2ql MS. If it is squpp6ql4qmeqnqtqsqiq,6ql draft MS. 6q7q1qhqe agency is, proposed action by the adapting qa8qgqeqiqlqlq.q-Y
qualsialtqivqeqty qinqth8qm the qo12qWtqn6qi0qm8q-of in aqn8qy cue.. ultimately responsible for is not qsqiqs0qbqaqtqeqnt8qially the same as that it'

18036 Federal Rgistr / Vol. 46. No. 53 1 Monday. March 23. 1961 Rules and Regulations

the EIS (i.e.. if an EIS on one action is criteria in Section 15OL9 cmpl the ROD itself. either in the Federal
being adapted for use in a decision an preparation of an EIS supplement. Register or eiswheii --- I
another actqionql. the EIS, would be If an agency has made a substantial q-q:0q46qT Qq: qNqfay the qTummary section in
treated as a draft and circulated for the change in a proposed action that is the final Environmental Impac
normal public comment period and otqhar 'relevant to environmental concerns. or qif Statement substitute for or Col........
procedures. Section q1q3q08qL8qAti). there are sqiqgnificanqt'now circumstances agency's Record'of Decision -
31 a. Q. Do the Council's NEPA or information relevant to A. No. An environmental impact
regulations apply to independent environmental concerns and bearing on statement is supposed to inform the
regulatory agencies like the Federal the proposed action or its qiMP&CtL a docisionmaker before qtqhe c4qWcqiiiq6n-is
Energy Regulatory Commission qJqFqERC) supplemental EIS must be prepared for made. Sections q10q24qM4qY 1q34qM.qL The
and the Nuclear Regulatory an old EIS so that tha agency has the qCouncirs regulations provide for a 30-
Commission? best possible information to make any day period after notice is published that
A. The statutory requirements of necessary substantive changes in its the final EIS has been filed with EPA
NEPA's Section 102 apply to *"Alql decisions regarding the proposal. before the agency may take final action.
agencies of the federal goverment." Section q1q3qO8qLq9q(cq). During that period. in addition to the
The NqEPA regulations implement the 33s. Q. When must a referral of an aqgqancyps own-inqiqiiqial fine*
procedural provisions of NEPA as set interagency disagreement be made to public and other agencies can comment
forth in.NEPA.s Section q12q02q1 for all the Council? on the final EIS prior to the agency's-*
agencies of the federal government. 4qrhe A. The Council's referral procedure is 8qWqLactqion on the proposal. In addition.
NEPA regulations apply to independent a pre-decision referral process for the Council's regulations make clear that
regulatory agencies. however. they do interagency disagreements. Hence. the requirements for the summary in an
not direct independent qm6qviqlatorqy Section 1q5q0q4.3 requires that a referring EIS am not the same as the
agencies or other agencies to make agency must deliver its referral to the requirements for a ROD. Sections
decisions in any particular way or in a Council not later than 23 days after 1q3qO2qL12 and q1q30q5.8qL
way inconsistent with an agency Is publication by EPA of notice that the 3q4c. 4qQ. What provisions should
statutory charter. Sections 1q300.3. q1q5qrq2-8qL final EIS is available (unlqm the land Records of Decision contain pertaining
1q507.1. and 1q32qW-8q1 agency grants an extension of time to mitigation and monitoring?
q31b. qq. can an Execlude Branch under Section 1304.q3(b)). A. qJqAed agencies "shall include
agency like the 13q0qparlqmsot of the 33b. Q. May a referral be made after apqpops atsi conditions [including
Interior adopt an EIS peopared by an this issuance of a Record of Decision? mitigation measures and monitoring and
4qX2qVqdant regulatory "am A. No. except for cases when enforcement programs in qgro
such as agencies provide an internal appeal nts.
procedure which permits sqimultanoqm permits or other approvals ** and "I
A. If an independent regulatory filing of the final ELS and the record Of "condition funding of actions on
agency qaqmqb as qFERC has 6qPaqpared tn decision qCROD@ Section 1q5q0q1.q10(bX2). mitiption." Section 1q52qM.3. Any such
EIS in connection with qiqtis 46qMOval Of 4 Otherwise. as stated above. the Pon l- 8 measures that are adapted must be
proposed proqpst0qz an 0qWo ie a pni-docisio referral procass. explained and committed in the ROD.
agency q(*.qS the qDieras d Lod Refmqda most be made within 2q3 days The reasonable alternative mitigation
Maaqgssent in the 6qDePquqbqmt of q0q0 after the notice of availability of tqhe measures and monitoring proqsqmMs
interior) may. in accordance with Phial qEqIS, whereas the final decision should have been addressed in the draft
Section q1q34qm8qa adopt the 0qE0qS or a (ROD) qmay not be made or filed until and final EIS. The discussion of
portion them( for its isse in considering after q30 days from the notice of mitigation and monitoring in a Record of
the same propasaL In sincqh a case 0qte availability of the E4qM Sections Decision must be more detailed than a
6qmS amt. to the eaqdisqhiculas of the q1q3q04qUq(qb). qI8qM4qLq1q0q(b). If a lead agency general statement that mitigation is
adop4qw6qq aqlsqmicqy. awe the standards for bag granted an extqmion of time for being required. but not so detaiied as to
an aqdequete stoosise4qw mqdqw the 6qK-6q302qA another agency to take action an a duplicate discussion of mitigation n the
re6qv6q"Uqms q(. I r, and quality referral. the RO0qD may not be issued EqIS. The Record of Decision should
at qoqwqlqyins of al6q"qMovisqi) Mid qMqWqA and the extq@, he qir9d. Contain a concise summary
aq)q@q4 identification of the mitigation measures
q(R4qO4qDqSq)-be made p , a q00q00* which the agency qhas committed itself
an
setisqly the adoqpit2q" nip q)'a coqmqn4qmta 3q4q4. Q. 0qM4qW 0q;4q9
and su2qarstooq& It 6q** iodqpanqdent a ova 8qM2qa
regulatory agency bob In comply wqAtqb qtqhqi4qCqkqi6qiqmads sivailahle to adoqpit.
the.q48q0A ro0qpqieqfqtomL *@COOP a 110qjor A. Under the regulations. agencies The Record of Decision must also
adoqp2q" agency my Ind 6q60q0 it is qml4qa prepare a -Concise public rem of state whether aqlql practicable mitigation
unabqin to adopt :be 0qEL 60 forcing the qdocision.' which coatains-0qf0qt8qnqioments measures have been adopted. and if not.
qProqperalqi on *(a view 4q= dir as specqdqleqd in Section 1q30q52qZ This public why not. Section 158qM.q2qtcq). The Record
qsuqpqpqieqment for do aiiinse action. The rem may be integrated into any other of Decision -nust identify the mitigation
NqEqPA reqgulations vionin node sqp8qOcabqle docitqioe rum prepared by the a6qpncy, measures and monitoring and
to all federal aqposciqn is arqdqw to avoid or it may be separe to if decision enforcement programs that have been
this rqu0qWqL and to acqbqifqt - *q61 .dotnananto an not normally made "loved and plainly indicate that they
application and of the NEPA 6qpqu4qW8qic. The Record of Decision is are adopted as part of the agency's
8qP qMqC a intended by the Council to be an- decision. If the proposed action is the
8q308qZ Q. Under what 08qdqr8qm4qs0qmaqo4qm do qequqvqwqaqnqimqe24q" document (even though it issuance of a 6qpqeqr04qmt or other qapprqovaL
old 6qEISs have 6qf6qt qDqe 4qN08q*8qP6qWqa8qmtqe6qd before is not 8qoql2qp6qf6qiqcit0ql2qY mentioned in the the specific details of the mitigation
taking acquoqn on a prqo08qwqaqa20qf20qf definition aqifq"qenv4qiqrqoqn8qmqeqa24qW document" measures shall then be included as
A. At a qn0qg0qoq_4q98qf q' I if the prqo8qpo4qW in Section 04qL8q98q0,0q132q4 Therefore. it must be appropriate conditions in whatever
has not yet been 6qii2q@q!16q" or if the made available to the public through 6qgq;rants. permitsq. 24qkndin2qg or other
EIS concerns an an@" Prqo08qws6qmq. E0qSqS a8qp8qpqrqo36qt52q@q)0qI2qiqc 1q1q1q00q0q00q"qs,4q"2qq4qu48qm by approvals are being made by the federal
that qarqe0qmqtqorqe 6qdu4qm 6qkvqa4quqs aid should be 4q-qQq.- - 6qwq.8qaqvqeqr. there is -to agency. Section 18q305.3 (a), (b8q). If the
carefully rqeqeqxqa4qmqa0qw0qd to 6qd6qF12q&6qM4qM if the I for 2qpqu0qb0qf0qica8quqdqaq-24qd proposal is to be carried out by the

ta Aelpsr @ o. 46. No. 55 / Monday, March 23. 1981 Rules and Reglatir ItqM37

federal 48CY itself. the Record of three dfid hmti (1) It briefly determination whether to Prepare 'An
Decision should delineate the mitigation provides sufficient evidence and 0qMqSq?
and monitoring measures in sufficient - analysis for determining whether to A. Public review is necessary. qfcIr
detail to constitute an enforceable prepare an EIM- q(2) it aids an aqgoncy-s example. (a) if the proposal is a
commitment. or incorporate by reference compliance with NVA what no ELS is borderline cam ie. when there is a
the portions of the EqIS that do so. necessary. qLe- it helps to iqdqnqt2q* better reasonable argument for preparation of
- 34qd. Q. What is the enforceability of a alternatives and mitigation measures. an qEqlS;- (b) if it is an unusual case. a new
Record o4q=e2qdqe_qionqf and (3) it facilitates preparation of an kind of action. or a precedent setting
A. Pursuant to generally recognized 6qVqS when one is necessary. Section case such as a first intrusion of even a
pncqipqles-of federal-ocirrqunistrative-law. , I2qWq6.q9q(aq). minor development into a pristine area:
agencies will be held accountable for Since the EA is a can2qdse docuqmqmqL it (c) when them is either scienqtqfqic Of
preparing Records of Decision that should not contain long descriptions at public controversy over the proposal: or
Conform to the decisions actually- made detailed data which the agency may (qd) when it involves a proposal w1iich is
and for carrying out the actions S8qV forth have qsatheried. Rather. It should contain or is closely siqmila to on@ which,
ithe Records of Decision. This i based a brief discussion of the need for the normally requires preparation of in EIS.
on the principle that an agency must proposal. alternatives to the pi saL Sections 6qM.q4q(s6qpq), 2qu8qN.2qV. Aqgenc@ies
comply with its own decisons and the environmental impacts of the also must allow a period of public:
regulations once they are adoptod. Thus. proposed action and alternatives. and a review of tqhe FONSqI if the proposed
-q)@;e terms of a Record of Decision are list of agencies and persons consuqitecqi, action would be located in a qfloodplain
@qfq=qesble by agencies and private Section q1q58qM.9(b). or watlqud. LO. II2qM Sec. 2q(a)q(q4q): E.O.
parties. A-Record of Decision Can be While the regulations do not contiqan lion Sqm qZq(b).
used to comqVeql coqmqPqliarice with q?r page limits for EA's. the Council has q38qL 4qQ. must qCEAsq) and qFONSqIs q@e
"ecution of the mitigation tn0qwqiLres generally advised aqgira2qdes to keep the qms0q& public? If so, how -hould tqbi&be
idanufied the 0qnin. length of EAs to not more qthsin done?
35. Q. How long should the N0qEPA approximately q1q0-q1q3 palm some A. Yes. they must be available to the
process take to complete? agencies expressly provide page public. Section 1q5qO2qU requires agencies
A. When an EIS is required. the qg. q10-q43 pages to the case to involve the public in implementing
process obviously will take longer than guidelines (a
when an EA is the only document of the Army Corps). To avoid undue their NEPA procedures. and this
prepared. But tqhe Council's NqEPA length. the EA way incorporate by qinclucqles public involvement in the
regulations encourage streamlined reference background data to support its preparation of 0qEAs and FONSq13. These
review. adoption of deadlqin#L concise discussion a( the proposail and an public "environmental decunients"
elimination of duplicative work. eliciting relevant iIIIIJIL under Section q1q54qMqG(bq). and. thomfore.
suggested alternatives and other 3q6qb. Q. Under what circumistances is a agencies must give public notice of their
comments early through scopinqg. lengthy EA appropriate? availability. A combination of qmithods
cooperation among a6qrqMCqi*L and A. Agencies should avoid qproparqknqo may be wood to give notice. and the
consultation with applicants during lengthy EAs except in unusual cesse. methods should be tailored to the needs
project planning The Council has where a proposal is so complex that a of particular CAROOL Thus. a qFecqimraql
advised agencies that under the ne concise document cannot m8qM the Scala Is6qo4qmqm notice of availability of the
NEqPA regulations even 2q. C,q.qPq,w,. of Section qI8qW2q&qIj and whom qit is qdoct-ants. coupled with notices in
energy projects would require only extremely difficult qfqb clqtermqine whether naqUcqasil publications and mailed to
about 1q2 months for the completion of the proposal could have significant interested national groups might be
the entire EIS process. For most major Onyqwonqmental effects. In most cases. appropriate for proposals that are
0qs
ctqions. this period is well within the however. a len2q&y qRA indicates that an national in scope. Jacal newspaper
12qlanninqg time that is needed in an, EIS is needed. noticats may be more aqpqproqpristd for
p qy
eVITIL apart from.q4q70qUA. q3q7a. Q. What is the Iqmql of detail of qm6qoqmqmql or sqiqte-sqpeclqac proposals.
The time requLred for the preparation 4qWrmistion that must be qinchuqlard. in a The objective. 4qMwever. is to notify all
of program EIS may be greater. The finding of no significant impect qIsqaqwastaid at aql2qUcteqd qpartqieq& qif 0qIqis is
Council also recognizin that some 0qTO6qNqSqIqI? not being qw4qAqwve4q& qdqwn the methods
projects will entsuql 0qWqflcuqlt lonqg-tqoq= A. 0qMqw PONS? is a q& P - I qin wqhqi should be reevaluated and cqhal8qmqiqeqd.
planning and/or the acquisition of the agency briefly sorqpqlaqdne q1q6t reasons Repeated failure to reach the interested
ceain data wqtucqb oi necessity will why an action will not have a oql6qptiqfqicant at effected public would be qinteipreteqd
require more time for the preparation of Offecqt 00 that q1110VAL111 qmvqiqnzuqwnt A" an a violation of the regulations.
the EqIS. qLndet-cqf. sacto proposals should therefore. why an 0qEqS will not be 38qL Q. Can an ZA and qFONSI be uqnd
be given more time for the thoughtful preparecL Section 1q3qC8qL13. The finding to qwaqpos is4qdomeable mitigation
prq;aratqion of an US and development itself seed not be dqu4qded. but must qm4suqms. tunquqitorqinqS proqgranis, or other
of a decision vqAqbr4qA faqm NqEqPA's succinctly outs the masaicts (at deciding requqirqmentq& even though there is no
Substantive goals. that the action will have an significant requirement qin that regulations ill our-h
For cases in w24qkqmq:4qb only an environmental effects. qsqiqad. it relevantq. cam for a formal Record of 4qDqeq:qision?
environmental qaqmqpqoqsqa4qmqenqt will be - must show 0qw4qh2qiqc28qA factors war 4qwqe2qi52q04qtqe8qd A. Yes. In cam where an
preparedq. the N4qI24qW16qA pqr4qeqa4qm should take most heavily in the determinationq. In qaqsqsqiqsqiqsqsqimqent is t4q6qe
rko more than 3 qtqoqoqeqs4qt0qbqa. and in many addition to this qs04qwqaqsqnqam0qt. the 0qFOINSI appropriate 2qnv2qiqrqo2qmqeqnqtqaqll do4q=qL4qmeqnt.
cases substantially low as part of the must 8qw0qlqaqc4qbqL 8qr42qamqiqsqtqr2qiqzqe. at attach and then still qaqsqaqty be mitigation 8qmqeqtqosquqrqoq-qs Oqr
liaqmqr.qa6ql analysis and approval 0qp4qr8qx8qmqsqs incorporate by qrqe8ql8qemw8q& Use qaltqe8qmat6qivqeqs that would be desirable q!o
for the qaqcqrqoqn. qsquv8qirqcqlqaqimqoqeqn0qta4ql qaqsqsqeqsqsqa2qwqa4qL consider and adapt even t4qbqoqu48q*qi the
12qXaq- Qq. Hqow long and detailed must . 37bq. Q. What an the criteria 4q14q10qcqr impacts of the propose will not be
an environmental assessment (EA2q) be? dqeqcqk4qlin6qg whether a 8qFONSI should be q.q.qg6qi20qpql4qf0qlqcanL- In qsu40qa Wasteq. t4qhqe EA
A. The qeqnv4qiqr4qwqiqtqs4qwqi16qW assessment to a made available for 6qpub4qt0qic qi8qw8qww for 30 should include a discussion of these
conqcqsqe public dqoqcuqsnqecqit which has days before the qs6q4qaqnqcy'qs f8qiqsqiqaqll measures or a4qltqa8qm0qt8qivqes to 'assist

IBM Federal Register / Vol. 48. No. 55 / Monday. March Z3. i9qm Rules and Regulations

32q:
gncy.pling and decisimakig" public comment before taling action. Savings Act. as amended (the Act) (13
ncy's compliance with Section 15qM.4()(2@ U-S.C 2q=c)). Section 502() provides
qJNqEqPAqJ when no environmental impact Similarly. quoping may result in a that a manufacturer Of Passenger
statement is necessary." Section redefinition of the entire project. as a automobiles that manufactures fewer
qIqS4qM-3(b). 1q5q0qL9q(a)(2). The appropriate result of mitigation proposals. qIn that than q1q0,q08qW passenger automobiles
mitigation measures can be imposed as case. the agency may alter its previous annually may be exempted from the
enforceati,1q6 permit conditions. or decision to do an EIS. as long as the generally applicable average fuel
adopted as part of the agency final agency or applicant rasubmits tqhe entire economy standard for a particular
decision in the same manner mitigation proposal and the EA and qFONSI are model year if that standard is greater
measures are adopted in the formal available for 30 days of review and than the low volume manufacturer's
Record of Decision that is required in COMMqWnL One example of tqhqis would be maximum feasible average fuel economy
EIS cases. what* the size and location of a and if the NHTSA establishes an
4qa. 0qQ. If an environmental assessment Proposed industrial park am changed to alternative standard applicable to that
indicates that the environmental effects avoid affecting a nearby weqdand am& manufacturer at the low volume
of a proposal are significant but that. We Oft 01-VU FUqW 3-10q4L 8q0 aW manufacturer's maximum feasible
with mitigation those effects may be sLAJqW COOK V1 average fuel economy. Section q502(e) of
reduced to less than significant I&VOIL the Act (1q3 U.S.4qC 20q02(e)) requires the
may the agency make a qfqtnqdinqg of no NHTSA to consider.
significant impact rather than prepare qDqEqPARqTME0qW OF TRA2qmsqpo6qRTAT4qM (q1) Technological feasibility;
an EIS? Is that a legitimate function of (2q) Economic practqicabqillqt2qr,
an EA and scopinqg? qH-No 0qW q!q%4qOwaqy Tnktft q30q09tqy
8q& Mitigation measures may be railed Aqdmqitqosqtraqtkqa (3) The affect of other Federal motor
upon% make a finding of no significant vehicle standards on fuel econom2qr, and
impact only if they are imposed by q4q9 qCF6qP qPqWqt Sal (4) qT0qU need of the Nation to conserve
statute or regulation. or submitted by an qjqoe8q*0qw qmqa qLqV4qm q7q7-0qf0qt qNouq" q11 oner6qv.
applicant or agency as part of qdqw This final rule was preceded by a
anginal proposal. As a general rule. the qPqwisas0qVes AA6qf6qtmoqb0qf0qt Avoi Fuel notice announcing the qN8qN4qM*s
regulation contemplate that agencies 4qDqoqwtqv qSqhow8qbra2q* Exemption From proposed decision to grant an exemption
should an a broed apqln cqh in defining AWqWO0qW qFW2qW Economy qSqOMqU2qMrqds to Excalibur for the 198q" and 1q92qW model
6qMwaoqm and 6qdqwuld no( rely on the years q(q4q5 qFqR SON& )uly 31. q2q98qW). No
qG4qNIqLqM National 0qHqi8qAqwaqy Traffic
qPoqwbqiqfqitqy of mitigation as an excuse to Safety Administration. Department of comments were received during the 43-
avoid the 0qCqS racqpurement. Sections day coniment period.
qIqS4qM2qA 8qUQqL8qV- 6qTrftoqpo0qnaltqlaq& Based on its conclusions that it is not
If a pn6q*o8qW appears to have &0q&qwqm AqCT0qOqM Final decision to grant technologically feasible and
eq0qsicts Li would be significant. qM6qW P qF 'an qbqm fool economy economically practicable for Excalibur
cqWqUqW qwitqi6qption measures am the seadarqds, to improve the fuel economy of its qI8qM
Am *q6 qp - A daring qdqw xx4qvinqg or qEA qSkIqMAq". ql2qu2qb noqtqics exampts and 1q92qW model year automobiles above
806q4qM qdqw qCqUSUqMqM Oq(Nscqh qPq=4q4q46 2qEqmq*6qWDqw Antoqmobqat Corporation an average of 11.q3 and q1q&q2 mpqg.
miti8qpbois does not oqbrqnsts, the aseqd for q[qpjq=4qWYqwqj qIqnqut tqhe generally respectively, that other Federal
- rqm Tqbareqfqi3qm if scoqpqinqg or the qFqA aqpqpqbcabqle evem6qp 8qW *qmoqmy automobile standards did not affect
xqkqnuq6qw cartam qmiqttqgabon pasqubwtqiqa sitanqdards of 8qU8qA qmqiqlm pr gallon qfmqvqw achievable fuel economy beyond the
wdqb0qW qh i q$ qdhe Ba0qMqM 0q( tqbt Ov W4qa and 208q4 qw4q% qior We ad I= model extent considered in this analysis. and
2qp -1 -1 qitoaqlqL qdw agency should . that the national effort to conserve
cannoor to Eq3q5 q1 P m P and subase , q*0 year qpmqw@0qW a0qf0qtoqmoqbqilqm
qmd this qPOO0qM6qW atqitqaqgoqtqbaL tooqpoqmwe4qO, qmd s0qwaqbqlqishes, alternative snerqjq@ will be negligibly affected by the
6q=qmqd is q-q1 repqw ad sqaqwdarqdL q1q3qm alternative standards are qgranunqg of the requested exemptions.
n2qj ot0q" in 6q&@ 2quqn model you and qILq2 this agency concludes that the majumum
coqmqmqost. q7q118qW q1q01 "men" to 8q60q0 qn0q" in the IM qnotqiol year. feasible average fuel economy for
q6C2qW001 is baud on an dig Excalibur in the qiqg8qn and qiq9qeqa model
,owe qhw3an said qd0qw 0q6% fall qN0qUA eal0qm q7q1qW qCqoqmqpqtqiqoqn am alternative
qProoqme qW8qA -auk in I bqle sqtaqndan8qk 4qW bulk in this notice apply years is 11.q5 qmqpqg and q18q&q2 m6qn
qu0qm8qpkqiqnst anq"qWorq" thrqm6qo the Record A do WqS sqwqd I= model qyearL respectively. Therefore. N2qH6q7`SA is
a(4qDec"11006 NO PqUNTH4qM MPqGq@Tq= C4qf4qt7ACqr exempting Excalibur from the generally
qVqAqbort Moetria. 0qOqMce of Automotive applicable standards and is establishing
in q== 8qWouqncies. qWqhoqn 0q68 alternative standards of 1q1.q3 mpg for the
qi2p4qa 90 - q9 1 q- a q11010 4q&N Fool Economy qshenda6qMq& National 1q9q7q9 model year and q:q6.q2 mpg for the
b to qiql is to do%* 6qMq#qWwaqy Tn8qAc Saqteqrqy Administration.
do 8qP M qP q@ ;J&o0qw qkwqhoqd2qbi qdqw 8qmoqsew 1q1i Swum 0qS2qW. 6qWaSqhqLqgqlaqm I= model year.
qmpriaL 6qte oqras6qq qM6qW 0qOqw isqlqy as 0qD-4qC q28qM In consideration of the foregoing. 4q9
xaqmwervis is A@- , , 911100110q"T"0qM The CFqR Part S8qn qiqramndod by revising
man* would am be National Hql8qgqb6qwqey Tqzqi0qf0qf0qic Safety I qS3q1.q3q(b)(q3) to read as follows:
2qgqmqrqwqa00qw 32q*6q12q@q. qaqm2qbqera qasqt 6q"52q02q6cqa8qdoqaqt for A0qd4qmqiqnqisqtrqaqo4qm 36q"2qf20qM8ql to qC2qa8qm2qp0qt2qi4qn4q!, 14q54q3q108q4 16qf16qtqelo2qm8qmqiqt2qte04qf4qtw04qOr4qdqs,
a 2qP00q 4q1qW a am& 0qb2qla6qirqe 4qd8qm a baud qEqxqoL0ql8qibur 4qbom 20q64 generally ap6qpl2qica qe q0 0 q0 a
as a qh, q" qcoqs4qmqorqtcqhqaad to 4qb4qw20qw ask average 8qW scummy standards for the (b) 4qThllowing manufacturers shall
2qiqaqz0q@ to 2q;4qm 8q= a08qo4qqq"00q* down I08qM and 120 ran" yew sad
qsqtqrqeqo4qu 0q!24qb6qwq, 4qmd 2qw 4qm08qp8qiqecqa any 16qW6qo qoqsqtqab6qiqjqa6qlwqa6qg qa6qlqtqsrqiqaqe04q*qrqe standards comply with the fuel economy sqtaqndqa16qHs
2qwqe6qdqaqn6qdqa. 16qwq116qwqaqt 4qo20qw qaqp8qp8qi8qiqcqs6qb6qiqe to 16q*6q0 qcqoqu08q*qU2qT in din8q" indicated below (of the specified model
qrqecrqeqstqiq,qcqo28qw 8q;qo8qWqnqsa0ql8qlq, to 20q6qo8quqt 1q1q1q024q" Yqeqa6qf6qt0q74qbqaqs qexe4qmpql0qi4qm Is issued years:
4qiqns8quq, . qs16qp4q=4qm qs2qhqoqo0qld make d8qw under be 8qsqu0qd2qwr0qtty a( qsqecqdqoqn 2q312q=qc0q) of q6 q0 a
6qFC6qLq*q,20qW 4qm12qW EA qevqoqi8qaqm0qb0qiqe for 4q30q0 do" of qi4qf8q* Motor Vehicle Information and Cost 8q(4q3) Excalibur Automobile Corporation.

30.
Federal Court Cases Involving NMS
Regulations:

1. Gentile v. NOAA, et al.

2. Deaton, et al., v. U.S. DOC

3. Craft, et aL, v. NPS, et al.

FILED MAR 3 0 qiqq4qu
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARY GENTILE CIVIL ACTION

NATIONAL OCEANOGRAPHIC AND
ATMOSPHERIC. ADMINISTRATION,
EDWARD MILLER PETER L.
TWEE0DT, ANTHONY 0B. CA0qLI0qO,
d0qnd MALCOLM BAL6qDRqI2qDGE NO. 87-2q192

8qM4qE4qNC8qRAN4qD8qU4qM AND C4qR8qD4qER

H O0qS4qO q68

Presently before this court are cross-0qm0qotqi0qoqnqs qr summary

judgment and memoranda in opposition thereto. For the reasons stated

herein, Plaintiff's motion for summary judgment will be denied and

m0qct-qiqon will be granted.

The cqcqnqtqrqo4qvqe2qrqzy qstqe2qr's qf.,r--m q.q-qI-aqinqtif f Cary Gentile

0qclical-icn to the National 0qOcqeqan2qoc6qra4qnhqic and Atqmosqohe0qriqc Adminis-

q-q@qIrqal-i4qon ("qNCq)AA") for a pe=qit to perform an underwater photographic

sqtudv of the U.S.S. Monitor.- Cn August 4, 19-q86, defendant Edward

q'qThe U.S.6qS. Monitor is an ironclad Civil War warship which sank off
Cape Hatteras, North Carolina, in a storm on Dec36qd00qm52qbe6qr 31, 1862. In
1976q5 the 28qU.S. 28qDe04qoartme0qnt of, Commerce designated the wq-qreck as the
f 6qir0qs t na6qt 6qi6qonal marine sanctuary pursuant to the National Marine
_qrn6q:H 2q;4q0 2q)lu
qs
ion
qr qs

Protq-e0qc4qtiq-8q-qn, Research and Sanctuary Act 12qo8q! q1q-972, 16 32qUq.S.C. 0q61431, 4qet

q18q@4qu

Miller (*Miller"), the.Monitor Sanctuary Project Managqere denied
plaqi0qntiff'qS 0qApplicatio6qnj citing violations of safety standards f8qor
aqir0qdiverqs set by NoAAI the U.S. Navy, and the c4qamm6qe 4qrcial diving
industry in plaqi6qhtiff'qs proposal. Miller also cited the 2qNc2qx2q@ 6qDeop
2/
Drone project as an additional factor not warranting the risk of
plaintiff's proposed venture. Plaintiff protested the denial and
simultaneously appealed the decision to the Secretary of Com0qmqe-rqce

pursuant to 15 C.F.R. 5924.q8.

Defendant Peter L.-Twee0qdqt ("Tweedt"q)t Director of the

Office oqf Cceqan and Coastal Resource Management 0qof the National Cce0qan
Service, affqirmqed the permit denial, again citing numerous safety

violat-iqons. 0qTweedt further stated that his decision constituted

final agency action.

Plqaintiqf-qf waived his right to a formal hearing by failing
@o file arequest within thirty (30) days 2qp8qursuant-tqo 15 C.F.6qR4

and (0qb). 0qOqn A2qp-qrqil 1q5, 1987 plaintiff filed qsu-'+-- in, this

couzt seeking an in4uqnqcqtqi2qcn of 8qdqeqfeqndqaqn4'qs qe4qn@@qc-ceqmqaqn- 8qoll t-he par:n.t
J 6 .6

denial and a declaration that the denial was qar8qbqit-T-a-ry and capricious.

Plaqii-t-qi -qEqf alleqcqad that in 8qdanqyqiqn6qg hqis permit application, the NCqALqA

officials failed to consider his experience, expertise, and fitness

to perform the dive. Furthermore, Plaintiff claims tqh.at defendants

Miller and Tweedt were personally biased due to their inqvqoqlvemqentin

the Deep Drone project, that Mille and Tweedt had no authority to

render a decision on his application, and thaqfqtq@ as an individual

2/ This project endeavors to perform a photographic qsqtq-q-6qudy qcq-q-q- the
wreck using the U.S. Nair-i's Deep Drone, a self-propelled r4qoq'q-q-08qctq.

=-ENT YIL2L: LNrS DIV

diver, his applqicati4qc0qh received treatment different from applications
of educational institutions.

These alqle6qgatqi4qon3 were the basis of plaintiff's motion to
supplement the admqi4qniqsqt-rqative record. On October 9, 19q87, this court
denied 0q@lai2qntqiff'qs motion because the evidence offered to supplement
.the record failed to meet the recognized exceptions to judicial
revie,q@ only of the record before the agency when it made its
decision. 3/ Moreover, plaintiff failed to make a sufficient showing-

of bad faith and interest on the part 8qC.-f Miller and Tweedqt

to warrant qsiq18qpplementqi0qn6qg the record with evidence of alleged bias.

on December 1, 1987, this court denied plaintiff's motion for rec4qon-

qsiderqati2qon.

2qDqI-qSC6qUqSqSqI6qON-

I. Sc2qoqce of Review

When confronted with a motion f8qo8qz su0qn0qmaqr2qy qj8quqiqaqment- tqhe

c4qcquqrtZ must take all reasonable inferences in the lqiqSht.- most qfavqoza4qblqe

tqc ncn-mqcvin8qg party and aqsqcqaqr-qt-ain whet-hqe-r there exists any 0qgqenuqine

issue of r.-.aterial fact a4qnta. that the moving party is entitled to

qJi-iqd8qg8qMeqnt as a matter of law. qsc8qot-t v. Plante, 532 F.2d q91-9, 945 (q34qd

Cir. 1976). Iqn the instant matter the court is-asked to set aside a

These exceptions are: (1) where the record does not disclose the
factors 08qc08qo8qns0qi04qaered by the agency, NAACP v. 20qWilMiqn00qCq'qCq.qOqn Mqe6qdiqc-6qa6ql Ceqntq-eq-
qZ2q=q1
2q453 F. Sup44qpq. 1560 (E.Dq. Pa. 1986); (2) where new law or cases chance
the standard since the decisionr an44qd (3) where the record contains
6 q- q-
technical aspects warranting supplemental explanation. Conservation
590 Fq- SuP40qPq- 146q67 (20q0. Mass.
Law Foundation of NcW England V. Cla8qr40qkqi

1p1ppDS a; 4: Ze

final NAA decision denyiqjqi4qg plaintqiff,qa application for a diving
permit an "arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law." 5 U.S.C. S706(2)(A). Thus,
the court must ascertain whether the 'decision was based an a con-
sidqer8qi6qtqion of the relevant factors and whether there has been a clear
error of judgment.' Citizens to Preserve Overton Park v. Volpe, q4qiqOl
U.S. 402, 416 (1971). See also, Motor Vehicle Manufacturers Associa-
tiqoqn v. State Farm Mutual Automobile Insurance, 463-2qU.S. q29, 43 q(q1q9q6q3)q;
Shane Meat Co. v. U.S. Deqpa8qitqmeqnt Of Defense# 800 F.2q4q" 334, 336 (.1d

cir. 1986).

11. Motions for Summary Judgment

Plaintiff's motion for summary judgment raises four
questions. First, q%qihet2qher 2qdefendants.faqiled to cons ider relevant

5qafet-y factors and that NOAA Diving Coordinator Dr. J, Morgan Wells

duty pursuant- qt4qo N8qC4qAA Diving
Wells") failed to perform a man0qdato2qrY,

qReqauqlatqi4qonqs, to keep abreast Of all new diving 8qmqeqt-h0qo6qdqs and technqi0qal.:eqs.

Second, whether defendants Miller and 8qTweeq6qt were qpe0qrsqonaqiqly 6qhqiqaqsed

against pl8qaqiqntiqf-j'q3 proposal b0qy virtue Of their involvement in the

Deep Drone 2qp2qr8qOject. Third, whqether defendants Miller and Tweedt had

no authority 'qZ8qo render a decision 0qon the permi t_a4qo4qpl qi cation, and,

finally, whether the NC36qAA deqicis2qion-16qm2qake00qrs breached a mandatory duty

by not consulting with the Advisory Council on Historic Pre8qservati4qDq.-q.

("ACHP") regarding plaintiff's pe00qrmq-qit application.
with the exception of the fourth i8qs2qsue,-each Of these
claims were raised by 52qp8qia0qi08qntiffq'2qs motion to amend the administrative

-I-

record and were addressed by this court. See Order of October 9,
1987. In support of the first three issues plaintiff provides
materials not included in the Administrative Record. Specifically,
plaintiff qiqzitqes an affidavit of Stephen Bielenda dated Oct8qobe r 29,r
1987, testifying to plaintiff's diving ca2qp2qa0qbilitiest three articles
regarding the U.S.S. Monitor and the Deep Drone project, and a diving
permit application and two diving manuals for the Isle Royal Na tiqonal

Park in Michigan. None of these exhibits meet the excqeDtqi0qcns t3
4/
supplementing the Administrative Record. Moreover, 2qcqn 2qOcqt0qc0qbe--

q1987, this court denied plaintiff's motion to supplement the admqinis-

tr0qative record with evidence supporting the same issues. q7udqicial

J
rev,&ew of agency decisions is limited to the record before the agency

when it made its decision. Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 240 (1971)q1 C0qamqo v. Pitts, 411 U.S. 138, 142

(q1973). Plaintiff, and surprisingly, his counsel have 4qprqezuma2qbiy

-csqsqed the court's C0qrdeqr to the wind and foisted this improper

itqion to havqIqnqg a qs0qomew-hat
,,a-Le0qrial on the. court anyhow, which in add-

qlu0qv0qenqile flavor, is uqn8qpr6qofess.1q0a2qnal as well.

in reaching their decision to deny plaintiff an application

to dive the Monitor site, the NO2qA2qA cqcnsidered the depth of the dive,

the proposed use of compressed air, live boating, and in-water
48qde8qc8qo08qmq,52qp4qressi08qon techniques (A36qR7 B-4, p.113q-114). Moreover, the ag8qen2qc-y

04qy See note 3 of this Opinion for the exceptions.

92q@/ All subsequent r0qe6qfe00qzence8qs to the Administrative Record will be
cited as "36qAR."

CC= 7
p

looked to plaintiff's qexpe8qtiqence and prior success with qBq'0qmqil0q&qz wreck
dives which plaintiff provided with the proposal (A4qR B-2q3# 8qP-233-
236). in fact, ,Wells specifically recognized the extent of plaintqiqfqfeqs
skills, but noted that "the probability of death or-serious injury
associated with such activities is very high.-" (AR B-191 p.164).
This deqcl'qsqi8qon is based on relevant safety factors and cannot be

considered an abuse of discretion.

Plaintiff's allegations of bias do not raise any genuine

issue of material fact. As in his earlier m2qot-mqcn to su4q;2qp1lqa0qmenqt 't6qhe

qaqrqdn_4sq:8qra-..ive record, plaintiff argues that de,-,endantqs Miller and

Tweeqat are A"-,,qiased by virtue of, their participation in the Deep Drone
project'. in its Order of October 9, 1987, this court noted that

Plaintiff must "make a clear and convincing showing that the official

has 'an unalterably closed mind on matters critical to tqhe disposition

of the case, or that the degree of bias borders on 'fraud or

at least a pecuniary interest in the outcome. 6qorde-- qoqf October 9.,

197, at 6. qPqlqaqIntqiqf;_4 has altered his initial allegations to aqsseri:

t,at 8qdqeqfqend4aqnqt-qs' bias stems from a 0qP_-8qc0quqnqiary iqntqareqst, in t-hqe "pro-

qcf the qf0qunqiqin8qg of the NOAA q)q:udget." Plaint ifqfEl s Potion fqc-r

S=4qaqry 4qp.10. This simply is not the type of pec0quqnqi8qa_ry

inte0qreqSt with w.h.-qic.h. the courts are concerned. The officials, here

Killer and 32qTwe2qedtqf have no pecuniary interest in t8ql6qi0qeq"ir individual

-q,q.6qi4qes and, consequently, have no personal bias.
qc a,:; a cq.q@q. q- q-

Fql4qaqin6qti0qf0qfq'8qs claim that defendant Miller's authority to
render a decision on plaintiff's a4q;8q@p4qlic0qation was 8qi00qm52qpr6qoper since the
.eqle4q-4qat4qiqon was cral and not documented is also without merit. This

q-6q6q-

LZI: DIV ; 4- 5-ea 4 09

court repeatedly has upheld agency action based upon implied authority
to delegate decision-making. See United States v. Lee, 333 F. qSup2qp.
398 q(2qE.8qD. Pa. 1971); Aqshw8qo6qod Manor Civic Aqsqs0qociatqi8qon-v. Dole, 619 F.
Supp. 52 (E.D. Pa. 1985), aff'd, 779 F.-2d 41 2qOd Cir. 1986). Further-

more if error, this was haqz-mleqsqs error since defendant Tweedt himself
rendered the final agency decision. (AR 4qB-1, p-11q6).
Finally, plaintiff argues that defendant failed to perform
a mandatory duty by not consulting the AC8qF.8q? regarding the proposed

dive. Plaintiff raises t0qhqiq3 issue for the first. time in his motion

for summary judgment. This court will treat this amendment to the
complaint as consented to by defendants since they ar2qg-qued the issue

in their response to plaintiff's motion for summary judgment. 6qFed.R.

Civ.P. 15(a). Defendants' motion for summary judgment and reply to

plaintiff argue that the NOAA decision is well-supported and reasonabqie

agency action by qi2qm2qp8qa0qrt-qiaql agency off qicials properly vested with

a -u t h C 0qr qi t 4qY .Defendants further argue that the duty to consult with

trqe AC6qHP under 1q5 C.F.R. q5924.q6(d) is no'. mandat0qo-ry, RaA%-.2qhe--, -hey

ccnqcqlucie that they did n8qot consult with the AC8qHIP because such qccn-

qsuqltatqion would not chance the NO2qAA decision. The AC6qHP functions to

assess and recommend the impact of various activities on historic

landmarks. National 36qEi0qst6qoric Preservation Act, 16 Uq.S.C. 4qS4702qj (1980).
In the case at hand, the ACHP must review the proposed activity in

the Monitor M8qa,04qrin0qe Sanctuary to assess the impact on t52qb2qe wreck. 12q5

C.P.R. 2q5294.66q(48qd). Defendants argue that the ACH40q? review is the

second step in t56qh8qq review process, following the N44qOAA approval on
saqlqrety, and that if the proposal does not meet the safety c00qrq_q1t2qeq4-2q!a,

2p4;652;24;32q'1p1pp1prS r 5as 4: OF

in the final instance as Plaintiff's did not# then there in no neqt4qed
for ACHP review thereaftqert since it would not alter the previou0qt
denial.

Plaintiff's claim for judgment an this ground must fail for
two reasons. Firstf the duty to consult with AC6qHP is discretionary
in that the NCAA need not consult the council on a proposal which it
will mot approve. In Long v. Seabrook, for example, the court held

that defendant's ma0qn6qa0qatqo-qry duty was making the tax records available
and that the mqethcd of implementing the duty was discretionary. q197

S.0qE.q28qd q6q59, 662 (S.C. 1973). In the instant case,, the N8qOAA must

consult the ACHP on proposals to dive the Monitor Marine Sanctuary-

If the proposal does not meet the NOAA standards# however, then there

is no need for the A4qC8qHP to assess the potential impact. Thus, there

is a common sense element of discretion in this duty.

qSecon8qdp the question presents neither a genuine issue nc4qr a

Mqaqtqe--ial fact for summary judgment purposes. Defendants concede that

they did not seek 2qAC8qEP r--vqiew cf the proposal. Defendants' Opp2qoqsqi-

tiqo4qn to Plaintiff Is Motion qfqc0q= qSu4qrqz0qary Judgment and Reply to Plain-

tiff's 0qO0qo0 pos
ition to 6qDe--Fe2qn2qdaqnt@--qs' Motion for Surqrqarzary Judgment, 0qp.2q2.

qRqowever, this consultation would not have changed the NOAA decision

since the AC36qHP does not assess the safety of the- proposed dive but

looks only to the physical impact on the historical site. Thus, tq.he
6qcquesti08qon of whether the N28qO32qAA deqc4qisiqon-00qma44qkers should have consulted
with the A20qCH32qP regarding plain tiff q1q,s permit application does not
present a genuine issue of material fact since the consultation would

not alter the permit denial.

SENT Y:WILDLIFE LANDS DIV A; 4- 5-83 4:11PM 54316 * 4 9= 10

CONCLUSION

For the reasons stated hereint this court finds that

plaintiff h4qas not dem4qo8qnqst6qz2qatqed that a genuine issue of material fact

exists sufficient to withstand defendants' motion for summary judgment.
Acc4qordi8q@glyj plaintiff's motion for qs0qu6qmary judgment will be denied.

and defendants' motion for summary judgment will be granted.

An appropriate Order will be entered.

r BY:WILDLIFE=- LANDS DIV q0q: 4- qS-qEqS 4:q11qFqM q9= ;91q1

IN THE UNITED STATES DISTRICT COURT
FOR TH4qZ EASTERN DISTRICT OF PENNSYLVANIA

GARY GENTILE CIVIL ACTION

NATIONAL OCEANOGRAPHIC AND
ATMOSPHERIC ADMINISTRATION,
EDWARD MI8qL8qL8qERv PETER L.
TW0qEEDT, ANTHONY B. C4qALIO,
and MALCOLM 6qBA0qL6qDRqIDGE NO. 87-2192

0q0 R 6qD E R

AND N0qOWl TO WITF this day of March, 198q8, upon con-

sideration 2qof the c2qrosqs-motqi8qons f or sum-Mary Judgment and the

memoranda filed in opposition thereto, IT IS ORDERED that plaintiff's
motion for summary judgment is denied 'and defendants' motion for

summary judgment is granted.

;136qL
LO C. EC0qHT2qLqEq-l J.
8;220q4 q@4qC. 8q@B0qE6qC

'J-S- DEPY. CJF JUST
U.S. A7TORkr-*f D. ()I
PH11L WAWITED STATES DISTRICT COURT
FOR THE-EASTERN DISTRICT OF PENNSYLVANIA
DEC 1 4 39 PH
GARY GENTILE CIVIL ACTION

-V.

NATIONAL OCEANOGRAPHIC AND
ATMOSPHERIC ADMINISTRATION,
EDWARD MILLER, PETER L.
TWEEDT, ANTHONY B. CALIO,
a.nd MALCOLM BALDRIDGE NO. 87-2192

0 R D E R

AND NOW, TO WIT, this day of December, 1987, upon

consideration of the motion for reconsideration or to amend the

Administrative Record of plai.ntiff Gary Gentile and the memorandum

filed in opposition thereto, IT IS ORDERED that the motion for

reconsideration or to amend the Administrative Record is denied.

LOUIS C. BECHTLE, J.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARY GENTILE CIVIL ACTION

NATIONAL OCEANOGRAPHIC AND
ATMOSPHERIC ADMINISTRATION,
EDWARD MILLER, PETER L.
TWEEDT, ANTHONY B. CALIO,
and MALCOLM BALDRIDGE. NO. 87-2192

MEMORANDUM AND ORDER

BECHTLE, J. OCTOBER 1987

Presently before this court is the motion to supplement the

Administrative Record of plaintiff Gary Gentile, and the memorandum
of defendant National Oceanographic and Atmospheric Administration
I("NOAA") in opposition thereto. For the reasons stated herein, the

motion of plaintiff will be denied.

FACTS

On April 1, 1986, plaintiff Gary Gentile submitted a formal

proposal pursuant to 15 C.F.R., 5924.6 to NOAA requesting a permit to

perform underwater photography on the U.S.S. Monitor.- Plaintiff's

The U.S.S. Monitor is an ironclad Civil War warship which sank off
Cape Hatteras, North Carolina, in a storm on December 31, 1862. The
wreck lies 16 miles off the coast in approximately 220 feet of water.
In 1975 the U.S. Department of Commerce designated the wreck as the
first national marine sanctuary, pursuant to the National Marine
Protection, Research and Sanctuary Act of 1972, 16 U.S.C. �1431, et
seq., "[tjo ensure that the'MONITOR would be preserved as a resoui-ce
of'national significance." U.S.S. Monitor National Marine Sanctuary
Management Plan, February 1983, pp. 1, 3, 13. B virtue of its
designation as a sanctuary, the NOAA issued re ulations governing
the issuance of permits for ac-tivities propoM within the waters of
the sanctuary. 15 C.F.R. �924, et seq.

proposal contained a description of the proposed dive, planned saff!ty
precautions, the equipment he would use, as well as.resumes of the
project participants and a resume of his own wreck-diving experience.
On August 4, 1986, defendant Edward M. Miller, the Monitor
Sanctuary Project Manager, denied plaintiff's proposal, citing viola-

tions of safety standards for air divers set by NOAA, the U.S. Navy,

and the commercial diving industry, concerns about the adequacy of"

surface support, and the NOAA Deep Dive project, -as factors not

warranting the risk of plaintiff's proposed venture. Plaintiff

protested the denial of the permit in a letter to defendant Mille-C on

August 17, 1986, and simultaneously appealed the decision to the

Secretary of Commerce pursuant to 15 C.F.R., �924.8.

Defendant Peter L. Tweedt, Director of the Office of Ocean

and Coastal Resource Management, National Ocean Service, affirmed the

denial of the permit on September 29, 1986. Defendant Tweedt

specifically stated that plaintiff's proposal to dive 230-240 feet,

untethered, and with SCUBA on air, violates NOAA safety standards by

virtue of its extreme depth, increased risk of nitrogen narcosis, and

inadequate surface assistance. Defendant Tweedt also stated that his

decision constituted final agency action.

Plaintiff, by failing to file a request for a formal bearing

within 30 days pursuant to 15 C.F.R., 5924.8(a) and (b), waived his

right to a hearing. On April 15, 1987, plaintiff filed suit in this

court pursuant to the Administrative Procedure Act, 5 U.S.C. �5_51,
alleging that in denying his request for a diving permit, the NOAA
officials failed to consider plaintiff's experience, expertise, and

-2-

fitness to perform the dive, and that plaintiff's prior dives of this
nature have proven safe the proposed methods and techniques. Plain-

tiff further alleged bias on the part of Miller and Tweedt from their

involvement in the NOAA Deep Dive project, disparate treatment of his

permit application as compared to those of educational institutions,
and unlawful delegation of authority to defendants Tweedt and Miller.

Plaintiff seeks an injunction against NOAA enforcement of

the denial and a declaration that the agency denial was arbitrary and
capricious. At a pretrial conference held on June 11, 1987, this

court directed that plaintiff submit this motion to supplement the

Administrative Record and a supporting memorandum.

DISCUSSION

Generally, judicial review of administrative agency

decisions is based solely on the record before the agency when it

made its decision. Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 420 (1971); Camp v. Pitts, 411 U.S. 138, 142 (1973).

Though remand for agency clarification is the usual course for
handling an inadequate record, Volpe, 401 U.S. at 420, courts will

supplement where the record does not disclose the factors which were

considered by the agency, NAACP v. Wilmington Medical Center, 453

F.Supp. 280 (D.Del. 1978); Horizons International, Inc. v. Baldridge,

@624 F-Supp. 1560 (E.D.Pa. 1986), where new law or cases change the

standard since the decision, or where the record contains technical

aspects warranting supplemental explanation, Conservation Law
Foundation of New England v. Clark, 590 F.Supp. 1467 (D.Mass. 1984).

-3-

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARY GENTILE CIVIL ACTION

NATIONAL OCEANOGRAPHIC AND
ATMOSPHERIC ADMINISTRATION,
et al. NO. 87-2192

0 R D E R
AND NOW, TO WIT, this @i@ day of October, 1987, upon

consideration of the motion to supplement the Administrative Record

of plaintiff Gary Gentile and the memoranda filed in support and in

opposition thereto, IT IS ORDERED that the motion to supplement the

Administrative Record is denied.

UIS C. BECHTLE, J.

In NAACP v. Wilmington Medical Center, supra, the court

A
refused to grant plaintiff's motion to supplement the agency recol.
absent a showing that the record does not provide an adequate factual

basis for judicial review or that it does not disclose all of the

factors relevant to the agency decision. 453 F.Supp. at 306. In the
present matter, plaintiff does not make that showing. Plaintiff

alleges that in denying his request for a diving permit, defendants

failed to consider plaintiff's experience, expertise, and fitness as

required by 15 C.F.R., �924.6(c), and particularly his prior success-

ful dives similar to that proposed. Plaintiff further alleges that

NOAA failed to evaluate plaintiff's diving techniques. This is not

the case. The record contains plaintiff's resume and biographical

sketch, as well as references to plaintiff's experience in inter-

departmental correspondence. Indeed, defendant Tweedt in his letter
affirming the denial of the permit and Dr. J. Morgan Wells of the
NOAA both recognized plaintiff's experience but noted nonetheless
that the proposal was still too risky (AR B-4 and B-19). 2/ Moreover,
defendants sought external evaluations from two experts who felt: that
plaintiff's proposal was too great a risk to recommend NOAA approval

of the permit request. These factors are clearly considered by the

NOAA in its decision and are documented in the Administrative Record.

The second exception to the rule limiting judicial review

to just the record before the agency when it rendered its decision is

when evidence or law not previously known to the case is offered

2/ All references to the Administrative Record will be cited as
It
AR

-4-

which would affect the'agency decision. In Conservation Law Founda-

ti-on of New England v. Clark, 590 F.Supp. 1467 (D.Mass. 1984), the

court allowed defendants to supplement the record when subsequent
reports substantiated prior agency predictions. Id. at 1474-1475.

Plaintiff here neither offers new evidence nor cites new law or cases

which would change the agency decision. Plaintiff's motion requests
supplementation of the record with evidence of defendants' involvement

with the Deep Dive project, plaintiff's fitness to perform the work

envisioned, NOAA's evaluation of plaintiff's techniques, and records

of permit approvals of institutional applicants. None of these

factors would alter the agency decision.

The third exception allowing for supplementation is the

presenc e of highly technical or unclear matters requiring explanation.

Conservation Law Foundation, 590 F.Supp. at 1475. Here, plaintiff

requests supplementation by way of expert testimony, affidavits or

depositions, to explain the deep decompression scuba diving plaintiff

proposes, the safety measures which plaintiff uses, and the dangers

encountered in this type of diving. The NOAA diving rules and regula-
tions adequately explain the terminology. Moreover, the NOAA sought

and received expert opinions on the nature of deep decompression

diving which are included in the record. Unlike Conservation Law

Foundation where the court confronted highly technical matters in the

nature of a study on the effect of off-road vehicles on the dune

physiognomy, vegetation and aesthetics of a beach, id. at 1475, the

court here is facing matters sufficiently explained in the record.

-
B2p580;408;12;16q,::756;404;24;84qjlLF

Finaily, plaintiff request squ4qpqpqis0q=unqtqatqiqon with evidence
of defendants Tw4qo0qedqt a4qnd Miller's participation in the Deep Dive
project to illustrate their bias against his proposal. As a r-W-q1qa,
barring bad faith or improper conduct, a reviewing court generally
will not look beyond the administrative record. Quincy Oil, Iqrc. y
Federal Energy Administration, 468 F.Supp. 383 (2qD.Mass. 19791. in
reviewing agency action there is a presumption of no bias on the
part of the agency official which is not overcome by qprooqi thac the
official has taken a pubiic position, eprqeqs3ed strong views, or
participated in earlier proceedings on the same issues. United
Sqceelworkers of America v. Marshall, 647 F.2d 11q89, 1208 (D.C. Ciqr.
1980). To meet the standard of bad faith nqecqaqsqsqary to go beyond the
administrative record, the plaintiff must make a clear and cqo8qnviqnqciqm6qg
showing that the official has "an unalterably closed mind or, matters
critical to the disposition of thqs case," Uqnqiqtqtd Steelworkers, 647

F.2qd at 1209, citing Association of National Advisors, Inc. v.
Federal Trade Commission, 627 F.2qd 1151, 1159 (D.C. Cir. 1979), or
that the degree of bias borders on "fraud on at least a pecuniary
interest In the outcome." Howlett v. Walker, 417 F.Supp. 84, 86
(N.D.111. 1976) citing Gibson v. B8qeqrqr4qZhqill, 411 U.S. 564 (1973).
Plaintiff here has not made a sufficient showing of bad
faith. Plaintiff does not allege personal bias on the part of T0qwqaqad qt
and Miller, but rather alleges bias based upon their involvement in
the NOAA Deep Dive project, an all6q*g0qedly "rival" photographic survey.
Plaintiff nowhere proves fraud or pecuniary interest, nor does the
record reflect an "unalterably clo2q312qe8qd mind" on the part of either
defendnt Tweedt or Miller.

-6-

CONCLUSION

For the reasons stated herein, this court finds that plain-
tiff has not made the requisite showing for supplementation of the
Administrative Record. Accordingly, plaintiff's motion to supplement

the Administrative Record will be denied.

An appropriate Order will be entered.

-7-

UNITED STATES DEPARTPAEPJT OF COPAME@
Mational Oceanic and Atmospheric Administra,
Washington. D.C. 20230

OFFICE OF THE GENERAL COUNSEL

February 22, 1989

MEMORANDUM FOR:. Distribution

FROM: GCEL - Linda I. Mark.

SUBJECT: Deaton v. U.S. Department of Commerce, No. 86-
1732 (S.D. Fla. Jan. 31, 1989)

On January 31, 1989, U.S. District Court Judge Stanley Marcus
ruled on crcss-motions for summary judgment pending before him
lor two years in this appeal of civil penalties assessed under
Tj@je III of the Marine Protection, Research, and Sanctuaries Ac-L-
P @-RS This is the-first.district court decision to-rev.i.ew an
MPRSA civil-penalty case, and resulted in upholding the
assessments for three of the four Respondents.-

in July, 1983 a vessel charter company (Fun in the Sun) rented
three sailboats to a party that included two of the Respondents.
The second dav out the starter motor on the engine of one of the
vessels (the "Chandall) became inoperable. The sailors' attempts
@o reach Fun in the Sun by use of vessel radio failed. The next
day the boats sailed on toward their intended destination of Key
Largo, Florida. A storm arose, and although one of the boats
proceeded into the nearest safe harbor, the other two (the
"Chandall and the "Golly Gee") decided to anchor up. The anchor
line on the "Chandall then broke and a tow line was connected
between the two boats. The two kept on sailing and ran aground
in the Key Largo National Marine Sanctuary.

We assessed penalties to the owners and operators of the "Chandall
and the "Golly Gee", and Fun in the Sun. After a hearing Judge
Dolan assessed $ 50,000 in civil penalties to all the parties,
apportioning the penalties by percentage of liability. One of
the owners settled his case and the other parties filed this
action for district court review of the penalties.

Judge Marcus first examined the standard of review appropriate to
an APA review case. He ruled that findings of fact are subject
to a limited review and can only be set aside if they are
"arbitrary, capricious, an abuse of discretion or otherwise not
in accordance with the law." However, questions of law, which
were the only questions involved, are "freely reviewable.11 A
distinction was made between questions involving statutory or
regulatory interpretation,.and those involving the exercise of
the ALJ's discretionary power, The amount of the penalty
assessment is just such an issue and will not be overturned

unless it is "unwarranted in law ... or without justification in
fact."
The court found that the MPRSA imposes strict liability on those
that violate its regulations. Although not stated in the plain
language of the statute, Judge Marcus examined the goal of the
statute, Commerce's interpretation of the MPRSA, and other
environmental statutes (e.g. CERCLA, RCRA, Clean Water Act) in
reaching his conclusion that strict liability applies.

The Petitioners' claim that they should not be held liable for
the violation because of exigent circumstances, namely the st-or-m
that arose, was denied. The court found that the ALJ's findings
concerning the proximate cause of the groundings (lack of
adequate navigation skills and poor judgment) . were.su pp-or-ted by
substantial evidence. The Petitioners could not escape liability
because their actions created the emergency.

Judge Marcus disagreed with the Government on our assessment of a
penalty to the owners of the "Golly Gee". He ruled that the
Hhi--' that -could
Gebeleins, the owners of the "Golly Gee", did n ng L-
be construed as a violation of the Sanctuary regulations. They
relinquished control of a seaworthy vessel to Fun in the Sun,
who, when it was chartered by the vessel opera"$---or here, chartered
it in seaworthy condition. The court said that 11[a]lthough an
absentee vessel owner may be found liable for reef damage caused
by his vessel while operated by another, under the MPRSA, for
such liabili'L-.y to aL---tach to the absent vessel owner there must
exist, we believe, some evidence that the vessel owner's conduct
was a substantial cause of the reef damaae at issue." The
penalty originally assessed to the Gebeleins was then
reapportioned to the remaining three Petitioners (Fun in the Sun
and the two vessel operators) and their penalties increased.

For our first MPRSA case I think we got a thorough and fair
review and have some good precedent to cite. Thanks go to
Charles Brooks of the Department of Justice and Fred Kyle.
Charles will be asking that the opinion be published. A copy of
the Final order is attached.

Attachment

Distribution:

All GC Offices
Office of Administrative Law Judge
N/ORM2 - Joe Uravitch/Ralph Lopez
F/EN - Morris Pallozzi
DOJ- Irv Pianin
Florida DNR, Office of General Counsel Dana Wiehle

-2-

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT, ATLANTA

CASE NO.: 89-5221

ALVA FRANK DEATON, FUN IN THE
SUN, and CLIFFORD MIKE SEWELL,

Appellants,

vs.

UNITED STATES DEPARTMENT OF
COMMERCE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION,

Appellee.
J /..
NOTICE OF VOLUNTARY DiSHISSAL OF APPE&L
NOTICE IS HEREBY GIVEN that Petitioner/Appellant, @V@A
FRANK DEATON, voluntarily dismisses his appeal filed on March 2,

1989, In District Court Case No- 86-1732-Civ-Marcus.- The

Petitioner/Appe'l 1 ant appealed the District Court's Final Order

dated January 31, 1989.

I HEREBY CERTIFY that a true and correct copy of the

foregoing was furnished by mail this 6th day of APRIL, 1989,

to: OFFICE OF ADMINISTRATIVE LAW JUDGE, U.S. Department of

Commerce, Suite 6716, 14th Street and Const;Ltutdon Avenuev N.W.,

Washington, D.C. 20230; FREDERICK D. KYLE, ESQ., office o-f

General Counsel, Southeast Region, National Oceanic and

Atmospheric Administration, 9450 Koger Boulevard, Suite 102, St.

Petersburg, Florida 33702, and DR. ANTHONY J. CALIO, United

States Department of Commerce, National Oceanic and Atmospheric

C J

Administration, 14th Stre2q6t and Constitution Avenue, 8qN.W., Suite

5128, Washington, D.C. 20230.

WEAVER, WEAVER, LARDIN 4q& PETRIE, P.A.
Attorneys for Appellants
500 Southeast 0q6th Street, Suite 200
Post Office Box 14663
Fort Lauderdale, Florida 33302-4663
T8qeqlqs: (305) 763-2511 (2qBroward)
(305) 944-4452 (Dade)
(407) 655-6012 (Palm Beach)

By:
BEN 2qJ. WEAVER
Fla. Bar No. 11-3q9763

B8qJW:db4qg
ntd2qis.dea

B8qJW/dbg
01.36q-0070
ntdis.40qf32q1s

UNITED STATES COURT OF APPEALS
EL4qEV0qZNTq1q1 CIRCUIT, ATLANTA

CASE No.: q89-q58q28qzql

ALVA FRANK D4qBATO0qN, FUN IN T0q90qE
SUN, and CLIFFORD MIKE S4qF-W0qELL,

4qA6qp2qpelle-0qnt3,

VS.

UNITED STATES DEPARTMENT OF
COMM0qEqR4qM NATIONAL O4qCqE6q&0qNIC AND
ATMOSPHERIC ADMINISTRATION,

6qA8qDpellee.
_-A

2qA6qOTIC5 0qF VOLUNTARY DISMISSAL OF 0qAqPP 4qM

NOTICE IS HEREBY GIVEN that Petitioner/Appel 1 ant, FUN

IN THE SUN, voluntarily dismisses qits appeal filed an March 2,

1989, in District Court Case No. q86-173q7-rqiv-Mar8qcus. The appedl

qfqrqnqm the District Co0quqxt's Final order datcd January 31, 1q9q8-qQ ix

being dismissed as an Amicable settlement hqa.4 been reached by tho

Pqetqitqlqoqaaqr/A2qppellqaqnt, Fun In qThe Sun and t0qhA Natio
nal 6q0cean.q1c aii8qa

Atm0qoA2qphqer6ql4qc Administration. The 4qdq1smqizaal ic filed solely by Pun

In The Sun. This n0qotqiqna shall not affect L8qh0qe appeal filed on

behalf uqZ Pqetqititioqnm/Appakll ants, Alva . 6qkra0qnq)qt Deatj_qu -and

8qCliff0qora Mike Sewell.

WE 8qH8qERqR0qA4qY CERTIFY t0qhat a true. and correct copy of the
fquqxqeqgqo0qln2qg was qfurt-iqsh0qod. by mail this q6th day of q- qAqnqnqi

1989, to: OFFICE OF A0qDMINI6qS16qT08qR12qAT6qI16qV6qS LAW JUDGE, U.4qSq_ Department of

Commerce, Sui20qt2qa 0qb78qi2q6q. 4q116q4t20qh Street i:8qai24qd Constitution Avenue, N-W.,

Washington, D.C. 20q'6qM; FRED6qrRICK D. KYLE, ESQ., Office of

General Counsel, 0qSout0q:qie0qast Region, National Oceanic and

0qNtmqospher0qic Administration, 9450 2qKqoqger Boulevard, SuitA 102, St.
Petersburg, Florida 3q:q3702, and DR. ANTHONY J. C4qALIO, United

States Department of Commerce, National Oceanic and qAtm4qoqspherqiqc

4qMminietrqatiqoqn, 140qth Street and 0qCqorLstitutiqon Avenue, 2qN-W., Suits

5128, Washington, D.C. 20230.

FUN IN SUN, INC.
320 N. Federal Highway
Dania, Florida 33004
0qMqb) 923-2808

B
qG.qL. - 2qDO2qV2qAS' qP0qR4qF-SI6qDq-qE4qw

0qM4qM0qVqL0qR, WEAVER, 6qLqARqDqIqN & P0qM4q=, P.A.
500 S.6qE. Sixth Street
Ft. Jauqdeqr2q&qle, rl0q=idqa 33302
(305) '/q6q3-q2511 q(BqzTjwcqrd
(305) 944-4452 q(qDmaoq)
(305) q655-6012 qMA I m Beachq)

BY-
BEN J WEANER
8qM. BAR 01q39763
0qBqJW/8qdqb2qg
01.35.0070
ritdi. f i3
BY
qiq)/0qO2qvqiLqs2q@q"

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF F6qWRqIqDA

CASE NO. q8q6-1732-CqI6qV-6qM0qARCrqiS

F8qR8qM0qX DqEAT8qOqN, eqt

0qFT6qNP'%L ORDER

VS.

UNITED STATES DEPARTMENT OF
COKM2qE4qRCqE, Qtc-, j

Respondent.

THIS CAUSE has come before the Court upon the Petitioners'

and the Respondents' croqsqa-moqtqiqons for Summary Judgment. This

ease arises from the grounding of the "S/V ChandqA" ;qnd this "I.q;/V

2qGqolqly Gee" an the coral reef at the Key Largo Marine Sanctuary,

Florida, in purported violation of Title III of the Marine

protection Research and Sanctuaries Act of 1972 as aqmenqieqd

q( "MqP2qRSA" 1q6 6qU.S.C. 1431 et sea. Tht: qPetqiqLiqonqers ask us z,-

determine that because they did not intend to damqa0qgsq? qthiq@ C-Iraqi

reef they could not be liable under the Act for their actlcn3,
qthqit absent owners and charterers are not responsible for qdqaqzqaqzqe

to the coral reef, ndt finally, that the fine imposed by the

Administrative Law Judge was excessive. The Respondents _;:qze

thiz Court to uphold thqe 4qaqtermqinatqiqon by the 2qi6qf6qtinistraqtivqp 7.aw

Judge. Having reviewed the memoranda, the relevant statutes and

regulations, and legislative history surrqatindin8qg the MqPqRqSqA. we
GRANT in part and DENY in part the Petitioners' Motion for
Summary Judgment, and WqA GRANT in 6qVart and DENY in 0qVqarqt the

Respondent's Motion for Summary Judgment.

qQ 0 0 7o 3 5

1. FACTS
The 6qPaterial facts are not in dispute. On July 14, 19q13j,
Petitioner run in the Sun, Incorporated (nFun in the Sun") agreed
to charter three sailing veqss4qeql6qv to a number of individuals.
(Respondent's Statement of Material Facts as to Which There is No
Genuine issue at 2). Petitioners Walter C. and Susan 4qGeqbeqlqein
(the "G2qebeleins") owned one of the vessels , the "S/V 0qG8qolly Gee.
q(qId. at 1). Petitioner j4qoh8qn 0qK. Train8qore who has since setqzqlqe0qd

wiqt.4qh Respondent, was qthe owner of the "S/V Chanda. Fun in :he

Sun operated a sailboat charter business in Dania, Florida, qiqa

which it leased boats for the owners of those boats. q(qId. at

1-2).

on July 30, 1983, Petitioners Alva F. D4qea6qt2qon and Clifford' 2qH.

Sewell departed from the Fun in the Sun dock aboard the two

vessels which they operated, the "2qthanda" and the n'Golly 6qGtne,-

respectively, enroute to Cape Florida. q(4qI8qd. at I). A third

vessel, the "S/V Myra,' sailed along with them. The t.,,--e4qe

vessels eventually anchored and spent the night at Cape qT-l2qoqrqi8qda.

q(qId. at 2q).

on July 31, 1983, t1he three vessels remained at Cape 2qFq!qa:.:q-,;a

due to problems with the starter motor on the engine Of the

q"Cha12qnda.q* 0q(40qId.0q). Attempts to repair the starter motor 40qP2qzqc2qv8qec
unsuccessful. Attempts to contact Fun-in the San by use of !I'---
radios onb12qoard the "Chandaq" and the qR32qMyra" also failed. In 8q:4qe:

Alva Frank Deat08qon, No. 455-q102q2 (Dept. of Commerce Feb. .6

(Admin. Rec. 12 at 6q5). Nevertheless, on the morning of August 0q11

8q1944qS3, the three vessels departed from Cape Florida for Key La2q:0qc2qo,

- - - - - - - - - - ---- V

2qFq:qC4qbrida. D2qeat6qoqor the operator of the *Chandal" had lived on Key
Largo previously and' expected to be able to make repairs to the
starter motor there. The three vessels proceeded south, saiqlinc

offshore approximately one to one a4qnd-a-half miles seaward 0qa! the

reef line. As the day ware on, the weather deteriorated to -he

point where Petitioner De8qat2qoqn determined that it would be better

to anchor up the "Chanda" rather than continue 0qun4qaer sail power

alone. q(2qRes8qp2qondeat's Statement of Material Facts at 3q). :he

"6qG4qoqlly Gee" remained with the "Chanda," while the "Myra" crew

chose to seek safe harbor in the nearest protected part, Turtle

Harbor. (qId.)

Unfortunately the "Cha8qndals" anchor line broke. q(qI0qd)

tow line was affixed from the "Cha2qnda" to the 'G8qolly Gee." The

6qG2qolly 4qGqee," unable to tow the "Chanda" ofq!shqore, changed heading.

(qId.). The vessels proceeded in a southeasterly direction 4qa0qa8qd

both the "2qChanda" and the "Goqlly Gee" finally ran &ground at

Grecian Rockst at the Key Largo Marine Sanctuary. (Id.q)

The National Oceanic and Atmospheric Administration ("8qNO2qA2qA11q)

U.S. Department of Commerce issued Notices of Violation qaqnq_@-

Assessments (RNOV0qAsOq) against the five Petitioners for damaging

the coral reef. One NOVA charged 2qDeat8qan, Fun in the Sun, Sewell-,

and Trainor and assessed a joint and several penalty 04qo4q!

$35,008q0.48q056q0. The other NOVA charged Sewell, Fun in the Sun, and

the 40qGeb04qeleins and jointly and severally assessed a $40,000.00
penalty against them. Petitioners sought review by

Administrative Law Judge Eu48qgh J. Dolan, who found Petitioners had

committed a single violation and assessed the statutory m2qaxiq-6qm=

f ine of q50 q0 00 .0 q0 (Memorandum of Points and Authorities
Support of Respondent's Motion for Summary Jud4qgm4qe8qat at 4q)

petitioners applied for and were denied discretionary review *.-

the Administrator-of NOqAA. (Petitioners' Petition for Revj@-_-w c

Administrative Order of the United States D8qe2qpart8quqnent, of Cqom:qieqrqcqe

National Oceanic and Atmospheric Administration at q3)

Petitioners then filed this action.

Petitioners challenge the findings of the 0qA2qd-4qmi4qnqistr2qaqtqiqve ',rqa

Judge ("A0qL4qJ") on four grounds:

1. The ALJ erred in finding a violation of
15 C.8qF.R. 929 .4 (a) ( 1) and 15 C.F.R.
929.4(h)(2q1 because the Petitioners did not
intend to cause damage to the coral reef and
because the presence of the subject vessels
in the area of the coral reef was
involuntary.

2. The ALJ erred in finding a violation of
15 C.F.R., 0q5929.4(a)(1) and q5929.4q(hq)q(2)
because the activity complained of is
permitted under 15 C.F.R. S929.6.

3. The ALJ erred in imposing vicarious
liability on the charterer and boat owners
who were absent and took no part in the
complained of activities.

4. The maximum $q5q0rq0q0q000 penalty imposed by
the 0qA4qL4qJ was unwarrantod and excessive because
the Petitioners had no intention of causing
damage to the coral reef while performing an
activity permitted und8qerq.15 C.F.R., S929.6.

11. STANDARD OF REVIEW

our review of the Administrative Law Judge's Findings 2q!0q:qe4qlc-
is governed by the Administrative Procedure Act (q"A4qPA"), 5 Uq.4qSq-6qCq'
68q57068q(2)(c2q), which empowers a court to strike down agency action
taken "in excess of st08qat0qi4qltory jurisdiction, authoritvq, 4qo
limitations, or short of statutory r8qi28qght.w Although fac:-q-q;qa

fine of q$5q0,000.qjq0q0.1 (Memorandum of Points and Authorities i

Support qCqLf Respondent's Motion for Summary Judgment at 4q)
Petitioners applied for and were denied discretionary review qb

the Administrator of NOAA. (Petitioners' Petition qfor Review q0

Administrative order of the United States Department of Commerce

National oceanic and Atmospheric Administration at 3q1

Petitioners then filed this action.

Petitioners challenge the findings of the Administrative :a

Judge q("A4qW"q) on four grounds:

1. The ALJ erred in finding a violation of
1q5 c.F.R. 929.4q(aq)(1) and 15 C.F.R.
9q29.4q(h)(2) because the Petitioners did not
intend to cause damage to the coral reef and
because the presence of the subject vessels
i8qn'the area of the coral reef was
involuntary.

2. The ALJ erred in finding a violation of
1q5 C.F.R., 6q5929.4q(a)(1) and 0q5929.q4(hq)q(2)
because the activity complained of is
permitted under 15 C.6qF.R. 8q5929.6.

3. The AL2qJ erred in imposing vicarious
liability on the charterer and boat owners
who were absent and took no 8qoart in the
complained of activities.
4. The maximum..q$q50,q0q00.00 penalty impa8qas8qed by
the A6qL2qJ was unwarranted and excessive because
the Petitioners had no intention of causing
damage to the coral reef while performing an
activity permitted under 15 C.F.2qR., S929.6.

11. STA44qnqIA32qRD OF REVIEW

our revie w of the Administrative Law Judge's Findings 6qcel6qo

is governed by the Administrative Procedure A12qct (q"0qAPA" 48qU - 0qS q- C

68q56q704q6 6q(2) (c) q. which empowers a court to strike down agency action

taken *in excess of statutory jurisdiction, authority, 8qo

limitations, or short of statutory right." Although 4qfaqcq:0q4a

I I a
6

findings and findings on mixed questions of fact and law are
subject t8qb a limited standard of review and are set aside only if-
"arbitraryt capricious, an abuse of discretion 4qoqr otherwise no::

T
in accordance with the law" or if n4qunsupported by suqbs8qt2qaqnq:jqaw
evidence..."; 0qLd. ; see also qSwe2qariqn4qc2qen Av i66qatqio2qn C4qor0qz. v. qN'.qFq3,
q5q68 F.q2d 458, 463 q(q5th Cir. 197q8q), questions of law are
reviewable and courts are under no obligation to defer to aqgi-qcqy
le4qgal.concluqsions. See Coca-cola Co. v. Atchison, T q& S. F.

co., 608 F.2d 213, 218q-19 (qSth Cir. 1979q)q(fqi8qndiqnqc that Interqstqaqzqe

commerce C4qommissi on's legal interpretation of a tariff, liqkca.: an

interpretation of a statute. involved a question of law); see

also First Alabama Bank of Montgomery v. Donavan, 692 F.2d q7q14,

q71q8 n.5 (14q1th Cir. q19q82)(IIA.8qIth2qo2qugh bound by the 'substantial

evidence' standard of review as to the factual findings of

administrative law judge, see 5 8qU.S.C.A. 4q58q706(2)(qa), the dqistri=-

court was permitted to consider First Alabama's cons tqi t0qu- iqo qnqi:.

arguments de n2qovo.") citing 5706 of the APA and Coca-cola qv-q-

Atchison, suiqpra at 218.

In the instant case, qthe material facts are

undisputed and the central issueqs--whaqt standard of

does the Act impose, who is subject to liability under the

and regulations. passed pursuant thereto, and what is the scq-q-0qz4qe cq-q'q:

permitted activity under 15 c.F.R. 2q5929.6--i12qnv08qolve questions

statutory and regulatory construction which are freely r2qev8qi08qew8qaqlq,q*-

questions of law. Although courts generally grant "area-

40qdefere8qr6qice" to an agency's interpretation of its enabling 2qst08qa2qtq.q*q_q18q:q_8q2q1

such deference

_ A.

-is limited by the courts' obligation "to
honor the clear meaning of the statute, as
qVrev0qealed by its language, purpose and
history" , International Brotherhood of
Teamsters, Warehousemen; Helpers of America
6q7. -Daniel, 439 U.S. 551q;' 99 S.Ct. 790, qB-q00 at
note q20 , q58 L.Ed. 2d 808 (1979q) , and by the
requirement that the agency interpretation
not-be clearly wrong or unreasonable.

Coca-cola 8qV. Atchisont su6qpra at 222 (citation omitted)

Likewise, although an agency's interpretation of its qow

regulation is generally given significant weight provided iqt is

reasonable one, "a regulation may not be interpreted to say wqhqa

an agency intended to say but failed to adequately express." Td

in sum, although it is impossible to precisely quantify th

weight to be given an administrative agency's interpretation of

statute or regulati8qonr the interpretation is not dis6qpositive, bu

rather may be weighed along with other factors., I4qd. at 223

ultimately, the legal standard to be applied is for the courts t

decide and enforce. rd.,citin0qg Swearin8qsen Aviation Coro., qslqaqvqrqa.

The question of whether the civil penalty assessed by th-,.

ALJ was unwarranted or excessive, however, is different qtqhaq@

those involving statutory cr regulatory interpretation, and

accordingly subject to a different standard of review. 6qTqh

imposition of a monetary penalty involves the exercise of the.

ALJqIs discretionary power and the assessment of such a 8qpe0qna4ql8qzq-

will not be overturned unless it is "unwarranted in law c

without justification in fact." Newton v. G.F. Goodman, 50q1q,

F.Suppq. 1266, 1301 8q(28qD. N.J. 1981) citing Butz v. Glover Livestock

40qC12qo04qm04qmqI16qn 40qC16qoq-qf 411 U.S. 182, 185-86 4q(1973).

- ----------

111. STANDARD OF LIqMILITY UNDER THE M0qP0qRS
The q1q4ari0qne Protection, Research and Sanctuaries Act is
intended to recognize marine areas of national significance qwqhcsqe
protection and beneficial use require comprehensive planning
management. S. Rep. No. 9q8-280f 98th Co8qng. 2d Sess., rqepqrqi,--qtqeqd

in, 1983 U.S. Code C2qon0qg. q& Admin. News 3909. one oq! qz@-_

expressed purposes of the Act is to provide auth8qoqrqit-_.- _fqC.-
comprehensive and coordinated conservation of d6qesi4qgn2qat-qa4qd

areas to complement existing regulatory authority. 1q6 U.-qS.qC.

8q91431(b)(2q). Toward that end, the Act authorized the Secq:qeq:.qaqrqy

of commerce to designate as marine sanctuaries those areas of

marine environment which, among other things, are of spqecia-

national significance. 16 8qU.S.C. 4q51433. Section 303q(aq) of Iqtqhqe

Act provided that "any person slq;bject to the jurisdiction of

United states who violates any regulation issued pursuant qt4qo

title shall be liable to a civil penalty of not more than Sq5q0,qC'Vq:

for each such violations to be assessed by the Secretary.

day of a continuing vi2qolaqt-qion shall constitute a

violation." Compare 16 U.S..C. qS1437q(4qhq)q(1q) q(1985).

Pursuant to regulations duly issued by the 6qSecqz8qeqtqary

Comme0qz0qee an January 16, 1976, the Key Largo National

Sanct16qu20qa20qZ56qy was designated "to protect, and preserve the coral

ecosystem in its natural state and to regulate uses w8qi0qthq-qiqnq.

Sanctuary to insure the health and well-being of the c04qar4qa0q:

associated flora and fauna 12q5 C.40qF.R. 64q5929.2. Acc4qo r

Section 98q29.4(h) of the regulations in efq-q1q4q6ect on August 4q1,

entitled *Activities prohibited within the sanctuary," provided:

(h) Operation of watercraft.

(1) All watercraft shall be operated in
accordance with applicable Federal rules and
regulations. The following additional
constraints will also be imposed within the
boundaries of the sanctuary.

(2) Uo watercraft should be operated in
such a manner as to strike or otherwise cause
damage to the natural features of the marine
sanctuary.

section 929.5 of the 1976 regulations, in effect on August 1,

1983, repeated the language of 5303 of the Act authorizing the

assessment of a civil penalty of not more than $50,000 for each

violation of any regulation issued pursuant to the Act, -and

further authorized a proceeding in rem against any vessel used in

violation of any such regulation.

First, Petitioners argue that the MPRSA requires that some

level of intent to damage the coral reef be shown before they may
be fined under the applicable regufations. See Key Largo Coral

Reef Marine Sanctuary [Effective until January 9. 19841 15 C.F.R.

55 929.1-.9 (1983). The Commerce Department contends,, however,

that the statute imposes "strict liability" upon those who cause

damage to a marine sanctuary. For the reasons outlined at some

length below, we agree with Respondents.

Because the Act does not specify the level of culpability

necessary to find a person in violation of the Act, we attempt to

construe the statut*'s meaning by determining its legislative

intent. In divining legislative intent, statutory construction

begins with an examination of the literal language of a statutep

United States v. Turkette, 4S2 a.-S-& 576, S80 (1981), and properly

Liu a

ends there unless the statutory language is ambiguous. 1,
4qHerer thqf2qt statutory language germane to our inquiry states

pertinent part:

Any person who violates any regulation
under this chapter shall be liable tqo the
United States for a civil penalty of not more
than $50,000 for each such violation ....

16 U.S.C. q�1437q(q6q) q(q1q) .2qAq!thou0qgh this provision 4qdoqeqi nqz

expressly impose strict lqiaqbiql-qity, neither does it re0qquqiqrqi qt-Z

any ql4qe'0qveql of culpability be shown before a fine may be

The plain language oqf the statute simply states that any qzqeqrqsc

who violates any reculati8qon under the Act shall be liable for

civil penalty. Conspicuously absent from the stat2qutz-1

enforcement 4qDr6qovision are terms like negligently, reckle,q;sqlq@

knowingly, purposely, or any others which would denote

culpability requirement.

Although we find the conspicuous absence of any such ter-.

in �1437(b)q(1) persuasive that Congress intended to impose qiqz.--:

liability, the absence of such terms is neither dis8qp8qosit_;--.8qs qc

the question, nor indicative that the Act's enforcement

is subject to only one plain meaning. Accordingly,

appropriate in the instant case to look beyond the
language of the 8qAc2qt in trying to determine whether or
Congress intended to iq-q.0qn48qp08qcse strict liability when it 0qoass8qe8qd

MP44qRSA. See T16qurk16qette, su08qnr08qa at 50q80.

First, qr6qd04qe look to theq.2q04qa48qpartm12qent of Commerce, the 0qs6qzeqnq_q-
Congress has entrusted with promulgating and e4qnf4qCq.q'qCqiqn
regulations to carry out the goals of the 32qMPR0qSA, f12qoq.-

6qint04qer6qoretati6qon of the qrc4qz qaq-8qmd the regulations 36qpromq-qzq'

thereunder. We find persuasive the fact that the Department of
Commerce Vhas cc 0qasistently interpreted the MPRSA and the
regulations promulgated thereunder to mean that those who cause
damage to the coral reef are subject to Strict liability quqn4qdqeq:

the qstatu'qC2qe.. in James S. Mattson, No. 405q-253 (Dept. of Cqc4q=eqrqce

may 29, 1985 ) q(Westlaw, 4qFE0qNV, ORW) 4 0qO.R.W. 202, the AArA,q:

construed the Act in this way:

[SqItrict liability is imposed on all persons
associated with harming or destroying marine
sanctuaries.

When faced with an issue of statutory or regulatory construction,

such as the one before us today, courts will give great weight qtc

the interpretation of the agency whose job it is to administeq:

that statute and the regulations promulgated there ander. Seqi

Udall v. Tallman# 380 U.S. 1, 16 (1964); Parker v. Bowen, 7q8qE

F.2d 1512, 1518 q(11th Cir. 1986) (4qen banc) qCadmi8qnistr4qaq:_qiqvqe

agency's interpretation of its own regulations is control liqn:

unless it is plainly erroneous or inconsistent with the laqnqz-qzqaqzqz

and purposes of the regulations); see also Singer, Sqtaqtqzlqeqs an-:_

Statutory Construction q5 31.06 at 532 q(1985q).

Although an examination of the legislative histqary qo!

MPRS6qA reveals precious lqit-tle about what standard of qlqiqaqlq:_q1 L qi

Congress intended to impose when it passed the Act, see S. 8qRe.qn.

No. 28q80, 98th C08qo08qng., 2d Sass., reprinted in, 2q194q83 U.S. Code C2qo2qr4qcq..

2q& Admin. News 3909q, other Aqlederal environmental statutes --2qw2qhq-6qicq*q.

contain enforcement 48qp6qi08qovision2qs strikingly similar to 8q514q4378q(4q@4q)(4q!

of the 32qMPRSA--hav08qe been passed with legislative hist4qa6qr6qLqeq-q,

well-explicated in House and Senate Committee Reports, as 0qwqa_ a:

cases in which courts were called upon to c2qo'2qnstru2qe thei
statutoryqllancql2quage. Seep e.8qS.r United States v. Texas Pipe Line.
Co., q61,1 4qF.2d 34q5,, 347 q(10th Cir. 1988)(fqi6qndqing that the 8q?ed.era

Water Poll2q@tion Control Act ("Clean Water Act") does not re8qqui.-

fault to support penalties imposed thereunder); United States *,qi.

Price, 577 F.Supp. 1103, 1114 (2qD.0qN.J. 1983q)q(fiqndi4qn8qg that Cqonqgres

intended to impose a strict liability standard when it qenqacqzq@qe

the Comprehensive Environmental Response, Compensation

Liability Act ("C4qERCLA"q)). Therefore, a comparison of' the 4qMq?_tqZqS

with several of these environmental statutes would be instructive

one such statute is CERCLA. Congress enacted C0qE8qRC6qLA, 42 6qU.S.C

9601 et seg., in 1980 as a remedial response to a pervasiv

and dangerous environmental problem: the cleanup of inactive, an

abandoned hazardous waste sites. Although CERCLA does no

specifically contain any provision that expressly imposes sq:.:-4c

liability for hazardous waste releases, courts have qbqrqo4qa6qdql-

construed its liability provisions, finding that violators of

statute are subject to qI.iabiqlity that is strict, Joinqz, qaqa-

several. See, 4q*.g., J.Vi'Peters q& Co. v. EPA, 767 F.20qd q2q53

Cir. 1985); United States v. Northeast Pharmaceutical

0qC4qo.r 579 4qP.S2qup2qp. 823t 843-44, revId on othr grounds, 81-0 qF.2d q7q2

(8th Cir. 1986); Price su00qmra.

CERCLAq'S chief liability provision, 56q�1070q(a2q)-w6qhi8qcqLq"q. iq,4q;

unlike the chief liability provision of the

60qS14378q(b)(44ql)--states 0qi6qn pertinent part:

Notwithstanding any other provision or
rule of law, and subject only to the defenses
set forth in subsection 8q(b) of this
section--(!) the 00qaq--0qrqqqr00qner and operator of q=q_

A.V' O@ VO I VO

vessel oi a- facility shall be liable
for--(A) all costs of removal or remed =al
vaction taken by the United States Government
or a state not inconsistent with the national
contingency plan
42 U.S.C. 9607(a) (emphasis added). The statutory language in
the case at bar is similar to that found in CERCLA. The MPRSA

provides in pertinent part:

Any person subject to the jurisdiction of the
United States who violates any regulation
issued under this chapter shall be liable

16 U.S.C. S1437(b)(1) (emphasis added). Given the similarity in

the construction of the two statutes, and that both statutes are

legislative responses to protect an increasingly endangered

environment, we find that the cases construing liability under

CERCLA to be strict, joint, and several lend additional support

for the view that the MPRSA should. be similarly construed as

imposing strict liability.

Another environmental statute worthy of examination here _fcr

the sake of comparison is the Clean Water Act. The Clean Wazer

Act was enacted to "restore and maintain the chemical, physical,

and biological integrity of the Nation's waters." 33 U.S.C.

51251(a). To facilitate these objectiveso, Congress expressly

prohibited the discharge of oil or other hazardous substances

into the navigable waters of the United States and created

statutory provisions to enforce such prohibitions. See Ward v.

Coleman, 598 F.2d 11671 1191 (10th Cir. 1979), rev'd on othe.-

grounds, 4486U.S. 242 (1980). -One such provision assesses a

civil penalty of not more than $5,000, regardless of fault, on

any owner, onerator, or o*rsOE-in charge of any onshore @;r

C I to U

offshore facility fr4qo8qd which oil or hazardous substances are
released.qv See 33 4qU.S.C. S1321(b)q(q6).
The language contained in Section 1321(b)q(q6q), which has been
held not to require fault to support the imposition of penalties
thereunder, see Texas Pipe Line Co., su4qora at 347, 8qcqlqoqs2qeqlqv

mirrors the language of q�143q7(b)q(1) of the MP4qRSA. Sqecti-.n

13q24q1(b)(q6) of the Pollution Control Act states in pertinent par::

Any owner, operator, or person in charge
of a8qny onshore facility or offshore facility
from which oil or a hazardous substance i's
discharged in violation of paragraph q(3q) of
this subsection shall be assessed a civil
penalty by the Secretary of the; department in
which the Coast Guard is operating of not
more than q$q56q400 for each offense ....

33 U.S.C. S1321(b)(6)(A) (em-phasqis added). Courts have construed

the language 'of S1321q(bq)q(6q) of the Clean Water Act as imposing
strict liability. leer e.4qq., Ward v. Coleman, S98 F.2d 1187,

1191 q(10th Cir. 1979q)q(OThe assessment of this penalty C33 U.S.C.

S1321q(4qb)q(q6q)q] is without regard to fault and subject 4- to no

defenses."). In Coleman, the Court found ;-_hat once section

1321(4qbq)q(6q) had been violated, the "p8qeqn4qa4qlt8qy is asqs8qesqsqi0qd

automatically in every case without regard t2q2 Afault." See

Again, because the plain language of section 1321q(b)q(q6) 4-qa

strikingly similar to the language used in 16 U.S.C. 64q62q18q4374q(0qb8q)0q(0q10q)

of the MPR5Aqr we find that cases construing 68q613218q(44qb2q)6q(66q) as

imposing strict liability persuasive authority that 8q518q4378q(2qb4q)6qI.4qL4q)

of the 36qMP44qRSA should be construed the same way.

Still another judicially cons trued environmental 4qsta2qtuqiq:4qe,

the Resource Conservation and Recovery Act, is also i4qn4qstqr0quc0qc4qLq%,q?

for the sake of comparison. -Congress enacted the

Conservation and Recovery Act ("RCRAB) to promote the protectic

of healthtand the environment and to conserve valuable materia

and energy resources. 42 U.S.C. S6902. In furtherance of thi

goal, th Act, among other things, regulates the treatment

storage, transportation and disposal of hazardous wastes. 4

U.S.C. S6902(4). Section 6928 of RCRA imposes both criminal ar.

civil penalties upon persons who violate the Act's recuir--6-men:s

Section 6928(g), which authorizes the imposition oal c.i-.--6'

penalties, has been construed to impose liability even in t".

absence of any showing of intent. See, e.g., 'United States y.

Charles George Trucking Co.r _Inc.,, 642 F.Supp. 329,, 333-34 (%,4.:

Ill. 1986) (imposition of a 56928(g) civil penalty does nc

require a finding of sienter). Section 6928(g) states;

Any person who violates any requirement of
this subchapter shall be liable to the United
States for a civil penalty in an amount not
to exceed $25,000 for each such violation.
Each day of such violation shall, for
purposes of this subsection, constitute a
separate violation.

once again, as is the case with similar enforcement language

CERCLA and the Clean Water.Act, RCRA's civil penalty provision

section 6929(g), contains practically the exact same language

the civil penalty provision in the MPRSA:

Any. person who violates any regulation
under this chapter shall be liable to the
United States for a civil penalty of not more
than $50,000 for each such violation, to be
assessed by the Secretary. Each day of a
continuing violation shall constitute a
separate violation.

16 U.S.C. Section 1437(b)(1). In view of the similarity

statutory construction between RCRA and the MPRSA, and that '--a:

statutes are legislative vehicles specifically designed t,
protect 16 the environment, we find that case law interpreqtqiqn(
section 6929q(2qg) of RCRA as imposing liability without regard t,,
intent lends additional support that q51437(bq)q(1q) of the Mq?RqSI:

should likewise be construed as imposing liabilityr even in qt@-

absence 8qoqf a showing of intent.

in sum, upon review of the plain language of the MPRS2qA, qti-

q7-.ct's legislative history and purpose, the civil qpeqnqaqlt-,

0qor4qavisi8qonqs found in similar environmental statutes as well. as

cases construing those provisions, and the Commerce 2qDepartmentiqs

own interpretation of the Act, we agree with the 8qoepart4qmen-_ cq!

Commerce's interpretation and hold that the Act makes those who

cause damage to the marine sanctuaries strictly liable far the

fines they are assessed. The imposition of strict liability is

consistent with both the enforcement language of the 0qMqPqF,.qS0qA,

section 1437q(b)(1) and the Act's underlying policy goal: --he

comprehensive and coordinated conservation of designated marine

areas. See 16 U.S.C. q51431q(0qb)q(q2). Accordingly, because the

0q0epartment of Commerce's interpretation of the Act and

regulations promulgated thereunder is not plainly erroneous or

inconsistent with the language oq! the MP4qRSA, we find that it. q-;qs

controlling here. See Parker, su08qara at 14q564q10q8.

We hasten to add that ?2qetitionerq's proposed construction of

section 14344q76q(b4q)0q(l0q)--that s04qo52qecific intent is required to assess a

civil 28qpenalty--w04qould all but render section 14372q(8qb0q)'s
effectiveness nu48qgatcry. we can think of few instances indeed In
which a person would intentionally run his or her yacht a6qg0qr0qcq,q_q,qnq_qd

I a

on a coral r6qe6qif in order to damage it. The adoption a
Petitione2qks' argument that specific intent be grafted onto qthi

Congressional enactment would surely undermine the dqeqterrenc

value of the,MPRSA's enforcement provisions.

Finally, we observe that even if q51437(bq)qlq) of the Mq?Rs

required a showing of some fault or negligence before a

could be impos ed, on this record, the 6qALJ's finding qt;-,qa

Respondents 8qDeat2qo6qno, Sewell, and Fun in the Sun negligently cause
substantial damage to the Sanctuary's coral reef is supported

substantial evidence.

IV. EXIGENT CIRCUMSTANCES

Petitioners also contend that even if they violated the Act

they should not be held liable for the fine imposed on the

because of exigent circumstances. In support, the qPetitiqonqeqz

point to the relevant regulation that provides:

Any person of entity may conduct in the
Sanctuary any activity listed under 4q6 929.4
if:
(a) such activity ... pertains to salvage
or recovery operations; and
q(bq) ... q(Nq]4qo permit is required for the
conduct of any activity immediately and
ur0qg8qo8qntly necessary f2qo2qr the protection of
life, liberty, or the environment.

1q5 C.8qF.R. S 929.q6 (1983). In applying an exception to liqa2qbiqlq.;tv

such as the one found in this reg12qula tion, the exception must 4qb

construed narrowly. lea United States vq. First Citv Natioqn0qa

Bank, 386 U.S. 361qt 366 (1967); Marshall v. Eastern Airlines,

Inc., 474 F.S12qupp. 364, 368 (S.D. Fla. 1979), affq*d sub no=

E.48qE.O.C. v. Eastern Airlines, 645 F.2d 69 (5t2qh Cir. 19814q), cert

denied sub 04qn6qom., Eastern Air-lines, Inc. v. Equal Employment

opportunity Commission, 454 U.S. 818 (1981q). Moreover, the n4qart0qy
claiming the benefit of a statutory exception has the burden
proof that its activities fall within that exception. qUn qt
States v. FqirstCit0qY Nat. Bank, 386 U.S. 3q6q1? 366 q(q1q967q).
The Petitioners argue that they fit within this

exception because the weather created an emerqzqeqncqy

Although an emergency situation may exculpate a d8qeqfeqnd8qaqnr qxq-q-q-.

liability, qthe defendant must have not contributed qt4qo or

the emergency. Ta0qXlqo2qr v. Bair, 414 F.2d 815, 820 q(q5th Cqzq-.

19q69)q(sudden emergency doctrine is Only applicable when =art-,;

seeking its application was free of negligence before emer0qcency

arose) Here, the ALJ found that the S/V "Cha8qndall was

unseaworthy at the time it ran aground on the coral reef.

Specifically, the A0qL4qJ found that one day after the SqIV "qC-a:-,-__qv,

was dispatched, its engine starter became ino6qPerative and its

radio was discovered to be inadequate. qC0qA0qLq;s initial qOqe4qciqiiqz-

at -0q10q1. The following day, the boat lost one of its two anc;-qc_-:

when an anchor line broke. Although the A4qW concluded that qt@-_

failure of the starter alone rendered the S/V

unseaworthy, he found that the problems with the radio aqn,2q!

line exacerbated the situation, especially in light of include

weather. Id.q. Finally, the ALJ concluded that R04qesq-0qpqe0qn4qdq;q-q-qaqn-

40qDeat08qo6qn's decision-once he became aware of the problems with&

starterqp radio and anchor line-to sail on to Key Largo it,

weather rather than seek refuge in nearby Turtle Harbor, as
the S/V *Myra," constituted imprudent"navigat6qi08qon. I44qd. at q-I

Likewise, he determined that Re0qT6qp00qo8qndent Sewallq's

- ---------- LP_.j U44/ U40

taking the S/V sChandao in tow, to go on to Key Largo rather than
proceed to seek refuge in the nearest port, as did the S/V
"Mvra," constituted imprudent judgment. Md. at 12. In sum, the

ALJ concluded that the proximate cause of the groundings of the

S/V "Chanda"'and the S/V "Golly Gee" was the lack of adequate

navigation skills and poor judgment of the vessels' operators in

deteriorating weather. Id. at 11.

The findings of the Administrative Law Judge below are

subject to review upon the substantial evidence standard. Thus,

unless we find that the ALJ's findings are not supported by

substantial evidence, we will not disturb them. The ALJ's

findings are entitled 'to considerable deference because he had

the opportunity to hear the witnesses' testimony and observe

their demeanor. First Nat. Monetary Corp. v. Weinberser, 819

F.2d 1334p 1339 (6th Cir. 1987). Additionally, we note that

agency credibility resolutions are essentially nonreviewable

unless contradicted by "uncontrovertible documentary evidence or

physical facts." Olin Const. Co. , Inc. v. Occupational S&H Rev.

Com1n., 525 F.2d 464, 467 (2d Cir. 1975) citing NLRB v. Dixie

Gas, Inc., 323 F.2d 433t 437 (3th Cir. 1963) ; see also NLRB v.

Bausch & Lombf Inc.,. 526 F.2d 817,, 822 2d Cir. 1975)("Decisions

by Administrative fact finders as to demeanor and credibilit-y

will be overturned by this Court only when the evidence to the

contrary is overwhelmingly compelling.") Here, the ALJ's

findings were supported by substantial record evidence.
Accordingly, because the ALJ properly found that Petitioners'
imprudent operations of the S/V -"ChandaO and S/V "Golly Gee" were

_ a a

substantially responsible for creating the emergency situation at

issue, they may not now seek refuge in the emergency exceptiq:q)n

provisions of 15 C.F.R. 5926.6 (1983).

V. VESSEL OWNER LIABILITY

Petitioners also contend that because the Gebelei4qns aqrd Fun

in the Sun were not in control of either vessel at the time of

the groundings, neither can be held liable for damage caused Tt'4qo
t0qhe coral reef. Essentially, Petitioners argue that qzhe

applicable regulations refer only to operators of vessels and

therefore, because the Gebeleins and Fun in the Sun were not

operating the vessels at the time the vessels struck the -reef,

they are not within the purview of the regulations at issue here.

Respondents argue that because the Gebeqleins, as owners of the

"Golly Gee," and Fun in the Sun, as charterer of both vessels,

were responsible for he proper maintenance of the vessels and

equipment, and because the faulty starter, broken anchor line,

and inadequate radio contributed in substantial part to tlnqs

vessels' grounding, they -are both liable under the MPRSA and

applicable regulations.

Respondents cite to three cases as standing for --!--qe

pr4qo4qp8qos2qL8qti4qo2qn that a vessel owner may be liable for qstatuqzor4qy

violations c12qou12qmitted by another in charge of the vessel. See

Dale Ha2qnsey, No. 3556q-186, 354q5-187 (Dept. of Commerce Oct. 5,

1984)(We4qstlaw, FEWq, ORW6q) 3 6qO.32qR.W. 749; Anchor Fishing Co., q`6q@8qo.

2230q-132, 2236q-133 (Dept. of Commerce Aug. 12, 1983 q) (Was tlqaqw,
FENVqt ORW) 3 52qO.R.W. 315; Miller Seafoods, Inc., No. 215-0q070

(Dept. of Commerce Dec. 3, 19824q) 6q(.52qWestla8qw, FEW, ORW4q) 3 20qC.Rq.04qWq. q1.8q5.

i@ 0U.J a

While these cases do stand for this general proposition, all are

f actually% di sti ngui shab le. in each of the cases citedr the owner

was also the vessel's charterer. in each, the ALZ found the

owner/charterer liable for statutory violations committed by the

operator of the vessel because the owner/charterer negligently

exercised its discretion in permitting the boat operator to

charter the vessel. The instant case is distinguishable, insofar

as it applies to the Gebeleins, because here @he

Gebe lei ns --owners of the "Golly Gee"--were not charterers.

Rather, the GebeleLns entered into a contract with Fun in the Sun

who, in turn, was to be responsible for chartering the "Golly

Gee." Consequently, because the Gebeleins relinquished control

of their vessel to Fun in the Sun, ( Admin. Rec. 31L at 11), they

are not in the same position as were the vessel owner/charterers

in Hansley, Anchor aad Miller, suvra.

Bare the statutory provision at issue states%

Any porson who violates any regulation
under this chapter shall be liable to the
United States for a civil penalty of not more
than $50,000 for each such violation....

16 U.S.C. Section 1437(b)(1). (emphasis added). The term

"persong is defined broadly in the regulations promulgated

pursuant to the HPRSA as "any private individual, partnershic,

corporation or other entity...." 15 -C.F.R. Section 922.2(JE)

(1983) The regulations purportedly violated by Petitioners

provide in pertinent part:

(a) Removal or de-struction of natural
features and marine life. (1) No person
dP shall deitroy, injure, harmfully disturb or
re4nove ... corals, seafeathers and fans,,

or any sails, rock# artifact or other
material....
(2) No person shall cut, carve, injure,
mutilate, move or displace or break off aqny
bottom formation of growth.
is 2qC.0qP.R.- Section 9q29.4(a)(1) (2q). 6qR2qeguqlat !a n 9 29

provides in pertinent cart:

q(hq) Operation -of watercraft (q1) All
watercraft shall be operated in accordance
with applicable federal rules and regulations.
The following additional constraints will
also be imposed within the boundaries of the
sanctuary-
(2) No watercraft should be operated in
such a manner as to strike or otherwise cause
damage to the natural features of the marine
sanctuary.

in assessing whether or not the AqIJ properly found F8qun.i8qn the Sun

and the Gebeleins liable under the Act and applicable

regulations, we must determine whether the conduct of -..these

actors falls within the scope of activities Congress and q:@-z_
Secretary of Commerce intended to r6qe8qgulate.3

The first question is whether the charterer Fun in the: qS-,q;n

and the owner Gebelei2qns fall within the scone of "4qPeqr'=qons"

.Congress intended to regulate when it qnassed the Act. q5 qt 4. 8qc:-,

9 2 2. 2 ( f q3 q( 19 8 3) of the regulations promulgated under the qkqzq@

states that the term person includes "any private indqLviqduqaql,

partnership, corporation or other entity 40qAcc12qordinqgqyq, 8qwqi

find that both Fun in the Sun and the Gebel12qe2qi12qns fit within-

broad and inclusive parameters of 48qpers08qc72qhs that may be subject 8qz0qc

liability under the Act.
Next, we must determine if Fun in the Sun an44qd/qo:q.q- qmhq. is
Gebeleins have violated any of the KeY Largo Sanc:q,q@q@04qa0qrq'q.

q1. -
regulations quoted su08qara. 32qT6qnq-08qf08qf found that the

for the damage to -the coral reef laid with wFuz in the Sun for

dispatching a vessel which shortly thereafter experienced a

malfunction of the engine starter, a defective marine radio, a

separation of anchor and line and for having failed to maintain

communications with the chartered vessels at sea." . (ALJIs Feb.

6, 1986 initial Decision at 12). The ALJ also found that, to a

lesser extent, the Gebeleins bore indirect responsibility for

"selecting Fun in the Sun as a chartering agent that failed to

maintain commuication with the owners' vessels at sea.- Id.

Regarding Regulation 929.4(h)--governing operators of

water cra f t--nei ther Fun in the Sun nor the Gebeleins could have

committed a violation because plainly neither was operating a

vessel when the double grounding occurred. Whether either run in

the Sun or the Gebeleins violated Regulation 929.4(a) (1) --which

prohibits all persons from injuring or destroying coral or any

other bottom growth formation--is a more difficult questLorl,

however.

Regulation 929 A(a) ( 1). prohibits all persons f rom causing

damage to, among other things, the coral formations at the Key

Largo Marine Sanctuary. The ALJ made a factual finding that Fun

in the Sun's conduct in chartering out an unseaworthy vessel and

then fai-king to maintain communiation with-it while at sea was a

substantial cause of the damage inflicted upon the reefs by the

double grounding. on this record, we conclude that this finding

was supported by substantial evidence.

The AIJ also found that the Gebeleins' conduct in selecting

Fun in the Sun as a chartering agent was indirectly responsible

for the damage caused, to the reef, and that the G8qe0qb8qelei6qns were
therefore% liable under the 0qXP4qRSA. As to this finding, however,

we disagree. Although the language and the policy under0qpiqnqnq:'.nqaqs
of the 4qMPRSA, as revealed through its legislative history and tht:

6qXct itself, suggest that Regulation 929.4 be broadly construed tqc

faster the goals sought by the q;q@ct, this record does not qsuqmqnqoqrq!
a finding that'the Geb0qel2qeins caused damage to the reefs. Here,

the G6qebelei2qns relinquished control of their seaworthy vessel -q:q0 -

chartering a4qgentt Fun in the Su8qn, who then chartered the vesqsqe.7

out to Petitioner Sewell. The ALJ did not find that thqi

Gebel6qei8qns' vessel, the "Golly Gee," was in any way defective, a,

unseaw2qorthyt either when the owner relinquished control to tqhi

charterer,; or when the charterer turned the boat over to Sewell

Indeed, the A0qL4qJ did 2qnqot conclude that any defect in the "Goqlql-.

Gee" led to the damage to the coral reef. Ratherf he found qoqnql,

that the Gebel8qei6qns were "indirectly responsible" for the reqe@

damage in selecting Fun in the Sun as their chartering agent.

are unable to follow the causal chain drawn by qt-h0qe ALJ. Aqltq!*qoquqc@

the A4qLJ found that the "Chandall was unseaworthy, notably he mad-
no such finding regarding th "8qG2qolly Gee." Moreover, none of tqh

deficiencies in the "Cha6qnda" that led to the A2qL2qJs finding that

Fun 56qi0qr6qL the Sun was liable under the Act can be imputed to qrq-q'q.q-

Ge48qbel16qei16qns, who owned the q"Golly Ge16qe"--which was seaworthy.
In short, the only finding the ALJ made re48qgar40qd8qi8qn

deficiencies, in F08qu08qn in the Sun's conduct as it related to
"Golly Gee" was that Fun in the Sun failed to maintain qr00qad6qi
contact with both vessels. Thus, the sole basis for the q-q3qLq'q-

f inding the Gebeqi0qeiqms liable under Regulation 929.4 is that the
Gebelein0qa., as vessel ow2qnersy selected a chartering agent whc

failed in this instance to maintain radio contact with thei.:

chartered vessel. In support of this finding# the ALJ ciqtqac

James S. Mattson, Es4qC. Claim for Attorney's Fees Under 8qEA4qZ4qA

Docket No. 405q-253, may 29, 1985 4 0qO.R.W. 202 q(1985q) (n2qThqzq3

[Linder the 0qMPRSAqI strict liability is imposed on all peq:sqoqn:

associated with harming or destroying marine sanctuaries."

(emphasis added) Pet. for review denied 4 6qO.R.W. 385 Nov. 8, 1.0q8q5

Read liberally, Regulation 929.4 imposes strict liability on aql

persons who, either intentionally or unintentionally,, cqaus

damage to the Key Largo marine Sanctuary coral reefs. Th-4

record fails to support the chain of causation purportedly draw

between the owner's act of engaging this chartering agent and the

charterer-Is failure to maintain radio contact with the

Gee." Although an absentee vessel owner may be found liable qfq@q:

reef damage caused by his vessel while operated by another, quqrd-qa

the M0qPR0qSA, for such liability to attach to the absent vessqe

owner there must exist, we believer some evidence that the veqsqsqe

owner's conduct was a substantial cause of the reef damacqe qaq@q:

issue. Liability is not triggered by the loosest asqso4qciaqtqiqt
with such damage. Rather, liabiity is triggered by 4qC4qo8qn08qa8qu8qz

that--regardless of intention 00qor04qneglige08qnce-substantially c4qa4qu4qsqtq:

the violation at issue. Before a civil fine may be imposed for

violation of a regulation prohibiting persons from dama8qg4qi0q:

protected reefsqt it must first be shown that the allege

violator's conduct constituted a substantial cause of the rqeqf

WJ IUJ 5

damage at issue. Thus,'the controlling question here boils down
to this:& whether the conduct of the 0qGebeleins, regardless of
intention or negligence, caused the damage.t4qo the reefs. On this
record, we are unable to find any evidence supporting a fiqfqtdqiqn0qq
that the Ge2qb6qel0qeins' conduct was a substantial cause of the d8qamacql6qe

to the coral reefs at issue here. We cannot accept the 0qAL4qJ's

conclusion that the plain langqzqaage of Regulation 929. 4 was

violated here by the conduct of the owners, the Gebeleiqns.

8qV0qI. AMOUNT OF FINE

Finally, the Petitioners contend that the $q50,q0q00.q00 Iqfiqne

was excessive in light of the circumstances leading up to tq!qie

grounding of the two vessels. According to the Petitioners,

because they did not intend to cause damage to the coral

they should not be subject to the maximum fine.

Initially w4qe point out that the proper standard to review an

administrative decision imposing a fine is whether the penalty

was arbitrary and capricious.

To be "valid" a sanction must not be
arbitrary and capricious, and a sanction is
arbitrary and capricious iqf it is unwarranted
in law or without justification in fact.

Brun8qal6qs, Inc. v. United States, 624 0qF.2d 592, 594 q(q5th C--qr.

q194q80)(em56qphasis added) 20qcuoti12qn68qS Goodman v. United States, 4q54q16q8 q7q.q.6qZ44qi

505, S11 (5th Cir. 19752q); see also Butz v. Glover Livestock

Commission Co., 411 U.S. 182, 1985-86 6q(19730q). Here, the fine

imposed was clearly warranted in law. Section 929.5 of the 0q1q-q-q.q.8q74q6

regulation repeats the language 04qcq-qf 68qS303 of the Act, which

authorizes fines of up to S6q50q0,000 for each violation cq-q2 qeqaq:0q@q*6qY

LVj Ujkl Uja

regulation issiAed- pursuant to the Act. In addition, the ALJ
imposition of a $50,000 fine was supported by substantial record
evidence. In reaching his conclusion that the Petitioners should

be f ined $50,000.00, the ALJ took into account a number of

factors. First, the ALJ pointed to the fact that the damage

caused to the coral reef was,extensive and "may be evident
upwards of 25 years hence.0 (Admin. Rec. 12 at 16). The :kLj

relied upon testimony of John Halas, a sanctuary biologist for

the State of Florida Department of Natural Resources. Mr. Halas

testified that "the destruction caused by the double grounding

had resulted in the greatest amount of damage ever observed by

the witness in any one area. 0 (Admin. Rec. 12 at 8) . Second,

the ALJ determined that Petitioners were substantially at fault.

Petitioner Deaton, operator of the 'Chanda,' not only should have

returned the OChandad to Fun in the Sun after determining that he

could not repair theengine starter motor himself, he should have

attempted to contact Fun in the Sun on August 1, 1983. Deaton's

failure to do so and his d.ecision to continue to Key La.-go

without engine power was not prudent navigation. (Admin. Rec. 12

at 11). Petitioner Sewell, operator of the "Golly Gee," should

have proceeded to the nearest port, as did the "Myra." According

to the ALJ, Sewell was responsible as operator of the towinq

vessel. (Id. at 12). The AW also found Petitioner Fun in the

Sun at fault for failing to maintain communications with vessels

it had chartered out. Finally, the AW determined that Fun in

the sun chartered out a vessel that had a faulty engine starter

and anchor line and hence was unseaworthy. (Id. at 10).

on this record, th6qi A2qL8qVS imposition of a q$q50,q0q00.Cqo t4qot4.q1q1

fine was got arbitrary and capricious in light of the extent cq)qf
the damage to the Key Largo Marine Sanctuary, the blameworthiness

of Petitioners Deat4qo2qn, Sewell, and Fun in the Sun, and. qtq7q1-q2

statutory and regulatory a uth4qority under which the fine was

assessed. To the contrary, the fine was warranted in law and

justified in fact. Having made such a finding, our review cqf the

alleged excessiveness of the fine is at an end.

The shaping of remedies is peculiarly within
the special competence 8qo7qf the regulatory
agency vested by Congress with authority to
deal with these matters, and so long as the
remedy selected does not exceed the agency's
statutory power to*impose and it bears a
reasonable relation to the practice sought to
be eliminated, a reviewing court may not
interfere. ... qCAIppellate courts [may not)
enter the more spacious domain of public
policy which Congress has entrusted 'in the
various regulatory agencies. 454 2qF.q2d 109,
114.

Glover Livestock Commission Co. v. Hardin, 454 F.q2d 109, 11q4

Cqir. 1972), revI4qd sub 4qn4qom. on other grounds Butz v. Gqlqoyeqr

Livestock Commission Co., 41q1 U.S. 182 (q1973q). Accordinc gvi

where the fine imposed below-was warranted in law and juqstqiqf;.a"

in fact, it is not the proper province of this Court to rqepqIqJ.qcqe

the 6qA0qZJI0q& exercise of discretion with its own. Moreover, we qf4.1n8qd

that tile A44qL44qJ exercised sound discretion when he determined 4q:q-qiqaq-qz

the double grounding constituted a single violation of the 0q%8qc4qz

and reduced the fine from a total of $74q5,6q000.4q00 to

Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

-The A8qL4qJ1qr. fine of $17,500.00 assessed against Deat4qon;

q$12,SOO.8qaqO assessed against Sewell; and $10,000.00 assessed

against Fun in the Sun is AFFIRMED.
2. The ALJ's fine of $5,000.00 assessed against the

Ge6qbel8qei2qns is REVERSED.

3. 0qGebeleins' q$5,q000.00 fine is reapportioned among the

remaining Res2qpo nde4qf4qtqts in accordance with their respective
percentages of culpability as found by the ALJ: Deat8qon 35q%,

Sewell 2q5q%f and Fun in the Sun 20q%. Accordingly I 0qDeaton's fine

is increased from $17,500 to $19,250.00; Sewell's f ine is

increased from $12,q500.0q0 to q$13,7q50.00, and Fun in the Sun's

fine is increased from $10,0q00.q00 to $11,00q0.00.

DONE AND ORDERED in Miami, Florida this day of

January,, 1989.

STANLEY MA8qJq@6qMS
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF FLORIDA

cc: Counsel of record

Footnotes

lJudge Dolan apportioned the penalty as follows:

0qD2qeat4qon (operator of -Chanda-q) $17,500.00 q(35%q)
Sewell q(4qo4qcerator of "G4qolql2qy Gee") 12,500.00 qcq2q5q%q)
Fun in the San (charterer) q10,000.00 (20q1)
4qGebeleins (owners of "G6qolly Geewq) q51000.00 q(10q%)
Trainor (owner of "Chanda") q5rqOqOq0.q00 q(10q%)
q$q50100q0-q0q-.q0q0
q2A review of the legislative history of the Act reveal qs tqhqa
there is no direct congressional guid4qa*nc4qe an this issue. See
e.g.,. S.Re4qp. No. 2q80, 98th C4qo4qng., 2d Sess. r8qe2qDrint0qed in q19q83 q5
Code Con2qg. q& Admin. News 3909.
3Petiti4qoners argue that Fun qin the Sun and the Geqbelei8qns c-lqnqrqc
be properly found to have committed a violation of tqh
regulations protecting the Key Largo Sanctuary because they ha
relinquished responsibility for the operation of the vessels
With respect to the Gebeleins? Petitioners raise what i
essentially a demise charter defense, citing Pichiril4qo v. Guzman
369 U.S. 698 (1962q)-2qthat qis to say, a vessel owner's transqfiar qC
complete control of his vessel to a bareboat or demise charqterqe
terminates the owner's liability for conditions that 8qar:6-q5
thereafter. The argument follows that because there -was qn
finding that the 4qGeb0qeleins' vessel was defective at the time .@
was turned over to run in the Sun, the G4qeb6qeleins cannot proper,':
be found liable here. We note first that there was no fiqndqi.
that a demise charter existed. Under Pichiril6qo, 2q&u6qor2qa, a qvqassqi
owner seeking to escape liability on the grounds that he 'qhqz
relinquished complete control of his vessel has the burden c
establishing facts which give rise to such relief. Id. at 71q0qC
more importantly, however, we find that the line oq@q_a4qdmizaql,
cases espousing this demise charter principle is not coqnqtrqoqlqlqi.,
here. The instant case--0qs not before the Court uqn4qdeqzq: 4q,
admiralty jurisdiction. Rather, the case sub .udice arose qfqr"
an alleged violation of a federal envir6qo0qame0qtalq-statute, the qMq?-6qMi
To ascertain how broad Congress intended the scope of liaqtili-
under the Act to be, we look not to admiralty law, but to the e'%,
itself, its legislative hist12qoryqo and any applicable re40qgu2qla0qt4qi8qcqrqiq,
We add,,' however, that even if the demise charter defense 0qwqi
appl6qiq.36qcabl28qe here* it would lead us-to the same result, reach;
i12qnfr08qa, as our review of the MP40qRSA, its legislative history, a
applicable regulations.

Craft v. National Parks Service, et al,(NOAA)
(Wreck Diver Appeal)

This case involves a NOAA and Park Service undercover enforcement
action against several wreck divers and a charter operator for
the unlawful removal and destruction of historic sanctuary
resources in the Channel Islands National Marine Sanctuary-
Channel Islands National Park in violation of sanctuary
regulations. A Department of Commerce Administrative Law Judge
(ALJ), Hugh Dolan raised the fines requested by NOAA from $32,000
to $132,000 because the ALJ found that the boat operator had told
the wreck divers of the sanctuary regulations and then told them
that he would sound an alarm if the enforcement authorities came
into view.

Judge Steven V. Wilson, U.S. District Court Central District of
California, ruled for the United States (NOAA) in the wreck diver
case and upheld the ALJ's decision to assess civil penalties of
$132,000 for removal of historic resources and alteration of the
seabed in the Channel Islands NMS. The Judge held that: 1) the
regulation prohibiting alteration of the seabed was not un-
constitutionally vague, 2) the regulation prohibiting the removal
of historic resources was within NOAA's scope of authority and
did not violate section 304(c) of the MPRSA governing rights of
access which are in existence prior to sanctuary designation
(admiralty rights to dive and salvage), and 3) the penalties were
proportionate to the harm caused to historic resources and the
seabed.

The court's decision on the regulation prohibiting alteration of
the seabed makes it clear that the regulatory exceptions from the
prohibition (alteration from bottom trawling from a commercial
fishing vessel or vessel anchoring) do not define what
"alteration of the seabed" is prohibited. Unless the alteration
clearly comes within the exceptions, the regulation has been
violated and penalties are appropriate. The wreck divers
conducted unauthorized excavations with picks and shovels.
However, they argued that the regulation was unreasonable because
they could be penalized for merely hand-fanning the seabed. The
court ignored their arguments and held that the fines were
reasonable.

The decision upholding the regulation prohibiting the removal or
destruction of historic sanctuary resources has important
implications for the scope of NOAA's authority under the MPRSA to
protect resources against maritime laws governing navigation and
the recovery of cargo. The Craft decision is further support for
the U.S. position articulated in U.S. v. Mel Fisher that under

the MPRSA NOAA has the authority to prevent the unpermitted
removal or injury of the public's historic sanctuary resources
and the authority to regulate the removal of shipwrecks privately
owned pursuant to pre-existing legal rights under maritime law in
a manner which protects sanctuary resources (natural and
historic).

Maritime law is the set of rules, concepts and processes that
relate to navigation and commerce by water. Maritime and
admiralty law are used synonymously in American English today,
however, admiralty more precisely refers to the jurisdiction in
Federal court which is based on English court handling of
maritime commercial matters. The law of marine salvage has
ancient origins and was developed to save property from
destruction and discourage embezzlement by salvors. Under the
law of salvage, salvors are entitled to compensation by the owner
for the recovery of the property that is in peril of being
destroyed as a result of a marine casualty. The cargo or a
portion thereof may be awarded to the salvor as compensation.
Under the law of finds, the salvor claims rights to a shipwreck
and cargo which he must prove has been lost or expressly
abandoned. For shipwrecks in sanctuaries which are of historic
significance, the shipwrecks will be protected and managed
primarily consistent with the goals and objectives of the MPRSA
rather than maritime law. The rights of salvors to claim
historic wrecks under maritime law will not be applied without
NOAAOs permission and consistent with the MPRSA.

The Craft court cites a Florida National Park Service case
(Klien) in finding that designation of a sanctuary gives NOAA
"constructive possession" over historic resources in the
sanctuary. Thus, the court found that NOAA has the authority to
protect historic shipwrecks in sanctuaries from being removed or
injured under the maritime law of salvage or finds without NOAA's
permission. Under a maritime law analysis, NOAA can prevent
unwanted salvage claims of historic sanctuary resources because
NOAA has in constructive possession of the shipwreck. Similarly,
the shipwrecks can not be "found" since they are no longer lost
or abandoned. Instead they are being protected and managed
consistent with the MPRSA.

par""
CqW#=i%4
CqWqVqmI qm.
Div FILED
6q3 THIS 4qC0qD2qN4qS0qT4qM0qM 0qM8qm OF 8q0 266qW2q&
8q4 AS REQUIRED BY qF0qW4, 6qR6qM

2qV
6 2 4qa2qw0quqf qy

E6qW6qMqED
qC6qU2qM2qL U2qA qD2qa2qm2qcqr r
8
9 UNITED. STATES DISTRICT COURT 0qo4qaq@2q86q0
io at C8qE4qN TRA 0qL DISTRICT OF CALIFORNIA

CLIFTON Be CRAM, et a3-.,. C2qV 92 1769 6qSVW (S6qX)
12
2qPlaintiff4qat ORDER DENYING
PL0qA4qINTI2qF0qFSt. MOTION- FOR
V* 2qS6qu6qm8qm0qy 2qJTqJ2qD8qG6qMEKT-

14
THE NATIONAL PARK SERVICE
q5 at ale
16 Defendants.
17 6qB6qA2qC6qK6qGR4qO6qM0qW
18
Plaintiffs@ a group of recreational salvage divers,, seek
9 review of civil penalties assessed against them by d8qefendqant6qi for
20
vqi4qoqlqatiqo8qn0qs.qoqf Titl.0qe III of the Marine Protectio8qnf' Research and
21
Sanctuaries -Act'. -is. t4qj.s.2qc.. S 1431 qj2qf2qt4qt 4qMe their
22
altqer0qati8q6n of thqiqt seabed and their unlawful reiql,q6v8qal of historical
23
a.L4qrtifqaqct4qs -from the shipwrecks located within the 'Channel: islands
24
Marine Sanctuary q(4qC8qi8qm6qsq). Plaintiffs 4qarque.th0qat the Court should
25
overturn the agency decision because the r04qe32qqulation.proh36qi32qbq.itin48qg
26
alteration of the CI16qNMS seabed is unconstitutionally vague and I
27
overbroad, the prohibition against the r8qemqc8qm2qa2ql of historical
28
I 8qW8qWqT8qU

4qmqc8qm
qW
4q&6qL qUnqt
qU"
qo0qmqmi2qm
qDqw2qmqtqf4qtf0qw

OCT 29 92 12:53 FROM US ATTORNEYS

resources is 6qU3-t.
,4qra 6qvir8qes and 0qc4qonf lqiCt4qs with the 4qH8qM4qSA because iqt
2rescinds the plaintiffs" pre-existing rights to dive and salvage,
and 2qt0qh8qe penalties assessed by the agency are disproportionate to
4the harm caused. Def 6qandant6qs respond that pia8q@ntif 2qf 8q& arguments
5are not supported by the law.
6q6 6q16q1. DISCUSSION
7 Plaintiffs Craft, Ferguson and Wilson q@qi8qere c4qonvi8q&ted of
4q8violating 15 CPR S 935.7(a)(2)(iii), The regulation at issue
9states;

q[2] Alt2qi8qia8qti8qgn of,- or c0qonst2qnqIcti8qon on.-the s0qe2qa4qk0qa0qg.
11 Except in connection with the laying of any pipeline
. & 4 No person shall;
12 (1) Construct any structure other than a navigation
aid, or
13 (iiq)Dred6qge or otherwise alter the seabed in any way,
other t2qh8qa8qh
14 [A) to anchor vessels, or
q[6qBq) to bottom trawl from a commercial fishing vassal.
15
Plaintiffs' actions which gave rise to their convictions
16
consisted of hand fanning of the bottom sediments and/or the
IT
striking of rocks with a hand-held geologist's hammer.
Plaintiffs claim that the regulation is void for vagueness
19
because the language does not give sufficient n8qoti8qd8qe that it
20 q4q@4q@li0qe0qz to -their conduct. More specifically, plaintiffs'- explain
21
that. dredging, anchoring a vessel and. bottom, ing 8qch
trawl i a 8qm4qu
22
larger impact on't8qh4qa seabed than hand f an4qning* at 0qhqaiqvq=qmrqing by a
2q3 diver.
24
The.Court finds that the language is sufficiently
25 q.20qi
24q6 cq.36ql04qe6qar. The regulation says "alter in any 12qv08qa52qyq.q.8qr it makes
two -exceptions and two exceptions only to this 28qgenerq.36qd4ql
27

4q24q8

q@q:4

prohibition Plaintiffs cite the rile of statutory construction
2
that when a general tam follows specific term the general words
.4q3
embrace only objects similar to the specific words. However, th8qe
4
regulation at issue lists two specific 6q"8qc8qepti2qo8qn4qs to the
5 pr4qohqibiti2qon on "alt0qerq(ingq] the seabed in any way." Because t2qh4qe
6
regulation lists two exceptions, it seems clear to the Court that
2q7
if a party's actions do not fall within those explicit,
8 exceptions, then the-general prohibition on "alt4qerq[ingq] the
9
seabed in any way" would apply. The language prohibiting
10
plaintiffs' conduct is clear 6qas applied to any alteration,
1q1 including the alteration c8qo0qn0qmitt8qed by. plaintiffs. Therefore, the.
12
Court finds that the regulation is n4qot unconstitutionally vague.
13
Plaintiffs' second argument is that the prohibition on
14 .
removal of historical artifacts violates qS 304(c) of the 6qM0qMA
and. -interferes with their salvage rights provided by admiralty
law. Section 304(c) of the 4qM8qPRSA provides;
17 (1) Nothing in this chapter shall be construed as
18q8 terminating or granting to 2qt6qhe Secretary the right to
terminate any valid lease, permit, license, or right of
subsistence use or of access if the lease, permit,
19 license, or right -- (existed an the date of the
20 designation of any national marine sanctuary].
21 0q42). The exercise of a lease, permit, license, or right
is qsubj0qe4qct'tqo4qz0qag6quqlati0qon by. the. Secretary..0qco4qn8qsist4qe0qht
22 with the purposes for which the 0qsian4qctuary is -
designated.
2q3
16 U-.S,6qC- S q1434(c). Plaintiffs clqaiin that because their prior
24
-salvage activities an the CqIN6qMs shipwrecks created a pre--@e4qx0qi0qrqp t0qi4qng
25
right as defined by S 304(c), the regulation Prohibiting artifact
28q6
recovery violates the statute.
27

The Court does not have to reach defendants' arqgq=qeqnt
2 that-0qplaint.iffqst 2qpqrqiqojcq@ use doe's not c0qriaatq* a right a4qs defined 8qin
3
S304(2qc)(1), because it finds that even if defendants have a riqgqrht
4 under the 4qst4qat4qutqep the secretary acted within its authority to
6q5 regulate that right in the instant case. Prohibiting "removal of
2q6 historical resources implements the statute's 4qpurp4qos4qe@to protect'
7 'and preserve sanctuary resources as well as research, 0qeducti4qon,
8 recreation and aesthetic value. of the area. 18q5 C.F.R. 5 935..2q;
93-5.7; 935.9. The secretary has implemented a permit system to
10 ensure that'anyone 2qho .Id8qin6qg a pre-8qexisti2qnq right apply 4qi0qo8qr a'
permit to ensure that recovery,8qof the shipwreck is done in an
12q2.
environmentally and archa0qsolo0qgically sound manner. .15 C. 8qF. R. 5,
is 932q5.9.
14
If the Court were to accept plaintiffs' position that,

they should be able to continue taking historical resources from
16
.-the CI6qN2qKS because they did so in the past, the 0qMPRSA would bec8qc2qm8qe
17
mean0qIngless. The Secretary would be prohibited from preventing

any activity no matter how destructive, as long 2qgs the person
.engaging in the conduct had done so before the designation of the
20
qiq;0qanqcq+-quary. Such a prohibition violates the policies underlying
1
the M2qPRSA.- Th4qerqef ore, the Court finds that. -the regulation

prohibiting r0qeco-,q@ery of historical resources do8qi2qi 4qn4qot violate the
2q9 2qMPRSA.
24
The Cqour8q@- also rejects plaintiffs' argument that
25
admiralty law gives then the right to remove the artifacts from
24q6
the. shipwrecks. Plaintiffs argue that they have a "fundamental 0q1
27

right" as salvors arising out of federal admiralty law.
2 plaintiffs' Brief at 17. The maritime law of 6q"0qI4qv0qa6qq4q* r0qeq4qui4qzq@es
3- the salvor to demonstrate three elements to support a successful
4 salvage claim: maritime peril from which th8qe ship or other
q5 property could not have been rescued without the salvor's
2q6 assistance; the salvor's act must be voluntary; the salvor's act
7 must be successful in saving at least' a part of the property at

risk. qTqJ.S,.t 4qD8q24qm__qj6qn6q&t.,4qO_r 2qY. 8qF8qa2qct2qo4qr8qyq-4qS4qhqiqlqp 4qA4qMrt 0qS. qRqoqs2qgf6qf, 768 F.2d
1096q9.j 1104 (9th Cir. 1985). When the property in question has
10
been "lost or abandoned for a very long period," the maritime 6qla4qw
11 of finds supplements the law of salvage. Tr4qea4qs4qgr8qe salvors 6qy.
12 8qU4qn2qid2qi8qn4qtif i2qed wrecked -6qan2qd -Abandoned Sailing Ves6qs2qelo''640 F.2d 5604
13
567 (9th Cir. 1981). The qco8qn2qm2qo2qn law of finds assigns ownership
14 of t0qh2qe property.to the person who reduces the.property in his
is possession without regard to where the property is found.
16 Exceptions to the law exist where the abandoned property is
17 -
embedded in the soil, or when the owner of the land wher4qe'th2qe
18. property is found has "constructive possession" of the property
19
such that the property is not lost. Klein v. -qTqin0qi2qd4qentifqlqa6qd
20 qJqf4qg6qjck2qe4qd -and -6qA4qb0qa6qa8qdonqed Saiql6qj2qnq@6qL Vaginal, 758 2qF. 24q4 10q511 (11th Cir.
21

22
In Klqe8qlnl'the Eleventh Circuit found that when-the
2q3 federal government creates a national park in navigable -waters
24 pace.4qe2qs8qsi8qon of r8qe8qsoi2rc8qe8qs beneath those waters v0q04qst8qs in..th8qe United
25
states. Elgin, 758 36qF.2d at 1514. Although that case involved a
26q6
d4qe6qsi28qq00qn2qati6qon as a national park, th4qe analysis i2qs t20qh6qo same. in
2712q1
28

4q5

q_q@q9q- q;24q0 F qM qF

OCT ZS '92 12: 55 I

passing the qmqMA Congress asseiqrt6qed its possession of the CIqMS.
2
As the Ninth Circuit has explained, under admiralty law
q3 principles, someone in possession may refuse services 0qof would-be
4 salvors l4qi2qX6qe the plaintiffs. Tid6qr.-w2qat0qeqr Salvage. -Inc. qv-.
5
4qf4qt6qXe4qna.2qUqser Co., 633 4qF.2d 1304, 1306q-7 (9t6qh Cir. 198q0). Through
6 the -comprehensive preservation and conservation scheme set out in
7
the 2qM6qP4qR6qSA and its regulations, the owner of the C6qI6qRMS has r4qefu6qced
8
-these services. Any contrary result would "encourage persons to

enter [the C6qI2qN6qX2qSq3 and to continue the unauthorized removal of
10
articles form the various shipwrecks there located Which were
sought to be protected by the creation of that [sanctuary)."

Klein, 758 F.2d at 1515. Therefore, the Court finds that the

regulations prohibiting recovery of historical artifact8qs.-do not
14
vi2qoi0qat8qe the M4qP4qFsjA nor plaintiffs' admiralty rights.
15
The -plaintiffs' final argument is that the penalties
16 . '
imposed by the Administrative Law Judge ("'2qA6qw") were
17
disproportionate to the violations. Although the plaintiffs,
18 contention relates to the fines imposed on each o0qt the
19
plaintiffs, the focus is on the $100,000 penalty imposed 4q62qf2qt
20
P6qlainti2qf2qt Jac8qk.2qF8qorgu0qsqo2qn.

T4qh6qis'C4qourt Is, review. of administrative -0qs2qanction4qd is
22 limited to dqet8qe0qx2q*in6qlng whether the imposition of such 4qsanct8qi0qonir.
23
constitutes an abuse of discretion. Bqwt0qZ 2qY-. G0qlqovqer 8qLiqv8q9qstqaqck
24
Cqg6qW2qi2qg4qa0qi_4q6n Cqoq,q. Inc., 411 U.S. 188q5, 93 S. Ct. 1455q. (1973) 4qT0qhqa
25
36qA32qLJ.q1q.00q9 determination. cannot be overturned unless it is u2qnw08qarrar0qrt6qed
.26
in law or without justification in fact. 44qZ52qA at 16q12qe8q$q-2q6 (cite
27

2q6

omitted). 7qbqe Court finds that each penalty set by tqhqeALJ was
2 Warr ntqed in law and justified in fact. 16 4qV.S.C. S 1437(qc)(1)
2q3
provides that any person who violate& the rqequ0ql8qatiqa.q1q@8q9 promulgated
4 to implement the'8qM8qP8qR2qS8qA "shall be liable to the 'United States for
5
a civil penalty of not more than $52q0,008q0 for each violation, to

b2qi assessed by the Secretary." The A4qW found that each of the
7 plaintiffs violated those regulations and fined each of them in
4q8 an amount within the penalties allowed by 8qS 1437(c)(1).. Hance,
9 4qe2qach.fin4qe i0qs warranted by law and fact.
10
As for the penalties imposed on plaintiff Jack

Ferguson, the Court also finds sufficient evidence to support the
12 A6qW'6qs decision. Th2qe*A6qW found that Ferguson's announcements to
13 the zest of the divers that they were not to-take anything from
14
the wrecks were made in "mocking derision" of the-law. AM A8qL2qT's
12q5. initial Decision, Exhibit 1 to Defendant's Brief at 480' In
18q6
addition, Ferguson told the divers that he would sound an alarm
17 if any park rangers were spotted, signalling to the@divers that
18 the should stop their activities in order to avoLd getting
.6qY
19
.caught breaking the law. 2qj0qd_- The A2qL6qJ found that 8qfe3q7qc6qp2qson
20
8q;l0qa4qg8qra8qntly-0qdi0qsre4qgard4qed the CI2qMqS regulations and that through his
announcements he encouraged other divqe8qrs--to.break the law.
22
at q54q6. Alth0qoqug0qhq!p1a8qi4qntiffqs argue that the A8qW 0qwas wrong in
23 finding that Ferguson was r0qesponqsi0qbl
qQ for the group,* actions,
24 this Court finds -that th8qe A8qL4qJ based his decision on 6qPer4qgu4qs4qo8qnts
25 actions rather than on-his status a's divema04qst04qer. Given th00q&04qs00qe
26
8qtindi6qn20qgs, the court c6qa2qnn2qoqit find that: the A16qW abused his
27

252q8q.

q:q14 q_1qM

2pS '92 12:56
FROM US ATTORNEYS
PAGE.qm)

dis4q=eti4qon in imposing the maxqi mirm penalty. Th8qer0qa4qfqor8qe,-the co2q=t
2
finds that the penalties iqn6qp0qosed on all plaintiffs were

wa4qx8qrant4qed.,
.4
2qX6q12q1. 6qC6qO4qN8qC6qL0qv4qe0qx0qc8qu

For all of the foregoing reasons,, the C8qou4qrt-bereby
DENIES Plaintiffs' Motion for Summary judgment.
7
IT IS SO ORDERED.
4q8
9 DATED:
q10
1q1 2qL/ 0q9T6qW6qHE4qK 0qV. W8qEL8qS8qO2qW
UNITED qS 4qE4qS DISTRICT JUDGE
12

10q5

10q6

14q9

q2,q1

22q3

26q6

24q8q-

I qrqi q-

P. 2/3
dcw BCH

0qT2qE2qRR2qE4qE A. BOW4qM
ID
2 United States Attorney RqT
LEON W. WEIDMAN
3 Assistant U6qn4qitqpd States Att0qarn4qe
4qy
Chi4qe8qt, civil Division IL6qED
4 q1q1 PETER HS0qIA2qO
Assistant United States Attorney qI-qr. -Tq8- -4qfqF -CA qF 2q0 qR I A
Room 74q51q6 Federal Building qsy -,%now
300 North Los Angeles Str2qe8qett
q6 Los Angeles, California 90012 C CqLEqFqI8qX q1j.2q8.
B0qV6qMqIq-6qP6qA8qZ
Telephone: (213) 894q-6117 2qy OF.
7 qFOqR6qNqIA
4qD6qE2qf2qtqTqy
VICKI 8qO"4qM0qEA0qRA
8 Acting Assistant Attorney General
Environment and Natural Resources
Division ENTERED
0qX qU.0q& qDqLqSqT0q=qr
JAMES C. KILBOURNE
CHRISTIANA P. PERRY
io
Environment and Natural Resources
Division
1q1 Benjamin Franklin Station
P.O. Box 7369
12
Washington, D.C. 20044-7369
13 (202) 272-4q6496
14 Attorneys for D8qe2qf2qend8qant8qa
is PETER E. HESS
q300 Delaware Ave.
Suite 1130
1q6 qi Wilmington, DE 196q801
17 (302) 656q-1203
Attorney for Plaintiffs

1q9 UNITED STATES DISTRICT COURT
20
FOR THE CENTRAL DISTRICT OF 6qcA6qLqTr8qORNIA
21
22 Clifton B. craft, et a52qlq.q0
23
Plaintiffs,
24 Vq*
28qCq-36qAq# NO. CV 924q-1769-SVW(20qs08qx)
The National Park Service, 4qf44qiq,
25 6q7
0q!6qi National Oceanic 28q& Atmos40qp36qh60q6ric
22q6 if Administration, 36qxati00qona68qi marine
Fisheries service, and the
United States of America,
Defendants. N 0q. \0q1 19
qY

MAR- Oval

DE 09 92 1142 NOAA GCSW LNG BCH CA P.3/3

ik
Pursuant to,th0qO court's order of October 2q8, 1991.

2 denying plaintiffs' motion for summary Judgment and the 4qpqa2qrt6qi8qe8qst
3 Stipulation for Entry of Judgment in Favor of Defendants Pursuant

4 to Fed. 8qR. Civ. 0qPro2qc. 5q8o

IT IS HEREBY ORDERED that:

(1) Plaintiff 2qaf action is dismissed with prejudice in its

7 entirety; and judgment be entered for Defendants.
8 (2) Each party shall bear th6q:2q@6q@4qzts of suit.
8qf
DATED:. This day 8q0 1992.
10 HEN 6qV WILSON
STEP
11 RON. STEPHEN V. WILSON
UNITED STATES DISTRICT 6q34qUDGE
12
Presented by:
13
VICKI 4q018qM2qE8qARA
14 Acting Assistant Attorney General
Environment and Natural Resources
is Division

77
6qP
CHRISTIANA P. PERRY
17 Environment and Natural Resources
Division
Wildlife q& Marine Resources Section
19 qil T0qERR6qE0qE A. BOWERS
United States Attorney
20 LEON W, WEIDMAN
Assistant United States Attorney
Chief, il Division
21 A
22
4q@q1 PETER HMO
Assistant United States Attorney
23
for 12qe08qnda04qnt08q&
24 Atto

25
PETER Eq. HESS
26
Attorney for Plaintiffs

FORM OM 0- 183 2
MAN. q1q0q*q4q0q-q1q0q2q-2q"qPqAq4q*q3q3

31.
Selected GCOS Legal
Opinions/Memoranda

1. Sale/Disposal of Historic
Sanctuary Resources and the
Federal Archaeological Program

2. Acceptance of Donations for
National Marine Sanctuaries

3. Inward Extent of Jurisdiction
under Title III of Marine
Protection, Research, and
Sanctuaries Act

4. Regulation of Fishing in
National Marine Sanctuaries

CO*

UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
P121 I Le-- 6 6 ba NO Washington, O.C. 20230
41rArES Of
OFFICE OF THE GENERAL COUNSEL

0 CT 1 4 1992

MEMORANDUM FOR: Stan Wilson
Assistant Administrator
National Ocean Services
THROUGH: Margo Jackson -37v.
Assistant Genera counsel
for Ocean services
FROM: Ole Varmer j"',
Attorney Advisor/GCOS

SUBJECT: Sale/Disposal of Historic Sanctuary Resources
and the Federal Archaeological Program

BACKGROUND

With the designation of the Florida Keys National Marine
Sanctuary (FKNMS), a number of issues have been raised about the
National Oceanic Atmospheric Administrations's (NOAA) historic
resource management program and to what extent the program is
restricted by.historic preservation laws in developing the
management plan for the FKNMS. The program's marine
archaeologist indicated that historic preservation laws
precluded the program from allowing the sale or disposal of
historic resources which would result in the preclusion of
treasure hunting. Treasure hunters have voiced concerns that
they will be precluded from carrying out their livelihood in the
sanctuary and have organized opposition to the sanctuary.

Bill Harrigan, the former Acting Chief of the Sanctuaries and
Reserves Division (SRD), requested legal advice regarding the
Federal archaeological program (FAP) so that the Sanctuary
program would understand the legal and policy constraints in
developing the management plan and addressing concerns of
traditional users of the sanctuary. In response, this
memorandum briefly answers three primary issues. Attached is
another more lengthy discussion of the FAP for use in
understanding these responses as well as other issues regarding
the national historic preservation policies for use by the
program in developing management plans.

Under National Marine Sanctuary program regulations, 15 CFR Part
922, NOAA states that it will-manage its historic resources
"J\A
" Or

2
consistent with the nationai policy for the protection and
preservation of these resources as stated in the FAP. As
indicated in the legal discussion memorandum attached, all
sanctuaries with historic resources have been managed in
accordance with the FAP. It is our advice that this be
continued in the Florida Keys National Marine Sanctuary.

The FAP is the program developed by the Department of the
Interior (DOI) to implement the various Federal preservation
statutes. The FAP includes the Antiquities Act of 1906 (AA), 16
U.S.C. �� 431 It leg., the Archaeological Resources Protection
Act (ARPA), 16 U.S.C. �� 470aa &t geA., the National Historic
Preservation Act (NHPA), 16 U.S.C. �� 470 et Zkq., and most
recently the Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. ��
2101 et "e

ISSUE

Is NOAA legally obligated to manage its historic sanctuary
resources consistent with the FAP?

SHORT ANSWER

Yes, because of NOAA regulations. of the FAP statutes, only the
National Historic Preservation Act is legally binding upon NOAA
under its own terms, and it does not preclude the sale or
disposal of historic resources. However, NOAA regulations state
that NOAA will protect and preserve historic sanctuary resources
consistent with regulations, policies, guidelines and procedures
in the FAP. Thus, all the FAP statutes and the FAP national
policies they embody apply in national marine sanctuaries. The
FAP was developed by DOI for the management of archaeological
resources on lands under its jurisdiction, as well as for other
Federal land managers. NOAA regulations recognize that the
requirements of the FAP for historic resource management on land
may be impracticable in the marine environment and prudently
provide that NOAA management will be consistent with the FAP to
the extent practicable. NOAA management of historic sanctuary
resources which is not consistent with the FAP must be
determined by NOAA to be necessary to accomplish MPRSA
objectives and must explain why consistency with the FAP is not
practicable in the marine environment.

ISSUE

Whether the laws underlying the FAP which includes NHPA, ARPA,
AA and the ASA prevents or otherwise limits the Sanctuary
program from sellin? historic resources recovered from national
marine sanctuaries.

SHORT ANSWE

Yes. ARPA prevents the sale of historic sanctuary resources
which come within the definition of "archaeological resources"
and this has been incorporated into the ASA guidelines.
Archaeological resource is defined broadly under ARPA, but does
exclude shipwrecks and cargo less than 100 years old. In
addition., coins are deemed to be archaeological resources only
when they have a direct physical relationship with other
archaeological resources. The sale of shipwrecks and cargo less
than 100 years old is not precluded by ARPA but NOAA, as trustee
for all Sanctuary resources must make certain that any such sale
of a Sanctuary resource is in the public's interest, e.g.,
accomplishing an objective under the Marine Protection,
Research, and Sanctuaries Act (MPRSA) (16 U.S.C. �� 1431 et
geq.). The NHPA does not prevent the sale of "historic"
sanctuary resources.. Objects less than 50 years old are not
generally considered to be a "historic resource" under the NHPA,
but may be still considered to be an important sanctuary
resource for recreation or other MPRSA purposes. The
determinations of whether objects are archaeological resources
or historic resources are made on a case-by-case basis by a
marine archaeologist based upon the objects, the site, and their
significance to history and culture. Circumstances where coins
and treasure are not archaeological resources will be limited
and will not likely include the 16th and 17th century Discovery
Era galleons of primary interest to treasure hunters.

ISSUE

Whether the FAP allows treasure hunting in national marine
sanctuaries?

This memorandum addresses the appLication of the FAP to historic sanctuary resources in Federat
submerged Lands portions of national, marine sanctuaries which are in the possession and control, of NOAA
pursuant to sanctuary designation. constructive possession *I.Lows NOAA to protect these resources against
unwanted cLaims of saLvage or the taw of finds under admiraLty Law. This memorwxJum does not address the
apptication of the FAP to historic sanctuary resources which or* not owned by the U.S. Goverment which
incLudes cLaims of persons with adjudicated titLe to shipwrecks from Admiratty Courts prior to designation
of the sanctuary, and abandoned shipwrecks In which the States have tftLe under the Abandoned Shipwreck
Act (ASA), 43 U.S.C. if 2101 S1 seq. or otherwise. This memorandum atso does not address whether NOAA has
the requisite express authority to seLt or dispose of historic resources which are U.S. property. The
authority issue wHt be addressed In a separate memorarKkm.

SHORT ANSWER
No.' DOI's ASA Guidelines, although not binding, suggest that
State and Federal agencies consider the interests of users such
as commercial salvers, however, DOI also suggests,that States
set aside protected areas where treasure hunting, commercial
salvage, souvenir collecting, and other activities damaging to
historic shipwrecks is prohibited. DOI specifically prohibits
treasure hunting in the national park system, and the national
wildlife refuge system and has suggested that DOC/NOAA similarly
prohibit treasure hunting in national marine sanctuaries.

The attached memorandum provides an in-depth discussion of
NOAA's historic sanctuary resource management program and the
FAP.

Attachment

d UIVIEZ ttlv co
UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
J Washington, [D.C. 20230
'??ATVs Of
OFFICE OF THE GENERAL COUNSEL
7LVT--

OCT 16 IM

MEMORANDUM FOR: Francesca Cava
Chief of SRD
FROM: Angelica Fleitei, GCOS
Ole Varmer, GCOS' O@
SUBJECT: The Federal Archaeological Program and NOAA
Historic Sanctuary Resource Management

As Acting Chief of SRD, Bill Harrigan had asked for a legal memo
on the Federal archaeological program (FAP) legal and policy
requirements for use in developing the historic resource
management program in the Florida Keys National Marine Sanctuary
(FKNMS). His questions are briefly addressed in the attached
memorandum to Stan Wilson. This memorandum provides the legal
discussion of NOAA's historic resource management program and the
FAP which supports the memo to Stan Wilson and provides SRD
information for use in developing the Florida Keys NMS management
plan and regulations.

DISCUSSION

I. NOAA's Historic Sanctuary Resource Management Progra

Under the Marine, Protection, Research, and Sanctuaries Act of
1972, (MPRSA), 16 U.S.C. �� 1431 et se ." Congress gave the
Secretary of Commerce the authority to designate and manage
"certain areas of the marine environment possess(ing)
conservation, recreational, ecological, historical, research,
education, or esthetic qualities which give them special national
significance." 16 U.S.C. � 1431(a)(2)(emphasis added].
Sanctuary resources are defined as "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." 16 U.S.C.
� 1432(8).

Under NOAA regulations', "historical" means possessing historical,
cultural, archaeological, or paleontological significance,
including sites, structures, districts, and objects significantly
associated with or representative of earlier people, cultures,

and human activities and events." 15 C.F.R. � 922.2(c). The
MPRSA's implementing regulations state that:

Program regulations, policies, standards, guidelines,
and procedures under the Act [MPRSA) 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 (NHPA), 16 U.S.C. 470 et sea., the Archeological
and Historical Preservation Act of 1974, 16 U.S.C. 469
et s ., and the Archeological Resources Protection Act
geg
of 1979 (ARPA), 16 U.S.C. 470aa et seg.

15 C.F'.R. � 922.1(c)(4) (emphasis added).

Historic resource management in the sanctuary program was
established with the designation of the USS MONITOR as the first
National Marine Sanctuary in 1975. This wreck may be the most
nationally significant historic shipwreck presently known and it
is the only sanctuary designated to solely protect a historic
resource. The restrictions at the MONITOR NMS are the most
stringent for any sanctuary, including prohibiting diving,
fishing or even stopping. Any physical access to the site
creates a risk of harm to the wreck and the archaeological
information contained at the site. Access is only permitted if
the potential benefits from the proposed scientific research of
the MONITOR justifies the proposed and potential harm to the site
arising from the research activities. While this management
policy is broadly supported by the historic and archaeological
community, it has been criticized by some members of the
recreational diving community and others. As a result,
permitting non-intrusive recreational access to the MONITOR is a
management option being considered in revising the MONITOR NMS
management plan.

The MONITOR is the only sanctuary where diving is prohibited.
All other sanctuaries allow non-harmful diving. Sanctuary
permits are only required if the diving expedition will involve
other prohibited activities. In order to protect and preserve
historic sanctuary resources, sanctuary regulations uniformly
prohibit the removal or injury of historic resources, but allow
NOAA to consider on a case-by-case basis whether a permit may be
issued for further research or education activities and thus
justify the injury or removal. See e.g., 15 C.F.R. Parts 929
(Key Largo), 935 (Channel Islands), 936 (Farallon Is,), 937 (Looe
Key), 938 (Gray's Reef).

The current regulations and policies underlying the Sanctuary
Program's management of historic resources is consistent with the
FAP. Any changes in the management of historic resources must be
done in compliance with the procedures and requirements of the
National Environmental Policy Act (NEPA), 42 U.S.C. � 4321 et
sea., the Administrative Procedure Act (APA) 5 U.S.C. �� 551 et
geg., and the National Historic Preservation Act (NHPA) 16 U.S.C.
�� 470 et sea. The APA requires that the changes in the
regulations be accomplished through a rulemaking process
involving notice and comment periods before final agency action
is implemented. NEPA, at a minimum, requires an environmental
assessment of the impacts of the changes and may require an
environmental impact statement since the change may have
significant adverse impacts on historic resources.

II. The Federal Archaeological Program (FAP)

The FAP is the Department of the Interior's (DOI) implementation
of Federal preservation statutes for DOI and other Federal
agencies. The FAP includes the Antiquities Act of 1906 (AA),
16 U.S.C. �� 431 et s ., the Archaeological Resources Protection
Meg
Act (ARPA), 16 U.S.C. �� 470aa -et gM., the National Historic
Preservation Act (NHPA), 16 U.S.C. �� 470 et seq., and the
Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. �� 2101 et secr.,
as well as implementing regulations, guidelines, policies and
procedures. Other federal preservation statues, the
Archaeological and Historical Preservation Act of 1974, 16 U.S.C.
�� 469 et sea., and the Historic Sites Act of 1935, 16 U.S.C.
�� 461 et sea., do not address the issues presented and therefore
are not considered in this memorandum.1

A. Abandoned Shipwreck Act of 1987 (ASA)

Under the ASA, Congress asserted title to three categories of
shipwrecks within States' submerged lands and transferred title
to the States, except for those on public lands and Indian lands.
43 U.S.C. �� 2101, 2105. As-directed by the ASA, the National
Park Service developed guidelines to assist the States and
Federal agencies in developing legislation and regulations for
effective management of shipwrecks in waters under their
ownership or control.' 43 U.S.C. � 2104. "The Abandoned
Shipwreck Act Guidelines and the philosophy upon which they are

The ArchaeoLogicaL and Historical, Preservation Act of 1974 refers to the preservation of historical, and
archaeotogicaL date which might be Lost or destroyed from any federaLty Licensed activity or program such as
the construction of a dam. The Historic sites Act of 1935 authorizes the Secretary of the Interior to secure,
survey, investigate, search, acquire, restore, erect, maintain, operate, and preserve archaeotogical and
historicat sites throughout the country.

based are the result of three decades of shipwreck management
experience within units of the national park system." 55 Fed.
Reg. 50116, 50120 (1990).* While the guidelines state they are
advisory and therefore non-binding upon the States and Federal
agencies, NOAA regulations incorporate FAP guidelines. Thus,
NOAA is required to comply with the ASA guidelines and should not
diverge without ample justification under the MPRSA. Since the
ASA Guidelines were drafted specifically for the marine
environment, I assume that their practical application in
national marine sanctuaries is not in question.

State Guidelines

The ASA Guidelines suggest that the States assign the authority
over State owned shipwrecks to an appropriate adequately staffed
agency which involves interest groups and advisory boards in its
long-term management. Cooperation with other States and Federal
agencies is encouraged, with the specific suggestion that States
integrate shipwreck management into State Coastal Zone Management
Act (CZMA) plans. This would also allow the use of consistency
to protect wrecks and CZMA grant money to fund research and
management. Other methods of protecting shipwrecks are also
suggested. While provision is made for the recovery of
shipwrecks for the public by the private sector, the guidelines
specifically state that recovery using explosives, dredging or
"propeller wash deflectors" is unscientific and would destroy the
environment surrounding the site as well as the historic
information it contains. 55 Fed. Reg. 50132 (1990). Of
particular import is the suggestion that States create and manage
underwater parks or preserves to provide additional protection to
historic shipwrecks. While these protected areas are to
accommodate multiple use values, the guidelines specifically
state that "souvenir collecting, commercial salvage, and treasure
hunting at shipwrecks (whether historic or non-historic) should
be prohibited in underwater parks and preserves." 55 Fed. Reg.
50138 (1990).

Federal Guidelines

The ASA Guidelines for Federal shipwreck management programs are
not as stringent as the AA, ARPA and other historic preservation
acts. Because of these differences, the Committee on Merchant
Marine and Fisheries said that "Federal agencies . . . should
manage their historic *shipwrecks consistent with the (Abandoned
Shipwreck Act) guidelines to the extent consistent with other
applicable federal law." U.S. House Report No. 100-514, Pt. 2,
p.7. See also 55 Fed. Reg. 50125. The guidelines set forth the

important components of sections 106 and 110 of the NHPA, the
permit requirements of ARPA for recovery of historic shipwrecks,
the applicability of section.307 of the CZMA, the use of the
Abandoned Property Act, the applicability of certain National
Park Service guidelines, and the special protection that
shipwrecks are to be given in National Parks and National Marine
Sanctuaries and other federally managed areas. NOAA and the
States are directed to prohibit souvenir collecting, commercial
salvage, treasure hunting, and other activities which damage
historic shipwrecks in national marine sanctuaries.

Abandoned Property Act

The ASA Guidelines indicate that Federal land managers may, under
certain conditions, contract for the search, recovery and sale of
shipwrecks in accordance with the Abandoned Property Act
administered by the General Services Administration (GSA). See
40 U.S.C. � 310; 55 Fed. Reg. 50126 (1990). At the request of
agencies with jurisdiction over the land holding the wreck and
treasure, GSA is authorized to enter into contracts for the
removal, preservation, or sale of wrecked, abandoned, or derelict
property within the jurisdiction of the United States. Such
contracts may provide for reasonable compensation to any person
discovering, recovering, or preserving the wreck. 40 U.S.C. �
310. The Abandoned Property Act appears to allow the proceeds
from the sale of the shipwreck to be used for reasonable
compensation of those assisting in the search, preservation and
recovery of the wreck. However, consistent with ARPA, the
property being sold could not be an "archaeological resource."

communications with DOI.and GSA indicate that pursuant to
instructions from agencies with jurisdiction and control over the
land, GSA has entered into contracts with private parties for the
recovery of treasure trove and that authority exists to divide
the treasure in a contract on a 50/50 basis for their discovery,
preservation and recovery. Thus, to the extent there are
historic sanctuary resources-which are not archaeological
resources, NOAA may, under certain conditions, be able to
contract for the sale of the shipwreck and its cargo pursuant to
GSA's authority without conflicting with the FAP.

B. Archaeological Resources Protection Act (ARPAL

Although the Antiquities Act has not been repealed, it has been
superseded by the Archaeological Resources Protection Act (ARPA)
which was enacted to strengthen historic resource protection and

2
management as well as address deficiencies of the AA. The
House of Representatives Report (House Report), H.R. Rep. No.
311, 96th Cong., 1 Sess. 1 (1979) for ARPA notes that the
Antiquities Act is not enforceable in the Ninth Circuit because
of the 1974 Diaz decision that the AA is unconstitutionally
vague. see discussion on Diaz, infra, p. 15. In addition, the
report states that the increase in the commercial value of
archaeological resources, the dramatic rise of illegal
excavations on public lands and Indian lands for private gain,
and the ineffectiveness of $500 penalties under the AA prompted
Members of the House and Senate to introduce legislation to
protect archaeological resources. House Report at 7.

Scope of ARPA

ARPA was enacted to improve the protection of archaeological
resources on "public lands" and Indian lands. By definition, the
scope of ARPA does not include national marine sanctuaries. ARPA
defines "public lands" to mean:

(A) lands which are owned and administered by the
United States as part of--
(i) the national park system,
(ii) the national wildlife refuge system, or
(iii) the national forest system; and
(B) all other lands the fee title to which is held by
the United States, other than lands on the Outer
Continental Shelf and lands which are under the
jurisdiction of the Smithsonian Institution.

16 U.S.C. � 470bb(3) (emphasis added).

However, NOAA's sanctuary program's regulations require
compliance with ARPA to the extent practicable. 15 C.F.R.
� 922. 1 (c) (4) .

NOAA does not have title to States' submerged lands which might
be within a particular sanctuary. Title to submerged lands from
zero to three miles was transferred to the States by the
Submerged Lands Act (SLA), 43 U.S.C. �� 1301 St M., at the same
time Federal jurisdiction and control over natural resources on
the Outer Continental Shelf was clarified under the OCSLA.

2 See ARPA, 16 U.S.C. � 470cc(h)(1) and (2) which recognizes the vatidity of existing Antiquif ties Act
permits7b-ut prohibits issuance of Antiquity Act permits for any activity authorized under ARPA. Lars Hanstin,
Senior Attorney for the Wationat Park Service, confirmed that the Antiquities Act is basicaLLy udead" Law and
that any new permits for the cottection of antiquitiet on "pubtic Lands" wouLd be issued under ARPA.

Subsequent clarification concerning historic resources was made
by Congress in the Abandoned Shipwreck Act of 1987, 43 U.S.C.
�� 2101 lt_ aeg-Q., whereby title to abandoned shipwrecks found in
State submerged lands and waters was claimed by Congress and
transferred to the State. Thus, the scope of ARPA does not
include historic sanctuary resources in the State portions of
national marine sanctuaries. In the State portions of a national
marine sanctuary the ASA and the MPRSA establish the historic
resource management requirements.

While the MPRSA provides NOAA with jurisdiction and control over
sanctuary areas, the MPRSA does not expressly provide NOAA with a
fee title to the Federal submerged lands in sanctuaries. Under
the MPRSA, the Secretary of Commerce is authorized to designate
and manage national marine sanctuaries. See 16 U.S.C. �� 1431,
1433 and 1434. The Secretary acts as trustee for sanctuary
resources. See 16 U.S.C. � 1443(c). There is some implication
of ownership of sanctuary resources in providing NOAA with the
authority to dispose of sanctuary resources seized in forfeiture
actions. See 16 U.S.C. (d)(3). However, this would involve
sanctuary resources that are in physical possession of Program
officials and appears insufficient for a finding of a fee title
in submerged land within a sanctuary.

Under OSCLA, the Outer Continental Shelf is defined as "all
submerged lands lying seaward and outside of the area of lands
beneath navigable waters as defined in section 1301 of this
title, and of which the subsoil and seabed appertain to the
United States and are subject to its jurisdiction and control;"
43 U.S.C. � 1331(a). Section 1301 defines "lands beneath
navigable waters" to include: 1) the State's submerged lands
under non-tidal navigable waters, and 2) all submerged lands
seaward of a line three geographical miles distant from the coast
line of each such State. 43 U.S.C. � 1301 (a). Thus, the Outer
Continental Shelf lies seaward of the State's submerged lands and
waters. Since ARPA does not apply to the Outer Continental Shelf
and does not apply on State submerged lands, its scope does not
include national marine sanctuaries unless the title to the
submerged land was retained by the Federal Government under the
SLA or title was transferred by the State.

Archaeological Resources May Be Loaned But Not Sold

ARPA precludes the sale of archaeological resources but does
allow NOAA to loan such resources to museums or other
institutions with public access to resources. ARPA does not

preclude such institutions from making a reasonable profit from
displaying sanctuary resources.

Section 470cc of ARPA sta tes in part that:

(3) the archaeological resources which are.excavated or
removed from public lands will remain the property of
the United States, and such resources and copies of
associated archaeological records and data will be
preserved by a suitable university, museum, or other
specific or educational institution,

16 U.S.C. � 470cc(b)(3) (emphasis added).

The above section authorizes the removal under certain
conditions, but prevents the sale of archeological resources
because the United States would no longer own the recovered
property. This analysis is further supported by provisions which
prohibit and penalize the unauthorized removal or sale of
archaeological resources. 16 U.S.C. � 470ee.

While APRA prevents the sale of archaeological resources, it does
not prevent the sale of objects of commercial value which are
outside of the ARPA definition of archaeological resource. See
supra, ASA Guidelines/Abandoned Property Act. Archaeological
resource is defined to mean "any material remains of human life
or activities which are at least 100 years of age, and which are
of archaeological interest." 43 C.F.R. � 7.3(a). There are
lengthy definitions for "material remains" and "of archaeological
interest" that follow. Coins which have no direct physical
relationship with archaeological resources are expressly
excluded, however, this is a site specific finding for a marine
archaeologist to make. 43 C.F.R. � 7.3(a)(4)(ii).

As mentioned above, NOAA could loan recovered archaeological
resources without violating ARPA,1s requirement that the resources
remain U.S. property. In fact, the recovery and loan of historic
resources comports with and fulfills MPRSA and ARPA objectives,
provided it is done in an environmentally and archaeologically
sound manner. An important ARPA improvement upon the public
display policy of the'AA is the inclusion of private entities to
fulfill its public access policy. The House Report states that:

The subsequent storage or display of these artifacts
should not, however, be narrowly construed and may
include private as well as public museums or
institutions which have adequate resources to protect

the artifacts and to provide a public, educational, or
interpretive service. House Report at 9 (emphasis
added).

Since the House Report states that private museums or
institutions may store or display the artifacts, one may assume
that the private museums would, as a part of their normal
operating procedure, charge admission to view the artifacts.
Thus, it appears that private profit from display is not
precluded by ARPA and is implicitly acknowledged. It seems that
Congress, main objective was to assure that the public would
benefit from the permitted activity and would have access to the
archaeological resources. Consistent with the FAP, NOAA could
permit recovery, preservation and the loan of historic sanctuary
resources to public or private museums for research, education
and viewing enjoyment of the public, provided that fees do not
unreasonably limit public access.

ARPA Recruirements For Recoverv of Archaeological Resources

In order to remove archaeological resources, ARPA requires that
the permit applicant be "qualified to perform the activity."
16 U.S.C. � 470cc(b)(1). The regulations, 43 C.F.R. � 7.8(a)(1),
provide that:

(1) The applicant is appropriately qualified, as evidenced
by training, education, and/or experience, and possesses
demonstrable competence in archaeological theory and
methods, and in collecting, handling, analyzing, evaluating,
and reporting archaeological data, relative to the type and
scope of the work proposed, and also meets the following
minimum qualifications:
(i) A graduate degree in anthropology or archaeology, or
equivalent training and experience;
(ii) The demonstrated ability to plan, equip, staff,
organize, and supervise activity of the type and scope
proposed;
(iii) The demonstrated ability to carry research to
completion, as evidenced by timely completion of theses,
research reports, or similar documents;
(iv) Completion of at least 16 months of professional
experience and/or specialized training in archaeological
field, laboratory, or library research, administration, or
management, including at least 4 months experience and/or
specialized training in the kind of activity the individual
proposes to conduct under authority of a permit; and
(v) Applicants proposing to engage in historical archaeology

should have had at least one year of experience in
research concerning archaeological resources of the
historic period. Applicants proposing to engage in
prehistoric archaeology should have had at least one
year of experience in research concerning
archaeological resources of the prehistoric period.

The preservation of artifacts and associated information is in
the public's interest and since there may be just one opportunity
to collect all of the information properly the qualifications of
personnel and the methodology to be used are critical. As
indicated in Klein v. Unidentified Wrecked and Abandoned Sailing
Vessel (Klein), 564 F.Supp. 1562 (11th Cir. 1983) 11(i]t is in the
public interest that if artifacts are to be removed from the
wreck the removal be conducted with scrupulous care. 113 Id. at
1564. "The historic value of each artifact is enhanced by
careful monitoring of archeological provenance... 11 Id.

In conclusion, ARPA does not preclude private profit from the
display of artifacts collected pursuant to the Act. Thus, the
sanctuary program clearly may loan private museums historic
resources and those museums may make a reasonable profit from
display provided it does not undermine the public's access to
public resources. The sale of archaeological resources is
inconsistent with ARPA's requirement that resources recovered
under an ARPA permit remain the property of the U.S. Government.
Thus, under NOAA's current regulations, NOAA would have to
determine its sale of any sanctuary archeological resource to be
necessary to accomplish MPRSA objectives and explain why
consistency with the ARPA requirement that archaeological
resources remain U.S. p*roperty is impracticable when applied to
the sale of a particular archeological sanctuary resource.
Regardless of NOAA regulations, NOAA management of historic
resources should be consistent with the national policy of
historic preservation as set forth in the historic preservation
laws and the FAP.

C. The National Historic Preservation Act-of 1966 WHPA)

The NHPA was enacted in order to preserve, restore, and maintain
for "the inspiration and benefit of the people,,4 the federally
owned sites, structures, and objects of historical, architectural

3 Ktein invotved artifacts from a shipwreck in an underwater nationat park in which the U.S. had fee titte
to the submerged tands.
4 See Executive order No. 11593, 'May 13, 1971, 3 C.F.R. 559.

or archaeological significance. Unlike the rest of the FAP, the
NHPA applies to historic sanctuary resources by its own terms,
regardless of NOAA,1s regulations.

Section 106 of the NHPA, codified as 16 U.S.C. � 470f, requires
that Federal agencies take into account the effect of any
proposed Federal, federally assisted, or federally licensed
"undertaking" on any historic resource that is included in or
eligible for inclusion in the National Register of Historic
Places.5 In addition, agencies must afford the Advisory council
on Historic Preservation and the State Historic Preservation
Office reasonable opportunity to comment on the proposed
undertaking. 36 C.F.R. 800.1(a).

The section 106 process is not limited to shipwrecks. Artifacts
found in abandoned shipwrecks are also subject to the section 106
process, as would the artifacts from Indian cultures or pre-
historic cultures. The section 106 process regulations define
"Historic property" to mean:

... any prehistoric or historic district, site building,
structure, or object included in, or eligible for
inclusion in, the National Register. This term
includes, for the purposes of these regulations,
artifacts, records, and remains that are related to and
located within such properties. The term 'eligible for
inclusion in the National Register' includes both
properties formally determined as such by the Secretary
of the Interior and all other properties that meet
National Register listing criteria-"

36 C.F.R. � 800.2 (e) (emphasis added).

Under Subpart B of the regulations, section 800.3 (c) requires
that 11 ... the Agency Official complete the Section 106 process ...
prior to the issuance of any license or permit." NOAA, however,
may enter into a Programmatic Agreement with the Advisory Council
in lieu of the section 106 process. A Programmatic Agreement

5 The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or
federally assisted undertaking in any State and the head of any Federal department or independent agency having
authority to ticense any undertaking shaLL, prior to the approval of the expenditure of any Federal funds on
the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of
the undertaking on any district, site, building, structure, or object that is included in or eLigibie for
inclusion in the National Register. The head of any such Federal agency shait afford the Advisory Council on
Historic Preservation established under sections 4701 to 470v of this title a reasonable opportunity to coamnt
with regard to such undertaking.

16 U.S.C. J 470f (emphasis added].

fulfills the section 106 requirements for a class of undertakings
that would require numerous individual requests for comments
under section 106. 36 C.F.R. � 800.13(a). Thus, NOAA should is
enter into a programmatic agreement for permits in its
sanctuaries, particularly the MONITOR and the FKNMS.

Sections 106 of the NHPA requires that this process be undertaken
prior to the issuance of any agreements, contracts or permits to
persons for the collection of archaeological resources in
national marine sanctuaries. This process would also apply even
to Federal authorizations to salvors with title to historic
shipwrecks. Thus, section 106 should be complied with before any
permits are issued.

Section 110

Section 110(a)(2) of the NHPA requires Federal agencies to
survey, inventory, determine eligibility and nominate historic
resources which are eligible for nomination to the Register.6
When a Federal undertaking will destroy or substantially alter a
historic resource, at a minimum the controlling agency should
ensure that appropriate records are made.

Section 110(a)(2) also requires that each agency exercise caution
to assure that property that may be eligible for inclusion is not
"inadvertently" transferred or sold which has been interpreted to
mean to follow the section 106 process before the property is
transferred or sold 7 . The purposes of the section 106 process
is to identify potential conflicts between historic preservation
concerns and the needs of Federal undertakings in the public
interest. 36 C.F.R. � 800.1(b).

The KHPA also has a strong public policy to preserve, restore,
and maintain for the benefit of the public any federally owned
objects of historical or archaeological significance. The NHPA
does not preclude an agency from transferring or selling historic
artifacts which are listed or may be eligible for listing in the

6 With the advice of the Secretary and in cooperation with the State historic preservation officer for the
State involved, each Federal agency shatt establish a program to locate, inventory, and nominate to the
Secretary all properties under the agency's ownership or control by the agency, that appear to qualify for
inclusion on the National Register in accordance with the regulations promulgated under section 470a(a)C2)(A)
of this title. Each Federal agency shall exercise caution to assure that any such property that might qualify
for inclusion is not inadvertently transferred, sold, demolished. substantially altered, or allowed to
deteriorate significantly.

16 U.S.C. � 470h-2(a)(2)
7 Telephone conversation on May 5, 1992 with Lars'Nanstin, Senior Attorney for the National Park Service.

National Register as long as the agency follows the section 106
process or in the alternative, enters into a Programmatic
Agreement with the Advisory Council on Historic Preservation. As
a historic resource manager, NOAA's trustee responsibilities for
protection and conservation of historic resources under the MPRSA
may be greater than those for other Federal agencies with non-
conservation missions.

D. Antiquities Act of 1906 MAY

Section 433 of the Antiquities Act (Permit & Penalty)

As mentioned above, the Antiquities Act has been largely
superseded by the ARPA. However, the Departments of Interior and
Justice note that it is still a tool which is legally available
for enforcement and there are still valid AA permits in
existence. In addition, the AA provides the foundation for
current national historic preservation policy. I therefore
include this discussion for a full view of all the archaeological
laws and to answer some informal questions raised by the program.

Section 433 of the Antiquities Act states that:

Any person who shall appropriate, excavate, injure, or
destroy any historic or prehistoric ruin or monument,
or any object of antiquity, situated on lands owned or
controlled by the Government of the United states,
without the permission of the Secretary of the
Department of the Government having jurisdiction over
the lands on which said antiquities are situated,
shall, upon conviction, be fined in a sum of not more
than five hundred dollars or be imprisoned for a period
of not more than ninety days, or shall suffer both fine
and imprisonment, in the discretion of the court."

16 U.S.C. � 433 (emphasis added).

The Antiquities Act does not define "lands" nor state whether
"lands" includes submerged lands owned or controlled by the
Government of the United States. The legislative history of the
Antiquities Act is silent on this issue.8 However, the
submerged lands surrounding the Channel Islands National Monument

See N.R. 11016, 59th Cong., 1st Sess., 40 Cong. Rec. 883 (1906) and N.R. 2224, 59th Cong., Ist Sess.,
40 Conj.--Rec. 3709 (1906).

was included under section 4319 of the Antiquities Act.10 A
U.S. Supreme Court case, United States v. California (U.S. V.
California) 98 S.Ct. 1662 (1978), confirms that submerged lands
in territorial waters owned or controlled by the Federal
government are included within the scope of section 431 of the
Antiquities Act.

It is our opinion that national marine sanctuaries would be
considered "owned or controlled" by the federal government for
purposes of the Antiquities Act and otherwise.11 One of the
purposes and policies of the MPRSA is: 11(2) to provide authority
for comprehensive and coordinated conservation and management of
these marine areas that will complement existing regulatory
authorities;" 16 U.S.C.'� 1431(b)(2). Since this section of the
MPRSA gives NOAA the authority to conserve and manage sanctuaries
this may be interpreted to give NOAA "control" over the
sanctuary.

The sanctuary program should anticipate that Mel Fisher and
Treasure Salvers, Inc. would dispute the application of the
Antiquities Act citing Treasure Salvers v. The Unidentified
Wrecked and Abandoned Sailing Vessel (Treasure Salvers), 569 F.2d
330 (5th Cir. 1978). However, the case is readily distinguished
and its dicta supports NOAA's position that the MPRSA gives the
U.S. Government ownership and control over historic shipwrecks in
sanctuaries outside State submerged lands and waters. In
Treasure Salvers, the United States Court of Appeals for the
Fifth Circuit held that the Outer Continental Shelf Lands Act
(OCSLA) did not give the U.S. Government ownership or control
over shipwrecks lying on the Outer Continental Shelf, and thus
the Antiquities Act did not apply to the wreck claimed by Mel
Fisher and his company. The court found that the Outer
Continental Shelf Lands Act (OCSLA), 43 U.S.C. �� 1331 et geq.,

9 16 U.S.C. 6 431 states that:

The President... Is author I zed ... to declare by public proclamation historic landmarks, historic
vW prehistoric structures, and other object of historic or scientific interest that are
situated upon the lands owned or controlled by the Goverment of the United States to be
national monuments, ...
10 See President Truman's Proclamation No. 2825, 63 Stat. 1258 (1949).
11Under Admiralty taw constructive possession of abandoned shipwrecks provides one in possession with the
authority to refuse claims of salvage. It is NOAAIS position that it has constructive possession of historic
resources within sanctuaries. Thus, NCAA has the authority under the KPRSA to protect historic shipwrecks from
unwanted claims by salvors. See Schoenbaum, ADMIRALTY LAW AND MARITIME LAW � 15-7, p. 517 n.44 (West 1987).

was passed along with the Submerged Lands Act (SLA) 12 in order
to clarify ownership and control of the United States over
natural resources of the subsoil and seabed of the continental
shelf. The court cited to United States v. Maine, 95 S.Ct. 1155
(1975) which stated that in the OCSLA Congress implemented its
view that the U.S. has paramount rights to the seabed beyond the
three-mile limit. The court specifically noted the comments of
the International Law Commission in the Convention on the
Continental Shelf which stated that 11(i]t is clearly understood
that the rights in question do not cover objects such as wrecked
ships and their cargoes (including bullion) lying on the seabed
or covered by the sand of the subsoil." -Id. citing to 11 U.S.
GAOR, Supp. 9 at 42, U.N. Doc. A/3159 (1956) (emphasis added).
However, the Court in dicta acknowledged that 11(w]hile it may be
within the constitutional power of Congress to take control of
wrecked and abandoned property brought to shore by American
citizens (or the proceeds derived from its sale) legislation
[emphasis added] has never been enacted." Id. at 341. Thus, as
DOJ and NOAA have argued in USA v. Fisher and Craft v. USA, the
MPRSA would be the "legislation" enacted by Congress expressly
giving the Secretary the power to control and manage historic
resources including historic abandoned shipwrecks within national
marine sanctuaries.

Although section 433 of the AA probably applies to national
marine sanctuaries, its application and deterrent factors are
weak. Section 433 states that any person who violates that
section 11 ... shall, upon conviction be fined in a sum of not more
than five hundred dollars or be imprisoned for a period of not
more than ninety days, or shall suffer both fine and
imprisonment... 11 This section would not be a deterrent to
treasure salvers since a fine of $500 is minuscule compared to
their potential profits. Further, this fine is not needed in
national marine sanctuaries because of the $50,000 fine imposed
for each violation of the MPRSA, 16 U.S.C. � 1437(b)(1).13
Also, one of the reasons ARPA was enacted was because the United
States Court of Appeals for the Ninth Circuit held in United
States v. Diaz (Diaz), 499 F.2d 113 (9th Cir. 19.74), that the
Antiquities Act is unconstitutional since definitions under the
Act were unconstitutionally vague and therefore a violation of
due process. In Diaz,' the court noted that because the

12Under the SLA, States have owne'rsh ip and control over submerged tarxis and their resources f rom 0-3 miles.

13 The amount for civil penalties was increased to $100,000
in the 1992 reauthorization-of the MPRSA.

Antiquities Act did not define "ruin," "monument," or "object of
antiquity" and antiquity could include an object made recently by
existing cultures, there was insufficient notice to the public of
the applicability of the penalty provisions. Id. Thus, section
433 is unenforceable in the Ninth Circuit. Although the Diaz
case significantly weakened the Antiquities Act, United States v.
Smyer (Smver), 596 F.2d 939 (10th Cir. 1979), a case in another
circuit, subsequently upheld the constitutionality of the
Antiquities Act.

In Smve the issue was whether the Antiquities Act is
unconstitutional. Like Diaz, the defendants claimed that the
Antiquities Act is unconstitutional because it is vague and
uncertain as to the use of the words "ruin" and "object of
antiquity." The court distinguished Smyer from Diaz stating that
in Diaz the charge was appropriation of objects of antiquity
which were face masks made in 1969 or 1970. In contrast, the
objects appropriated in the Smyer case were 800-900 years old and
were taken from ancient sites for commercial motives. Id. The
court stated that in determining whether a statute is vague, it
must be considered "in the light of the conduct with which the
defendant is charged." Id. The court found that as it applied
to this particular case, there was "no constitutional infirmity"
in section 433 of the Antiquities Act. Id.

Section 432 of the Antiguities Act (Permits & Public Access)

A question was raised as to whether section 432 of the AA
precluded the sale or disposal of historic resources. Section
432 provides authority for the recovery of objects on Federal
lands, but requires their placement in public museums. Section
432's constraints on the disposition of objects of antiquity
recovered under Federal permits does not apply on its own terms
to national marine sanctuaries. There is no indication of
Congress' intent to apply this provision in the marine
environment or to land under the ownership or control of
DOC/NOAA. Section 432-of the Antiquities Act states that:

Permits for the examination of ruins, the excavation of
archaeological sites, and the gathering of objects of
antiquity upon the lands under their respective
jurisdictions may be granted by the Secretaries of the
interior, Agriculture, and Army to institutions which
they may deem properly qualified to conduct such
examination, excavation, or gathering, subject to such
rules and regulations as they may prescribe: Provide-dl
That the examinations, excavations, and gatherings are

undertaken for the benefit of reputable museums,
universities, colleges, or other recognized scientific
or educational institutions, with a view to increasing
the knowledge of such objects, and that the gatherings
shall be made for permanent preservation in public
museums.

16 U.S.C. � 432 (Emphasis added).

This permitting section of the Antiquities Act has been
interpreted by the Department of Interior to be limited to the
Departments of the Interior, Agriculture, and Army and thus not
applicable to DOC/NOAA controlled areas.14 However, while NOAA
is not required to comply with this provision on its terms, NOAA
regulations require compliance to the extent practicable.

Section 432 states that permits may be granted to institutions
which are properly qualified to conduct such examination,
excavation, or gathering, and that such examinations,
excavations, and gatherings are "undertaken for the benefit of
reputable museums, universities, colleges, or other recognized
scientific or educational institutions... 11 16 U.S.C. � 432. The
regulations promulgated under 43 C.F.R. Part 3, set out the
procedures for permitting. Section 3.17 of the regulations
states that:

Every collection made under the authority of the act
and of this part shall be preserved in the public
museum designated in the permit and shall be accessible
to the public. No such collection shall be removed
from such public museum without the written authority
of the Secretary of the Smithsonian Institution, and
then only to another public museum, where it shall be
accessible to the public; and when any public museum,
which is a depository of any collection made under the
provisions of the act and this part, shall cease to
exist, every such collection in such public museum
shall thereupon revert to the national collections and
be placed in the proper national depository.

43 C.F.R. � 3.17 (emphasis added).

14 Telephone conversation on May 5, 1992 with Lars Hanstin, Senior Attorney, National Park Service,
Department of the interior. Further, Section 3.1 of 43 C.F.R. Part 3, Preservation of American Antiquities,
also states that jurisdiction over ruins, archaeological sites, historic and prehistoric monuments and
Structures, etc. shall be exercised under the Antiquities Act by the secretaries of Agriculture, Army, and the
interior.

Section 432 of the AA and its implementing regulation both state
that the antiquities collected shall be preserved in a public
museum and shall be accessible to the general public. Neither
the Antiquities Act nor its legislative history state that the
antiquities may be preserved in private museums. However, the
public's accessibility to the objects appears to be the central
purpose of the provision and DOI has indicated that permits for
private museums providing public access have been granted.15
While the Antiquities Act does not expressly prohibit the sale or
disposal of collections made pursuant to a permit under section
432, the sale or disposal would conflict with the requirement
that collections revert to the "national collections and be
placed in the proper national depository" if the depository
ceases to exist. Id. Although the provisions of section 432 are
limited to the Departments of the Interior, Agriculture, and
Army, under NOAA regulations, the agency should comply to the
extent practicable. Thus, the sale by NOAA of historic sanctuary
resources would have to be determined to be necessary to fulfill
MPRSA objectives and provide a reasonable explanation why
compliance with this provision is not practicable in the marine
sanctuary environment.

In conclusion, the Antiquities Act has been found to apply to
submerged lands owned or controlled by the United States.
Section 433's prohibitions and penalty applies to national marine
sanctuaries because NOAA has "control" of historic sanctuary
resources. The AA has been significantly weakened by the Diaz
case. Moreover, the $500 penalty has not been updated since 1906
and is therefore not a deterrent for treasure salvers. Most
importantly, since the MPRSA currently provides for civil
penalties of $50,000 per violation, the penalty provisions of the
AA are not needed. Section 432 of the AA requires that resources
recovered from Federal land be maintained in museums for public
access. The sale or disposal of collections made under this
section would conflict with this provision. While section 432
does not apply to DOC/NOAA on its own terms, NOAA regulations
require compliance to the extent practicable. Therefore, prior
to any sale or divestiture of historic public resources, NOAA
should create a record for the decision which explains how the
sale or disposal is in the public's interest under the MPRSA and
the FAP, and how application of this land based FAP restriction
is not practicable in the marine environment.

15 In a June 8, 1992 conversation, Lars HansLin, Senior Attorney for the National Park Service, stated his
understanding that antiquities that have been collected under the AA have been displayed in private museums
accessible to the public. Whether such display is considered by DOI to be authorized or in conflict with the
AA is unclear.

Office of the General Counsel
CUE&-7- r4res 0* Washington, D.C. 20230
JUL 1 1992

MEMORANDUM FOR: Dr. William W. Fo
Assistant Adminis Xr 0 @ for the
National Marinet /isheries Service
National Oceanic and Atmospheric
Administration
FROM: Barbara S. Fredericks ak@
Assistant General Coulls'etl.
for Administration

SUBJECT: Acceptance'of Donations for
National Marine Sanctuaries

This responds to a memorandum da@ted May 12, 1992 from
James Brennan, Deputy General Counsel of the National Oceanic and
Atmospheric Administration (NOAA), seeking our advice on
accepting donations for national marine sanctuaries from
individuals or entities whose use of sanctuaries is regulated by
NOAA. As discussed below, NOAA may accept such donations so long
as the timing and nature of the gift would not cause a reasonable
person to question the agency's impartiality in matters affecting
the donors.

In 1988, Congress passed H.R. 4210, which amended the Marine
Protection, Research, and Sanctuaries Act of 1972. Section 311
of H.R. 4210 authorized the Secretary of Commerce to accept
donations of funds, property, and services. f or use in designating
and administering national marine sanctuaries.
16 U.S. C. 5 1442 (b) . Section 311 also authorized the Secretary
to enter into cooperative agreements with any nonprofit
organization for the solicitation of private donations to support
interpretive, historical, 4cientific, and educational activ.;ties
relating to national marinii sanctuaries. 16 U.S.C. S 1442(a).

In many marine sanctuaries, NOAA regulates oil, gas and mineral
development, fishing, and the operation of vessels. Mr. Brennan
has asked whether NOAA can properly accept donations under
Section 1442(b) from individuals or entities directly affected by
these regulations. If NOAA cannot accept such donations itself,
Mr. Brennan has asked whether an intermediary nonprofit
organization under Section 1442(a) may accept such donations an
NOAA's behalf.

More specifically, Mr. Brennan has asked whether oil companies
can contribute resources to help build an exhibit on sanctuaries
for the national aquarium, and to transport NOAA officials to the
Flower Garden Banks to view the upcoming mass spawning of the
coral. With respect to the offer of transport, Mr. Brennan has
advised us that the oil company proposes to use one of its own.

vessels, providing meals and sleeping accommodations for
approximately 24 to 36 hours.

We have examined the major provisions of H.R. 4210.
A primary purpose of this legislation was to provide new
enforcement authority to deal with pollution and to study the
effects of pollution, overfishing and ocean dumping on marine
sanctuaries.

To this end, the bill authorized the Secretary to issue special
use permits for conducting specific activities in marine
sanctuaries, to assess*fees foriconducting activities under the
permits, and to assess civil penalties for violations of the
terms or conditions of a-permit.
The Secretary was also authorize@d-to ask the Attorney General to
initiate a civil action against any person or vessel who might be
liable for the deitruction, loss, or injury to a sanctuary
resource.

The legislative history of H.R. 4210 contains only passing
references to Section 311. In bringing the bill to the House
floor for a vote, one of the sponsors, Congressman Lowry of
Washington, explained:

Under Section 311, the Secretary of Commerce is
explicitly authorized to enter into cooperative
agreements with any nonprofit organizations and to
authorize those organizations to solicit private
donations for the support of sanctuary activities.
This section also allows the Secretary to accept any
donations and to expend those donations for sanctuary
purposes.
134 Cong. Rec. H 9390-91 (OctoLer 3, 1988).

In bringing the measure to the Senate floor for a vote,
Senator Hollings stated: 11[T]he bill includes minor changes to
provisions governing . . . . cooperative agreements and
donations." 134 Cong. Rec. S 15608 (October 12, 1988).

In enacting Section 311, Congress made no attempt to limit the
class of donors to individuals and entities whose financial
interests were unaffected by NOAA's regulatory authority.

Nonetheless, agency policy set forth in Department Administrative
Order 203-9, Gifts and Bequests, requires that certain guidelines
be met before NOAA can accept donations from these sources.
Section 6 states:

.01 A gift or bequest may be accepted by an authorized
official only if the donation would:
40

a. Aid or facilitate some part or aspect of the work
of the Department;

b. Not involve in substance, or have the appearance of
involving, a personal benefit to an employee for or in
contemplation of services to the donor;

C. Not result in public misunderstanding concerning
the ability of any Department employee to carry out his
or her official duties in a fair, independent,
impartial or objective manner;

d. Not compromise or appear to compromise the honesty
or integrity of the'Department's programs or employees
and their official actions-o.'r-decisions; and

e. Not reasonably be expected to result in impeding or
otherwise impairing Government efficiency or economy.

.02 An authorized official, in accepting and using
gifts and bequests to the Department, must be careful
not to take any action which creates a conflict of
interest or the appearance of impropriety. Conflict of
interest regulations and statutes may place additional
limitations on employee conduct and may bar acceptance
or use of a gift or bequest in particular
circumstances.

Applying these standards to donations for the marine sanctuaries,
we have concluded that NOAA should not directly accept gifts from
individuals or entities that: (i) have permit applications
pending; (ii) are being investigated for or in the process of
being fined for violations of the terms or conditions of their
permits; or (iii)-are being investigated for or in the process of
being sued for the destruction, loss, or injury to a sanctuary
resource. Donations should also-be declined in any similar
situation where the timing and nature of the gift would cause a
reasonable person to question the agency's impartiality in
matters affecting the donors.

This same policy should be applied to donations passed to NOAA
through an intermediary nonprofit organization whenever the
identity of donors is made known to NOAA officials. Because the
appearance of undue influence occurs only when donors are
identified, it may be 'possible to develop procedures for use by
the intermediary organizations that would cloak the identity of
particular donors from NOAA staff. This would enable NOAA to use
these donations for the national marine sanctuaries.

NOAA should apply these policy guidelines in deciding whether to
accept the proposed contributions from oil companies to help
build an exhibit on sanctuaries for the national aquarium, and to

transport NOAA officials to the Flower Garden Banks to view the
unpcoming mass spawning of coral.

If.you or your staff have any questions concerning this matter,
please feel free to call me or Francine Kerner, an attorney on my
staff, at 377-5384.

cc: James Brennan
Ray Kammer

qUNTEM qST A TESDEPARTMqENT OF COMMERCE
Natia Oceanic and Atmospheric Administration
p2p LqJ b 1q2q@L-
-8qT q/4q?4qQ
j4qe6qn 2qS0qe. De=em8qbe-q- 5, q1991

4qY8q2M0qORANDUM FOR: Margo E. Jackson
Assistant General Counsel
qfor Ocean Services

FROM: Stephanie S. Campbell a /1q7
,0q3 r
At-torney-Advqiser -IF

SUBJECT: inward Extent of Jurisdiction under Title III
of Marine Protection, Research, and Sanctuaries
Act

You asked me to do a brief memorandum addressing Joan
Bondarqe-Iqfqff's informal inquiry at", the recent H.4-1q1 hearing about
the inward geographical extent of jurisdiction under title III
of t-he Marine Protection, Research, and Sanctuaries Act (MPRSA).
Jurisdiction to designate national marine sanctuaries extends
inward to coastal waters where the tide ebbs and flows and
includes the Great Lakes and their connecting waters. I a-rrivqe
at this conclusion via the following analytical steps.

1) Title III provides q1--hat the Secretary qcif Commerce may
"designate any discrete area of Ithe marine environment as a
national marine sanctuary" if certain determinations and
findings are made. 16 U.S.4qC. � 14q3q3(a).

2) Title III defines "marine environment" as "t-hose areas of
coastal and ocean waters, 4qthqe Great Lakes and t-heqiqr connecting
waters, and submerged lands over which the United States
exercises jurisdiction, consistent with qinqt.:eqrn0qat-ion4qal law."
6 U.S.C. � 1432q(3).

3) The statutory definitions pertaining 4qto all titles of the
MPRSA define "ocean waters" as "those waters of the open seas
lying seaward of the base line from which the territorial sea is
measured, as provided for in 8qthe Convention on 8qthe Territorial
Sea and the Contiguous Zone (15 UST 1606; TIAS 5639q).11
33 U.S.C. � 1402(b). (The normal baseline of the territorial
sea is the low-water line along a coast, as marked on large-
scale charts of the coastal nation. A. Shalowitz, Shore and Sea
Boundaries 212 (1962).)

4) The statute does not include a definition of "coastal
waters," although it seems clear that the seaward boundary of
those waters for purposes of title III is intended to be
coterminous with the inward boundary of "ocean waters.,,
4q-

See, e.cr., H.R. Rep. No. 92-361, 92d Cong., lst Sess. 27 (1971).
The question therefore becomes, what is the inward boundary of
"coastal waters'17

5) The term "marine environment" was introduced into title III
during its 1984 reauthorization, although the term "coastal
waters" has been in the act, albeit undefined, since its passage
in 1972. The House of Representatives report for that
reauthorization (there is no conference report and the Senate
report does not address definitions) explains that the term
"coastal waters" refers to "those areas of coastal waters where
the tide ebbs and flows, and is derived from section 302 of the
[then] current MPRSA without change." H.R. Rep. No. 98-187,
Part I, 98th Cong., lst Sess. 19, 20 (1983). This explanation,
although somewhat tautological in that it attempts to define
"coastal waters" by repeating the term, satisfies me that the
best conclusion as to the question of inward reach of
jurisdiction under title III is that sanctuaries may be
designated inward to the extent of tidal influence.

UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Washington. O.C. 20230
4r4rES OF .11Ir
OFFICE OF THE GENERAL COUNSEL

May 2, 1991
NOT 446@A C

MEMORANDUM FOR; Margo

FROM: Stephanie

SUBJECT: Regulation of Fishing in National Marine
Sanctuaries

You asked for a paragraph or so for your information on what I
know of the past practice regarding regulation of fishing in
national marine sanctuaries. I will start off with a summary of
what title III of the MPRSA and its program-wide regulations
provide on the subject.

I. Statute and Program-Wide Regulations

Title III requires that the Secretary of Commerce provide the
appropriate Regional Fishery Management Council with the
opportunity to prepare draft regulations for fishing within the
U.S. Fishery Conservation Zone (now the Exclusive Economic Zone
(EEZ)). (Interesting point: Susan Auer informs me that the
Magnuson Act allows Fishery Management Councils to regulate
within state waters -- they just have to jump through more
hoops.) The Secretary is to prepare the fishing regulations if
the Council: 1) fails to make a determination with respect to
the need for regulations; 2) makes a determination that is
rejected by the Secretary as failing to fulfill the purposes and
policies of title III or the goals and objectives of the
proposed designation; or 3) fails to prepare the draft
regulations in a timely manner. Any amendments to the fishing
regulations are to be "drafted, approved, and issued in the same
manner as the original regulations." 16 U.S.C.
� 1434(a)(5).

The program-wide regulations, in turn, implement the statutory
provisions by specifying that the Fishery Management Councils
have 120 days from the date of the Secretary's request to
prepare the draft fishing regulations and submit them to the
Secretary. 15 C.F.R. 6 922.31(f)(1). Interestingly, the
program-wide regulations also give the Fishery Management
Councils the first crack at drafting the fishing regulations for
the entire proposed sanctuary -- not just for within the EEZ
if the proposed sanctuary includes any waters within the EEZ.
15 C.F.R. 922.31(f).

II. My Knowledge of Past Practice

A) Cordell Bank National Marine Sanctuary

Fishing is neither regulated in this sanctuary nor listed in the
sanctuary constitution ("Designation Document") as subject to
possible regulation in the future. I have a call in to Mark
Murray-Brown of the Sanctuaries and Reserves Division (SRD), who
is out of the office today, to find out if SRD whole-heartedly
concurred with the relevant Fishery Management Council that no
regulation was necessary in this particular sanctuary, or if it
merely acquiesced. I suspect it whole-heartedly concurred in
the case of this sanctuary.

B) Proposed Flower Garden Banks National Marine Sanctuary

This sanctuary is about to be designated: the regulations are
about to go to OMB for review. Before issuing the draft
regulations, SRD duly solicited views of the relevant Fishery
Management Council, enclosing in its letter a copy of all the
"preliminary" draft regulations as an aid to the Council in
preparing its recommendations. The draft regulations included a
prohibition on the use of any fishing gear other than
conventional hook and line gear and spearfishing gear. This
regulation is basically the same as one of the regulations
implementing the Fishery Management Plan for Coral and Coral
Reefs in the area, except that it expands the geographic scope
somewhat. The sanctuary, although small (41.7 square nautical
miles), is larger that the coral Habitat Area of Particular
Concern (HAPC) in question, which is limited to the portions of
each bank shallower than the 300-foot isobath.

The Council responded to SRD's letter with a short letter
endorsing the designation and particularly applauding the
proposed regulations restricting anchoring -- regulations it had
wanted to promulgate but had been.unable to. The Council did
not comment in writing on the official draft regulations and
Draft Environmental Impact Statement/Management Plan (DEIS/MP).
Annie Hillary of SRD reports that the council indicated orally
that it had no problem with them.

The proposed interim final regulations add, among other
prohibitions not relevant here, prohibitions on spearfishing,
feeding fish, possession of fishing gear other than conventional
hook and line gear (except while passing without interruption
through the sanctuary) and possession of fish not caught with
conventional hook and line gear. The last two regulations were
added as enforcement tools. As interim final regulations, these
four regulations will be effective immediately (after the
congressional review period) but subject to a 60-day comment
period.

C) Proposed Monterey Bay National Marine Sanctuary

Draft regulations have been issued for this sanctuary; SRD is
currently analyzing the comments received. Mark Murray-Brown
reports that, before the draft regulations were issued, the
relevant Fishery Management Council stated that no fishing
regulations were needed. The draft regulations indeed contain
no fishing regulations, and the draft sanctuary constitution
dose not list fishing as subject to possible regulation in the
future. The preamble in the draft regulations, however,
specifically solicited comments on the need for fishing
regulations. This was done at the behest of the Minerals
Management Service, who felt that SRD was being inconsistent in
what it was choosing to regulate versus not regulate given the
goal of resource protection.

The Council did not comment on the draft regulations and
DEIS/MP. Vickie Nichols of SRD reports that a significant
number of commenters were in favor of sanctuary regulations
prohibiting fishing with gill nets and trommel nets because of
the by-catch of marine mammals and seabirds. Some commenters
also favored prohibitions on bottom fishing, trawling and
dragnetting, because of the effect on the benthic community.

D) older Sanctuaries

I was not at NOAA when the seven older sanctuaries were
designated. Attached is a memorandum done by Amor Lane of SRD
regarding fishing regulations in those sanctuaries. I have
corrected it as necessary (handwriting). In the sanctuaries
where fishing is regulated, it is unclear to what extent, if at
all, the sanctuary regulations merely reiterate existing
regulations implementing fishery management plans.

A. Lane
6/11/90

Comparison of Prohibited Actions
for Eight Designated Sanctuaries
for Fishina (Comnercial /Recreational

1. Monitor

Activities Prohibited
- Trawling

.2. Kev Larao
a) Removal or damage of natural.'@@@, marine life
&I z)
J'CW.-'J
(i) No person shall destroy, injure, harmfully
disturb, break, cut or similarly damage or remove
any coral or other marine invertebrate, or any
plant,.soil, rock or other material, except that
commercial taking of spiny lobster and stone
crab by trap and recreational taking of spiny-
lobster by hand which is consistent with both the
applicable regulations under the appropriate
Fishery Management Plan and these regulations is
allowed. D ivers are prohibited from handling
coral formations, standing on coral formations, oz.*
other-wise disturbing the corals.
(ii) No person shall catch or collect any tropica
fish.
010 '.7:3
b Use of h a rm f U 1 f i S k.,tqn @.e

No person shall use within the Sanctuary, or shall carry
or possess, except while passing without interruption
through the Sanctuary or for law enforcement purposes,
the following firearms or weapons: Pole spears, air
rifles, bows and arrows, slings, Hawaiian slings, rubber
powered arbaletes, pneumatic and spring loaded guns,
explosive powered guns or similar devices *known as
spearguns No person shall use within the Sanctuary:
(i) wi@e4f ish3vtraps: 't%
(ii) Bottom. trawls, dredges, fish sleds, or similar
vessel-towed or anchored bottom f ishing gear or
net or
(iii) Poisons, electric charges, explosives or similar
devices.

3. Channel Islands
a) Bottom trawling from a commercial fishing vessel is
allowed. See excerpt below:
Alteration of, or construction on, the seabed. Except in
connection with the laying of any pipeline as allow;d bi '7
Section 935.6, within 2 nautical miles of any Island, no
person shall:

(i) Construct any structure other than a navigation-
aid, or
(ii) Drill through the seabed, or
(iii) _ Dredge or otherwise alter the seabed in any way,
other than
(A) to anchor vessels, or
(B) to bottom trawl from a commercial fishing
vessel.

b) Access for fishing a recreational vesselp, is not to be
limited. see excerpt below:

commercial vessels onerations. Except to transport
persons or supplies to or from an island, no person shall
operate within one nautical mile 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.

4. Gray's Reef

a) Removal or damage of natural f eatures, marine lif e
(i) No person shall break, cut, or similarly damage,
take, or remove any bottom formation, any marine
invertebrate, or any marine plant without a
permit,
(ii) No person shall take without aC--permit any tropical
fish, which is a fish of minimal sport and food
value, usually brightly colored, often used for
aquaLria purposes, and which lives in a direct
relationship with the live bottom community.

At -psxz-@ Ay-

on L4.

b) Use of harmful fishing methods

(1) Wire fishing.
No person shall use, place, or possess wire fish
traps within the Sanctuary without a permit.
(ii) Bottom trawling and specimen dredging.
No person shall use a bottom trawl, specimen
dredge, or similar vessel-towed bottom sampling
device within the Sanctuary without a perml

Looe Kev

a) Removal or damage of natural features, marine life
(i) No person shall break, cut or similarly damage or
take any coral or marine invertebrate except as an
incidental result of anchoring outside the Fore
Reef where sand anchoring is encouraged but not
required. Divers are prohibited from handling
coral or standing on coral formations. W
No person shall take, except incidentally to ,,, 0-
allowed f ishing activities, any tropical f ish or
marine invertebrate.

b) Use of harmful f ishing methods

M No person shall use or place wire fish traps
within the Sanctuary.
(ii) No person shall place lobster trans within the
-Fore Reef area of the Sanctuary.
(iii) No person shall use pole spears, Hawaiian slings,
rubber-powered arbalets, pneumatic and spring
loaded g-uns or similar devices known as spearguns
within the Sanctuary.
(iv) No person shall use poisons, electric charges,
explosives or similar methods within the
Sanctuary.

6. Gulf of the Farallohes

a Bottom trawling from a commercial f ishing vessel is
allowed. See excerpt below:

Alteration of, or constrUction on the seabed. Except in
connection with the laying of pipelines or construction
of an outf all if certif ied in accordance with Section
936.9, no person shall:

Construct any structure other than a navql*g4qa,?S-.ql
q7- aid,
(iqi) Drill through the seabed, and
(iii) Dredge or otherwise alter the seabed in any 8qk0qA
other than by anchoring vessels or bottom
trawling from a commercial fishing
vessel, except for routine maintenance and
navigation, ecological maintenance, maricul
and the construction of docks and piers
in Tomales Bay.
b) Access f or f ishing or recreational vessels is not to
limited. See excerpt below:

0qO0qDeratiqons of vessels.
Except to transport persons or supplies to or
islands or mainland areas adjacent to sanctuary 4qya8qt0qc@'2qSq,
within an area extending 2 nautical miles fro0qu
Farallon Islands, Bolinas Lagoon, or any Area of Sp8q"8q@6q4
Biological Significance, no person shall operate
vessel engaged in trade of carrying cargo, includin2qj
not limited to tankers and other bulk carriers
barges, or any vessel engaged in the trade of servtqu-,r,-
offshore installations. In no event shall this
be construed to limit access for fishing, recreation48qj
research vessel--.

7. Fagatele Bay

a) Removal or damage of natural features, marine life

(i) No person shall gather, break, cut, damage,
destroy or possess in the Sanctuary any
invertebrate, coral, bottom formation, or
marine plant
qeqne2qd -qeqiq@qi6qM iq9a a

q(8qi8qiq) No person shall gather, cut, damage, destroy 04q1,
possess in the Sanctuary any cr04qown-of-th04qorns
starfish (Acanthaster 04qplanci4q).qtq.q,
b0q) Use of harmful fishing methods

80qM No person shall possess or use
poisons, electrical charges, explosives, or
similar
environmentally destructive methods.

A qJq@

qrq7 o qS'qS eq4

a- 0qV1 L
6qlqa8q@ cqj4qs q! q5q; 0qS -qCq,
No person shall possess or use spearguqns,
including such devices known as Hawaiian slings,
poles spears, arbalettes, pneumatic and spring-
loaded spea0qr6qguns, bows and arrows, -0qaqa2qd-'6qbang
sticks.

q(iiiq) No person shall possess or use seines, trammel-qo0qr-1q-2
f-8qt0qx-4qa,q*q1 netsq,-4qZ6qh-0qr4q@6q@,
MR gzqi
qC: 1 0 1 q@ - 0q0 0qW - q16q+-0q10qMqH--qs.
C-6q) /qLk 0qaqAqL1q1
In ad ition" the following activities are prohibited qbr
controlled in Subzone A:

q(iq) N4qa person shall possess or use fishing poles-qvq%lqf-'
handline2q@2q@-q(qn
q(iiq) Commercial fishing shall be prohibited.

Cordell Bank

a) Removal or damage of natuq:q@al features, marine lif e

(i) Attempting to or 0qe0qr- attempting*to
remove or removing? 2qbenthic
-'ar0qn6qd q&qa6q*q9q--e6qfq- Cord 11 Bank within the 50 f athom
isqobath surroundin the

"-qL -q4c0qjqQ
qCq1 6qJq12q1q,

u0ql
q40qj.,q?4qv a 8qV6q4 qL44q@6q"ql q0q1 4q46qa0qk4q4qr 6qd2q4q46q&qzq:q1'4qS -q7q14qU)

76q18q1A8q,
00qLkq,
2q0q@q40q@20qUA4qj4qa08qg04q@0qck- oq-7 q020q704q@ I
r cc
q18q@6q96q@4qtqo

6qJ72q1q6
72qS 4 96q"qa36q&2q768q"

UNITEo STATES OEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Washington. D.C. 20230

OFFICE OF THE GENERAL COUNSEL

July 21, 1989

MEMORANDUM FOR: Richard Legatski
THROUGH: Stephanie Campbell;..,@ wjz@L4U-1-
U
FROM: Kirsten Erickson 94@149:d@
I

SUBJECT: Eligibility of the Heritage Task Force for the
Hudson River Valley, Inc. to Receive NERR
Financial Assistance

Ouestion Presented: May the Heritage Task Force for the Hudson
River Valley, Inc. (Task Force) receive, as a direct grantee,
financial assistance awards pursuant to the National Estuarine
Reserve Research System (NERR) statutory provision for financial
assistance, 16 U.S.C. � 1461(e)(ii), for the nagrpose of
operating and managing the Hudson River National E-R-uarlne
Researc le)

Brief Answer: Current NERR regulations provide that 11(o]nly a
state Governor, or his/her designated state agency" (emphasis
added), may apply for NERR financial assistance awards for
operation and management purposes. 15 C.F.R. � 921.50(b). For
the reasons discussed below, the Task Force does not qualify as
the "designated state agency". Accordingly the Task Force may
not rec * as a direct grantee, such NERR financial assistance
awards- The Task Force may, however, qualify, under a proposed
[
ERR regulation, 15 C.F.R. � 921.70(a)(1988), as a "coastal
state" and as such be eligible to receive, as a direct grantee,
financial assistance awards if and when that regulation takes
effect.

A. Analysis Pursuant to Current Regglations: 16 U.S.C. � 1461,
entitled "National Estuarine Research Reserve System," and part
of the Coastal Zone Management Act (CZMA), 16 U.S.C. �� 1451 et
sea., provides the basic authority for the designation and
subsequent federal funding of national estuarine research
reserves. 16 U.S.C. � 1461(e) provides that the Secretary of
Commerce may make financial assistance awards to a "coastal
state". "Coastal state" is defined as "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 .... 11 16 U.S.C. � 1453(4). Financial assistance
awards are available for the,acquisition and management and
/"@Nl
if

El
st2
fir
efl

INMCORV

75 Years Stimulating America's Progress 1913-1988

operation of national estuarine research reserves, as well as
for educational and research purposes. 16 U.S.C. � 1461(e).
NERR regulations provide, however, that, 11[o]nly a state
governor, or his/her designated state agency" (emphasis added),
may apply for financial assistance awards for operation and
management of national estuarine research reserves. 15 C.F.R. �
921.50(b).

The term "designated state agency" is not defined in the NERR
regulations. General rules of statutory construction provide
that in construing the meaning of statutory terms, statutes are
to be interpreted as a whole and legal terms employed in a
statute are to be presumed used in their legal sense.
2A Sands, Statutes and Statutory Construction �� 46.05 and 47.30
(1972). These rules are relevant to construing the meaning of
regulations.

"Designated state agency" is a legal term of art and is generally.
employed in federal grant statutes to indicate that a specific
state agency will be solely responsible for receiving and
administering federal financial assistance awards. See generally
Cappalli, Fed Grants & Coon Agreements �� 9.05 and 9.06. The
designated state agency is generally the agency with management
authority for a program. Although the term is not employed in
the NERR portion of the CZMA, it is employed in another section.
That section provides that in order for a coastal zone management
program to quality for administrative grants, the state must
have "designated a single agency to receive and administer
grants.... 11 (emphasis added). 16 U.S.C. � 1455(c)(5). The
regulations for the section indicate that this requirement is
"designed to establish a single point of accountability for the
prudent use of administrative funds in the furtherance of the
management and for monitoring of management activities."
15 C.F.R. � 923.47(c)(1). The purpose of the term "designated
state agency" as it is employed in the CZMA is therefore to place
responsibility for federal financial assistance in the agency
which has final management control over the activities which are
funded. 15 C.F.R. � 923.47(b)(3).

The Task Force was established in 1980 by an order of the
Commissioner of the New York Department of Environmental
Conservation (DEC). In 1987, the legislature reestablished the
Task Force in the DEC as an advisory body to the DEC regarding a
wide variety of cultural and environmental issues involving the
entire Hudson River Valley. N.Y. Environmental Conservation
�� 44-0101 et ggg. (Mckinney 1989). The enabling act for the
Task Force authorizes it to, among other things:
provide local governmen 'ts and the private sector with
improved liaison, interpretation and focus relative to
a variety of state and federal programs which bear on
the Hudson River Valley and its shorelines, including

... estuarine sanctuaries. N.Y. Environmental
Conservation � 44-0107(19) (McKinney 1989) (Emphasis
added.)

Nothing in the enabling act, however. sy-ecifically authorizes the
Ta-sk Force to assume direct management authority for the
Reservej RatheF, pursuant to tne draft management plan r the
, the DEC's enabling act, and the state statute
establishing the Hudson River estuary management program,
ultimate authority to administer grants and manage the Reserve
rests with the DEC. N.Y. Environmental Conservation � 11-0306
(McKinney 1989); N.Y. Environmental Conservation � 11-0301
(McKinney 1989). Although the Task Force is presently under
contract (copy attached) to the DEC to operate the research and
preservation programs at the four sites (Pierport Marsh, Long
Island Marsh, Tivoli Bay and Stockports Flats) currently
designated in the Reserve, nothing in the contract abrogates
DEC's final management authority for the Reserve. Nor does the
contract abrogate DEC's responsibility to receive and administer
federal financial assistance. Rather, under the contract the
Task Force provides services to the DEC which include
coordination of scientific research and monitoring programs as
set forth in the draft management plan and assistance in the
management and administration of federal grants. Additionally,
under the contract, the Task Force employs a staff that reports
directly to an employee of the DEC.

As the state entity with ultimate authority to manage the
Reserve and in light of the use of.the term "designated state
agency" elsewhere in the CZMA, the DEC is the "designated state
agency" which pursuant to 15 C.F.R. � 921.50(b) may apply for and
receive, as a direct grantee, financial assistance awards for
.management and operation purposes for the Reserve. Permitting
the Task Force to receive funds as a direct grantee would
disregard the purpose behind the "designated state agency"
requirement, which is to place final responsibility for federal
financial assistance in the agency which has ultimate management
control over the activities which are funded.

31 U.S.C. � 6504 provides that notwithstanding the existence of a
law which requires that a single state agency administer federal
financial assistance awards, that requirement may be waived by
the federal agency granting the award upon adequate showing hy
the state that directing the award to only one agency is not the
most effective and efficient organizational arrangement.
@
thin

s
0@
ak Fo
se e
e e

However, the state government must be the entity which requests
the waiver. The state government has not done so here.
Additionally, even if NOAA were to grant a waiver, the financial
assistance must still go to the Governor or a state agency and it
is not clear that the Task Force is a state agency. Although the
act which created the Task Force defines it as an entity

"reestablished" in the DEC, the Task Force ("Inc.") appears to
operate as a non-profit corporation whose employees are outside
of the state system. In order to resolve this issue, a legal
opinion on the legal status of the Task Force under New York law
should be provided to NOAA by a New York attorney.1

B. Analysis Pursuant to Proposed Regglations:

Proposed NERR regulation 15 C.F.R. � 921.70 (1988) provides that

only a coastal state may apply for Federal financial
assistance awards for preacquistion, acquisition and
development, operation and management, and education
and interpretation. .(Emphasis added.)

As stated earlier, "coastal state" is defined in the CZMA as "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.... 11 As indicated above, the
Task Force may qualify as a state agency and therefore a "coastal
state" and as such be eligible to receive, as a direct grantee,
financial assistance awards. Before this determination may be
made, however, the legal status of the Task Force must be
clarified by the state, as explained above. Additionally, the
management plan for the Reserve would have to be amended to
designate the Task Force as the entity with ultimate authority to
manage the Reserve.

1. This issue also needs to be addressed as part of the � 1458
(� 312) evaluation process. Because the legal status of the Task
Force is unclear, it is unclear that the state is fulfilling its
responsibility under 16 U.S.C. � .1461 to provide long-term
protection and financial commitment for the Reserve. See
attached letter from NOAA regarding the Wells National Estuarine
Research Reserve.

32,.
Selected Legal Opinion re-, NERRS

1. Eligibility of the Heritage Task
Force for the Hudson River Valley,
Inc. to Receive NERR Financial
Assistance

UNITED r3TATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Washington. O.C. 20230
"i"ArES dF /
OFFICE OF THE GENERAL COUNSEL

November 24, 1992

MEMORANDUM FOR: Capt. Francesca Cava, Chief
Sanctuaries and Reserves Division
THROUGH: Margo Jackson/*-@'
Assistant Generaul Counsel
for Ocean Services
FROM: Roger Eckert W.1-
Attorney-Adviser

SUBJECT: Authority to Use Dispersants in Treating an
Oil Spill Affecting Marine Sanctuary
Resources

Issue Presented: In responding to an oil spill affecting a
national marine sanctuary, who has the final authority to
authorize the use of chemical dispersants?

Short Answer: The National Contingency Plan (NCP) provides the
Federal On-Scene Coordinator (OSC) with final authority in an
emergency to authorize the use of chemical dispersants. Approval
by the OSC is based upon concurrence by the affected State and
the Environmental Protection Agency (EPA), and if time permits,
upon consultation with appropriate natural resource trustees.
When human life is threatened, however, the OSC may make this
decision unilaterally. Because dispersants must usually be
applied within the first 24-48 hours of an oil spill, rapid
decision-making is required and an expedited decision-making
process must be included in all Area Contingency Plans (ACPs).
Natural resource trustees will probably have veto authority
during this planning process on the use of dispersants.
Therefore, sanctuary managers should work with other NOAA
regional elements, specifically the appropriate NOAA Scientific
Support Coordinator and the DOC Regional Response Team member, to
ensure that SRDIS concerns regarding the use of dispersants are
reflected in area and regional contingency plans, and to ensure
that appropriate response personnel are familiar with NOAA's
marine sanctuary responsibilities.

Discussion: In the event of an oil spill affecting sanctuary
resources, the Clean Water Act, as amended (CWA), 33 U.S.C.
� 1251 et p-eq, provides that the President shall, in accordance
with the NCP and any appropriate ACP, ensure effective-removal
OV,

r= =7
1<@ 1

2
of an oil spill.' CWA � 31'1(c). In carrying out section
31.1(c), the President may direct or monitor all Federal, State,
and private actions to remove a discharge. Furthermore, each
Federal agency, State, owner or operator, or other person
participating in efforts under section 311(c) shall act in
accordance with the NCP for the removal of oil and hazardous
substances in coastal and ocean areas, or as directed by the
President. The Clean Water Act also provides that the NCP shall
provide for the assignment of duties and responsibilities among
Federal departments and agencies in coordination with State and
local agencies and port authorities. Thus, the program's
interests in protecting sanctuary resources from injury caused by
the use of dispersants should be reflected in the NCP and any
appropriate ACP.

The Clean Water Act provides that the NCP and appropriate ACPs
shall include procedures and techniques for dispersing oil
spills. See CWA � 311(d), (j)(4). In particular, the NCP must
contain a schedule identifying appropriate dispersants, the
waters in which such dispersants may be used, and the quantities
of dispersants that may be used. In addition, Area Committees
under the direction of an OSC shall prepare an ACP and shall
"work with State and local officials to expedite decisions for
the use of dispersants." CWA S 311(j)(4)(B)(iii). These ACPs
are implemented in conjunction with the NCP and "describe the
procedures to be followed for obtaining an expedited decision
regarding the use of dispersants." CWA � 311(j)(4)(C)(v).
Finally, each ACP shall describe how the plan is integrated into
other ACPs, other response plans, and into operating procedures
of the National Response Unit. CWA � 311(j)(4)(C)(vi). This
pre-approval process for the use of dispersants under the Clean
Water Act is necessary because dispersants are usually most
effective within 24-48 hours of an oil spill.

The NCP further regulates the use of dispersants. In coastal
areas, the NCP generally assigns responsibility to U.S. Coast
Guard directed Regional Response Teams (RRTs) acting through an
OSC and a Regional Response Center.2 RRTs set up dispersant
planning committees. The NCP provides that the OSC, with the
concurrence of the EPA representative to the RRT and the RRT
representatives from the affected states, and in consultation
with the DOC/DOI natural resource trustees, may authorize the use

Section 311 of the Clean Water Act (attached) addresses
oil and hazardous substance liability.
2 ftj 40 C.F.R. J 300.5 (definition of lead agency);
J 300.120(a)(1). The NCP addresses the use of dispersants at 40
C.F.R. Part 300, Subpart J (attached).

3
of certain dispersants:3 40 C.F.R. � 300.910(a). However, when
human life is threatened, the OSC may authorize the use of any
dispersant without obtaining the concurrence of EPA or the
affected states. 40 C.F.R. � 300.910(c). once the threat to
human life has subsided, the OSC is to inform the EPA RRT
representative, the RRT representatives from the-affected states,
and the DOC/DOI natural resource trustees of the use of a product
not on an NCP schedule as soon as possible, and obtain their
concurrence or their comments on its continued use. 40 C.F.R.
� 300.910(c).

Given that the Clean Water Act provides that the NCP shall
provide for the assignment of duties and responsibilities among
Federal departments and agencies, appropriate ACPs should be
modified, where necessary, to account for the Secretary's
authority for protection of sanctuary resources. Specifically,
under the MPRSA 11(t]he Secretary may undertake or authorize all
necessary actions to prevent or minimize the destruction or loss
of, or injury to, sanctuary resources, or to minimize the
imminent risk of such destruction, loss, or injury." MPRSA
� 312(b)(1)(as reauthorized, emphasis added). In addition,
individual sanctuary regulations may prohibit discharges.4 One
important exception to a sanctuary discharge prohibition,
however, would be where the prohibition does not apply to
activities necessary to respond to emergencies threatening life,
property or the environment. When an oil spill becomes such an
emergency, the discharge prohibition would not apply to the
necessary use of dispersants. In the unusual situation, however,
where an oil spill requiring the use of dispersants is not an
emergency threatening life, property or the environment, the OSC
should first obtain a sanctuary permit. As a matter of policy,
the OSC may defer to the Department of Commerce as the relevant
resource management agency even in an emergency situation. As
stated above, however, appropriate ACPs may need to be modified
to account for the Secretary's authority for protecting sanctuary
resources.

Finally, to further expedite decision-making on the use of
dispersants affecting sanctuary resources, appropriate sanctuary
staff must be involved in the contingency planning process and
knowledgeable in the use of dispersants. Program staff should
consult with their Scientific Support Coordinators and Coastal

3 The Secretary's trusteeship responsibilities under the
NCP are discussed at 40 C.F.R. � 300.615. Where there are
multiple trustees for sanctuary resources, the co-trustees must
coordinate and cooperate in carrying out their responsibilities.
4 See, e.g., Monterey Bay Sanctuary discharge prohibitions,
57 Z&d. Kqg. 43324 (September 18, 1992) (to be codified at 15
C.F.R. � 944.5(a)(2),(3)).

Resource coordinators (CRCs) on the use of dispersants. Dr. Jean
Snyder, 202-267-0418, a HAZMAT liaison to the Coast Guard and the
Environmental Protection Agency, is available to further discuss
the use of dispersants in marine sanctuaries. Ms. Alyce Fritz,
(206) 526-6305, is in charge of the CRC program and can also be
of assistance.

Attachments

cc: Mike Webber
Todd Baxter
Kathe Pease

C I eak, wxt4r ft C1+ 7
33 � 1320 FEDERAL ENVIRONMENTAL LAws 506 507
FWPCA 1310
W Report by alleged polluter abatement of pollution subject to such recommenda- Island.,
In connection with any hearing called under this tion, the Administrator shall institute such proceed- lands,
subsection, the board is authorized to require any ings if he believes that the evidence warrants such lands;
person whose alleged activities result in discharges proceedings. The district court of the United States (6)
causing or contributing to pollution to file with it in shall consider and determine de novo all relevant of a v
such forms as it may prescribe, a report based on issues, but shall receive in evidence the record of charter
existing data, furnishing such information as may the proceedings before the conference or hearing case of
reasonably be required as to the character, kind, board. The court shall have jurisdiction to enter ty, any
and quantity of such discharges and the use of such judgment and orders enforcing such judgment facility
facilities or other means to prevent or reduce such as it deems appropriate or to remand such proceed- any ab@
discharges by the person filing such a reporL Such ings to the Administrator for such further action as owned
report shall be made under oath or otherwise, as the it may direct. to such
board may prescribe, and shall be filed with the (June 30, 1948, c. 758, Title III, � 310, as added Oct. 18, 14
board within such reasonable period as it may pre- 1972, Pub.L. 92-500, � 2, 86 StaL 860.) (7) 1
scribe, unless additional time is granted by it. Library References ration, 11
Upon a showing satisfactory to the board by the (8) 1
person filing such report that such report or rtion International Law 4-10. ment ai
po US. International IAw � 12.
thereof (other than effluent data), to which the stances
Administrator has access under this section, if made � 1321. Oil and hazardous substance lia- taking c
public would divulge trade secrets or secret pro- bility [FMTCA � 3111 to mini
cesses of such person, the board shall consider such health (
report or portion thereof confidential for the pur- (a) Definitions fish, sh
poses of section 1905 of title 18. If any person For the purpose of this section, the term- propert3
required to file any report under this paragraph (1) "oil" means oil of any kind or in any form, (9) "C
shall fail to do so within the time fixed by the board including, but not limited to, petroleum, fuel oil, establisl
for filing the same, and such failure shall continue sludge, oil refuse, and oil mixed with wastes other States u
for thirty days after notice of such default, such than dredged spoil; Territori
person shall forfeit to the United States the sum of (2) "discharge" includes, but is not limited to, (10) 11
$1,000 for each and every day of the continuance of any spilling, leaking, pumping, pouring, emitting, cluding,
such failure, which forfeiture shall be payable into emptying or dumping, but excludes (A) discharges rolling si
the Treasury of the United States, and shall be in compliance with a permit under section 1342 of any Ian(
recoverable in a civil suit in the name of the United this title, (B) discharges resulting from circum- submerg
States in the district court of the United States stances identified and reviewed and made a part (11) "(
where such person has his principal office or in any of the public record with respect to a permit any kin@
district in which he does business. The Administra- issued or modified under section 1342 of this title, navigablf
tor may upon application thirefor remit or mitigate and subject to a condition in such permit, and (C) facility o.
any forfeiture provided for under this subsection. continuous or anticipated intermittent discharges diction of
(e) Compensation of board members from a point source, identified in a permit or or under
Board members, other than officers or employees permit application under section 1342 of this title, a public N
of Federal, State, or local governments, shall be for which are caused by events occurring within the (12) "a
each day (including travel-time) during which they scope of relevant operating or treatment systems; an unanti
are performing board business, entitled to receive (3) "vessel" means every description of water- (13) "b,
compensation at a rate fixed by the Administrator craft or other artificial contrivance used, or capa- 60 degree
but not in excess of the maximum rate of pay for ble of being used, as a means of transportation on (14) IT
grade GS-18, as provided in the General Schedule water other than a public vessel; stance de.,
under section 5332 of title 5, and shall, notwith- (4) "public vessel" means a vessel owned or this sectic
standing the limitations of sections 5703 and 5704 of bareboat-chartered and operated by the United
title 5, be fully reimbursed for travel, subsistence States, or by a State or political subdivision there- (15) "ir
and related expenses. of, or by a foreign nation, except when such pelled ves
(f) Enforcement proceedings vessel is engaged in commerce; certificate
the Unitec
When any such recommendation adopted by the (5) "United States" means the States, the Dis- (16) Ili,
Administrator involves the institution of enforce- trict of Columbia, the Commonwealth of Puerto means th(
ment proceedings against any person to obtain the Rico, the Commonwealth of the Northern Mariana inside the

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

506 507 WATER POLLUTION PREVENTION 33 � 1391
FWPCA S 311
tenda- Islands, Guam, American Samoa, the Virgin Is- is measured and those waters outside such base-
)ceed- lands, and the Trust Territory of the Pacific Is- line which are a part of the Gulf Intracoastal
such lands; Waterway;
;tates
evant (6) "owner or operator" means (A) in the case (17) "otherwise subject to the jurisdiction of the
ord of of a vessel, any person owning, operating, or United States" means subject to the jurisdic,ion
!aring chartering by demise, such vessel, and (B) in the of the United States by virtue of United States
enter case of an onshore facility, and an offshore facili- citizenship, United States vessel documentation or
ty, any person owning or operating such onshore numbering, or as provided for by international
,ment facility or offshore facilitv, and (C) in the case of agreement to which the United States is a party;
)ceed- any abandoned offshore iacilitv the person who (18) "Area Committee" means an Area Cam-
ion as
owned or operated such facility immediately prior mittee established under subsection 0) of :his
Ict. 18, to such abandonment; section;
(7) "Person" includes an individual, firm, corpo- (19) "Area Contingency Plan" meafis an Area
ration, association, and a partnership. Contingency Plan prepared under subsection (j) of
(8) "remove" or "removal" refers to contain- this section;
ment and removal of the oil or hazardous sub- (20) "Coast Guard District Response Gralp"
stances from the water and shorelines or the means a Coast Guard District Response Group
taking of such other actions as may be necessary established under subsection 0) of this section;
e fia- to minimize or mitigate damage to the public (21) "Federal On-Scene Coordinator" means a 0
health or welfare, including, but not limited to, Federal On-Scene Coordinator desi na d in the
fish, shellfish. wildlife, and public and private National Contingency Plan;
property, shorelines, and beaches; (22) "National Contingency Plan" means the
(9) "contiguous zone" means the entire zone National Contingency Plan prepared and publish- c
form, established or to be established by the United ed under subsection (d) of this section;
lel oil, States under article 24 of the Convention on the (23) "National Response Unit" means the Na-
other Territorial Sea and the Contiguous Zone; tional Response Unit established under subseclion
(10) "onshore facility" means any facility (in- 0) of this section; and
A to, (24) "worst case discharge" means-
.itting, cluding, but not limited to, motor vehicles and ge in
rolling stock) of any kind located in, on, or under. (A) in the case of a vessel, a dischar
iarges any land within the United States other than adverse weather conditions of its entire cargo;
342 of submerged land; and
ircum- (11) "offshore facility" means any facility f (B) in the case of an offshore facility or
a part 0 onshore facility, the largest foreseeable dis-
permit any kind located in, on, or under, any of the charge in adverse weather conditions.
.s title, navigable waters of the United States, and any
Lnd (C) facility of any kind which is subject to the juris- M Congressional declaration of policy against dis-
aarges diction of the United States and is located in, on, charges of oil or hazardous substances; desilma-
mit or or under any other waters, other than a vessel or tion of hazardous substances; study of higher
standard of care incentives and report to Con-
s title, a public vessel; gress; liability; penalties; civil actions: penalty
iin the (12) "act of God" means an act occasioned by limitations, separate offenses, jurisdiction. mitiga-
-stems; an unanticipated grave natural disaster, tion of damages and costs. recovery of removal
water- (13) "barrel" means 42 United States gallons at costs and alternative remedies
r capa- 60 degrees Fahrenheit; (i) The Congress hereby declares that it is the
ub- policy of the United States that there should be no
tion on (14) "hazardous substance" means any s discharges of oil or hazardous substances intc or
stance designated pursuant to subsection (bX2) of upon the navigable waters of the United States,
ned or this section; adjoining shorelines, or into or upon the water.; of
United (15) "inland oil barge" mesris a non-self-pro- the contiguous zone, or in connection with activities
i there- pelled vessel carrying oil in bulk as cargo and under the Outer Continental Shelf Lands Act (43
n such certificated to operate only in the inland waters of U.S.C.A_ � 1331 et seq.] or the Deepwater Port Act
the United States, while operating in such waters; of 1974 [33 U.S.C.A. � 1501 et seq.], or which may
he Dis- (16) "inland waters of the -United States" affect natural resources belonging to, appertaining
Puerto means those waters of the United States lying to, or under the exclusive management authoritf of
4ariana inside the baseline from which the territorial sea the United States (including resources under the

33 � 1321 FEDERAL ENVIRONMENTAL LAWS 508 509
FWPCA 1311
Magnuson Fishery Conservation and Management appertaining to, or under the exclusive management 0,
Act [16 U.S.C.A. � 1801 et seq.)). authority of the United States (including resources stan
(2)(A) The Administrator shall develop, promul- under the Magnuson Fishery Conservation and
gate, and revise as may be appropriate, regulations Management Act), where permitted under the Pro-
designating as hazardous substances, other than oil tocol of 1978 Relating to the International Conven- any
as defined in this section, such elements and com- tion for the Prevention of Pollution from Ships, this
pounds which, when discharged in any quantity into 1973, and (B) where permitted in quantities and at pers
or upon the navigable waters of the United States times and locations or under such circumstances or may be i
or adjoining shorelines or the waters of the contig- conditions as the President may, by regulation, de- by the S
uous zone or in connection with activities under the termine not to be harmful. Any regulations issued Coast G
Outer Continental Shelf Lands Act [43 U.S.C.A. under this subsection shall be consistent with mari- (B) Cla
� 1331 et seq.] or the Deepwater Port Act of 1974 time safety and with marine and navigation laws
[33 U.S.C.A. � 1501 et seq.], or which may affect and regulations and applicable water quality stan- (i) cl
natural resources belonging to, appertaining to, or dards. T1
under the exclusive management authority of the (4) The President shall by regulation determine subp
United States (including resources under the Mag- for the purposes of this section those quantities of viola
nuson Fishery Conservation and Management Act oil and any hazardous substances the discharge of of ai
[16 U.S.C.A. � 1801 et seq.]), present an imminent which may be harmful to the public health or wel- agra
and substantial danger to the public health or wel- fare or the environment of the United States, includ- sessi
fare, including, but not limited to, fish, shellfish, ing but not limited to fish, shellfish, wildlife, and Adrn
wildlife, shorelines, and beaches. public and private property, shorelines, and beaches: be, @
(B) The Administrator shall within 18 months such
after November 2, 1978, conduct a study and report (5) Any person in charge of a vessel or of an tratc
to the Congress on methods, mechanisms, and pro- onshore facility or an offshore facility shall, as soon pena
cedures to create incentives to achieve a higher as he has knowledge of any discharge of oil or a in 3(
standard of care in all aspects of the management hazardous substance from such vessel or facility in by s
and movement of hazardous substances on the part violation of paragraph (3) of this subsection, imme- pena
of owners, operators, or persons in charge of on- diately notify the appropriate agency of the United secti
shore facilities, offshore facilities, or vessels. The States Government of such discharge. The Federal a re,
Administrator shall include in such study (1) limits agency shall immediately notify the appropriate pres(
of liabilitv, (2) liability for third party damages, (3) State agency of any State which is, or may reason- 0i) C1
penalties'and fees, (4) spill prevention plans, (5) ably be expected to be, affected by the discharge of
current practices in the insurance and banking in- oil or a hazardous substance. Any such person (A) Th
dustries, and (6) whether the penalty enacted in in charge of a vessel from which oil or a hazardous subp
subclause (bb) of clause (iii) of subparagraph (B) of substance is discharged in violation of paragraph (3) day
(i) of this subsection, or (B) in charge of a vessel conti
subsection (b)(2) of section 311 of Public Law from which oil or a hazardous substance is dis- of ar
92-500 should be enacted. charged in violation of paragraph (3)(ii) of this sub- para,
(3) The discharge of oil or hazardous substances section and who is otherwise subject to the jurisdic- as oi
(i) into or upon the navigable waters of the United tion of the United States at the time of the dis- class
States, adjoining shorelines, or into or upon the charge, or (C) in charge of an onshore facility or an colle(
waters of the contiguous zone, or Q in connection offshore facility, who fails to notify immediately the E
with activities under the Outer Continental Shelf such agency of such discharge shall, upon convic- pens.
Lands Act (43 U.S.C.A. � 1331 et seq.) or the Deep- tion, be fined in accordance with Title 18, or impris- and (
water Port Act of 1974 [33 U.S.C.A. � 1501 et seq.], oned for not inore than 5 years, or both. Notifica- in a(
or which may affect natural resources belonging to, tion received pursuant to this paragraph shall not The
appertaining to, or under the exclusive management be used against any such natural person in any rules
authority of the United States (including resources criminal case, except a prosecution for perjury or unde:
under the Magnuson Fishery Conservation and for giving a false statement. (C) Rigt
Management Act [16 U.S.C.A. � 1801 et seq.]), in (6) Administrative penalties 0) PU
such quantities as may be harmful as determined by
the President under paragraph (4) of this subsec- (A) Violations Be:
tion, is prohibited, except (A) in the case of such Any owner, operator, or person in charge of civi! I
discharges into the waters of the contiguous zone or any vessel, onshore facility, or offshore facili- istrat
which may affect natural resources belonging to, ty- shall

508 509 WATER POLLUTION PREVENTION 33 � 1321
FWPCA 5311
!ment M from which oil or a hazardous sub- opportunity to comment on the proposed is-
,urces stance is discharged in violation of paragraph suance of such order.
and (3), or
(ii) PresentAtion of evidence
Pro- QD who fails or refuses to comply with
,nven- any regulation issued under subsection 0) of Any person who comments on a proposed
Ships, this section to which that owner, operator, or assessment of a class 11 civil penalty under
nd at person in charge is subject, this paragraph shall be given notice of any
,es or may be assessed a class I or class II civil penalty hearing held under this paragraph and of the
n, de- by the Secretary of the department in which the order assessing such penalty. In any hearing
ssued Coast Guard is operating or the Administrator. held under this paragraph, such person shall
mari- have a reasonable opportunity to be heard
laws (B) Classes of penalties and to present evidence.
stan- (D Class I
The amount of a class I civil penalty under (iii) Rights of interested persons to a hearing
rmine subparagraph (A) may not exceed $10,000 per If no hearing is held under subparagraph
ies of violation, except that the maximum amount (B) before issuance of an order assessing a
ge of of any class I civil penalty under this subpar- class II civil penalty under this paragraph,
r wel- agraph shall not exceed $25,000. Before as- any person who commented on the proposed
nc!ud- sessing a civil penalty under this clause, the assessment may petition, within 30 days af-;er
1, and Administrator or Secretary, as the case may the issuance of such.order, the Administra;or
iches. be, shall give to the person to be assessed or Secretary, as the case may be, to set aside
such penalty wTitten notice of the Adminis- such order and to provide a hearing on the
of an trator's or Secretary's proposal to assess the penalty. If the e%idence presented by 1:he
soon ?enalty and the opportunity to request, with- petitioner in support of the petition is materi-
or a in 30 days of the date the notice is received al and was not considered in the issuance of
lity in by such person, a hearing on the proposed the order, the Administrator or Secretary
imme- penalty. Such hearing shall not be subject to shall immediately set aside such order znd
Jnited
section 554 or 556 of Title 5, but shall provide provide a hearing in accordance with subpara-
Aeral a reasonable opportunity to be heard and to graph (BXH). If the Administrator or Secre-
priate present evidence. tary denies a hearing under this clause, :he
?ason- (ii) Class H Administrator or Secretary shall provide to
-ge of the petitioner, and publish in the Federal
)n (A) The amount of a class II civil penalty under Register, notice of and the reasons for such
.rdous subparagraph (A) may not exceed $10,000 per denial.
.ph (3) day for each day during which the violation
vessel continues; except that the maximum amount (D) Finality of order
s dis- of any class II civil penalty under this sub- An order assessing a class II civil peng.1ty
s sub- paragraph shall not exceed $125,000. Except under this paragraph shall become final 30 days
risdic- as otherwise provided in this subsection, a after its issuance unless a petition for judicial
Le dis- class II civil penalty shall be assessed and review is filed under subparagraph (G) or a
or an collected in the same manner, and subject to hearing is requested under subparagniph
Hately the same provisions, as in the ease of civil (CXiii). If such a hearing is denied, such order
:onvic- penalties assessed and collected after notice shall become final 30 days after such derial.
mpris- and opportunity for a hearing on the record
)tifica- in accordance with section 554 of Title 5. (E) Effect of order
dl not The Administrator and Secretary may issue Action taken by the Administrator or Se,.re-
n any rules for discovery procedures for hearings tary, as the case may be, under this paragraph
iry or under this paragraph. shall not affect or limit the Administrator's or
(C) Rights of Interested persons Secretary's authority to enforce any proviaion
(i) Public not lee of this chapter, except that any violation-
Before issuing an order assessing a class II (i) with respect to which the Administrator
rge of civil penalty under this paragmpl@ the Admin- or Secretary has commenced and is diligently
facili- istrator or Secretary, as the case may be, prosecuting an action to assess a class II,.-ivil
shalI provide public notice of and reasonable penalty under this paragraph, or

33 � 1321 FEDERAL ENVIRONMENTAL LAWS 510 511
FWPCA J 311
(ii) for which the Administrator Secre- 0D after a court in an action brought un- of r
tary has issued a final order assessing a class der subparagraph (G) has entered a final disc
II civil penalty not subject to further judicial judgment in favor of the Administrator or (B) I
review and the violator has paid a penalty Secretary, as the case may be, A
assessed under this paragraph, the Administrator or Secretary shall request the whc
shall not be the subject of a civil penalty action Attorney General to bring a civil action in an
under section 1319(d), 1319(g), or 1365 of this title appropriate district court to recover the amount ti
or under paragraph (7). assessed (plus interest at currently prevailing P,
(F) Effect of action on compliance rates from the date of the final order or the date
No action by the Administrator or Secretary of the final judgment, as the case may be). In t(
under this paragraph shall affect any person's such an action, the validity, amount, and appropri-
obligation to comply with any section of this ateness of such penalty shall not be subject to shall
chapter. review. Any person who fails to pay on a timely to $2,r
basis the amount of an assessment of a civil 3 tim(
(G) Judicial review penalty as described in the first sentence of this Trust
Any person against whom a civil penalty is subparagraph shall be required to pay, in addition (C)
assessed under this paragraph or who com- to such amount and interest, attorneys fees and .4.
mented on the proposed assessment of such costs for collection proceedings and a quarterly wit
penalty in accordance with subparagraph (C) nonpayment penalty for each quarter during of I
may 9btain review of such assessment- which such failure to pay persists. Such nonpay- in z
(D in the case of assessment of a class I ment penalty shall be in an amount equal to 20
civil penalty, in the United States District percent of the aggregate amount of such person's (D)
Court for the District of Columbia or in the penalties and nonpayment penalties which are I
district in which the violation is alleged to unpaid as of the beginning of such quarter. (3)
have occurred, or (I) Subpoenas mi"
(ii) in the case of assessment of a class II The Administrator or Secretary, as the case grz
civil penalty, in United States Court of Ap- may be, may issue subpoenas for the attend- per
peals for the District of Columbia Circuit or ance and testimony of witnesses and the pro- tha
ble
for any other circuit in which such person duction of relevant papers, books, or documents
ch.
resides or transacts business, in connection with hearings under this para-
by filing a notice of appeal in such court within graph. In case of contumacy or refusal to obey (E)
the 30-day period beginning on the date the civil a subpoena issued pursuant to this subpara- J
penalty order is issued and by simultaneously graph and served upon any person, the district pai
sending a copy of such notice by certified mail to court of the United States for any district in of
the Administrator or Secretary, as the case may which such person is found, resides, or trans- de,
be, and the Attorney General. The Administrator acts business, upon application by the United ne!
or Secretary shall promptly file in such court a States and after notice to such person, shall asi
certified copy of the record on which the order have jurisdiction to issue an order requiring (F)
was issued. Such court shall not set aside or such person to a@pear and give testimony be-
remand such order unless there is not substantial fore the administrative law judge or to appear
evidence in the record, taken as a whole, to sup- and produce documents before the administra- thi
port the finding of a violation or unless the Ad- tive law judge, or both, and any failure to obey be.
ministrator's or Secretary's assessment of the such order of the court may be punished by (6)
penalty constitutes an abuse of discretion and such tourt as a contempt thereof. (8) D
shall not impose additional civil penalties for the (7) Civil penalty action In
same violation unless the Administrator's or Sec- (A) Discharge, generally undE
retary's assessment of the penalty constitutes an Any person who is the owner, operator, or Secr.
abuse of discretion. person in charge of any vessel, onshore facility, cons
(H) Collection or offshore facility from which oil or a hazard- tion!
If any person fails to pay an assessment of a ous substance is discharged in violation of para- resu
civil penalty- graph (3), shall be subject to a civil penalty in bilit,
(D after the assessment has become final, an amount up to $25,000 per day of violation or mcic
or an amount up to $1,000 per barrel of oil or unit ture

510 511 WATER POLLUTION PREVENTION 303 � 1319:1
FWPCA � 311
it un- of reportable quantity of hazardous substances of the violator to minimize or mitigate the effects
final discharged. of the discharge, the economic impact of the pen-
or or (8) Failure to remove or comply alty on the violator, and any other matters as
Any person described in subparagraph (A) justice may require.
A the who, without sufficient cause- (9) Mitigation of damage
in an (i) fails to properly carry out removal of In addition to establishing a penalty for the
nount the discharge under an order of the President discharge of oil or a hazardous substance, the
ailing pursuant to subsection (c) of this section; or Administrator or the Secretary of the departm,mt
date (ii) fails to comply with an order pursuant in which the Coast Guard is operating may act, to
In to subsection (e)(1)(B) of this section; mitigate the damage to the public health or viel-
)ropri- fare caused by such discharge. The cost of such
ect to shall be subject to a civil penalty in an amount up mitigation shall be deemed a cost incurred under
timely to $25,000 per day of violation or an amount up to subsection (c) of this section for the removal of
L civil 3 times the costs incurred by the Oil Spill Liability such substance by the United States Government.
)f this Trust Fund as a result of such failure. (10) Recovery of removal costs
idition (C) Failure to comply with regulation
!s and Any person who fails or refuses to comply Any costs of removal incurred in connec-.ion
Lrterly with any regulation issued under subsection (j) with a discharge excluded by subsection (a)(2)(C)
luring of this section shall be subject to a civil penalty of this section shall be recoverable from the own-
inpay- in an amount up to $25,000 per day of violation. er or operator of the source of the discharge iii an
to 20 action brought under section 1319(b) of this title.
!rson's (D) Gross negligence (11) Limitation
,h are In any case in which a violation of paragraph Civil penalties shall not be assessed under ')oth
(3) was the result of gross negligence or willful this section and section 1319 of this title for the
misconduct of a person described in subpara- same discharge.
ecase graph (A), the person shall be subject to a civil (c) Federal removal authority
ittend- penalty of not less than $100,000, and not more
te pro- than $3,000 per barrel of oil or unit of reporta- (1) General removal requirement
iments ble quantity of hazardous substance dis- (A) The President shall, in accordance with the
, para- charged. National Contingency Plan and any appropriate
;o obey (E) Jurisdiction Area Contingency Plan, ensure effective and im-
ibpara- Aif action to impose a civil penalty under this mediate removal of a discharge, and mitigation or
district paragraph may be brought in the district court prevention of a substantial threat of a disch,3xge,
trict in of the United States for the district in which the of oil or a hazardous substance-
trans- defendant is located, resides, or is doing busi- (i) into or on the navigable waters;
United ness, and such court shall, have jurisdiction to (ii) on the adjoining shorelines to the na,viga-
i, shall assess such penalty. ble waters;
juiring (iii) into or on the waters of the exclusive
ony be- (F) Limitation economic zone; or
appear A person is not liable for a civil penalty under Ov) that may affect natural resources be-
inistra- this paragraph for a discharge if the person has longing to, appertaining to, or under the @axclu-
o obey been assessed a civil penalty under paragraph s.ve management authority of the United
ied by (6) for the discharge. States.
(8) Determination of amount (B) In carrying out this paragraph, the Presi-
In determining the amount of a civil penalty dent may-
under paragraphs (6) and (7), the Administrator, (i) remove or arrange for the removal of a
tor, or Secretary, or the court, as the case may be, shall discharge, and mitigate or prevent a substantial
acility, consider the seriousness of the violation or viola- threat of a discharge, at any time;
iazard- tions, the economic benefit to the violator, if any, (H) direct or monitor all Federal, State, and
f pars- resulting from the violation, the degree 9f culpa- private actions to remove a discharge; and
alty in bility involved, any other penalty -for the same (iii) remove and, if necessary, destroy a ves-
tion or incident, any history of prior violations, the na- sel discharging, or threatening to discharge, by
or unit ture, extent, and degree of success of any efforts whatever means are available.
FdKL En*wwnwYW Lswa Pan". '92-12

33 � 1321 FEDERAL ENVIRONMENTAL LAWS 512 513
FWPCA 1311
(2) Discharge posing substantial threat to, public (C) A responsible party is liable for any remov- (D
health or welfare al costs and damages that another person is re- SignE
.(A) If a discharge, or a substantial threat of a lieved of under subparagraph (A). earlit
discharge, of oil or a hazardous substance from a (5) Obligation and liability of owner or operator not hazai
vessel, offshore facility, or onshore facility is of affected such
such a size or character as to be a substantial Nothing in this subsection affects- Fede
threat to the public health or welfare of the (A) the obligation of an owner or operator to (E
United States (including but not limited to fish, respond immediately to a discharge, or the prov@
shellfish, wildlife, other natural resources, and threat of a discharge, of oil; or tions
the public and private beaches and shorelines of (B) the liability of a responsible party under (F
the United States), the President shall direct all the Oil Pollution Act of 1990 (33 U.S.C.A. Ploy(
Federal, State, and private actions to remove the � 2701 et seq.). and
discharge or to mitigate or prevent the threat of (G
the discharge. (6) Responsible party defined the
(B) In carrying out this paragraph, the Presi- For purposes of this subsection, the term "re-
dent may, without regard to any other provision sponsible party" has the meaning given that term sp
of law governing contracting procedures or em- under section 1001 of the Oil Pollution Act of an
ployment of personnel by the Federal Govern- 1990 [33 U.S.C.A. � 2701]. PI:
ment- (d) National Contingency Plan
0) remove or arrange for the removal of the
discharge, or mitigate or prevent the substan- (1) Preparation by President ot.
tial threat of the discharge; and The President shall prepare and publish a Na- de
00 remove and, if necessary, destroy a ves- tional Contingency Plan for removal of oil and er
sel discharging, or threatening to discharge, by hazardous substances pursuant to this section. or
whatever means are available. (2) Contents W;
(3) Actions in accordance with National Contingency The National Contingency Plan shall provide
Plan for efficient, coordinated, and effective action to which
(A) Each Federal agency, State, owner or oper- minimize damage from oil and hazardous sub- disper.
substa
ator, or other person participating in efforts un- stance discharges, including containment, �am: such s
der this subsection shall act in accordance with sal, and removal of oil and hazardous substances, may,
the National Contingency Plan or as directed by 1-nd shall include, but not be limited to, the follow- sants,
the President. ing: device
(B) An owner or operator participating in ef- (A) Assignment of duties and responsibilities water!
forts under this subsection shall act in accordance among Federal departments and agencies in ties m
with the National Contingency Plan and the appli- coordination with State and local agenc-ies-and Q
cable response plan required under subsection 0) port authorities including, but not limited to,
of this section, or as directed by the President. water pollution control and conservation and affe
(4) Exemption from liability trusteeship of natural resources (including con- sub!
sucl
servation of fish and wildlife).
(A) A person is not liable for removal costs or (B) Identification, procurement, mainte- rein
damages which result from actions taken or omit- nance, and storage of equipment and supplies. Act
ted to be taken in the course of rendering care, (C) Establishment or designation of Coast cast
assistance, or advice consistent with the National Guard strike teams, consisting of- faci
Contingency Plan or as otherwise directed by the thai
President. 0) personnel who shall be trained, pre- Fur
(B) Subparagraph (A) does not apply- pared, and available to provide necessary ser- 0
0) to a responsible party; vices to carry out the National Contingency to E
(ii) to a response under the Comprehensive Plan; tifl(
Environmental Response, Compensation, and 00 adequate oil and hazardous substance the
Liability Act of 1980 (42 U.S.C. 9601 et. seq.); pollution control equipment and material; sub
Oil) with respect to personal injury or and far,
wrongful death; or (iii) a detailed oil and hazardous substance sub
Ov) if the person is grossly- negligent or en- pollution and prevention plan, including mea- C
gages in willful misconduct. sures to protect fisheries and wildlife. dar

512 513 WATER POLLUTION PREVENTION 33 � 13:21
FWPCA �311
,emov- (D) A system of surveillance and notice de- oil, and for mitigating or preventing a substan-
is re- signed to safeguard against as well as ensure tial threat of such a discharge.
earliest possible notice of discharges of oil and M Designation of the Federal official who
@or not hazardous substances and imminent threats of shall be the Federal On-Scene Coordinator for
such discharges to the appropriate State and each area for which an Area -Contingency Plan
Federal agencies. is required to be prepared under subsection
itor to (E) Establishment of a national center to of this section;
)r the provide coordination and direction for opera- (L) Establishment of procedures for the
tions in carrying out the Plan. coordination of activities of-
under M Procedures and technique to be em- M Coast Guard strike teams established
.S.C.A. ployed in identifying, containing, dispersing, under subparagraph (C);
and removing oil and hazardous substances. (ii) Federal On-Scene Coordinators desig-
(G) A schedule, prepared in cooperation with nated under subparagraph (K);
the States, id@@ (iii) District Response Groups established
-m "re- (D dispersants other chemicals, and other under subsection 6) of this section; and
it term spill mitigating devices and substances, if
Act of any, that may be used in carrying out the Ov) Area Committees established under
Plan, subsection 0) of this section.
M A fish and wildlife response plan, devel-
00 the waters in which such dispersants, oped in consultation with the United States Fish
other chemicals, and other spill mitigating and Wildlife Service, the National Oceanic and
i a Na- devices and substances may be used, and Atmospheric Administration, and other interest-
oil and (iii) the quantities of such dispersant, oth- ed parties (including State fish and wildlife
section. er chemicals, or other spill mitigating device conservation officials), for the immediate and
or substance which can be used safely in such effective protection, rescue, and rehabilitation
waters, of, and the minimization of risk of damage to,
provide which schedule shall provide in the case of any fish and wildlife resources and their hz.bitat
ction to dispersant, chemical, spill mitigating device or that are harmed or that may be jeopardized by
us sub- substance, or waters not specifically identified in a discharge.
disper- such schedule that the President, or his delegate, (3) Revisions and amendments
stances, may, on a case-by-case basis, identify the disper- The President may, from time to time, as the
@ follow- sants, other chemicals, and other spill mitigating President deems advisable, revise or otherwise
sibilities devices and substances which may be used, the amend the National Contingency Plan.
ncies in waters in which they may be used, and the quanti- (4) Actions in accordance with National Contirgency
cies and ties which can be used safely in such waters. Plan
aited to, (H) A system whereby the State or States After publication of the National Contingency
tion and affected by a discharge of oil or hazardous Plan, the removal of oil and hazardous subsiances
ling con- substance may act where necessary to remove and actions to minimize damage from oil and
such discharge and such State or States may be hazardous substance discharges shall, to the
mainte- reimbursed in accordance with the Oil Pollution greatest extent possible, be in accordance with
supplies. Act of 1990 (33 U.S.C.& � ZT01 et seq.], in the the National Contingency Plan.
of Coast case of any discharge of ofl from a vessel or (e) Civil enforcement
facility, for the reasonable costs incurred for
ied, pre- that removal, from the Oil SpM lAability Trust (1) Orders protecting public health
Sary ser- Fund. In addition to any action taken by a Slate or
itingency (1) Establishment of criteria and procedures local government, when the President determines
to ensure immediate and effective Federal iden- that there may be an imminent and substantial
tification of, and response to, a discharge, or threat to the public health or welfare of the
,ubstance the threat of a discharge, that results in a United States, including fish, shellfish, and wild-
material; substantial threat to the public health or wel- life, public and private property, shorelines,
fare of the United States, as required under beaches, habitat, and other living and nonliving
iubstance subsection (02) of this section. natural resources under the jurisdiction or control
fing mea- M Establishment of procedures and stan- of the United States, because of an actual or
fe. dards for removing a worst case discharge of threatened discharge of oil or a hazardous sub-

33 � 1321 FEDERAL ENVIRONMENTAL LAWS 514 515
FWPCA 1311
stance from a vessel or facility in violation of Government, or (D) an act or omission of a third action a
subsection (b) of this section, the President may- party without regard to whether any such act or facility
(A) require the Attorney General to secure omission was or was not negligent, or any combina- recover
any relief from any person, including the owner tion of the foregoing clauses, such owner or opera- (4) T1
or operator of the vessel or facility, as may be tor of any such facility from which oil or a hazard- substan(
necessary to abate such endangerment; or ous substance is discharged in violation of subsec- vessel oi
(B) after notice to the affected State, take tion (b)(3) of this section shall be liable to the United subsecti.
any other action under this section, including States Government for the actual costs incurred or exper
issuing administrative orders, that may be nec- under subsection (c) of this section for the removal any Stat
essary to protect the public health and welfare. of such oil or substance by the United States ment of
(2) Jurisdiction of district courts Government in an amount not to exceed a result
The district courts of the United States shall $50,000,000, except that where the United States stance il
have jurisdiction to grant any relief under this can show that such discharge was the result of (5) T1
willful negligence or willful misconduct within the tive of a
subsection that the public interest and the equi- privity and knowledge of the owner, such owner or
ties of the case may require. operator shall be liable to the United States Govern- trustee
(f) Liability for actual costs of removal ment for the full amount of such costs. The United costs o:
(1) Except where an owner or operator can prove States may bring an action against the owner or Sums rf
that a discharge was caused solely by (A) an act of operator of such facility in any court of competent tate, or
God, (B) an act of war, (C) negligence on the part of jurisdiction to recover such costs. The Administra- sources
the United States Government, or (D) an act or tor is authorized, by regulation, after consultation Govenr
omission of a third party without regard to whether with the Secretary of Commerce and the Small (g) Thire
any such act or omission was or was not negligent, Business Administration, to establish reasonable When
or any combination of the foregoing clauses, such and equitable classifications of those onshore facili- than an
owner or operator of any vessel from which oil or a ties having a total fixed storage capacity of 1,000 substan,
hazardous substance is discharged in violation of barrels or less which he determines because of size, ty whic
subsection (b)(3) of this section shall, notwithstand- type, and location do not present a substantial risk stances
ing any other provision of law, be liable to the of the discharge of oil or a hazardous substance in substan,
United States Government for the actual costs in- violation of subsection (b)(3) of this section, and of this
curred under subsection (c) of this section for the apply with respect to such classifications differing caused
removal of such oil or substance by the United limits of liability which may be less than the amount such ov
States Government in an amount not to exceed, in contained in this paragraph. States (
the case of an inland oil barge $125 per gross ton of (3) Except where an owner or operator of an subsecti
such barge, or $125,000, whichever is greater, and offshore facility can prove that a discharge was or subst
in the case of any other vessel, $150 per gross ton caused solely by (A) an act of God, (B) an act of all right
of such vessel (or, for a vessel carrying oil or war, (C) negligence on the part of the United States er such
hazardous substances as cargo, $250,000), which- Government, or (D) an act or omission of a third subsecti
ever is greater, except that where the United States party without regard to whether any such act or tor of .
can show that such discharge was the result of omission was or was not negligent, or any combina- offshorE
willful negligence or willful misconduct within the tion of the foregoing clauses, such owner or opera- substan,
privity and knowledge of the owner, such owner or tor of any such facility from which oil or a hazard- (b)(3) of
operator shall be liable to the United States Govern- ous substance is discharged in violation of subsec- oil or h,-
ment for the full amount of such costs. Such costs tion (bX3) of this section shall, notwithstanding any act or ,
shall constitute a maritime lien on such vessel which other provision of law, be liable to the United States solely t
may be recovered in an action in rem in the district Government for the actual costs incurred under with an
court of the United States for any district within subsection (c) of this section for the removal of such the par
which any vessel may be found. The United States oil or substance by the United States Government in third pa
may also bring an action against the owner or an amount not to exceed $50,000,000, except that sion of
operator of such vessel in any court of competent where the United States can show that such dis- ment fo
jurisdiction to recover such costs. charge was the result of willful negligence or will- (c) of tj
(2) Except where an owner or operator of an ful misconduct within the privity and knowledge of stance
onshore facility can prove that a discharge was the owner, such owner or operator shall be liable to where
caused solely by (A) an act of God, (B) an act of the United States Government for the full amount charge
war, (C) negligence on the part of the United States of such costs. The United States may bring an an act

__q PP_

514 515 WATER POLLUTION PREVENTION 33 � 1321
FWPCA 1311
a third action against the owner or operator of such a United States Government, or (D) an act or omi:;sion
act or facility in any court of competent jurisdiction to of another party without regard to whether such act
:)mbina- recover such costs. or omission was or was not negligent, or any combi-
- opera- (4) The costs of removal of oil or a hazardous nation of the foregoing clauses. If such third party
hazard- substance for which the owner or operator of a was the owner or operator of a vessel which caused
subsec- vessel or onshore or offshore facility is liable under the discharge of oil or a hazardous substani:e in
United subsection (f) of this section shall include any costs violation of subsection 1b)(3) of this section the
ncurred or expenses incurred by the Federal Government or liability of such third party under this subsection
removal any State government in the restoration or replace- shall not exceed, in the case of an inland oil barge
States ment of natural resources damaged or destroyed as $125 per gross ton of such barge, or $12,5,000,
exceed a result of a discharge of oil or a hazardous sub- whichever is greater, and in the case of any :)ther
States stance in violation of subsection (b) of this section. vessel, $150 per gross ton-of such vessel (or, for a
@sult of vessel carrying oil or hazardous substances as car-
(5) The President, or the authorized representa- go $250,000), whichever is greater. In any other
thin the I
wner or tive of any State, shall act on behalf of the public as case the liability of such third party shall not e:Kceed
Govern- trustee of the natural resources to recover for the the limitation which would have been applicable to
2 United costs of replacing or restoring such resources. the owner or operator of the vessel or the onshore
wner or Sums recovered shall be used to restore, rehabili- or offshore facility from which the discharge actual-
mpetent tate, or acquire the equivalent of such natural re- ly occurred if such owner or operator were liable.
ninistra- sources by the appropriate agencies of the Federal If the United States can show that the discharge of
;ultation Government, or the State government. oil or a hazardous substance in violation of subsee-
.e Small (g) Third party liability tion (b)(3) of this section was the result of willful
isonable Where the owner or operator of a vessel (other negligence or willful misconduct within the l:rivity
re facili- than an inland oil barge) carrying oil or hazardous and knowledge of such third party, such third party
of 1,000 substances as cargo or an onshore or offshore facili- shall be liable to the United States Governmeat for
of size, ty which handles or stores oil or hazardous sub- the full amount of such removal costs. The United
States may bring an action against the third party
itial risk stances in bulk, from which oil or a hazardous in any court of competent jurisdiction to recover
;tance in substance is discharged in violation of subsection (b) such removal costs.
ion, and of this section, alleges that such discharge was
differing caused solely by an act or omission of a third party, (h) Rights against third parties who caused or contribut-
ed to discharge
amount such owner or operator shall pay to the United The liabilities established by this section sliall in
States Government the actual costs incurred under no way affect any rights which (1) the owner or
ar of an subsection (c) of this section for removal of such oil operator of a vessel or of an onshore facility or an
xge was or substance and shall be entitled by subrogation to offshore facility may have against any third party
in act of all rights of the United States Government to recov- whose acts may in any way have caused or contrib-
ed States er such costs from such third party under this uted to such discharge, or (2) The2 United States
f a third subsection. In any case where an owner or opera- Government may have against any third party
,h act or tor of a vessel, of an onshore facility, or of an whose actions may in any way have caused or
combina- offshore facility, from which oil or a hazardous
or opera- substance is discharged in violation of subsection contributed to the discharge of oil or hazardous
a hazard- (bX3) of this section, proves that such discharge of substance.
)f subsec- oil or hazardous substance was caused solely by an M Recovery of removal costs
-iding any act or -omission of a third party, or was caused In any cue where an owner or operato r of a
A States solely by such an act or omission in combination vessel or an onshore facility or an offshore :.acility
-ed under with an act of God, an act of war, or negligence on from which oil or a hazardous substance is dis-
a] of such the part of the United States Government, such charged in violation of subsection (bX3) of t1tis sec-
rnment in third party shall, notwithstanding any other provir tion acts to remove such oil or substance in accord-
,cept that sion of law, be liable to the United States Govern- ance with regulations promulgated pursuant to this
such dis- ment for the actual costs incurred under subsection section, such owner or operator shall be entitled to
ce or will- (c) of this section for removal of such oil or sub- recover the reasonable costs incurred in such re-
wledge of stance by the United States Government, except moval upon establishing, in a suit which may be
)e liable to where such third, party can prove that such dis- brought against the United States Government in
ill amount charge was caused solely by (A) an act of God, (B) the United States Claims Court, that such dL-;charge
bring an an act of war, (C) negligence on the part of the was caused solely by (A) an act of God, (B) aa act of

33 � 1321 FEDERAL ENVIRONMENTAL LAWS 516 517
FWPCA 1311
war, (C) negligence on the part of the Unitea 8tates (E) shall administer Coast Guard strike (C)
Government, or (D) an act or omission of a third teams established under the National Contin- subm
party without regard to whether such act or omis- gency Plan; Conti
sion was or was not negligent, or of any combina- (F) shall maintain on file all Area Contingen- genc,
tion of the foregoing causes. cy Plans approved by the President under this
subsection; and Na
(j) National response system (G) shall review each of those plans that mo
(1) In general.-Consistent with the National affects its responsibilities under this subsection. prt
Contingency Plan required by subsection (c)(2) of (3) Coast guard district response groups ch;
this section, as soon as practicable after October 18, (A) The Secretary of the department in which sh(
1972, and from time to time thereafter, the Presi- the Coast Guard is operating shall establish in
dent shall issue regulations consistent with mari- each Coast Guard district a Coast Guard District inc
time safety and with marine and navigation laws (A) Response Group. roi
establishing methods and procedures for removal of (B) Each Coast Guard District Response Group by
discharged oil and hazardous substances, (B) estab- shall consist of-
lishing criteria for the development and implementa- (i) the Coast Guard personnel and equip- an
tion of local and regional oil and hazardous sub- ment, including firefighting equipment, of each loc
stance removal contingency plans, (C) establishing port within the district; mi
procedures, methods, and equipment and other re- (ii) additional prepositioned equipment; and a
quirements for equipment to prevent discharges of (iii) a district response advisory staff.
oil and hazardous substances from vessels and from (C) Coast Guard district response groups- eq
onshore facilities and offshore facilities, and to con- (i) shall provide technical assistance, equip- su
tain such discharges, and (D) governing the inspec- to
tion of vessels carrying cargoes of oil and hazard- ment, and other resources when required by a lo(
ous substances and the inspection of such cargoes Federal On-Scene Coordinator; di-,
in order to reduce the likelihood of discharges of oil (ii) shall maintain all Coast Guard response inj
from vessels in violation of this section. equipment within its district; of
(iii) may provide technical assistance in the
(2) National response unit preparation of Area Contingency Plans re-
fo
quired under paragraph (4); and
The Secretary of the department in which the th
Coast Guard is operating shall establish a Nation- (iv) shall review each of those plans that
al Response Unit at Elizabeth City, North Car- affect its area of geographic responsibility. gr
olina. The Secretary, acting through the National (4) Area committees and area contingency plans VE
Response Unit- (A) There is established for each area designat- re
(A) shall compile and maintain a comprehen- ed by the President an Area Committee comprised ar
sive computer list of -spill removal resources, of members appointed by the President from R1
personnel, and equipment that is available qualified personnel of Federal, State, and local dE
worldwide and within the areas designated by agencies.
the President pursuant to paragraph (4), which (B) Each Area Committee, under the direction C(
shall be available to Federal and State agencies of the Federal On-Scene Coordinator for its area,
and the public; shall-
(B) shall provide technical assistance, equil>- (i) prepare for its area the Area Contingency Pi
ment, and other resources requested by a Fed- Plan required under subparagraph (C);
eral On-Scene Coordinator; (ii) work with State and local officials to P.
(C) shall coordinate use of private and public enhance the contingency planning of those offi-
personnel and equipment to remove a worst cials and to assure preplanning of joint re- (5) 1
case discharge, and to mitigate or prevent a sponse efforts, including appropriate proce-
substantial threat of such a discharge, from a dures for mechanical recovery, dispersa, shore- reqi
vessel, offshore facility, or onshore facility op- line cleanup, protection of sensitive environmen- faci
erating in or near an area designated- by the tal areas, and protection, rescue, and rehabilita- and
President pursuant to paragraph (4); tion of fisheries and wildlife; and ing,
(D) may provide technical assistance in the (iii) work with State and local officials to wor
preparation of Area Contingency Plans re- expedite decisions for the use of dispersants of ,
quired under paragraph (4); and other mitigating substances and devices. stai

516 517 WATER POLLUTION PREVENTION 33 � 1321
FWPCA 6 11
strike (0 Each Area Corn mittee shall prepare and (B) The tank vessels and facilities refern7to
Contin'. submit to the President for approval an Area in subpamgraph (A) are the following:
Contingency Plan for its area. The Area Contin- M A tank vessel, as defined under section
.itingen- 2101 of Title 46.
der this (0 when implemented in conjunction with the (H) An offshore facility.
National Contingency Plan, be adequate to re- (iii) An onshore facility that, because of its
.ns that move a worst case discharge, and to mitigate or location, could reasonably be expected to cause
)section. prevent a substantial threat of such a dis- substantial harm to the environment by dis-
charge, from a vessel, offshore facility, or on- charging into or on the navigable watem, ad-
in which shore facility operating in or near the area; joining shorelines, or the exclusive economic
iblish in (H) describe the area covered by the plan, zone.
District including the areas of special economic or envi- (C) A response plan required under this para-
ronmental importance that might be damaged graph shall-
se Group by a discharge; M be consistent with the requirements of the
(iii) describe in detail the responsibilities of National Contingency Plan and Area Contingen-
A equip- an owner or operator and of Federal, State, and cy Plans;
of each local agencies in removing a discharge, and in 00 identify the qualified individual having
mitigating or preventing a substantial threat of full authority to implement removal actions,
@ent, and a discharge; and require immediate communications between
@ff. Ov) list the equipment (including firefighting that individual and the appropriate Federal offi-
@ups- equipment), dispersants or other mitigating cial and the persons providing personnel and
,e, equip- substances and devices, and personnel available equipment pursuant to clause (iii);
ired by a to an owner or operator and Federal, State, and (iii) identify, and ensure by contract or other
local agencies, to ensure an effective and imme- means approved by the President the availabili-
diate removal of a discharge, and to ensure ty of, private personnel and equipment neces-
response mitigation or prevention of a substantial threat sary to remove to the maximum extent practica-
of a discharge; ble a worst case discharge (including a dis-
ce in the (0 describe -the and to
- grocedures to be followed charge resulting from fire or explosion), ,
31ans re- for obtaininz-an expedited decision rezaR-inz- mitigate or prevent a substantial threat of such
the-use of dispersants; _ a discharge;
fans that (YO describe in detail how the plan is inte- 00 describe the training, equipment testing,
bility. grated into other Area Contingency Plans and periodic unannounced drills, and response ac-
plans vessel, offshore facility, and onshore facility tions of persons on the vessel or at the facility,
designat- response plans approved under this subsection, to be carried out under the plan to ensure the
@omprised and into operating procedures of the National safety of the vessel or facility and to mitigate
ent from Response Unit; or prevent the discharge, or the substantial
and local (vii) include any other information the Presi- threat of a discharge;
dent requires; and (v) be updated periodically; and
direction (viii) be updated periodically by the Area (vi) be resubmitted for approval of ea2h sig-
- its area, Committee. afficant change.
(D) The Pmsident shall-- (D) With respect to any response plaa sub-
ntingency M review and approve Area Contingency mitted under this pamgmph for an onshore facili-
Plans under this pamgraph; and ty that, because of its location, could reasonably
'ficials to 00 periodically review Area Contingency be expected to cause significant and subE.tantial
-hose offi- Plans so approved. harm to the environment by discharging into or
joint re- (5) Tank Yessel and facUity response plans on the navigable watem or adjoining shorelines or
te proce- (A) The President shall issue regulations which the exclusive economic zone, and with respect to
a para-
,al, shore- require an owner or operator of a tank vessel or each response plan submitted under thL
,rironmen- facility described in subpamgraph (B) to prepare graph for a tank vessel or offshore facility, the
,ehabilita- and submit to the President a plan for respond- President shall-
ing, to the maximum extent pmeticable, to a (i) promptly review such response plzn;
Mcials, to
worst case discharge, and to a substantial threat (H) require amendments to any plEm that
spersants of such a discharge, of oil or a hazardous sub- does not meet the requirements of this para-
I devices. stance. graph;

33 � 1321 FEDERAL ENVIRONMNTAL LAWS 518 519
FWPCA J 311
(M) approve any plan that meets the reqdire- areas for which Area Contingency Plans are re- such
ments of this paragraph; and quired under this subsection and under relevant prov
. 00 review each plan periodically thereafter. tank vessel and facility response plans. The drills tratc
(E) A tank vessel, offshore facility, or onshore may include participation by Federal, State, and requ
facility required to prepare a response plan under local agencies, the owners and operators of ves- tion.
this subsection may not handle, store, or trans- sels and facilities in the area, and private indus- (B) F
port oil unless- try. The President may publish annual reports W
0) in the case of a tank vessel, offshore on these drills, including assessments of the ef- of ti
facility, or onshore facility for which a response fectiveness of the plans and a list of amendments tary
plan is reviewed by the President under subpar- made to improve plans. Gua
agraph (D), the plan has been approved by the (8) United States Government not liable tive
President; and The United States Government is not liable for pres
(H) the vessel or facility is operating in com- any damages arising from its actions or omissions
pliance with the plan. relating to any response plan required by this th
(F) Notwithstanding subparagraph (E), the section. w@
President may authorize a tank vessel, offshore M Repealed. Pub.L. 101-380, Title 1, � 2002(b)(2), Aug. ta
facility, or onshore facility to operate without a 18, 1990, 104 Stat. 507
response plan approved under this paragraph, (1) Administration co
until not later than 2 years after the date of the The President is authorized to delegate the admin- ar
submission to the President of a plan for the tank istration of this section to the heads of those Feder- q1L
vessel or facility, if the owner or operator certi- al departments, agencies, and instrumentalities (C) I
fies that the owner or operator has ensured by which he determines to be appropriate. Each such A
contract or other means approved by the Presi- department, agency, and instrumentality, in order to the
dent the availability of private personnel and avoid duplication of effort, shall, whenever appro- Coai
equipment necessary' to respond, to the maximum
extent practicable, to a worst case discharge or a pnate, utilize the personnel, services, and facilities sion
substantial threat of such a discharge. of other Federal departments, agencies, and instru- may
(G) The owner or operator of a tank vessel, mentalities. pt
offshore facility, or onshore facility may not claim (m) Administrative provisions S(
as a defense to liability under title I'of the Oil (1) For vessels in
Pollution Act of 1990 [section 2701 et seq. of this Anyone authorized by the President to enforce ai
title] that the owner or operator was acting in
the provisions of this section with respect to any
accordance with an approved response plan. vessel may, except as to public vessels- b:
(H) The Secretary shall maintain, in the Vessel (A) board and inspect any vessel upon the ti
Identification Svstem established under chapter navigable waters of the United States or the (D)
125 of Title 46, the dates of approval and review waters of the contiguous zone, A
of a response plan under this paragraph for each (B) with or without a warrant, arrest any und
tank vessel that is a vessel of the United States. person who in the presence or view of the sarr.
(6) Equipment requirements and inspection authorized person violates the provisions of this whi
Not later than 2 years after August 18, 1990, section or any regulation issued thereunder, infc
the President shall require- and of t
(A) periodic inspection of containment (C) execute any warrant or other process
booms, skimmers, vessels, and other major issued by an officer or court of competent (n) Jurir!
equipment used to remove discharges; and jurisdiction. The s
(B) vessels operating on navigable waters (2) For facilities are inve
and carrying oil or a hazardous substance in (A) Recordkeeping than ac
bulk as cargo to carry appropriate removal Whenever required to carry out the purposes section,
equipment that employs the best technology of this section, the Administrator or the Secre- Guam a
economically feasible and that is compatible such ac,
with the safe operation of the vessel. tary of the Department in which the Coast Guam,
Guard is operating shall require the owner or actions
(7) Area drills operator of a facility to which this section ap- Virgin I
. The President shall periodically conduct &ills plies to establish and maintain such records, the TrL
of removal capability, without prior notice, in make such reports, install, use, and maintain actions

518 519 WATER POLLMON PREVENTION 33 � 132:1
FWPCA � 311
Lre re- such monitoring equipment and methods, and United States for the District of Hawaii and su.-h
levant provide such other information as the Adminis- court shall have jurisdiction of such actions. In the
! drills trator or Secretary, as the case may be, may case of the Canal Zone, such actions may be
a, and require to carry out the objectives of this sec- brought in the United States District Court for the
,f ves- tion. District of the' Canal Zone.
in@us- (B) Entry and inspection M Obligation for .damages unaffected; local authority
eports not preempted. existing Federal authority not
Whenever required to carry out the purposes modified or affected
he ef- of this section, the Administrator or the Secre- (1) Nothing in this section shall affect or modify
ments
tary of the Department in which the Coast in any way the obligations of any owner or operator
Guard is operating or an authorized representa- -of any vessel, or of any owner or operator of any
tive of the Administrator or Secretary, upon onshore facility or offshore facility to any persor. or
)Je for
presentation of appropriate credentials, may- agency under any provision of law for damages to
;ssions (i) enter and inspect any facility to which any publicly owned or privately owned propErty
y this this section applies, including any facility at resulting from a discharge of any oil or hazardous
which any records are required to be main- substance or from the removal of any such oi'. or
Aug. tained under subparagraph (A); and hazardous substance.
0D at reasonable times, have access to and (2) Nothing in this section shall be construed as
copy any records, take samples, and inspect preempting any State or political subdivision the:.-eof
admin- any monitoring equipment or methods re- from imposing any requirement or liability with
Feder- quired under subparagraph (A). respect to the discharge of oil or hazardous sub-
:alities (C) Arrests and execution of warrants stance into any waters within such State.
h such Anyone authorized by the Administrator or (3) Nothing in this section shall be construed as
-der to the Secretary of the department in which the affecting or modifying any other existing authority
appro- Coast Guard is operating to enforce the provi- of any Federal department, agency, or instrumental-
-cilities sions of this section with respect to any facility ity, relative to onshore or offshore facilities under
instru- may- this chapter or any other provision of law, or to
(i) with or without a warrant, arrest any affect any State or local law not in conflict witf. this
person who violates the provisions of this section.
section or any regulation issued thereunder (p) Repealed. Pub.L 101-380, Title 11. � 2002(b)(4),
in the presence or view of the person so Aug. 18, 1990, 104 Stat. 507
!nforce authorized; and (q) Establishment of maximum limit of liability with
to any (ii) execute any warrant or process issued respect to onshore or offshore facilities
by an officer or court of competent jurisdic- The President is authorized to establish, with
on the tion. respect to any class or category of onshore or
or the (D) Public access offshore facilities, a maximum limit of liability un-
der subsections (f)(2) and (3) of this section of less
-st any Any records, reports, or information obtained than $50,000,000, but not less than $8,000,000.
of the under this paragraph shall be subject to the (r) Liability limitations not to limit liability under other
of this same public access and disclosure requirements legislation
!under, which are applicable to records, reports, and Nothing in this section shall be construed to im-
information obtained pursuant to section 1318 pose, or authorize the imposition of, any limAation
)rocess of this title. on liability under the Outer Continental Shelf'lAnds
kpetent (n) Jurisidiction Act [43 U.S.C. 1331 et seq.] or the Deepwater Port
The several district courts of the United States Act of 1974 (33 U.S.C. 1501 et seq.].
(June 30, 1948, c. 758, Title 111, J 311, as added Oct. 18,
are invested with jurisdiction for any actions, other 1972, Pub.L 92-500, 12, 86 Stat. 862, and amended Dec.
than actions pursuant to subsection (i)(1) of this 28, 1973, Pub.L 93--207, 1 1(4), 87 Stat. 906; Dec. 27, 1977,
section, arising under this section. In the case of Pub.L 95-217, it 57, 58(a)--(g), (i), (k)-(m), 91 Stat.
rposes Guam and the Trust Territory of the Pacific Islands, 1593.-1596; Nov. 2, 1978, Pub.L 95-576, J 1(b), 42 Stat.
Secre- 2467; Oct. 21, 1980, Pub.L. 96-478, � 13(b), 94 Stat. 2303;
Coast such actions may be brought in the district court of Oct. 21, 1980, Pub.L 96-483, 8, 94 Stat. 2362; Dec. 22,
Guam, and in the case of the Virgin Islands such 1980, Pub.L. 96-561, Title II, 238(b), 94 Stat. 3300; April
ner or actions may be brought in the district court of the 2, 1982, Pub.L 97-164, Title 1, 1 161(5), 96 Stat- 49; Feb.
on ap- Virgin Islands. In the case of American Samoa and 4, 1987, Pub.L 100-4, Title V, I 502(b), 101 Stat. 1'5; Aug.
mrds, 18, 1990, Pub.L 101-380, Title II, � 2002(b), '1tle IV,
the Trust Territory of the Pacific Islands, such ji 4201(a), (b), (bX(c)l 4202(a), (c), 4204, 43oga), lib), 4305,
T

Lintain actions may be brought in the Distrid Court of the 4306, 104 Stat. 50% 523, 525, 527, 532, 533, 540, 541.)

33 � 1321 FEDERAL ENVIRONMENTAL LAWS 520 521
FWPCA 1311
(a) Oil Spill Liability Trust Fund Committees are established undersection 3110)(4) of the Federal Designation
Water Pollution Control Act [subsec. (j)(4) of this section], as ing ha
The Oil Spill Liability Trust Fund established amended by this Act. In designating such areas, the President see se(
under section 9509 of Title 26 shall be available to shall ensure that all navigable waters, adjoining shorelines, and Effective dat
waters of the exclusive econon-Lic zone are subject to an Axes sectior
carry out subsections (b), (c), (d), 0), and (@ of this Contingency Plan under that section. Establishmer
section as those subsections apply to ffischarges, "(B) Not later than 18 months after the date of the enactment tion, s,
Establishmer
and substantial threats of discharges, of oil. Any of this Act [Aug. 18, 1990], each Area Committee established under stance:
amounts received by the United States under this that section [subsec. (j)(4) of this section) shall submit to the Welfw
section shall be deposited in the Oil Spill Uability President the Area Contingency Plan required under that section. Federal oil p
"(C) Not later than 24 months after the date of the enactment ability
Trust Fund. of this Act [Aug. 18, 1990], the President shall- tide.
"M promptly review each plan; Hazardous S
References in Text "01) require amendments to any plan that does not meet the result
The Comprehensive Environmental Response, Compensation, and requirements of section 3110'X4) of the Federal Water Pollution under
Liability Act of 1980, referred to in subsec. (cX4)(BXii), is Pub.L Control Act (subsec. OX4) of this section); and Healti
96--510, Dec. 11, 1980, 94 Stat. Z767, as amended, which is principal- "(W) approve each plan that meets the requirements of that Hudson Rive
ly classified to chapter 103 (section 9601 et seq.) of Title 42, The section. of this-
Public Health and Welfare. For complete classification of this Act "(2) National response unit.-Not later than one year after the Oil within n
to the Code, see Short Title note set out under section 9601 of Title date of the enactment of this Act [Aug. 18, 1990), the Secretary of "mate
42 and Tables. the department in which the Coast Guard is operating shall estab- Prohibition o
The Oil Pollution Act of 1990, referred to in subsecs. (c)(5)(B), lish a National Response Unit in accordance with section 311OX2) see se
06), (dX2XH) and &5)(H), is Pub.L. 101-380, Aug. 18, 1990, 104 of the Federal Water Pollution Control Act, as amended by this Regulations
Stat. 484, which is principally classified to chapter 40 (section 2701 Act (subsec. OX2) of this section]. source
et seq.) of this title. Section 1001 of the Act is classified to section "(3) Coast guard district response groups.-Not later than I Welfa:
Z701 of this title. For complete classification of this Act to the Regulations
year after the date of the enactment of this Act (Aug. 18, 1990], ardou.,
Code, see Short Title note set out under section Z701 of this title the Secretary of the department in which the Coast Guard is
and Tables. operating shall establish Coast Guard District Response Groups in Removal of
accordance with section 3116)(3) of the Federal Water Pollution estabi
Codification I title.
Contro Act. as amended by this Act [subsec. UX3) of this section]. Revision of
"Not later than 2 years after August 18, 1990", appearing in "M Tank vessel and facility response plans; transition provi. The P
subsec. (j)(6), was, in the original, "not later than 2 years after the sion; effective date of prohibltion.--(A) Not later than ?4 months Transfer of
date of enactment of this section", and was editorially translated after the date of the enactment of this Act [Aug. 18, 1990], the of lit]
according to the probable intent of Congress in enacting subsec. President shall issue regulations for tank vessel and facility re-
UX6) by Pub.L 101-380, 104 Stat. 484, which was approved Aug. sponse plans under section 3110)(5) of the Federal Water Pollution
18, 1990. Control Act, as amended by this Act (subsec. (j)(5) of this section).
"M During the period beginning 30 months after the date of Exceptions t
Oil Spill Liability Under Oil Pollution Act of 1990 the enactment of this paragraph (Aug. 18, 1990], and ending 36 Jurisd
Section 2002(a) of Pub.L. 101-380 provided that: "Subsections months after that date of enactment, a tank vessel or facility for
M, (g). (h), and (i) of section 311 of the Federal Water Pollution which a response plan is required to be prepared under section Ft
Control Act (33 U.S.C. 1321) [subsecs. (f). (g), (h), and (i) of this 31lbX5) of the Federal Water Pollution Control Act [subsec. (j)(5) liability of
section) shall not apply with respect to any incident for which of this section), as amended by this Act, may not handle, store, or
liability is established under section 1002 of this Act [section 2702 transport oil unless the owner or operator thereof has submitted
of this title]." such a plan to the President.
-(C) Subparagraph (E) of section 3110XS) of the Federal Water Complaint P
Transfer to Oil Spill Liability Trust Fund of Moneys Pollution Control Act [subsec. (j)(5) of this section], as amended by under
Remaining in Revolving Fund Upon Its Repeal this Act. shall take effect 36 months after the date of the enact- Complaints i
Section 2002(b)(2) of Pub.L 101-380 provided that. "Subsection ment of this Act [Aug. 18, 1990]." Judgment f
(k) [of this section] is repealed. Any amounts remaining in the Comir
revolving fund established under that.subsection shall be deposited Deposit of Certain Penalties Into Oil
in the [Oil Spill Liability Trust) Fund. The [Oil Spill Liability Spill Liability Trust Fund
Trust] Fund shall assume all liability incurred by the revolving Penalties paid pursuant to this section and sections 1319(c) and Concurrent
fund established under that subsection." 1501 et seq., respectively, of this title, deposited in the Oil Spill
Liability Trust Fund created under section 9509 of Title 26, Inter-
Revision of National Contingency Plan nal Revenue Code, see section 4304 of Pub.L 101-380, set out as a
Section 4201(c) of Pub.L 101-M provided that: "Not later than note under section 9509 of Title 26. Civil penalti,
one year after the (late of the enactment of this Act (Aug. 18, see C
1990), the President shall revise and republish the National Contin- Cross References Designation
gency Plan prepared under section 311(cX2) of the Federal Water requii
Pollution Control Act [subsec. (c)(2) of this section] (as in effect Authorization of appropriations to carry out this chapter with seq.
certain exceptions, see section 1376 of this title. Financial re
immediately before the date of the enactment of this Act (Aug. Is, CFR
1990]) to implement the amendments made by this section [amend- Coordination of guidelines for use of imminent hazard, enforce-
ing subsecs. (a), (c), and (d) of this section) and section 42D2 ment. and emergency response authorities with powers un- Financial re
(amending subsecs. 0) and (o) of this sectionl" der this section, see section 9606 of Title 42, The Public seq.
Health and Welfare. Hazardous
Implementation of National Planning Definition of "hazardous substance" for purposes of comprehen- Desigra
sive environmental response, compensation, and liability pro- Determ
and Response System visions. see section 9601 of Title 42. s
Section 4202(b) of Pub.L 101-M provided that Definition of "removal costs" for purposes of offshore oil spill Inspection a
"(D Area committees and contingency piana-4A) Not later pollution fund, see section 1811 of Title 43, Public Lands. 189.0
than 6 months after the date of the enactment of this Act (Aug. 18, Demonstration of financial responsibility in accordance with this Liability lin
19901 the President shall designate the areas for which Area section. aft section 1653 of Title 43. 113.1

520 521 WATER POLLUTION PREVENTION 33 � 1322
FWPCA � 3', 2
ederal Designation of hazardous substance under this section as constitut- Limitations on discharge of oil, see 40 CFR 110.1 et seq., 112.1 et
.n], as ing hazardous material in relation to vessels and seamen, seq.
.-sident see section 2101 of Title 46, Shipping. Oil pollution regulations, see 33 CFR Chap. 1, Sulichap. 0.
s, and Effective date of regulations issued pursuant to this section, see Pollution contingency plan, see 40 CFR 300.1 et seq.
Area section 9652 of Title 42. The Public Health and Welfare. Pollution of coastal and navigable waters, reports by United States
Establishment and maintenance of records to carry out this sec- Customs Service officers, see 19 CFR 4.0 et seq.
:tment tion, see section 1318 of this title. Pollution removal damage claims, see 33 CFR 25.101 et s,@-q.
Establishment of reportable released quantities of hazardous sub- Trans-Alaska pipeline liability fund, see 43 CFR 29.1 et seq.
under
,to the stances, see section 9602 of Title 42, The Public Health and
ection. Welfare. United States Supreme Court
ctment Federal oil pollution preventive measures on the high seas, avail- Hearing in which civil penalty imposed not "quasi-criminal" so as
ability of revolving fund monies, see section 1486 of this to implicate constitutional protection against compulsory self -in-
title.
crimmation as regards use of statutory reporting requirements,
Hazardous Substance Superfund, payment of claims incurred as see U.S. v. Ward, 1980, 100 S.CL 2636, 448 U.S. 242, 65 L.&.2d
eet the result of carrying out national contingency plan established 742, rehearing denied 101 S.Ct. 37, 448 U.S. 916, 65 L.Ed.2d 11,79.
)Ilution under this section, see section 9611 of Title 42, The Public State regulation or control, oil spills, waiver of preemption,
Health and Welfare. Askew v. American Waterways Operators Inc., 1973, 93 S.Ct. 1.590,
of that Hudson River reclamation demonstration project, see section 1266 411 U.S. 325, 36 L.Ed.2d 280.
of this title.
r the Law Review Commentaries
Oil within meaning of this section as included in definition of
otary of "Material". see section 1402 of this title.
I estab- Prohibition of discharge of oil from any offshore facility or vessel, Encouraging safety through insurance-based incentives: finarcial
311OX2) see section 1821 of Title 43, Public Lands. responsibility for hazardous wastes. Jeffrey Kehne, 96
by this Regulations respecting, assessment of damages to natural re- Yale L.J. 403 (1986).
sources. see section 9651 of Title 42, The Public Health and Groundwater contamination claims in Connecticut. Dean M. Cordi-
than I Welfare. ano and Lynn Anne Glover, 60 Conn.B.J. 167 (1986).
1990], Regulations supplemental to effluent limitations for specific haz- Liability of parent corporations for hazardous waste cleanup and
uard is ardous pollutants, see section 1314 of this title. damages. 99 Harvard L.Rev. 986 (1986).
-oups in Removal of oil in accordance with National Contingency Plan New Jersey clean up your "act": Some reflections on the Spill
lollution established pursuant to this section, see section 1517 of this Compensation and Control Act. Francis E.P. McCartei-, 38
section]. title. Rutgers L.Rev. 637 (1986).
Revision of National Contingency Plan, see section 9605 of Title 42, Regulation of batture pollution and ecology. Stan Millar, 33
n provi- The Public Health and Welfare. Loyola (La.) LRev. 921 (1988).
months Transfer of unobligated funds under this section, see section 9654
901, the of Title 42. � 1322. Marine sanitation devices
:ility re-
lollution [FWPCA � 3121
section]. Federal Practice and Procedure (a) Definitions
date of Exceptions to sovereign immunity, see WrighL Miller & Cooper
iding 36 Jurisdiction 2d � 3656 et seq. For the purpose of this Section, the term-
:i1ity for
- section Federal Jury Practice and Instructions (1) "new vessel" includes every descriptio:,,i of
sec. UX5) watercraft or other artificial contrivance used, or
store, or Liability of corporation, see Devitt and Blackmar � 64.08.
ubmitted capable of being used, as a means of transporta-
West's Federal Forms tion on the navigable waters, the construction of
-al Water Complaint for cleanup expense, see J 11098.5 and Comment there- which is initiated after promulgation of standards
ended by under. and regulations under this section;
he enact- Complaints in admiralty charging oil pollution, see �� 11097, 11098.
Judgment for oil spill cleanup costa, penalty, see � 11755 and (2) "existing vessel" includes every description
Comment thereunder. of watercraft or other artificial contrivance iised,
West's Federal Practice Manual or capable of being used, as a means of tranapor-
and Concurrent Claims Court jurisdiction, see J 1934. tation on the navigable waters, the construction
Oil Spill of which is initiated before promulgation of stan-
26, Inter- Code of Federal Regulations dards and regulations under this section;
t out as a
Civil penalties for violation of oil pollution prevention regulations, (3) "public vessel" means a vessel owned or
see 40 CFR 114.1 et seq.
Designation of substances, reportable quantities, and notification bareboat chartered and operated by the 'United
requirements for release of substances, see 40 CFR 302-1 et States, by a State or political subdivision thereof,
pter with seq. or by a foreign nation, except when such vessel is
Financial responsibility for oil pollution--Aluka pipeline, see 33
enforce- CFR 131.1 et *eq. engaged in commerce;
)were un- Financial responsibility for water-pollution. see 33 CFR 130.1 et (4) "United States" includes the State%, the
he Public seq.
Hazardous subatances- District of Columbia, the Commonwealth of Puer-
omprehen- Designation, a" 40 CFR 116.1 et seq. to Rico, the Virgin Islands, Guam, Ameriam Sa-
bility p- Determination of reportable quantities, see 40 CFR 117.1 et moa, the Canal Zone, and the Trust TerritA)ry of
8". the Pacific Islands;
e oil Spill Inspection and certification, see 46 CFR 71.01 et &eq., 91.01 et seq.,
be Lands. 189.01 et seq. (5) "marine sanitation device" includes any
with this Liability limits for small onshore storage facilities, see 40 CFR
118.1 et a". equipment for installation on board a vessel which

Environmental Protection Agency � 300.905

r a public. The lead agency is encouraged file which could not have been submit-
to consider and respond, as appropri- ted during the public comment period
ate, to significant comments that were and which substantially support the
submitted prior to the publiC comment need to significantly alter the re-
a period. A written response to signifi- sponse action. All such comments and
ths cant comments submitted during the any responses thereto shall be placed
public comment period shall be includ- in the administrative record file.
,ies ed in the administrative record file.
file (3) Documents generated or received Subpart J-Use of Dispersants and
in- after the decision document is signed Other Chemicals
shall be added to the administrative
-ua- record file only as provided in SouRcE: 55 FR 8861. Mar. 8. 1990, unless
-ade � 300.825. otherwise noted.
-ich
i in �300.825 Record requirements after the � 300.900 General.
cir- decision document is signed.
7 of (a) The lead agency may add docu- (a) Section 311(c)(2)(G) of the Clean,
ments to the administrative record file Water Act requires that EPA prepare
ie a after the decision document selecting a schedule of dispersants and other
i in the response action has been signed if: chemicals, if any, that may be used in
;ons (1) The documents concern a portion carrying out the NCP. This subpart
:ion of a response action decision that the makes provisions for such a schedule.
(b) This subpart applies to the navi-
a in decision document does not address or
The reserves to be decided at a later date; gable waters of the United States and
ider or adjoining shorelines, the waters of the
.Ufi- (2) An explanation of significant dif- contiguous zone, and the high seas
tted ferences required by � 300.435(c), or an beyond the contiguous zone in connec-
I A amended decision document is issued, tion with activities under the Outer
,om- in which case, the explanation of sig- Continental Shelf Lands Act, activities
I under the Deepwater Port Act of 1974,
c nificant differences or amended deci- or activities that may affect natural
sion document and all documents that resources belonging to, appertaining
or f orm the basis for the decision to to, or under the exclusive management
.1ply modify the response action shall be authority of the United States, includ-
added to the administrative record ing resources under the Magnuson
ocu- file. Fishery Conservation and Manage-
with (b) The lead agency may hold addi- ment Act of 1976.
the tional public comment periods or (c) This subpart applies to the use of
extend the time for the submission of any chemical agents or other additives
ived public comment after a decision docu- as defined in subpart A of this part
med
ment has been signed on any issues that may be used to remove or control
Ltive concerning selection of the response
in action. Such comment shall be limited oil discharges.
to the issues for which the lead agency � 300.905 NCP Product Schedule.
in- has requested additional comment. All
cion: additional comments submitted during (a) Oil Discharges. (1) EPA shall
ad- such comment periods that are respon- maintain a schedule of dispersants and
:iade Sive to the request, and any response other chemical or biological products
tater to these comments, along with docu- that may be authorized for use on oil
-site Inents supporting the request and any discharges in accordance with the pro-
the final decision with respect to the issue, cedures set forth in � 300.910. This
Lajor shall be placed in the administrative schedule. called the NCP Product
Ltion record file. Schedule, may be obtained from the
dnis- (c) The lead agency is required to Emergency Response Division (OS-
consider comments submitted by inter- 210). U.S. Environmental Protection
)pro- ested persons after the close of -the Agency. Washington, DC 20460. The
umber is 1-202-382-2190.
nent Public comment period only to the telephone n
extent that the comments contain sig- (2) Products may be added to the
e nificant inforrn tion not contained NCP Product Schedule by the process
fe elsewhere in the administrative record specified in � 300.920.
83

300-910 40 CFR Ch. 1 (7-1-01 Edition) Er
(b) Hazardous Substance Releases (d) Sinking agents shall not be au-
[Reserved). thorized for application to oil dis- pi
charges. ot
� 300.910 Authorization of usi: (e) RRTs shall, as appropriate, con- te
(a) The OSC, with the concurrence sider, as part of their planning activi- in
of the EPA representative to the RRT ties, the appropriateness of using the fr
and, as appropriate, the concurrence dispersants, surf ace collecting agents, St
of the RRT representatives from the biological additives, or miscellaneous
states with jurisdiction over the navi- oil spill control agents listed on the in
gable waters threatened by the release NCP Product Schedule, and the appro- Pi
T'
or discharge, and in consultation with priateness of using burning agents.
the DOC and DOI natural resource Regional Contingency Plans (RCPs) ay
trustees, when practicable, may au- shall, as appropriate, address the use al
thorize the use of dispersants, surface of such products in specific contexts. 5
collecting agents, biological additives, If the RRT representatives from the m
or miscellaneous oil spill control states with jurisdiction over the
agents on the oil discharge, provided waters of the area to which an RCP M
that the dispersants, surface collecting applies and the DOC and DOI natural Tf
agents, biological additives, or miscel- resource trustees approve in advance.
laneous oil spill- control agents are the use of certain products under spec- M
listed on the NCP Product Schedule. ified circurn tances as described in the C1
(b) The OSC, with the concurrence RCP, the OSC may authorize the use
of the EPA representative to the RRT of the products without obtaining the M
and, as appropriate, the concurrence specific concurrences described in M
of the RRT representatives from the paragraphs (a) and (b) of this section.
states with jurisdiction over the navi- Tf
gable waters threatened by the release � 300.915 Data requirements. PC
or discharge, and in consultation with (a) Dispersants. (1) Name, brand, or pa
the DOC and DOI natural resource trademaxk, if any, under which the TfI
trustees, when practicable, may au' dispersant is sold.
thorize the use of burning agents on a (2) Name, address, and telephone i U1
case-by-case basis. number of the manufacturer, import- tu
(c) The OSC may authorize the use er, or vendor.
of any dispersant, surface collecting (3) Name, address, and telephone 87
agent, other chemical agent, burning number of primary distributors or PC
agent, biological additive, or miscella- sales outlets.
Mg
neous oil spill control agent, includi (4) Special handling and worker pre-
products not listed on the NCP Prod- Vi
uct Schedule, without obtaining the cautions for storage and field applica- Li(
concurrence of the EPA representative tion. Maximum and minimum storage na
to the RRT, the RRT representatives temperatures, to include optimum
from the states with jurisdiction over ranges as well as temperatures that 12
the navigable waters threatened by win cause phase separations, chemical D(
the release or discharge, when, in the changes, or other alterations to the ef- G1
judgment of the OSC, the use of the fectiveness of the product. tr(
product is necessary to prevent or sub- (5) Shelf life. uc
stantially reduce a hazard to human (6) Recommended application proce-
life. The OSC is to inform the EPA dures, concentrations. and conditions 6.s
RRT representative and, as appropri- for use depending upon water salinity, W
ate, the RRT representatives from the water temperature, types and ages of
affected states and, when practicable the pollutants. and any other applica- Itf
ce@
the DOC/DOI natural resource trust. tion restrictions.
ees of the use of a product not on the 1(7) Dispersant Toxicity. Use stand-
Schedule as soon as possible and, pur- ard toxicity test methods described in
suant to the provisions in paragraph Appendix C to part 300.
(a) of this section. obtain their 6oncur- (8) Effectiveness. Use standard effec.
rence or their comments on its contin- tiveness test methods described in Ap- tio
ued use once the threat to human life pendix C to part 300. Manufacturers W.
has subsided. are also encouraged to provide data on Fe

QH
91.75
.U55
N38

@@ Ili 1@@ @1@110011111 III lilill
3 6668 14108 8130