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                       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.

                                                                             92
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                      piational Oceanic and Atmosph*ric Adm., Commerce                               ï¿½ 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

                                                                93





              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

                                                     94





                    0,00nal oceanic and Atmosph*r1c Adm., Comm*rce                                   ï¿½ 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-

                                                              95





            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-
          ï¿½ 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.

                                                    96





                        National Oceanic and Atmospheric Adm., Commerce                                   ï¿½ 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 ï¿½ 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-

                                                                    97





        ï¿½ 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:

                                                   98





                      National Oceanic and Atmospheric Adm., Commerce                                     ï¿½ 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*                                   ï¿½ 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 ï¿½ 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                                 ï¿½ 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
                       ï¿½ 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
                       ï¿½ 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






            ï¿½ 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                                    ï¿½ 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





             ï¿½ 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                                  ï¿½ 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






             ï¿½ 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                                ï¿½ 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 ï¿½ 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
                       ï¿½ 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                                            ï¿½ 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.






               ï¿½ 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                                           ï¿½ 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





               ï¿½ 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                                               ï¿½ 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.


~0



                                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
     ï¿½ 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         ï¿½ 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


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               ~~~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
               ~ï¿½ ~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 ï¿½ 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 ï¿½ 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


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            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.


~0



                           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≪ 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.
              ï¿½ 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
              ï¿½ 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
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                                      CALIFORNIAN

                                                        14


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                                                                                       Ok

                                29








                          WIL0141 Cm 81110404


~0



                             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;
 

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                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
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~0



                                  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







9










0'




                                                                                                


                       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-
                       ï¿½ 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                                  ï¿½ 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





       ï¿½ 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                                  ï¿½ 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





     ï¿½ 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                                 ï¿½ 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





         ï¿½ 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



















0




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                                 ï¿½ 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                                                                               

                                                                                       
                                                                                         n
                                                                                         

                                                                                         e
                                                                                            f
                                                                                             th
                                                                                                 r
                                                                                                 e
                                                                                                 2
                                                                                                 



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                                                                                                          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)

















      0,



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


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       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 ï¿½ 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 ï¿½ 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.


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       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 ~qï¿½ 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 ~qï¿½ 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&


~0




           ~~~~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                 ï¿½ "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 




I

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


















 0





                            National Oceanic and Atmosph ic Adm., Commerce                                         ï¿½ 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
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                                       notic
                                            EaX















































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

                                                                          187






                 ï¿½ 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                                    ï¿½ 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






           ï¿½ 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                                                ï¿½ 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







                    ï¿½ 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.                                                              ï¿½ 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                                    ï¿½ 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            ï¿½ 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-
                         ï¿½ 930.19 Management program.                    proved State coastal management pro.
                          The term "management             program"      grams.
                         has the same definition as provided In          ï¿½ 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-
                         ï¿½ 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              ï¿½930.32 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





           ï¿½ 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                                 ï¿½ 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          ï¿½ 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






                    ï¿½ 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                                    ï¿½ 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 -
                         ï¿½ 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 ï¿½ 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




           ï¿½ 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                                ï¿½
                         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-
                         ï¿½ 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




          ï¿½ 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                                  ï¿½ 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






          ï¿½ 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                                      ï¿½ 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
                         ï¿½ 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






           ï¿½ 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
           ï¿½ 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                                ï¿½ 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 ï¿½ï¿½ 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 ï¿½ 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
                        ï¿½ 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         ï¿½ 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                                   ï¿½ 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.
                         ï¿½ 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






            ï¿½ 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 ï¿½ 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                               ï¿½ 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         ï¿½ 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
                           ï¿½ 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






            ï¿½ 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                               ï¿½ 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.
                         ï¿½ 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-
                         ï¿½ 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         ï¿½ 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






          ï¿½ 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-
          ï¿½ 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 ï¿½ 930.113.          notification shall be sent to the appli-
                                                          cant, person or applicant agency, and
          ï¿½ 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
          ï¿½ 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                                  ï¿½ 930.145
                          parties to notify the Assistant Admin-         ï¿½ 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
                          ï¿½ 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           ï¿½ 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























 0





                  Natio al Oceanic and Atmos heric Adm., Commerce                                         ï¿½ 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 ï¿½ 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,

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                  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





            ï¿½ 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                                     ï¿½ 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        ï¿½ 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





            ï¿½ 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
            ï¿½ 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
            ï¿½ 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                                  ï¿½ 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





            ï¿½ 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                                         ï¿½ 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):
                      ï¿½ 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
                      ï¿½ 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







.0




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




                  ï¿½ N5.2                                                15 CFK Ch- IX (1-1-92 Edition)
                  9 935.2 Purpose.                             ï¿½ 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                                       ï¿½ 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 ï¿½ 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           ï¿½935.8 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




                 ï¿½ "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


















0



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.

(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 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



                ï¿½ "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      ï¿½ 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                                       ï¿½ "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           ï¿½935.8 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
               ï¿½ "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


                          I








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                                   ï¿½ 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-
                     ï¿½ 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






            ï¿½ "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                                   ï¿½ 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                                      ï¿½ 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
                ï¿½ 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 ï¿½ 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






           ï¿½ 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
           ï¿½ 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
                    ï¿½ 938.10.                                         such arguments as determined appro
                    ï¿½ 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 ï¿½ 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 *










 0


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  
 




                        ï¿½ 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
                        ï¿½ 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.
                                                                                                                       ï¿½ 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                                     ï¿½ 941.8
                  lance and Enforcement, and Adminis-             ï¿½ 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              ï¿½ 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              ï¿½ 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 ï¿½ 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).
                  ï¿½ 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





             ï¿½ 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       ï¿½ 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                                ï¿½ 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 ï¿½ 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






             ï¿½ 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 ï¿½ 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

















       0


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                                      ï¿½ 942.6
                ï¿½ 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 1ï¿½942.8 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





              ï¿½ 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                                   ï¿½ 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

















.0


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                                 ï¿½ 943.3
                    ï¿½ 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-
                    ï¿½ 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.
                    ï¿½ 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






            ï¿½ 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 ï¿½ 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                                  ï¿½ 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





         ï¿½ 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            ï¿½ 943.6 Shunting requirements applicable
         Marine Sanctuary permit issued pur-                to hydrocarbon-drilling discharges.
         suant to ï¿½ 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                                    ï¿½ 943.10
                     ï¿½ 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 ï¿½ 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                                       ï¿½ 943.13
                         authorization or right is subject to the          applicant as he or she deems necessary
                         provisions of ï¿½ 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 ï¿½ 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 ï¿½ 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                                                                                                                   ï¿½ 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










 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 ï¿½ 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


~0



    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.
 

~0




                                                  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
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      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                      ï¿½ 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 ï¿½ 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                ï¿½ 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.                    ï¿½ 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
      ï¿½ 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.                                ï¿½ 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                ï¿½ 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 ï¿½ 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 ï¿½ 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


~0



        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 ~qï¿½ 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 ~ï¿½ 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~4qï¿½~04qw 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
 

~0




                                             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











0










 0


k










                                                                                                                                                  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.






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        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







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          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-





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                                                                                                                                                 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.






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            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







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                                                                                                                                                         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






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          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






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                                                                                                                                           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






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            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.





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                                                                                                                                              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.





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          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"

                                                                 3-








                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









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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
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 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);






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         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
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       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-







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        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.







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        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



7



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.


8

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.


9


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


10




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-


11


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


12


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;


13



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-

14
 

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.

15




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

16






                                                                                       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

                                            
                                                                                                               17                





                 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


                                                              18


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-


19






                  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

                                                            20        


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.

21







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



				22









		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


			23








	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.

				24







		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


			25








		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.



	26







		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.



				27










                                                          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.














                                                                     2









                       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

                                                                          3
 







                               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

                                                                        4

 







                           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.






































                                                                      5





					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.


							2







										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

							3





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)

												4








                                                                                                                   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


                                                                6









                                        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:

                           ï¿½ The global water cycle is essential to life on earth;
                           ï¿½ 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-,
                           ï¿½ The best way to protect water resources is to keep pollution. from entering waters;
                           ï¿½ High-seas drifinet fishing and other destructive activities disrupt marine life throughout the
                                world's oceans; and

                           ï¿½ 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

                           ï¿½ 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;

                           ï¿½ 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;

                           ï¿½ 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,
                           ï¿½ 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;
                           ï¿½ Policies must be adopted that ensure future land development in a manner sustainable to the
                                global water cycle;
                           ï¿½ 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.



















 0











                                                             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.

                        (c) POLICY.--It is further declared to be the policy of the Congress in this Act---

                            (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;




                                                                     2











                                                                                          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.








                                                              3












                    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.






                                                                  4
 










                                                                                                                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.


                                                                6












                                                                                                      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.












                                                                    10












                                                                                                    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;



                                                                  11











               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.




                                                  12











                                                                                              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-,

                                                              13











                    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.
















                                                                  is










                     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











                                                                                                         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).

                                                                     17










                    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--




                                                                     18











                                                                                                     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;


                                                    20











                                                                                                 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.








                                                               21










                    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.

                                                               22











                                                                                               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;




                                                                 23











                   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.















                                                                  24











                                                                                             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.

                     (c) POLICY.--It is declared to be the policy of the Congress in this section that the United
                  States should--


                         (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



                                                              25











                     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

                                                                     26











                                                                                                     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.



                                                                  27











               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.








                                                  28











                                                                                                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).





                                                               29











                   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.

                                                                  33











                     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


                                                                   34











                                                                                                       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




                                                                    35











                  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.





                                                             36











                                                                                        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,



                                                         37











                    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.







                                                                    38











                                                                                                      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;



                                                                      39










                     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.



                                                                    40












                                                                                                   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).


                                                                 41











                    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.




                                                                   42











                                                                                                     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.






                                                                 43










                     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.




                                                                     44











                                                                                                        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;

                                                                    45










                      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

                                                                   47











                     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.



                                                                     48












                                                                                                    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.











                                                                 49











                     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.





                                                                     50












                                                                                                           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).






                                                                     51











                     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;









                                                                     52












                                                                                                        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.









                                                                     54











                                                                                            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.








                                                                 55










                      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).


                                                                      56











                                                                                                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.

                      (c) JURISDICTION.--There is Federal jurisdiction over any offense described in this section.



                   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.










                                                                  57











                     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.













                                                                   58











                                                                                                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.









                                                                 59










                      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.












                                                                    60











                                                                                         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-,


                                                             61










                        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.


                                                                        62











                                                                                                   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.




                                                                    63











                      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.



















                                                                                                                                  0










                                                                     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;

                                          (C) the Convention on Nature Protection and Wildlife
                                          Preservation in the Western Hemisphere;

                                          (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.

                              (c) Policy.-

                                     (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;

                                           (C) between  a person within the United States and a person
                                           in a foreign country; or

                                           (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;

                                              (C) disease or predation;

                                              (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;

                                           (C) give notice of the proposed regulation to such
                                           professional scientific organizations as he deems
                                           appropriate;

                                           (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.

                              (c) Lists.-

                                     (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).

                                    (c) Cooocrative agreements.-

                                            (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;

                                         (C) the number of endangered species and threatened
                                         species within a State;

                                         (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;

                                         (C) the estimated cost of these actions; and

                                         (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



                                (c) Biological assessment.-

                                       (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.

                                          (C) The Chairman of the Council of Economic Advisors.

                                          (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.

                                           (C) The Committee shall meet at the call of the Chairman
                                           or five of its members.

                                           (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;

                                         (C) appropriate reasonable mitigation and enhancement
                                         measures which should be considered by the Committee;
                                         and

                                         (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.
                              ï¿½5121 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. ï¿½ï¿½ 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.

                                 (c) Personnel.- After consultation with the Secretary of State, the
                                 Secretary may-

                                        (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.

                               (c) Scientific Authority functions - detcrminat ions.-

                                      (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;

                                         (C) take any such species upon the high seas;

                                         (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.

                                (c) Violation of Convention.-

                                        (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,

                                            (C) the applicable requirements of subsections (d), (e),
                                            and (f) of this section have been satisfied, and

                                            (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

                                          (C) file such reports as the Secretary may require.

                                      (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, ï¿½ 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;

                                          (C) has not been repaired or modified with any part of any
                                          such species on or after December 28, 1973; and

                                          (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. ï¿½
                             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










0






 0
              Marine Mammal Protection Act of 1972


                          As Amended Through 1988










 0










 0








                            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




                           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




                           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



                          (c) Importation of illegally taken mammsl% - It is unlawful to import into
                          the United States any of the following:

                                  (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,

                                     (C) the period during which the permit is valid, and

                                     (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.

                            (c) Importation for display or research -

                                   (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


                             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;

                                     (C) does not permit the taking of the species unless and until

                                              (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) section 101(b) of this title shall not apply.

                            (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

                                      (C) the nonlethal removal of nuisance animals.

                                   (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
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                                                      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.

                                       (C) An owner of a vessel engaged in a fishery identified under
                                       paragraph (1)(A)(i) or (ii) who -

                                                (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
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                                                    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

                                      (C) for reasons beyond the control of the Secretary, an ob-
                                      server is not available.

                                   (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;

                                     (C) when required by court order; or

                                     (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
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                                                    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

                                      (C) a summary of such regulations and legislation as would be
                                      necessary to implement the suggested regime.

                                  (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
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                                                                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










 4-
































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."












                                        2


        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












                                          3

          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.

          ï¿½ Increases the maximum civil penalty from $50,000 to $100,000.

          ï¿½ 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."











                                        4

           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

          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)



















 0









        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 ï¿½ 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 ï¿½ï¿½1531 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
        ï¿½1532(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 ï¿½1536). 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 ï¿½1361 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 ï¿½1362(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 ï¿½703 &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 ï¿½703). 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 ï¿½1251 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 ï¿½1311(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 ï¿½1311(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 ï¿½ 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 ï¿½ 1322).

                F. Rivers and Harbors Act (33 USC ï¿½ï¿½ 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 ï¿½ï¿½ 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 ï¿½ï¿½ 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 ï¿½ï¿½1301 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 ï¿½7401 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 ï¿½1331 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 ï¿½ï¿½1401 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 ï¿½ï¿½ 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 ï¿½470f). 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 ï¿½ï¿½ 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










0










 0





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.                    ï¿½ 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 (ï¿½ 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 (ï¿½ 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.                                             ï¿½ 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 (ï¿½ 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 (ï¿½ 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 (ï¿½ 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 (ï¿½ 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             ï¿½ 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 (ï¿½ 1506.2) and        ument.                                             ï¿½1501.4 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-         ï¿½ 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             (ï¿½ 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            ï¿½ 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-                ï¿½
                  (ii) The nature of the proposed              cies shall be cooperating agencies.               except as provided in ï¿½ 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         ï¿½ 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 ï¿½ 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 ï¿½ 1506.6.
               geographical proximity.                         has special expertise with respect to                (2) Determine the scope (ï¿½ 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 (ï¿½ 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.                                              ï¿½ 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                   ï¿½ 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.                 ï¿½ 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,             ï¿½ 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-            ï¿½ 1502.1 Purpose.                                       On proposals (ï¿½ 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 (ï¿½ 1508.14).
                    for each constituent part of t        limits    discussion of significant environmen-
                                                    he NEPA         tal impacts and shall inform decision-               ï¿½ 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           ï¿½ 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.                        ï¿½ 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                   ï¿½ 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-                ï¿½ 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    ï¿½J 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.                         ï¿½ 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            ï¿½ 1502.18 Appendix.
          ï¿½ 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           ï¿½ 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-            ï¿½ 1502.19 Circulation of the environmerital
                                                         tween short-term uses of man's envi-                 impact statement.
          ï¿½ 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 ï¿½ 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          ï¿½ 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 ï¿½ 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
                   ï¿½ 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             ï¿½ 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.            ï¿½ 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:
                   ï¿½ 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               ï¿½ 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:                                 ï¿½ 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            ï¿½ 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.                                      ï¿½ 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
             ï¿½ 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       ï¿½ 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                                                                 ï¿½ 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 ï¿½ï¿½ 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-
          ï¿½ 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    ï¿½ 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                 ï¿½ 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                  ï¿½ 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.                        ï¿½ 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-                 ï¿½ 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-           ï¿½ 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
                ï¿½ 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 (ï¿½ 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                           ï¿½ 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 ï¿½ 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-                        ï¿½ 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.                                                                                                ï¿½ 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.       ï¿½ 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 (ï¿½ï¿½ 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         ï¿½ 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
              ï¿½ 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
                                                           ï¿½ 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;

         (c) preparing an environmental assessment (EA) if appropriate;

         (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.

         (c) Research projects, activities, and programs when any of the
         following may result:

         (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

       (c) to take other actions, e.g., fishery management actions
       without a f ishery management plan.

       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;

         (c) Relative unavailability of information;

         (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

       (c) the name and address of the agency contact for further
       information about the proposed action and the EIS.

       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









 9










 0


I


~0


                      ~~@                                                             ~~~~~--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
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 





                             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
 





     1p

          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

                     V.

           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

                    V.

          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. ï¿½1431, 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. ï¿½924, 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., ï¿½924.8.

                 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. ï¿½5_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

                    V.

           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., ï¿½924.6(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






                                       2
 











                                                     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"









                                               2
 









                                                           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=
 




                                                                            a 







            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. qï¿½1437q(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 ï¿½1437(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:
 





                                                                qQ 






              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, 56qï¿½1070q(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 qï¿½143q7(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,,






                                                                       C 






                      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






                                                                                C 





             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











                                       2



       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

                                            2






                                                             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

        28

                                           3
 







                            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

          28

                                                        4
 





           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

        28

                                           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.

                                           7








                                                               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

        IT



        14q9

        20

        q2,q1

        22

        22q3

        24

        25

        26q6

        27

        24q8q-

                                           a









                                                       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. ï¿½ï¿½ 431 It leg., the Archaeological Resources Protection
      Act (ARPA), 16 U.S.C. ï¿½ï¿½ 470aa &t geA., the National Historic
      Preservation Act (NHPA), 16 U.S.C. ï¿½ï¿½ 470 et Zkq., and most
      recently the Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. ï¿½ï¿½
      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.










                                                                     3


                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. ï¿½ï¿½ 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.










                                    4


     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. ï¿½ï¿½ 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. ï¿½ 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.
             ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 4321 et
                   sea., the Administrative Procedure Act (APA) 5 U.S.C. ï¿½ï¿½ 551 et
                   geg., and the National Historic Preservation Act (NHPA) 16 U.S.C.
                   ï¿½ï¿½ 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. ï¿½ï¿½ 431 et s ., the Archaeological Resources Protection
                                                      Meg
                   Act (ARPA), 16 U.S.C. ï¿½ï¿½ 470aa -et gM., the National Historic
                   Preservation Act (NHPA), 16 U.S.C. ï¿½ï¿½ 470 et seq., and the
                   Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. ï¿½ï¿½ 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.
                   ï¿½ï¿½ 469 et sea., and the Historic Sites Act of 1935, 16 U.S.C.
                   ï¿½ï¿½ 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. ï¿½ï¿½ 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. ï¿½ 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.

                                                                           3








       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

                                        4








           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. ï¿½ 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. ï¿½
           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


                                           5











                                                                                                     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. ï¿½ 470bb(3) (emphasis added).

            However, NOAA's sanctuary program's regulations require
            compliance with ARPA to the extent practicable. 15 C.F.R.
            ï¿½ 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. ï¿½ï¿½ 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. ï¿½ 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.

                                                                  6








            Subsequent clarification concerning historic resources was made
            by Congress in the Abandoned Shipwreck Act of 1987, 43 U.S.C.
            ï¿½ï¿½ 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. ï¿½ï¿½ 1431,
            1433 and 1434. The Secretary acts as trustee for sanctuary
            resources. See 16 U.S.C. ï¿½ 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. ï¿½ 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. ï¿½ 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



                                             7







       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. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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


                                        8








                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. ï¿½ 470cc(b)(1). The regulations, 43 C.F.R. ï¿½ 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

                                            9








            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.

                                       10








                   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. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 470h-2(a)(2)
                 7 Telephone conversation on May 5, 1992 with Lars'Nanstin, Senior Attorney for the National Park Service.

                                                                  12








           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. ï¿½ 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).

                                          13







             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.'ï¿½ 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. ï¿½ï¿½ 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 ï¿½ 15-7, p. 517 n.44 (West 1987).


                                                                      14








           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. ï¿½ 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.


                                            15







        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

                                       16








                             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. ï¿½ 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. ï¿½ 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. ï¿½ 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.


                                                                           17








       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.


                                       18




                                                  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.









                                        2

       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








                                           3

                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








                                       4

       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. ï¿½ 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. ï¿½ 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. ï¿½ 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-



                                                                                          qf
 







     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.
           ï¿½ 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).










                                      2

      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.













                                        3

         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.














                                            2

         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.














                                                      3

                    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:














                                        4

                         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


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                                       ON


                                              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. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 1461,
          entitled "National Estuarine Research Reserve System," and part
          of the Coastal Zone Management Act (CZMA), 16 U.S.C. ï¿½ï¿½ 1451 et
          sea., provides the basic authority for the designation and
          subsequent federal funding of national estuarine research
          reserves. 16 U.S.C. ï¿½ 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. ï¿½ 1453(4). Financial assistance
          awards are available for the,acquisition and management and
                                   /"@Nl
                                     if














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                                                                            INMCORV

          75 Years Stimulating America's Progress 1913-1988











                                          2

       operation of national estuarine research reserves, as well as
       for educational and research purposes. 16 U.S.C. ï¿½ 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. ï¿½
       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 ï¿½ï¿½ 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 ï¿½ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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
       ï¿½ï¿½ 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












                                             3

                    ... estuarine sanctuaries. N.Y. Environmental
                    Conservation ï¿½ 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 ï¿½ 11-0306
          (McKinney 1989); N.Y. Environmental Conservation ï¿½ 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. ï¿½ 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. ï¿½ 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











                                         4

       "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. ï¿½ 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 ï¿½ 1458
       (ï¿½ 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. ï¿½ .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.
           ï¿½ 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




























































































                                                                                   A\











                                        2
       of an oil spill.' CWA ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 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. ï¿½ 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. ï¿½ 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.
          ï¿½ 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
          ï¿½ 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. ï¿½ 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. ï¿½ 944.5(a)(2),(3)).










                                      4

       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 ï¿½ 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, ï¿½ 310, as added Oct. 18,                                   14
              board within such reasonable period as it may pre-                   1972, Pub.L. 92-500, ï¿½ 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 ï¿½ 12.
              thereof (other than effluent data), to which the                                                                                                           stances
              Administrator has access under this section, if made                 ï¿½ 1321. Oil and hazardous substance lia-                                              taking c
              public would divulge trade secrets or secret pro-                                     bility [FMTCA ï¿½ 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 ï¿½ 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_ ï¿½ 1331 et seq.] or the Deepwater Port Act
                                  the United States, while operating in such waters;                     of 1974 [33 U.S.C.A. ï¿½ 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 ï¿½ 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. ï¿½ 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
            ï¿½ 1331 et seq.] or the Deepwater Port Act of 1974                    time safety and with marine and navigation laws
            [33 U.S.C.A. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 1319:1
                                                                                                                                                    FWPCA ï¿½ 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 ï¿½ 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                      ï¿½ 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. ï¿½ 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, ï¿½am:                                    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 ï¿½ 13:21
                                                                                                                                                    FWPCA ï¿½311
     ,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.& ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 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, ï¿½ 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 ï¿½ 132:1
                                                                                                                                                                FWPCA ï¿½ 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. ï¿½ 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, ï¿½ 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, ï¿½ 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 ï¿½ 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 ï¿½ 1322
                                                                                                                                                                                       FWPCA ï¿½ 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.                                                                  ï¿½ 1322. Marine                         sanitation                  devices
     :ility re-
     lollution                                                                                                                                  [FWPCA ï¿½ 3121
     section].                                       Federal Practice and Procedure                                        (a) Definitions
     date of                         Exceptions to sovereign immunity, see WrighL Miller & Cooper
     iding 36                                Jurisdiction 2d ï¿½ 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 ï¿½ 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 ï¿½ï¿½ 11097, 11098.
                                     Judgment for oil spill cleanup costa, penalty, see ï¿½ 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                                                                   ï¿½ 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         ï¿½ 300.825.                                               otherwise noted.
      -ich
      i in         ï¿½300.825 Record requirements after the                   ï¿½ 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 ï¿½ 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                  ï¿½ 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 ï¿½ 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 ï¿½ 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
                   ï¿½ 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           ï¿½ 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

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