[Federal Register Volume 62, Number 120 (Monday, June 23, 1997)]
[Proposed Rules]
[Pages 33768-33778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16053]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 970404078-7078-01]
RIN 0648-AE41


Proposed Thunder Bay National Marine Sanctuary

AGENCY: Sanctuaries and Reserves Division (SRD), Office of Ocean and 
Coastal Resource Management (OCRM), National Ocean Service (NOS), 
National

[[Page 33769]]

Oceanic and Atmospheric Administration (NOAA), Department of Commerce 
(DOC).

ACTION: Proposed rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing to designate an approximately 808 square mile area of waters 
encompassing and surrounding Thunder Bay, Lake Huron, Michigan, and the 
submerged lands thereunder as a National Marine Sanctuary. This 
document publishes the proposed Designation Document for the proposed 
Sanctuary and summarizes the draft management plan. The draft 
management plan details the proposed goals and objectives, management 
responsibilities, research activities, interpretive and educational 
programs, and enforcement, including surveillance activities, for the 
proposed Sanctuary. By this notice, NOAA also proposes regulations to 
implement the proposed designation and regulate activities consistent 
with the provisions of the proposed Designation Document. The 
regulations include boundary coordinates for the proposed Sanctuary. 
Finally, this notice announces the public availability of the Draft 
Environmental Impact Statement/Management Plan (DEIS/MP) prepared for 
the proposed designation.

DATES: comments must be received by September 22, 1997.
ADDRESSES: Comments must be submitted to Stephanie R. Thornton, Chief, 
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource 
Management, National Ocean Service, National Oceanic and Atmospheric 
Administration, SSMC4, 1305 East-West Highway, 11th Floor, Silver 
Spring, Maryland 20910.

FOR FURTHER INFORMATION CONTACT: Ellen Brody at (313) 741-2270 or Ed 
Lindelof at (301) 713-3137, ext. 131.

SUPPLEMENTARY INFORMATION:

I Background

    The National Marine Sanctuaries Act (NMSA), as amended, 16 U.S.C. 
1431 et seq. (also known as title III of the Marine Protection, 
Research, and Sanctuaries Act), authorizes the Secretary of Commerce to 
designate discrete areas of the marine environment as national Marine 
Sanctuaries to protect their conservation, recreational, ecological, 
historical, research, educational or esthetic qualities.
    In January 1982, NOAA published a program Development plan (PDP) 
for the National Marine Sanctuary Program, describing the Program's 
mission and goals; site identification and selection criteria; and the 
nomination and designation process. Based on the PDP and Program 
regulations, NOAA published a proposed Site Evaluation List (SEL) of 
highly-qualified marine sites identified and recommended to NOAA by 
regional resource evaluation teams (RRETs), based on the Program's 
mission and goals. Comments on the proposed SEL and additional site 
recommendations were solicited from the public during the autumn of 
1982. The Great Lakes RRET met initially in May 1982 and selected 
Thunder Bay as one of five potential SEL sites, based in part on strong 
local and regional support evidenced during the public comment period.
    All SEL sites meet Program criteria for further consideration as 
possible national marine sanctuaries; however, placement on the SEL 
does not necessarily mean that a site will become a National Marine 
Sanctuary. The Secretary of Commerce will, from time to time, select 
sites from the SEL as Active Candidates. Selection of a site as an 
Active Candidate formally initiates the process of a site's further 
consideration for Sanctuary designation. Preparation of draft and final 
environmental impact statements, in accordance with the National 
Environmental Policy Act (NEPA), and management plans is required in 
the consideration of any proposed Sanctuary site.
    Before an area may be designated as a National Marine Sanctuary, 
Sec. 303 of the NMSA (16 U.S.C. 1433) requires the Secretary to find:
    (1) The area is of special national significance due to its 
resource or human-use values;
    (2) Existing State and Federal authorities are inadequate or should 
be supplemented to ensure coordinated and comprehensive conservation 
and management of the area, including resource protection, scientific 
research, and public education;
    (3) Designation of the area as a national marine sanctuary will 
facilitate the objectives in the subparagraph (2); and
    (4) The area is of a size and nature that will permit comprehensive 
and coordinated conservation and management.
    Section 304 (16 U.S.C. 1434) requires the Secretary to publish in 
the Federal Register a notice of the proposal, proposed regulations, 
and summary of the draft management plan.
    The authority of the Secretary to designate National Marine 
Sanctuaries has been delegated to the Under Secretary of Commerce for 
Oceans and Atmosphere by DOC Organization Order 10-15, section 3.01(z) 
(Jan. 11, 1988). The authority to administer the other provisions of 
the Act has been delegated to the Assistant Administrator for Ocean 
Services and Coastal Zone Management of NOAA by Circular 83-38, 
Directive 05-50 (Sept. 21, 1983, as amended).
    The Thunder Bay region contains over 160 shipwrecks that span more 
than a century of Great Lakes maritime history. Although many of these 
wrecks have been identified, many more are thought to be in the Thunder 
Bay area and have yet to be located. Collectively, Thunder Bay's 
shipwrecks present a ``microcosm'' of the Great Lakes commercial 
shipping industry. Based on studies undertaken to date, there is strong 
evidence of Thunder Bay's national historical significance, as the 
sunken vessels reflect transitions in ship architecture and 
construction methods, from wooden sailboats to early iron hulled 
steamers. Additional significance is attached to the collection (or 
number) of shipwrecks in the Thunder Bay region, if not to individual 
vessel characteristics. A large array of shipwrecks exist in the 
Thunder Bay region, including virtually all types of vessels used on 
the open Great Lakes. These vessels were engaged in nearly every type 
of trade, thereby linking Thunder Bay inextricably to Great Lakes 
commerce.
    The historical themes encompassed by existing investigation of 
shipwrecks in Thunder Bay (Martin 1996) include:

--Prehistoric transportation;
--Early trade and exploration by Europeans;
--Early settlement and military affairs (1679-1860);
--Westward expansion (1763-1898);
--Business and agricultural products;
--Lumber, coal, stone, and ore;
--Foreign trade and the St. Lawrence Seaway;
--Transportation technology (commercial sail);
--Transportation technology (commercial steam); and
--Transportation technology (motor-powered and unpowered--vessels).

    From even the most general of observations, Thunder Bay's 
collection of shipwrecks may be considered nationally significant 
historically, as the wrecks present a broad history of Great Lakes 
culture and commercial history. A recent study also has investigated 
the potential of Thunder Bay for possible National Historic Landmark 
status (Martin 1996).
    On July 15, 1991, NOAA published a Federal Register notice 
announcing the active candidacy of Thunder Bay as a

[[Page 33770]]

potential National Marine Sanctuary (56 FR 32178). Following this 
notice, NOAA conducted two public scoping meetings (September 29 and 
30, 1991) in Lansing and Alpena, Michigan, to gather information and 
comments from individuals, organizations, and government agencies on 
the range and significance of issues related to the Sanctuary proposal 
(56 FR 51686). Over the next two to three years, there followed a 
series of meetings of informal working groups to bring together local, 
state, federal, and tribal agencies, organizations, and business to 
discuss the scope of a National Marine Sanctuary at Thunder Bay.
    In 1994, a Thunder Bay Core Group was formed, whose members 
represent local, state, federal and tribal agencies. The Core Group 
assisted in the development and review of management alternatives, in 
cooperation with a variety of community interests. By mid-1995, the 
Core Group had narrowed the management focus of a potential Thunder Bay 
National Marine Sanctuary to underwater cultural resources (e.g., 
shipwrecks). This recommended focus was presented and agreed upon at a 
community meeting in June 1995. Since that time, development of the 
Draft Environmental Impact Statement/Draft Management Plan has 
proceeded in accordance with the recommendations of the Core Group.
    Comments are solicited from all interested persons. Holders of, 
owners of, or future applicants for leases, permits, licenses, 
approvals, other authorizations, or rights are specifically invited to 
comment on how they may be affected by the proposed designation of the 
Sanctuary. In particular, comments are also invited on the adequacy of 
the existing regulatory regime to protect Sanctuary resources and 
qualities.
    After the comments received during the comment period have been 
considered, NOAA, in consultation with the State of Michigan, will 
determine whether to proceed with designation of the Sanctuary. If it 
is decided to proceed, a final environmental impact statement and 
management plan will be prepared, and a notice of designation together 
with final regulations implementing the designation may be published in 
the Federal Register. The designation (and any of its terms) and 
regulations would take effect and become final after the close of a 
review period of forty-five days of continuous session of Congress 
beginning on the day on which such notice is published, unless the 
Governor of the State of Michigan certifies within the forty-five-day 
period to the Secretary of Commerce that the designation or any of its 
terms is unacceptable. In such case the designation or unacceptable 
term cannot take effect in the area of the Sanctuary lying within State 
of Michigan waters.

II. Summary of Draft Environmental Impact Statement/Management Plan

    The DEIS/MP for the proposed Thunder Bay National Marine Sanctuary 
sets forth the Sanctuary's location and provides details on the 
cultural and historical resources and uses of the Sanctuary. The DEIS/
MP describes the Sanctuary goals and objectives, research and education 
programs, and details the specific activities to be taken in each 
program. The DEIS/MP includes a detailed discussion, by program area, 
of agency roles and responsibilities.

Goals and Objectives

    The highest priority management goal would be to protect the 
underwater cultural resources of the proposed Sanctuary. The specific 
objectives of protection efforts are to: (1) coordinate policies and 
procedures among the agencies sharing responsibility for protection and 
management of resources; (2) encourage participation by interested 
agencies and organizations in the development of procedures to address 
specific management concerns (e.g., monitoring and emergency-response 
programs); (3) develop an effective and coordinated program for the 
enforcement of Sanctuary regulations; (4) promote public awareness of, 
and voluntary compliance with, Sanctuary regulations and objectives, 
through an educational/interpretive program stressing resource 
sensitivity and wise use; (5) ensure that the appropriate management 
agency incorporates research results and scientific data into effective 
resource protection strategies; and (6) reduce threats to Sanctuary 
resources.
    The primary function of the Sanctuary's resource protection program 
would be to ensure, through cooperative stewardship, the protection of 
Thunder Bay's underwater cultural resources, for their long-term 
integrity and use. cooperative stewardship, as described by the 
Michigan Underwater Preserve Council and other organizations, involves 
the active participation in resource protection activities by agencies, 
organizations and businesses. The Sanctuary would support the State's 
goal for increased protection of resources of historic value. 
Stewardship is important to achieving this primary goal, as is 
Sanctuary coordination with existing State and regional resource 
protection plans. Such plans include Michigan's Underwater Preserve 
Program. The Thunder Bay Underwater Preserve was created by the State, 
in part, to protect abandoned property of historical value. Sanctuary 
resource protection activities could include:
     Coordinating management agencies (e.g., NOAA, the State of 
Michigan's Department of Environmental Quality, Department of State, 
and Department of Natural Resources);
     Science-based decisionmaking, including baseline inventory 
and assessment activities;
     Developing and maintaining a mooring buoy system; and
     Providing additional support for enforcement.

Research Program

    Effective management of the proposed Sanctuary would require the 
initiation of a Sanctuary research program. The purpose of Sanctuary 
research activities is to improve understanding of the Thunder Bay 
environment, and its cultural and historical resources, and to resolve 
specific management problems. Research results would be used in 
interpretive programs for visitors and others interested in the 
Sanctuary, as well as for protection and management of the Sanctuary's 
cultural and historical resources.
    Specific objectives for the research program would be to: (1) 
Establish a framework and procedures for administering research to 
ensure that research projects are responsive to management concerns and 
that results contribute to improved management of the Sanctuary; (2) 
incorporate research results into the interpretive/education program in 
a format useful for the general public; (3) focus and coordinate data 
collection efforts on the identification, condition and location of 
submerged shipwrecks within the Sanctuary; (4) encourage studies that 
integrate research on submerged shipwrecks and Great Lake processes; 
(5) initiate a monitoring program to assess environmental changes as 
they occur due to natural and human processes; (6) identify the range 
of effects on Sanctuary resources that would result from predicted 
changes in human activity or natural phenomena; and (7) encourage 
information exchange among all the organizations and agencies 
undertaking management-related research in the Sanctuary to promote 
more informed management.
    The Sanctuary Research Program would complement the Michigan 
Underwater Preserve Program by supporting the inventory, assessment, 
and monitoring of Sanctuary underwater cultural resources. The 
Sanctuary Research Program also would

[[Page 33771]]

be complementary to the Michigan Department of State goal of 
documenting more fully Michigan's historic resources. An additional 
benefit of the Sanctuary Research Program would be the potential 
assistance in implementation of coastal management plans, through 
identification and evaluation of these resources.
    Priorities for Sanctuary research activities and strategies would 
be incorporated into a Sanctuary Research Plan, to be developed if 
Sanctuary designation occurs. Possible Sanctuary research priorities 
could include:
     Conducting preliminary historical research (i.e., 
completion of research on all sunken vessels identified in the Thunder 
Bay vicinity). These data would be important to further analysis of the 
collection of wrecks and their eventual interpretation for both popular 
and scholarly audiences;
     Inventory and locating historical materials, involving 
research of collections at local and regional archives, as well as 
those of private owners;
     Conducting a full scale contextual theme study to develop 
a database of Great Lakes shipwrecks, to enable further evaluation of 
Thunder Bay region shipwrecks and possible formal nomination to the 
U.S. Department of the Interior for National Landmark status; and
     Producing a historical guide to maritime resources of the 
Thunder Bay region, to be available for a variety of user groups.
    These research activities would aid in interpreting Thunder Bay's 
history within regional, national, and international contexts, and 
would involve local communities in discovering their maritime heritage. 
Additional possible research and monitoring priorities include 
archaeological inventory and assessment of Thunder Bay's shipwrecks, 
and investigation into impacts of zebra mussels on shipwrecks and 
recreational diving.

Education Program

    The Sanctuary Educational Program's primary function would be to 
promote understanding, appreciation, and involvement in the protection 
and stewardship of Thunder Bay's underwater cultural resources. The 
goal for education programs would be to improve public awareness and 
understanding of the significance of the Sanctuary and the need to 
protect its resources. The management objectives designed to meet this 
goal would be to: (1) Provide the public with information on the 
Sanctuary and its goals and objectives, with an emphasis on the need to 
use Sanctuary resources wisely to ensure their long-term viability; (2) 
broaden support for Sanctuary management by offering programs suited to 
visitors with a range of diverse interests; (3) provide for public 
involvement by encouraging feedback on the effectiveness of education 
programs; (4) collaborate with Sanctuary management staff in extension 
and outreach programs; and participate in other volunteer programs; and 
(5) collaborate with other organizations to provide educational 
services complementary to the Sanctuary program. Possible activities 
would include a wide range of programs, facilities, and services 
offered through schools; interpretation; and outreach activities. 
Program activities would support the priorities of the Michigan 
Underwater Preserve Program, particularly those of the Thunder Bay 
Underwater Preserve. Sanctuary education activities would complement 
existing efforts relating to underwater cultural resources and the 
Thunder Bay area's maritime heritage.
    Individual educational activity priorities would be identified in 
an Education Plan, to be developed if the Sanctuary is designated. 
Possible education activities include:
     Working cooperatively with Great Lakes educators (i.e., 
schools, colleges and universities, MSU Extension, museums) and other 
agencies, organizations and businesses interested in Great Lakes 
education to identify education themes based on the maritime cultural 
landscape focus of the Sanctuary (e.g., industrial development, western 
expansion, relationships between cultural resources and the natural 
environment);
     Utilizing existing information on Great Lakes education 
programs to identify those which support Sanctuary education themes. 
The Sanctuary could then work cooperatively to complement, and assist 
in maintaining and enhancing these programs. Examples of existing 
programs include the Elder Hostel program, and the signage, displays 
and materials along the riverwalk trail;
     Identifying and supporting a network of volunteers to help 
enhance and maintain activities that are consistent with Sanctuary 
education themes. The network could utilize community expertise and 
interests in matching volunteers with needed activities. Training, 
support, and incentives could be provided to volunteers as needs and 
interests arise;
     Establishing remote video hook-ups of researchers 
inventorying and documenting the shipwrecks. Utilization of this 
technology would provide visual access to shipwrecks for non-drivers; 
and
     Developing a ``Thunder Bay Shipwreck Trail.'' The 
Sanctuary could select and interpret a selection of shipwrecks to 
develop a ``shipwreck trail'' that would highlight Thunder Bay's 
maritime heritage. Themes would be developed and matched with 
appropriate wreck sites to educate visiting divers and non-divers about 
such subjects as historical ship construction, Great Lakes shipping, 
the effect of environmental processes on shipwrecks, and the effects of 
salvage on historic shipwrecks.

Sanctuary Administration

    The Sanctuary Administration Program would focus on the roles and 
responsibilities of the agencies, organizations, and businesses that 
would be involved in operation of the Sanctuary. Successful operation 
of the proposed Sanctuary would be possible only through cooperative 
efforts of appropriate local, state, federal, and tribal agencies, 
organizations and businesses. This section also discusses potential 
Sanctuary staff and facilities, including staff roles, office 
establishment in Alpena, with possible satellite offices (if needed in 
the future), and development of a Great Lakes education center, which 
would enhance education opportunities for both local residents and 
visitors to the region.
    The Sanctuary's goal for visitor management would be to facilitate, 
to the extent compatible with the primary objective of resource 
protection, public and private uses of the Sanctuary not prohibited 
pursuant to other authorities.
    Specific management objectives would be to: (1) Provide relevant 
information about Sanctuary regulations, use policies and standards; 
(2) collaborate with public and private organizations in promoting 
compatible uses of the Sanctuary; (3) encourage the public who use the 
Sanctuary to respect sensitive Sanctuary resources; and (4) monitor and 
assess the current levels of use to identify and control potential 
degradation of Sanctuary resources and minimize potential user 
conflicts.
    The possible establishment of a Sanctuary Advisory Council (SAC) is 
discussed as a mechanism to provide advice and recommendations to the 
Sanctuary Manager about issues related to Sanctuary programs and 
implementation. The SAC would encourage community participation in the 
management of the proposed Sanctuary. Members of a Thunder Bay SAC may 
not exceed fifteen in number,

[[Page 33772]]

and would be determined by NOAA, in consultation with the State of 
Michigan.
    Finally, a five-year projection of Sanctuary activities, necessary 
financial obligations, and economic impacts of the Sanctuary is 
provided.

III. Proposed Designation Document

    Section 304(a)(4) of the NMSA requires that the terms of 
designation include the geographic area included within the Sanctuary; 
the characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value; and the types of activities subject to regulation by 
the Secretary to protect these characteristics. Section 304(a)(4) also 
specifies that the terms of designation may be modified only by the 
same procedures by which the original designation was made. Thus, the 
terms of designation serve as a constitution for the Sanctuary. The 
proposed Designation Document follows:

Proposed Designation Document for the Proposed Thunder Bay National 
Marine Sanctuary

    Under the authority of the National Marine Sanctuaries Act, as 
amended, 16 U.S.C. Secs. 1431 et seq., Thunder Bay and its surrounding 
waters offshore of Michigan, and the submerged lands under Thunder Bay 
and its surrounding waters, as described in Article II, are hereby 
designated as a National Marine Sanctuary for the purposes of providing 
long-term protection and management of the conservation, recreational, 
research, educational, and historical resources and qualities of the 
area.
Article I: Effect of Designation
    The NMSA authorizes the issuance of such regulations as are 
necessary and reasonable to implement the designation, including 
managing and protecting the conservation, recreational, historical, 
research, and educational resources and qualities of the Thunder Bay 
National Marine Sanctuary (the ``Sanctuary''). Section 1 of Article IV 
of this Designation Document lists those activities that may have to be 
regulated on the effective date of designation, or at some later date, 
in order to protect Sanctuary resources and qualities. Listing does not 
necessarily mean that an activity will be regulated; however, if an 
activity is not listed it may not be regulated, except on an emergency 
basis, unless Section 1 of Article IV is amended by the same procedures 
by which the original Sanctuary designation was made.
Article II: Description of the Area
    The Sanctuary boundary encompasses a total of approximately 808 
square miles of waters, and the submerged lands thereunder, surrounding 
Thunder Bay, Lake Huron, Michigan. The boundary forms an approximately 
rectangular area by extending along the ordinary high water mark of the 
Michigan shoreline from Presque Isle Lighthouse, at 45 21.4 N latitude, 
south to Sturgeon Point Lighthouse, at 44 42.7 N latitude, and lakeward 
from those points along latitude lines to 83 W longitude. the precise 
boundary is set forth in Appendix I to this Designation Document.
Article III: Characteristics of the Area That Give It Particular Value
    Thunder Bay and its surrounding waters contain over 160 shipwrecks 
spanning more than a century of Great Lakes maritime history. Virtually 
every type of vessel used on open Great Lakes areas has been documented 
in the Thunder Bay region, linking Thunder Bay inextricably to Great 
Lakes commerce. Most of the Great Lakes trades had a national, and 
sometimes an international, significance, and resulted in uniquely 
designed vessels. Although not all of Thunder Bay's shipwrecks have 
been identified, based on studies undertaken to date, there is strong 
evidence of the Bay's national historic significance. The sunken 
vessels reflect transitions in ship architecture and construction 
methods, from wooden sailboats to early iron-hulled steamers.
    Several major conclusions regarding Thunder Bay's shipwrecks may be 
drawn from research and analysis undertaken to date: they are 
representative of the composition of the Great Lakes merchant marine 
from 1840 to 1970; they provide information on the various phases of 
American westward expansion; they provide information on the growth of 
American extraction and use of natural resources; they illustrate the 
various phases of American industrialization; one shipwreck (Issac M. 
Scott) provides the vehicle for study and interpretation of a specific 
event (the Great Storm of 1913) that had strong repercussions 
nationally, regionally and internationally; and they provide 
interpretive material for understanding American foreign inter-
continental trade within the Great Lakes.
    Thunder Bay was established as the first State of Michigan 
Bottomland Preserve in 1981, to protect these underwater cultural 
resources. Increasing public interest in underwater cultural resources 
underscores the importance of continued efforts to discover, explore, 
document and study the Bay's shipwrecks.
Article IV: Scope of Regulations
    Section 1. Activities Subject to Regulation. The following 
activities are subject to regulation, including prohibition, to the 
extent necessary and reasonable to ensure the protection and management 
of the conservation, recreational, historical, research and educational 
resources and qualities of the area:
    a. Disturbing, moving, removing or injuring, possessing, or 
attempting to disturb, move, remove, injure, or possess an underwater 
cultural resource;
    b. Drilling into, dredging or otherwise altering the lakebottom 
associated with underwater cultural resources; or constructing, placing 
or abandoning any structure, material or other matter on the lakebottom 
associated with underwater cultural resources, except as an incidental 
result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations;
    (iii) Minor projects as currently defined in R. 322.1013 of Part 
325, Great Lakes Submerged Lands of Public Act 451 (1994), as amended, 
that do not adversely affect underwater cultural resources; or
    c. Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the NMSA or any regulations issued under 
the NMSA.
    2. Consistency With International Law. The regulations governing 
the activities listed in section 1 of this Article shall apply to 
United States-flag vessels and to persons who are citizens, nationals, 
or resident aliens of the United States, and shall apply to foreign-
flag vessels and persons not citizens, nationals, or resident aliens of 
the United States to the extent consistent with generally-recognized 
principles of international law, and in accordance with treaties, 
conventions, and other agreements to which the United States is a 
party.
    3. Emergencies. Where necessary to prevent or minimize the 
destruction of, loss of, or injury to a Sanctuary resource or quality; 
or minimize the imminent risk of such destruction, loss, or injury, any 
activity, including those not listed in Section 1, is subject to 
immediate temporary regulation.
Article V: Effect on Other Regulations, Leases, Permits, Licenses, and 
Rights
    Section 1. Fishing Regulations, Licenses, and Permits. Fishing in 
the

[[Page 33773]]

Sanctuary shall not be regulated as part of the Sanctuary management 
regime authorized by the Act. However, fishing in the Sanctuary may be 
regulated other than under the Act by Federal, State, Tribal and local 
authorities of competent jurisdiction, and designation of the Sanctuary 
shall have no effect on any regulation, permit, or license issued 
thereunder.
    Section 2. Other. If any valid regulation issued by any Federal, 
state, Tribal, or local authority of competent jurisdiction, regardless 
of when issued, conflicts with a Sanctuary regulation, the regulation 
deemed by the Director, Office of Ocean and Coastal Resource 
Management, National Oceanic and Atmospheric Administration, or his or 
her designate, in consultation with the state of Michigan, to be more 
protective of Sanctuary resources and qualities shall govern.
    Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 
Sec. 1434(c)(1), no valid lease, permit, license, approval, or other 
authorization issued by any Federal, State, Tribal, or local authority 
of competent jurisdiction, or any right of subsistence use or access, 
may be terminated by the Secretary of Commerce, or his or her 
designate, as a result of this designation, or as a result of any 
Sanctuary regulation, if such lease, permit, license, approval, or 
other authorization, or right of subsistence use or access was issued 
or in existence as of the effective date of this designation. However, 
the Secretary of Commerce, or his or her designee, in consultation with 
the State of Michigan, may regulate the exercise of such authorization 
or right consistent with the purposes for which the Sanctuary is 
designated.
Article VI. Alteration of This Designation
    The terms of designation may be modified only by the same 
procedures by which the original designation is made, including public 
hearings, consultation with interested Federal, Sate, Tribal, regional, 
and local authorities and agencies, review by the appropriate 
Congressional committees, and approval by the Governor of the State of 
Michigan, and the Secretary of Commerce, or his or her designates.
Appendix I. Proposed Thunder Bay National Marine Sanctuary Boundary 
Coordinates
    (Appendix I will set forth the final Sanctuary boundary after 
consideration of comments received on the DEIS/MP.)
    End of Proposed Designation Document.

IV. Summary of Proposes Regulations

    The proposed regulations would set forth the boundary of the 
proposed Thunder Bay National Marine Sanctuary; prohibit a narrow range 
of activities; and establish certification and permitting procedures. 
Other provisions of the existing National Marine Sanctuary Program 
regulations would also apply to the Sanctuary. These include the 
regulations for certification of existing permits and other 
authorizations, notification and review procedures to conduct otherwise 
prohibited activities, setting forth the maximum per day penalties for 
violating Sanctuary regulations, and establishing procedures for 
administrative appeals.
    Specifically, the proposed regulations would add a new Subpart R to 
part 922, title 15, Code of Federal Regulations.
    Proposed Sec. 922.190 and proposed appendix A to subpart R would 
set forth the boundary of the Sanctuary.
    Proposed Sec. 922.191 would define various terms used in the 
regulations. Sanctuary resources would be defined to mean any 
underwater cultural resource. Underwater cultural resource would be 
defined as ``any submerged resource possessing historical, cultural, or 
archaeological significance, including shipwrecks, sites, contextual 
information, structures, districts, and objects significantly 
associated with or representative of earlier people, cultures, maritime 
heritage, and human activities and events.'' This definition would also 
state that ``[h]istorical resources include `historical properties,' as 
defined under the National Historic Preservation Act, as amended, and 
its implementing regulations, as amended.'' That Act defines ``historic 
properties'' as ``any prehistoric or historic district, site, building, 
structure, or object included in, or eligible for inclusion on the 
National Register, including artifacts, records, and material remains 
related to such a property or resource.''
    State of Michigan agency representatives suggested NOAA include 
resource that are significant primarily due to their recreational 
attraction and use within the definition of underwater cultural 
resources, similar to provisions of Part 761, Aboriginal Records and 
Antiquities of Public Law 451 (1994), as amended. However, NOAA's focus 
has been on those resources that are significant due to their 
historical, cultural, or archaeological significance. Further, many of 
the resources within NOAA's proposed definition would include sites 
that enjoy a substantial amount of recreational use. Consequently, NOAA 
has preliminarily determined that the proposed definition should not be 
expanded, but specifically requests comments on this issue.
    Other terms appearing in the proposed regulations are defined at 15 
CFR Part 922 Subpart A, and/or in the Marine Protection, Research, and 
Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq., and 16 
U.S.C. 1431 et seq.
    Proposed Sec. 922.192 would prohibit a narrow range of activities 
and thus make it unlawful to conduct them. However, the prohibited 
activities could be conducted lawfully if:
    (1) Necessary for law enforcement, or to respond to an emergency 
threatening life or the environment;
    (2) Conducted pursuant to a valid lease, permit, license, or other 
authorization issued by any Federal, State, or local authority of 
competent jurisdiction, or to any valid right of subsistence use or 
access, in existence as of the effective date of this designation 
subject to certification by the Director of the Office of Ocean and 
Coastal Resource Management under Sec. 922.193 and Sec. 922.47; or
    (3) Conducted in accordance with the scope, purpose, terms and 
conditions of a State or Federal permit issued pursuant to Sec. 922.193 
and Sec. 922.49; a National Marine Sanctuary permit issued pursuant to 
Sec. 922.193 and Sec. 922.48; or a Special Use permit issued pursuant 
to section 310 of the NMSA.
    The first activity prohibited would be disturbing, moving, removing 
or injuring, possessing, or attempting to disturb, move, remove or 
injure, or possess an underwater cultural resource, from within the 
boundary of the Sanctuary. The intent of this regulation is to protect 
the underwater cultural resources of the Sanctuary for the benefit of 
the public through, for example, education, observation in situ, and 
research.
    The second activity prohibited would be drilling into, dredging or 
otherwise altering the lakebottom associated with underwater cultural 
resources, including contextual information; or constructing, placing 
or abandoning any structure, material or other matter on the lakebottom 
associated with underwater cultural resources, except as an incidental 
result of:
    (a) Anchoring vessels; (b) traditional fishing operations; or (c) 
minor projects that the State Archaeologist certifies will not 
adversely affect underwater cultural resources. Appendix B to Subpart R 
lists the minor projects that may fall within this latter exception; 
taken from the current version of R 322.1013 of Part 325, Great Lakes

[[Page 33774]]

Submerged Lands of Public Act 451. The intent of this regulation is to 
protect the underwater cultural resources of the Sanctuary from the 
harmful effects of activities such as, but not limited to, dredging, 
excavations, drilling into the lakebottom, and dumping of dredged 
materials.
    A third prohibition would make it unlawful to interfere with, 
obstruct, delay or prevent an investigation, search, seizure or 
disposition of seized property in connection with enforcement of the 
NMSA or any regulations issued under the NMSA.
    Proposed Sec. 922.193 would provide for certification by the 
Director of OCRM of activities conducted pursuant to a valid lease, 
permit, license, or other authorization issued by any Federal, State, 
or local authority of competent jurisdiction, or to any valid right of 
subsistence use or access, in existence as of the effective date of 
Sanctuary designation.
    Proposed Sec. 922.194 would provide for the conduct of activities 
prohibited by Sanctuary regulations at Sec. 922.192(a) (1) through (2), 
provided that the activity is conducted in accordance with the scope, 
purpose, manner, terms and conditions of a State of Michigan permit 
(State Permit) which the State Archaeologist certifies is consistent 
with the Programmatic Agreement among NOAA, the State and the Advisory 
Council on Historic Preservation, developed pursuant to the NMSA and 
section 106 of the National Historic Preservation Act (NHPA). Such 
State Permits are deemed to have met the ``authorization'' requirements 
of 15 CFR Sec. 922.49 of the National Marine Sanctuary Program 
regulations. If a State Permit is not certified as consistent with the 
Programmatic Agreement, the applicant would be required to follow the 
procedures of 15 CFR Sec. 922.49 to obtain an individual Sanctuary 
authorization of the State Permit. Such activity would also be subject 
to section 106 of the NHPA. If there is only a Federal permit 
applicable to the activity, the applicant must follow the procedures of 
15 CFR Sec. 922.49 to obtain an individual Sanctuary authorization of 
the Federal permit, subject to section 106 of the NHPA. Finally, if 
there is no State or Federal permit required to conduct the prohibited 
activity, the person must obtain a Sanctuary permit pursuant to 15 CFR 
Sec. 922.48 of the NMSP regulations to conduct such activity, subject 
to section 106 of the NHPA. For a proposed activity not prohibited by 
Sanctuary regulations but that may impact Sanctuary resources, NOAA may 
review state permit applications for such activity during identified 
public comment periods and provide comments to the Michigan Department 
of Environmental Quality, the Michigan Department of State, and other 
management agencies, as appropriate.
    As appropriate, the Director of OCRM would coordinate with the 
State of Michigan, governing bodies of Tribes with reservations 
affected by the Sanctuary, and representatives of adjacent county 
governments, regarding areas of mutual concern and threats to Thunder 
Bay's underwater cultural resources. The Director may enter into 
memoranda of understanding regarding such coordination to further the 
goals of the Sanctuary.

V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304 of the NMSA also requires the Secretary to submit to 
the appropriate Congressional Committees, on the same day this notice 
is published, documents, including an executive summary, consisting of 
the terms of the proposed designation, the proposed regulations and the 
DEIS/MP. In accordance with section 304, the required documents are 
being submitted to the appropriate Congressional Committees.

National Environmental Policy Act

    Section 304 of the NMSA, 16 U.S.C. 1434, requires the preparation 
of a draft environmental impact statement (DEIS), as provided by the 
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and 
that the DEIS be made available to the public. NOAA has prepared a 
DEIS/MP for proposed designation of the Thunder Bay National Marine 
Sanctuary. The DEIS/MP is available at the addresses listed in the 
Address section of this proposed rule.

Executive Order 12866: Regulatory Impact

    NOAA has concluded that this regulatory action is not significant 
within the meaning of section 3(f) of Executive Order 12866 because it 
will not result in:
    (1) An annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, or public health and safety;
    (2) A serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
    (3) A material alteration of the budgetary impact of entitlements, 
grants, user fees, or loan programs or rights and obligations of such 
recipients; or
    (4) Novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.

Executive Order 12612: Federalism Assessment

    A Federalism Assessment (FA) was prepared for the proposed 
designation document, draft management plan, and proposed implementing 
regulations. The FA concluded that all were fully consistent with the 
principles, criteria, and requirements set forth in sections 2 through 
5 of Executive Order 12612, Federalism Considerations in Policy 
Formulation Implementation (52 FR 41685, Oct. 26, 1987). Copies of the 
FA are available upon request from the Office of Ocean and Coastal 
Resource Management at the address listed above.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulations of 
the Department of Commerce certified to the Chief Counsel for Advocacy 
of the Small Business Administration that this proposed rule issued 
under authority of the National Marine Sanctuaries Act, 16 U.S.C. 1431 
et seq., if adopted as proposed, will not have a significant economic 
impact on a substantial number of small entities as follows:

    This proposed rule implements the proposed designation of the 
Thunder Bay National Marine Sanctuary (TBNMS or Sanctuary). The 
primary purpose of the proposed Sanctuary would be to protect 
shipwrecks and other underwater cultural resources. The proposed 
Sanctuary regulations prohibit the following two activities: (1) 
disturbing, moving, removing or injuring, possessing, or attempting 
to disturb, move, remove or injure, or possess an underwater 
cultural resource; and (2) drilling into, dredging or otherwise 
altering the lakebottom associated with underwater cultural 
resources, including contextual information; or constructing, 
placing or abandoning any structure, material or other matter on the 
lakebottom associated with underwater cultural resources, except as 
an incidental result of: (i) anchoring vessels; (ii) traditional 
fishing operations; or (iii) minor projects that do not adversely 
affect underwater cultural resources. The regulations, if adopted as 
proposed, would pertain solely to protection of underwater cultural 
resources and would not be expected to have a significant impact on 
a substantial number of small businesses because they would not 
eliminate or curtail most existing recreational or commercial 
activities (e.g., recreational diving, sport fishing and hunting, 
commercial fishing, charter operations, or commercial shipping). 
Although limited in number, commercial salvage companies and 
businesses that sell

[[Page 33775]]

shipwreck artifacts and other archaeological materials may be 
adversely impacted because they could not remove or injure 
underwater cultural resources without a permit. However, such 
impacts will not be significant because the entire Sanctuary is 
within State of Michigan waters and commercial salvage and sale of 
artifacts are already subject to state regulations. Further, the 
proposed Sanctuary regulations are consistent with prohibitions 
already in place under State law for the Thunder Bay Underwater 
Preserve, which is encompassed by the Sanctuary, designated by the 
State in 1981. There have been no significant commercial shipwreck 
salvage or ``treasure hunting'' operations in the Thunder Bay region 
since the State designated the Thunder Bay Underwater Preserve. 
Moreover, since 1980, there have been only seven salvage permits 
issued by the State for removal or alteration of shipwrecks or 
associated artifacts in the region. Consequently, the rule is not 
expected to significantly impact a substantial number of small 
business entities.

    Accordingly, a Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act

    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection-of-information, subject to the 
requirements of the Paperwork Reduction act, 44 U.S.C. 3501 et seq., 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) control number.
    This proposed rule contains a collection of information requirement 
subject to the requirements of the Paperwork Reduction Act. The 
collection of information requirement applies to persons seeking 
permits to conduct otherwise prohibited activities and is necessary to 
determine whether the final activities are consistent with the 
management goals for the Sanctuary. The collection of information 
requirement contained in the proposed rule has been submitted to the 
Office of Management and Budget for review under section 3507 of the 
Paperwork Reduction Act. The public reporting burden per respondent for 
the collection of information contained in this rule is estimated to 
average 10 hours annually. This estimate includes the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Comments are requested concerning: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) the accuracy of NOAA's burden estimate; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. 
Comments should be addressed to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 (Attn: Desk Officer for NOAA); and to Richard Roberts, Room 724, 
6010 Executive Boulevard, Rockville, MD 20852.

Unfunded Mandates Reform Act of 1995

    This proposed rule, if adopted as proposed, would contain no 
Federal mandates (under the regulatory provisions of Title II of the 
Unfunded Mandates Reform Act of 1995 (UMRA)) for State, local, and 
tribal governments or the private sector. Thus, this rule is not 
subject to the requirements of section 202 and 205 of the UMRA.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Education, 
Environmental protection, Marine resources, Natural resources, 
Penalties, Recreation and recreation areas, Reporting and recordkeeping 
requirements, Research.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: June 13, 1997.
Nancy Foster,
Assistant Administrator for Ocean Services and Coastal Zone Management.

    Accordingly, for the reasons set forth above, 15 CFR Part 922 is 
proposed to be amended as follows:

PART 922--[AMENDED]

    1. The authority citation for Part 922 continues to read as 
follows:

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

    2. Section 922.1 is revised as follows:


Sec. 922.1  Applicability of regulations.

    Unless noted otherwise, the regulations in subparts A, D and E 
apply to all thirteen National Marine Sanctuaries for which site-
specific regulations appear in subparts F through R, respectively. 
Subparts B and C apply to the site evaluation list and to the 
designation of future Sanctuaries.
    3. Section 922.40 is revised to read as follows:


Sec. 922.40  Purpose.

    The purpose of the regulations in this subpart and in subparts F 
through R is to implement the designations of the thirteen National 
Marine Sanctuaries for which site specific regulations appear in 
subparts F through R, respectively, by regulating activities affecting 
them, consistent with their respective terms of designation in order to 
protect, preserve and manage and thereby ensure the health, integrity 
and continued availability of the conservation, ecological, 
recreational, research, educational, historical and aesthetic resources 
and qualities of these areas. Additional purposes of the regulations 
implementing the designation of the Florida Keys National Marine 
Sanctuary are found at Sec. 922.160.
    4. Section 922.41 is revised to read as follows:


Sec. 922.41  Boundaries.

    The boundary for each of the thirteen National Marine Sanctuaries 
covered by this part is described in subparts F through R, 
respectively.
    5. Section 922.42 is revised to read as follows:


Sec. 922.42  Allowed activities.

    All activities (e.g., fishing, boating, diving, research, 
education) may be conducted unless prohibited or otherwise regulated in 
subparts F through R, subject to any emergency regulations promulgated 
pursuant to Secs. 922.44, 922.111(c), or 922.165, subject to all 
prohibitions, regulations, restrictions, and conditions validly imposed 
by any Federal, State, or local authority of competent jurisdiction, 
including Federal and State fishery management authorities, and subject 
to the provisions of Sec. 312 of the Act. The Assistant Administrator 
may only directly regulate fishing activities pursuant to the procedure 
set forth in Sec. 304.(a)(5) of the NMSA.
    6. Section 922.43 is revised to read as follows:


Sec. 922.43   Prohibited or otherwise regulated activities.

    Subparts F through R set forth site-specific regulations applicable 
to the activities specified therein.
    7. Section 922.47 is amended by revising paragraph (b) as follows:


Sec. 922.47   Pre-existing authorizations or rights and certifications 
of pre-existing authorizations or rights.

* * * * *
    (b) The prohibitions listed in subparts F through P, or subpart R 
do not apply to any activity authorized by a valid lease, permit, 
license, approval or other authorization in existence on the effective 
date of sanctuary designation, or in the case of the Florida Keys 
National Marine Sanctuary the effective

[[Page 33776]]

date of the regulations in subpart P, and issued by any Federal, State 
or local authority of competent jurisdiction, or by any valid right of 
subsistence use or access in existence on the effective date of 
Sanctuary designation, or in the case of the Florida Keys National 
Marine Sanctuary the effective date of the regulations in subpart P, 
provided that the holder of such authorization or right complies with 
certification procedures and criteria promulgated at the time of 
Sanctuary designation, or in the case of the Florida Keys National 
Marine Sanctuary the effective date of the regulations in subpart P, 
and with any terms and conditions on the exercise of such authorization 
or right imposed by the Director as a condition of certification as the 
director deems necessary to achieve the purposes for which the 
Sanctuary was designated.
    8. Section 922.48 is amended by revising paragraphs (a) and (b) and 
(d) as follows:


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

    (a) A person may conduct an activity prohibited by subparts F 
through O, or subpart R if conducted in accordance with the scope, 
purpose, terms and conditions of a permit issued under this section and 
subparts F through O, or subpart R, as appropriate. Fork the Florida 
Keys National Marine Sanctuary, a person may conduct an activity 
prohibited by subpart P if conducted in accordance with the scope, 
purpose, terms and conditions of a permit issued under Sec. 922.166.
    (b) Applications for permits to conduct activities otherwise 
prohibited by subparts F through O, or subpart R should be addressed to 
the Director and sent to the address specified in subparts F through O, 
or subpart R, as appropriate. An application must include:
* * * * *
    (d) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct a prohibited activity, in accordance with the criteria found in 
subparts F through O, or subpart R, as appropriate. The Director shall 
further impose, at a minimum, the conditions set forth in the relevant 
subpart.
* * * * *
    9. Paragraphs (a) through (c) of section 922.49 are revised to read 
as follows:


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

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


Sec. 922.50  [Amended]

    10. Section 922.50 is amended by replacing ``L through P'' with ``L 
through P, and subpart R'' wherever ``L through P'' is found within 
this section.
    11. Part 922 is amended by adding a new subpart R immediately 
following subpart Q as follows:

Subpart R--Thunder Bay National Marine Sanctuary

922.190  Boundary.
922.191  Definitions.
922.192  Prohibited or otherwise regulated activities.
922.193  Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or rights to conduct a prohibited 
activity.
922.194  Permit procedures and criteria.

Appendix A to Subpart R of Part 922--Thunder Bay National Marine 
Sanctuary Boundary Coordinates

Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
Section 922.192(a)(2)(iii)

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

Subpart R--Thunder Bay National Marine Sanctuary


Sec. 922.190  Boundary.

    (a) The Thunder Bay National Marine Sanctuary (Sanctuary) consists 
of an area of approximately 808 square miles of surface waters of Lake 
Huron and the submerged lands thereunder, over and around the 
underwater cultural resources in Thunder Bay. The boundary forms an 
approximately rectangular area by extending along the ordinary high 
water mark of the Michigan shoreline from Presque Isle Lighthouse, at 
45 21.4 N latitude, south to Sturgeon Point lighthouse, at 44 42.7 N 
latitude, and lakeward from those points along latitude lines to 83 W 
longitude. The coordinates of the boundary are set forth in Appendix A 
to this subpart.
    (b) [Reserved].


Sec. 922.191  Definiitons.

    (a) The following terms are defined for purposes of subpart R:
    Minor project means any project listed in Appendix B to this 
subpart.
    Programmatic Agreement means the agreement among NOAA, the Federal 
Advisory Council on Historic Preservation, and the State of Michigan, 
developed pursuant to the NMSA and section 106 of the National Historic 
Preservation Act, setting forth the procedures for review and approval 
of State Permits which authorize activities prohibited by the Sanctuary 
regulations.
    Sanctuary resource means any underwater cultural resource as 
defined in this section.
    State Archaeologist means the State Archaeologist, Michigan 
Historical Center, Michigan Department of State.
    State Permit means leases, permits, licenses, approvals, or other 
authorizations issued by the State of Michigan for the conduct of 
activities or projects within the Thunder Bay National Marine Sanctuary 
that are prohibited by the regulations at section 922.192.
    Traditional fishing means those commercial or recreational fishing 
activities that were customarily conducted within the Sanctuary prior 
to its designation as identified in the

[[Page 33777]]

Environmental Impact Statement and Management Plan for the Sanctuary.
    Underwater cultural resource means any submerged resource 
possessing historical, cultural, or archaeological significance, 
including shipwrecks, sites, contextual information, structures, 
districts, and objects significantly associated with or representative 
of earlier people, cultures, maritime heritage, and human activities 
and events. Historical resources include ``historical properties,'' as 
defined in the National Historic Preservation Act, as amended, and its 
implementing regulations, as amended.
    (b) Other terms appearing in the proposed regulations are defined 
at 15 CFR Part 922 Subpart A, and/or in the Marine Protection, 
Research, and Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et 
seq., and 16 U.S.C. 1431 et seq.


Sec. 922.192  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (c) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Disturbing, moving, removing or injuring, possessing, or 
attempting to disturb, move, remove or injure, or possess an underwater 
cultural resource.
    (2) Drilling into, dredging or otherwise altering the lakebottom 
associated with underwater cultural resource, including contextual 
information; or constructing, placing or abandoning any structure, 
material or other matter on the lakebottom associated with underwater 
cultural resources, except as an incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations; or
    (iii) Minor projects that do not adversely affect underwater 
cultural resources.
    (3) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulations issued under 
the Act.
    (b) The prohibitions in paragraphs (a) (1) and (2) of this section 
do not apply to valid law enforcement activities, or any activity 
necessary to respond to an emergency threatening life or the 
environment.
    (c) The prohibitions in paragraphs (a) (1) and (2) of this section 
do not apply to any activity: certified by the Director pursuant to 
Sec. 922.193 and Sec. 922.47; executed in accordance with the scope, 
purpose, terms and conditions of a State or Federal permit issued 
pursuant to Sec. 922.193 (a) or (b), and Sec. 922.49; National Marine 
Sanctuary permit issued pursuant to Sec. 922.193(c) and Sec. 922.48; or 
a Special Use permit issued pursuant to section 310 of the NMSA.


Sec. 922.193  Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or rights to conduct a prohibited 
activity.

    (a) A person may conduct an activity prohibited by Sec. 922.192 
(a)(1) through (2) if such activity is specifically authorized by a 
valid State, or local lease, permit, license, approval, or other 
authorization in existence on the effective date of Sanctuary 
designation, or by any valid right of subsistence use or access in 
existence on the effective date of Sanctuary designation, provided 
that:
    (1) For any State or local lease, permit, license, approval, or 
other authorization, or any right of subsistence use, the State 
Archaeologist certifies to NOAA, within 90 days of the effective date 
of designation, that the activity authorized under the State or local 
lease, permit, license, approval, or other authorization, or any right 
of subsistence use, is being conducted consistent with the Programmatic 
Agreement, in which case such activity shall be deemed to have met the 
requirements of this section and Sec. 922.47; or
    (2) In the case where either (i) the State Archaeologist does not 
certify that the activity authorized under a State or local ease, 
permit, license, approval, or other authorization, or right of 
subsistence use is being conducted consistent with the Programmatic 
Agreement; or (ii) the activity is conducted pursuant only to a Federal 
permit, the holder of the authorization or right complies with 
paragraphs (b) through (k) of this section.
    (b) For an activity described in paragraph (a)(2) of this section, 
the holder of the authorization or right may conduct the activity 
prohibited by Sec. 922.192(a)(1) through (2) provided that: (1) the 
holder of such authorization or right notifies the Director, in 
writing, within 90 days of the effective date of Sanctuary designation, 
of the existence of such authorization or right and requests 
certification of such authorization or right; (2) the holder complies 
with the other provisions of this Sec. 922.193; and (3) the holder 
complies with any terms and conditions on the exercise of such 
authorization or right imposed as a condition of certification, by the 
Director, to achieve the purposes for which the Sanctuary was 
designated.
    (c) The holder of an authorization or right described in paragraph 
(a)(2) above authorizing an activity prohibited by Sec. 922.192 may 
conduct the activity without being in violation of applicable 
provisions of Sec. 922.192, pending final agency action on his or her 
certification request, provided the holder is in compliance with this 
Sec. 922.193.
    (d) Any holder of an authorization or right described in paragraph 
(a)(2) above may request the Director to issue a finding as to whether 
the activity for which the authorization has been issued, or the right 
given, is prohibited by Sec. 922.192, thus requiring certification 
under this section.
    (e) Requests for findings or certifications should be addressed to 
the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary Manager, Thunder Bay National Marine Sanctuary, [Note: This 
paragraph will provide the Sanctuary Office address]. A copy of the 
lease, permit, license, approval, or other authorization must accompany 
the request.
    (f) The Director may request additional information from the 
certification requester as he or she deems reasonably necessary to 
condition appropriately the exercise of the certified authorization or 
right to achieve the purpose for which the Sanctuary was designated. 
The information requested must be received by the Director within 45 
days of the postmark date of the request. The Director may seek the 
views of any persons on the certification request.
    (g) The Director may amend any certification made under this 
Sec. 922.193 whenever additional information becomes available 
justifying such an amendment.
    (h) Upon completion of review of the authorization or right and 
information received with respect thereto, the Director shall 
communicate, in writing, any decision on a certification request or any 
action taken with respect to any certification made under this 
Sec. 922.193, in writing, to both the holder of the certified lease, 
permit, license, approval, other authorization, or right, and the 
issuing agency, and shall set forth the reason(s) for the decision or 
action taken.
    (i) Any time limit prescribed in or established under this 
Sec. 922.193 may be extended by the Director for good cause.
    (j) The holder may appeal any action conditioning, amending, 
suspending, or revoking any certification in accordance with the 
procedures set forth in Sec. 922.50.
    (k) Any amendment, renewal, or extension made after the effective 
date

[[Page 33778]]

of Sanctuary designation, to a lease, permit, license, approval, other 
authorization or right is subject to the provisions of Sec. 922.194 and 
Sec. 922.49.


Sec. 922.194  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 933.192 (a) 
(1) through (2) if conducted in accordance with the scope, purpose, 
manner, terms and conditions of a State Permit provided that:

    (1) The State Archaeologist certifies to NOAA that the activity 
authorized under the State Permit will be conducted consistent with 
the Programmatic Agreement, in which case such State Permit shall be 
deemed to have met the requirements of Sec. 922.49; or
    (2) In the case where the State Archaeologist does not certify 
that the activity to be authorized under a State Permit will be 
conducted consistent with the Programmatic Agreement, the person 
complies with the requirements of Sec. 922.49 of this part.

    (b) If no State Permit is required to conduct an activity 
prohibited by Sec. 922.192(a) (1) through (2) of this subpart, a person 
may conduct such activity if it is conducted in accordance with the 
scope, purpose, manner, terms and conditions of a Federal permit, 
provided that the person complies with the provisions of Sec. 922.49 of 
this part.
    (c) In instances where the conduct of an activity is prohibited by 
Sec. 922.192(a) (1) through (2) of this subpart is not addressed under 
a State or other Federal lease, license, permit or other authorization, 
a person must obtain a Sanctuary permit from NOAA pursuant to 
Sec. 922.48 of this part and the Programmatic Agreement in order to 
conduct the activity.

Appendix A to Subpart R of Part 922--Thunder Bay National Marine 
Sanctuary Boundary Coordinates

    Note: Appendix A to subpart R will set forth the final Sanctuary 
boundary coordinates after consideration of comments received on the 
DEIS/MP.

Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
Section 922.192(a)(2)(iii)

    Pursuant to R 322.1013 of part 325, Great Lakes Submerged Lands 
of Public Act 451, the Michigan Department of Environmental Quality 
(Department) issues permits for projects that are of a minor nature 
which are not controversial, which have minimal adverse 
environmental impacts, which will be constructed of clean, non-
polluting materials, which do not impair the use of the adjacent 
bottomlands by the public, and which do not adversely affect 
riparian interests of adjacent owners. The following projects are 
minor projects:
    (a) Noncommercial single piers, docks, and boat hoists which 
meet the following design criteria:
    (i) Are of a length or size not greater than the length or size 
of similar structures in the vicinity and on the watercourse 
involved; and
    (ii) Provide for the free littoral flow of water and drift 
material.
    (b) Spring piles and pile clusters when their design and purpose 
is usual for such projects in the vicinity and on the watercourse 
involved.
    (c) Seawalls, bulkheads, and other permanent revetment 
structures which meet all of the following purpose and design 
criteria:
    (i) The proposed structure fulfills an identifiable need for 
erosion protection, bank stabilization, protection of uplands, or 
improvements on uplands;
    (ii) The structure will be constructed of suitable materials 
free from pollutants, waste metal products, debris, or organic 
materials;
    (iii) The structure is not more than 300 feet in length and is 
located in an area on the body of water where other similar 
structures already exist;
    (iv) The placement of backfill or other fill associated with the 
construction does not exceed an average of 3 cubic yards per running 
foot along the shoreline and a maximum of 300 cubic yards; and
    (v) The structure or any associated fill will not be placed in a 
wetland area or placed in any manner that impairs surface water flow 
into or out of any wetland area.
    (d) Groins 50 feet or less in length, as measures from the toe 
to bluff, which meet all of the following criteria:
    (i) The groin is low profile, with the lakeward end not more 
than 1 foot above the existing water level; and
    (ii) The groin is placed at least \1/2\ of the groin length from 
the adjacent property line or closer with written approval of the 
adjacent riparian.
    (e) Filling for restoration of existing permitted fill, fills 
placed incidental to construction of other structures, and fills 
that do not exceed 300 cubic yards as a single and complete project, 
where the fill is of suitable material free from pollutants, waster 
metal products, debris, or organic materials.
    (f) Dredging for the maintenance of previously dredged areas or 
dredging of not more than 300 cubic yards as a single and complete 
project when both of the following criteria are met:
    (i) No reasonable expectation exists that the materials to be 
dredged are polluted; and
    (ii) All dredging materials will be removed to an upland site 
exclusive of wetland areas.
    (g) Structural repair of man-made structures, except as exempted 
by R 322.1008(3), when their design and purpose meet both of the 
following criteria:
    (i) The repair does not alter the original use of a recently 
serviceable structure; and
    (ii) The repair will not adversely affect public trust values or 
interests, including navigation and water quality.
    (h) Fish and wildlife habitat structures which meet both of the 
following criteria:
    (i) Are placed so the structures do not impede or create a 
navigational hazard; and
    (ii) Are anchored to the bottomlands.
    (i) Scientific structures such as staff gauges, water monitoring 
devices, water quality testing devices, survey devices, and core 
sampling devices, if the structures do not impede or create a 
navigational hazard.
    (j) Navigational aids which meet both of the following criteria:
    (i) Are approved by the United States Coast Guard; and
    (ii) Are approved under Act No. 303 of the Public Acts of 1967, 
as amended, being Sec. 281.1001 et seq. of the Michigan Compiled 
Laws, and known as the Marine Safety Act.
    (k) Extension of a project where work is being performed under a 
current permit and which will result in no damage to natural 
resources.
    (l) A sand trap wall which meets all of the following criteria:
    (i) The wall is 300 feet or less in length along the shoreline;
    (ii) The wall does not extend more than 30 feet lakeward of the 
toe of bluff;
    (iii) The wall if low profile, that is, it is not more than 1 
foot above the existing water level; and
    (iv) The wall is constructed of wood or steel or other non-
polluting material.
    (m) Physical removal of man-made structures or natural 
obstructions which meet all of the following criteria:
    (i) The debris an spoils shall be removed to an upland site, not 
in a wetland, in a manner which will not allow erosion into public 
waters;
    (ii) The shoreline and bottom contours shall be restored to an 
acceptable condition;
    (iii) Upon completion of structure removal, the site does not 
constitute a safety or navigational hazard; and
    (iv) Department staff shall consider fisheries and wildlife 
resource values when evaluating applications for natural obstruction 
removal.

[FR Doc. 97-16053 Filed 6-20-97; 8:45 am]
BILLING CODE 3510-08-M