[Federal Register Volume 65, Number 121 (Thursday, June 22, 2000)]
[Rules and Regulations]
[Pages 39042-39060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15638]



[[Page 39041]]

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

Part IV





Department of Commerce





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



National Oceanic and Atmospheric Administration



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



15 CFR Part 922



Thunder Bay National Marine Sanctuary and Underwater Preserve 
Regulations; Final Rule

  Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules 
and Regulations  

[[Page 39042]]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 970404078-0176-02]
RIN 0648-AE41


Thunder Bay National Marine Sanctuary and Underwater Preserve 
Regulations

AGENCY: Marine Sanctuaries Division (MSD), Office of Ocean and Coastal 
Resource Management (OCRM), National Ocean Service (NOS), National 
Oceanic and Atmospheric Administration (NOAA), Department of Commerce 
(DOC).

ACTION: Final rule and summary of final management plan.

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

SUMMARY: NOAA issues final regulations to implement the designation of 
the Thunder Bay National Marine Sanctuary and Underwater Preserve, 
which encompasses an area of State of Michigan waters over and 
surrounding Thunder Bay, and the submerged lands thereunder including 
the Bay, in western Lake Huron, by regulating activities affecting 
Sanctuary resources, as defined by and consistent with the provisions 
of the Designation Document. In addition, this document publishes the 
Designation Document and summarizes the final management plan for the 
Sanctuary, detailing the goals and objectives, management 
responsibilities, research activities, interpretive and educational 
programs, and enforcement activities for the area. The National Marine 
Sanctuaries Act requires the Secretary of Commerce to issue final 
regulations to implement the designation of a National Marine 
Sanctuary. The intended effect of these regulations is to protect the 
Sanctuary's resources, which are limited to underwater cultural 
resources.

EFFECTIVE DATE: Pursuant to section 304(b) of the National Marine 
Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and 
regulations shall 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 this document is published unless, the 
Governor of the State of Michigan certifies to the Secretary of 
Commerce that the designation or any of its terms is unacceptable, in 
which case the designation or any unacceptable term shall not take 
effect. Announcement of the effective date of the final regulations 
will be published in the Federal Register.

ADDRESSES: Copies of the Final Environmental Impact Statement/
Management Plan (FEIS/MP) prepared for the designation are available 
upon request to the Marine Sanctuaries Division, Office of Ocean and 
Coastal Resource Management, National Ocean Service, National Oceanic 
and Atmospheric Administration, 1305 East-West Highway, 11th Floor, 
Silver Spring, MD 20910 (301) 713-3125. Comments regarding the 
collection-of-information requirements contained in this rule should be 
sent 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, NOAA, Work Station 8118, 1305 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Brody, (734) 741-2270.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 23, 1997, NOAA published a notice in the Federal Register 
proposing the designation of an approximately 808 square-mile (2093 
square-kilometer) area of waters encompassing and surrounding Thunder 
Bay, Lake Huron, Michigan, and the submerged lands thereunder as a 
National Marine Sanctuary (62 FR 33768), based upon the national 
significance of the area's collection of underwater cultural resources 
(primarily shipwrecks). The Thunder Bay region contains more than 160 
shipwrecks that span more than a century of Great Lakes maritime 
history. Following publication of the Federal Register notice and in 
response to the State of Michigan, NOAA agreed to reduce the size of 
the Sanctuary to approximately 448 square miles (1169 square 
kilometers). This smaller area contains approximately known and 
suspected 116 shipwrecks. 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 exists 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. Encompassing an extensive array 
of historical themes, Thunder Bay's collection of shipwrecks presents a 
broad history of Great Lakes culture and commerce, and from even the 
most general of observations, may be considered nationally significant 
historically. A recent study also has investigated the potential of 
Thunder Bay for possible National Historic Landmark status (Preliminary 
Comparative and Theme Study of National Historic Landmark Potential for 
Thunder Bay, Michigan, Martin, 1996).
    The designation of this Sanctuary establishes a partnership between 
NOAA and the State of Michigan to jointly provide long-term protective 
management to Thunder Bay's underwater cultural resources. The June 23, 
1997 notice also announced the availability of the Draft Environmental 
Impact Statement/Draft Management Plan (DEIS/DMP) prepared for the 
proposed designation, and provided a public comment period on the DEIS/
DMP of approximately three months. Public hearings to receive comments 
on the proposed designation, proposed regulations, and DEIS/DMP were 
conducted in Harrisville; Alpena; and Rogers City, MI during September 
8-10, 1997. All comments received by NOAA in response to the Federal 
Register notice, and to the public hearings were considered and, where 
appropriate, were incorporated. A summary of significant comments on 
the DEIS/DMP and proposed regulations and NOAA's responses to them 
follow.
    Following publication of the FEIS/MP, the State of Michigan and 
NOAA engaged in detailed discussions about the terms of designation. 
These discussions focused on the name and boundary of the sanctuary, 
staffing arrangements, funding commitments, and formal agreements 
between NOAA and the State. NOAA and the State agreed to reduce the 
boundary, change the name of the sanctuary, and create the Joint 
Management Committee. NOAA and the State also agreed to enter into a 
formal agreement, referred to in this document as a draft Memorandum of 
Understanding (MOU). This agreement, which will be an interlocal 
agreement as described in Michigan's Urban Cooperation Act, will detail 
the relationship between the two parties, and will be based on the 
draft MOU described in the FEIS/MP.

[[Page 39043]]

Federal Presence in State Waters; State Sovereignty

    1. Comment: The Thunder Bay Underwater Preserve provides adequate 
protection to the Bay's underwater cultural resources; there is no need 
to duplicate efforts.
    Response: State of Michigan law protecting the State's underwater 
preserves (Part 761, Aboriginal Records and Antiquities of Public Act 
451, as amended), provides a basic level of protection for abandoned 
property (the State's term for underwater cultural resources). However, 
the Sanctuary encompasses an area of approximately 158 square miles 
(409 square kilometers) outside the Preserve as well as provides 
additional protection and resources for the Preserve.
    Although the Thunder Bay Underwater Preserve has existed since 
1981, the State has been unable to provide the necessary financial 
resources or staff to comprehensively manage it. Thus, while the 
Thunder Bay Underwater Preserve provides for the protection of 
underwater cultural resources therein, designation as a National Marine 
Sanctuary will provide increased resources to carry out the research, 
education and enforcement activities necessary to more fully know, 
understand and protect these resources. With the designation of a 
National Marine Sanctuary, NOAA and the State will become partners in 
managing the Sanctuary area (which almost fully encompasses the 
existing Preserve and protects an additional area) by providing, with 
Sanctuary Program and collaborative partnership funding, support for 
these types of activities. NOAA, as a partner, will supplement and 
complement State and/or local efforts to provide protection to, and 
education and research on, Thunder Bay's underwater cultural resources.
    The Sanctuary regulations provide additional protection for the 
existing Preserve's underwater cultural resources. The State only 
protects abandoned property, while Sanctuary designation protects all 
underwater cultural resources. This additional protection applies to 
non-abandoned shipwrecks, as well as historical remnants of docks and 
piers (see Section 5, Regulatory Alternatives, of the Final 
Environmental Impact Statement/Management Plan, for a more complete 
discussion of the differences between State law and Sanctuary 
regulations).
    Designation of the Sanctuary is intended to build on and strengthen 
the Thunder Bay Underwater Preserve. Because the Thunder Bay National 
Marine Sanctuary and Underwater Preserve is an equal partnership with 
the State of Michigan, NOAA and the State will work together to ensure 
that they do not duplicate each other's efforts. Given the additional 
financial resources and legal authorities NOAA has to offer, joint 
management between the State of Michigan and NOAA will provide 
opportunities that neither could offer on its own. There are numerous 
benefits associated with a National Marine Sanctuary, including 
enhanced opportunities for research and long-term monitoring, 
additional development of educational materials, and increased support 
for enforcement. The designation of an area as a Sanctuary draws 
attention to the fact that the area is nationally significant and worth 
protecting on a national level.
    2. Comment: Any Federal government program or involvement in Alpena 
or surrounding communities is an intrusion into sovereign State waters. 
Designation of the Sanctuary will result in the loss of State control 
of Lake Huron, and a takeover of both management and regulation of the 
Thunder Bay area by the Federal government.
    Response: As has been discussed and demonstrated throughout the 
Sanctuary feasibility process, the Thunder Bay National Marine 
Sanctuary and Underwater Preserve will not change the ownership or 
control of State lands or waters; that is, no loss of State sovereignty 
will occur as a result of designation of a National Marine Sanctuary. 
NOAA and the State agree that the State's jurisdiction and rights will 
be maintained and will not be relinquished. NOAA will not intrude upon 
or change existing State or local authorities. All existing State laws, 
regulations, and authorities will remain in effect. An MOU for the 
joint management of the Thunder Bay National Marine Sanctuary and 
Underwater Preserve between the State of Michigan and NOAA will contain 
several provisions to address this concern. A key provision will state: 
``The State of Michigan has not conveyed title to or relinquished its 
sovereign authority over any State-owned submerged lands or other 
State-owned resources, by agreeing to include those submerged lands and 
resources within the Sanctuary boundary.''
    3. Comment: The Sanctuary should have a provision requiring a 
review after five years to determine whether the State of Michigan 
still supports Sanctuary designation.
    Response: Section 304(e) of NMSA requires the Secretary of Commerce 
to review the sanctuary management plan and implementing regulations 
every five years and revise the management plan as necessary. The MOU 
between NOAA and the State of Michigan will contain a provision 
requiring the Secretary to re-designate the Sanctuary and re-propose 
the management plan and regulations in their entirety as part of the 
first five-year review. The Governor of the State of Michigan will have 
the opportunity to review the designation, management plan and 
regulations in their entirety and indicate if any or all of the terms 
are unacceptable, in which case, the unacceptable terms will not take 
effect. In subsequent reviews, NOAA is not required to re-propose the 
entire Sanctuary but only those changes to the management plan and 
regulations that are subject to the Governor's approval.

Regulations

Introduction
    There were a number of comments related to the breadth and nature 
of the proposed Sanctuary regulations. In response to public comments, 
NOAA made several changes to the regulations. The first change is the 
definition of ``underwater cultural resources.'' Several comments noted 
that the definition was vague and too broad. NOAA, therefore, revised 
the definition to make it more consistent with the State definition of 
``abandoned property'' and provide more predictability to Sanctuary 
users as to what resources the Sanctuary is managing and protecting. 
The second change is the wording of one of the prohibitions in the 
Sanctuary regulations. To clarify what activities are prohibited, NOAA 
included language in the final regulations that is similar to language 
in Part 761, Aboriginal Records and Antiquities of Public Act 451, as 
amended. The prohibition now reads, ``recovering, altering, destroying, 
possessing, or attempting to recover, alter, destroy, or possess an 
underwater cultural resource.'' The third change was to add a 
prohibition on the use of grappling hooks and other anchoring devices 
on underwater cultural resource sites that are marked with a mooring 
buoy.
    The Sanctuary regulations are limited to regulating only four 
categories of activities: (1) Recovering, altering, destroying, 
possessing, or attempting to recover, alter, destroy or possess, an 
underwater cultural resource; (2) drilling into, dredging or otherwise 
altering the lakebottom associated with underwater cultural resources, 
including contextual information; or constructing, placing or 
abandoning any structure, material or other matter on

[[Page 39044]]

the lakebottom associated with underwater cultural resources (except as 
an incidental result of anchoring vessels; traditional fishing 
operations; or minor projects that do not adversely affect underwater 
cultural resources); (3) using grappling hooks or other anchoring 
devices on underwater cultural resource sites that are marked with a 
mooring buoy; and (4) 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. The regulations prohibit these four categories 
of activities.
    The Designation Document, which is in essence the constitution for 
the Sanctuary, contains a section limiting the scope of activities 
which the Sanctuary can regulate, on other than a temporary emergency 
basis, to these four categories. In order for an activity outside the 
scope of the activities listed for possible regulation in the 
Designation Document to be regulated other than on a temporary 
emergency basis, the Designation Document would have to be revised 
following the designation process set forth in Section 304 of the NMSA. 
This process includes extensive public involvement and review, as well 
as input and opportunity to veto by the Governor. In order for a 
temporary emergency regulation to be imposed, the Governor must 
approve. In order for an activity within the scope of activities listed 
for possible regulation in the Designation Document to be regulated or 
for an existing regulation affecting such an activity to be revised, 
the procedures of the Administrative Procedure Act would have to be 
followed, and under the terms of the MOU that NOAA and the State will 
enter into the Governor would have the opportunity to veto the 
regulation.
    The Sanctuary regulations are different from the State law 
governing the State's underwater cultural resources in four ways: (1) 
The Sanctuary regulations apply to all shipwrecks, not just those that 
are abandoned; (2) The use of grappling hooks or other anchoring 
devices is prohibited on underwater cultural resource sites that are 
marked with a mooring buoy; (3) ``Hand-taking'' of artifacts outside 
the Thunder Bay Underwater Preserve, but still within the Sanctuary 
boundary, is prohibited; and (4) Permit applications to conduct a 
prohibited activity are more detailed to satisfy the Federal 
Archaeology Program guidelines.
    4. Comment: Fishing should not be regulated or restricted by the 
Sanctuary. Fishing in Thunder Bay could be affected by designation of a 
National Marine Sanctuary.
    Response: Commercial and recreational fishing activities (including 
fishery-related research and stocking programs) are not included within 
the Designation Document's scope of possible activities that could be 
regulated as part of the Sanctuary regime. See introduction to 
regulation-related comments and responses. Of course, fishing within 
Thunder Bay is subject to State regulation and to non-sanctuary Federal 
regulation under such authorities as the Endangered Species Act. For 
example, State regulations require all but diving-tending vessels to 
not be operated within 200 feet of a buoyed diver's flag. The 
regulation of who may use the Thunder Bay National Marine Sanctuary and 
Underwater Preserve and for what purpose is not included within the 
scope of possible regulated activities.
    If a fishing activity alters a Sanctuary underwater cultural 
resource (an act that is prohibited by 15 CFR 922.193(a)(1)), the 
fishing activity would be in violation of the Sanctuary regulations 
regardless of whether it is a traditional fishing activity (defined in 
15 CFR 922.191). However, traditional fishing activities are exempt 
from the prohibition on altering the lakebottom (15 CFR 922.193(a)(2)). 
A permit would be necessary to conduct a prohibited activity.
    5. Comment: The Sanctuary should not restrict diving and access to 
shipwrecks.
    Response: Non-consumptive access to shipwrecks and non-consumptive 
commercial and recreational diving are not included within the 
Designation Document's scope of possible activities that could be 
regulated as part of the Sanctuary regime. See introduction to 
regulation-related comments and responses. Of course, diving within 
Thunder Bay is subject to State regulation, such as the requirement to 
fly a ``divers'' flag when diving. No Sanctuary permits are required to 
dive in the Sanctuary. However, the recovery, alteration, destruction, 
or possession of underwater cultural resources (i.e., the consumption 
of underwater cultural resources) is prohibited.
    It will be the policy of the Thunder Bay National Marine Sanctuary 
and Underwater Preserve to foster free and open access to all 
underwater cultural resources. This is the philosophy of the National 
Marine Sanctuary Program. Non-consumptive diving is allowed and 
encouraged in all National Marine Sanctuaries. For example, the Florida 
Keys National Marine Sanctuary has constructed a ``shipwreck trail,'' 
which encourages access to the shipwrecks. Even on the Monitor (the 
Civil War ironclad off the coast of North Carolina), which is too deep 
for most recreational divers, licensed dive operators have been allowed 
to conduct non-consumptive dives.
    On rare occasions, the Thunder Bay National Marine Sanctuary and 
Underwater Preserve may need to place temporary emergency limits on 
access to a shipwreck (e.g., if a historically significant shipwreck is 
newly discovered and NOAA and the State need to document the 
artifacts). The only way in which NOAA could do this would be through 
the imposition of an emergency regulation pursuant to 15 CFR 922.196. 
In accordance with the regulations and the MOU that will be entered 
into, NOAA cannot impose a temporary emergency regulation without the 
approval of the Governor.
    In the event that NOAA imposes some type of restriction on access 
to allow documentation of a newly-discovered shipwreck, NOAA envisions 
using volunteer divers who are trained to assist the agency in 
collecting information.
    6. Comment: The Sanctuary should not prohibit anchoring at 
shipwreck sites.
    Response: Due to damage to underwater cultural resources that could 
be caused by grappling hooks or anchoring devices, and in response to a 
recommendation from the Sanctuary Advisory Council (SAC), NOAA added a 
prohibition on the use of grappling hooks or other anchoring devices on 
underwater cultural resource sites that are marked with a mooring buoy 
(15 CFR 922.193(a)(3)). If a site is not marked with a mooring buoy, 
grappling hooks or anchoring devices may be employed. However, because 
of the potential of damaging an underwater cultural resource, NOAA 
recommends that such devices only be used at a non-mooring buoy-marked 
site when there is no alternative. In such case, the person intending 
to use an anchoring device should consult with the Sanctuary manager to 
determine ways of avoiding damage to the underwater cultural resource 
at the site (e.g., obtaining information about how the anchoring device 
should be placed and oriented to avoid damaging vulnerable parts of the 
resource).
    The State of Michigan considers damage to abandoned property caused 
by grappling hooks a violation of Part 761, Aboriginal Records and 
Antiquities of Public Act 451 (1994), as amended. Therefore, the 
Sanctuary regulation is fully consistent with state law.

[[Page 39045]]

    As discussed in the response to comment 23, a high priority 
activity once the Sanctuary is designated is the placement of mooring 
buoys at all shipwreck sites where a mooring buoy may feasibly be 
placed. This will allow safe access for divers, allow boats to tie up 
to the mooring buoys, and eliminate the need for anchoring on the 
lakebottom.
    7. Comment: The Sanctuary should not restrict or regulate private 
archaeological surveys.
    Response: The Sanctuary regulations prohibit the recovering, 
altering, destroying, or possession of any underwater cultural resource 
regardless of how that recovering, altering, destroying, or possession 
occurs (e.g., through the conduct of a private archaeological survey). 
Even if the conduct of private archaeological surveys is not expected 
to alter or otherwise adversely impact an underwater cultural resource, 
NOAA encourages the surveyor to consult with the Sanctuary manager. In 
general, NOAA and the State encourage research and documentation on 
underwater cultural resources, as long as the activity does not violate 
the Sanctuary regulations. If an activity would violate a Sanctuary 
prohibition, a Sanctuary permit authorizing the activity must first be 
obtained.
    8. Comment: The Sanctuary should not restrict commercial diving 
charter operations.
    Response: See response to comment 5. The regulations do not place 
any restrictions on the number of commercial dive charter operations in 
the Sanctuary, nor do they require dive charters to have a license or 
to register their boats for use in the Sanctuary. NOAA will not charge 
a user fee for commercial diving charter operations. NOAA and the State 
will work in partnership with dive operators to educate divers about 
the Sanctuary.
    9. Comment: The Sanctuary should not require registration for 
divers or boats.
    Response: The regulations do not require divers or boat operators 
to register to be in Sanctuary waters. NOAA will not charge a user fee 
for divers or boat operators.
    10. Comment: The Sanctuary should not grant leases or issue permits 
for the removal of oil and/or gas from locations under the bottomlands 
within the Sanctuary boundary.
    Response: The State, not the Sanctuary, has ownership rights to and 
leasing authority over oil, gas, and mineral resources lying beneath 
the lakebottom. The need to obtain a Sanctuary permit would arise only 
if the State grants a lease for the removal of oil and/or gas and that 
activity would affect underwater cultural resources. If such activity 
would not impact underwater cultural resources, no Sanctuary permit 
would be required.
    The Sanctuary regulations include a prohibition on 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. Any person conducting 
an activity that adversely impacts underwater cultural resources would 
be required to obtain a permit pursuant to the Sanctuary regulations. 
Any such permit would have to meet the requirements of Section 922.195.
    11. Comment: The Sanctuary should not restrict property rights and 
land use.
    Response: The Sanctuary will have no effect on existing property 
rights or on existing land uses. The landward boundary of the Sanctuary 
extends along the ordinary high water mark between the north and south 
Alpena County lines. The MOU will contain the following provision: 
``NOAA does not have the ability to, and therefore cannot, acquire land 
to regulate activities landward of the ordinary high water mark (e.g., 
limiting public access from the shore to Lake Huron). NOAA does have 
authority to co-manage activities lakeward of the ordinary high water 
mark pursuant to the Sanctuary regulations.''
    12. Comment: The Sanctuary should not regulate hunting activities.
    Response: Hunting is not included within the Designation Document's 
scope of possible activities that could be regulated as part of the 
Sanctuary regime. See introduction to regulation-related comments and 
responses. Any hunting activity on land would be outside the Sanctuary 
boundary and therefore not affected at all by the Sanctuary 
regulations. Waterfowl hunting on the water is outside the scope of 
possible activities that could be regulated as part of the Sanctuary 
regime.
    13. Comment: The Sanctuary should not impose more regulations in 
the future.
    Response: The Sanctuary has a very narrow management focus on 
underwater cultural resources, with virtually no effect on individual 
activities in Thunder Bay unless these activities would cause a 
violation of one of the four categorical prohibitions in the 
regulations.
    The Designation Document, which is in essence the constitution for 
the Sanctuary, contains a section limiting the scope of activities 
which the Sanctuary can regulate, on other than a temporary emergency 
basis, to these four categories. In order for an activity outside the 
scope of the activities listed for possible regulation in the 
Designation Document to be regulated other than on a temporary 
emergency basis, the Designation Document would have to be revised 
following the designation process set forth in Section 304 of the NMSA. 
This process includes extensive public involvement and review, as well 
as input and opportunity to veto by the Governor. In order for a 
temporary emergency regulation to be imposed, the Governor must 
approve. In order for an activity within the scope of activities listed 
for possible regulation in the Designation Document to be regulated or 
for an existing regulation affecting such an activity to be revised, 
the procedures of the Administrative Procedure Act would have to be 
followed and under the terms of the MOU that will be entered into the 
Governor would have the opportunity to veto the regulation.
    14. Comment: The definition of traditional fishing does not 
specifically reference tribal fishing.
    Response: NOAA included in the proposed Sanctuary regulations a 
definition of ``traditional fishing'' because it is an activity that is 
exempt from 15 CFR 922.193(a)(2), alteration of the lakebottom. NOAA 
agrees that even though tribal fishing is prohibited in this area under 
the 1985 Consent Agreement, it is an activity that was ``customarily 
conducted within the Sanctuary prior to its designation.'' NOAA, 
therefore, has clarified in the final regulations that tribal fishing 
falls under the definition of traditional fishing.
    15. Comment: The Sanctuary should not be allowed to issue emergency 
regulations.
    Response: Pursuant to 15 CFR 922.196, an activity may be 
temporarily regulated in an emergency to prevent or minimize the 
destruction of, loss of, or injury to a Sanctuary resource. Eliminating 
this authority would jeopardize the Sanctuary's ability to react and 
respond quickly to emergency situations threatening Sanctuary 
resources. Although the provision for emergency temporary regulation is 
vitally important to ensure the Program's ability to respond to 
emergency situations, the mechanism is

[[Page 39046]]

very rarely used. The Designation Document and the regulations require 
that NOAA obtain the approval of the Governor prior to an emergency 
regulation taking effect. The MOU between NOAA and the State will 
contain the same provision.
    16. Comment: Exempt from prosecution charter boat operators and 
personal sport divers who dive a wreck without a mooring buoy, if the 
reason for the absence of a buoy is that it has not been set, or that 
it has been accidentally destroyed.
    Response: The regulations for the Thunder Bay National Marine 
Sanctuary and Underwater Preserve do not require that divers use 
mooring buoys. The regulations at 15 CFR 922.193(a)(3), however, 
prohibit the use of grappling hooks or other anchoring devices on 
underwater cultural resource sites that are marked with a mooring buoy. 
If the site does not have a mooring buoy, there is no prohibition on 
the use of grappling hooks or anchoring devices. See response to 
Comment 6. As discussed in Comment 23, it will be a priority of the 
Thunder Bay National Marine Sanctuary and Underwater Preserve to 
install and maintain a mooring buoy system.
    17. Comment: Adopt Sanctuary regulations that mirror the State of 
Michigan regulations protecting underwater cultural resources, per 
Alternative A, Regulatory Alternatives.
    Response: NOAA's preferred regulatory alternative is Alternative B 
(see Section 5 of the FEIS/MP), which is to adopt Sanctuary regulations 
consistent with the purpose and intent of State regulations under Part 
761, Aboriginal Records and Antiquities, of P.A. 451 (1994), as 
amended, and Part 325, Great Lakes Submerged Lands, of P.A. 451 (1994), 
as amended. The primary advantage of Alternative B is that protective 
coverage is extended to all shipwrecks within the Sanctuary boundary; 
not just to ``abandoned'' shipwrecks, as defined under State law and 
the federal Abandoned Shipwreck Act. In effect, adoption of Alternative 
B will serve as a safety net for State underwater cultural resources 
that might be unprotected under either State law or the Abandoned 
Shipwreck Act.
    NOAA has revised the Sanctuary regulations to reflect the language 
in the State law. For example, NOAA changed the definition of 
``underwater cultural resources'' to a definition that uses terms 
similar to the State definition of ``abandoned property'' (which is the 
State term for underwater cultural resources). NOAA also changed the 
wording of a prohibited activity (15 CFR 922.193(a)(1)) to more closely 
reflect the State prohibition under Part 761, Aboriginal Records and 
Antiquities of P.A. 451 (1994), as amended. Therefore, while NOAA is 
still adopting Regulatory Alternative B, this alternative is closer to 
Regulatory Alternative A than it was in the DEIS/DMP.
    18. Comment: What procedures are in place to ensure that NOAA 
cannot make unilateral changes to the Sanctuary (e.g., changing the 
scope of regulations)?
    Response: See response to comment 13.

Extent of Underwater Cultural Resources in the Boundary

    19. Comment: The collection of underwater cultural resources 
(primarily shipwrecks) in Thunder Bay is not ``nationally 
significant,'' and thus does not qualify for National Marine Sanctuary 
status.
    Response: The collection of approximately 116 shipwrecks both known 
and thought to be located within the boundary of the Thunder Bay 
National Marine Sanctuary and Underwater Preserve represents a large 
diversity of vessels that navigated the Great Lakes in the 19th and 
20th centuries. Collectively, these shipwrecks reflect transitions in 
ship architecture and construction methods, from wooden sailing boats 
to early steel-hulled steamers. In addition to representing important 
transitions in ship architecture and construction, the collection also 
conveys many stories of Great Lakes transportation and commerce over 
the past two hundred years.
    Section 303(a)(2) of the NMSA requires that in order to be 
designated as a National Marine Sanctuary an area contain resources or 
human-use values of special national significance. NOAA funded a study 
to determine whether the underwater cultural resources of the Thunder 
Bay region are nationally significant. There is strong evidence, based 
on this study, of national historic significance attached to this 
collection of underwater cultural resources located in the Thunder Bay 
area (See Preliminary Comparative and Theme Study of National Historic 
Landmark Potential for Thunder Bay, Martin 1996). Martin (1996) 
indicated that the collection of shipwrecks would likely qualify as a 
National Historic Landmark. In addition, several of the known 
shipwrecks individually have potential national historic significance, 
e.g., Isaac M. Scott, which foundered in the Great Storm of 1913 (See 
Section 4, E. of the FEIS/MP for a complete discussion of these 
shipwrecks).
    20. Comment: The number of shipwrecks occurring outside Alpena 
County does not warrant extension of the Sanctuary boundary beyond 
Alpena County.
    Response: Although the majority of known and suspected shipwrecks 
occur in waters off Alpena County, there are also a significant number 
of known or suspected shipwrecks occurring in waters off both Alcona 
and Presque Isle Counties, notably near the lighthouses at both 
locations. (See Figure 5.4 of the FEIS/MP, ``Approximate Locations of 
Shipwrecks in the Thunder Bay Region''). As described in Table 5.1 of 
the FEIS/MP, ``Number of known, probable, and suspected shipwrecks,'' 
the greatest increase occurs from Boundary B (Alpena County lines) and 
Boundary C (Presque Isle Lighthouse as the northern boundary and 
Sturgeon Point Lighthouse as the southern boundary C NOAA's preferred 
boundary). The number of known, probable, and suspected shipwrecks 
increases from 116 in Boundary B to 160 in Boundary C.
    In response to a request by the State of Michigan, however, NOAA 
reduced the size of the boundary from 808 square miles (2093 square 
kilometers) to 448 square miles (1169 square kilometers). The revised 
boundary still uses the 83 degrees longitude as the lakeward boundary, 
but uses the Alpena County lines as the north and south landward 
boundary points. The State requested a smaller boundary due to the 
higher concentration of shipwrecks in this area and fewer local 
governments with whom to coordinate. NOAA agreed to the adoption of 
Boundary B with the stipulation that an inventory will be conducted of 
shipwrecks in the larger area (the additional 360 square miles (932 
square kilometers)) to determine if boundary expansion is warranted 
after five years. The Governor has veto authority over boundary 
expansion.
    To achieve the uniformity of regulations, the State intends to make 
the boundary of the existing state Underwater Preserve coterminous with 
the National Marine Sanctuary.
    21. Comment: The National Marine Sanctuary Program should not be 
supporting sanctuaries that only protect cultural resources.
    Response: Section 301(a)(2) of the NMSA states ``the Congress finds 
that certain areas of the marine environment possess conservation, 
recreational, ecological, historical, research, educational, or 
esthetic qualities which give them special national, and in some cases, 
international significance.'' The Secretary of Commerce is not required 
to designate national marine sanctuaries based upon a finding that all 
of these listed criteria are present. A sanctuary may be designated 
based on the national

[[Page 39047]]

significance of any one of the listed criteria, provided that the 
requirements of sections 303 and 304 of the NMSA are met.
    22. Comment: Arrange the boundaries of the Sanctuary to include 
only areas with a high concentration of known and probable wrecks.
    Response: It would be very difficult administratively to manage a 
Sanctuary with many noncontiguous areas as envisioned in this comment. 
While it is estimated the Sanctuary contains approximately 116 
shipwrecks, and some of these have been identified, many more are 
thought to be in the Thunder Bay area and have yet to be located and 
documented. Provided a shipwreck lies within the boundary of the 
contiguous area, it is subject to all Sanctuary protections. If as the 
commenter suggests, a sanctuary was designated consisting of 
noncontiguous boundaries lying around each known wreck, in order to 
protect additional wrecks, the expensive and cumbersome sanctuary 
designation process would have to be repeated.

Management of Shipwrecks

    23. Comment: Use State and federal funds to maintain mooring buoys, 
anchored within 50 feet of each dive site, from May 1st to October 31st 
of each year, on all identified wrecks within the Sanctuary that are 
within 130 feet of the surface. Fit the anchor line for each buoy with 
a permanent guideline that maintains a depth of 5 feet from 
the shallowest point of the dive site.
    Response: The placement of mooring buoys is an important element of 
ensuring safe and open public access to Thunder Bay's underwater 
cultural resources, while also ensuring the protection of these 
resources. NOAA and the State will pursue placing mooring buoys at 
identified dive sites, and will also pursue collaboration with private 
and/or other governmental sources of support to implement full mooring 
buoy placement and maintenance, as appropriate. The specifics of 
mooring buoy placement will be addressed following designation, in part 
through findings and assessments resulting from Sanctuary inventory 
surveys. As with any activity, however, the placement and maintenance 
of mooring buoys will be subject to available funding.
    24. Comment: Regularly publicize coordinates of existing and newly-
found shipwrecks, dates of upcoming studies of wrecks and other 
research projects, and results of completed and ongoing research 
projects.
    Response: Consistent with goals of the National Marine Sanctuary 
Program Strategic Plan, NOAA promotes ``coordinated research and 
monitoring efforts throughout the Program.'' As discussed in the 
Management Plan (see Section 3 of the FEIS/MP), goals of the research/
monitoring program at Thunder Bay include inventory and assessment of 
Sanctuary resources, and development of collaborative programs with 
other agencies, businesses, and organizations.
    NOAA has authority under Section 304 of the National Historic 
Preservation Act and Section 9(a) of the Archaeological Resource and 
Protection Act to withhold the location of certain shipwrecks. It will 
be the policy of the Thunder Bay National Marine Sanctuary and 
Underwater Preserve to make these coordinates available to the public. 
However, for safety or enforcement purposes, exact locations of newly 
discovered shipwrecks may not be reported immediately.
    Dates of Sanctuary-funded or Sanctuary-permitted studies of 
shipwrecks and other research projects will be available to the 
interested public, once those dates are established. Finally, results 
of completed research also will be made available to the interested 
public; progress on ongoing research projects will also be made 
available to the public, as appropriate.
    25. Comment: Use State and federal funds, and/or assistance in 
fundraising, to purchase and install a hyperbaric chamber near the 
Sanctuary.
    Response: Decisions related to the purchase and installation of a 
hyperbaric chamber near the Sanctuary to support Sanctuary research/
monitoring programs will be made as annual detailed research plans for 
the Sanctuary are developed. Such plans also will include discussion of 
funding for various equipment and supplies. NOAA acknowledges the 
importance of having a hyperbaric chamber in close proximity to the 
Thunder Bay National Marine Sanctuary and Underwater Preserve.
    26. Comment: Provide incentives and mechanisms to encourage private 
individuals and companies to explore shipwrecks not yet discovered; and 
to share information and documentation they already have, or gather in 
the future, on shipwrecks in the area.
    Response: Among the highest priorities to ensure effective 
Sanctuary management are research and inventory activities to establish 
baseline information on the location and status of underwater cultural 
resources. There will be no restrictions on divers or other public 
access to known or suspected shipwrecks within the Sanctuary, provided 
diving activity is conducted in a manner that complies with Sanctuary 
and other valid regulations. Individuals will be encouraged to explore 
the Sanctuary for the potential discovery of underwater cultural 
resources, and to share this information and documentation. NOAA and 
the State will facilitate these efforts by developing and providing 
information forums and written and/or visual materials for the public.
    27. Comment: Provide State and federal support for selecting, 
purchasing, cleaning up, and scuttling additional vessels within the 
Sanctuary.
    Response: The selection, purchase, clean-up and scuttling of 
``additional'' vessels within the Sanctuary will not be a management 
activity for the Sanctuary. The purpose of the Sanctuary is to manage 
and protect existing shipwrecks within the Sanctuary boundary.

Development of Educational Programs

    28. Comment: Develop joint State and federal public education 
programs, including a web page on the Internet, to promote 
understanding of the resources available in the Sanctuary to the public 
of the State, nation, and world.
    Response: Development of joint State and federal public education 
and interpretive programs on the maritime heritage of the Thunder Bay 
area are contemplated in the Management Plan (see Section 3, Management 
Plan, FEIS/MP). Part of such programs will include further and 
continuing development and maintenance of a web page. A web page has 
already been developed containing preliminary information about the 
site and its progress toward National Marine Sanctuary designation. The 
web page address is: http://www.glerl.noaa.gov/glsr/thunderbay.
    29. Comment: Provide joint federal and State support for local 
educational opportunities to all ages and types of schools about 
aspects of marine and ecological sciences and history in the Thunder 
Bay area; train educators in the use of that programming.
    Response: As generally described in Section 3, Management Plan, the 
Sanctuary's goals for education include development and implementation 
of science-based programs that promote awareness and understanding of 
the Thunder Bay area's underwater cultural resources and maritime 
heritage. The primary purpose of the Thunder Bay National Marine 
Sanctuary and Underwater Preserve is to provide comprehensive, long-
term protection--through education, research and management programs--
for the

[[Page 39048]]

nationally-significant collection of underwater cultural resources 
found in the Thunder Bay area. Given this singular management focus, 
development and support for programming (and training in the use of 
that programming) to educate children, college students, and the public 
about aspects of marine and ecological science and history in the 
Thunder Bay area will not be a high management priority for the 
Sanctuary, unless such inquiries relate to maritime heritage (e.g., the 
effects of zebra mussels on shipwrecks).
    30. Comment: Provide that the Sanctuary Manager or designee shall 
make presentations as requested to community organizations on the 
functions, budget, and staff of the Sanctuary.
    Response: Success of the Thunder Bay National Marine Sanctuary and 
Underwater Preserve will depend in large part upon its integration into 
the local and surrounding communities. Outreach and communication 
efforts made by the Sanctuary staff to those communities will support 
such integration. In coordination with its State partners and others, 
the Sanctuary Manager will be available to make presentations to 
community organizations on Sanctuary activities, programs and 
administration.
    31. Comment: Provide publicity and mechanisms to invite and 
incorporate the involvement of local residents, who have appropriate 
credentials and experience, in Sanctuary research projects.
    Response: A Sanctuary Research Plan will be developed, identifying 
research and monitoring activity priorities. As Sanctuary funds are 
available, some may be competitively awarded to support these research 
and/or monitoring projects. The funds will be awarded to individuals 
with appropriate credentials and experience from local residents and 
those from outside the area.
    32. Comment: Provide specific mechanisms for involving the diving 
community in planning and conducting research and educational projects 
related to the Sanctuary.
    Response: As with area residents interested in potential Sanctuary 
research and educational projects, the Sanctuary will make information 
and opportunities for planned research and education projects known to 
the diving community. One way for interested area residents and 
representatives of the diving community to become involved in helping 
to plan for such projects is through the SAC and its subcommittees. The 
SAC will advise and provide recommendations to the Sanctuary Manager 
regarding development of priorities for annual research and education 
plans. In other sanctuaries, NOAA depends on the experience and 
expertise of divers to provide input to the Sanctuary Manager. NOAA and 
the State will place a high priority on building a strong relationship 
with local and regional divers.
    33. Comment: Use federal and State funds to document the cultural 
resources within the Sanctuary and to provide at least one public 
resource center through each tourist season.
    Response: The identification and documentation of underwater 
cultural resources within the Sanctuary clearly are priority items for 
planning site management, which includes the provision of complete, 
current information to the user and other interested publics. NOAA and 
the State will pursue development of a Maritime Heritage Center with 
other agencies, businesses, and organizations. This type of Center 
would provide the public with information on the Sanctuary, its 
resources, and the maritime heritage of the Thunder Bay area.

User Fees

    34. Comment: A number of commenters expressed concern that user 
fees may be imposed on various Sanctuary users, such as those engaged 
in fishing, diving or boating activities.
    Response: NOAA will not impose user fees on any activity within the 
Sanctuary. The MOU between NOAA and the State of Michigan will contain 
a provision stating that any user fee would be subject to a veto by the 
Governor of Michigan.

Conflict Resolution

    35. Comment: Tribal participation must be included in the conflict 
resolution procedures.
    Response: NOAA agrees that tribal interests should be considered in 
the conflict resolution process. The MOU between the State of Michigan 
and NOAA will set forth a conflict resolution process. The Chippewa-
Ottawa Fishery Treaty Management Authority and other tribes may enter 
into a separate MOU(s) with NOAA and/or the State to address such 
concerns.
    36. Comment: How will the Sanctuary deal with potential conflicts 
between fishermen and divers?
    Response: State regulations require divers to fly a ``divers'' flag 
and for all vessels not tendering the divers to not be operated within 
200 feet of the flag. This should minimize conflicts between fisherman 
and divers with minimal interference and inconvenience to fishermen. 
Accordingly, there would not appear to be a need for separate Sanctuary 
regulations on this subject matter. If conflicts do arise, there will 
be a framework for conflict resolution in the MOU. The SAC or other 
local forum will be critical to the resolution of this type of 
conflict.

Economic Impact Assessment

    37. Comment: There is an error in the Economic Impact Assessment 
regarding the transcription of projected use data from one table to 
another.
    Response: The DEIS/DMP contained a word processing error in Table 1 
of Appendix F and Table 6.1 in Volume 1 of the Draft EIS/DMP (i.e., the 
use projections for bird watching [overnight trips] were inadvertently 
duplicated for kayaking/canoeing [day trips]). The word processing 
error resulted in trip figures after bird watching (overnight trips) to 
be ``thrown off'' by one line. The Total party trips in Table 1 and 
Table 6.1 should be 6,150 for FY97; 9,200 for FY98; 14,175 for FY99; 
23,000 for FY00; and 31,700 for FY01 (as shown on the last line of 
Table 2 in Appendix F). The use projections in Table 1 and Table 6.1 
should have been consistent with Table 2 in Appendix F of the DEIS/DMP. 
This correction was made in the FEIS/MP.
    38. Comment: The use of kayaking, bird watching and sightseeing as 
categories for tourism in the economic impact assessment is not 
appropriate because the Sanctuary is limited to the protection of 
underwater cultural resources.
    Response: Section 6 of the DEIS/DMP (the economic impact 
assessment) included bird watching, kayaking/canoeing, and sightseers 
in the impact calculations for an ``underwater'' sanctuary for several 
reasons. First, the Sanctuary will interpret and promote the entire 
``maritime cultural landscape'' in partnership with the community and 
state, and the landscape includes resources other than shipwrecks. 
Second, a certain segment of visitors will be attracted to the region 
simply because there is a National Marine Sanctuary there. They may be 
primarily interested in cultural heritage, but can realistically be 
assumed to participate also in recreation associated with natural 
heritage (in addition, some of this ``natural'' heritage is an 
important component of the maritime cultural landscape). Finally, 
social research involving heritage tourism indicates that a primary 
motivation for visitation is history and human heritage, but that these 
visitors also participate in other outdoor recreation activities. These 
are supported by social research

[[Page 39049]]

in heritage tourism; aggregate trends and projections of use for bird 
watching, canoeing/kayaking, and sightseeing (i.e., nature-based 
tourism along the shorelands and from boats); and some results from the 
Florida Keys recreation and tourism study (Leeworthy et al. 1996).
    39. Comment: The impact of increased visitors on the area's local 
infrastructure and on the environment is not adequately addressed.
    Response: The economic impact assessment was limited in scope due 
to financial constraints and availability of data. However, NOAA does 
not believe the projected increase in visitation would cause stresses 
on the area's infrastructure. The City of Alpena is growing, with new 
businesses and stores locating there. This growth, which is not a 
result of the Sanctuary, will prepare the City for increased 
visitation.

Other

    40. Comment: Is State or local matching funding required for the 
Sanctuary?
    Response: The NMSA does not require any State and/or local support 
for Sanctuary programs and activities. The MOU will contain the 
following statement to address this concern: ``No local funding is 
required to implement the Management Plan, its implementing 
regulations, or any provisions of this MOU.'' Initial NOAA funding 
levels for the Sanctuary will be at least $250,000 annually. This 
figure could be higher or lower depending on appropriations. The State 
of Michigan, as a joint manager of the sanctuary/preserve, has also 
committed to provide financial support. In addition to this level of 
support, there are opportunities for revenue enhancement and cost-
sharing with a variety of agencies, organizations, institutions, 
businesses and individuals, to assist in meeting Sanctuary Program 
objectives. NOAA and the State will continue to promote and encourage 
means such as partnerships and sponsorships, to raise additional 
support for Sanctuary programs.
    41. Comment: Involve the existing SAC in reviewing and revising the 
MOU to ensure that it accurately addresses local concerns.
    Response: Prior to the release of this FEIS/MP, the SAC was 
requested to review and make recommendations to NOAA regarding the MOU. 
Before the FEIS/MP release, the SAC also reviewed and endorsed the 
Programmatic Agreement among NOAA, the State of Michigan and the 
Advisory Council on Historic Preservation. The SAC's involvement has 
been critical in shaping the terms and scope of the Sanctuary.
    42. Comment: Who on the state or local level would be responsible 
for enforcement of the Sanctuary regulations? The Final Management Plan 
should include a provision for funding enforcement activities.
    Response: Enforcement of Sanctuary regulations will be discussed in 
the MOU, and the MOU will provide for possible deputization of State of 
Michigan, Michigan State Police, and county marine sheriff enforcement 
personnel, for the enforcement of Sanctuary regulations. NOAA envisions 
developing a separate MOU for enforcement. Under such an agreement, the 
appropriate State agency would be recognized as the lead enforcement 
entity, and provisions for necessary cost-sharing for law enforcement 
activities would be made.
    43. Comment: NOAA needs to address the impacts of zebra mussels on 
shipwrecks.
    Response: NOAA recognizes that zebra mussels will be a management 
concern for the Sanctuary. If this is determined to be a priority 
research activity, funds will be allocated to examine the impact of 
zebra mussels on shipwrecks.
    44. Comment: The availability of the open water placement site for 
future placement of clean dredged materials is critical for continued 
maintenance of the Federal navigation channel at Alpena Harbor.
    Response: NOAA recognizes the importance of maintaining the 
navigation channel at Alpena Harbor; it is not aware of adverse impacts 
to underwater cultural resources caused by the open water placement 
site. Unless there are adverse impacts, the Sanctuary will not impose 
restrictions on the continued availability of the open water placement 
site currently used by the Corps for placement of clean dredged 
materials resulting from periodic maintenance dredging of navigation 
channels and harbors located on Lake Huron.
    45. Comment: Safety of Sanctuary users should be considered in 
light of commercial shipping traffic in Thunder Bay. Mooring buoys 
should be kept out of commercial course lines.
    Response: After Sanctuary designation, NOAA and the State will work 
with the U.S. Coast Guard and the Lake Carriers' Association to develop 
a safe and effective mooring buoy system, as well as to ensure that 
mooring buoys are not placed in major shipping channels.
    46. Comment: In the event of an oil spill, NOAA should comply with 
U.S. Coast Guard Area Contingency Plan.
    Response: After designation, NOAA will work closely with the U.S. 
Coast Guard to ensure that NOAA is aware of, and part of, the Area 
Contingency Plan. NOAA added information in Section 4 of the FEIS/MP on 
the Area Contingency Plan.
    47. Comment: Why isn't the Fame included in the list of shipwrecks?
    Response: Upon further research, it is apparent that the ship came 
to rest on the shores of Presque Isle. The ship's unusually accident-
prone history, including its stranding in Thunder Bay early in its 
career, likely contributed to the confusion regarding its eventual 
fate. It appears that few remains of the vessel probably exist at the 
location of its loss because of salvage and shoreland development 
activities. Due to the adoption of a smaller boundary, however, the 
Fame will be outside the Sanctuary boundary.

II. Designation Document

    Section 304(a)(4) of the Act requires that the terms of designation 
set forth the geographic area included within the Sanctuary; the 
characteristics of the area that give it conservation, recreational, 
ecological, historical, research, educational, or esthetic value; and 
the types of activities subject to regulation by the Secretary to 
protect those characteristics. This section also specifies that the 
terms of the designation may be modified only by the same procedures by 
which the original designation is made. Thus the terms of designation 
serve as a constitution for the Sanctuary.
    The Designation Document for the Thunder Bay National Marine 
Sanctuary and Underwater Preserve follows:

Designation Document for the Proposed Thunder Bay National Marine 
Sanctuary and Underwater Preserve

    Under the authority of the National Marine Sanctuaries Act, as 
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 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 the Thunder Bay 
National Marine Sanctuary and Underwater Preserve for the purposes 
of providing long-term protection and management to the 
conservation, recreational, research, educational, and historical 
resources and qualities of the area.
    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 esthetic value; and the types of activities that 
will be

[[Page 39050]]

subject to regulation by the Secretary of Commerce to protect those 
characteristics. The terms of designation may be modified only by 
the procedures provided in Section 304(a) of the Act (the same 
procedures by which the original designation is made). Thus, the 
terms of designation serve as a constitution for the Sanctuary.

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 and Underwater Preserve (the 
``Sanctuary''). Section 1 of Article IV of this Designation Document 
lists those activities that may 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 to include the type of activity by the same 
procedures by which the original Sanctuary designation was made, as 
outlined in Section 304(a) of the NMSA.

Article II. Description of the Area

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

Article III. Characteristics of the Area That Give It Particular 
Value

    Thunder Bay and its surrounding waters contain approximately 116 
shipwrecks spanning more than a century of Great Lakes maritime 
history. Virtually every type of vessel used on open Great Lakes 
waters 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, studies 
undertaken to date indicate 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 
various phases of American industrialization; one shipwreck (Isaac 
M. Scott) may be used to study and interpret a specific event (the 
Great Storm of 1913) that had strong repercussions regionally, 
nationally, and internationally; and they provide interpretive 
material for understanding American foreign intercontinental trade 
within the Great Lakes.
    Thunder Bay was established as the first State of Michigan 
Underwater Preserve in 1981 to protect underwater cultural 
resources. Increasing public interest in underwater cultural 
resources underscores the importance of continued efforts to 
discover, explore, document, study and to provide long-term, 
comprehensive protection for the Bay's shipwrecks and other 
underwater cultural resources.

Article IV. Scope of Regulations

    Section 1. Activities Subject to Regulation. The following 
activities are subject to regulation under the NMSA, 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. Recovering, altering, destroying, possessing, or attempting 
to recover, alter, destroy or possess, an underwater cultural 
resource;
    b. 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 (as defined in the 
regulations); or
    (iii) Minor projects as defined upon adoption of this regulation 
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 (see Appendix B of Subpart R);
    c. Using grappling hooks or other anchoring devices on 
underwater cultural resource sites that are marked with a mooring 
buoy;
    d. 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.
    Section 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 flagged vessels and persons who are 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.
    Section 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 and all such activities, including those not listed in 
Section 1, are subject to immediate temporary regulation, including 
prohibition. Any such emergency regulation shall not take effect 
without the approval of the Governor of Michigan.

Article V. Effect on Other Regulations, Leases, Permits, Licenses, 
and Rights

    Section 1. Fishing Regulations, Licenses, and Permits. Fishing 
in the Sanctuary shall not be regulated as part of the Sanctuary 
management regime authorized by the Act. However, fishing in the 
Sanctuary may be regulated 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, 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 designee, in consultation with the State of Michigan, to be 
more protective of Sanctuary resources shall govern.
    Pursuant to Section 304(c)(1) of this Act, 16 U.S.C. 1434(c)(1), 
no valid lease, permit, license, approval, or other authorization 
issued by any Federal, State, 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 designee, as 
a result of this designation, or as a result of any Sanctuary 
regulation, if such lease, permit, license, approval, or other 
authorization, or right of subsistence use or access was issued or 
in existence as of the effective date of this designation. However, 
the Secretary of Commerce, or 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, as defined under Section 304(e) of the 
Act, may be modified only by the same procedures by which the 
original designation is made, including public hearings, 
consultations with interested Federal, State, Tribal, regional, and 
local authorities and agencies, review by the appropriate 
Congressional committees, and review and non-objection by the 
Governor of the State of Michigan, and approval by the Secretary of 
Commerce, or his or her designee. End Designation Document.

III. Summary of the Final Management Plan

    The FEIS/MP for the Thunder Bay National Marine Sanctuary and 
Underwater Preserve recognizes the need for a balanced approach to

[[Page 39051]]

management, which reflects the multiple-use character of the area, as 
well as the paramount need to protect its resources. The Management 
Plan guides management of the Sanctuary during the first five years of 
operation. In describing the Sanctuary's location, resources and uses, 
the Management Plan discusses programs for resource protection, 
research, and education/interpretation, and details Federal and State 
agency administrative roles and responsibilities.
    The Sanctuary Manager, within a year of being hired, will submit a 
revised Management Plan to the Joint Management Committee for approval. 
Revisions will be based on the Management Plan published in the FEIS, 
the State's August 1999, ``Thunder Bay Underwater Park and National 
Shipwreck Sanctuary: A Business Plan,'' and on input from the SAC and 
other affected parties.

Resource Protection

    The highest priority management goal is to protect the underwater 
cultural resources of the Thunder Bay region, in partnership with the 
State of Michigan, to ensure the long-term use and integrity of those 
resources for present and future generations. Specific objectives to 
achieve and maintain this goal are to:
    (1) Coordinate management activities with other government and non-
government programs that protect underwater cultural resources;
    (2) Establish innovative partnerships with local, state, federal, 
and tribal agencies, organizations, and businesses that support the 
resource protection mission of the Sanctuary;
    (3) Develop active and sustainable community involvement through 
diverse volunteer and private sector initiatives;
    (4) Establish an effective enforcement program for Sanctuary 
regulations that protect underwater cultural resources;
    (5) Develop and implement effective emergency response and resource 
damage assessment programs; and
    (6) Ensure that management decisions are based on the best 
available information, but where such information is incomplete, follow 
those options that best protect the Sanctuary's underwater cultural 
resources.

Research Program

    Effective management of the Sanctuary requires the initiation of a 
Sanctuary research program that supports the overriding management goal 
of resource protection, through effective and efficient research and 
monitoring programs, which will:
    (1) Inventory and assess Sanctuary resources, and existing and 
potential threats to those resources;
    (2) Monitor Sanctuary resources to ensure their long-term 
protection and provide for evaluation of management practices;
    (3) Develop a research plan that places the highest priority on 
research addressing threats to Sanctuary resources;
    (4) Develop and encourage collaborative programs with other 
agencies, organizations and businesses;
    (5) Identify and evaluate the values associated with Sanctuary 
resources (e.g., historical, recreational, economic, aesthetic); and
    (6) Encourage research targeted at management issues such as 
resolving multiple-use conflicts, and understanding user impacts.

Education Program

    In order to conduct meaningful education programs that focus on 
underwater cultural resources and the maritime heritage of the region, 
the goal of the Sanctuary's education program is to improve public 
awareness, understanding and appreciation of these resources. 
Management objectives designed to meet this goal are to:
    (1) Develop and implement science-based education programs that 
promote awareness and understanding of the Sanctuary's underwater 
cultural resources, Thunder Bay's maritime heritage, and the National 
Marine Sanctuary Program;
    (2) Provide educational leadership to develop and implement 
collaborative education programs that meet the needs and interests of 
residents, local and regional schools, and visitors to the Sanctuary;
    (3) Act as a clearinghouse of quality education materials (e.g., 
curricula, equipment, technology and expertise), and assist in 
developing and maintaining an inventory of existing education programs 
so they are accessible to educators;
    (4) Encourage the involvement of volunteers to help foster 
understanding and participation in the protection and stewardship of 
Sanctuary resources;
    (5) Ensure that education programs support overall management goals 
for resource protection, research and administration; and
    (6) Facilitate the transfer of Sanctuary information and 
experiences for use locally, regionally, nationally, and globally.

Visitor and Recreational Use

    The Sanctuary Program's goal for visitor management and 
recreational enhancement is to facilitate, to the extent compatible 
with the primary objective of resource protection, public and private 
uses of Sanctuary resources which are not prohibited pursuant to other 
authorities.
    Specific management objectives include:
    (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 using the Sanctuary to respect the 
sensitivity and quality of Sanctuary resources; and
    (4) Monitor and assess the levels of uses to identify and control 
potential degradation of Sanctuary resources, and to minimize potential 
use conflicts.

Sanctuary Administration

    The Sanctuary Administration Program focuses on the roles and 
responsibilities of the agencies, organizations, and businesses that 
will be involved in operation of the Sanctuary. Successful operation of 
the Sanctuary will 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 Maritime Heritage Center to enhance education 
opportunities for both local residents and visitors to the region. The 
selection of Alpena, Michigan as the location of the Sanctuary office 
is premised on its central location on Thunder Bay.
    The Sanctuary regulations require the establishment of a state/
federal Joint Management Committee. The Joint Management Committee, 
which will be comprised of one State and one NOAA representative, will 
exercise decision-making authority over key Sanctuary management 
issues, such as approval of the Management Plan, approval of annual 
work plans, and approval, on an annual basis, of the expenditure of 
available funds.
    The Sanctuary Advisory Council will provide advice and 
recommendations to the Sanctuary Manager and the Joint Management 
Committee about issues related to Sanctuary programs and 
implementation. The existence of a SAC encourages community 
participation in the Sanctuary's management. Membership may not exceed 
fifteen individuals, and members will be mutually agreed upon by NOAA 
and the State of Michigan.

[[Page 39052]]

    Finally, a five-year projection of Sanctuary activities, necessary 
financial obligations, and economic impacts of the Sanctuary is 
provided.

IV. Summary of Regulations

    The regulations set forth the boundary of the Thunder Bay National 
Marine Sanctuary and Underwater Preserve; establish a state/federal 
Joint Management Committee, prohibit a narrow range of activities 
focused exclusively on the protection of Thunder Bay's underwater 
cultural resources; establish certification and permitting procedures; 
provide for the promulgation of emergency regulations; provide for 
consultation affected federally-recognized Indian tribes; and specify 
procedures for giving a vessel 50 years or older that sinks in the 
Sanctuary after the date of designation the status of an underwater 
cultural resource. Other provisions of the existing National Marine 
Sanctuary Program regulations 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; the maximum per day penalties for violating 
Sanctuary regulations; and the procedures applicable to administrative 
appeals.
    Specifically, the regulations revise the regulations applicable to 
all National Marine Sanctuaries to include the Thunder Bay National 
Marine Sanctuary and Underwater Preserve and add a new Subpart R to 
Part 922, title 15, Code of Federal Regulations, to provide the 
regulations applicable just to the Thunder Bay National Marine 
Sanctuary and Underwater Preserve.
    It is significant to note that the definition for sanctuary 
resource in section 922.3, the definition section applicable to all 
National Marine Sanctuaries, is revised to reflect the fact that the 
only sanctuary resources in the Thunder Bay National Marine Sanctuary 
and Underwater Preserve are underwater cultural resources.
    In response to a request from the State of Michigan, the name of 
the Sanctuary has been changed from the ``Thunder Bay National Marine 
Sanctuary'' to the ``Thunder Bay National Marine Sanctuary and 
Underwater Preserve.'' This name change recognizes the State's 
designation of 290 square miles (751 square kilometers) of Thunder Bay 
as the Thunder Bay Underwater Preserve and the role of the State in 
jointly managing the sanctuary/preserve with NOAA.
    Section 922.190 and Appendix A following Sec. 922.198 set forth the 
boundary of the Sanctuary. In response to concerns by the State of 
Michigan, NOAA reduced the size of the boundary from 808 square miles 
(2093 square kilometers)(preferred boundary alternative A) to 448 
square miles (1169 square kilometers)(boundary alternative B). The 
revised boundary still uses the 83 degrees longitude as the lakeward 
boundary, but uses the Alpena County lines as the north and south 
landward boundary points. The State requested a smaller boundary due to 
the higher concentration of shipwrecks in this area and fewer local 
governments with whom to coordinate. NOAA agreed to the adoption of 
boundary alternative B with the stipulation that an inventory will be 
conducted of shipwrecks in the larger area (the additional 360 square 
miles (932 square kilometers )) to determine if boundary expansion may 
be warranted after five years. The Governor has veto authority over any 
future boundary expansion.
    Section 922.191 defines various terms applicable specifically to 
the Thunder Bay National Marine Sanctuary and Underwater Preserve. 
Underwater cultural resources are defined to be:
    (1) Any sunken watercraft, including a ship, boat, canoe, skiff, 
raft, or barge; the rigging, gear, fittings, trappings, and equipment 
of any sunken watercraft; the personal property of the officers, crew, 
and passengers of any sunken watercraft; and the cargo of any sunken 
watercraft, that sank prior to the effective date of Sanctuary 
designation; and (2) any of the above that sinks on or after the date 
of Sanctuary designation determined to be an underwater cultural 
resource by the Director pursuant to Sec. 922.198. Underwater cultural 
resource also includes any historical remnant of docks or piers or 
associated material, or materials resulting from activities of historic 
and prehistoric Native Americans.
    The definition of ``underwater cultural resource'' was modified 
from the draft regulations. The revised definition reflects terms that 
are similar to the State of Michigan definition of ``abandoned 
property.'' NOAA modified the definition to make it clearer to the 
public the difference between State of Michigan law and the Sanctuary 
regulations.
    NOAA also modified the definition of traditional fishing to clarify 
that it includes subsistence fishing and all tribal fishing rights as 
provided for in the 1836 Treaty of Washington and subsequent court 
decisions related to the Treaty.
    State of Michigan agency representatives suggested that NOAA 
include resources 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. NOAA's 
focus has been on those resources that are significant due to their 
historical, cultural, or archaeological qualities. Many of the 
resources within NOAA's proposed definition include sites that enjoy a 
substantial amount of recreational use; consequently NOAA has 
determined that the proposed definition of ``underwater cultural 
resource'' does not require expansion.
    Other terms appearing in the 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.
    Section 922.192 is added to establish a state/federal Joint 
Management Committee (JMC), in recognition that the underwater cultural 
resources are in State waters and located wholly on State bottomlands. 
The JMC will ensure that NOAA and the State of Michigan are equal 
partners in management of the sanctuary/preserve. The JMC, which will 
be comprised of one State and one NOAA representative (who cannot be 
the Sanctuary Manager (the individual who exercises day-to-day 
management over the Sanctuary) and must have a civil service grade 
higher than the Sanctuary Manager)), will exercise decision-making 
authority over key sanctuary management issues, such as approval of the 
Management Plan, approval of annual work plans, and approval, on an 
annual basis, of the expenditure of available funds consistent with 
those plans. In the event of a disagreement between NOAA and the State, 
the parties will adhere to the conflict resolution procedures described 
in the MOU.
    The JMC is also given the responsibility of developing a position 
description, recruiting prospective candidates, interviewing 
candidates, and taking part in the annual performance evaluation of the 
Sanctuary Manager. While the Sanctuary Manager will be a Federal civil 
servant (as are all sanctuary managers) and thereby subject to Federal 
civil service regulations including those relating to hiring and 
firing, the Sanctuary Manager must satisfy the expectations of both 
parties.
    Pursuant to Section 922.192(f), membership in the JMC is limited to 
NOAA and the State of Michigan. However, the JMC may invite public 
parties (e.g., local units of governments)

[[Page 39053]]

to participate in certain aspects of sanctuary management, as 
appropriate. The interlocal agreement between NOAA and the State of 
Michigan (which will be based on the draft MOU published in the FEIS/
MP) will describe the process for becoming a party to the interlocal 
agreement. Local governments may also be members of the SAC, and in 
that capacity will serve in an advisory role on a range of Sanctuary 
management issues.
    Section 922.193 prohibits a narrow range of activities and thus 
makes 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. 922.194 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. 922.194, Sec. 922.195, and Sec. 922.49; a National Marine 
Sanctuary permit issued pursuant to Sec. 922.194, Sec. 922.195, and 
Sec. 922.49; or a Special Use permit issued pursuant to Section 310 of 
the NMSA.
    The first activity prohibited is recovering, altering, destroying, 
possessing, or attempting to recover, alter, destroy, 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. To 
clarify what types of activities are subject to the Sanctuary 
regulations, NOAA included language in the final regulations that is 
similar to language in State law--Part 761, Aboriginal Records and 
Antiquities of Public Act 451, as amended.
    The second activity prohibited is 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 
(as defined in the regulations); 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 
State administrative rule--R 322.1013 of Part 325, Great Lakes 
Submerged Lands of Public Act 451). The intent of this regulation is to 
protect the underwater cultural resources from the harmful effects of 
activities such as, but not limited to, dredging, excavations, drilling 
into the lakebottom, and dumping of dredged materials.
    The third activity prohibited, which was added to the final 
regulations, is using grappling hooks or other anchoring devices on 
underwater cultural resource sites that are marked with a mooring buoy. 
The intent of this regulation is to prevent damage often caused by 
grappling hooks or other anchoring devices on underwater cultural 
resources. The State of Michigan also views damage caused by grappling 
hooks and other anchoring devices to be a violation of State law.
    The fourth activity prohibited is 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.
    Section 922.193(b) specifies that members of federally-recognized 
Indian tribes may exercise their treaty-secured rights, subject to the 
requirements of other applicable law, without regard to the 
requirements of the prohibitions in Section 922.193. The exercise of 
these rights, however, must be authorized by the tribe by regulation, 
license, or permit. This provision was added to the final regulations 
in response to comments from federally-recognized Indian tribes.
    Section 922.194 provides for the 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 any valid right of subsistence use of 
access, in existence as of the effective date of Sanctuary designation.
    Section 922.195 provides for the conduct of activities prohibited 
by Section 922.193(a)(1) through (3), provided that the activity is 
conducted in accordance with the scope, purpose, manner, terms and 
conditions of a State of Michigan permit (State permit), certified by 
the State Archaeologist as 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 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 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 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 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.
    Under Section 922.195, NOAA added (d) and (e). Section 922.195 (d) 
specifies that a permit may be issued if the proposed activity 
satisfies the requirements for permits, or if the recovery of the 
underwater cultural resource is in the public interest, is part of 
research to preserve historic information for public use, and is 
necessary or appropriate to protect the resource, preserve historical 
information, or further the policies of the Thunder Bay National Marine 
Sanctuary and Underwater Preserve.
    Section 922.195(e) describes the permit application process and 
criteria. The information required for submitting a permit application 
is based on requirements in the National Historic Preservation Program.
    At the request of the State of Michigan, NOAA added Section 
922.196, which provides for the imposition, extension, or renewal of 
Sanctuary emergency regulations. Section 922.196 specifies that 
emergency regulations may be imposed to prevent or minimize the 
destruction of, loss of, or injury to an underwater cultural resource. 
Emergency

[[Page 39054]]

regulations shall not take effect without the approval of the Governor 
of Michigan. They shall remain in effect until a date fixed in the rule 
or six months after the effective date, whichever is earlier. The 
regulations may be extended once for not more than six months.
    NOAA added Section 922.197, which states that the Director shall 
regularly consult with the governing bodies of federally-recognized 
Indian tribes.
    Section 922.198 specifies procedures for determining watercraft and 
related items which sink on or after the date of Sanctuary designation 
to be an underwater cultural resource. The Director, in consultation 
with the State of Michigan, appropriate federal agencies, and the 
governing body of any affected federally-recognized tribe, may 
determine, after providing 45 days for public comment, that any sunken 
watercraft, including a ship, boat, canoe, skiff, raft, or barge; the 
rigging, gear, fittings, trappings, and equipment of any sunken 
watercraft; the personal property of the officers, crew, and passengers 
of any sunken watercraft; and the cargo of any sunken watercraft, that 
sinks on or after the date of Sanctuary designation, to be an 
underwater cultural resource if such is determined by the Director to 
be 50 years or older and of special national significance due to 
architectural significance or association with individuals or events 
that are significant to local or national history.

V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304 of the NMSA requires the Secretary to submit this 
notice to the appropriate Congressional Committees and to the Governor 
of the State of Michigan, on the same day this notice is published. The 
required services are being made.

National Environmental Policy Act

    Section 304 of the NMSA, 16 U.S.C. 1434, requires the preparation 
of a final environmental impact statement (FEIS), as provided by the 
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and 
that the FEIS be made available to the public. NOAA published a FEIS/MP 
for the proposed designation of the Thunder Bay National Marine 
Sanctuary in June 1999. The FEIS/MP is available at the addresses 
listed in the Addresses section of this Notice of Final Rule.

Executive Order 12866: Regulatory Impact

    This regulatory action has been determined to be not significant 
for purposes of Executive Order 12866.

Executive Order 13132: Federalism

    A Federalism Assessment (FA) was prepared for the proposed 
designation document, proposed management plan, and proposed 
implementing regulations in accordance with the then in effect 
Executive Order 12612, Federalism Considerations in Policy Formulation 
Implementation (52 FR 41685, Oct. 26, 1987). The FA concluded that all 
were fully consistent with the principles, criteria, and requirements 
set forth in section 2 through 5 of the Executive Order. Copies of the 
FA are available upon request from the Office of Ocean and Coastal 
Resource Management at the address listed above. Executive Order 12612 
was superseded on November 2, 1999, by Executive Order 13132, 
Federalism. The new Executive Order sets forth Fundamental Federalism 
Principles (section 2) to guide federal agencies in formulating and 
implementing policies that have federalism implications and Federalism 
Policymaking Criteria (section 3) to adhere to, the extent permitted by 
law, when formulating and implementing policies that have federalism 
implications. Since these final regulations do not preempt State law, 
the requirements of section 4 and section 6(c) of the Executive Order 
do not apply.

Federalism Summary Impact Statement

    Pursuant to the requirements of section 6(b)(2), NOAA has consulted 
regularly with the State of Michigan and local elected officials since 
beginning the designation process in 1991. On average, NOAA staff met 
with State agency staff and local governments once every two months. 
These face-to-face meetings were supplemented with at least weekly 
telephone conversations to discuss the sanctuary regulations, scope of 
management, and State or local concerns. During Fall 1997 and Summer 
1998, NOAA staff met with the Sanctuary Advisory Council (which 
includes local elected officials) every two weeks to obtain local input 
into the sanctuary designation process. In addition, there was 
correspondence between NOAA and the State of Michigan, including 
several letters between U.S. Secretary of Commerce William Daley and 
Michigan Governor John Engler (dated January 24, 2000; February 11, 
2000; and May 8, 2000). These communications are being made available 
to the Director of the Office of Management and Budget.
    State and local concerns about the Sanctuary related to federal 
government intrusion in State waters, a fear that activities (e.g., 
fishing and diving) would be restricted, and questions about the need 
for the Sanctuary to protect underwater cultural resources when the 
State already provides some protection. NOAA addressed these concerns 
by involving local citizens in writing a draft MOU to address their 
concerns, amending the Sanctuary regulations to provide veto authority 
to the Governor of Michigan on many aspects of sanctuary management, 
agreeing to establish the Joint Management Committee to ensure equal 
governance of the Sanctuary, and reducing the size of the Sanctuary.

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 when this rule was proposed that 
it would not have a significant economic impact on a substantial number 
of small entities. While minor modifications have been made to the rule 
proposed, the basis for that certification has not changed. 
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 (PRA), 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 rule contains a collection of information requirement subject 
to the requirements of the PRA. This collection-of-information 
requirement has been approved by OMB under OMB control number 0648-
0141. 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 public reporting burden per 
respondent for the collection of information contained in this rule is 
estimated to be: 1 hour for a general permit; 15 minutes for a permit 
amendment; 30 minutes for certification of a preexisting lease, 
license, permit, approval or authorization; 1 hour for a

[[Page 39055]]

notification of other Federal agency permits; and 1.5 hours for 
appeals.
    Send comments on the burden estimate or on any other aspect of the 
collection-of-information, and ways of reducing the burden, to NOAA and 
OMB (see ADDRESSES).

Unfunded Mandates Reform Act of 1995

    This rule contains 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 sections 202 and 
205 of the UMRA.

List of Subjects in CFR Part 922

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

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)
    Dated: June 16, 2000.
John Oliver,
Chief Financial Officer, National Ocean Service.

    Accordingly, for the reasons set forth above, 15 CFR part 922 is 
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 922.3 is revised to read as follows:


Sec. 922.3  Definitions.

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


    4. 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 and Hawaiian Islands 
Humpback Whale National Marine Sanctuaries are found at Secs. 922.160, 
and 922.180, respectively.


    5. 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.


    6. 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), 922.165, 922.186, or 922.196, 
subject to all prohibitions, regulations, restrictions, and conditions 
validly imposed by any Federal, State, or local authority of competent 
jurisdiction, including Federal and State fishery management 
authorities, and subject to the provisions of section 312 of the 
National Marine Sanctuaries Act (NMSA), (16 U.S.C. 1431 et seq.). The 
Assistant Administrator may only directly regulate fishing activities 
pursuant to the procedure set forth in section 304(a)(5) of the NMSA.


    7. 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.


    8. Section 922.44 is revised to read as follows:


Sec. 922.44  Emergency regulations.

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


    9. 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, and 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 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.


    10. Section 922.48 is amended by revising paragraphs (a), (b), (d) 
and (f) as follows:

[[Page 39056]]

Sec. 922.48  National marine sanctuary permits--application procedures 
and issuance criteria.

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


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


    12. Paragraph (a) of Section 922.50 is revised to read as follows:


Sec. 922.50  Appeals of administrative action.

    (a)(1) Except for permit actions taken for enforcement reasons (see 
subpart D of 15 CFR part 904 for applicable procedures), an applicant 
for, or a holder of, a National Marine Sanctuary permit; an applicant 
for, or a holder of, a Special Use permit issued pursuant to section 
310 of the Act; a person requesting certification of an existing lease, 
permit, license or right of subsistence use or access under 
Sec. 922.47; or, for those Sanctuaries described in Subparts L through 
P and Subpart R, an applicant for a lease, permit, license or other 
authorization issued by any Federal, State, or local authority of 
competent jurisdiction (hereinafter appellant) may appeal to the 
Assistant Administrator:
    (i) the granting, denial, conditioning, amendment, suspension or 
revocation by the Director of a National Marine Sanctuary or Special 
Use permit;
    (ii) the conditioning, amendment, suspension or revocation of a 
certification under Sec. 922.47; or
    (iii) for those Sanctuaries described in Subparts L through P and 
Subpart R, the objection to issuance of or the imposition of terms and 
conditions on a lease, permit, license or other authorization issued by 
any Federal, State, or local authority of competent jurisdiction.
    (b) For those National Marine Sanctuaries described in Subparts F 
through K, any interested person may also appeal the same actions 
described in Sec. 922.50(a)(1)(i) and (ii). For appeals arising from 
actions taken with respect to these National Marine Sanctuaries, the 
term ``appellant'' includes any such interested persons.
* * * * *
    Part 922 is amended by adding a new subpart R immediately following 
Subpart Q as follows:

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

[[Page 39057]]

Appendix B to Subpart R of Part 922-Minor Projects for Purposes of 
Sec. 922.193(a)(2)(iii)

Subpart R--Thunder Bay National Marine Sanctuary and Underwater 
Preserve


Sec. 922.190  Boundary.

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


Sec. 922.191  Definitions.

    (a) The following terms are defined for purposes of Subpart R:
    Minor project means any project listed in Appendix B to this 
Subpart.
    Programmatic Agreement means the agreement among NOAA, the Federal 
Advisory Council on Historic Preservation, and the State of Michigan, 
developed pursuant to the National Marine Sanctuaries Act (NMSA), 16 
U.S.C. 1431 et seq. and section 106 of the National Historic 
Preservation Act of 1966 as amended, 16 U.S.C. 470 et seq., which, in 
part, sets forth the procedures for review and approval of State 
Permits that authorize activities prohibited by the Sanctuary 
regulations.
    State Archaeologist means the State Archaeologist, Michigan 
Historical Center, Michigan Department of State.
    State Permit means any lease, permit, license, approval, or other 
authorization issued by the State of Michigan for the conduct of 
activities or projects within the Thunder Bay National Marine Sanctuary 
and Underwater Preserve that are prohibited by the regulations at 
Sec. 922.193.
    Traditional fishing means those commercial, recreational, and 
subsistence fishing activities that were customarily conducted within 
the Sanctuary prior to its designation, as identified in the Final 
Environmental Impact Statement and Management Plan for this Sanctuary. 
Copies of the Final Environmental Impact Statement/Management Plan 
(FEIS/MP) are available upon request to the Marine Sanctuaries 
Division, Office of Ocean and Coastal Resource Management, National 
Ocean Service, National Oceanic and Atmospheric Administration, 1305 
East-West Highway, 11th Floor, Silver Spring, MD 20910, (301) 713-3125.
    Traditional fishing includes tribal fishing rights as provided for 
in the 1836 Treaty of Washington and subsequent court decisions related 
to the Treaty.
    Underwater cultural resource means:
    (1) Any sunken watercraft, including a ship, boat, canoe, skiff, 
raft, or barge; the rigging, gear, fittings, trappings, and equipment 
of any sunken watercraft; the personal property of the officers, crew, 
and passengers of any sunken watercraft; and the cargo of any sunken 
watercraft, that sank prior to the effective date of Sanctuary 
designation; and
    (2) Any of the above that sinks on or after the date of Sanctuary 
designation determined to be an underwater cultural resource by the 
Director pursuant to Sec. 922.198. Underwater cultural resource also 
means any historical remnant of docks or piers or associated material, 
or materials resulting from activities of historic and prehistoric 
Native Americans.
    (b) Other terms appearing in the regulations are defined at 15 CFR 
part 922 subpart A, and/or in the National Marine Sanctuaries Act, as 
amended, 16 U.S.C. 1431 et seq.


Sec. 922.192  Joint Management Committee.

    (a) A state/federal Joint Management Committee shall be established 
to oversee and engage in decision-making authority for the Thunder Bay 
National Marine Sanctuary and Underwater Preserve.
    (b) The Joint Management Committee shall be comprised of one 
Federal employee named by the NOAA Administrator and one state employee 
named by the Governor of Michigan. The Federal employee cannot be the 
sanctuary manager (the individual who exercises day-to-day management 
over the Sanctuary) and must have a civil service grade higher than 
that of the sanctuary manager.
    (c) The Joint Management Committee shall:
    (1) Develop a position description for, recruit prospective 
candidates for the position of, interview candidates for the position 
of, and take part in the annual performance evaluation of, the 
sanctuary manager;
    (2) Approve revisions to the Management Plan;
    (3) Approve annual work plans;
    (4) Approve, on an annual basis, the expenditure of allocated state 
and federal funds and other sources of revenue for the Thunder Bay 
National Marine Sanctuary and Underwater Preserve, in accordance with 
the Management Plan and the annual work plans; and
    (5) Make decisions on other key issues related to management of the 
Thunder Bay National Marine Sanctuary and Underwater Preserve.
    (d) The Joint Management Committee shall meet as agreed to by the 
members but not less than once annually.
    (e) If the Joint Management Committee is unable to reach agreement 
on an issue, the members shall follow the ``Consultation and Conflict 
Resolution'' procedures set forth in the Interlocal Agreement between 
NOAA and the State of Michigan.
    (f) The Joint Management Committee may invite affected public 
parties to participate in selected aspects of Sanctuary management as:
    (1) Parties to the Interlocal Agreement pursuant to the Michigan 
Urban Cooperation Act of 1967, MCL 124.501 et seq.; and/or
    (2) Pursuant to the NMSA.


Sec. 922.193  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (d) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Recovering, altering, destroying, possessing, or attempting to 
recover, alter, destroy, or possess an underwater cultural resource.
    (2) Drilling into, dredging or otherwise altering the lakebottom 
associated with underwater cultural resources, including contextual 
information; or constructing, placing or abandoning any structure, 
material or other matter on the lakebottom associated with underwater 
cultural resources, except as an incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations; or
    (iii) Minor projects (as defined in Appendix B of this subpart) 
that do not adversely affect underwater cultural resources.
    (3) Using grappling hooks or other anchoring devices on underwater 
cultural resource sites that are marked with a mooring buoy.
    (4) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulations issued under 
the Act.
    (b) Members of a federally-recognized Indian tribe may exercise 
treaty-secured

[[Page 39058]]

rights, subject to the requirements of other applicable law, without 
regard to the requirements of this subpart. The Director may consult 
with the governing body of a tribe regarding ways the tribe may 
exercise such rights consistent with the purposes of the Sanctuary, 
provided that the rights are authorized by the tribe by regulation, 
license, or permit.
    (c) The prohibitions in paragraphs (a)(1) through (3) of this 
section do not apply to valid law enforcement activities, or any 
activity necessary to respond to an emergency threatening life or the 
environment.
    (d) The prohibitions in paragraphs (a) (1) through (3) of this 
section do not apply to any activity:
    (1) Specifically authorized by, and conducted in accordance with 
the scope, purpose, terms and conditions of, a permit issued pursuant 
to Sec. 922.195 or a Special Use Permit issued pursuant to section 310 
of the NMSA.
    (2) Specifically authorized by any valid Federal, State, or local 
lease, permit, license, approval, or other authorization in existence 
on the effective date of these regulations, or by any valid right of 
subsistence use or access in existence on the effective date of these 
regulations, provided that the holder of such authorization or right 
complies with Sec. 922.194 and Sec. 922.47 and with any terms and 
conditions for the exercise of such authorization or right imposed by 
the Director as a condition of certification as he or she deems 
reasonably necessary to achieve the purposes for which the Sanctuary 
was designated.


Sec. 922.194  Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or rights to conduct a prohibited 
activity.

    (a) A person may conduct an activity prohibited by Sec. 922.193 
(a)(1) through (3) if such activity is specifically authorized by a 
valid Federal, State, or local lease, permit, license, approval, or 
other authorization in existence on the effective date of Sanctuary 
designation, or by any valid right of subsistence use or access in 
existence on the effective date of Sanctuary designation, provided 
that:
    (1) for any State or local lease, permit, license, approval, or 
other authorization, or any right of subsistence use, the State 
Archaeologist certifies to the Director, within 90 days of the 
effective date of designation, that the activity authorized under the 
State or local lease, permit, license, approval, or other 
authorization, or any right of subsistence use, is being conducted 
consistent with the Programmatic Agreement, in which case such activity 
shall be deemed to have met the requirements of this section and 
Sec. 922.47; or
    (2) In the case where either:
    (i) The State Archaeologist does not certify that the activity 
authorized under a State or local lease, permit, license, approval, or 
other authorization, or right of subsistence use is being conducted 
consistent with the Programmatic Agreement; or
    (ii) The activity is conducted pursuant only to a Federal permit, 
the holder of the authorization or right complies with paragraphs (b) 
through (k) of this section.
    (b) For an activity described in paragraph (a)(2) of this section, 
the holder of the authorization or right may conduct the activity 
prohibited by Sec. 922.193 (a)(1) through (3) provided that:
    (1) The holder of such authorization or right notifies the 
Director, in writing, within 90 days of the effective date of Sanctuary 
designation, of the existence of such authorization or right and 
requests certification of such authorization or right;
    (2) The holder complies with the other provisions of Sec. 922.194; 
and
    (3) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as a condition of 
certification, by the Director, to achieve the purposes for which the 
Sanctuary was designated.
    (c) The holder of an authorization or right described in paragraph 
(a)(2) of this section authorizing an activity prohibited by 
Sec. 922.193 may conduct the activity without being in violation of 
applicable provisions of Sec. 922.193, pending final agency action on 
his or her certification request, provided the holder is in compliance 
with this Sec. 922.194.
    (d) Any holder of an authorization or right described in paragraph 
(a)(2) of this section may request the Director to issue a finding as 
to whether the activity for which the authorization has been issued, or 
the right given, is prohibited by Sec. 922.193, thus requiring 
certification under this section.
    (e) Requests for findings or certifications should be addressed to 
the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary Manager, Thunder Bay National Marine Sanctuary and Underwater 
Preserve, 1305 East-West Highway, N/ORM, Silver Spring, Maryland, 
20910. A copy of the lease, permit, license, approval, or other 
authorization must accompany the request.
    (f) The Director may request additional information from the 
certification requester as he or she deems reasonably necessary to 
condition appropriately the exercise of the certified authorization or 
right to achieve the purposes for which the Sanctuary was designated. 
The Director must receive the information requested within 45 days of 
the postmark date of the request. The Director may seek the views of 
any persons on the certification request.
    (g) The Director may amend any certification made under this 
Sec. 922.194 whenever additional information becomes available 
justifying such an amendment.
    (h) Upon completion of review of the authorization or right and 
information received with respect thereto, the Director shall 
communicate, in writing, any decision on a certification request or any 
action taken with respect to any certification made under this 
Sec. 922.194, in writing, to both the holder of the certified lease, 
permit, license, approval, other authorization, or right, and the 
issuing agency, and shall set forth the reason(s) for the decision or 
action taken.
    (i) Any time limit prescribed in or established under this 
Sec. 922.194 may be extended by the Director for good cause.
    (j) The holder may appeal any action conditioning, amending, 
suspending, or revoking any certification in accordance with the 
procedures set forth in Sec. 922.50.
    (k) Any amendment, renewal, or extension made after the effective 
date of Sanctuary designation, to a lease, permit, license, approval, 
other authorization or right is subject to the provisions of 
Sec. 922.195 and Sec. 922.49.
    (l) For any activity authorized pursuant to Sec. 922.193 (b), the 
holder of such license or permit shall notify the Director, in writing, 
within 90 days of the effective date of Sanctuary designation, of the 
existence of such authorization or right.


Sec. 922.195  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec. 922.193 
(a)(1) through (3), if conducted in accordance with the scope, purpose, 
terms and conditions of a State Permit provided that:
    (1) The State Archaeologist certifies to NOAA that the activity 
authorized under the State Permit will be conducted consistent with the 
Programmatic Agreement, in which case such State Permit shall be deemed 
to have met the requirements of Sec. 922.49; or
    (2) In the case where the State Archaeologist does not certify that 
the activity to be authorized under a State Permit will be conducted 
consistent

[[Page 39059]]

with the Programmatic Agreement, the person complies with the 
requirements of Sec. 922.49 of this part.
    (b) If no State Permit is required to conduct an activity 
prohibited by Sec. 922.193 (a)(1) through (3) of this subpart, a person 
may conduct such activity if it is conducted in accordance with the 
scope, purpose, terms and conditions of a Federal permit, provided that 
the person complies with the provisions of Sec. 922.49 of this part.
    (c) In instances where the conduct of an activity is prohibited by 
Sec. 922.193 (a)(1) through (3) of this subpart is not addressed under 
a State or other Federal lease, license, permit or other authorization, 
a person must obtain a Sanctuary permit from NOAA pursuant to 
Sec. 922.48 (c) through (f) of this part and the Programmatic Agreement 
in order to conduct the activity.
    (d) A permit for recovery of an underwater cultural resource may be 
issued if:
    (1) The proposed activity satisfies the requirements for permits 
described under paragraphs (a) through (c) of this section;
    (2) The recovery of the underwater cultural resource is in the 
public interest;
    (3) Recovery of the underwater cultural resource is part of 
research to preserve historic information for public use; and
    (4) Recovery of the underwater cultural resource is necessary or 
appropriate to protect the resource, preserve historical information, 
or further the policies of the Sanctuary.
    (e) A person shall file an application for a permit with the 
Michigan Department of Environmental Quality, Land and Water Management 
Division, P.O. Box 30458, Lansing, MI, 48909-7958. The application 
shall contain all of the following information:
    (1) The name and address of the applicant;
    (2) Research plan that describes in detail the specific research 
objectives and previous work done at the site. An archaeological survey 
must be conducted on a site before an archaeological permit allowing 
excavation can be issued;
    (3) Description of significant previous work in the area of 
interest, how the proposed effort would enhance or contribute to 
improving the state of knowledge, why the proposed effort should be 
performed in the Sanctuary, and its potential benefits to the 
Sanctuary;
    (4) An operational plan that describes the tasks required to 
accomplish the project's objectives and the professional qualifications 
of those conducting and supervising those tasks (see Sec. 922.195(e)(9) 
of this section. The plan must provide adequate description of methods 
to be used for excavation, recovery and the storage of artifacts and 
related materials on site, and describe the rationale for selecting the 
proposed methods over any alternative methods;
    (5) Archaeological recording, including site maps, feature maps, 
scaled photographs, and field notes;
    (6) An excavation plan describing the excavation, recovery and 
handling of artifacts;
    (7)(i) A conservation plan documenting:
    (A) The conservation facility's equipment;
    (B) Ventilation temperature and humidity control; and
    (C) storage space.
    (ii) Documentation of intended conservation methods and processes 
must also be included;
    (8) A curation and display plan for the curation of the conserved 
artifacts to ensure the maintenance and safety of the artifacts in 
keeping with the Sanctuary's federal stewardship responsibilities under 
the Federal Archaeology Program (36 CFR Part 79, Curation of Federally-
Owned and Administered Archaeological Collections); and
    (9) Documentation of the professional standards of an archaeologist 
supervising the archaeological recovery of historical artifacts. The 
minimum professional qualifications in archaeology are a graduate 
degree in archaeology, anthropology, or closely related field plus:
    (i) At least one year of full-time professional experience or 
equivalent specialized training in archeological research, 
administration or management;
    (ii) At least four months of supervised field and analytic 
experience in general North American archaeology;
    (iii) Demonstrated ability to carry research to completion; and
    (iv) At least one year of full-time professional experience at a 
supervisory level in the study of archeological resources in the 
underwater environment.


Sec. 922.196  Emergency regulations.

    (a) Where necessary to prevent or minimize the destruction of, loss 
of, or injury to an underwater cultural resource, or to minimize the 
imminent risk of such destruction, loss, or injury, any and all 
activities are subject to immediate temporary regulation, including 
prohibition. An emergency regulation shall not take effect without the 
approval of the Governor of Michigan.
    (b) Emergency regulations remain in effect until a date fixed in 
the rule or six months after the effective date, whichever is earlier. 
The rule may be extended once for not more than six months.


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

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


Sec. 922.198  Procedures for determining watercraft and related items 
which sink on or after the date of Sanctuary designation to be an 
underwater cultural resource.

    The Director, in consultation with the State of Michigan, 
appropriate federal agencies, and the governing body of any affected 
federally-recognized tribe, may determine, after providing 45 days for 
public comment, that any sunken watercraft, including a ship, boat, 
canoe, skiff, raft, or barge; the rigging, gear, fittings, trappings, 
and equipment of any sunken watercraft; the personal property of the 
officers, crew, and passengers of any sunken watercraft; and the cargo 
of any sunken watercraft, that sinks on or after the date of Sanctuary 
designation, to be an underwater cultural resource if such is 
determined by the Director to be 50 years or older and of special 
national significance due to architectural significance or association 
with individuals or events that are significant to local or national 
history.

Appendix A to Subpart R of Part 92--Thunder Bay National Marine 
Sanctuary and Underwater Preserve Boundary Coordinates

[Based on North American Datum of 1983]


------------------------------------------------------------------------
                  Point                      Latitude        Longitude
------------------------------------------------------------------------
1.......................................  45 deg.12'25.5  83 deg.23'18.6
                                                       "               "
2.......................................  45 deg.12'25.5   83 deg.00'00"
                                                       "
3.......................................  44 deg.51'30.5   83 deg.00'00"
                                                       "
4.......................................  44 deg.51'30.5  83 deg.19'17.3
                                                       "               "
------------------------------------------------------------------------

Appendix B to Subpart R of Part 922--Minor Projects for Purposes of 
Sec. 922.193(a)(2)(iii)

    Pursuant to Michigan State Administrative Rule R 322.1013 of 
Part 325, Great Lakes Submerged Lands of Public Act 451 (Michigan 
State Statute), the Michigan Department of Environmental Quality 
(Department) issues permits for projects that are of a minor nature 
which are not controversial, which have minimal adverse 
environmental impact, which will be constructed of clean, non-
polluting materials, which do not impair the use of the adjacent 
bottomlands by the public, and which do not

[[Page 39060]]

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

[FR Doc. 00-15638 Filed 6-19-00; 1:27 pm]
BILLING CODE 3510-22-P